LOAC or IHL? Words matter!

(The ICRC Customary International Law Study - a wonderful piece of work.) 

Rant Mode: ON (You have been warned.)

Words matter. Names matter.

And that is why  is why I'm always so annoyed with the ICRC's insistence on using the term "International Humanitarian Law" (IHL) when referring to the Law of Armed Conflict (LOAC). The principal (& principled) problem is that as a term IHL is dangerously close to International Human Rights Law (IHRL), inviting comparison, conflation and breeding confusion. It is true that some eminent commentators - e.g. Professor Philippe Sands QC - have characterised the two bodies of law as twins separated at birth, raised by mutually antagonistic parents. This is fair enough as both legal cannons emanate from a well-spring of humanitarianism, designed to protect people from the arbitrary predations of States and the powerful; but they are distinct.

And distinct for a reason. Human Rights Law is universal and applies at all times; these are, after all, universal minimum guarantees. The 1948 Universal Declaration of Human Rights (UDHR) enumerates the fundamental rights of people worldwide (even if there were UN members which routinely violated the UDHR's requirements in 1948 - e.g. colonial rule, apartheid, or slavery). Numerous national, regional and international human rights instruments have been added (e.g. the International Covenant on Civil and Political Rights (ICCPR) in 1966, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979; the African charter on Human and Peoples Rights from 1981) which together with some Courts - notably the European Court of Human Rights (ECtHR) in Strasbourg - have transformed the rights of people worldwide by enunciating them and providing redress (however patchy and imperfect.) This is a proud history and a firm foundation for building a better future.

 (The rather wonderful companion to the red book, above.)

The Law of Armed Conflict (LOAC), however, is of a fundamentally different form. First and most importantly, LOAC can by definition only apply during conflict; simply, it is legal to kill an enemy combatant in wartime when killing the same person in peacetime is called murder. Second, as lex specialis (special law relating to specific circumstances), LOAC replaces the existing law for the period in which it is applicable where the two conflict. Third, specific and different rules apply for International Armed Conflicts (IACs) and Non-International Armed Conflicts (NIACs). Finally, LOAC has large elements that predate the Treaties and exist under Customary International Law which the ICRC attempted the thankless task of pulling together it the Customary Law Study (the red book at the top of the post) - a good piece of work, being improved with the current update, and is especially rewarding when read in tandem with Chatham House's critique (the blue book). 

(Not a pizza)

Any attempt to merge the two is like comparing an apple with a pizza; they are both about rights, but their form and function is entirely different.

So when the ICRC as the guardians of the central LOAC treaty-based legislation (Geneva Conventions I - IV from 1949 and the two Additional Protocols to the Conventions from 1977) tries to broaden the scope of the Conventions by extending the scope of NIACs down from insurgencies where insurgents hold territory and operate a chain of command to civil unrest and riots*, problems are inevitable. The most obvious is that as lex specialis, applying LOAC to civil unrest would actually reduce the protection of human rights, as LOAC overrides the human rights protections.

(Libya's new-old flag: today's protesters are using a variant of the old Royalist flag from pre-1969)

Applying this notion in situations in Libya today could have the following legal effect: by replacing human rights law with LOAC, instead of treating Libyan protesters as civilians engaged in awe-inspiring demotic civic dialogue, who have, amongst other things, the right to life, liberty and security of person under UDHR Article 3, the civilians could be treated as rebel combatants and legally killed as long as there was a military advantaged gained by doing so. When Col. Gaddafi promises to "die in Libya" then it's reasonable to assume that such a legal position would remove what little restraint still exists on the use of force. As bad as things are in Libya, they could be much, much worse if the survival of the state legally allowed essentially unlimited use of force against protesters.

Thus to suggest that LOAC and IHRL are the same thing is bonkers, as it serves to reduce protections and increase the incentive for oppressive regimes to go for broke. Madness, in my humble opinion.

So, a plea for clarity. LOAC is LOAC because it covers armed conflicts - and IHRL covers peacetime. The names help remind us of this, and makes for better policy.

Rant Mode: OFF

*This is a serious and separate problem. Fortunately, Chatham House are conducting an experts' working group on the Classification of Conflict which I'm looking forward to reading in due course. 

Armed Attacks in Cyberspace

 (The front door to our wonderful playroom.)

I was at Chatham House last night for Elizabeth Wilmshurst's excellent International Law Discussion Group series, this time addressed by Col. Hays Parks USMC (Retd), the editor of the forthcoming US Department of Defense Manual on the Law of Armed conflict. (Yes, it's finally happening, and we can replace US Army Field Manual FM 27-10 from 1956!) As expected, Col. Parks was excellent, and with a distinguished audience asking pointedly interesting questions, it was heaven for a LOAC* geek! As usual, ILDG was all very interesting, and there will be a formal note of the meeting on the ILDG website shortly.

(An Annex to our wonderful playroom.)

But one of the most interesting elements was the news that there will be a chapter on the law covering electronic attacks and cyberwarfare. This will be the shortest of the chapters, reflecting the novelty of the subject, but it will be fascinating to see the conceptual approach that the US are taking; crucially, what will they say about the definition of an armed attack in cyberspace? All to be revealed shortly, it seems.

* Don't let Wikipedia or the ICRC mislead you, dear reader. LOAC is not "International Humanitarian Law", it is the law to regulate - and make less terrible - armed conflict... hence, the Law Of Armed Conflict - LOAC! Please note: this blog has no strong views on this subject. Too much.

Steam Trains - Little Ones

Well, with thanks to my parents for an excellent choice of birthday present, here's  me playing on the Romney Hythe & Dymchurch Railway last November - brilliant fun!

Our noble steed for the day - No 8, Hurricane. And snow!

All of the best childish delights....

 Amid the Romney Marshes - desolate, but inviting. And as the train is so small, 20 mph feels like 60 - small genius!

Formula 1 as predictive revolutionary yardstick

(Sakhir Circuit, Bahrain. A really, really, dull modern F1 track.)

Don't laugh. When you hear that Bernie Ecclestone is thinking of cancelling a Grand Prix, then you know it's got to be serious - this last happened.... when? And so in Bahrain we face another bit of history in the making - or for the reality tv addicts "History - Live, Innit?!" Or perhaps "Arab Authoritarians Lack Talent"?

It's easy to see why Egypt matters - it's been a cultural, economic and political fulcrum for much of the the last 6,000 years, and it remains the most populous Arab nation, and the home of the one of the most influential Islamic centres of learning in Al Azhar. Indeed, arguably the period in which it has mattered least regionally was from the signing of Camp David Accords in 1978 to Gulf War I 1990-91 when it was persona non grata with the rest of the Arab world due to recognising and agreeing a peace treaty with Israel.

(Oil and oppressed Shias. Lots of both in and around Al Jubayl, Dammam. And next to Bahrain - interesting.)

But in many ways I would argue that what's happening in Bahrain is significantly more important. As an absolute monarchy with an efficient police state, with a Sunni ruling elite and majority Shia population, Bahrain has important similarities with both Qatar and Kuwait, but crucially with eastern Saudi Arabia, especially around the oil production centres at Dahran / Dammam. 

Does this mean that the Saudi monarchy is under direct threat? No, not yet. But the really revolutionary point over the last six weeks in the Arab world seems to have been the people understanding that if enough protest together, the authoritarians cannot kill enough of them to suppress them - at which point the regime is finished in practical terms. So Bahrain as the first of the Arab monarchies to start shooting its citizens is going to prove an interesting litmus test - if people power works here, then where the dominoes fall next becomes very strategically interesting.

So, if they end up cancelling this year's Abu Dhabi Grand Prix in November, then 2011 will have been a truly revolutionary year. And no, I don't see predictive causality in Formula 1. At least not yet.

UK Nuclear Future

(A good book. In fact, a great book - go read it.)

In part one and two of these random musings (do they qualify for capital R and capital M at this point? I leave that to you, dear reader...) we looked at the history and the future choices for the UK nuclear weapons. Now, enough of my quasi-academic pontification: what would I actually *do* if I were in charge? And Why?

The first point is that though the world is an unstable place with active proliferation attempts by non-nuclear States that are not UK or western-aligned, it is not clear that the Irans or North Koreas of this world have either the capability or intent to attack the UK with a nuclear armed missile, nor is it clear that they are not deterred by the US nuclear guarantee to NATO.

Really? What surely they're all crazy mullahs / mad Stalinists?

Well, let's assume that Iran successfully builds a nuclear weapon, and successfully integrates it with one of their current missile systems - e.g. Shahab-3 or the Ghadr-110, and then moved these missiles up to NW Iran, could they even hit the UK?

Courtesy of Great Circle Mapper (hours of fun!), here's the range of the 1200nm Shahab-3 (Meteor-3) from Tabriz:

And here's the 3,000km range of the Ghadhr-110:

As you can see, neither can hit the UK, though if they were accurate enough, they could hit Cyprus with the UK's Sovereign Base Areas. I've no idea of the Circular Error Probable over the 780nm from Tabriz to Akrotiri - but given that the Iranian attacks on Baghdad (and vice-versa) during the "War of the Cities" was not notably precise (not surprising as the SS-1 SCUD derivatives used - themselves derived from Hitler's WWII V-2 rockets - are prone to wander off by themselves), it is asking a lot of Iranian missile design to be able to develop a precision strike capability to hit Akrotiri today. As range increase, accuracy falls away sharply, so I would predict that hitting Rome with a Ghadhr-110 will be something of a crapshoot from Tabriz.

Of course, it is likely that given time, money and imported technology from wherever, the Iranians could produce a longer range missile. And according to Wikileaked US State Department cables, Iran has some 19 North Korean BM-25 Musudan missiles, with a range of 4,000km / 2,485 miles. Fired from Tabriz, BM-25 could, theoretically hit Heathrow 2,424 miles away. 

(And no, this blog is not advocating urban regeneration of Hounslow and Feltham by Iranian missiles irrespective of how desirable such regeneration may be.)

All of which assumes that the Iranians and North Koreans would want to. 

And that's the crux: If Iran had the capability, and was able to prepare and launch a BM-25 with a nuclear warhead against London, and did so, then Article V of the North Atlantic Treaty - all of that armed attack on one is an attack on all business - would presumably be invoked, and Iran would suffer a devastating US nuclear counter-attack. 

So: one element of the rationale facing the UK in the £100bn like-for-like replacement of CASD by new SSBNs and Trident is that there may be some Iranian or other nutters who decide on national self-destruction, or who are going to nuke the UK and don't expect the US to shoot back. I would posit that the likelihood that the Iranians decided not to nuke London based on the UK SSBNs is in fact vanishingly small, as the Iranian and North Koreans are - just like the Soviets in the Cold War - focussed on the survival of the regime above all else. (So was Hosni Mubarak. Oops.) But nothing is going to overthrow the regime more surely than lobbing nuclear weapons on rockets at western cities - therefore, it isn't going to happen.

"Ah", I hear the realists cry "But these people are millenarian nutters for who death is not a problem." And thus they aren't rational.

Perhaps. 

 (V. I. Lenin. Old-skool millenarian nutter. Innit?)

There are two responses to this: first, that the Soviets were ostensibly (and officially) millenarian nutters who wanted to change the world, but yet they were deterred, largely by America's nuclear arsenal. Secondly, if these millenarian nutters are actually not rational, then presumably they can't be deterred, so the UK SSBNs are useless anyway. This second argument obviously also applies to the nightmare scenario of Al Qaeda getting its hand on a nuclear device - because they can't be deterred and they don't have any territory to nuke anyway.

Which leaves proponents of CASD replacement saying something like, "Well yes, but we might need it, and in any event we're a great power and need the accoutrements of Great Powerdom, like nuclear weapons." Which, all you astute readers out there will have noticed, is precisely the circular argument that this debate started with in 1946.

So actually neither argument supports the idea of replacing Trident with CASD. Hooray, we've just saved £100bn.

Or have we?

I think we probably have. My personal position is that there is no obvious, credible threat - threat comprising of technical capacity and intent - to the UK posed by nuclear weapons. Further, the £100bn - and the £20 - 30bn of capital costs over the next decade to replace the existing SSBNs - will totally distort an already badly stretched (read: broke) UK defence budget, and to go ahead with the SSBN replacement will mean that other, useful - and in some cases critical - capabilities will have to be cut to fund it. This is madness. 

(WE177 - small. Large bang, however. Make sure you mean it before you let it off; unintentional detonations probably best avoided, and are likely to create lots of paperwork. Paperwork like this is always bad.)

So my solution? 

Scrap Trident - indeed, bring the existing SSBNs in now and stand down CASD, saving the current operating costs. Retain the nuclear engineering knowhow and bomb-making capability at Aldermaston and Burghfield to provide technical expertise in disarmament and nuclear verification, and in extremis, the ability for the UK to fabricate an air-dropped nuclear weapon in 12-24 months - after all, the WE177 plans presumably still exist, and if requried, fabricating new weapons should only be an engineering task. In other words, the UK would assume a position similar to that of Japan - no weapons, but a clear technical breakout capability if required.

And this would also mark a coherent step towards nuclear disarmament, making the UK the first Permanent Member of the UN Security Council to give up deployed nuclear weapons. 

Thoughts, as always, most welcome.