It's Morning in Arabia

 (The Gold Standard for political advertising, dammit. No wonder Mondale/Ferraro got stuffed.)

(Without apologies to the Gipper.)

Firstly, Happy 2012!

It's hard to believe that less than 12 months ago, I posted a tongue-in-cheek piece about autocrats' egomania after the thunderclap of Tunisia's Jasmine Revolution. Yet less than a year on, brave people are protesting (and dying) in Syria,  three dictators have gone, with Tunisia, Libya Egypt and Yemen all standing at the dawn of a new and vibrant cacophony of politics and social change, with only Bahrain's regime looking like it has successfully suppressed popular anger. But it is unlikely to end here, as the siren calls of fresh air continue to echo around the Arab world, with unpredictable, but likely positive long-term effects. And crucially, an acceptance in the West that we can't reverse this tide even if we wanted to, so it's much better to be on the right side of history rather than having history's wave crash over you. 

Just before Christmas, Chatham House published a really interesting paper on Saudi Arabia's medium term economic and fiscal position which is fascinating (and for Saudis facing a demographic explosion, terrifying). Accountability is going to be key in making the choices that such a fiscal transition will require, so pressure for change will only increase. Interesting times ahead!

Meanwhile, back in Yemen....

("So which bit of 'I'm still in charge' don't you get?")

2011: what a year for the UN Security Council. First with the passage of UNSCR 1970 and UNSCR 1973, the UN - with the support of the Arab League - authorised sanctions and then the use of force in Libya. Then the stop-and-start element came in with Russia and China vetoing a draft S/2011/612  over (extremely limited) action against Syria, and the moment was less optimistic. However, with the unanimous passage of UNSCR 2014 on 21 October on Yemen, and the direct support to the Gulf Cooperation Council (GCC) initiative that OP4 describes as:

"... inclusive, orderly, and Yemeni-led process of political transition, notes the signing of the Gulf Cooperation Council initiative by some opposition parties and the General People’s Congress, calls on all parties in Yemen to commit themselves to implementation of a political settlement based upon this initiative..."

The rest of UNSCR 2014 is full of sensible stuff about pushing along an implementation of the proposed settlement with President Saleh, but I was very taken with the not-quite-Chapter VII language of PP18:

"Mindful of its primary responsibility for the maintenance of international peace and security under the Charter of the United Nations, and emphasizing the threats to regional security and stability posed by the deterioration of the situation in Yemen in the absence of a lasting political settlement,"

The UNSC etc etc...

So let's watch it. If Saleh doesn't accept the GCC proposals - which is not uncontroversial given then the GCC has included an immunity clause -  then the UNSC has said that they'll return to it. It will be very interesting to see how the next phase in Yemen develops.

Three-and-a-half down....

 

(No risk of running out of red paint.....)

Back in January, I put up a tongue-in-cheek post on the Arab world's dictators, taking the chance to laugh at the cults-of-personality that have blighted the governance of the region since decolonisation in the 1950s. All good clean fun, provided that you don't have to live in any of the more-or-less authoritarian states they ran (badly).

I certainly never expected to be recording the final defeat of Gaddaffi's forces in Sirte at the same time as Tunisia is preparing for its first-ever democratic elections - with an astonishing and inspiring 11,000 candidates running for 218 seats - this Sunday. Hence, we are witnessing a zone of democratic opportunity running from Tunisia to Egypt - absolutely excellent news. Moreover, given the UN vote due today, it seems impossible that Ali Abdullah Saleh will be able to revert to running Yemen in the same manner as he has since 1978, bringing the winds of change to Yemen. And Syria? Well, I'd be a seller of shares in Asad Inc., were they publicly traded.

The legal bit
But the process of revolutions matters, and in Libya there was clearly an International Armed Conflict (IAC) between NATO and Gaddaffi's forces, sanctioned by UNSCR 1973, and a Non-International Armed Conflict (NIAC) between the National Transitional Council and the Gaddaffi regime; the ruling law was clearly some flavour of LOAC in places where conflict was actually taking place.

(Gaddaffi's last redoubt)

In the last 24 hours, it has also become clear that Gaddaffi was alive - though injured - at the time of his capture, and that he was subsequently shot dead, apparently in cold blood. Let's be clear - killing Gaddaffi was the execution of a presumptive PoW (presumptive in that Gaddaffi would have had PoW rights until an a GC III Article 5 Tribunal - which doesn't appear to have been held - decided that he did or didn't qualify), which itself is a War Crime contrary to Article 8(2)(b)(vi) of the International Criminal Court's Rome Statute.

As Elham Saudi of Lawyers for Justice in Libya (LFJL) pointed out on the UK's Channel Four news last night, it would have been much better for him to have faced trial, both from notions of justice and for the victims to have their day in court. What is interesting now is how the new Libyan authorities choose to deal with these important legal issues - as the Rome Statute makes clear, crimes committed by both sides of an armed conflict need addressing.

USG Opinion on killing Anwar al-Awlaki: Part II

(Admiral Yamamoto's Mitsubishi G4M Betty after crashing in the Bougainville jungle on 18 Apr 43) 

Back at the beginning of this week, we looked at the international legal considerations of the killings of Anwar al-Awlaki and Samir Khan in Yemen last month. Glenn Greenwald of Salon.com characterises this as the "assassination of U.S. citizens without due process has now has become a reality"; Jack Goldsmith (an Assistant Attorney-General under Bush 43) instead favourably compares this with the 1943 targeting of Admiral Isoroku Yamamoto, the architect of the Japanese attack on Pearl Harbour.

In my view, both are mistaken because both make unfounded assertions over over what the controlling law is, as we looked in Part I. Addressing Goldsmith first, unless the US has decided that it is involved in an International Armed Conflict (IAC) with Al Qaeda in the Arabian Peninsula (AQAP), then the Yamamoto precedent is simply irrelevant, as the controlling law in these cases would be fundamentally different. It's hard to see how the US and AQAP could be engaged in an IAC, given that AQAP does not appear to control territory as a de facto government, nor does it enjoy at least the tacit support of a State in the way that AQ did under the Taliban prior to September 2001. 

Equally, to assert, as Greenwald does, that it is possible to take active participation in a conflict against the United States - and it is clear that al-Awlaki's video sermons incited violence against the United States and its allies - whilst retaining your full Constitutional rights as a citizen is self-evidently ridiculous, as it is the basest attempt to have your cake and eat it.

As there is no evidence suggesting that al-Awlaki was coerced into making these statements, so the correct constitutional parallel here is with 2nd Lieutenant Martin James Monti USAAC. Monti was the most prominent of the tiny number of American citizens opted by their own free volition to fight for Nazi Germany in WWII (an IAC)*. After going AWOL from India, stealing an aircraft in Italy, and then defecting to Nazi forces in northern Italy, Monti appears to have become a fully-fledged SS officer. He conducted propaganda broadcasts for the SS in 1944-45, and there is no suggestion that Monti was not an enemy combatant at this point, and that targeting him at this point would have been legal. This is without prejudice to that fact that Monti could - and indeed was - subsequently tried for treason, serving a jail term from 1948 until paroled in 1960.

The point here is that by choosing to become a combatant in either an IAC or a NIAC, then al-Awlaki could be targeted under international law for as long as he retained combatant status. 

 

(Warner Hemicycle: the graveyard of Prof. Dry's freshman Poli-Sci students who hadn't done their reading...)

But much had been written on the implications under US domestic law, I was uncertain, so I was delighted to have the chance to discuss this with Prof. Murray Dry, who had the misfortune to be my supervisor when I was a Middlebury undergraduate. Prof. Dry, (the Charles A. Dana Professor of Political Science at Middlebury), is an esteemed US Constitutional scholar, and I fully expected him to lay out an argument that I should've recalled from his classes, (and hadn't). Instead, he accepted the premise that it would be an absurdity to allow those fighting against the United States to have some sort of right to due process - and implicitly, judicial review - in the midst of a war they are fighting against the United States.

But the US Government memo - or the portions leaked to the New York Times - does not help matters, as it seems to confuse the issue as, 

"The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him." 

As discussed in Part I, this conflates the LOAC notions of the combatant-status ("taking part in the war") with the IHRL requirement to detain and try suspects for crimes, allowing the use of lethal force only in the most extreme cases where the suspect posed an immediate threat to the lives of others. This leaked paragraph, if accurate, does neither, and appears to mis-state the law. Of course, the legal advice could be entirely accurate, but we won't know until it is released.

(US Attorney General Eric H. Holder)

Which brings me the to the final point, which is also the primary point: the use of lethal force by a State in law enforcement usually results in some sort of public investigation in the western world; it is a key element of accountability mechanism, and builds trust in the decision-making processes that frequently require action first, and public consultation second. This is clearly different for the use of force under LOAC, but as the proliferation of official and NGO investigation organisations grows, we can see that there is unprecedented pressure to demonstrate that even in wartime, LOAC is consistently observed; but what is consistent is that standards for accountability are ever increasing.

So for the sake of transparency, and to demonstrate the legality of the approach, please publish the legal advice, Mr. Holder. And do so now, not when it has been drip-fed through convenient leaks.


* This was part of a Nazi plan to induce Allied POWs to fight against the Soviets, and it was spectacularly unsuccessful - around 60 British POWs joined the British element of the Waffen-SS, with at least some of the survivors court-martialed at war's end.

I'm in charge. Let there be billboards!

Ok, so after Tunisia, and now in Egypt, we see riots of repressed people shouting for freedom and the possibility of overthrowing authoritarian regimes. But freedom and democracy, whilst instinctively attractive, would have certain downsides, including the loss of the principal point of one-party states: the cult of the Maximum Leader, Imperator, Man of Destiny, and with it, his image everywhere. (I can't think of a female dictator. Margaret Thatcher could only dream of this level of sycophancy...) Let there be billboards!

Muammar Abu Minyar al-Gaddafi was always a reticent wallflower....

Whereas in Yemen, you get to buy your own Ali Abudallah Saleh. ("Buy one, get one, free?"; soon enough, "Buy one, get one, flee..")

Hosni Mubarak smiles benignly from Egyptian streetlamps...

...but no-one compares with Gaddafi-as-multifaceted-visionary

Royalists don't need to feel left out - here's Jordan's King Abdullah II bin al-Hussein keeping an eye on things in Amman...

 

... but in this selection, only Syria's Bashir al-Assad gets to watch over his people night and day.