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Middle East

Guest Post: Meloni–Can the ICC investigate UK higher echelons’ command responsibility for torture committed by the armed forces against Iraqi detainees?

by Chantal Meloni

[Dr. Chantal Meloni teaches international criminal law at the University of Milan is an Alexander von Humboldt Scholar at Humboldt University of Berlin.]

1. A new complaint (technically a Communication under art. 15 of the Rome Statute) has been lodged on the 10th of January to the Intentional Criminal Court, requesting the Prosecutor to open an investigation into the denounced abuses committed by UK military forces against Iraqi detainees from 2003 to 2008.

The complaint has been presented by the British Public Interest Lawyers (PIL), representing more than 400 Iraqi victims, jointly with the Berlin-based European Centre for Constitutional and Human Rights (ECCHR).

The lawyers’ allegation is that grave mistreatments, including torture and other degrading abuse techniques, were commonly used during the six years in which the UK and Multinational Forces operated in Iraq.

According to the victims’ account the mistreatment was so serious, widespread and spanned across all stages of detention as to amount to “systemic torture”. Out of hundreds of allegations, the lawyers focused in particular and in depth on eighty-five cases to represent the mistreatment and abuses inflicted, which would clearly amount to war crimes.

2. This is not the first time that the behaviour of the UK military forces in Iraq is challenged before the ICC. In fact, hundreds of complaints have been brought on various grounds both to domestic courts and to the ICC since the beginning of the war. As for the ICC, after the initial opening of a preliminary examination, following to over 404 communications by Iraqi victims, in 2006 the ICC Prosecutor issued a first decision determining not to open an investigation in the UK responsibilities in Iraq. According to that decision, although there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhumane treatment, the gravity threshold was not met. Indeed the number of victims that had been taken into account at that time was very limited, totalling in all less than 20 persons, so that the Prosecutor found that the ‘quantitative criteria’, a key consideration of the ICC prosecutorial strategy when assessing the gravity threshold, was not fulfilled.

Therefore, what is there new that in the view of the lawyers warranted the re-proposition of such a request? In the first place it shall be noted in this regard that during the eight years that passed since then many more abuse allegations have emerged (see the Complaint, p. 110 ff.). Most notably, hundreds of torture and mistreatment allegations show a pattern – spanning across time, technique and location – which would indicate the existence of a (criminal) policy adopted by the UK military forces when dealing with the interrogation of Iraqi detainees under their custody.

In the words of the lawyers, “it was not the result of personal misconduct on the part of a few individual soldiers, but rather, constituted widespread and systematic mistreatment perpetrated by the UK forces as a whole”. (more…)

Lieblich Guest Post: Yet Another Front in Israeli/Palestinian Lawfare–International Prize Law

by Eliav Lieblich

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC), Herzliya; his book, International Law and Civil Wars: Intervention and Consent, has been recently published by Routledge]

While opinions are split whether U.S. Secretary of State John Kerry will be able to bring, in his recent efforts, any progress to the stalemated Israeli-Palestinian conflict, it seems that Israel has recently decided to take the conflict back to the 19th century – at least legally. This time, we are talking about the revival of none other than age-old maritime prize law – a traditional body of the international law of war dealing with the belligerent capture of vessels and cargos.

The importance of maritime prize law peaked in the American Civil War, and steadily declined through the two World Wars into virtual disuse in the last decades. However, on the last week of December, the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel, held a first hearing in prize proceedings initiated by the State of Israel against the Estelle, a Finnish vessel, intercepted by the Israeli navy while attempting to symbolically breach the Gaza blockade in late 2012 (see the story, in Hebrew, here). The state requests the court to condemn the Estelle, which carried cement and toys, based on jurisdiction derived from the British Naval Prize Act of 1864 (!), and conferred to prize courts in Mandatory Palestine by the British Prize Act of 1939. At the time, Britain was interested in conferring such jurisdiction to courts in its colonies, protectorates and mandates in order to facilitate the condemnation of Axis maritime prizes captured in nearby waters. This power was never before exercised by Israel, which inherited the mandatory legislation upon its creation in 1948.

While the British prize laws are in essence jurisdiction-conferring rules, and deal mostly with procedure, the substantive norms of international prize law are derived from customary international law. Here lie the interesting aspects of the case. It is common knowledge, among those dealing with the nitty-gritty of IHL, that the process known as the “humanization of international humanitarian law” – as famously put by Theodor Meron – has generally not trickled to the law on maritime warfare. Prize law is perhaps a key example for this phenomenon.

For instance, while in ground warfare (and occupation) private property cannot be seized or destroyed absent pressing military necessity (for instance, Articles 23(g) & 52 of Hague Convention IV), private ships can be captured and condemned through proceedings in front of the seizing state’s prize courts, just for flying the enemy state’s flag. Essentially, thus, prize law doesn’t differentiate between the “enemy” state and its individual citizens, as modern IHL otherwise purports to do. In addition, “neutral” vessels can be condemned for carrying “contraband” – defined unilaterally by the capturing state – or, as in the case of the Estelle, for attempting to breach a blockade (for an attempt to state the customary international law on these issues see Articles 93 –104, 146, of the 1994 San Remo Manual). It should be added that the concept of blockade in itself seems like an outlier in contemporary law, since it can be looked upon, through a human rights prism, as a form of collective sanction against civilians.

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Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 2)

by Lorenzo Kamel

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University's History Department and a Visiting Fellow (2013/2014) at Harvard University's Center for Middle Eastern Studies.]

My previous post analyzed the EU’s approach towards Northern Cyprus and Western Sahara. This post will focus on the Palestinian Territories and the EU’s approach towards Israel’s policies in the area.

The Palestinian Territories represent a “sui generis case” among most of the “occupations” currently in place in different parts of the world. Not only in consideration of how long this occupation has been prolonged, but also because it represents one of the rare cases in which a military power “has established a distinct military government over occupied areas in accordance with the framework of the law of occupation.”

In other somewhat similar contexts, such as, just to name a few, Abkhazia, the Turkish Republic of Northern Cyprus (TRNC) and East Turkestan, the occupying powers of these areas have created in loco nominally independent states (TRNC-Turkey, Abkhazia-Russia and so on), and/or are not building settlements in their “occupied territories” (Chechnya is just an example), and/or have incorporated the local inhabitants as their citizens: with all the guarantees, rights and problems that this entails.

Some scholars have stressed out that the Golan Heights and East Jerusalem have been (unofficially, in the case of East Jerusalem) annexed by the State of Israel and that despite this, the EU Guidelines (discussed in the previous post) are to be enforced in these territories as well. Therefore, according to them, the comparison with other “occupations” would show that the Palestinian case cannot be considered “sui generis” and that the EU approach on the issue is marred by incoherence. These claims deserve a short preliminary clarification.

(more…)

Is the EU Adopting a Double-Standards Approach toward Israel and the Palestinian Territories? (Part 1)

by Lorenzo Kamel

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University's History Department and a Visiting Fellow (2013/2014) at Harvard University's Center for Middle Eastern Studies.]

On the anniversary of the International Day of Human Rights (December 10th) the European Parliament approved a four-year agreement with Morocco to allow European boats to fish in territorial waters off Western Sahara. The EU does not recognize Western Sahara as part of Morocco. Furthermore, the occupation of Western Sahara represents a violation of the United Nations Charter prohibition of aggression and forced annexation.

Acting as a realist rather than normative power, the EU adopted an approach which contradicts some of its own policies applied in other contexts. This is particularly evident once that the fisheries agreement is analyzed in the frame of the recent (July 2013) EU guidelines barring loans (which constitute less than 10 percent of funds the EU allocates in Israel) to Israeli entities established, or that operate, in the territories captured in June 1967 (the “EU Guidelines”). The EU-Morocco deal applies not just to the area under internationally recognized Moroccan sovereignty, but to all areas under its jurisdiction, including the Moroccan-occupied Western Sahara. The EU Guidelines, on the other hand, apply to the West Bank, East Jerusalem, and the Golan Heights: all areas under Israeli occupation.

This inconsistent approach plays in the hands of some of the most active supporters of the occupation of the Palestinian Territories and represents a major blow for the EU’s international credibility. Eugene Kontorovich pointed out for example that the positions adopted by the EU in its negotiations with Israel over grants and product labeling are inconsistent with those it has taken at the same time in its dealings with Morocco and the ones applied in contexts such as Northern Cyrus, Tibet, or Abkazia/Ossetia. According to Kontorovich, the EU approach regarding Western Sahara “is consistent with all prior international law […] the EU is right about Western Sahara – which means it is wrong about Israel.” [italics added]

This post and its follow-up, which will be posted later today, argue that the EU is right about Israel and wrong about Western Sahara. Together, they discuss the EU approach to Israel-Palestine in a comparative way by first examining EU policy in Northern Cyprus and Western Sahara – two crucial cases often raised by critiques of EU policy towards Israel to highlight EU double-standards – before turning to the Israeli-Palestinian case itself in the second post.
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Good Luck with the ICC, Muslim Brotherhood (Updated)

by Kevin Jon Heller

So this is baffling:

The international legal team representing the Muslim Brotherhood has filed a complaint to the International Criminal Court, reported state-owned media agency MENA.

The team has previously said on 16 August and on 15 November that, following their investigations, they have gathered evidence showing that members of the “military, police and political members of the military regime have committed crimes against humanity”.

[snip]

The Brotherhood’s legal team includes former Director of Public Prosecutions of England and Wales Lord Ken MacDonald, South African International Lawyer and former UN Human Rights Special Rapporteur Professor John Dugard and human rights specialist Michael Mansfield.

A press conference will be held in London on Monday to detail further information concerning the complaint.

I hope the press conference will explain how the ICC has jurisdiction over the situation, given that Egypt has not ratified the Rome Statute. Doesn’t the Brotherhood’s capable legal team know that?

UPDATE: Gidon Shaviv suggests on Twitter that perhaps the Brotherhood will argue that it can accept the ICC’s jurisdiction on an ad hoc basis, because it remains the legitimate government of Egypt. That’s clever, but I would be shocked if the OTP would be willing to wade into that particular political thicket. If it refused to accept Palestine’s ad hoc acceptance, which I think would have been legally more straightforward (Shaviv disagrees), I think there is no chance it would accept the Brotherhood’s.

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

NYU’s Selective Defence of Academic Freedom

by Kevin Jon Heller

John Sexton, the controversial President of NYU, has spoken out against the American Studies Association’s much-debated resolution in favour of boycotting Israeli universities. Here is his statement, issued jointly with NYU’s provost:

We write on behalf of New York University to express our disappointment, disagreement, and opposition to the boycott advocated by your organization of Israeli academics and academic institutions.

This boycott is at heart a disavowal of the free exchange of ideas and the free association of scholars that undergird academic freedom; as such, it is antithetical to the values and tenets of institutions of advanced learning.

I have no desire to wade into the debate over academic BDS, other than to say I’m generally wary of academic boycotts, but find it distressing that those who criticize the ASA for undermining academic freedom somehow never get around to criticizing Israel for its ongoing repression of Palestinian academics and students.

That said, NYU is the last university that should be issuing flowery defences of academic freedom. As Anna Louise Sussman points out in The Nation, President Sexton has not only refused to criticize the repression of academics in the UAE, where NYU has a campus, he has made statements that actually justify that repression:

Since April 8 the Emirati government has arrested five prominent Emiratis—activists, bloggers and an academic—for signing a petition calling for reform, and thrown them in jail, where they remain to this day. They are being held without charges, although they are in contact with their families and lawyers.

[snip]

Dr. Christopher Davidson, a reader in Middle East politics at Durham University who specializes in the politico-economic development in the Gulf, believes that by arresting people like Professor bin Ghaith, a high-profile academic, the government hopes to show that no one—no matter how connected they are—is beyond the government’s reach. Even Professor bin Ghaith’s connections to Paris-Sorbonne couldn’t save him, although Davidson chalks that up to the Sorbonne’s notable lack of response.

[snip]

According to NYU sociology Professor Andrew Ross, who has been an outspoken critic of the university’s involvement in the autocratic city-state, NYU president John Sexton recently told a group of concerned faculty members that he had reason to believe those arrested were a genuine threat to national security, something that Professor Lockman finds “particularly shocking.”

“He suggested that these people were genuinely subversive and deserving of arrest, although human rights organizations, of course, have a different take,” said Lockman. “This kind of toadying to the crown prince and his ilk shows the hollowness of NYU’s role in this place.”

Ross and his colleagues at the New York chapter of the American Association of University Professors sent a letter addressed to Dean Sexton and Vice-Chancellor Al Bloom, warning that “Silence on this serious issue will set a precedent that could also have ominous consequences for the speech protections of NYUAD faculty.”

Apparently, academic freedom is important to NYU only when it’s Israeli academics whose freedom is at stake. The academic freedom — and actual freedom — of academics in states in which NYU has business interests? Not so much.

Hat-Tip: Max Blumenthal.

NOTE: For more about President Sexton’s unwillingness to defend academic freedom in the UAE, see this essay in The Atlantic. The articles notes that, ironically, the UAE discriminates against Israeli students who want to study in the country.

Guest Post: Iran and Diplomacy – Countermeasures Against Immunity and Immunity Against Countermeasures

by Sondre Torp Helmersen

[Sondre Torp Helmersen is an LLM candidate at the University of Cambridge, teaches at the University of Oslo, and is an editor at the Cambridge Journal of International and Comparative Law.]

The recent nuclear deal between Iran and the “P5+1” may potentially bookend a long period of intermittent diplomatic troubles for Iran. The mutual distrust and hostile rhetoric that have accompanied (and obstructed) the negotiations are traceable to the fallout over the taking of US diplomats in Tehran as hostages in 1979, in what is usually called the Iran hostage crisis. The diplomatic breakthrough that the deal represents provides an opportunity to revisit the impact of that crisis on the current state of diplomatic law. Some parts of its legacy are widely appreciated, while others are less well understood. This post will focus on a somewhat overlooked distinction, namely that between countermeasures against abuses of diplomatic immunity and violations of diplomatic immunity as countermeasures.

1. Background: The Tehran case and self-contained regimes

The hostage crisis led to a judgment by the International Court of Justice (the Tehran case, [1980] ICJ Rep 3). The Court found that actions attributable to Iran had violated the diplomats’ immunity. Iran argued, among other things, that the hostage takings could be seen as countermeasures against foregoing abuses of diplomatic immunity by the diplomats. Responding to this, the Court pronounced as follows:

“… diplomatic law itself provides the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions.” (para 83)

“The rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving States to counter any such abuse. These means are, by their nature, entirely efficacious, for unless the sending State recalls the member of the mission objected to forthwith, the prospect of the almost immediate loss of his privileges and immunities, because of the withdrawal by the receiving State of his recognition as a member of the mission, will in practice compel that person, in his own interest, to depart at once.” (para 86)

The interpretation and ramifications of these passages are still debated. There are (at least) four possible readings. (more…)

The OTP’s Remarkable Slow-Walking of the Afghanistan Examination

by Kevin Jon Heller

The Office of the Prosecutor (OTP) at the ICC just released its 2013 Report on Preliminary Examination Activities. There is much to chew over in the report, but what is most striking is the OTP’s slow-walking of its preliminary examination into crimes committed in Afghanistan.

The OTP divides preliminary examinations into four phases: (1) initial assessment, which filters out requests for investigation over which the ICC cannot have jurisdiction; (2) jurisdiction, which asks “whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court”; (3) admissibility, which focuses on gravity and complementarity; and (4) interests of justice, whether the OTP should decline to proceed despite jurisdiction and admissibility.

The OTP opened its investigation into the situation in Afghanistan in January 2007. Yet only now – nearly seven years later – has the OTP concluded that there is a reasonable basis to believe that crimes were committed there. And what are those crimes? Here is a snippet from the report:

23. Killings: According to the United Nations Assistance Mission in Afghanistan (“UNAMA”), over 14,300 civilians have been killed in the conflict in Afghanistan in the period between January 2007 and June 2013. Members of anti-government armed groups were responsible for at least 9,778 civilian deaths, while the pro-government forces were responsible for at least 3,210 civilian deaths. A number of reported killings remain unattributed.

24. According to UNAMA, more civilians were killed by members of anti- government armed groups in the first half of 2013 than in 2012. Members of the Taliban and affiliated armed groups are allegedly responsible for deliberately killing specific categories of civilians perceived to support the Afghan government and/or foreign entities present in Afghanistan. These categories of civilians, identified as such in the Taliban Code of Conduct (Layha) and in public statements issued by the Taliban leadership, include former police and military personnel, private security contractors, construction workers, interpreters, truck drivers, UN personnel, NGO employees, journalists, doctors, health workers, teachers, students, tribal and religious elders, as well as high profile individuals such as members of parliament, governors and mullahs, district governors, provincial council members, government employees at all levels, and individuals who joined the Afghanistan Peace and Reintegration Program and their relatives. The UNAMA 2013 mid-year report, in particular, indicated a pattern of targeted killings of mullahs who were mainly attacked while performing funeral ceremonies for members of Afghan government forces.

You can see why it took the OTP nearly seven years to determine (para. 35) “that there is a reasonable basis to believe that crimes within the Court’s jurisdiction have been committed within the situation of Afghanistan.” The crimes are so minor and so isolated that they could only be uncovered by years of diligent investigation.

The OTP obviously could have moved to Phase 3 — admissibility — years ago. So why didn’t it — especially given the pressing need for a non-African investigation? See below…

The New Iran Deal Doesn’t Look Legally Binding. Does it Matter?

by Duncan Hollis

A flurry of news today over the announcement that Iran has cut a deal with six major world powers — the Permanent 5 members of the UN Security Council — the US, Russia, China, France and the UK — plus Germany.  The text of the ‘Joint Plan of Action’ is also widely available (see here or here).

My first reaction on looking at this ‘deal’ is that it’s not legally binding under international law.  Look at how the Preamble begins:

The goal for these negotiations is to reach a mutually-agreed long-term comprehensive solution that would ensure Iran’s nuclear programme will be exclusively peaceful. Iran reaffirms that under no circumstances will Iran ever seek or develop any nuclear weapons….

The ‘goal’ implies something aspirational rather than required.  The big-ticket commitment that Iran won’t seek or develop nuclear weapons is also referenced as a ‘reaffirmation’ rather than an affirmative commitment via this text.

Similarly, the operative paragraphs maintain an emphasis on avoiding language of legal intent:

Elements of a first step

The first step would be time-bound, with a duration of 6 months, and renewable by mutual consent, during which all parties will work to maintain a constructive atmosphere for negotiations in good faith.

Iran would undertake the following voluntary measures:

  • From the existing uranium enriched to 20%, retain half as working stock of 20% oxide for fabrication of fuel for the TRR. Dilute the remaining 20% UF6 to no more than 5%. No reconversion line
  • Iran announces that it will not enrich uranium over 5% for the duration of the 6 months. . . . .

*********
In return, the E3/EU+3 would undertake the following voluntary measures:

  • Pause efforts to further reduce Iran’s crude oil sales, enabling Iran’s current customers to  purchase their current average amounts of crude oil. Enable the repatriation of an agreed amount of revenue held abroad. For such oil sales, suspend the EU and U.S. sanctions on associated insurance and transportation services.
  • Suspend U.S. and EU sanctions on:
    • Iran’s petrochemical exports, as well as sanctions on associated services.5
    • Gold and precious metals, as well as sanctions on associated services.
  • · Suspend U.S. sanctions on Iran’s auto industry, as well as sanctions on associated services . . .

(emphasis added)

Note the operative verb in these paragraphs is ‘would’ not ‘shall’ (which everyone would agree connotes an intention to be legally bound) or even ‘will’ (which the United States often uses to convey a legal intent even through the British and several other countries insist signals an agreement meant to have political, in lieu of legal, force).

To further emphasize the political and non-legally binding nature of this agreement, note the two sides emphasize that the measures listed are ‘voluntary’.  Moreover, the document is unsigned and lacks final clauses.  So, the bottom line for me . . . this isn’t binding under international law.  It’s a political commitment, not a legal one.

OK.  Say I’m right?  Why does it matter if this is not a treaty?  To be clear, there’s nothing entirely novel about concluding a major political document in a non-legal form — from the Atlantic Charter, to the Shanghai Communique to the Helsinki Accords, there are plenty of ‘big ticket’ precedents for doing major deals in legally non-binding texts.  Nor is it that political commitments are devoid of content — to be sure they can contain much that is aspirational or even puffery.  But, many political commitments can contain significant expectations of changes to future behavior and, at first glance, I’d say the Joint Plan of Action falls in the latter category.  The text is chock full of commitments both sides indicate they’ll be taking in the next six months on the path to a comprehensive settlement with respect to the future of Iran’s nuclear program.

That said, I think there are at least three significant implications of the choice of a non-treaty form for this deal.  First, I think it offers all sides flexibility – all seven parties are cloaking their expectations of what’s going to happen now behind terms that allow them to turn on a dime as necessary, either to back away from their ‘voluntary measures’ or to adjust them as all involved carefully monitor the other side’s performance.  Indeed, I expect that such flexibility was a key criterion for the sort of cooperation this deal envisages.  Second, by choosing a political deal rather than a legal one, I think the results are less credible than if they’d been done via a more august instrument like a treaty.  The treaty signals a level of commitment that just isn’t available with respect to an unsigned ‘joint plan’.   Now, maybe a major legal text wasn’t possible in the time frame all sides were working under, but I’d be surprised if any subsequent, final deal isn’t coached in a legal form given the greater credibility that accompanies those sorts of promises.

For the United States, though, I think the third, and most significant, implication of this deal taking a political form is the fact that the Obama Administration doesn’t have to get the Senate or the Congress as a whole to approve it.  Legally binding treaties and international agreements require the conclusion of specific domestic approval procedures.  The Constitution contemplates the Senate giving advice and consent by a 2/3rd majority to Treaties (and most arms control agreements are done as Treaties).  Modern practice meanwhile more regularly favors ‘congressional-executive’ agreements where Congress approves of the conclusion of the agreement before or after the deal is done.  In other cases, the President may invoke his sole executive powers to authorize the conclusion of a deal by himself.  But, when it comes to political commitments, there are no constitutional precedents requiring that Congress as a whole or the Senate authorize the commitment’s conclusion.  Now, together with Josh Newcomer, I’ve argued previously that this status quo is constitutionally problematic where political commitments can function in much the same way as treaties.  I fear political commitments may function as a loop-hole for the Executive to do deals that he could not do if he had to go to Congress or the Senate.  I’m not sure that this is such a case, but it’s certainly worth thinking about the consequences of having the United States pursue this major foreign policy shift where the U.S. legislature has so little say in the matter (at least until such time as any deal requires changes to U.S. law itself).

What do others think?  Am I right the Joint Plan of Action is not intended to be a treaty or an international agreement?  And do you agree that it was a means for the United States to conclude a deal without involving a Congress, at least some portion of which has been overtly hostile to any negotiations with Iran?

[Update: over at Lawfare, Ingrid Wuerth rightly calls me to task for my earlier title -- referencing a 'U.S.-Iran' deal when there are 7 States involved -- en route to discussing whether this text would've required congressional or Senate approval IF it was legally binding.  I've fixed the title accordingly and recommend readers check out Ingrid's post.]

Why Is the New Agreement Between P5+1 and Iran Not Void?

by Kevin Jon Heller

A few days ago, in response to reports of an imminent deal between P5+1 and Iran concerning Iran’s uranium enrichment, Tyler Cullis and Ryan Goodman debated whether Iran has a “right” to develop nuclear power for civilian purposes. Tyler argued that Iran does, citing (inter alia) Art. IV of the Treaty on Non-Proliferation of Nuclear Weapons (NPT):

Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I and II of this Treaty.

Ryan disagreed, arguing that any such “right” in the NPT has been superceded by a series of Security Council resolutions — beginning with Res. 1696 in 2006 — demanding that Iran cease its enrichment activities. In defense of his position, Ryan cited a number of eminent non-proliferation scholars, such as Larry D. Johnson, a former Assistant-Secretary-General for Legal Affairs at the United Nations:

While Iran claims that it has a right to enrich uranium as part of its peaceful nuclear energy program, the IAEA Board of Governors found that there had been a history of concealment and failure to declare certain activities to the agency, and therefore reported the matter to the Security Council. The Council has decided that over and above its obligations under NPT and the safeguards agreement with the IAEA, Iran was required, under Chapter VII of the Charter, to suspend all proliferation-sensitive nuclear activities, including all enrichment-related and all reprocessing activities, as confidence-building measures.

I think Ryan are Johnson are right that the “inalienable right” guaranteed by Iran’s ratification of the NPT is nullified — at least for now — by the various Security Council resolutions. So here is my question: why is the just-announced agreement between P5+1 and Iran not void ab initio for the same reason? SC Res. 1737 categorically prohibits Iranian uranium enrichment (emphasis mine)…

Why It’s Not Surprising Syria Is Destroying Its Chemical Weapons

by Kevin Jon Heller

A couple of weeks ago, Mother Jones blogger Kevin Drum said he was surprised that Syria has, by all accounts, voluntarily given up its chemical-weapons capability:

I don’t really have any comment about this, except to express a bit of puzzlement. As near as I can tell, Bashar al-Assad is really and truly sincere about destroying his chemical weapons stocks.1 But why? I very much doubt it’s because he fears retaliation from the United States. And given his past behavior, it’s hardly likely that it’s driven by feelings of moral revulsion.

So what’s his motivation? For reasons of his own, he must have decided that he was better off without chemical weapons than with them. Perhaps it has to do with the internal political situation in Syria. Or maybe Russia got fed up for some reason. But it’s a bit of a mystery, and not one that I’ve seen any plausible explanations for.

I don’t think it’s a mystery at all. Here is the explanation:

Forces loyal to Syrian President Bashar Assad have firmly seized the momentum in the country’s civil war in recent weeks, capturing one rebel stronghold after another and triumphantly planting the two-starred Syrian government flag amid shattered buildings and rubble-strewn streets.

Despite global outrage over the use of chemical weapons, Assad’s government is successfully exploiting divisions among the opposition, dwindling foreign help for the rebel cause and significant local support, all linked to the same thing: discomfort with the Islamic extremists who have become a major part of the rebellion.

The battlefield gains would strengthen the government’s hand in peace talks sought by the world community.

Both the Syrian government and the opposition have said they are ready to attend a proposed peace conference in Geneva that the U.S. and Russia are trying to convene, although it remains unclear whether the meeting will indeed take place. The Western-backed opposition in exile, which has little support among rebel fighters inside Syria and even less control over them, has set several conditions for its participation, chief among them that Assad must not be part of a transitional government — a notion Damascus has roundly rejected.

“President Bashar Assad will be heading any transitional stage in Syria, like it or not,” Omar Ossi, a member of Syria’s parliament, told The Associated Press.

The government’s recent gains on the outskirts of the capital, Damascus, and in the north outside the country’s largest city, Aleppo, have reinforced Assad’s position. And the more the government advances, the easier it is to dismiss the weak and fractious opposition’s demands.

As I have pointed out before, the US’s obsession with chemical weapons was manna from heaven for Assad. There is still no hard evidence that Assad personally ordered the Syrian military to use chemical weapons, and it would have been suicide for anyone associated with the Syrian government to risk US military intervention by using them again. Assad thus essentially traded his strategically useless chemical-weapons capability for the right to wage a ruthless counter-insurgency with impunity. That trade has obviously worked — there is almost no chance at this point that the rebels will overthrow Assad’s government, and it is equally unlikely that Assad will ever step down as part of some kind of negotiated peace agreement. Why would he? He is winning the war, and the West has essentially lost interest in the mass atrocities he has committed, and continues to commit, against innocent Syrian civilians. Indeed, the Syrian military is now routinely using incendiary weapons to kill civilians, yet the West remains silent.

But at least Assad no longer has chemical weapons. Success, right?