Western States Legal Foundation has published an Information Brief on the international law implications of the current Syria crisis, written by Andrew Lichterman, with contributions from Jacqueline Cabasso and John Burroughs. The Information Brief, titled The Rush to Bomb Syria: Undermining International Law and Risking Wider War, concludes there is no legal basis for unilateral attacks on Syria by the United States or other powers, and that there are legal and diplomatic alternatives to military action. Some excerpts from the introduction and conclusion can be found below, for the complete piece click on the link above.

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Once again, the President of the United States is leading a rush towards war without regard for the United Nations Charter and the international legal regime intended to control prohibited weapons and to respond to threats to peace and security. Even before United Nations inspectors were on the ground in Syria to determine whether a chemical weapons attack had occurred, the U.S. and its allies began moving ships into attack position in a manner that, in the context of public statements by the leaders of the United States, France, and the United Kingdom, constituted an undeniable military threat to Syria.

Since World War I, use of chemical weapons has been viewed almost universally as monstrous, and as a violation of treaty-based and customary standards of international humanitarian law. If they were used in Syria by any party, that action should be condemned, and all states should cooperate in identifying the perpetrators and in pursuing their apprehension and prosecution by all legal means. There is no provision of international law, however, that allows ad hoc coalitions of countries to determine for themselves who they believe the guilty parties to be, and to punish them by acts of war against the territory of a sovereign state. The United Nations Charter allows unilateral military action only where a country is under attack or imminent threat of attack. None of the countries proposing the use of force against Syria can make any claim that Syria has attacked them, or that they are under imminent threat of attack. International treaties outlawing chemical weapons and prohibiting their use provide no special exception for such ad hoc use of military force. To the contrary, the Chemical Weapons Convention, the most comprehensive instrument concerning chemical weapons, provides for investigation of alleged violations by specialist bodies constituted by the Convention and recourse to the United Nations to authorize any use of force.

In this instance, it is especially important that transparent, credible procedures be followed for investigation of the allegations of chemical weapons use and a determination of the responsible party or parties, as well as for actions to prevent further use and to punish those culpable.

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The airwaves are full of pundits and politicians saying that both the chemicals weapons use and the broader crisis in Syria present no good choices. But it is hard to see how breaking solemn undertakings to most of the countries in the world by neglecting treaties and principles of international law that the United States has agreed to will either bolster U.S. “credibility” or enhance respect for international law. President Obama says he is ready to make the “hard choices.” But giving in to the powerful, omnipresent American war caucus once more by sending cruise missiles against a country that cannot respond in kind is neither a hard choice for an American president nor a good one. It is a course of action that will take many lives with little promise of saving others, and that will once again lead us all down a dangerous road with no visible end. For American elected officials, saying no to the easy, violent options offered by a national security and military industrial complex too long ascendant would be the hard choice, the courageous choice, and the right choice.

John Burroughs

In the October 2 vice-presidential debate, moderator Gwen Ifill ventured into a crucial area rarely touched by regular media. She asked:

Governor, on another issue, interventionism, nuclear weapons. What should be the trigger, or should there be a trigger, when nuclear weapons use is ever put into play?

Sarah Palin responded:

Nuclear weaponry, of course, would be the be all, end all of just too many people in too many parts of our planet, so those dangerous regimes, again, cannot be allowed to acquire nuclear weapons, period.

Our nuclear weaponry here in the U.S. is used as a deterrent. And that’s a safe, stable way to use nuclear weaponry.

But for those countries — North Korea, also, under Kim Jong Il — we have got to make sure that we’re putting the economic sanctions on these countries and that we have friends and allies supporting us in this to make sure that leaders like Kim Jong Il and Ahmadinejad are not allowed to acquire, to proliferate, or to use those nuclear weapons. It is that important.

When it was his turn, Joseph Biden did not answer the question, instead referring to John McCain’s vote against ratification of the Comprehensive Nuclear-Test-Ban Treaty in 1999, and to Barack Obama’s work on “keeping nuclear weapons out of the hands of terrorists.”

But Palin really did not answer the question either. She claimed that U.S. reliance on nuclear forces is “safe” and “stable” deterrence. One major question that comes to mind is whether Palin believes the eight other countries in the world with nuclear weapons also practice safe and stable deterrence. Her answer is no with respect to North Korea, and Biden also talked about the danger posed by Pakistan’s arsenal. That leaves six other countries (China, Russia, India, France, United Kingdom, Israel). Palin also said that “dangerous regimes,” Iran being one, cannot be allowed to acquire nuclear weapons. But if deterrence works for the United States, why not for current nuclear have-nots?

More fundamental, though, and at the heart of the question posed by Ifill and not addressed by either Palin or Biden, is this: Deterrence is based on the will and capability to use nuclear weapons when deemed necessary. If you embrace deterrence, you embrace the possibility of use. Similarly, you can’t support the death penalty as a deterrent to horrendous crimes without supporting actual executions. Biden knows this. In a Wall Street Journal op-ed in June 2007 entitled “CSI: Nukes,” he stated that the “U.S. has long deterred a nuclear attack by states, by clearly and credibly threatening devastating retaliation.” He went on to argue that the United States should accelerate work on capabilities to trace the origin of fissile materials used in a terrorist nuclear attack, in order to be able to deter the country where the materials originate. He did not rule out U.S. use of nuclear weapons against such a country.

My organization, the Lawyers’ Committee on Nuclear Policy, this year released a statement, summarized here, that does answer Ifill’s question. In brief, the answer is it is never lawful, moral, or wise to use nuclear weapons, and therefore the United States should abandon the policy of deterrence premised on possible use and work hard for the global elimination of nuclear forces. We emphasize that nuclear use is incompatible with the present-day U.S. conduct of military operations in accordance (in the U.S. understanding) with legal requirements of necessity, proportionality, and discrimination. That is true in all the myriad circumstances (certainly not only in response to a nuclear attack) in which the United States holds out the option of use of nuclear weapons: preemptive or responsive use against biological and chemical as well as nuclear capabilities or attacks; in response to overwhelming conventional attacks; and even in response to “surprising” military developments.

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Michael Spies

This week, two fights are going on, one in Washington and the other in New York, the outcomes for which might largely affect the likelihood for armed conflict with Iran. In Washington, backsliding below the zero point to a new low from their campaign promises to end the current war, the House democratic leadership has decided to pull language from their Supplemental Appropriations bill (funding the Bush administration’s escalation in Iraq), which would have required the President to seek explicit congressional approval prior to any military operations in Iran.

The Friends Committee on National Legislation has set up a phone number that can connect constituents to their congress people in order to tell them to reinsert the Iran provision: see FCNL.org for more information. The National Iranian-American Council has also set up an online page where you can send a similar (customizable) electronic message to your congress person.

Meanwhile in New York, Russia and China are sparring with the Western members of the Security Council over the severity of sanctions on Iran that would be imposed over its failure to suspend its uranium enrichment program as required by resolution 1737. There is a tendency to see the actions of the Security Council as legitimizing the actions of the United States, but as I detail in this piece here on Iran and the evolving role of the Security Council, the Council’s actions on crucial matters affecting the peace have increasingly represented little more than the raw exercise of the power, not the triumph of the rule of law. The United States has increasingly used the Council as an instrument to create hegemonic international law whenever it suits its own interests as its most powerful member.

It is said that law is a tool of the powerful, but it can also be its master. Most of those who work toward strengthening international law tend to emphasize how the UN and law constrains the United States. But, since the end of the cold war arrow has been moving almost entirely in the opposite direction. In this period the Council has drastically extended both its activities and its authority. Exemplified by the progression of the crisis over Iran’s nuclear program, the Council continues to innovatively adapt the rules to assert the will of the United States in the name of the international community, even when these acts require rewriting, reinterpreting, or violating existing law.

John Burroughs

Direct actionists are sometimes faulted for not doing, or not doing well, all the other things needed besides sitting on the road. The Ground Zero Center for Nonviolent Action is a model for doing everything well, as I experienced last week in the Seattle area in connection with a trial of the “Ground Zero Three.”

From January 22 to January 26, 2007, three individuals with the Ground Zero Center - Brian Watson, CarolAnn Barrows, and Shirley Morrison - were on trial in a local court in Port Orchard, Washington, for their anti-Trident direct actions in May and August of 2006. They were charged with the misdemeanor of obstructing traffic into the Trident nuclear submarine base at Bangor, Washington, “without lawful authority.” Unusually, the judge allowed David Hall, former national president of Physicians for Social Responsibility, and me to offer expert testimony on January 24. The defendants also testified at length about the reasons for their actions. The jury, while sympathetic as revealed by post-trial comments, failed to seize the opportunity and instead convicted, as the Kitsap Sun reported.

Another Kitsap Sun story described my testimony. It is somewhat garbled, but does convey the gist. I certainly did not say that international law allows use of nuclear weapons defensively! Nor did I indicate that citizens who fail to write letters in theory could be convicted of complicity! I did not get to all of it, and simplified quite a lot, but if you’re interested here’s the written outline of my testimony.

Beyond the trial, the Ground Zero Center is doing a magnificent job of organizing, and participation and interest is on the rise. On January 15, 2007, Martin Luther King Day, 12 people were arrested at the submarine base, with over 200 there in total. In connection with the trial, they organized several events. I did a talk on “From Auschwitz to Trident” on January 20 at the Seattle Town Hall, with about 200 in attendance. You can see it on YouTube; the slides for the talk are here. I also was on Seattle’s National Public Radio affiliate KUOW on Jan 24, with a Center for Defense Information expert, Philip Coyle - here’s the audio.

It was sobering for me personally, for all the time I spend on these issues, to think about the eight or nine Trident submarines based at Bangor. Based on Natural Resources Defense Council estimates in the Nuclear Notebook, November/December 2006 Bulletin of the Atomic Scientists, each carries 144 warheads, six per each of the 24 Trident II missiles on a submarine. The warheads mostly are 100 kiloton, about seven times the yield of the bomb with which the U.S. destroyed Hiroshima; some are around 450 kilotons, 30 times the Hiroshima bomb. About one-half of the subs are thought to be on patrol at a given time. The buildup of the more capable Trident II missiles in the Pacific clearly is aimed at exerting additional leverage on China, with the posture of readiness to actually wage nuclear war by striking enemy nuclear forces familiar from the Cold War era. For more on this, see the January-February 2007 Nuclear Notebook by Robert Norris and Hans Kristensen.

Michael Spies

The New York Times recently reopened the issue of Iranian President Mahmoud Ahmadinejad’s notorious appeal to “wipe Israel off the map”. The Times piece focuses exclusively on the translation — or possible mistranslation — of the statement in order to determine if it constituted a threat against Israel and a call for war. The original phrase in Farsi, borrowed from rhetoric used by Ayatollah Khomeini, lacks a direct literal equivalent in English. The closest expression is to remove from the “pages of time of history”. Despite this, the Times noted that Ahmadinejad’s personal translators chose the wording “wipe off the map” in the posting on the President’s web site. The Times concludes that it remains an open question of whether Ahmadinejad called for war against Israel.

In a recent Washington Post Op-Ed, David Rifkin argued that this statement alone constituted an illegal threat to Israeli territorial integrity, and political independence, in contravention of Article 2.4 of the UN Charter. He reasoned that the utterance alone is sufficient grounds for Israel to exercise its right to self defense, preserved in Article 51 of the Charter. Moreover, he argued that Ahmadinejad’s statement, taken with his prediction of a coming “nuclear conflagration”, equates to a threat to commit genocide, in violation of the 1948 Genocide Convention.

Rifkin reiterated this argument Monday night at the New York Bar Association at an event examining the legality of the use of force by the United States against Iran. The event was inspired by Seymour Hersh’s article, “The Iran Plans“. The other panelists included Gary Solis, a professor of law who formerly taught at West Point, and Charles Moxley, a professor of law at the Fordham Law School. After their presentations John Burroughs, (Executive Director of Lawyers’ Committee on Nuclear Policy and a contributor to this blog) asked the panel a straightforward, but challenging, legal question: what constitutes a threat under international law?

There is little guidance in the body of international law on the question of what constitutes a threat. Article 2.4 of the UN Charter stipulates that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Yet there is no definition of threat provided in the Charter or other international instruments.

John Burroughs has suggested (see Legal Framework, p. 30), from an orthodox point of view, that core elements of a threat are a demand that another state do or refrain from doing something coupled with the statement that military action will be taken if the demand is not complied with. Taking off from that basic point as well as international relations theory, I would identify several criteria for determining what is a threat in the context of Article 2.4. States employ many available foreign policy tools to achieve a desired policy outcome, including the use of force. To constitute a threat, a state must show intent, through either its actions or statements, to use force to achieve its policy. Intent to use force could come through a demand or ultimatum to another state, stipulating explicit consequences for a failure to comply. Intent can also be revealed through a pattern of behavior, appropriate for achieving the policy goal, such as building up armed forces or engaging in arms races, or otherwise preparing for the use of force. Other factors can mitigate or aggravate the perception of threat, such as previous foreign policy practice, more precise articulations of the policy in question, or doctrines governing the threat or use of force. Credibility is key to intent and to the question of threat. If the state making the threat lacks the capability to achieve its policy through the use of force, any threat it makes lacks credibility and constitutes nothing more than belligerent, hard-line rhetoric.

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John Burroughs

Rep. Peter DeFazio (D-OR) and 32 co-sponsors have introduced a resolution (H. Con. Res. 391) in the House of Representatives declaring that the House, with the Senate concurring, “strongly and unequivocally believes that seeking congressional authority prior to taking military action against Iran is not discretionary, but is a legal and constitutional requirement.” DeFazio and 61 members of the House also wrote to President Bush expressing the same view.

The resolution and letter provide a history lesson, for example quoting President Washington that “no offensive expedition of importance can be undertaken until after [Congress] have deliberated upon the subject, and authorized such a measure.”

In the case of the Iraq war, Congress basically rolled over, adopting a resolution that turned over the decision of whether or not to attack Iraq to Bush. His subsequent decision to invade was wrong, unwise, and contrary to the UN Charter. What has been lost in the chatter since then is that Congress abdicated its constitutional role. As the Washington Post reported at the time, it was not for lack of alternatives:

“A [resolution] sponsored by Rep. John M. Spratt Jr. (D-S.C.) and Rep. James P. Moran (D-Va.), would have authorized U.S military action only if it were sanctioned by the Security Council or by a second congressional vote later this year. It lost 270 to 55.

A similar resolution, proposed by Armed Services Committee Chairman Carl Levin (D-Mich.), was defeated 75 to 24 in the Senate.”

Let’s hope that Congress has learned something and as Rep. DeFazio urges will assert its constitutional role with respect to any military action against Iran, whether it’s considered weeks, months, or years from now. It’s also way past time to start bringing the UN Charter and other international law into the deliberations.

Andrew Lichterman

Jeffrey Lewis at Armscontrolwonk.com responded today to the Seymour Hersh article on U.S. preparations and planning for an attack on Iran. Hersh reports that a debate is raging in the government over use of nuclear weapons against certain hard to destroy targets. Lewis suggests that it is unlikely that use of nuclear weapons is under consideration, arguing that the underground facility built for Iran’s uranium enrichment operations can be destroyed with existing U.S. conventional weapons. But there remain unanswered questions, and Hersh’s report that vigorous debate regarding nuclear weapons use against Iran is going on inside the government is as important as how “practical” such use might be.

First, Hersh is not the only one reporting that the government is considering nuclear weapons use in its ongoing planning for a possible attack on Iran. The Washington Post had a passage, buried far down in its story on U.S. options for an attack on Iran today, stating

“Pentagon planners are studying how to penetrate eight-foot-deep targets and are contemplating tactical nuclear devices. The Natanz facility consists of more than two dozen buildings, including two huge underground halls built with six-foot walls and supposedly protected by two concrete roofs with sand and rocks in between, according to Edward N. Luttwak, a specialist at the Center for Strategic and International Studies.
‘The targeteers honestly keep coming back and saying it will require nuclear penetrator munitions to take out those tunnels,’ said Kenneth M. Pollack, a former CIA analyst. “Could we do it with conventional munitions? Possibly. But it’s going to be very difficult to do.’”

This is a bit garbled regarding potential target depth, perhaps referring to one of the sources also cited by Lewis, stating that the Natanz facility is 8 meters (not feet) underground. GlobalSecurity.org reports, however, that Natanz has been reinforced substantially since that time:

“By mid-2004 the Natanz centrifuge facility was hardened with a roof of several meters of reinforced concrete and buried under a layer of earth some 75 feet deep.”

The 75 feet figure is consistent with Hersh’s story. Lewis notes the diverse accounts regarding depth, and believes that Natanz likely could be destroyed with conventional earth-penetrating weapons. Natanz has been the main focus of public discussion regarding possible nuclear targeting; one unanswered question is whether there are other hard to destroy underground targets in Iran on the U.S. target list.

Hersh’s discussion of planning for possible nuclear weapons use is not limited, however, to inferences from the nature of Iran’s facilities, and what it might take to destroy them. What caught my attention in his piece were the detailed comments (although from anonymous sources) regarding the heated debate over potential nuclear weapons use at the top levels of government:

“The Pentagon adviser on the war on terror confirmed that some in the Administration were looking seriously at this option, which he linked to a resurgence of interest in tactical nuclear weapons among Pentagon civilians and in policy circles. He called it ‘a juggernaut that has to be stopped.’ He also confirmed that some senior officers and officials were considering resigning over the issue. ‘There are very strong sentiments within the military against brandishing nuclear weapons against other countries,’ the adviser told me. ‘This goes to high levels.’ The matter may soon reach a decisive point, he said, because the Joint Chiefs had agreed to give President Bush a formal recommendation stating that they are strongly opposed to considering the nuclear option for Iran. ‘The internal debate on this has hardened in recent weeks,” the adviser said. “And, if senior Pentagon officers express their opposition to the use of offensive nuclear weapons, then it will never happen.’”

In the end, the internal debate as Hersh reports it supports the view that use of nuclear weapons in a “counterproliferation” attack against Iran remains unlikely, if only because the military itself would be strongly opposed. But if it is true that a significant faction at the top levels of government is seriously contemplating nuclear weapons use here, it should be a matter of the utmost concern, and should be met with unambiguous condemnation. A “preventive” war against Iran, a country that has attacked neither us nor its neighbors and shows no imminent signs of doing so, would be illegal, another act manifesting the rejection by the United States of the international legal framework that it played a leading role in constructing after World War II. An unprovoked nuclear attack would be an atrocity of historic proportions, definitively marking the United States as an outlaw state, ruled by criminals deserving of comparison with the most terrible regimes of the past.

John Burroughs

In a stunning article, “The Iran Plans,” to appear in the April 17 New Yorker, Seymour Hersh reports that the Bush administration has intensified planning for bombing Iran; that it is giving serious attention to the option of using nuclear weapons to attack buried targets; and that U.S. combat troops are already in Iran preparing for military operations and recruiting local supporters from minority groups. As a whole, the article conveys that the administration is prepared to launch an attack should Iran not accede to U.S. demands, above all not to proceed with uranium enrichment activities. But the potential conflict goes beyond that: the administration seems committed to regime change regardless of whether the nuclear issues are capable of resolution (which they probably are, given any willingness to compromise on Washington’s part).

If executed, U.S. military action would apply the Bush doctrine of preventive war in an unprecedented way that would set the template for years or decades of regional and global violence, unrestrained by law. While the doctrine was a pretext for the Iraq invasion, that lawless action could at least be seen as a continuation of hostilities going back to the Iraqi invasion of Kuwait. U.S. use of nuclear weapons against Iran would be an atrocious act violating the existing near taboo that has held since U.S. devastation of Hiroshima and Nagasaki. That would in turn make it far more likely that the weapons will be used elsewhere as well–including against American cities.

The abhorrent consequences of military action, and of possible nuclear use, are referred to in the Hersh article and elsewhere. But it’s worth dwelling on issues relating to international law constraints that receive far too little attention in the United States (for example, they go unmentioned by Hersh).

First, as Andy Lichterman explained in a recent post, an attack on Iran would be an act of aggression, barred by the UN Charter and prosecuted at Nuremberg. That is, it would be aggression unless authorized by the Security Council or in response to an Iranian attack. (For in-depth analysis, see the piece I co-authored in Human Rights, and Peter Weiss’s presentation to the New York session of the World Tribunal on Iraq.) The Security Council, however, may not even be able to agree on a resolution requiring Iran to cease enrichment-related activities, let alone a resolution imposing sanctions. The Council barely was able to agree on the recent non-binding presidential statement, given Russian and Chinese reluctance to engage in a confrontational course. Absent some very major change in circumstances, a resolution authorizing force is out of the question.

Second, as I explained in a 2003 paper, a U.S. nuclear attack on Iranian nuclear facilities would violate international law requirements of necessity, proportionality, and discrimination acknowledged by the United States and affirmed by the International Court of Justice in its advisory opinion on nuclear weapons. The Court put the principle of discrimination, which it described as “fundamental” and “intransgressible,” as follows: “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.” (emphasis added) Given the blast, heat and widespread radiation effects of an attack–the spread of radiation is elevated by an underground explosion by an earth penetrator–that requirement cannot be met. (more…)

Andrew Lichterman

The American Society of International Law adopted the following resolution at its recent annual meeting:

The American Society of International Law, at its centennial annual meeting in Washington, D.C. on March 30, 2006, Resolves:

1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum).

2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949 and other international law (jus in bello).

3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.

4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.

5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.

6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.

7. All states should maintain security and liberty in a manner consistent with their international law obligations.

The fact that this resolution even should be necessary reflects the depths of our current crisis. As Scott Horton, a leading international lawyer, put it in a PBS interview following the Abu Ghraib revelations, “…if adherence to the Geneva Convention becomes a political issue in this country, we have fallen into a deep moral gutter.”

Regarding resort to armed force, the ASIL resolution similarly states what should be the obvious. When considering both the U.S. invasion and occupation of Iraq and the possibility of military action against Iran, it is important to begin with the basic framework of modern international law. It is a framework this country played a major role in creating.

In the war crimes trials conducted after World War II, the United States and its allies declared aggressive war to be the most serious of all international crimes. Robert L. Jackson, the U.S. Representative to the International Conference on Military Trials, declared,

“We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.” Statement by Justice Jackson on War Trials Agreement; August 12, 1945.

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