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UNIVERSITY OF BALTIMORE
JOURNAL OF
INTERNATIONAL LAW
REFLECTIONS ON INTERNATIONAL
RESPONSIBILITY
VOLUME I
2012-2013
i
The University of Baltimore Journal of International Law is
managed by law students of the University of Baltimore
School of Law.
Copyright © 2012-2013 University of Baltimore Journal of
International Law. All rights reserved.
The journal welcomes submissions from any authors not
currently enrolled in law school. Manuscripts should adhere
to The Bluebook, A Uniform System of Citations (19th ed.)
and The Texas Law Review Manual on Usage & Style (11th
ed.). All manuscripts may be submitted to [email protected].
Please address all correspondence to:
The University of Baltimore Journal of International Law
University of Baltimore School of Law
1420 North Charles Street
Baltimore, Maryland 21201
For questions or concerns, contact the journal at
The opinions expressed herein are those of the respective
authors and do not necessarily reflect the opinion of The
University of Baltimore Journal of International Law.
ii
SPRING 2013 VOLUME I
EDITOR-IN-CHIEF
George Weber
EXECUTIVE EDITOR
Laura Chafey
SUBMISSIONS EDITOR
Honiyeh Sarpand
ARTICLES EDITOR
Sylvia Nelson
BUSINESS EDITOR
James Lilly
MANAGING EDITOR
Rexanah Wyse
PUBLICATION EDITOR
Miranda Russell
COMMENTS EDITOR
Erik Loewen
PRODUCTION EDITOR
Dima Donnik
ASSOCIATE EDITORS
Erin Creech Alicia Watson Caroline Dewey
STAFF EDITORS
Amanda Bentley-Hibbert
Adam Cornelius
Nathanial Forman
Nima Moshggoo
Navneet Pal
Samantha Richmond
Alyssa Tijerina
Kim Truitt
Jillian Bokey
Robert Dimirji
Megan Livas
Ryan Orzech
Pauline Ricci
Sana Sahand
Lauren Taylor
Christina Uliano
FACULTY ADVISOR
Professor Mortimer Sellers
ADMINISTRATIVE ASSISTANT
Karen DeVore
iii
SPRING 2013 VOLUME I
“Insofar as international law is observed, it provides us
with stability and order and with a means of predicting the
behavior of those with whom we have reciprocal legal
obligations.”
- U.S. Senator J. William Fulbright
It is with great pleasure that we introduce the first
volume of the University of Baltimore Journal of
International Law. Since this is our first volume as an
official publication of the University of Baltimore School
of Law, a brief statement is in order to detail how this
journal came into existence.
In Fall 2009, students of the University of
Baltimore School of Law International Law Society
committed themselves to the creation of a student-run
international law journal, then titled the International Law
Society Journal of International Law (ILSJIL). Taking into
account the law school’s impressive international law
credentials, including the Center for International and
Comparative law, world-renowned professors like
Mortimer Sellers, James Maxeiner, and Nienke Grossman,
faculty publications Jus Gentium and Studies in
International Legal Theory, and the school’s offering of a
concentration in International and Comparative law,
students believed that a student-run publication was
needed. The devotion of these intrepid law students to the
topic of international law and to excellent scholarship
paved the way for our official recognition by the law school
administration and our transition from the ILSJIL to the
University of Baltimore Journal of International Law.
iv
This, our first volume is dedicated loosely to the
topic of international responsibility. As such, we have
titled our volume “Reflections on International
Responsibility,” a theme that every piece touches upon.
We are very privileged to publish pieces from
scholars and practitioners from around the world. This
volume contains articles by Dr. Daniel Benoliel at Haifa
University Faculty of Law, Mr. Patrick McDade, Esq. at
Georgetown University Law Center, and Professor Kevin
Govern at Ave Maria School of Law. Additionally, this
volume contains remarks from the Journal’s Fall 2012
Symposium on the Arab Spring. Symposium remarks will
be published from our panelists, Professor Chiara Giorgetti
at University of Richmond School of Law, Mr. Joost
Hiltermann at the International Crisis Group, Professor
Patrick O’Malley at the University of Baltimore School of
Law and the FBI, Professor Charles Schmitz at Towson
University, and Professor Richard J. Wilson at American
University, Washington College of Law. Additionally, the
Editorial Board voted to include articles written by Ms.
Laura L. Chafey, Executive Editor, and myself.
This volume is multi-faceted, pulling from all parts
of the ideological and legal spectrum to give glimpses of
many of the important international law issues currently
affecting our world. My thanks go out to the Editorial
Board and Staff Editors of this journal. I cannot stress
enough how grateful I am to the members of this fine
publication. They have worked constantly throughout the
year, breaking only briefly in December 2012. The tireless
work of staff editors and board members has made our first
v
volume remarkable. I would also like to thank our advisor,
Professor Mortimer Sellers, for his guidance and assistance
this year. His sound advice to our members and devotion
to the journal have benefitted this publication greatly.
Furthermore, I would like to thank Dean Ronald Weich and
Associate Dean John (Jack) Lynch for recognizing the
excellent quality of past editions of the ILSJIL and,
consequently, recognizing this journal as its successor – an
official publication of the University of Baltimore School
of Law. Lastly, we thank you, the reader, for your support
and hope that you will greatly enjoy this, our first volume.
Best Wishes,
George E. Weber
Editor-in-Chief
University of Baltimore Journal of
International Law
Volume I - 2012-13
vi
SPRING 2013 VOLUME I
Copyright i
2012-2013 Staff ii
Letter from the Editor in Chief
George E. Weber iii
ARTICLES
Israel and the Palestinian State: Reply to Quigley
Prof. Daniel Benoliel 1
The United States and Iran –
Decades of Animosity: An Analysis of the
Path to the Current Conflict
Patrick McDade, Esq. 59
Smart Power for Hard Problems:
The Role of Special Operation Forces Strengthening
the Rule of Law and Human Rights in Africa
Prof. Kevin H. Govern 154
Injustice Anywhere is a Threat to Justice Everywhere
Laura Chafey 184
The Humanitarian and Human Rights Duties of the
United Nations Security Council
George Weber 221
REMARKS
Prof. Chiara Giorgetti 259
Joost Hiltermann 266
Prof. Patrick O’Malley 272
Prof. Charles Schmitz 279
Prof. Richard J. Wilson 284
1
DANIEL BENOLIEL.
Israel and the Palestinian State: Reply to Quigley
ABSTRACT:
This article replies to Professor John Quigley's recent article on the rather dramatic controversy concerning Palestinian statehood. The present article provides a critical assessment of two pivotal Palestinian Unilateral Declarations of Independence (UDI) initiatives as of 1988 and 2011. It does so both generally and with regard to the territorial and border disputes underplayed by Professor Quigley's supportive Palestinian statehood argument altogether.
In the wake of the codenamed 'Arab Spring' tentative spread of democracy throughout the Middle East, regional law and order commands legal certainty. Thus, while being sympathetic to the secessionist self-determination of Palestine under public international law, this article offers critical assessment of the latter's unilateral bypass of both relevant United Nations Security Council resolutions as well as the Israeli-Palestinian bilateral Oslo Interim Peace Agreements. The article concludes that neither argument to the contrary in support of unilateral Palestinian statehood as put by Professor Quigley is legally assured.
AUTHOR:
Professor Benoliel is an Assistant Professor, University of Haifa, Faculty of Law.
2
Table of Contents:
Introduction 3
I. Palestine Secessionist Self Determination: The Normative Framework 5
II. The Territorial Integrity intricacy 20
A. Defining Palestinian Disputed
Self-Governance 20
B. First Disintegration: Violation of United Nations resolutions 24
1. The Inconsistent 2011 Palestinian United Nations Application 26
2. Evasion of United Nations Security Council resolutions 32
3. Lack of Good Faith by
Treaty Infringement 42
C. Second Disintegration: Violation of Bilateral Agreements 45
1. Palestinian Statu nascendi
Competing Title 46
2. Of Palestinian State Succession 53
Conclusion 57
3
Introduction
The implications of future Palestinian statehood are
undeniably dramatic. They may impose on the jurisdiction
by the International Criminal Court over alleged war crimes
by either party to the Israeli-Palestinian conflict; they can
fundamentally change the legal status of the Holy Places in
Jerusalem and elsewhere in the Holy Land; they may
uphold crucial geo-strategic regional and national
implications related to Israel's security concerns; or they
may otherwise inflict on the geographical continuation of a
viable Palestinian state altogether.
In a thought-provoking article, titled Palestine is a
State: A Horse with Black and White Stripes is a Zebra,
Professor John Quigley directly replies to a previous article
by Ronen Perry and myself in the same volume 32 of the
Michigan Journal of International Law. Both of these
articles exchange competing considerations concerning the
abovementioned concerns.1
† Assistant Professor, University of Haifa, Faculty of Law. I thank Roy Sheindorf, Emanuel Gross, Ronen Perry, Uri Benoliel, Yaara Winkler and Gal Sion-Dayan for their comments and advice. For further information, please contact: [email protected]. Any inaccuracies are my responsibility. 1 See John Quigley, Palestine is a State: A Horse with Black and
White Stripes is a Zebra, 32 MICH. J. INT'L L. 749 (2011) [Hereinafter Quigley, Palestine is a State]; Daniel Benoliel & Ronen Perry, Israel, Palestine, and the ICC, 32 MICH. J. INT'L L. 73 (2010).
4
In his reply article, Professor Quigley tried to rebut
our earlier reservations doubting his presumption that a
Palestinian state already exists over the West Bank,
including East Jerusalem and the Gaza Strip in their
geographic entirety.
Professor Quigley most noticeably argues that no
later than the Palestinian Unilateral Declaration of
Independence (UDI) of November 15, 1988, upon its wide
recognition by the United Nations and states worldwide, a
Palestinian state came into existence.2 Quigley's analysis
should conceptually refer to the right to effect the secession
of Palestine from Israel unilaterally, given the 1988
Palestinian UDI. In particular, it begs the questions
whether such a right can derive from the right of self-
determination under international law and, if so, under
which limitations.
With the commencement of the sixty-sixth session
of the United Nations General Assembly last year, a
historic admittance of a newly born Palestinian State may
occur. That is, given a following 2011 implied Unilateral
Declaration of Independence initiative perceived through
2 See, e.g., Quigley, supra note 1 at 755; John Quigley, The
Palestine Declaration to the International Criminal Court: the
Statehood Issue, 35 RUTGERS L. REC. 4 (2009) [hereinafter Quigley, The Palestine Declaration]; JOHN QUIGLEY, THE STATEHOOD OF
PALESTINE: INTERNATIONAL LAW IN THE MIDDLE EAST CONFLICT
(2010); James L. Prince, The International Legal Implications of the
November 1988 Palestinian Declaration of Statehood, 25 STAN. J. INT'L L. 681, 688 (1989); Benoliel & Perry, supra note 1, at 81-87; Malcolm N. Shaw, The Article 12(3) Declaration of the Palestinian
Authority, the International Criminal Court and International Law, 9 J. INT'L CRIM. JUST. 301 (2011).
5
the submission of the application for United Nation
membership by the Palestinians on September 23, 2011.3
The following 2011 Palestinian UDI initiative, does not say
when exactly Palestine became a state, nor does it declare
Palestine’s independence anew; rather, it refers to the
November 15, 1988 Declaration of Independence.4
As no later formal declaration of Palestinian state
took place thereafter the critique over Professor Quigley's
adherence to the 1988 Declaration of Independence
seemingly remains relevant also after the subsequent 2011
Palestinian UDI initiative. Within the confines of this reply
article, additional highly questionable considerations set
forth in Professor Quigley's reply article are further
criticized.
I. Palestine Secessionist Self Determination: The
Normative Framework Professor Quigley's reply article is doctrinally rather
challenging and is incomplete on numerous levels. To start, the accurate legal status of the nascent State of Palestine (statu nascendi) arguably still remains a colonial territory. This term is found within the definition of "newly independent state" in the Vienna Convention on Succession of States in Respect of Treaties, August 23, 1978. It refers to any geographically separate territories that are dependent upon and subordinate to a metropolitan territory of a state – Israel in this case – in accordance with Article 74 to the 3 See generally Application of Palestine for Admission to Membership in the United Nations, U.N. GASC, 66th Sess., U.N. A/66/371 (Sept. 23, 2011). 4 It is noted however that Mahmoud Abbas is not titled there as President of the Palestinian National Authority (PNA), but as President of the State of Palestine instead. Id. at 2, 4.
6
United Nations Charter.5 Thus, the Palestinian-occupied territories in West Bank, including East Jerusalem and possibly the Gaza Strip, arguably still adhere to the latter definition.
Professor Quigley analytically ignores the pivotal
distinction between two classes of colonial territory within the United Nations Charter. In accordance with Chapters XI and XII of the United Nations Charter, the two classes of territories are self-governing and trust, respectively. Both types of territories are referred to as "colonial" according to the General Assembly Resolution 1514 (XV) in the Declaration on the Granting of Independence to Colonial Countries and Peoples of December 14, 1960.6
In the present case, the Palestinian right of self-
determination distinctively makes a case in point for the second class of such colonial territories, namely “trust territories”, as covered by Chapter XII of the United Nations Charter.7 The West Bank, including East
5 Thus a "metropolitan state" is the administering state of a colonial territory. U.N. Charter art. 74. 6 A shorthand term sometimes used for colonial territories is "dependent" territories. Moreover, none of the Articles of Chapter XI and XII, actually use the phrase "right to self-determination". Their concern was rather with the progress to self-government of the peoples of dependent territories. See, e.g., Vienna Convention on Succession of States in Respect of Treaties, art 2(1)(f), Aug. 23, 1978, 72 AM. J. INT’L L. 971 (defining "newly independent State"); Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, art. 2(1)(e), Apr. 7, 1983, 22 I.L.M 306 (defining “newly independent State”); see also id., arts. 15, 28, 38. 7 On the right to Self Determination see U.N. Charter art. 1, para. 2 (“To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”); Conference on Yugoslavia Arbitration Commission: Opinions on
7
Jerusalem and the Gaza Strip, is included in the territories formerly covered by the system of mandates under the League of Nations, as provided for in Article 22 of the Covenant of the League. Article 22 of the Covenant mandates fall into three classes. With one exception, the "A Class" mandates (formerly parts of the Ottoman Empire) had become or shortly after 1945 became independent, specifically Iraq, Jordan, Syria, and Lebanon. Unlike what Quigley describes8 under the Class A mandate, the exception indeed includes Palestine, a British Class A mandate.9 Following the British withdrawal from Palestine in 1948 and a war with neighboring Arab states, Israel became independent.10 The remaining parts of Palestine
Questions Arising From the Dissolution of Yugoslavia, Opinion No. 2, July 4 1992, 31 I.L.M. 1488, 1498 (1992) [hereinafter Badinter
Commission] (“[T]he principle of the right to self-determination serves to safeguard human rights.”); International Covenant on Economic, Social, and Cultural Rights art. 1(1), Dec. 16, 1988, 993 U.N.T.S. 3 (“All peoples have the right of self-determination.”); International Covenant on Civil and Political Rights art. 1(1), Mar. 23, 1976, 999 U.N.T.S. 171 (“All peoples have the right of self-determination.”); Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), at 122, U.N. Doc. A/RES/2625(XXV) (Oct. 24 1970). 8 Quigley, Palestine is a State, supra note 1, at 755. 9 Article 77 of the UN Charter states that those mandated territories which had not achieved independence were to be brought under the International Trusteeship System through separate agreements. U.N. Charter art. 77. In balance, like with the Palestinian case, the International Court of Justice (ICJ) held that there was no automatic transfer of mandated territories to the trusteeship system. International Status of South West Africa, Advisory Opinion I.C.J. Reports 1950, p. 128 (July 11). 10 See G.A. Res. 18/1, ¶ 1, U.N. Doc. A/S/RES/18/1 (Apr. 23, 1990); S.C. Res. 652, at 30, U.N. Doc. S/RES/652 (Apr. 17, 1990); See,
e.g., Georges Abi Saab, Namibia and International Law: An
Overview, 1 AFR. Y.B. INT’L. L. 3, 3-11 (1993). The territory became independent as Namibia on March 31, 1990. Of the "B Class" and "C Class" mandates, only one was not brought under the
8
were not brought under trusteeship, yet they are covered by the rubric of self-determination. The International Court in the 2004 Construction of a Wall Advisory Opinion11 and many United Nations resolutions note this distinction. 12
To be sure, the second class of colonial territories
covered by the United Nations Charter were non-self-
governing territories. These were dealt with in Chapter XI
of the Charter. Article 73 of the Charter states they were
“territories whose peoples have not yet attained a full
measure of self-government”. Beginning in the 1970s, the
international law of self-determination expanded the right
to independence to the latter class of colonial territories and
to people subject to alien subjugation, domination, and
Trusteeship system under Chapter XII of the Charter, namely, South West Africa (Namibia). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa). Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, para. 52 (June 21). 11 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, at 136, 183, 197, 199 (July 9) [hereinafter Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory]. See also, e.g., CASSESE, infra note 12, at 90-99. 12 See, e.g., G.A. Res. 48/94, ¶¶ 3, 5-6, U.N. Doc. A/RES/48/94 (Dec. 20, 1993) (“Reaffirms also the inalienable right of the Palestinian people and all peoples under foreign occupation and colonial domination to self-determination, independence and sovereignty…”). See also, G.A. Res. 58/163, ¶¶ 1-2, U.N. Doc. A/RES/58/163 (Mar. 4, 2004); G.A. Res. 55/85, ¶ 2, U.N. Doc. A/RES/55/85 (Feb. 28, 2001); G.A. Res. 41/100, at 162, U.N. Doc. A/RES/41/100 (Dec. 4, 1986); G.A. Res. 38/16, at 184, U.N. Doc. A/RES/38/16 (Nov. 22, 1983); G.A. Res. 3236 (XXIX), at 4, U.N. Doc. A/3236 (Nov. 5, 1974); See also ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES, A LEGAL REAPPRAISAL 92 (Cambridge Univ. Press 1995).
9
exploitation. In short, the Palestinians continuously make
up part of the former category of colonial territories.
What Professor Quigley largely ignores is that the
right to secessionist self-determination by colonial
territories is still plagued by genuine uncertainties in public
international law.13 Quigley admittedly takes the rather
incomplete factual approbation of the 1988 Palestinian UDI
by a large number of states as an indication that these states
regard Palestine as a state.14 Professor Quigley explains
that there are precedents of recognition of statehood being
extended on the basis of self-determination by aspirant
governments before the aspirant government claims
effective control. In other instances, he adds that this form
of early recognition envisages the attainment of effective
control within a foreseeable future.15
Different than what Quigley assumes for the
Palestinian case in point, there simply is no binding right of
secession under public international law.16 Moreover, no
preliminary agreements on the criteria have taken place that
might be used in the future to determine when secession
13 See e.g., Milena Sterio, On the Right to External Self-
Determination: “Selfistans,” Secession, and the Great Powers' Rule, 19 MINN. J. INT'L L. 137, 145-46 (2010); Vidmar, infra note 31, at 6; Report Presented by the Council of the League by the Commission of
Rapporteurs, The Aaland Islands Question, League of Nations Council Doc. B7 (1921); Badinter Commission, supra note 7, at 1497-99. 14 Quigley, supra note 1, at 752. 15 Id. at 753 (referring to D.A. Raič, Statehood and the Law of Self-
determination (The Hague: Kluwer Law International, 2002), at 414-415). 16 See JAMES CRAWFORD, THE CREATION OF STATES IN
INTERNATIONAL LAW 234 (Oxford University Press, 2nd ed. 2006).
10
should be supported.17 In continuation, Professor Quigley's
doctrinal deficiency over Palestinian secession is further
challenged by state practice upholding how self-
determination arises under one of three legal theories of
secession, namely bilateral, unilateral (remedial), or de
facto.18
The first type of secession that regrettably eludes
Quigley's analysis of Palestinian statehood already since
1988−and possibly since 1948−is based on bilateral
agreement between the metropolitan state and the
dependent territory.19 Two conditions justify bilateral
secession: A “clear expression of democratic will” by
seceding peoples and the presence of negotiations between
the secessionists and the parent country.20 The second
condition is the presence of negotiations between the
17 See Hurst Hannum, The Right of Self-Determination in the Twenty-First Century, 55 WASH. & LEE L. REV. 773, 777 (1998). 18 See e.g., CASSESE, supra note 12; CRAWFORD, supra note 16; HURST HANNUM, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION THE ACCOMMODATION OF CONFLICTING RIGHTS (Univ. of Pa. Press, 2nd ed. 1996); MICHLA POMERANCE, SELF-DETERMINATION IN LAW AND PRACTICE THE NEW DOCTRINE IN THE
UNITED STATES (Martinus Nihoff Publishers, 1982); A. RIGO
SUREDA, THE EVOLUTION OF THE RIGHT OF SELF-DETERMINATION, A STUDY OF UNITED NATIONS PRACTICE (A.W. Sijthoff Int’l Publ’g Co., 1973). 19 James Crawford, State Practice and International Law in Relation to Unilateral Secession, Report to the Government of Canada concerning unilateral secession by Quebec (1997), reprinted in ANNE F. BAYEFSKY, SELF-DETERMINATION IN INTERNATIONAL
LAW: QUEBEC AND LESSONS LEARNED 31 (Martinus Nijhoff Publishers 2000) [hereinafter, Crawford, State Practice Report], para. 17. 20 Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, 264-65 (Can.).
11
secessionists and the parent country.21 In this way and
dissimilar to the Palestinian case, the parent country grants
independence in response to democratic pressure, thereby
justifying the secession.
Professor Quigley’s assertion deemphasizes the fact
that a lack of bilateral secession will result in only two
alternative means of unilateral secession: winning a war of
independence or negotiated independence. The first
method is by traditional means of winning a war of
independence, which Palestine has not done. Two rather
successful examples for the alternative model are
Bangladesh22 in the early 1970s backed by India's foreign
military assistance, and Chechnya to a limited degree
during the 1990s.23
The second method is to negotiate independence
provided that the central government, in this case Israel,
agrees to engage in negotiations.24 Surely, an archetypical
central government, like Israel's is not obliged by
international law to comply.25
Especially after the adoption of the Declaration on
the Granting of Independence to Colonial Countries and
21 Id. at 265-66. 22 See S.C. Res. 307, U.N. Doc. S/Res/307 (Dec. 21, 1971); see also India-Pakistan, Simla Agreement on Bilateral Relations and Statement on its Implementation, 3 July 1972, 11 ILM 954 (1971); see also VP Nanda, Self-Determination in International Law: The Tragic Tale of Two Cities – Islamabad (West Pakistan) and Dacca (East Pakistan) 66 AJIL, 321 (1972) (on Bangladesh). 23 Diana Draganova, Chechnya’s Right of Secession under Russian Constitutional Law, 3(2) CHINESE J. OF INT’L L. 571 (2004). 24 Crawford, State Practice Report, supra note 19, para. 17. 25 Id.
12
Peoples of 1960, the United Nations General Assembly
urged that rapid decisions be made as to the self-
government or independence of colonial territories, such as
with the Palestinian case. Yet, there is only one exception
of the United Nations advocating or supporting unilateral
rights of secession. The exceptional practice – rather
irrelevant to the Palestinian case - has been for non-self-
governing territories, where self-determination was
effectively opposed by the colonial power. This became
state practice in the case of the Portuguese African
territories namely in Angola, Mozambique, and Guinea-
Bissau.26 In the vast majority of cases, self-government or
independence was always been achieved peacefully and by
agreement with the administering authority.27 State
practice depicts that nearly a hundred territories designated
as colonial under Chapters XI and XII have become
independent, and have been admitted to the United
Nations.28
Unlike with the Israeli government, when the parent
state is unwilling to negotiate the outcome is less clear.29
As illustrated with the Palestinian UDI of 1988, there
remain two additional non-binding types of secessionist
self-determination which Professor Quigley fails to qualify
26 Id. 27
Id. 28 Id., para. 19. (citing note 21 listing all the countries admitted to the United Nations). 29 See Milena Sterio, supra note 13, at 145-46; Jure Vidmar, International Legal Responses to Kosovo's Declaration of
Independence, 42 VAND. J. TRANSNAT'L L. 779, 809 (2009); Report Presented by the Council of the League by the Commission of Rapporteurs, The Aaland Islands Question, supra note 13; Badinter Commission, supra note 7, at 1497-99.
13
adequately. The first of two is remedial secessionist self-
determination. It corresponds to the varying degrees of
oppression inflicted upon a particular group by its
governing state, whereby public international law may
recognize secession as the ultimate remedy.30
The Aaland Islands case in 192131 articulated the
requirements for justifiable secession when the parent state,
such as Israel in our case, may oppose it, assuming those
wishing to secede are legally considered “a people”, such
as the Palestinians.32 Yet, state practice herein adds two
additional requirements, which neither Professor Quigley
nor the Palestinians have elaborated or established. The
first additional requirement is that the secessionist people,
such as the Palestinians, were subject to very serious
violations of human rights at the hands of the parent state.
The second additional requirement is that absolutely no
30 See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 31, para. 82 (July 22) (The Court finds that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law); see also LEE C. BUCHHEIT, 40 SECESSION 222 (1978); Vidmar, supra note 29, at 814-18; Cf. ALLEN BUCHANAN, JUSTICE, LEGITIMACY AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW 351-53 (2004). 31 See Report Presented by the Council of the League by the Commission of Rapporteurs, supra note 13, at 21. (League of Nations denying the right of the people in a collection of these islands living historically under Finnish control to have right to secede from Finland and be annexed by Sweden). 32 The definition of “people” is somewhat ambiguous. See Vidmar, supra note 29, at 810-12. But see Christopher J. Borgen, The
Language of the Law and the Practice of Politics: Great Powers and
the Rhetoric of Self-Determination in the Cases of Kosovo and South
Ossetia, 10 CHI. J. INT'L L. 1, 7-8 (2009).
14
other remedies were available to them.33 Recently, the
Supreme Court of Canada noticeably applied an equivalent
standard in its decision on the final denial of secession of
the Province of Quebec in 1998.34 To be sure, the
interpretation given to these requirements is strict and
certainly was not upheld in the present Palestinian case. In
the background of this are the ongoing bilateral Oslo
Interim Accords setting, continuously backed by the
Quartet forum incorporating the United Nations, The
United States, the Russian Federation and the European
Union.
The second comparable non-binding type of
secession is de facto secession, which is either remedial or
non-remedial. In such cases, a population secedes
unilaterally, thereby leaving the international community as
arbiter of its ultimate success, namely its recognition by
other states.35 Both remedial and de facto unilateral
33 See Borgen, supra note 32, at 8. 34 Reference re Succession of Que., [1998] 2 S.C.R. 217, 281, 284-86 (Can.) (describing the threefold requirements for secession: that the seceding group are a “people,” “governed as part of a colony, or subject to alien subjugation, domination or exploitation,” and when it is deprived of “the meaningful exercise of its right to self-determination”). 35 Reference re Secession of Que., [1998] 2 S.C.R. 217, 284-86. To illustrate, in the latest case of Chechnya's de facto secession, the Russian Federation has implicitly recognized de facto secession of the former by concluding the Treaty on Peace and the Principles of Interrelations with the Chechen Republican of Ichkeria in 1997. See Peace Treaty and Principles of Interrelation between Russian Federation and Chechen Republic Ichkeria, May 12, 1997, http://www.incore.ulst.ac.uk/services/cds/agreements/pdf/rus2.pdf. See generally Draganova, supra note 23, at 572-537, 583-87 (inquiring whether “a constituent part of a State has the right to external self-determination.”).
15
secessions may uphold a joint mechanism, questionably
practiced through the 1988 Palestinian UDI. In both forms
of secessionist self-determination, a UDI is used to refer to
the unilateral act by which a group declares that it is
seceding to form a new state. Yet, different than as
perceived by Quigley, although usually declaratory in form,
a UDI is not a self-executing act and may not lead
necessarily to self-governance, sovereignty, or statehood.36
The main obscurity with Quigley’s analysis is that the
independence of a state is established by both territorial
control and recognition of statehood by other states and the
parent state itself. That is, especially recognition by the
state on whose territory the secession is occurring, namely
the parent state being Israel. An interrelated analytical
framework offered by Professors Oppenheim,37
Crawford,38 Shaw,39 and others,40 reiterated the criterion of
36 See Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, supra note 16, at 123. But see Quigley, Palestine is a State, supra note 1, at 751-53 (arguing Palestine’s statehood is a “matter of fact” and that recognition by other countries is not a pre-requisite to achieving statehood; recognition merely indicates acceptance). See
also discussion Infra Part II.A. (explaining that for decades Palestine has lacked sovereignty as Israel has exercised control over and held possession of the area in which Palestine allegedly self-governs). 37 L. Oppenheim, INTERNATIONAL LAW: A TREATISE 114-15 (Hersch Lauterpacht ed., 6th ed. 1947) (listing the four preconditions of statehood: a people, a territory, a government, and sovereignty). 38 See Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, supra note 16, at 447 (explaining that even the exercise of external self-determination need not result in independence, “and where serious issues remain to be resolved about the constitution and boundaries of the putative State… statehood should not be regarded as existing already, as it were, by operation of law"). 39 See also Malcolm N. Shaw, The Article 12(3) Declaration of the
Palestinian Authority, the International Criminal Court and
International Law, 9 J. INT'L CRIM. JUST. 301, 305 (2011).
16
state independence. The latter alternative criterion refers to
effective sovereignty through self-governance as a central
prerequisite for statehood. Even in cases where belligerent
occupation is present, such as in Israel, self-governance is
required to obtain statehood.41 Thus, it is required that a
declaration of independence be present, yet it is not a
satisfactory condition for unilateral secession, as is the case
with Palestine”.42
Moreover, decolonization state practice clearly
shows that only where there has been international
legitimization by the United Nations may the operation of
the secessionist self-determination principle be altered,
40 See Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (1928) (statement by Arb. Huber on “…sovereignty in its relation to territory”); see also Ungar v. Palestine Liberation Org., 402 F.3d 274, 288 (1st Cir. 2005); RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW: PERSONS IN INTERNATIONAL LAW § 201 note 5 (A.L.I. 1987) (“Some writers add independence to the criteria required for statehood. Compare the Austro-German Customs Union case ... in which the Court advised that a proposed customs union violated Austria's obligation under the Treaty of St. Germain to retain its independence.”). 41 See Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW, supra note 16, at 447. See J. Crawford, The Creation of Palestine:
Too Much Too Soon?, 1 EUR. J. INT’L L. 307, 309 (1990). See also Benoliel & Perry, supra note 1, at Part II.B.2 (discussing the independence criterion concerning the Palestinian statehood question). But see Memorandum from John Quigley on the Recognition of Palestinian Statehood 1 (May 20, 2010) (on file with author) (arguing that a state may be created even in the absence of independence or without independence have “materialized” into self-governance thereby implicitly including territories subject to competing title claims); Michael Kearney, Palestine and the
International Criminal Court: Asking the Right Question, UCLA
HUMAN RIGHTS AND INT’L CRIM. L. ONLINE FORUM, http://uclalawforum.com/gaza#Kearney (last visited Nov. 2, 2012). 42 See Crawford supra note 16, at 123.
17
mostly by means of border modifications. However, this
would be dependent upon an internationally accepted threat
to peace and security, which is dissimilar to our case in
point. This rationale led the United Nations Security
Council to repeatedly call for a bilateral negotiated peace
agreement instead.43
Lastly, Professor Quigley's analytical framework
falls short on an additional fundamental aspect concerning
the issues of territorial integrity over border disputes, which
is derived from the secessionist principle.44 Once groups
are allowed to exercise self-determination through
secession, border disputes may prove more contentious
than secession. This grim scenario has eluded Quigley's
analysis completely, whereby his assumption seems to
remain that Palestinian self-declaration unfolds their
complete sovereignty over disputed parts of the occupied
territories, such as the holy places in East Jerusalem, the
strategically vital Jordan Valley, or the few settlement
blocs. Part II.B.2 of this article will examine that Israel
argues for a competing title and a possibly negotiated land
swap, backed by its interpretation of United Nations
Security Council Resolutions 242 and 338.
To illustrate how crucially important border
disputes are within the overall secessionist self-
determination, one is reminded that the blood-spattered
43 See G.A. Res. 1746 (XVI(, ¶ 16, U.N. Doc. A/1746 (June27, 1962); Malcolm N. Shaw, The Heritage of States: The Principle of
Uti Possidetis Juris Today, 67 BRIT. J. INT’L. L. 75, 148 (1996). See discussion infra Part II.B.2. 44 See infra Part II.A for a detailed depiction of these disputed territories.
18
Yugoslav wars in the 1990s were related mostly to borders
issues. The reason for that has been possibly similar to the
present Palestinian one, whereby a version of the Uti
Possidetis Juris (UPJ) doctrine was upheld in creating
international borders while transforming existing internal
ones of the various Yugoslav republics regardless of the
ethnic groups' conflicts therein.45 In 1991 to resolve
problems in the Balkans, 46 the Badinter Commission
utilized the UPJ doctrine to manage the dissolution of
Yugoslavia. 47
In the Palestinian case, Professor Quigley only
implicitly refers to equivalent borders disputes over
competing titles by the Israelis and Palestinians. Instead,
he incorporates at least all of the occupied West Bank and
East Jerusalem wholly within a Palestinian state. Indeed,
the principle of UPJ is a critical doctrine that offers a very
strong presumption that a colony or federal or other distinct
administrative unit, such as the Palestinian Authority (PA),
will come to independence within the borders that it had in
the period immediately prior to independence.48 There are
45 See Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 565 (Dec. 22), for a broader discussion of Uti Possidetis Juris. 46 See generally Richard Falk, Self-Determination under
International Law: The Coherence of Doctrine Versus the
Incoherence of Experience, in THE SELF-DETERMINATION OF
PEOPLES: COMMUNITY, NATION, AND STATE IN AN INTERDEPENDENT
WORLD 31, 52 (Wolfgang F. Danspeckgruber, ed. 2002). 47 See Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 565 (Dec. 22), for a broader discussion of Badinter Commission, supra note 7, at 1498 (interpreted the Uti Possidetis Juris. doctrine in the Yugoslav opinion broadly, to include instances of self-determination). 48 Tomas Bartoš, Uti Possidetis: Quo Vadis?, 18 AUSTL. Y.B. INT’L
L. 37, 39-40 (1997); Shaw, supra note 43, at 148. See also
19
two exceptions to this doctrine that Professor Quigley again
never discusses. This article is an analysis of the two
exceptions to the UPJ doctrine that Professor Quigley did
not address.
Part II.A defines the Israeli-Palestinian territorial
dispute over segments of the occupied West Bank and East
Jerusalem. In so doing, it questions Professor Quigley's
assertion that Palestinians sufficiently self-govern the
occupied territories in the West Bank and East Jerusalem
while proclaiming statehood over the entire territory. This
article is a specific response to Quigley’s assertion of
implied adherence to Palestinian statehood. Furthermore, it
identifies the two primary exceptions to the territorial
integrity principle of the UPJ doctrine and explains why
neither exception has been successfully established by
Palestine. The first exception, discussed in Part II.B,
upholds that parties themselves may agree to alter the UPJ
rule, both during the process of acquisition of independence
and afterwards, such as possibly within the Oslo Interim
Accords.49
Continental Shelf (Tunis v. Libya), 1982 I.C.J. 18, 65-66 (Feb. 24) (discussing the doctrine’s historical application in settling decolonization issues in America and Africa). Badinter Commission, supra note 7, at 1500. See Frontier Dispute, 1986 I.C.J. at 566 (explaining that the fundamental aim of the doctrine of uti possidetis juris is to underline the principle of stability of state boundaries, but it also provides the new state with territorial legitimization). 49 Shaw, supra note 43, at 141; G.A. Res. 1608 (XV), ¶ 15, U.N. Doc. A/1608 (Apr. 21, 1961). Beagle Channel Arbitration (Arg. v. Chile), 17 I.L.M. 632 (1977); Badinter Commission, supra note 7, at 1498. Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), 1992 I.C.J. 351, 408 (Sept. 11).
20
The second exception discussed in Part II.C, may
uphold the need for acceptance of this bilateral agreement
by the United Nations.50 Both, as said, are presently highly
debatable in considering Professor Quigley's territorial
criteria altogether.
II. The Territorial Integrity Intricacy
A. Defining Palestinian Disputed Self Governance
Professor Quigley underplays the mere fact that the territory under Palestinian self-governance corresponds to a minor segment of the occupied territories. Moreover, Quigley ignores Israel's competing titles backed by its own governance over most territories therein.51 Arguably, although Israel's competing titles do not incorporate most of the West Bank and East Jerusalem, they, nevertheless, bring into question possible Palestinian independence over the West Bank and East Jerusalem as long as Israel is governing those areas.
Put differently, if Palestinian statehood is declared
over the entire occupied territory, then Israel's competing
titles over sections of the West Bank and possibly East
Jerusalem, coupled with Israeli governance over the region
as a whole may withstand Palestinian independence over
the rest of the region in which Israel has no competing title.
Professor Quigley's analysis is, regrettably, overly
50
Shaw, supra note 43, at 141. 51 See Crawford, The Creation of Palestine: Too Much Too Soon, supra note 41, at 309 (upholding that this requirement incorporates effective governance over territory that otherwise could be regarded as competed in title by a different party, and thus lacking the criteria of independence over such disputed territories).
21
generalized concerning the diminutive Palestinian self-
governance of these territories, as explained below.
By and large, the type of governance adopted by
occupying-Israel in the West Bank following the 1967 Six
Day War was military government subject to the
international law of occupation.52 A separate military
administration was established basing itself on the law in
force immediately prior to the occupation.53 In doing so,
Israel noticeably adhered to Jordan's existing laws,
notwithstanding Israel’s nonrecognition of the Jordanian
pre-1967 annexation of the West Bank.54
What is important to date, however, is that
following the Oslo I Interim Accord of 1995, and
growingly until the Sharm el-Sheikh Memorandum of
1999, Israeli military governance over the West Bank left
the Palestinians with effective self-governance only over
17.2% of the West Bank known as Area A, where
Palestinians assumed full civil and internal security
52 Moshe Drori, The Legal System of Judea and Samaria: A Review
of the Previous Decade with a Glance at the Future, 8 ISR. Y.B. HUM. RTS. 144, 146-47 (1996) (for more on the legal system in the West Bank during the first decade). 53 See PROCLAMATION NO. 2, PROCLAMATION REGARDING
REGULATION OF ADMINISTRATION AND LAW, issued by Commander of IDF Forces in the West Bank Region (June 7, 1967) available at http://nolegalfrontiers.org/en/military-orders/mil03. 54 See Kathleen A. Cavanaugh, Selective Justice: The Case of Israel
and the Occupied Territories, 26 FORDHAM INT’L L.J. 934, 944-45 (2002) (citing H.C. 61/80, Ha'etzni v. State of Israel, 34 (3) P.D. 595 [1980] (Isr.) (upholding the rationale of maintain public order).
22
responsibilities.55 In addition, the Palestinians were left
with effective self-governance conceivably in the part of
Area B in which the Palestinians assumed civil control,
leaving security responsibility in the hands of the Israeli
army, with additional 23.8% of the overall occupied West
Bank.56 The main point herein, which has been flatly
ignored by Quigley, is that, as officially admitted by the
Palestinian Authority itself, Area C, which is comprised of
the majority of the West Bank (about 59%) remains
exclusively under Israeli military government control,
subject to the international law of occupation, instead of a
Palestinian self-governing alternative.57
In an archetypical, national Development Plan
recently submitted by the Palestinian National Authority
(PNA) to the World Bank, a detailed depiction by the
Palestinians of what is titled "Lack of Sovereignty"
illustrates a minority scale of 17.2% of full control by the
PNA in the West Bank altogether.58
Moreover, and much to the Palestinians’ dismay,
the PNA is also, admittedly, lacking control over external
borders.59 PNA does not possess control over the
movement and access of people, goods, and services within
55 See Palestinian Reform and Development Plan 2008-2010, PALESTINIAN NATIONAL AUTHORITY 15-16 available at http://www.jmcc.org/documents/development_plan.pdf. 56 Id. 57 Id. (admitting that in Area C Israel presently retains full control of civil and security matters). 58 Id. (depicting a continuous albeit slow growth in the size of Area A). 59
Id. at 16.
23
and between the West Bank and Gaza Strip,60 nor has
jurisdiction over natural resources, airspace and the sea.61
The treatment of the occupied eastern part of
Jerusalem similarly foretells the lack of any Palestinian
self-governance. Soon after the Six Day War, on June 28,
1967, the Israeli Government extended Israeli “law,
jurisdiction[,] and administration” by incorporating this
area within the existing Israeli municipality of the western
part of the city.62 To the international community this act
was explained not as an annexation but as an administrative
measure, aimed both at extending the same municipal
services to all residents of the now-single municipal area
and at ensuring the protection of the Holy Places through
Israeli laws.63
In the enactment in 1980 of Basic Law, Jerusalem
was named the Capital of Israel and Israel asserted that a
“[u]nified Jerusalem is the capital of Israel.” Surely, this
Act did not create any change in the internal legal situation
in East Jerusalem, but did express unequivocally Israel’s
claim to the right to exercise its sovereignty over the area.64
60 Id. 61 Id. 62 See LAW AND ADMINISTRATION ORDINANCE (Amendment No. 1), Knesset (June 27, 1967) available at www.geocities.com/savepalestinenow/israellaws/fulltext/lawandadministrat670627.htm. 63Abu Salakh v. Minister of the Interior, 37(2) P.D. 718 [1983] (Isr.) (approving Justice Cohen’s opinion in Ruweidi v. Military Court of Hebron, 24(ii) P.D. 419 [1970] (Isr)). Basic Law: Jerusalem the Capital of Israel, 5740, 34 LSI 209, ¶ 1. 64 Basic Law: Jerusalem the Capital of Israel, 5740, 34 LSI 209, ¶ 1; Ne'emaney Har-Habait v. Attorney General, 47(5) P.D. 221 [1994 (Isr.); See S.C. Res. 252, ¶¶ 2-3, U.N. Dec. S/RES/252 (May 21,
24
What matters herein is that East Jerusalem continuously
remained in Israeli control instead of Palestinian.
To conclude, with less than a fifth of territories over
which the Palestinians practice self governance in the West
Bank, including East Jerusalem (excluding the separately
Hamas-governed Gaza Strip), and with some segments over
which Israel has competing titles; it is highly questionable
whether the Palestinians present claim for statehood
withstands Israel's present territorial integrity. This is
based on a twofold set of arguments which further weaken
Quigley's analysis of Palestinian statehood altogether,
referring to arguable Palestinian violations of United
Nations resolutions as well as the violation of United
Nations resolutions as well the violation of the bilateral
Oslo Interim Agreement.
B. First Disintegration: Violation of United Nations
Resolutions
The first of two sets of arguments refer to the
1967); S.C. Res. 267, ¶¶ 2-5, U.N. Doc. S/RES/267 (July 3, 1969); S.C. Res. 298, ¶¶ 2-4, U.N. Doc. S/RES/298 (Sept. 25, 1971); S.C. Res. 446, ¶¶ 2-3, U.N. Doc. S/RES/446 (Mar. 22, 1979). S.C. Res. 476, ¶¶ 1-5, U.N. Doc. S/RES/476 (June 30, 1980); G.A. Res. 2253 (ES-V), ¶¶ 1-2, U.N. Doc. A/RES 2253 (Jul. 4, 1967); G.A. Res. 2254 (ES-V), ¶¶ 1-2, U.N. Doc. A/RES 2254 (Jul. 4, 1967); G.A. Res. 31/106, ¶¶ 1-4, U.N. Doc. A/RES/31/106A (Dec. 16, 1967); G.A. Res. 33/113, U.N. Doc. A/RES/22/113 (Dec. 18, 1978); Per the condemnation of the 1980 Basic Law, see also S.C. Res. 478, ¶¶ 1-5, U.N. Doc. S/RES/478 (Aug. 20, 1980); G.A. Res. 36/120, ¶¶ 1-5, U.N. Doc. A/RES/36/120E (Dec. 10, 1981); G.A. Res. 37/123, ¶¶ 1-2, U.N. Doc. A/RES/37/123C (Dec. 16, 1982); G.A. Res. 39/146, ¶¶ 1-4, U.N. Doc. A/RES/39/146C (Dec. 14, 1984).
25
complex and rather contradictory adherence by the
Palestinians to the United Nations resolutions, which the
Palestinians have operated under in order to establish
statehood. The reservations to Quigley's analysis concerns
the first exception to the UPJ doctrine; a state practice of a
need for acceptance of any deviation from the doctrine by
the United Nations.65 Additional support is found in the
European Guidelines on Recognition of New States in
Eastern Europe and the Soviet Union, adopted by the
European Community and its Member States on December
16, 1991. These provided for a common policy on
recognition of states emerging from the former Yugoslavia
and former USSR in particular, which required inter alia
“respect for the inviolability of all frontiers which can only
be changed by peaceful means and by common
agreement”.66 Yet the Palestinian PNA's narration of both
its 1988 and 2011 UDI’s initiatives are possibly
inconsistent.
In particular, the present analysis refers to a set of
specialized and late United Nations Security Council
Resolutions, 242, 338, and 1850, which were ignored at
least in part by the Palestinians. However relevant
adherence to Israeli competing land titles on sections of the
West Bank possibly proves East Jerusalem exists. These
considerations, presently missing from Quigley's analysis,
are threefold. First, they refer to the inconsistent Palestinian
2011 United Nations application for membership, which
took place in September 2011, manifesting a rather
65 Supra note 49. 66 ILM supra note 49, at 1509 (emphasis added).
26
challenging Palestinian territorial criterion narration.
Secondly, this part offers a detailed critique of Quigley's
analysis of United Nations Resolutions concerning the
territorial aspect, with special emphasis on Security
Council resolutions 242, 338 and 1850. Lastly, this part
offers a third group of reservations per Quigley's analysis,
while considering the probable lack of good faith practiced
by the Palestinians in their treatment of these seminal
United Nations Security Council resolutions.
1. The Inconsistent 2011 Palestinian United Nations
Application
To begin, the first of three sets of argument refers to the complex and rather contradictory adherence by the Palestinians to United Nations resolutions, through which the Palestinians have operated to establish full territorial rights. At the outset, the Palestinian position was reiterated in a historical speech by Palestinian President Mahmoud Abbas. The speech by President Abbas was addressed to the United Nations General Assembly on, September 23, 2011. This was soon after submitting the official application by Palestine for United Nations membership to United Nations Secretary-General Ban Ki-moon. In his speech, President Abbas reiterated the will of the Palestinian people for statehood on the West Bank and the Gaza Strip, in their entirety, with East Jerusalem as its capital. 67 President Abbas indirectly referred to the two-state solution model in support of a “full 1967 borders”
67
See Full Transcript of Abbas Speech at UN General Assembly, Haaretz (September 23, 2011), available at http://www.haaretz.com/news/diplomacy-defense/full-transcript-of-abbas-speech-at-un-general-assembly-1.386385.
27
proposition.68 He presumably backed this position through a letter annexed to the application dated September 23, 2011, from the President of Palestine to the Secretary-General Ban Ki-moon. The letter effectively refers to a present-day consensus within international law to the 1967 borders model.69
Yet, per the issue at stake, namely Israel's
competing title over strategic segments of the territories
and the remaining issue of limited Palestinian self-
governance over the 1967 occupied territories, that position
remains highly questionable. Thus, regrettably, the
Palestinian President's speech and supportive letter is
inconsistent with the Palestinian Authority's application for
United Nations membership that followed.70 In contrast to
the Presidential speech and letter, the formal Palestinian
application is based on two constituting documents referred
to therein. Both documents further depict fundamental
inconsistency with the overarching Palestinian avoidance of
Israel’s competing territorial claims for title. The first
document is the General Assembly's Resolution 181(II)
dated November 29, 1947, standing for the United Nations
Partition Plan for Palestine.71 The second document
68 The Official Palestinian Application, supra note 3, at 2. 69 Id. 70 The Official Palestinian Application, supra note 3; Rabbie Sabel, The Palestinians and the Application for Admittance as State: Where
is the State? 184 Inns Insight, October 2, 2011, The Institute for National Security Studies at Tel-Aviv University, available at http://www.inss.org.il/upload/(FILE)1317728523.pdf. 71 The Resolution served as a recommendation for partition by the United Nations Special Committee on Palestine in 1947 to replace the British Mandate for Palestine with "Independent Arab and Jewish States." It further called for a "Special International
Regime for the City of Jerusalem" administered by the United
28
referred to in the aforementioned Palestinian application is
the Palestinian Declaration of Independence of November
15, 1988.72
Officially, the Palestinians are allowed to refrain
from offering exact national borders with their application
of admittance as members with the United Nations. Yet the
two documents, upon which their Palestinian application is
based, systematically ignore any adherence to the above-
mentioned 1967 borders, to the remaining criterion of
effective self-governance, and to lack of competing title by
another state given the latter's claim for territorial
integrity.73
The first of two documents, namely the United Nations General Assembly Partition Plan Resolution 181(II) recommended a distinct border model, whereby the Arab state to be established within the former British mandate borders of Palestine would engulf any possible Israeli or other claim for even the 1967 borders to begin with. In particular, the Partition Plan Resolution historically offered much of present day Israel to be considered part of the Arab state. Such is the recommendation that the latter incorporates present-day Israel's Galilee region almost in its entirety to the metropolitan area of the city of Be'er Sheva in Israel's southern Negev region. This is while extracting the entire
Nations. U.N. G.A. Res. 181(II) at 133 (emphasis added). See also Future Government of Palestine, available at http://domino.un.org/unispal.nsf/0/7f0af2bd897689b785256c330061d253. [hereinafter the Partition Plan]. 72 See Palestine National Council: Declaration of Independence (15 November 1988), in THE ISRAEL-ARAB READER at 542-46 (Walter Laqueur & Barry Rubin, eds., 5th ed. 1995). 73 Sabel, supra note 70, at 1-2.
29
city of Jerusalem from Israeli and Arab sovereignty towards a "Special International Regime for the City of Jerusalem".74
Equally relevant, adherence to the Partition Plan
with the Palestinian application request further failed to mention the fact that like with all Arab states at the time when the Partition Plan was recommended, no Palestinian leadership or the Palestinian Authority ever acknowledged the borders offered in the Partition Plan. Nor did the Palestinians offer recognition of it or willingness to act accordingly. The record by the Palestinians themselves was to the contrary. Thus, on February 16, 1948, the United Nations Palestine Commission reported to the Security Council: “[p]owerful Arab interests, both inside and outside Palestine, are defying the resolution of the General Assembly and are engaged in a deliberate effort to alter by force the settlement envisaged therein.”75 Palestinian leadership, as well as neighboring Arab states historically left the newly established State of Israel as a sole regional supportive party to the Partition Plan. Soon after, they launched a war of aggression against it in the hope to nullify the Plan and defeat the nascent State of Israel altogether.76 Israel was not admitted conditionally or
74 The Partition Plan, supra note 71, at 133. 75 U.N. Palestine Comm’n First Special Report to the Security Council: The Problem of Security in Palestine, U.N. SCOR, 3rd Sess., U.N. Doc. A/AC.21/9 at 3 (Feb. 16, 1948). 76 See Crawford, supra note 16, at 313. On the approach by Arab states and the Palestinian leadership towards the Partition Plan in the eve of the establishment of the State of Israel is, stands a terrifying threat of genocide made by the first Secretary-General of the Arab League Azzam Pasha who declared "[t]his will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades." BENNY MORRIS, RIGHTEOUS VICTIMS 218-19 (1999). But see Alexander H. Joffe & Asaf Romirowsky, A Tale of Two Galloways: Notes on the Early
30
unconditionally to the United Nations based on the Partition Resolution or upon its recommended borders.77
Lastly, the 1949 Armistice Agreements entered into
force by Israel and its Arab neighbors, establishing the Armistice Demarcation Lines, clearly stated that these lines “are without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.” Accordingly, they cannot be accepted or declared to be the international boundaries of a Palestinian state in reliance on the Partition Plan or post-1948 war derivatives thereof. That is while incorporating the wordings of pivotal Security Council Resolutions 242 and 338, which are discussed hereinafter78 as well as in the Interim Israeli-Palestinian Oslo Accords.79
The second document upon which the Palestinian
application is inconsistently based, vis-à-vis the issue of the two parties’ competing territorial titles, is the unilateral Palestinian Declaration of Independence of November 15, 1988.80 A careful read of the 1988 Declaration of Independence portrays what has been an intentional Palestinian avoidance of any affirmation of its requested
History of UNRWA and Zionist Historiography, 46 MIDDLE
EASTERN STUDIES (2010) 655, 671 (discussing the doubtful historical observation concerning the exact quote by Pasha). 77 See Crawford, supra note 16, at 442. 78 Even the abovementioned Security Council Resolutions 242 and 338 in continuation, did not specify the boundaries of Israel or endorse the 1949 Armistice Demarcation Lines as permanent borders. See, S.C. Res. 242, U.N. Doc. S/RES/242 (Nov. 22, 1967); S.C. Res. 338, U.N. Doc. S/RES/338 (Oct. 22, 1973). 79 Declaration of Principles on Interim Self-Government Arrangements, Isr.-PLO, art. I, Sept. 13, 1993, 32 I.L.M. 1525 [hereinafter Oslo I], (recognizing Resolutions 242 and 338 will be implemented during negotiations of permanent status). 80 See, Palestine National Council: Declaration of Independence, supra note 72.
31
borders, permanent or temporary alike. In its place, the Declaration vaguely refers to “on our Palestinian territory” implying the inclusion of the whole of Israel's territory, whilst mentioning Jerusalem at large (Al-Quds Ash-Sharif).81 And so, dissimilar with the Palestinian presidential speech and annexed letter to the United Nations Secretary General, the 1988 declaration offers a much broader and controversial Palestinian territorial title claim altogether.
Moreover, the 1988 unilateral Declaration of
Independence offers further inconsistency given the map of the “Palestinian State” offered by the Palestine National Authority (PNA) at the time of the Declaration proceedings. Such a map offers even further competing claims to territory as it not only integrates the entirety of the West Bank, the Gaza Strip, and the whole of Israel; but in fact also parts of the Hashemite Kingdom of Jordan.82 Given these troublesome territorial title claim inconsistencies with the 1967 two-state solution model, it is of no surprise that Israel is not included on the map of the Middle East on the official web site of the Palestine Authority.83 Instead, the entire land of Israel is labeled Palestine.84
81 Id. at 356. 82 Mr. Khalil Tufakji, Head of the Palestinian Geographical Maps Department at Jerusalem's Arab Research Society was commissioned to produce the map. See PALESTINE NET PORTAL, http://www.palestine-net.com/geography/gifs/palmap.giv. 83 Id. 84 Similarly, in Palestinian Authority's geography page, Palestine is described as encompassing Israel and the occupied territories. See PALESTINE: GEOGRAPHY, http://www.palestinenet.com/geography/ (defining Palestine as "currently under occupation...located on the East Coast of the Mediterranean Seas, West of Jordan and to the South of
32
2. Evasion of United Nations Security Council
resolutions There is a second set of arguments that concerns
incomplete Palestinian title claims per their larger statehood claim (again ignoring Israel's competing titles thereof). It refers to a set of specialized and late United Nations Security Council Resolutions (Resolutions 242, 338, and 1850) that were simply ignored, at least partly, by the Palestinians whereby relevant adherence to Israeli competing land titles can be possibly upheld. It concerns the conflict of law between the Partition Plan Resolution 181(II) on the one hand, and the prevailing Security Council Resolutions 242, 338, and 1850 on the other; thereby possibly upholding Israel's competing title claims over Palestinian ones.
The term “occupied territories” originally derived
from Security Council Resolution 242 (1967), which ended the Six Day War of 1967 between Israel and its neighboring Arab states, upon the occupation of present day competing title territories.85 Among other things, this Resolution “[a]ffirm[ed] that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the . . . [w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict.”86 Upon its adoption, Resolution 242 failed to achieve consensus about whether Israel could maintain any land title over some of the West
Lebanon. The territory of Palestine covers around 10,435 square miles..."). 85 S.C. Res. 242, supra note 78, § 1(i). 86 Id. § 1.
33
Bank and possibly occupied East Jerusalem.87 In continuation, Security Council Resolution 338, adopted on October 22, 1973, after the Yom Kippur War, called upon all parties concerned (soon after the cease-fire between them) to start immediately “the implementation of Security Council Resolution 242 (1967) in all of its parts.”88
A prime illustration of the incomplete analysis
presented by Quigley, concerning the Palestinian territorial
claims, concerns the area of the Jordan Valley running
across the eastern border between Israel and Jordan. In
fact, the vast majority of the Jordan Valley is to date self-
governed by Israel as it falls within Area C under the Oslo
Accords.89 The primary formal justification by consecutive
Israeli governments has seen the Jordan Valley as a
87 See Benoliel & Perry, supra note 1, at 93. See also Documents 537-41 (Nov. 21, 1967), in FOREIGN RELATIONS OF THE UNITED
STATES, 1964-1968 VOLUME XIX, ARAB-ISRAELI CRISIS AND WAR, 1967 (Harriet D. Schwar & Edward C. Keefer eds., 2004); Eugene Rostow, The Intent of UNSC Resolution 242, in UN SECURITY
COUNCIL RESOLUTION 242: THE BUILDING BLOCK OF PEACEMAKING 5, 15 (1993) (narrating the interpretation in support of Israel’s right for territorial ‘security boundaries’ within the West Bank and possibly East Jerusalem). But see Nabil Elaraby, Legal
Interpretations of UNSC 242, in UN SECURITY COUNCIL
RESOLUTION 242: THE BUILDING BLOCK OF PEACEMAKING 35, 35-44; Glenn E. Perry, Security Council Resolution 242: The Withdrawal Clause, 31 THE MIDDLE EAST JOURNAL 413, 415 (Autumn 1977). 88 S.C. Res. 338, supra note 78, § 2. 89 Total area under Palestinian control as Area A (including Jericho and Al-Uja) is 5.34%, or as Area B (including numerous villages) is 2.08%, reaching 5.62%. Contrary, the territory left under the Oslo agreements under Israeli control as Area C (including Border line, military bases, natural reserves and numerous settlements) is 94.37%. See MA'AN DEVELOPMENT CENTER & JORDAN VALLEY
POPULAR COMMITTEES, EYE ON THE JORDAN VALLEY 3 (2010).
34
security buffer against an eastern Arab invasion.90 That is,
within the confines of the United Nations Security Council
Resolutions 242 and 338, Israel's vital need for "secure and
recognized” boundaries in the region upon achieving a
comprehensive peace agreement with its Arab
neighbours.91 As a consequence, the Jordan Valley is
surrounded with an electronic fence running the length of
the eastern border. The fence faces Jordan, based on past
experience of three separate armed attacks or threats
thereof by joint Arab armies from that front against the
State of Israel.92 To be sure, the Palestinians envision the
Jordan Valley as a core part of a future Palestinian state.
Israel’s justification for its competing titles, flatly 90 See Lee Cahaner et al., Future of the Jordan Valley – Keeping It
under Israeli Sovereignty – Pro and Con (Reuven Chaikin Chair in Geostrategy, University of Haifa, February 2006), available at http://geo.haifa.ac.il/~ch-strategy/publications/books/yarden/yarden.pdf (in Hebrew), at 20; Tzvi Ben Gedalyahu, IDF Must Remain in Jordan Valley, Vows
Netanyahu, ARUTZ SHEVA (Mar. 9, 2011, 10:41 AM), http://www.Israelnationalnews.com/News/News.aspx/142772#.TxbHvaVa5Vk (for the Israeli claim). Contra Tzvi Ben Gedalyahu, PA
Rejects Compromise on Jordan Valley Sovereignty, ARUTZ SHEVA, (Mar. 9, 2011, 11:57 AM) http://www.israelnationalnews.com/News/News.aspx/142773#.TxbHK6Va5Vk (for the Palestinian rejection of the Israeli claim thereof). 91 Id. 92 Id. at 26 (describing the three separate Arab armed attacks and threats thereof against Israel directed from the eastern Jordan Valley during: 1) The War of Independence of 1948, following the joint attack by the armies of Syria, Iraq and Jordan over Israel; 2) The Six Day War of 1967 when Jordan attacked Israel backed by Iraqi army based in Jordan; 3) The Yom Kippur War of 1973 when the armies of Jordan and Iraq mobilized for attack in the eastern Jordan Valley against Israel's northern defensive campaign against Syrian surprise attack over Israel).
35
ignored by Professor Quigley's analysis, was that
Resolution 242, backed by Resolution 338, called on Israel
to withdraw from “territory,” decidedly not “all territory.”
The borders of such a withdrawal were surely meant to
reflect both Palestinian and Israeli right to live in “secure
and recognized” boundaries in the region, while
considering possible land concessions possibly in favour of
Israel, as is the case concerning the Jordan Valley or
segments thereof.93 Surely the provision on the
establishment of “secure and recognized boundaries” would
have been meaningless had there been an obligation upon
Israel to withdraw from all the territories, regardless of a
comprehensive peace agreement between the belligerent
parties.94 Professor Quigley regrettably ignores these
territorial implications. Instead, he mistakenly suggests
that Israel simply has not claimed for competing titles, with
the possible exception of East Jerusalem or parts thereof.95
There is much evidence that critically questions Quigley's
assertion, proving Israel claimed competing titles and a
possibly negotiated land swap. Thus, Israel has evidently
claimed title and a possibly negotiated land swap of the
Jordan Valley96 and major settlement blocs bordering
Israel.97 Israel similarly claimed title of East Jerusalem,
93 Id. at 20. 94 See Ruth Lapidoth, Resolution 242 at 25, 26 ISR. L. R. 295, 310 (1992). 95 Quigley, supra note 1, at 758. 96 See Cahaner, supra note 90, at 20; Gedalyahu, supra note 90 (for the Israeli claim); Gedalyahu, supra note 90 (for the Palestinian claim). 97 See Letter from George W. Bush, President of the United States, to Ariel Sharon, Prime Minister of Israel (April 14, 2004), available at
36
including the holy places therein, as Quigley possibly
admits himself. 98
In balance, flexibility on borders offered within
Resolution 242 arguably cannot be applied to any pre-1967
borders model. The reason for the inapplicability being
that any such early borderlines were neither secured nor
recognized. Both the relevant Arab states, as well as the
United Nations, seemed to have adhered in part to this
Israeli stand. A case in point is the systematic wordings of
the ambassadors of Egypt, Jordan, and Syria in the
preliminary debates before the Security Council on May
1967, whereby they emphasized the fact that these “were
no borders” and these were only “armistice lines.”99 In
continuation, neither the Security Council nor the General
Assembly called upon Israel to withdraw to the armistice
lines established in 1949 following the Six Day War.
http://www.defensibleborders.org/apx2.htm (adhering to Israel's claim for "major Israeli population centers" bordering both Israel and the West Bank, a.k.a settlement blocks would remain Israeli); see also U.S. Senate and House of Representatives Approve Commitments to Israel in President Bush's Letter of April 14, 2004 (H. Con. Res. 460), available at http://www.defensibleborders.org/apx3.htm; See also US recognize settlement blocs, PM says, Israel Hayom, August 2, 2011 (for President Obama's presumable adoption of this assurance), available at http://www.israelhayom.com/site/newsletter_article.php?id=562. 98 Basic Law: Jerusalem, the Capital of Israel, 5740-1979/80, 34 L.S.I. 209 (1979-1980) (Isr.) (reflecting Israel's resumption of sovereignty over unified Jerusalem); Ne'emaney Har-Habait v.
Attorney General, 47(v) P.D. 221 (1994); See sources in supra note 65; see also Benoliel & Perry, supra note 1, at 92-93; But see the United Nations critique over what was interpreted by both measures as attempts to annex East Jerusalem unilaterally and illegally. 99 Lapidoth, supra note 94, at 296-97.
37
Regrettably, it should be added, the ICJ's Advisory
Opinion of 2004 concerning the wall in the Occupied
Palestinian Territory provided no analytical answer to these
demanding concerns.100 To be sure, in full support by the
Palestinian and Israeli parties to the Oslo Accords, neither
the Palestinian Liberation Organization (PLO) nor the
Palestinian Authority (PA) established a defined territory
for the future Palestinian state.101 Palestine’s borders were
one of the permanent status issues left unresolved by Oslo I
Accord subject to Resolution 242’s borders model.102
Article I titled "Aim of Negotiations" within the Israeli–
Palestinian Oslo I Accord clearly upholds a Palestinian
commitment to comply with Resolutions 242 and 338. In
particular, Article I reads that the Oslo Accords would lead
to “a permanent settlement based on Security Council
Resolutions 242 and 338.”103 Furthermore, Article I
reemphasizes that “[i]t is understood that the interim
arrangements are an integral part of the whole peace
process and that the negotiations on the permanent status
will lead to the implementation of Security Council
Resolutions 242 and 338.”104
The Oslo II Accord, to follow, also considered the
borders of the West Bank and the Gaza Strip as an
unresolved permanent status issue, with Israel retaining
control of external borders.105 Given that additional
100 See generally Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 11. 101 See Id. at 1086. Oslo I, supra note 79, 32 I.L.M. at 1529. 102 See Oslo I, supra note 79, at 1529. 103 Id. at 1527. 104 Id. 105 See Israeli-Palestinian Interim Agreement on West Bank
38
reiteration of Resolution 242’s borders model, the Oslo II
agreement states: “Neither side shall initiate or take any
step that will change the status of the West Bank and
Gaza Strip pending the outcome of permanent status
negotiations.”106
Further support by both parties as well as the
Quartet members; namely the United Nations, the United
States, the Russian Federation, and the European Union,
was established in 1999. It occurred through the Sharm el-
Sheikh Memorandum on Implementation Timeline of
Outstanding Commitments. The Sharm el-Sheikh
Memorandum restated the validity of Resolution 242’s
borders model once again, whereby: “Recognizing the
necessity to create a positive environment for the
negotiations, neither side shall initiate or take any step that
will change the status of the West Bank and the Gaza Strip
in accordance with the Interim Agreement.”107
Soon after, in a letter of guarantees initiated by the
President of the United States George W. Bush to Israeli
Prime Minister Ariel Sharon in 2000, Israel was over and
again reassured that Resolution 242’s borders model was to
and the Gaza Strip, Sept. 28, 1995, 36 I.L.M. 557, 561, available
at http://www.jewishvirtuallibrary.org/jsource/Peace/interimtoc.html (hereinafter, Oslo II). 106 Id. at 568. 107 Memorandum from the Sharm el-Sheikh Memorandum on Implementation Timeline of Outstanding Commitments of Agreements Signed and the Resumption of Permanent Status Negotiations to the Gov’t of Isr. and PLO, (Sept. 4, 1999), Jewish Virtual Library (October 27, 2012), http://www.jewishvirtuallibrary.org/jsource/Peace/sharm0999.html. [hereinafter Sharm el-Sheikh Memorandum].
39
remain intact henceforth; thereby: “As part of a final peace
settlement, Israel must have secure and recognized borders,
which should emerge from negotiations between the parties
in accordance with United Nations Security Council
Resolutions 242 and 338.”108
The United Nations Security Council Resolution
1850 of 2008 reaffirmed its support for the agreements and
negotiations resulting from the 2007 Middle East summit in
Annapolis, Maryland, by declaring “its support for
negotiation…and its commitment to the irreversibility of
the bilateral negotiations….” In support of the Oslo
bilateral contractual framework adhering to the 242 and
338 resolutions borders model, it then further "supports the
parties agreed principles for the bilateral negotiating
process", thereby reassuring, once again, the validity of the
242 and 338 Security Council Resolutions.109
As of 2008, the Palestinians’ initial adherence to
United Nations Security Council resolutions is most
noticeably comparable with the Kosovarian Unilateral
Declaration of Independence (UDI) of 2008. In upholding
Kosovo's UDI, done in the backdrop of failing negotiations
between the involved parties,110 the ICJ nevertheless
108 See Letter from George W. Bush to Ariel Sharon (Apr. 14, 2004), Jewish Virtual Library, (October 27, 2012), http://www.jewishvirtuallibrary.org/jsource/US-Israel/bushletter.html. 109 Id. para. 2. (It further “Calls on both parties to… refrain from any steps that could undermine confidence or prejudice the outcome of negotiations.”). 110 See Accordance with International Law of the UDI in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141, para. 85 (July 22). “Preamble of the declaration refers to the “years of internationally-
40
unmistakably reemphasized the binding standard of
compliance with the United Nations Security Council
resolutions. In the latter case, it has been Security Council
Resolution 1244, adopted on June 10, 1999, concerning the
situation in Kosovo.111 The Court analyzed in detail
whether this unilateral secessionist self-determination
violated international law.112 Probably dissimilar to the
Palestinian case, the Court concluded that the Kosovarian
UDI did not violate the Resolution's call on maintaining the
sovereignty and territorial integrity of Serbia (then Federal
Republic of Yugoslavia) and the other states of the region,
as set out in the Helsinki Final Act and annex 2 of UNSCR
1244 (an annex that envisions, inter alia, a Kosovo status
process).113 The Court also upheld that the Kosovarian UDI
did not violate the authorization of the Security Council in
Resolution 1244 of an international civil or military
sponsored negotiations between Belgrade and Pristina over the
question of our future political status” and expressly puts the declaration in the context of the failure of the final status negotiations, inasmuch as it states that “no mutually-acceptable
status outcome was possible’.” Id. para. 105. (quoting Kos. Declaration of Independence, 47 I.L.M. 467, paras. 10-11 (2008). 111 Id. para. 85. 112 Id. (finding that (a) Kosovo's declaration of independence does not violate international law, (b) Kosovo's declaration of independence does not violate UN Security Council Resolution 1244, and (c) independence does not violate the Constitutional Framework for Provisional Self-Government). 113 See International Commission on Missing Persons (ICMP), Republic of Serbia, http://www.ic-mat org/icmp-worldwide/southeast-europe/republic-of-serbia/ (upholding that Serbia is the "successor state to what was the Federal Republic of Yugoslavia and then Serbia and Montenegro").
41
presence in Kosovo (part of Serbia, and then called
the Federal Republic of Yugoslavia).114
The United Nations General Assembly upheld a
similar adherence to Resolution 242, paraphrased “Dispute-
Occupied” territorial model proposition, for the Palestinian
secessionist self-determination claim. The United Nations
specifically call upon Palestine to “regain its right to self-
determination and independence in accordance with the
Charter of the United Nations” in archetypical Article 6 to
General Assembly Resolution 48/94 of December 20,1993,
initiated three months after the first Oslo Interim Accord,
within “Importance of the universal realization of the right
of people to self-determination and of the speedy granting
of independence to colonial countries and peoples for the
effective guarantee and observance of human rights.”
Given their continuous and well-established
validity, any ignorance of these resolutions' borders model
upon Israeli competing titles thereof, should be considered
truly questionable.
Instead, these Resolutions could most probably be considered lex specialis and lex posterior, whereby overruling the former 181(II) Partition Plan Resolution, particularly in concerning both parties' competing land titles. Truly, the maxim lex specialis derogat legi generali
did not find a place in the Vienna Convention on the Law of Treaties.115 In fact, it is difficult to assess the exact position or value of lex specialis amongst the many existing
114 Id. 115 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter The Vienna Convention on the Law of
Treaties].
42
devices for treaty interpretation in international law.116 The principle, nonetheless, was systematically practiced both domestically and at the international level, and serves today as means for treaty interpretation.117 In short, the conflict of laws between Resolution 181(II) and the later Resolutions, 242, 338, and 1850, should be resolved whereby the latter overrule the former. That is, whilst effectively adhering to concerns over unilateralism over these competing titles, as well as other peace negotiations issues between the parties. Both Palestinians and Israelis systematically agreed upon this interpretive inclination, throughout the Oslo Accords, until the 2011 Palestinian Unilateral Declaration of Independence Initiative.
3. Lack of Good Faith by Treaty Infringement
A third group of reservations per Quigley's
incomplete statehood analysis concerns the lack of good faith practiced by the Palestinian in their depicted treatment of the abovementioned resolutions. The critique herein bears special emphasis concerning the Palestinian 2011 Unilateral Declaration of Independence initiative which followed Quigley's reply article.
116 See, e.g., Anja Lindroos, Addressing Norm Conflicts in a
Fragmented Legal System: The Doctrine of Lex Specialis, 74 Nordic J. Int'l L. 27, 40-41 (2005). But see Martti Koskenniemi, Study on
the Function and Scope of the Lex Specialis Rule and the Question
of 'Self-Contained Regimes', International Law Commission, UN Doc. ILC(LVI)/SG/FIL/CRD.1 (2004). 117 See, e.g., Anja Lindroos, supra note 116, at 48-64; Joost Pauwelyn, Conflict Rules of Norms in Public International Law:
How WTO Law Relates to other Rules of International Law 385-439 (2003). For application of the principle of Lex Specialis, see, ICJ, North Sea Continental Shelf, Judgment, 1969 I.C.J. 3, 42 (February 20); Right of Passage over Indian Territory, Judgment, 1960 I.C.J. 6, 44 (April 12); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 235-36 (July 8).
43
Any possible Palestinian rejection of United
Nations Security Council Resolutions 242, 338, and 1850 as discussed, would therefore infringe on the international legal custom of good faith (bona fide) in their application twofold.118
Firstly, there is an infringement of the Palestinians'
repeated contractual commitment within the Oslo Accords to abide by Security Council resolution 242 borders model. Secondly, a more provisional Palestinian infringement thereof refers to their effectually dismissive interpretation of Security Council Resolutions 242, 338, and 1850 within their Declaration Plan Application to the Security Council as the nascent State of Palestine (statu nascendi).
This possible treaty infringement may arguably be considered equivalent to the applicable duty concerning treaties under articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties.119 The duty to act in good faith herein has been clearly reaffirmed in Preambular paragraph 3 of the Vienna Convention of 1969 and later in Article 300 of the United Nations Convention on the Law
118 On the principle of Good Faith in international Law, see, e.g., Ian Brownlie, Principles of Public International Law 18 (2008); The Vienna Convention on the Law of Treaties, supra note 115, at art. 26. Per possible customary international law application of the principle, see also International Whaling Commission, Resolution on Transparency within the International Whaling Commission, http://iwcoffice.org/cache/downloads/73xlqdrwx0kkkwc8ook0k0ggo/Resolution%202001.pdf (IWC, constituted by more than 40 member countries, incorporates with the duty of good faith in international conduct “fairness, reasonableness, integrity and honesty.”). 119 See, e.g., Alexander Orakhelashvili, The Acts of the Security
Council: Meaning and Standards of Review, 62 Max Planck Yearbook of United Nations Law 143 (2008).
44
of the Sea, 1982 (UNCLOS).120 Per the latter type of infringement by the Palestinians – as the nascent State of Palestine (statu nascendi) - even if Security Council resolutions are not formally binding treaties upon statu
nascendi, they still might be perceived in substance as agreements between the interested parties thereof.121
Thus, Palestinian ignorance of Israel's competing
land titles per Security Council Resolution 242 borders model, via both infringement tracks, while adhering solely to United Nations General Assembly Resolution 181(II) in their Declaration Application, should constitute bad faith instead.
To conclude, the first set of critiques concerns the
Palestinian imperfect claim over sections of the West Bank and possibly East Jerusalem in the backdrop of United Nations resolutions. Until there is a negotiated solution to these competing land claims and statehood claim altogether, these particular sections of occupied West Bank and East Jerusalem should not be solely regarded as Palestinian territories, but as disputed occupied ones. As such the incorporation of these disputed occupied territories into a Palestinian state, as modeled by Quigley and as done by the Palestinians upon their 1988 and 2011 UDI initiatives, remains questionable.
Furthermore, the Palestinian bid for statehood over
the entire West Bank and East Jerusalem casts a legal shadow over their whole statehood claim given their minority self governance over less than a fifth of the land.
120 See United Nations Convention on the Law of the Sea, XVI U.N.C.L.O.S. art. 300, http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm. 121 Id.
45
This land dispute may tentatively question inclusive Palestinian title within the broader territorial criteria per the state recognition doctrine altogether.
Like with other rather exceptional cases, such as
with the British Trust Territory of Cameroons, whereby a
particular territory was divided for the purposes of the
exercise of self-determination, the Palestinian right for self-
determination, it being a Chapters XI colonial territory,
may possibly uphold certain territorial adaptations.122
These reservations to the Palestinian narration of their
complete territorial claim are ever more challenging given
the inconsistence and possibly bad faith they have
manifested, particularly within the Palestinian 2011
Declaration of Independence initiative.
C. Second Disintegration: Violation of Bilateral
Agreements There is a second group of exceptions to the rule of
territorial integrity and the UPJ doctrine, which Professor
Quigley's analysis largely overlooks throughout his
statehood analysis.
122 But see Question of the Comoro Archipelago, G.A. 3161 (XXVIII) (Dec. 14, 1973) (involving the case of the island Mayotte, part of the Comoros Archipelago – a Chapter XI territory which became independent in 1975, in which the General Assembly rejected the wishes of the inhabitants of Mayotte to remain under French Administration). For recent repetition of its position, Question of the Comorian Island of Mayotte, G.A. Res. 49/18, U.N. Doc. A/RES/49/18 (Nov. 28, 1994). See also Crawford, State Practice Report, supra note 19, at 41 referring to Malyn Newitt, The
Comoro Islands: Struggle Against Dependency in the Indian Ocean 48-70 (Westview Press 1984).
46
It upholds that parties themselves may agree to alter
the uti possidetis line, both during the process of
acquisition of independence and afterwards, such as
possibly within the Oslo Interim Accords. Yet, instead of
admitting unilateral deviation thereof, the parties in our
case had systematically agreed until the 2011 UDI initiative
to finalize the territorial aspects of Palestinian statehood
through bilateral negotiations. This agreement by the
parties has been depicted above and bears twofold
implications before Palestinian statehood is finalized ex
ante, and through the possible prospect of Palestinian state
succession doctrine ex post.
1. Palestinian Statu nascendi Competing Title
The international status of the Palestinian Authority
or the PLO and its ability to enter into legally binding
treaties is not solely dependent on Israel's recognition of
alleged Palestinian statehood.123 Yet it could be seen to be
so in part. Put differently, the 2011 Palestinian Unilateral
Declaration of Independence initiative, alongside Quigley's
earlier analysis of the matter may arguably conflict, at least
in part, with the Palestinian Authority's obligations under
the Oslo Interim Accords binding the parties to bilateral
negotiations over the abovementioned competing territorial
claims. However, Israel’s recognition may be seen as
necessary because the 2011 Palestinian Unilateral
Declaration of Independence initiative and Quigley’s
123 Eyal Benvenisti, The Israeli-Palestinian Declaration of
Principles: A Framework for Future Settlement, 4 EUR. J. INT'L. L. 542, 544 (1993) (arguing accordingly to respect to the P.L.O.'s signing of the Oslo I Accord).
47
analysis of the matter both conflict with the Palestinian
Authority’s obligations to engage in bilateral negotiations
regarding competing territorial claims under the Oslo
Interim Accords.
At the outset, the Vienna Convention on the Law of
Treaties of 1969 defines several elements, that if satisfied,
would serve to distinguish a legally binding “treaty” such
as the Oslo Interim Accords, from nonbinding
”agreements” or “memoranda of understanding.”124
In our case, Israel and the Palestinian Authority
have not signed the Vienna Convention. The Vienna
Convention nevertheless offers useful depository codified
customary international legal rules in determining whether
the Oslo Accords are legally binding between these
parties.125 Noticeably, the most controversial requirement
in relation to the Oslo Accords embodies the notion that
“the Convention does not apply to all international
agreements, only those between States.”126 The final
requirement by the Vienna Convention explicitly does not
cover “agreements between States and ‘other subjects of
124 The Vienna Convention on the Law of Treaties, supra note 115, art. 2(1)(a). For discussion on the binding force of the Oslo accords, see GEOFFREY R. WATSON, THE OSLO ACCORDS: INTERNATIONAL
LAW AND THE ISRAELI-PALESTINIAN PEACE AGREEMENTS (2000); Seth Benjamin Orkand, Comment, Coming Apart at the Seamline-
the Oslo Accords and Israel's Security Barrier: A Missed
Opportunity at the International Court of Justice and the Israeli
Supreme Court, 10 GONZ. J. INT'L L 391, 419-20 (2007). 125 See JAN KLABBERS, THE CONCEPT OF TREATY IN INTERNATIONAL
LAW, 40-41 (1996); Watson, supra note 124, at 57; MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 16 (2d ed. 1993). 126 See ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 7 (2000).
48
international law.’127 Unfortunately, the Vienna Convention
leaves the concept of what constitutes a “State”
undefined.128 Even though the Palestinian Authority and the
PLO do not seem to satisfy the test of statehood, the Vienna
Convention recognizes that agreements between “other
subjects of international law” may still be binding.129
Indeed, Article 3 states that “[t]he fact that the present
Convention does not apply to international agreements
concluded between States and other subjects of
international law . . . shall not affect . . . the legal force of
such agreements.”130 Though the Vienna Convention does
not define “other subjects of international law,” its history
indicates that Article 3 was intended to allow states to enter
into legally binding treaties with international organizations
and entities such as insurgent groups, without these
agreements being precluded from being binding by the
Vienna Convention.131 To be sure, several commentators
have claimed that the PLO is a “subject of international
law,” thus allowing the possibility that the Oslo Accords
are legally binding under the Vienna Convention.132
127 WATSON, supra note 124, at 91 (citing 2 Yb. I.L.C. 162 (1962) (Commentary on draft Article I, sec. 8). The Convention still recognizes that agreements with other subjects of international law might be binding. See discussion infra note 134. 128 See Vienna Convention, supra note 115, art. 3. 129 Id. 130 Id. 131 WATSON, supra note 124, at 91. 132 See e.g., Benvenisti, supra note 126, at 543-44 (claiming that Israel and the P.L.O.'s mutual recognition of each other in Oslo I “transform[ed] the sides into equal parties . . . In light of this recognition, the Declaration is an agreement between two equal subjects of international law.”).
49
Professor Geoffrey Watson adds that there is a
moment at which a sub-state entity, such as the Palestinian
Authority, may yet begin to bind itself by international
agreements, even though it may lack complete
sovereignty.133 Like Israel in this present case, when
colonies sign agreements with their former governing
states, this moment typically occurs prior to complete
independence.134 Professor Quigley again rather disregards
this proposition; thereby he fails to incorporate Israel's
competing territorial claims over occupied West Bank and
East Jerusalem and Palestinian lack of self-governance
thereof altogether.
Indeed, binding the Palestinians to the Oslo Accords
follows much state practice. Thus, throughout the twentieth
century there are plentiful examples of states entering into
legally binding agreements with sub-state actors.135 To
illustrate, Great Britain entered into agreements with the
National Front for the Liberation of Occupied South
Yemen in 1967 and the African National Council in
1979.136 Likewise, France concluded a treaty with the Front
de Libération Nationale Algérien as part of its withdrawal
from Algeria in 1962.137 Moreover, in 1974 Portugal
entered a binding agreement with the Mozambique
133 WATSON, supra note 124, at 92. 134 Id. Professor Watson further explains that as a practical matter, States would have less incentive to enter into agreements with sub-state. State entities if they were not binding, since there would be no legal assurance of mutual performance. 135 Id. at 95. 136 Id. 137 Id. at 96.
50
Liberation Front.138 Lastly, even the United States has
entered into agreements with the P.L.O., such as the
Agreement on Encouragement of Investment, signed in
1994.139
Certainly, these treaties are only binding if the parties actually intended to be bound.140 According to the International Law Commission's commentary, the phrase “governed by international law” embraces the element of an “intention to create obligations under international law”.141 If there is no such intention the instrument will not be a treaty. In the Aegean Sea Continental Shelf case, noticeably, the International Court of Justice considered the terms of a joint communiqué issued by the Greek and Turkish Prime Ministers, and the particular circumstances in which it was drawn up, in order to determine its nature.142 The Court found that there had been no intention to conclude an agreement to submit to the jurisdiction of the Court.143
In the case of the Oslo Accords, and prior to the
2011 Palestinian Unilateral Declaration of Independence
138 Id. 139 Id. at 98. Watson adds that unlike the Israeli and Palestinian parties to the Oslo Accords, it is conceivable that two subjects of international law could conclude non-binding agreements if the parties chose to draft them that way. See, e.g., WATSON, supra note 124, at 101. 140 Id. 141 Aust, supra note 126, at 17. 142 Id. 143 Id.; See also Aegean Sea Continental Shelf (Greece v. Turk.), Judgment, 1978 I.C.J. 62 at 39-44; H. Thirlway, The Law and
Procedure of the International Court of Justice, 1991 BRIT. Y.B. INT’L L., 13-15.
51
initiative, the parties clearly signaled their intent to be legally bound.144
Lastly, neither the Israeli nor the Palestinian parties
have terminated the agreements nor have they called for that. 145 In balance, according to the Vienna Convention, parties cannot denunciate or withdraw from a treaty that does not contain a termination provision.146 The only exception, dissimilar from any official Palestinian narration of the Oslo Accords, is when a party can establish that it intended to admit the possibility of denunciation or withdrawal or if this possibility was implied by the nature of the treaty. Moreover, customary international law of treaties adds that a party, such as the Palestinian one, would be unable to withdraw from a treaty that transfers territory or establishes a boundary, except in the highly unlikely event of the treaty allowing for this.147 Customary international law clearly establishes that any infringement of the abovementioned customary rule of withdrawal might make little or no legal difference.148
144 See Orkand, supra note 124, at 419 (referring to mutual ratifications, ceremonial and declaratory language by both parties). 145 Natasha Mozgovaya et al., Following Statehood bid, Abbas seeks to change Oslo Accords, Haaretz, Sept. 25, 2011, http://www.haaretz.com/print-edition/news/following-statehood-bid-abbas-seeks-to-change-oslo-accords-1.386536; John Rogin, Israeli Amb.: Palestinian statehood vote could end all PA agreements with Israel and the U.S., The Cable: Foreign Policy, Aug. 30, 2011, http://thecable.foreignpolicy.com/posts/2011/08/30/israeli_amb_palestinian_statehood_vote_would_end_all_pa_agreements_with_israel_and_. 146 Vienna Convention on the Law of Treaties, supra note 115, at art. 56. 147 Aust, supra note 129, at 234. 148 Id. (referring to the United Nations Law of the Sea Conventions art. 317(3), Dec. 10, 1982, 1833 U.N.T.S. 3, 21 I.L.M. 1261).
52
In particular, moreover, though the Oslo Accords envisioned resolution of permanent status issues by May 4, 1999, neither of the Oslo agreements contained a termination clause, nor a provision that the agreements would no longer be in effect if a permanent status settlement was not reached.149 Instead, in both the text of the agreements and the actions of the parties until the 2011 Palestinian UDI initiative, the parties described the Oslo peace process as “irreversible,” thus complying with the contradictory observation.”150
Because this is expressed as an exception, the
obligation is placed on the party wishing to invoke it, in this case, the Palestinian one.151 Unless another period is established, that party must give the other party or parties at least twelve months' notice of its intention, as clearly stated in Article 56(2) to the Vienna Convention. Needless to say, the Palestinians did not issue any such statement nor did they announce intentions to do so. Professor Antony Aust further adds that because it is very common to include provisions on withdrawal, when a treaty is silent it may be much harder for a party – such as the Palestinian one - to establish the grounds for an exception.152
To conclude, although the 1969 Convention does
not apply to treaties between states and international organizations, such as a host country agreement, insofar as the rules of the Convention reflect the rules of customary international law applicable to treaties with international organizations, they continuously apply in the present
149 See Oslo I, supra note 79, art. I; Oslo II, supra note 105, at Preamble; Watson, supra note 124 at 23. 150 Oslo II, supra note 105, at Preamble; Oslo I, supra note 79, art. I. 151 Aust, supra note 126, at 234. 152 Id.
53
case.153 If so, any deviation or withdrawal from the Oslo Interim Accords by the Palestinians, through the 2011 UDI initiative, concerning the territorial criteria for statehood and disputed occupied territories are therefore questionable, but overlooked in Professor Quigley's analysis.
2. Of Palestinian State Succession
Within the second group of treaty law exceptions to
the rule of territorial integrity and the UPJ doctrine, which
Professor Quigley's analysis ignores, exists a second
critique. This critique concerns the prospect whereby
Palestinian statehood already exists or may soon exist, and
a future Palestinian state would dismiss Israel's competing
land title ex post facto, presumably applying the state
succession doctrine.
State succession, surely, is the term used to refer to
the complex of legal issues that arise when there is a
change of sovereignty with respect to a particular
territory.154 The concern of the law of state succession is
with the consequences of a change of sovereignty in fields
such as succession to treaties, state property, archives and
debt, and the nationality of natural and legal persons.155 A
state which acquires territory, or a new state which comes
153 The Vienna Convention on the Law of Treaties, supra note 118, at art. 3(b); Aust, supra note 129, at 8. 154 Vienna Convention on Succession of States in Respect of Treaties, supra note 6, at art. 2 (1) (b) (defines "succession of States" as the replacement of one State by another in the responsibility for the international relations of territory); see also the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, supra note 6, at art. 2(1)(a). 155 See e.g., Crawford, supra note 19, at 35.
54
into existence after a succession, such as the Palestinian
state, is referred to as a ”successor state,” and the state
which has lost territory, such as Israel, is referred to as the
“predecessor state.”156 It should be stressed that the law of
state succession assumes that a change of sovereignty has
occurred in accordance with international law, which as
previously explained would be highly questionable in the
present case following the two Palestinian UDI initiatives
henceforth.157
Yet, even if a Palestinian state is already said to
exist, then the new Palestinian state will succeed without
any further action to the Oslo Accords. The Palestinian
state will arguably succeed at least to the legal situation
created by them. This state succession customary principle
concerns in particular Israel's effective governance of
occupied territories, under competing Israeli title especially
according to the United Nations Resolutions 242, 338, and
1850. State succession is a well-established principle, yet
its exact extent is not.158 More particularly, since the
Second World War, the practice of newly independent
countries replacing former colonies has not been
156 Id. at note 4 (a cognate term which has recently gained currency is "continuator state" which contrasts with "successor state" and refers to a state which retains its legal identity and existence notwithstanding some significant change in its circumstances).
157 See, e.g., Vienna Convention on Succession of States in Respect of Treaties, supra note 6, at 5; Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, supra note 6, at 3. 158 Aust, supra note 126, at 307 (referring to Oppenheim's International Law 213 (Robert Jennings & Arthur Watts eds., 9th ed. 1992)).
55
consistent.159 It is therefore impossible to promulgate a set
of rules of customary law on state succession applicable in
such situations.
With that said, Quigley's 1988 Palestinian statehood
argument possibly falters treaty law herein. To begin with,
the 1978 Vienna Convention on the Succession of States in
respect of Treaties provides that a successor state will
automatically succeed to all of its predecessor’s treaties
according to Art. 34(1)(a). Importantly, in the case of so-
called “newly independent states,” defined basically as
former colonies,160 the rule would still apply.161
In balance however, two theories of state succession
did evolve and led to state practice, which may be applied
in our case. The first is the clean slate doctrine,162 whereby
the new state is free to pick and choose which treaties it
will succeed to. This approach was followed most famously
by the United States when it gained its independence.163 As
explained, the doctrine however did not apply thus far to
cases whereby treaties concerned territorial rights, such as
Israel's competing territorial titles embodied into the 242
borders' model. In the latter cases, state practice led new
states to normally be bound by former treaties thereof.164
A second even wider theoretical structure over state
succession and practice evolved around the nineteenth
159 Id. at 309. 160 See Vienna Convention on the Succession of States in Respect of Treaties, supra note 6, at 3. (defining “newly independent State”). 161 Id. at 8. 162 Aust, supra note 126, at 310. 163 Id. 164 Id.
56
century and henceforth is referred to as “universal
succession.” It persisted up to the 1960s. Accordingly, the
new state inherited all the treaty rights and obligations of
the former power in so far as they had been applicable to
the territory before independence. For example, this
approach was reflected in the devolution agreements
entered into by Iraq in 1931 and by some former Asian
colonies in the 1940s and 1950s. To further illustrate, from
1955, all former British colonies in West Africa, except for
Gambia, concluded devolution agreements with the United
Kingdom.165 These provided that, as from the date of
independence, all obligations and responsibilities of the
United Kingdom which arose from “any valid international
instrument” would be assumed by the new state “in so far
as such instruments may be held to have application” to it;
and the rights and benefits previously enjoyed by the
United Kingdom by virtue of the application of such
instruments to the former colony would be enjoyed by the
new state.166 Similarly, most French colonies in Africa
regarded themselves as successors to pre-independence
treaties, and made declarations to that effect, which they
notified to the United Nations Secretary General.167
To conclude, a future Palestinian state may not
easily ignore its bilateral commitment towards negotiation
of secure borders with Israel. That is, given solid state
practice applying the state succession doctrine in favour of
commitment to the Oslo Accords' borders model as
165 Id. at 309. 166 Id. at 309-10. 167 Id. at 310 (referring to Tiyanjana Maluwu, Succession to Treaties
in Post-Independence Africa, AFR. J. INT’L L. 791, 792-93 (1992)).
57
constituted by the United Nations Security Council
Resolutions 242, 338, and 1850.
Conclusion
United Nations Security Council Resolutions 242,
338, and 1850 all provide for the legal framework for a
future negotiated two-state solution. The international
community steadily supports these legal instruments. This
framework also mandates that bilateral direct negotiations
achieve a comprehensive peace agreement between all the
parties to the Israeli-Arab conflict, including the
Palestinians. The 2005 Israeli withdrawal from the Gaza
Strip, as well as certain negotiated withdrawals from
additional Palestinian territory within the West Bank, may
give room for certain confidence that such negotiations
may finally lead to a two state solution living side by side
in peace and security. Earlier successfully negotiated peace
agreements between Israel and its Egyptian and Jordanian
neighbours may reiterate that expectation.
Yet, with less than a fifth of the territory over which
the Palestinians presently practice self-governance in the
West Bank and East Jerusalem, and in the backdrop of
Israel's competing title over strategic segments, it remains
truly questionable whether a unilateral bypass on
Palestinian statehood over the entire alleged Palestinian
territory, even including the separate Hamas-governed
Gaza Strip, would withstand Israel's territorial integrity and
the rule of public international law.
In reply to Professor John Quigley, this article
considers two set of arguments which further question
58
Quigley's justification for Palestinian territorial claims and
possibly Palestinian statehood altogether. These refer to
arguable Palestinian violations of pivotal United Nations
resolutions over territorial aspects. These also refer to
Palestinian violation of the bilateral Oslo Interim
Agreements, especially in the backdrop of the second
Palestinian Unilateral Declaration of Independence
initiative in 2011. In conclusion, Quigley's unilateral
Palestinian statehood proposition is not only deeply legally
questionable, but may further exacerbate existing political
controversies to the detriment of both Israelis and
Palestinians alike.
59
PATRICK MCDADE, ESQ.
The United States and Iran – Decades of Animosity: An Analysis of the Path to the
Current Conflict
ABSTRACT:
Lost in the international debate raging around Iran’s burgeoning nuclear weapons program is the deep and complex history that exists between the United States and Iran, as well as the legal rights and responsibilities that exist between the two nations. A thorough examination of the intensely adversarial relationship that has developed over the past sixty years must be undertaken before any path to a diplomatic solution is likely to succeed. The historical evidence clearly shows that Iran’s animosity towards and distrust of the United States is entirely justified, and the United States’ mistrust of Iran is equally well-grounded. Due these decades of animosity and mistrust, the United States is likely to ignore the significant legal arguments available to Iran under the Nuclear Non-proliferation Treaty and take military action when Iran refuses to back down before an enemy nation.
The article examines all of these issues and ultimately concludes that a high likelihood of armed-conflict exists in this situation, which will almost definitely result in a protracted regional war. This article then considers these historical, legal, and diplomatic realities to suggest significant and creative changes in the diplomatic approach to Iran are necessary to prevent the United States from entering into yet another armed-conflict in the Middle-East.
60
AUTHOR: Patrick A. McDade is a former state and federal
prosecutor who received his J.D. from the George Mason University School of Law and L.L.M. in National Security Law from the Georgetown University Law Center. The author would like to thank Professor John Norton Moore of the Georgetown University Law Center and University of Virginia School of Law for his guidance on this article.
61
Table of Contents Introduction 63 I. The United States and Iran on the Precipice of War 63 II. The United States and the 1953 Coup D’etat of Iranian Prime Minister Mohammed Mossadegh 68 The Rise of Mohammed Mossadegh 71
Operation Ajax: The Fall of Mohammed Mossadegh 76
III. The Shah’s Iran – A Brutal Regime Supported by American Interests 85 The Shah’s Rise to Power 86 The Fall of the Shah 93 IV. The 1979 Iran Hostage Crisis 98 The Rise of the Ayatollah 99 America’s Response to the Revolution 102 America Taken Hostage 105 The Reaction in Iran 106
The Reaction of the Carter Administration 110 Operation Eagle Claw 113 The Response of the American Media Citizens 115 The Crisis Resolves Itself 116
V. After the Revolution: Iran and the United States 118 VI. The Past to the Present: Will There be War? 120
The Calculations of War 122 VII. Moving Forward to Avoid War 126
Iranian Leadership Cannot Look Weak or Cooperative With the United States 126
The Elimination of All Sanctions Should be on the Table 127
62
Western Nations Must be Flexible in the Nature of Negotiations 128
Iran’s Future as a Nuclear Nation 129 An Aggressively Creative Solution 130 Conclusion 132 Annex I: Illustrative Methodology for Measuring Deterrence 135 Table I: Local Deterrence Rating 135 Table I(A): Extended Deterrence Rating 138
Table I(A)(1): Blitzkrieg Capabilities of D and her Allies 138
Table I(A)(2): Immediate-Term Ability of D and her Allies 141
Table I(A)(3): Economic Cost to A’s Regime Elite 145
Table I(A)(4): Political Cost (to A’s Regime Elite) 148
Table II: Potential Aggressor’s Subjective Incentives 151
Results 153
63
Introduction
Despite significant international condemnation and decades of sanctions, the Republic of Iran continues to defy the International Atomic Energy Agency (hereinafter "IAEA"), the United Nations Security Council, and the United States regarding its suspected nuclear weapons program. In response, Israel and the United States are preparing a military solution to disable Iran’s nuclear weapons program before Iran actually develops a working nuclear weapon. This current crisis is only the most recent conflict between the United States and Iran, as there is a deep, complex, and strongly adversarial history between the two nations. This history must be considered, along with the current diplomatic, legal, and military postures of the nations, to determine whether military conflict is probable in this circumstance and to analyze what steps may still be taken to avoid further war in the Middle-East. This article examines the current state of tension between the United States and Iran; the historical and legal relationships behind the hostilities that fuel the current conflict; the likelihood of military action arising from the current crisis; and the best path to avoid a potential war between the United States and Iran.
I. The United States and Iran on the Precipice of War
On February 24, 2012, the IAEA published a report
(hereinafter "IAEA 2012 Report") which concluded:
[T]he Agency is unable to provide credible assurance about the absence of
64
undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities…. The Agency continues to have serious concerns regarding possible military dimensions to Iran’s nuclear programme….1
This finding by the IAEA throws into dire focus the
recently expanding international tensions between the
United States, Israel, and Iran. These tensions arise from
Iran’s continued aggressive rhetoric against Israel,2 its
direct support of terrorist groups,3 and its failure to abide
by United Nations Security Council Resolutions4 regarding
1 IAEA, IMPLEMENTATION OF THE NPT SAFEGUARDS AGREEMENT AND
RELEVANT PROVISIONS OF SECURITY COUNCIL RESOLUTIONS IN THE
ISLAMIC REPUBLIC OF IRAN, GOV/2012/9 (2012), at 10-11 (2012). 2 Nazila Fathi, Wipe Israel “Off the Map” Iranian says, N.Y. TIMES , Oct. 27, 2005, http://www.nytimes.com/2005/10/26/world/africa/26iht-iran.html?pagewanted=print; Nasser Karimi, Iran’s Ahmadinejad: No
Place for Israel in Region, THE ASSOCIATED PRESS, Aug. 26, 2011,
http://news.yahoo.com/irans-ahmadinejad-no-place-israel-region-Ahmadinejad addressing Israel, “There is no (quoting 101047532.html
room for you in the region”). 3 For an explanation and analysis of Iran’s support of Islamic terrorism see EDGAR O’BALANCE, ISLAMIC FUNDAMENTALIST
TERRORISM, 1979-1995:THE IRANIAN CONNECTION (1997); AMIR
TAHERi, HOLY TERROR: THE INSIDE STORY OF ISLAMIC TERRORISM (1987). 4 See S.C. Res. 1696, U.N. Doc. S/RES/1696 (Jul. 31, 2006); S.C. Res. 1747, U.N. Doc. S/RES/1747 (Apr. 28, 2007); S.C. Res. 1803, U.N. Doc. S/RES/1803 (Mar. 3, 2008); S.C. Res. 1835, U.N. Doc.
65
its violations of the Treaty on the Non-Proliferation of
Nuclear Weapons (hereinafter the “NPT”).5 Further, Iran
has consistently refused to comply with the IAEA despite
significant sanctions placed upon Iran by the United
Nations Security Council.6 The United States has also
implemented unilateral sanctions on the Iranian oil
industry7 and banks dealing with Iran.8 These sanctions are
having significant impact on the Iranian economy,9 yet Iran
remains defiant and continues to develop its nuclear
program.10
S/RES/1835 (Sep. 27, 2008); S.C. Res. 1929, U.N. Doc. S/RES/1929 (Jun. 9, 2010). 5 Treaty on the Non-Proliferation of Nuclear Weapons, Jul. 1, 1968, 21 U.S.T. 483, 729 U.N.S.T. 161. [Hereinafter the NPT].
Press Release, U.N. Security Council, Security Council Imposes 6
(June 9, SC/9948 Additional Sanctions on Iran, U.N. Press Release2010). 7 Steve Hargreaves, U.S. Tightens Oil Sanctions on Iran, CNN
MONEY, (Mar. 31, 2012) http://money.cnn.com/2012/03/30/news/international/Iran-sanctions/index.htm. 8 Laura MacInnis, U.S. Imposes Sanctions on Banks Dealing with
Iran, REUTERS, (Dec. 31, 2011), available at
http://www.reuters.com/article/2011/12/31/us-iran-usa-obama-idUSTRE7BU0GP20111231; U.S. Department of the Treasury Office of Foreign Assets Control, What You Need To Know About U.S. Economic Sanctions, (Jan. 23, 2012), available at
http://www.treasury.gov/resource-center/sanctions/Programs/Documents/iran.pdf. 9 Rick Gladstone, Iran Admits Western Sanctions are Inflicting Damage, N.Y. TIMES, Dec. 20, 2011, http://www.nytimes.com/2011/12/20/world/middleeast/iran-admits-western-sanctions-are-inflicting-damage.html?_r=1. 10 Palash R. Gosh, Iran Vows to Pursue Nuclear Energy in
Defiance of Western Sanctions, Military Threats, INT’L BUS. TIMES (Apr. 2, 2012), http://www.ibtimes.com/iran-vows-pursue-nuclear-energy-defiance-western-sanctions-military-threats-432790.
66
Even prior to the IAEA 2012 Report, the prospect
of Israel taking military action against Iran was openly
discussed in diplomatic circles. Israeli Prime Minister
Benjamin Netanyahu warned that a military strike by Israel
against Iran’s nuclear facilities was “a question of when,
not if.”11 While Israel’s threats towards Iran were initially
decried by its allies,12 the United States has now joined
with Israel in support of possible military strikes against
Iran’s nuclear facilities.13 This potential for military
conflict grows more imminent as Israeli leaders believe that
Iran’s nuclear weapons program "is steadily approaching
maturation and is verging on a ‘zone of immunity’ — a
position from which the Iranian regime could complete its
program without effective disruption, at its convenience.”14
Israeli Prime Minister Benjamin Netanyahu emphasized
11 Palash R. Ghosh, Israeli Minister Tells China Strike on Iran
Isn’t Ruled Out, INT’L BUS. TIMES (Mar. 16, 2012),http://www.ibtimes.com/articles/315435/20120316/china-israel-iran-nuclear-strike-lieberman-relations.htm. 12 Adam Entous, Julian E. Barnes and Jay Soloman, U.S. Warns
Israel on Strike, Officials Lobby Against Attack on Iran as Military
Leaders Bolster Defenses, WALL ST. JOURNAL (Jan. 14, 2012) available at
http://online.wsj.com/article/SB10001424052970204409004577159202556087074.html. 13 Chris McGreal, Obama Warns Iran as He Seeks to Reassure
Israel Ahead of Crucial Talks, In Advance of Meeting with Israeli PM
Binyamin Netanyahu, Obama Said He Hopes Israel Understands ‘I
Don’t Bluff’ on Iran, THE GUARDIAN (Mar 2, 2012) available at
http://www.guardian.co.uk/world/2012/mar/02/obama-warns-iran-reassures-israel. 14 Israel: Iran Nuke Site Soon Immune to Strike, ASSOCIATED
PRESS (Mar. 19, 2012, 11:48 AM), available at
http://www.cbsnews.com/8301-202_162-57399943/israel-iran-nuke-site-soon-immune-to-strike/ (quoting Israeli Defense Minister Ehud Barak).
67
this position during his September 27, 2012, address at the
United Nations, as he literally drew a red line depicting the
deadline for military intervention to occur if Iran's nuclear
weapons program is to be disrupted.15
Iran has not sat idle while Israel and the United
States stepped up their aggressive rhetoric. For instance,
Iran rattled its sabre by deploying naval vessels through the
Suez Canal for the first time since the Iranian Revolution of
1979.16 Iran has also begun deploying submarines and
boats that could be used in suicide bomber style attacks
against the American Fifth Fleet; which is stationed in the
area to ensure the openness of the strategic Strait of
Hormuz.17 Most recently, Iran confirmed its direct military
support of Hamas through the supply of arms and missile
technology intended for use against Israel, in violation of
U.N. Sanctions.18 These actions lend credence to Iranian
Supreme Leader Ayatollah Ali Khamenei’s warning that
15 Jeffery Heller, Netanyahu Draws "Red Line" on Iran's Nuclear
Program, REUTERS (Sept. 27, 2012) available at http://www.reuters.com/article/2012/09/27/us-un-assembly-israel-iran-idUSBRE88Q0GI20120927. 16 Iranian Naval Vessels Enter Suez Canal, ASSOCIATED PRESS (Feb. 22, 2011) available at
http://www.foxnews.com/world/2011/02/21/official-iran-naval-ships-enter-suez-canal/ 17 Warda Al-Jawahiry, U.S. Navy: Iran Prepares Suicide Boats in
Gulf, REUTERS (Feb.12, 2012), http://www.reuters.com/article/2012/02/12/us-gulf-usa-iran-idUSTRE81B0V220120212. 18 Ashish Kumar Sen, Iran Admits Giving Hamas Technology for
Missiles, WASH. TIMES (Nov. 21, 2012) available at http://www.washingtontimes.com/news/2012/nov/21/iran-admits-giving-hamas-technology-for-missiles/?page=1.
68
Iran will strike back with equal force if attacked by the
United States or Israel.19
With increasingly inflammatory and hawkish
rhetoric being mirrored by strategic military deployments
and the staging of forces off the coast of Iran, armed
conflict between the United States and Iran appears more
and more imminent. War games indicate that a military
strike on Iran's nuclear sites will likely escalate beyond the
single incident and lead to a wider regional war with the
United States as a participant.20 While a diplomatic
resolution is still a possibility, the United States appears to
be on the cusp of entering into, yet, another war in the
Middle East. With war as a distinct possibility, it is
important to examine the history and relationship between
Iran and the United States that has led them to this
precipice.
II. The United States and the 1953 Coup D’état of
Iranian Prime Minister Mohammad Mossadegh
Prior to 1953, relations between the United States
and Iran were quite different than the heated opposition that
exists today. Iran considered the United States to be “a
distant but reliable ally” that Iran hoped could be “a
Iran’s Supreme Leader Ramin Mostaghim and Emily Alpert, 19
(Mar. 20, IMEST L.A.Warns of Retaliation if Israel or U.S. Strikes,
2012, 1:20 PM), http://latimesblogs.latimes.com/world_now/2012/03/iran-nowruz-strike-back-israel.html. 20 Mark Mazzetti & Thom Shanker, U.S. War Games Sees Perils of
Israeli Strike Against Iran, N.Y. TIMES, Mar. 19, 2012, http://www.nytimes.com/2012/03/20/world/middleeast/united-states-war-game-sees-dire-results-of-an-israeli-attack-on-iran.html?_r=1&pagewanted=all.
69
counterbalancing force against Iran’s two colonial nemesis:
the Russians and the British.”21 Russia retained power in
the northern provinces and Britain held sway in the
southern and western areas of the country throughout the
nineteenth and early twentieth centuries.22 At the
conclusion of World War II, a power struggle between
Great Britain and the Soviet Union was brewing in Iran, as
both nations realized the military and economic
significance of the country. Iran was strategically
significant due to its central location in the Middle-East and
its newly discovered oil resources, which left neither nation
willing to withdraw their troops.23 President Franklin
Roosevelt assisted Iran by meeting with Winston Churchill
and Joseph Stalin in Tehran to insist that all foreign troops
be withdrawn from Iran and that the three nations respect
Iran’s territorial integrity and national autonomy.24 In
response, the United States and Britain withdrew their
troops and the Soviets followed suit; leaving Iran an
impoverished, but technically independent, nation.25 Due
to the American intervention with Great Britain and Russia
and their shared history as British colonies, many Iranians
viewed the United States as a protector in international
matters.26
21 ABBAS MILANI, THE MYTH OF THE GREAT SATAN, A NEW LOOK
AT AMERICA’S RELATIONS WITH IRAN, 43 (2010). 22 BADI BADIOZAMANI & GHAZAL BADIOZAMANI, IRAN AND
AMERICA, RE-KINDLING A LOST LOVE, 187-98 (2005). 23
KENNETH M. POLLACK, THE PERSIAN PUZZLE, THE CONFLICT
BETWEEN IRAN AND AMERICA 49 (2004). 24 DAVID FARBER, TAKEN HOSTAGE, THE IRAN HOSTAGE CRISIS
AND AMERICA’S FIRST ENCOUNTER WITH RADICAL ISLAM 48 (2005). 25
Id. at 48-49. 26
Id.
70
Though Iran was no longer a colony of the British
Empire in 1949, the nation remained strongly in the sway
of the British owned Anglo-Iranian Oil Company
(hereinafter “AIOC”). The AIOC held concessions
negotiated by Reza Shah, the previous monarch of Iran,
which gave it rights to the development of Iran’s vast oil
resources.27 The terms of this concession, however, were
quite inequitable compared to similar arrangements
between other Western powers and Middle-Eastern nations.
For example, the Arabian-American Oil Company shared
profits between Saudi-Arabia and the United States on a
fifty-fifty basis.28 In contrast, the AIOC, with annual
profits of approximately two-hundred and fifty million
pounds, paid Iran only thirty-seven million pounds under
the concession.29 The economic mistreatment of Iran by
Britain was also felt at a personal level by employees of the
AIOC:
The working conditions of the AIOC’s Iranian employees were unconscionable: they were paid 50 cents per day and lived in a shantytown called Kaghazabad (“paper city,” for the principal means of construction) without running water or electricity… They lived during the seven hot
27
STEPHEN KINZER, ALL THE SHAH’S MEN, AN AMERICAN COUP
AND THE ROOTS OF MIDDLE EAST TERROR 51-52 (2003). 28 POLLACK, supra note 23, at 54. 29 Id. at 50.
71
months of the year under the trees… In winter times these masses moved into big halls, built by the company, housing up to 3,000 to 4,000 people without wall or partition between them. Each family occupied the space of one blanket. There were no lavatories…30
The AIOC’s rapacious policies combined with the
totalitarian abuses of Mohammad Reza Shah, the Iranian
Monarch, led to a volatile political situation which gave
rise to an opposition political movement called the National
Front in October of 1949.31
The Rise of Mohammed Mossadegh
The National Front was a political party led by
Mohammad Mossadegh, an elder statesman of Iranian
politics known for his populist and anti-British stances.
The National Front was born from a successful sit-in
protest objecting to improper elections of the Majlis
(Iranian Parliament) that were rigged by Mohammad Reza
Shah.32 When new, fair elections were held, Mohammad
Mossadegh and six other founders of the National Front
were elected to the Majlis marking the rise of an organized,
sophisticated opposition party that was “fired with
30
Id. at 52. 31
Id. at 53. 32 KINZER, supra note 27, at 71.
72
nationalistic zeal and confident of broad public support.”33
The primary goal of Mossadegh and the National Front was
to apply their new-found political might to renegotiate the
terms of AIOC’s oil concession.34 Initially, Mossadegh
wanted a similar arrangement to the agreement between the
United States and Saudi Arabia, which would result in a
fifty fifty profit split and transparency in the accounting
procedures.35 The British immediately rejected this
proposition and strong-armed Mohammed Reza Shah into a
new concession that addressed none of Mossadegh’s
concerns. The new concession merely increased the
minimum annual royalty payment to four million pounds,
and made vague promises about training more Iranians for
administrative roles.36 The Shah attempted to force
through this new agreement; however it was roundly
rejected by the Majlis, which was controlled by Mossadegh
and the National Front.37
While the Shah attempted to negotiate more
acceptable terms with the British, the political struggle
between the National Front and the Shah continued.
Mossadegh and the National Front grew more and more
entrenched against the British and focused upon the
nationalization of the oil industry as the best solution.38
After about a year and a half of stalemate, the British
offered terms similar to the Arabian-American oil
concession; however it was too late. The popular
33
Id. 34 POLLACK, supra note 23, at 53. 35
Id. at 54. 36
Id. 37
Id. 38 BADIOZAMANI, supra note 22.
73
movement against British colonialism had been inflamed to
the point of no return. On March 8, 1951, pro-British
Iranian Prime Minister Razmara was assassinated by a
religious zealot who stated he wished to “deliver the
deprived Moslem people of Iran from foreign serfdom.”39
This act was the catalyst for change that would bring
Mossadegh to power. One week after the assassination,
Mossadegh lead the Majlis in a unanimous vote to
nationalize AIOC.40 On April 15, 1951, the British closed
AIOC’s Abadan oil refinery. 41 On April 28, Mohammed
Mossadegh became Prime Minister of Iran.42
As Prime Minister, Mohammed Mossadegh became
the first truly democratic leader in the history of Iran,
establishing a record of positive democratic change that
resulted in him becoming the most popular figure in
modern Iranian history.43 Among the changes that
Mossadegh put in place wer: significant advances in
women’s suffrage in Iran;44 outlawing forced labors of
peasants on the estates of their landlords; establishing
benefits to be paid to sick and injured factory workers; and
defending religious freedoms.45 “Above all, [Mossadegh]
was known even by his enemies as scrupulously honest and
39
Id. 40 KINZER, supra note 27, at 79. 41 BADIOZAMANI, supra note 22. 42
Id. 43 KINZER, supra note 27, at 7. 44 Shiva Falsafi, Civil Society and Democracy in Japan, Iran, Iraq,
and Beyond, 43 VAND. J. TRANSNAT’L L. 357, 421 (2010). 45 KINZER, supra note 27, at 140.
74
impervious to the corruption that pervaded Iranian
politics.”46
Mossadegh found himself in a unique position in
the history of Iran to bring about radical and positive
change; with his popularity and reputation for integrity
politically insurmountable by his opponents. When the
Shah challenged Mossadegh’s authority to appoint the
Minister of War, an appointment traditionally made by the
Shah, Mossadegh refused to acquiesce and instead resigned
as prime minister.47 While the British initially celebrated
the Shah’s apparent return to authority, the people rejected
the Shah's replacement of Mossadegh with the pro-British
Ahmad Qavam and massive protests bubbled into a near
revolution.48 Mossadegh was re-established as Prime
Minister within four days of his resignation and the Shah
agreed to remain as royalty, but consented not to rule.49
With the monarchy now a ceremonial accent to his
democratic government, Mossadegh began his reforms in
earnest and the nationalization of AIOC would not be
overturned.
The British would not simply allow their oil
company to be nationalized, however. A large contingent
of British warships was quickly stationed off the coast of
Iran near the Abadan refinery,50 instituting an embargo on
Iranian oil under the assertion that the oil was stolen British
46
Id. 47 POLLACK, supra note 23, at 61-62. 48
Id. at 62. 49
Id. 50 KINZER, supra note 27, at 111.
75
property.51 Great Britain then appealed to the United
Nations for support on their position,52 despite the United
States, through a letter from Secretary of State Dean
Acheson, strongly advising against such a maneuver.53
Acheson had long been seeking a diplomatic solution to the
growing tensions between Iran and Great Britain and
viewed taking the issue to the United Nations as a step that
would lead to “an irrevocable freezing of the Iranian
Situation.”54 Acheson proved correct as the great stage of
the United Nations provided Mossadegh with exactly the
forum he needed play the role of David against the Goliath
of Great Britain. Mossadegh travelled to New York to
personally present Iran’s case to the United Nations
resulting in a referral of the matter to the World Court
where Iran would prove victorious.55 The true victory for
Mossadegh, however, was that he was able to present Iran
to the world as a sympathetic victim of British colonialism.
Mossadegh's success at the United Nations and apparent
victory over Britain resulted in his selection as Time
Magazine’s Man of the Year.56
After his sessions with the United Nations,
Mossadegh extended his stay in the United States and met
at length with Secretary Acheson and President Harry
51
Id. at 116. 52 BADIOZAMANI, supra note 22, at 244. 53 KINZER, supra note 27, at 117. 54
Id. 55 BADIOZAMANI ET AL., supra note 22, at 244. 56 1951 Man of the Year: Mohammed Mossadegh, TIME MAG. (Jan. 7, 1952), available at http://mohsen.banan.1.byname.net/content/republished/doc.public/politics/iran/mossadeq/1951TimesManOfTheYear/main.pdf.
76
Truman. Staying in Washington D.C. for nearly a month,
Mossadegh participated in more than seventy hours of talks
with the United States while the parties attempted to find a
diplomatic solution to the ongoing conflict between Britain
and Iran.57 Prime Minister Mossadegh left the United
States with a confidence in the friendship of the United
States, as President Truman expressed a deep sympathy for
the Iranian position.58 However, President Truman also
expressed that the United States was concerned that the
Soviet Union could use the conflict with Britain as an
opportunity to seize Iran and start a world war, a concern
that would eventually be Mossadegh's undoing.59
Operation Ajax: The Fall of Mohammed Mossadegh
The election of Winston Churchill to his second
stint as Prime Minister of England in 1951, would be the
beginning of the end for Mohammed Mossadegh. During
his campaign, Churchill’s position on Iran was clear and
poignant as he charged that sitting Prime Minister Clement
Atlee “had scuttled and run from Abadan when a splutter of
musketry would have ended the matter.”60 Churchill
described Mohammed Mossadegh as “an elderly lunatic
bent on wrecking his own country and handing it over to
the Communists.”61 Even worse for Mossadegh, the
friendly relations between the United States and Iran cooled
significantly with the election of the vehemently anti-
communist Dwight Eisenhower as President, who did not
57 KINZER, supra note 27, at 130. 58
Id. at 129. 59
Id. 60
Id. at 132. 61
Id.
77
share his predecessor’s sympathies for Iran. Mossadegh
exacerbated this cooling in relations when he implied to
President Eisenhower that without American intervention
against the British oil embargo, Iran could fall victim to
communist takeover. 62 Rather than bring Eisenhower to
the aid of Iran, this ploy pushed Eisenhower towards his
old friend Winston Churchill’s position that Iran was on a
path towards falling to the Soviet Union.63 Likewise, while
former Secretary of State Dean Acheson had strongly
resisted the proposition of aiding the British in a coup
against Mossadegh,64 Eisenhower’s Secretary of State
Foster Dulles and Central Intelligence Agency Director
Allen Dulles, brothers, were ready to join the British in a
move against Mossadegh immediately after Eisenhower
took office in 1953.65
As the British had been generally expelled from
Iran, they were not in a position to directly sponsor a coup
against Mossadegh. Instead, the United States would lead
the effort; the CIA chose Kermit Roosevelt, a grandson of
President Theodore Roosevelt, as the officer to lead the
coup d'état against Prime Minister Mohammed
Mossadegh.66 The coup was code-named Operation Ajax
and was chronicled in great detail by CIA Historian Dean
62 JOHN W. LIMBERT, NEGOTIATING WITH IRAN – WRESTLING THE
GHOSTS OF HISTORY 75 (United States Institute of Peace Press, 2009). 63
Id. 64 Robert L. Beisner, Dean’s List: Power, Institutions, and
Archesonian Diplomacy – Dean Acheson: A Life in the Cold War, 103 AM. J. INT’L L. 375, 379 (2006). 65 KINZER, supra note 27, at 152. 66 Id. at 4.
78
L. Dodge.67 Dodge’s history was based on an assortment
of documents including the writings of CIA operative
Donald N. Wilbur, who was directly involved in the
operation.68
Operation Ajax was hatched in a joint venture
between the British SIS and the American CIA, with the
CIA taking the lead in both planning and execution.69 The
CIA selected Iranian General Zahedi as the person most
likely to be able to succeed Mossadegh as Prime Minister,
and formed a plan to remove Mossadegh from power and
put Zahedi in place.70 The decision was based on the
following facts and assumptions:
[T]hat Zahedi alone of potential candidates had the vigor and courage to make him worthy of support; that the Shah must be brought into the operation; that the Shah would act only with great reluctance but that he could be forced to do so; that if the issue was clear-cut the armed forces would follow
67 The New York Times would eventually acquire the Dodge’s History and publish excerpts on April 16, 2000, prompting the eventual declassification and release of the history. See James Risen, How a Plot
Convulsed Iran in ’53 (and in ’79), N.Y. TIMES,Apr. 16, 2000, http://nytimes.com/library/world/mideast/041600iran-cia-intro.html. 68 Dr. Donald N. Wilbur, Overthrow of Premier Mossadeq of Iran,
November 1952-August 1953, CIA Clandestine Service History (March 1954), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB28/#documents. 69 Id. at 6. 70
Id. at 3-4.
79
the Shah rather than Mossadeq; that the operation must, if possible, be made to appear legal or quasi-legal instead of an outright coup; that public opinion must be fanned to fever pitch against Mossadeq in the period just preceding the execution of the overthrow operation; that the military aspect would be successful only if the station were able to review the plan with Iranians chosen by Zahedi to execute it…71
The primary Iranian agents to be used were known as the
Rashidan brothers: SIS contacts who had strong
connections with the armed forces, Majlis, religious
leaders, the press, street gangs, politicians, and other
influential figures.72 From the United States, Kermit
Roosevelt was joined by General Norman Schwarzkopf
(the father of the General of the Gulf War) who would
apply pressure, in conjunction with the Shah’s sister, to
gain the Shah’s reluctant cooperation.73
71
Id. at 8-9. 72
Id. at 7. 73 Donald N. Wilbur, Overthrow of Premier Mossadeq of Iran,
Appendix B London Draft, NATIONAL SECURITY ARCHIVE ELECTORNIC
BRIEFING BOOK NO. 28, 5, (Mar. 1954), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB28/#documents. (hereinafter “the London Draft”).
80
The coup would be preceded by a vast
disinformation campaign; with the CIA taking over Iranian
newspapers to publish anti-Mossadegh propaganda. The
operation plan specifically outlined the following steps:
The material designed to discredit Mossadeq will hammer the following themes:
(a) Mossadeq favors the Tudeh Party and the USSR. (This will be supported by black documents.)
(b) Mossadeq is an enemy of Islam since he associates with the Tudeh and advances their aims.
(c) Mossadeq is deliberately destroying the morale of the Army and its ability to maintain order.
(d) Mossadeq is deliberately fostering the growth of regional separatist elements through his removal of Army control over tribal areas. One of the aims of the removal of control by the Army is to make it easier for the Soviets to take over the Northern Provinces.
81
(e) Mossedeq is deliberately leading the country into economic collapse.
(f) Mossadeq has been corrupted by power to such an extent that no trace is left of the fine man of earlier years, and he now has all the repressive instincts of the dictator.
(g) Consistent with these themes will be the persistent slant that Mossadeq has been the unwitting victim of his scrupulous, personally ambitious advisers.74
In addition to corrupting the press, Operation Ajax
depended on the bribing and pressuring of Mossadegh's
opposition, which included a variety of political parties and
bazaar merchants, who controlled street gangs, to aid in the
spread of unrest and propaganda.75 Further, Operation
Ajax would recruit Islamic leaders and extremists,
including terrorist elements, to engage in the public support
of Zahedi and the Shah, protests against Mossadegh, and
even terrorist action against Mossadegh and his
government.76 The plan then detailed exactly how all of
74
Id. at 16-17. 75
Id. at 18-22. 76
Id. at 20-21.
82
the elements would be used in concert in order to bring
about the fall of Mossadegh and bring Zahedi into power.77
After weeks of subversive propaganda and
demonstrations as directed by the Operation Ajax operation
plan, the Shah finally gave in to months of pressure from
his sister, General Schwarzkopf, Kermit Roosevelt and
numerous others, and joined the plot against Mossadegh.
On August 13, 1953, the Shah signed legal-seeming royal
decrees, drawn up by Roosevelt, called firman that
purported to dismiss Mossadegh and appoint General
Zahedi as the new Prime Minister.78 With the firman
providing an appearance of legality, Operation Ajax
launched into execution on August 15, 1953, and
immediately appeared to have failed as large parts of the
military and government maintained their loyalty to
Mossadegh.79 Mossadegh’s government began issuing
radio broadcasts condemning the coup attempt, General
Zahedi went into hiding, and the Shah fled the country.80
With the apparent failure of the coup being broadcast for
the world to hear, Roosevelt and his fellow operatives were
instructed to desist attempting to overthrow the Mossadegh
government and flee Iran.81
77
Id. at 23-25. 78 Donald N. Wilbur, Overthrow of Premier Mossadeq of Iran, NATIONAL SECURITY ARCHIVE ELECTORNIC BRIEFING BOOK NO. 28, at 36-37, (Mar. 1954), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB28/#documents. [hereinafter the London Draft]. 79
Id. at 39-43. 80
Id. at 44-46. 81
Id at 58, 64.
83
Mossadegh, however, made a political
miscalculation. In response to the coup attempt,
Mossadegh attempted to solidify his government by
enacting a referendum of dubious constitutionality, which
stated that an improbable majority of Iranian citizens had
voted to dissolve the Majlis -- a power which only the Shah
possessed.82 Further, Mossadegh’s government issued
statements denying the authenticity of the firman.83 These
two actions, combined with the ongoing propaganda
campaign against Mossadegh, created questions of the
legitimacy of Mossadegh’s position. When it was revealed
that the firman actually existed84 and the Shah spoke
publically in Iraq. He stated that he had fled a coup attempt
by Mossadegh against the royalty and Prime Minister
Zahedi,85 and Kermit Roosevelt had the tools he needed to
revive the coup.86 Over the next four days, Roosevelt and
his operatives spun the story of the attempted coup upon
Mossadegh into a story of betrayal and revolution by
Mossadegh against the Shah, with the resulting
misinformation fanning the chaos in Tehran against
Mossadegh.87
On August 19, 1953, with the Rashidan Brothers
fanning the flames of dissent and organizing mass riots and
demonstrations throughout Tehran, sections of the military
loyal to General Zahidi took control of the city.88 Soon the
82
Id. at 31, 48. 83
Id. at 46. 84
Id. at 47. 85
Id. at 52-53. 86
Id. at 51. 87
Id. at 52, 65. 88
Id. at 67.
84
telegraph office and Radio Tehran were taken by royalists
under the guidance of Operation Ajax, and the propaganda
machine was then able to present Zahidi with the firman to
legitimize his claims that Mossadegh was a rebel against
the Shah.89 Project Ajax was a success. Mohammed Reza
Shah reclaimed his throne from his self-imposed exile in
Rome.90 Mohammed Mossadegh was arrested and
convicted of treason; spending three years in prison and
remaining under house arrest until his death in 1967.
Mossadegh was not the only casualty of Operation
Ajax, however, as the once friendly alliance between the
United States and Iran perished as well:
The reality of [the Iranian people's] deep anger against the United States in particular can hardly be underrated. And there were many reasons for it. But the central reason was that it was known as the power that overthrew Mossadegh's government in 1953, and it was wrongly perceived to be the real power behind, and the daily instructor of the absolute and arbitrary [government of the Shah].91
89
Id. at 69-73. 90
Id. at 76. 91 MOSSADEQ AND THE 1953 COUP IN IRAN 23-24 (Mark J. Gasiorowski & Malcolm Byrne eds., 2004).
85
Thus, the United States accomplished its goal and aided Britain in removing the democratically elected Mossadegh from power and restoring to the throne the brutal Mohamed Reza Shah. While, in the short term, this appeared to be a victory for the United States and Britain, the Iranian people would never forgive these Western powers for destroying their best chance at democracy.
III. The Shah’s Iran – A Brutal Regime Supported by
American Interests
The successful coup d’état of Mohammad
Mossadegh’s government restored Mohammed Reza Shah
to the monarchy. By the late 1950s the Shah seemed
completely in control of Iran. After the Majlis elections
were fixed in 1956, there were only two political parties
allowed in Iran – the National Party, as the party of the
government, and the Peoples’ party, as the figurative
opposition. Both political parties were controlled by the
Shah and were known to Iranians as “yes and yes sir.”92
The Shah’s power, however, did not derive from the
political will of Iran. The United States was perceived as
the power behind his throne, manipulating the Shah
through military might, weapons sales, monetary aid and
capital investment.93 The Shah was fully aware that his
restoration to power by the acts of the United States left
him in thrall to the foreign power. The Shah specifically
thanked Kermit Roosevelt upon his reinstatement stating, “I
owe my throne to God, my people, my army – and to
92 POLLACK, supra note 23, at 78. 93 FARBER, supra note 24, at 37.
86
you!”94 While most Americans thought little of Iran during
this time, Iranians understood that the United States was the
power behind the Shah’s reign, perceiving the United
States as “the ghost in the machine, present even when it
was absent, pulling strings, making secret deals, changing
lives, bestowing boons, and providing cover for corrupt and
even murderous acts.”95
The Shah’s Rise to Power
The Shah’s reign was not easy, however, and the
Iraqi revolution in 1958 showed the Shah that he may be as
vulnerable as the Iraqi monarchy.96 Arab uprisings
throughout the region made the Shah nervous, so he
reached out to the United States and Israel as mutual
enemies of the Arabian radicals and the looming Soviet
Union.97 The Soviets were a genuine threat as the Shah
was fervently anti-communist and pro-American. With the
help of the CIA, the Shah formed the brutal Sazeman-e
Ettelaatva Amniyat-e Keshvar (hereinafter the “SAVAK”)
security agency, whose mission was to jail, beat, torture
and intimidate all of the Shah’s political opponents,
especially the remnants of the outlawed, communist Tudeh
party.98 The SAVAK’s international reputation was based
upon its “brutality, cruelty, and the macabre creativity of its
94 Id. (citing KERMIT ROOSEVELT, COUNTERCOUP: THE STRUGGLE
FOR THE CONTROL OF IRAN 199 (1979)). 95 FARBER, supra note 24, at 37-38. 96 POLLACK, supra note 23, at 78. 97
Id. at 79. 98 NIKKI R. KEDDIE, ROOTS OF REVOLUTION 144 (1981); Farber, supra note 24, at 60.
87
torturers”99 This reputation for political torture became a
defining theme in the Shah’s Iran, as illustrated during the
Shah's interview with Mike Wallace on 60 Minutes, during
which the Shah grimly joked about not having the SAVAK
torture Wallace for asking difficult questions.100
Still fearful of the Soviet specter in Iran, the United
States ignored the brutal methods of the Shah’s dictatorship
and entered into a number of bilateral defense treaties with
Iran, beginning under President Eisenhower in 1959 with a
treaty that guaranteed American military intervention on
Iran's behalf.101 The Eisenhower administration’s support
for the Shah also included more than a billion dollars in
economic and military aid over the first seven years of the
Shah’s reign, as the CIA considered Iran a key strategic
center for monitoring the Soviet threat in the Middle
East.102 The Kennedy administration followed in
Eisenhower’s footsteps, but tied Iranian aid to economic
reforms and development, under the theory that the nation’s
poverty led to a vulnerability to communism.103 This
ultimately led to the Shah’s profoundly unsuccessful
“White Revolution” which was supposed to include land
use reform; profit sharing; electoral reform; the restoration
of women’s suffrage; expansion of literacy; nationalization
of forests; pastures and waterways; and education
99 FARBER, supra note 24, at 60. 100 60 Minutes: The Shah of Iran (CBS television broadcast Oct. 24, 1976), available at
http://www.cbsnews.com/video/watch/?id=4539311n. 101 POLLACK, supra note 23, at 79-80; H.J. Res. 117 (Pub. Law 85-7, 71 Stat. 5) (1959). 102 FARBER, supra note 24, at 59. 103
Id. at 62.
88
reform.104 The Kennedy Administration also pushed for
reduction in Iranian military spending, refocusing military
personnel into civic roles, and the CIA removing
themselves from direct interaction with the SAVAK under
the theory that the training was complete.105 The Shah was
not going to allow for any reduction in the power of his
secret police, however; and the Israeli Mossad immediately
stepped in to fill the void that the CIA had left behind.106
The tight military ties between Iran and the United
States were restored in 1972 when President Nixon went to
Tehran and named the Shah as the protector of American
military interests in the Middle East. This move essentially
gave the Shah an open access to American military
technology.107 The Shah spent approximately $12.1 billion
dollars on advanced American military technology over the
next four years, paying for the weapons with oil
revenues.108 In 1977, Iran purchased half of the entire
American arms export industry.109 President Ford would
maintain this close relationship, and by the time Jimmy
Carter became President of the United States in 1978, Iran
was the center of American military and economic security
in the Middle East.110
While the strength of the Shah’s relationship with
the United States was an asset in receiving aid and in
104 POLLACK, supra note 23, at 86. 105
Id. at 84. 106
Id. 107 FARBER, supra note 24, at 69-70. 108
Id. at 70. 109 POLLACK, supra note 23, at 109. 110 FARBER, supra note 24, at 72.
89
foreign policy, it represented a lethal political weakness at
home. The anti-American sentiment in Iran remained
strong since the 1953 coup of Mossadegh, and the Shah’s
brutal regime did little to help the people forget their lost
chance at democracy. The alternative to the Shah
coalesced in the form of Ayatollah Ruhollah Musavi
Khomeini, who used the failure of the Shah’s White
Revolution to rally his followers into demonstrations in
1963.111 In June of that year, Khomeini castigated the Shah
stating, “We have come to the conclusion that this regime
has a more basic aim; they are fundamentally opposed to
Islam itself and the existence of a religious class.”112 In
response, the Shah had Khomeini arrested, triggering mass
protests that ultimately led to a clash with the Shah's brutal
security forces who killed hundreds of the Ayatollah's
followers.113 Khomeini had become the face of the
opposition to the Shah and rose to the forefront of the
religious hierarchy.114
The next focus of the Ayatollah’s opposition came
in 1964, when the United States requested an arrangement
whereby United States soldiers stationed in Iran would
have immunity under Iranian law and would instead be
tried in American Military courts.115 This Status of Forces
Agreement was a fairly standard agreement, with the
United States having similar agreements in place in
111 POLLACK, supra note 23, at 88. 112
Id. at 88-89. 113
Id. at 89. 114
Id. 115 FARBER, supra note 24, at 65.
90
Germany, Japan, and South Korea.116 Anti-Americanism
was so high in Iran, however, that the agreement barely
passed the Shah’s hand-picked Majlis (with sixty-two of
one hundred and thirty-two votes against the measure and a
significant number of members abstaining).117 Khomeini
latched onto the agreement as proof that the Shah was
merely an American puppet stating, “[t]hey can no longer
call us reactionary. The point is that we are fighting against
[America]…. We must use [the agreement] as a weapon to
attack the regime so that the whole nation will realize that
this Shah is an American agent and this is an American
plot.”118 Khomeini received further ammunition just two
weeks later when the Majlis approved $200 million dollars
in loans from American banks to purchase more American
weapons.119 This debt, coupled with the Status of Forces
Agreement, led Iranians to recall Mossadegh’s prior
recriminations that the Shah was selling the sovereignty of
Iran to foreign interests.120
Khomeini took these feelings and used them to
inflame his supporters as he spoke in October 1964:
If the religious leaders have influence, they will not permit this nation to be slaves of Britain one day, and America the next. If the religious leaders have
116 POLLACK, supra note 23, at 93. 117
Id. 118 FARBER, supra note 24, at 65. 119 POLLACK, supra note 23, at 93. 120
Id.
91
influence they will not permit Israel to take over the Iranian economy…. If the religious leaders have influence they will strike the government in the mouth…. They will not permit America to carry out these scandalous deeds, they will throw him out of Iran…. Let the American president know that in the eyes of the Iranian people he is the most repulsive member of the human race…. Let the American government know that its name has been ruined and disgraced in Iran.121
Just a few days after this speech, Ayatollah Khomeini was
arrested by SAVAK agents, taken to the Tehran airport,
exiled to Turkey, and then Iraq where he spent the next
thirteen years developing a network of anti-Shah activists
with the goal of making Iran an Islamic state.122
Even with Khomeini gone the dissidents remained
active in Iran. In January 1965, the Prime Minister serving
under the Shah was assassinated.123 Just three months later
there was an unsuccessful assassination attempt on the
Shah himself carried out by a member of his own imperial
guard.124 That same year the Mujahedeen-e was formed as
121 FARBER, supra note 24, at 66. 122
Id. at 67. 123 POLLACK, supra note 23, at 98. 124 Id.
92
a guerrilla movement made up of religious militants and
designed to carry out a terrorist campaign against the
Shah.125 Several smaller militant groups rose up as well.126
Despite this unrest, with the Ayatollah in exile and
the support of the United States firmly behind him, the
Shah spent the next decade expanding his personal wealth
at the expense of the Iranian public who lived in poverty
with an average per capita income of two hundred and fifty
dollars per year.127 This dichotomy of wealth was
highlighted in 1971, when the Shah hosted an enormous
gala to celebrate his thirtieth year as Shah and the 2,500th
anniversary of the founding of the Persian Empire under
Cyrus the Great. The extravagant celebration was
unbelievable in its excess:
Kings, emperors, princes, presidents, sheiks, sultans, and hundreds of immensely wealthy jet-setters came to a tent city the Shah had built on the ruins of Persepolis. They drank Dom Perignon Rose 1959 and Chateau Lafite Rothschild 1945 from specially designed Baccarat crystal goblets while they supped on poached quails eggs stuffed with caviar, crayfish mouse, roast peacock stuffed with
125
Id. 126 Id. 127 FARBER, supra note 24, at 67.
93
foiegras, and other delicacies prepared by Maxim’s of Paris. The Shah’s shindig cost the Iranian people, a majority of whom lived in poverty, some $200 million…. a small group of students that dared protest the extravaganza were badly beaten by the Shah’s security force.128
With such gaudy displays of wealth by the Shah, while
surrounded by the poverty of the Iranian public, it is not
surprising that not even the fear of the SAVAK could keep
the opposition groups at bay.
The Fall of the Shah
The Shah's fall began with the election of a new
American President. Jimmy Carter was elected President of
the United States on a campaign of “foreign policies that
commensurated with the nation’s highest ideals.”129
Carter's view of foreign policy seemed almost a direct
rebuke of the American support of the Shah's reign:
Our people have learned the folly of trying to inject our power into the internal affairs of other nations. It is time that our government learned that lesson too…. Never
128
Id. 129
Id. at 39.
94
again should our country become militarily involved in the internal affairs of another country unless there is a direct and obvious threat to the security of the United States or its people. We must not use the CIA or other covert means to effect violent change in any government or government policy…. the CIA must operate within the law.130
To emphasize the change in philosophy, President Carter
specifically criticized the Shah’s human rights record and
objected to such prolific arms deals with a nation with such
a poor record.131 Carter’s viewpoint was a total divergence
from the way that the Shah had been treated under previous
regimes and called into question Iran’s role as the protector
of American military interests in the Middle East.132
The perception in Iran was that the new
administration did not support the Shah, and the Shah
reacted quickly by implementing reforms of his own brutal
policies, eventually even inviting the International
Committee of the Red Cross and Amnesty International to
examine his newly improved practices.133 Subsequently,
Secretary of State Cyrus Vance told reporters during his
visit to Tehran that the United States was pleased with the
130
Id. at 39-40. 131
Id. at 75. 132
POLLACK, supra note 23, at 99. 133 POLLACK, supra note 23, at 121.
95
reforms on human rights that Iran was already making and
that sanctions on Iran were out of the question.134 The
Shah's quick reaction to the Carter Administration's
criticisms enhanced the perception that the Shah was a
puppet on the strings of the United States. The Iranians
saw that the Shah had been cowed into reform by the
United States and began to believe that the Carter
Administration would protect Iranians if they spoke or
acted out against the Shah.135 In reality, the Carter
Administration was unlikely to challenge the Shah, as it
already had its hands full with the oil crisis, the backlash of
the Vietnam War, and the nuclear arms race. It was the
perception of the Shah’s weakness that mattered to the
Iranian people, however, and they seized upon the
perceived weakness.
Newspapers began to question the Shah’s policies,
students began to protest against the Shah on campuses,
and groups began circulating letters of grievances, with one
newspaper receiving 40,000 letters in response to
publishing the question “What is Wrong with Iran?”136
Things continued to go poorly for the Shah when he visited
the White House in November of 1977 and thousands of
anti-Shah protestors interrupted the proceedings.137 The
protests were so intense that police had to use tear gas near
the Shah and the President, and remarks were made on the
lawn at the White House with tears flowing from the eyes
134 Id. at 122. 135
Id. 136
Id. at 123. 137
Id.
96
of both leaders.138 While the meeting was still considered a
success between the dignitaries,139 the tear gas incident was
viewed by opposition groups in Iran as another sign that the
United States was close to abandoning the Shah.140
Just over a month later, President Carter was a guest
of the Shah in Tehran and gave an eloquent New Year’s
Eve toast to the Shah praising the stability of Iran, the love
that his people have for him, and in closing stated, “We
have no nation on Earth who is closer to us in planning for
our mutual security…. And there is no leader with whom I
have a deeper sense of personal gratitude and personal
friendship.”141 Some historians credit this toast by Carter
as the catalyst that set in motion the Iranian revolution the
following year.142 Khomeini pounced on the toast as proof
of both the Shah’s allegiance to the United States and
Carter’s hypocrisy due to his claims to be a defender of
human rights as he still embraced the Shah.143 The Shah
responded to Khomeini’s rhetoric against Carter by placing
an editorial in a newspaper that blamed all the recent
Communist and Muslim extremists, and foolishly decried
Khomeini directly as a foreigner, a drunkard, and a closet
homosexual.144 Following Khomeini's castigation of the
Shah's New Year's toast and the Shah's foolish claims about
Khomeini, massive demonstrations erupted in the Iranian
religious center of Qom, with the Shah's security forces
138 FARBER, supra note 24, at 81. 139
Id. 140 POLLACK, supra note 23, at 122. 141 FARBER, supra note 24, at 81. 142 Id. 143 POLLACK, supra note 23, at 127. 144
Id.
97
responding violently, killing protestors, and several
respected mullahs.145
Chaos and violence overtook all parts of Iranian
society, with the Shah’s brutal tactics only fanning the
flames. The Shah demanded that Iraq banish Khomeini to
Paris, which resulted in the Ayatollah having even greater
freedom of access to the press and his followers than he
had in Iraq.146 The Shah became inconsistent in dealing
with the uprisings against him. In some cases, such as on
September 8, 1978, the Shah’s soldiers opened fire
slaughtering hundreds of protesters, while at other times he
attempted to open discussions with more moderate forces
of the opposition.147 When the Shah turned to his allies in
the United States amid the chaos, all that was offered was
Ambassador William Sullivan’s advice that the Shah
“reform his government to provide ‘effective’ economic
and social measures to show that ‘[he] could lead.”148
President Carter was also ineffective in dealing with
the Iranian crisis. He was torn between advice from his
National Security Council (hereinafter "NSC") advisor
Zbigniew Brzezinski who advocated for direct military
action and from the State Department with Ambassador
Sullivan holding out hope that moderate pro-democracy
elements could be found to replace the Shah.149 As Carter
spent months indecisively listening to the debate between
the NSC and the State Department, the Shah, in November
145
Id. 146
Id. at 131. 147 FARBER, supra note 24, at 92-93. 148 Id. at 93. 149
Id. at 95.
98
of 1978, took to the radio and television to apologize for his
“past mistakes, unlawful actions, oppression and
corruption” and pleaded with the opposition to “try to
protect the only Shi-ite country in the world through their
guidance and by inviting the people to observe peace and
order.”150 By the end of December, the Shah asked
Ambassador Sullivan bluntly whether the United States
would support a new hard line military government that
would end the revolution by a policy of brutal repression,
to which the Ambassador replied that the “United States of
America could not make such a decision for the Shah.”151
With the lack of any support from his American allies,
upon whom he had relied on for decades, the Shah was
simply incapable of any real action on his own. In
December of 1978, President Carter continued to seek more
opinions from more advisors and requested complex
studies on the situation as the Shah lost control of the
streets.152 On January 16, 1979, Mohammed Reza Shah
left Iran for the last time as the pilot of his own American-
made Boeing 707.153
IV. The 1979 Iran Hostage Crisis
Just as the coup d’état of Mohammed Mossadegh is
the defining moment in the Iranian perception of the United
States, the 1979 Iran Hostage Crisis is the defining moment
of the American perception of Iran. Both sides felt that
they are the more aggrieved and the other is the villain in
150
Id. 151
Id. at 96. 152
Id. 153
Id. at 101.
99
the relationship.154 The impact of the Hostage Crisis was
far reaching and created an indelible mark on the American
psyche through the introduction of Islamic Fundamentalist
terrorism. The Hostage Crisis also aided Ayatollah
Khomeini in his ascension to power in Iran by allowing
him to cement a power base in zealous anti-Americanism,
and arguably ended the Carter Presidency after one term.
Historically, it also represented the first interaction between
the United States and the newly defined Islamic Republic
of Iran, setting the tone for decades of animosity.
The Rise of the Ayatollah
As United States Ambassador to Iran, William
Sullivan was intimately involved with the situation in Iran.
Sullivan immediately understood that the Shah’s
government was done and Khomeini was now the power in
Iran, but his pleas that the Carter Administration approach
the Ayatollah, as most other nations were doing, were
repeatedly refused by the President.155 Desperate to
maintain some relationship between the United States and
Iran, Sullivan cabled Washington stating:
You should know that President has made gross and perhaps irretrievable mistake by failing to send emissary to Paris to see Khomeini…. I can notrpt [sic] not understand the rationale…. I urge you immediately to joint
154 LIMBERT, supra note 62, at 75. 155
FARBER, supra note 24, at 99-100.
100
[sic] Harold Brown in his plea for sanity…. Failure to act immediately could permanently frustrate U.S. national interest in Iran.156
Disgusted with this outburst from his Ambassador,
President Carter ignored his advice entirely and simply
waited to see whether the Shah’s recently selected Prime
Minister Shapour Bakhtiar could somehow keep the Shah’s
government in place despite the Shah’s flight from Iran.157
Bakhtiar did try to restore order, but his power was totally
based on the military power, and the Iranian military was
vainly looking to the United States for support and
guidance.158
On February 1, 1979, Ayatollah Rulloh Musavi
Khomeini returned to Iran from his exile in Paris and
approximately three million people lined the streets of
Tehran to greet him.159 On February 11, 1979, the last
units of the armed forces supporting the Shah's regime
surrendered and the Ayatollah’s victory was complete.160
To form a new government, Khomeini created a
Revolutionary Council intended to unify the various
factions that made up the revolution.161 The Revolutionary
Council began filling government positions, including
appointing Mehdi Bazargan, a liberal oppositionist, as
156
Id. at 101. 157
Id. at 100-01. 158 POLLACK, supra note 23, at 146. 159 Id. at 143. 160 LIMBERT, supra note 62, at 90. 161 POLLACK, supra note 23, at 150.
101
Prime Minister, providing hope that a democracy might
flourish.162 However, as many government positions were
filled by taking members from the Revolutionary Council,
Khomeini filled the vacancies in the Council with
conservative Islamists loyal to him personally.163 Radical
Islamists also seized power through the formation of ad hoc
Islamist komitehs and revolutionary tribunals.164 These ad
hoc groups charged Iranians with anti-Islamic crimes,
enforcing sentences of execution, and other biblical
punishments, with no opportunity for the accused to present
a defense.165 Bonyads were also formed under the control
of radical mullahs; who seized all the wealth remaining in
the country to redistribute it to Khomeini and his
followers.166
These groups were enforcing Sharia law and the
will of Khomeini, even as the Ayatollah and his
Revolutionary Council were going through the motions of
setting up a legitimate democratic government in apparent
cooperation with more liberal groups from the
revolution.167 This attempt to include non-Islamic
viewpoints was merely a charade, however, and Khomeini
eventually issued a national referendum with only one
question to be voted upon: “Do you want the monarchy to
be replaced by an Islamic Republic?”168 While the more
liberal groups involved in the revolution, such as the
162
Id. at 149. 163
Id. at 150. 164
Id. at 150-52. 165
Id. at 151-52. 166
Id. at 151. 167
Id. at 152. 168
Id.
102
Tudeh, the Kurds, the National Front, and Prime Minister
Bazargan’s Iran Freedom Movement, boycotted the
election. Twenty million Iranians voted with 98% in favor
an Islamic Republic.169 Seizing the opportunity, Khomeini
and his followers quickly formed a constitutional
committee and the Islamic Republic of Iran was born, with
Khomeini as its Supreme Leader.170
America’s Response to the Revolution
It was not until early October of 1979, that the
United States met with Iranian officials in New York to
attempt to normalize relations. The Iranians needed
American parts to keep their military functioning and
President Carter needed to save face after several foreign
policy debacles.171 While the Carter Administration
attempted to convince the Iranians that the United States
accepted their government and would not attempt an
overthrow, the Iranians demanded proof of good faith by
the extradition of pro-Shah Iranians in the United States
who they deemed to be criminals. 172 The United States
could not allow this as it would surely be a death sentence
to anyone who returned to Iran.173 Despite these areas of
impasse, the process of normalization proceeded fairly well
for some time with diplomatic relations between the nations
seeming possible.174
169
Id. 170 Id. at 153. 171 FARBER, supra note 24, at 117-19. 172
Id. at 120. 173
Id. 174 POLLACK, supra note 23, at 153.
103
While negotiations continued, the political situation
for the embassy in Iran was extremely difficult and it was
clear that any pro-Shah action by the United States could
have dangerous consequences.175 A United States Senate
resolution condemning the Iranian Revolution for human
rights violations had recently inflamed anti-American
vitriol, and the American Embassy in Tehran was already
the subject of constant graffiti and protest marches, with the
favorite slogan being “Marg bar Shah!” or “Death to the
Shah!”176 Under these strained circumstances, Ambassador
Sullivan warned President Carter that admitting the Shah to
the United States would eliminate any possibility of
normalizing relations with the new Iranian government and
“would confirm the worst suspicions of those Iranian
revolutionaries who assumed that the United States was
plotting to restore the Shah to power.”177 Department of
State Chargé Bruce Lainigren’s views were sought on this
matter, and he told the Department:
For us to give refuge to the Shah would trigger massive demonstrations against our embassy. With luck they may stop at that, without a physical assault…. But there could be no assurance of that, since Iran’s regular military and police forces remain largely demoralized and cannot yet be relied on to
175 FARBER, supra note 24, at 126. 176
Id. 177 LIMBERT, supra note 62, at 90.
104
apply the force that might be needed to prevent violence against us.178
Despite these warnings, President Carter was concerned
with his growing reputation for weakness in foreign affairs,
and the Shah was very ill with cancer at the time. Carter's
Chief of Staff, Hamilton Jordan, warned the President, “If
the Shah dies in Mexico can you imagine the field day
Kissinger will have with that? He’ll say that first you
caused the Shah’s downfall and now you’ve killed him.”179
The election-year political pressure on President Carter
won over the dire warnings from his diplomatic staff. On
October 22, 1979, Mohammed Reza Shah was granted
leave to enter the United States for treatment of his rapidly
progressing cancer.180 John Limbert, Former Deputy
Secretary of State to Iran, who would be among the fifty-
two hostages held in Iran for four-hundred and forty-four
days, had this to say about Carter’s decision to allow the
Shah into the United States: “In making this decision,
events suggest that officials of the Carter Administration
either did not understand the Iranian response or, having
understood it, decided to ignore it.”181
When news that the Shah had been admitted to the
United States hit the Iranian airwaves, anti-American
sentiment in Iran exploded with upwards of a million
gathering to protest at the embassy.182 Police could not
178
Id. 179 FARBER, supra note 24, at 126. 180 POLLACK, supra note 23, at 153. 181 LIMBERT, supra note 62, at 100. 182 FARBER, supra note 24, at 127.
105
keep the area cordoned off, and protestors pressed directly
up against the embassy walls.183 Khomeini, in addition to
demanding that the Shah be delivered to Iran through
official government channels, further inflamed the
protesters stating: “It is incumbent upon students in the
secondary schools and universities and theology schools to
expand their attacks against America and Israel. Thus,
America will be forced to return the criminal, deposed
Shah!”184 Newspapers in Tehran ran pictures of a healthy
looking Shah next to articles explaining that the Shah could
not have lymphatic cancer, “because everyone knew
Iranians did not even get that kind of illness.”185 The
perception in Iran was that the United States was preparing
to overturn the Iranian Revolution.186 With the crowds so
inflamed, the worst of the fears of Ambassador Sullivan
and Chargé Laingen’s fears came to pass.
America Taken Hostage
On November 7, 1979, members of the organization
Muslim Students Following the Line of the Imam
(hereinafter the “Muslim Students”) marched upon the
American Embassy with images of the Ayatollah pinned to
their chests.187 At a pre-arranged signal, the Iranian police
guarding the embassy stepped aside and the students used
bolt cutters on the chains holding the gates of the embassy
closed.188 The students entered the embassy and
183
Id. 184 POLLACK, supra note 23, at 153. 185 FARBER, supra note 24, at 127. 186
Id. 187 Id. at 130. 188
Id.
106
immediately re-secured the gate; executing a well-
rehearsed plan to take over the embassy.189 The students
indicated that they were merely participating in a peaceful
sit-in, leading the Americans within the embassy to lower
their guard until the students began seizing American
hostages.190 The Marines guarding the embassy were under
orders not to engage, unless their lives were in danger and
they were faced only with unarmed women marching
towards them.191 The Marines fell back to the second floor
of the embassy and secured themselves behind steel doors
with the remaining Americans.192 The Muslim Students
gathered outside of the steel doors and placed a gun to the
head of a hostage, threatening to kill him if the remaining
Americans did not surrender.193 The remaining Americans
contacted Bruce Laingen at the Iranian Foreign Ministry
who told them that they had no choice and instructed the
remaining Americans to surrender.194 Neither the hostage-
takers, who had brought only three days’ worth of food, nor
the Americans taken hostage had any concept that this
ordeal was going to last four hundred forty-four days.195
The Reaction in Iran
Upon securing the embassy and their sixty-three
American hostages, the Muslim Students released a
statement:
189
Id. 190
Id. at 132. 191
Id. at 132-33. 192
Id. at 133. 193
Id. at 134. 194
Id. 195
Id. at 139.
107
The Islamic Revolution of Iran represents a new achievement in the ongoing struggle between the people and the oppressive superpowers…. Iran’s revolution has undermined the political, economic, and strategic hegemony of America in the region…. We Muslim students, followers of Ayatollah Khomeini, have occupied the espionage embassy of America in protest against the ploys of the Imperialists and the Zionists. We announce our protest to the world; a protest against America for granting asylum and employing the criminal Shah…. for creating a malignant atmosphere of biased and monopolized propaganda, and for supporting and recruiting counterrevolutionary agents against the Islamic Republic of Iran…. And finally, for its undermining and destructive role in the face of the struggle of the peoples for freedom from the chains of imperialism.196
196
Id. at 136.
108
While the words of the Ayatollah may have placed the idea
for the hostage-taking into the minds of the students, it is
clear that the motivation of the hostage-takers was the
memory of the 1953 coup against Mossadegh.197 The
conversations with the hostage-takers were frequently laced
with references to Mossadegh and his fall at the hands of
the CIA. The students believed that the admittance of the
Shah to the United States was the beginning of another
attempt to overthrow the new Iranian government.198
During the crisis, one of the hostage-takers responded to a
challenge as to why they were taking over the embassy:
“To teach the American Government and the CIA a lesson,
so it will keep its hands off other countries, particularly
Iran.”199 One of the hostages, Colonel Charles Scott, said
of his conversations with his captors:
It was a situation where the truth didn’t matter. Perceptions were much more important. A large portion of Iranian people believed that the United States had the ability to pull strings and return the Shah to power…. when the Shah was admitted to the United States, we opened a Pandora’s box for the hard-line revolutionaries. They could say, ‘Look what America did in 1953! They’re getting ready to do it again!
197 POLLACK, supra note 23, at 154. 198
Id. 199
Id.
109
Another coup is in the wind! They’re going to return the Shah to power!’ ….It’s hard for many Americans to understand that the entire Iranian population felt wronged by the Shah, and by America’s support of the Shah.200
While the student’s political motivations seem simplistic in
many respects, Ayatollah Khomeini’s plans to use the
hostage crisis for political gain were much more complex
and far-reaching.
It does not appear that Khomeini directly
participated in the planning of the seizure of the American
Embassy; however, evidence does indicate that he was
aware of the plan ahead of time.201 The students had
approached one of Khomeini’s followers to ask for his
blessing on their planned activities, and the police presence
at the embassy was both reduced and overly cooperative.202
Regardless of his direct involvement, Khomeini seized
political advantage of the situation immediately. Prime
Minister Bazargan and Foreign Minister Ibrahim Yazdi,
both of whom were involved with attempts to normalize
relations with the United States, immediately called for the
return of hostages.203 In direct opposition, Khomeini made
his position clear stating in rhetoric that was to become all
200
Id. at 154-55. 201
Id. at 155-56. 202
FARBER, supra note 24, at 169. 203 Id. at 141.
110
too familiar: “The Great Satan is the United States of
America. It is making much commotion and fuss….today
underground plots are being hatched in these embassies,
mostly by the Great Satan America….They must sit in their
places and return the traitor [the Shah] soon.”204
Blocked during all their attempts to end the
takeover by Khomeini’s inner circle, and with reports
circulating about their negotiations with American NSC
Advisor Bzezinski, Iranian Prime Minister Bazargan and
Foreign Minister Yazdi quickly resigned. Khomeini
immediately interjected himself into the political fray, and
the Revolutionary Council took a firm grasp of the Iranian
government, eventually leading to conservative cleric Ali
Khamenei ascending to the presidency.205 The Muslim
Students were elated that their takeover had resulted in the
fall of the reformist leadership. They took their cue from
Khomeini and announced that the hostages would not be
released until the Shah was turned over to Iran.206
Khomeini had effectively used the national support of the
attack on the American Embassy to eliminate the moderate
elements of the Iranian government, and cement himself
and his council as the true rulers of Iran.
The Reaction of the Carter Administration
President Carter was at Camp David when he heard
about the takeover of the embassy, and he worked from the
assumption that the Iranians would quickly quell the
situation as they had done during a similar attack on the
204
Id. at 141-42. 205 LIMBERT, supra note 62, at 104-05. 206 FARBER, supra note 24, at 142.
111
American Embassy the prior February.207 The President
was in the middle of a primary challenge from Senator Ted
Kennedy, and his first thought was for the political capital
that could be gained if the President were seen as standing
tall amid the crisis.208 As it became clear that the situation
was considerably graver than originally anticipated,
President Carter found himself in the familiar situation of
indecision before a split cabinet, with Secretary Vance
urging for diplomacy and NSC Advisor Brzezinski
advising on a variety of military options.209 Fortunately for
the President, the military options available were quite
limited and the diplomatic route was initially the only
reasonable alternative.210 Secretary Vance’s plan was to
gather international support against this illegal and
egregious attack on the embassy. 211 Support was freely
and universally given as the Iranians were roundly
castigated in the international sphere and deluged with
pleas to release the hostages.212 NSC Advisor Brzezinski
also wanted to impose severe sanctions on Iran, but
Secretary Vance initially blocked this effort with the
exception of freezing the shipment of military spare parts
that had been previously purchased by the Shah.213 Aside
from applying international pressure, which Iran virtually
207
Id. at 140. 208 Id. 209 POLLACK, supra note 23, at 163. 210
Id. 211
Id. at 164. 212
Id. 213
Id.
112
ignored, the initial response of the Carter Administration
was to hope that the crisis would resolve itself naturally.214
As the hostage crisis grew to be a media event that
transcended politics, President Carter continued to be
frustrated that his administration could accomplish nothing
to assist the hostages.215 The United Nations Security
Council passed a resolution calling for the release of the
hostages216 and the International Court of Justice directed
Iran to free the hostages,217 yet Iran stood firm. The
Iranians made four demands for the return of the hostages:
1) the return of the Shah to Iran to stand trial; 2) the return
of the Shah’s assets to Iran; 3) an end to American
interference in Iran; and 4) an apology for past American
crimes against Iran.218 Carter refused immediately and
quickly prohibited American purchase of Iranian oil, cut off
all non-humanitarian trade with Iran, and froze all Iranian
assets, about twelve billion dollars, held in American
banks.219 President Carter tried to gain support for these
sanctions at the international level, but was foiled by a
Russian veto on the United Nations Security Council.220
Without a Security Council mandate, even close European
and Japanese allies would not join in the boycott.221 On
March 25, 1980, an internal evaluation of the Carter
Administration foreign policy found: “[O]ur policy is
214 FARBER, supra note 24, at 144. 215
Id. at 160. 216 POLLACK, supra note 23, at 164. 217
Id. 218
Id. 219
Id. 220
Id. at 165. 221
Id.
113
neither coherent nor constant; on a number of specific
issues, notably Iran and the Middle East, we are in fact
losing momentum, with potentially very destructive
consequences for our interests.”222 According to a national
poll, President Carter was seen as an ineffective leader in
handling the crisis. In a poll taken a year before the release
of the hostages, seventy-four percent of Americans agreed
that Carter’s policy should be judged a failure if the
hostages were not released within three months.223
The Carter Administration’s efforts at negotiation,
headed by Secretary Vance, remained at a standstill, in part
due to a frustration that remains central to failures of
Iranian-American negotiations today. The Iranians, who
understood that capitulation to the United States was
political suicide in Iran, insisted that the United States
make concessions up-front and allow the Iranians to
respond as they saw fit.224 The Americans, in turn, did not
trust the Iranians to follow through, and insisted that all
negotiated concessions were to be made simultaneously.225
By April 1980, President Carter finally grew impatient with
diplomatic methods and turned to NSC Advisor Brzezinski
to devise the military option.226
Operation Eagle Claw
The rescue plan, codenamed Operation Eagle Claw,
involved eight helicopters and an assault force of 118 Delta
222
Id. at 170. 223 FARBER, supra note 24, at 164. 224 POLLACK, supra note 23, at 166. 225
Id. 226 FARBER, supra note 24, at 171.
114
Force commandos who would fly from the aircraft carrier
the U.S.S. Nimitz to the Iranian desert where they would
refuel from C-130 fuel carrying planes.227 The commandos
would then be transported secretly by the CIA via truck to
assault the embassy compound and rescue the hostages.228
Simultaneously, the helicopters would land at a nearby
soccer stadium, where the commandos would bring the
hostages for extraction.229 The helicopters would then fly
the commandos and rescued hostages to a nearby airbase,
where they would all board C-141 cargo planes to fly out
under escort of American Navy fighters. The Delta Force
commandos had orders to shoot all armed opposition
“twice, right between the eyes.”230 The commandos did not
get the opportunity to shoot anyone; however, as a dust
storm rose up disabling three helicopters and causing a
fourth to collide with a C-130. Resulting in the death of
eight American soldiers: and the rescue mission was
aborted.231
The political damage to the failed military operation
was significant, as the most visible attempt by the Carter
Administration to take action was a failure. Internally, the
damage to the administration was significant as well.
Secretary Vance’s opposition to military intervention had
been so strong that President Carter held the final planning
meeting while Secretary Vance was on vacation, excluding
227
Id. at 173. 228 POLLACK, supra note 23, at 169. 229
Id. 230 FARBER, supra note 24 at 174. 231 POLLACK, supra note 23 at 169.
115
him from the process.232 Humiliated, Secretary Vance
tendered his resignation, effective after the attempted
hostage rescue, whether it was successful or not.233 The
Carter Administration briefly considered a second military
attempt, but ultimately decided against it concluding that
“there now was little way to press the Iranians to move
faster on the hostages than they wanted to.”234
The Response of the American Media and Citizens
The American media took a very aggressive
approach to the hostage crisis, led by ABC’s series of
special reports entitled America Held Hostage. America
Held Hostage highlighted coverage of the story with
passionate man on the street interviews expressing the
views of American citizens and a nightly display of the
number of days that the hostages were held captive.235 The
reaction of the American people was immediate and
universal, with longshoremen spontaneously refusing to
load cargo bound for Iran and the music industry
responding with a variety of songs from Pat Boone’s The
Hostage Prayer236 to Vince Vance and the Valiants’ Beach
Boys’ parody Bomb Iran.237
When Penne Laingren, the wife of Chargé Bruce
Laingren, told the Washington Post that she had tied a
yellow ribbon around the oak tree in her yard, America
232 FARBER, supra note 24 at 174. 233
Id. at 172. 234 Pollack, supra note 23 at 169. 235 FARBER, supra note 24 at 138. 236
Id. at 152. 237
Bubbling under 100, BILLBOARD MAG., Nov. 15, 1980, at 39.
116
responded by tying yellow ribbons around trees, poles, and
lamp posts and by prominently displaying yellow ribbon
bumper stickers and clothing pins.238 In January of 1980,
an enormous, yellow ribbon was wrapped around the Rose
Bowl stadium in Pasadena, California, during the Super
Bowl as a show of support for the hostages.239 Interviews
with the hostages’ frightened spouses and children became
the most sought after news stories, with the interviews
delving into the emotions of the story rather than reporting
on the political realities surrounding the hostage crisis.240
This led to an intense national personalization of the crisis
leading Americans to “see themselves as victims of
‘terrorists’ who irrationally hate ‘us’ rather than to
recognize that Iranians had attacked the U.S. embassy in
response to the American policy in Iran."241
The Crisis Resolves Itself
Ultimately, the Carter Administration could do
nothing to resolve the hostage crisis, and the administration
returned to its original plan of waiting until the political
situation in Tehran resolved itself.242 Circumstances did
eventually arise that eliminated the Ayatollah’s political
need for the hostages, including the Ayatollah’s final
consolidation of power in Iran and the death of the Shah in
Egypt on July 27, 1980.243 The Khomeini had other
concerns as well with the launch of what would be an
238 FARBER, supra note 24, at 152. 239
Id. 240
Id. at 154. 241
Id. 242 POLLACK, supra note 23, at 170. 243 FARBER, supra note 24, at 178.
117
eight-year war with Iraq on September 22, 1980.244
Further, Ronald Reagan had been campaigning for
President with very tough talk regarding Iran. As it
appeared that Reagan would soon be the new President,
there was political incentive for Iran to finally end the
hostage crisis before the tough talk became reality.245
The final negotiations resulted in little actually
being offered for the return of the hostages. Essentially, the
United States merely pledged to not interfere in Iran’s
internal affairs and to release a portion of frozen Iranian
assets.246 Further, a large portion of the Iranian assets were
held in escrow to cover American legal claims against Iran,
and Iran ended up recovering only about $2.3 billion of
their more than $10 billion in frozen assets.247 Of course,
the hostage crisis provided Khomeini with the political
leverage to cement his leadership of Iran, and the Iranian
public enjoyed the psychological gratification of striking
back at the Americans for what the Iranians considered to
be decades of injustice.248 The Iranian value on the
psychological aspects of the hostage crisis is evidenced by
the fact that the Iranians did not return the hostages until
just after Ronald Reagan was sworn in as President on
January 21, 1981.249 This left President Carter, who had
shown such disrespect to Iran and the Ayatollah and had
given shelter to the Shah, unable to claim that he had freed
the hostages. The psychological effect on the American
244
Id. 245 POLLACK, supra note 23, at 171. 246
Id. at 172. 247
Id. 248
Id. 249
Id.
118
psyche was severe as well. The average American was
unaware of the political realities surrounding the hostage
crisis and merely saw this as a random attack upon America
by a new, frightening enemy.250
V. After the Revolution: Iran and the United States
With the United States providing aid to Iraq during
the Iran-Iraq war,251 the Iran-Contra scandal,252 and Iran’s
policy of exporting the Islamic Revolution through the
support of radical Islamic terrorist organizations,253
relations between the United States and Iran continued to
flounder over the next two decades. However, an attempt
was made to normalize relations between the Khatami
regime and the Clinton Administration in the late 1990s.254
This effort culminated with Secretary of State Madeleine
Albright's public acknowledgment and apology for the role
of the United States in the overthrow of Prime Minister
Mossadegh.255 Clinton adopted the Iranian method of
unilaterally taking steps to ease relations, including
250
Id. 251
See generally Michael Dobbs, U.S. Had Key Role in Iraq Buildup;
Trade in Chemical Arms Allowed Despite Their Use on Iranians,
Kurds, WASH. POST, Dec. 30, 2002, at A01. 252 See generally S. REP. NO. 100-216 (1987); THE NATIONAL SECURITY
ARCHIVE, THE CHRONOLOGY: THE DOCUMENTED DAY-BY-DAY
ACCOUNT OF THE SECRET MILITARY ASSISTANCE TO IRAN AND THE
CONTRAS (1987); THEODORE DRAPER, A VERY THIN LINE: THE IRAN-CONTRA AFFAIRS (1991). 253
See generally O’BALANCE, supra note 3; TAHERI, supra note 3. 254 POLLACK, supra note 23, at 320. 255 Id. at 338; See generally Madeleine K. Albright, U.S. Sec’y of State, American-Iranian Relations, Remarks before the American-Iranian Council (Mar. 17, 2000), available at http://www.fas.org/new/iran/2000/000317.htm.
119
liberalizing visa procedures, promoting cultural exchanges,
putting the Iraqi Mujahedin (MEK) on the American
terrorist list, allowing the sale of food and medicine to Iran,
allowing shipment of spare parts for Boeing aircrafts, and
lifting sanctions on Iranian carpets and foodstuffs.256
In response, Iran made some reciprocal gestures,
including ceasing the smuggling of Iraqi oil. In an
interview with CNN’s Christiane Amanpour, President
Khatami acknowledged the 1979 hostage crisis by saying,
“I do know that the feelings of the great American people
have been hurt, and of course, I regret it.”257 Of course,
this half-apology came amongst a recitation of a long list of
grievances against America, going back to the overthrow of
the Mossadegh regime.258 Unfortunately, the conservative
Islamic population responded harshly to Khatami’s reform
government, especially to his overtures to the United
States.259 Eventually, Khatami gave into the pressure from
Iranian hard-liners and backed away from the conciliatory
measures as the Clinton Administration left power.260
Despite this initial failure, the George W. Bush
Administration continued the policy of attempted
reconciliation with Iran. Initially, the attack upon the World
Trade Center on September 11, 2001, ironically, brought
the United States and Iran closer to the table.261 The
Iranians were supportive of American efforts after 9/11 and
256 POLLACK, supra note 23, at 337-38. 257
Id. at 315. 258
Id. 259
Id. at 325-37. 260
Id. at 334-37. 261
Id. at 346.
120
assisted in Operation Enduring Freedom by allowing
American transport aircraft to use airfields in eastern Iran,
by performing search-and-rescue missions for American
pilots who ejected in Iranian airspace, and by allowing an
American freighter carrying humanitarian aid to dock at an
Iranian port.262 This cooperation eventually developed into
talks with the Iranians about issues outside of the conflict
with Afghanistan. Consequently, the Bush Administration
had unwittingly achieved the substantive, direct contact
with Iran that the Clinton Administration had been striving
for.263
Unfortunately, this accomplishment was short-lived
as a shipment of arms from Iran to the Palestinian
Authority was intercepted by Israel, which demonstrated
that Iran was still actively supporting terrorist
activityplacing it in direct confrontation with the War on
Terror.264 Three weeks later, President George W. Bush
named Iran, Iraq, and North Korea as an “Axis of Evil” in
his 2002 State of the Union address.265 This placed Iran
clearly on the side of the enemy as the United Stated
planned and executed its attack on Iraq in 2003, and the
animosity of the 1980s and 1990s returned in full force.
VI. The Past to the Present: Will There be War?
Reflecting on six decades of justified anger and
antagonism between the United States and Iran, it is clear
that both nations bear responsibility for the animosity that
262
Id. at 349-50. 263
Id. at 350. 264
Id. at 350-51. 265
Id. at 352.
121
defines the volatile relationship between the two nations.
The primary issue that is bringing the current conflict
between the United States and Iran to a head is Iran’s
continued pursuit of nuclear weapons.266 Iran has
consistently and correctly stated that, as a signatory to the
NPT, they have an inalienable right to “develop research,
production and use of nuclear energy for peaceful purposes
without discrimination.”267 Iran has maintained that their
nuclear program, which was initiated by the United States
while the Shah was in power, is for strictly peaceful
purposes and legal under the NPT.268 If the Iranian nuclear
program were for peaceful purposes, the Iranians would be
correct and the United States would be in violation of its
own responsibilities under the NPT to assist Iran with the
continuing development of its nuclear power facilities.269
However, Iran continues to disregard its NPT obligations
through its denials of IAEA inspectors, leading to the
finding by the IAEA that Iran’s nuclear program cannot be
considered peaceful in nature.270
266
See Chris McGreal, Obama warns Iran as he seeks to reassure
Israel ahead of crucial talks, THE GUARDIAN (Mar. 02, 2012), http://www.guardian.co.uk/world/2012/mar/02/obama-warns-iran-reassures-israel. 267 NPT, supra note 5, at art. IV(1). 268
See Ali Akbar, Iran: We Do Not Want Nuclear Weapons, WASH. POST (Apr. 12, 2012), available at http://www.washingtonpost.com/opinions/iran-we-do-not-want-nuclear weapons/2012/04/12/gIQAjMNnDT_story.html. 269 NPT, supra note 5, at art. IV(2). 270
See NPT, supra note 5, at art. III.; IAEA Report GOV/2012/9 at 10-11.
122
The Calculations of War
The continued failure of Iran to comply with the
IAEA, which forms the basis for the U.N. Security Council
resolutions and resulting sanctions against Iran, also forms
the justification for a United States and Israel military
strike against Iran’s nuclear facilities.271 The need for
action is immediate as the Iranian nuclear program is
quickly approaching the point where military action will
not be able to disrupt the production of nuclear weapons.272
Further, experts indicate that Israel cannot eliminate the
Iranian nuclear program alone and would require American
involvement.273 The United States must also consider the
related issue of Iran’s continued support of terrorism and
aggression against Israel.274 The ability of Iran to supply
271
S.C. Res. 1696, supra note 4; U.N. Security Council, supra note 6; Hargreaves, supra note 7; MacInnis, supra note 8. 272 Bradley Klapper With Time Short, U.S. Meets Iran for Nuclear Talks, ASSOCIATED PRESS (Apr. 13, 2012) available at
http://www.thereporteronline.com/article/20120413/NEWS04/120419822/with-time-short-us-meets-iran-for-nuclear-talks (Israeli military officials believe they’d have to strike by summer to be effective). 273 Jonathan Marcus, Analysis: How Israel Might Strike at Iran, BBC NEWS (Feb 22, 2012), available at
Israel does . (17115643-east-middle-http://www.bbc.co.uk/news/worldnot have the mass of forces and will not be given the operational
] required to destroy Iran's nuclear complex . . . . If freedom [by Iranyou bury enough stuff deep enough, enough of it will survive. Any Israeli attack can only damage and possibly not even slow the Iranian effort). 274
See Gregory S. Gordon, From Incitement to Indictment?
Prosecuting Iran’s President for Advocating Israel’s Destruction and
Piecing Together Indictment Law’s Emerging Analytical Framework, 98 J. CRIM. L. & CRIMINOLOGY 853, 854(2008); See also Daniel Byman, Iran, Terrorism, and Weapons of Mass Destruction, 31 STUD. IN CONFLICT & TERRORISM 169, 171 (2008) ([i]n addition to its support
123
nuclear weapons to terrorists would represent a direct threat
to the national security of the United States.275 Considering
the national security concerns implicated and the available
justifications for war between the United States and Iran,
the prospect of armed conflict between the United States
and Iran appears to be imminent.
From a theoretical perspective, an evaluation of the
factors that lead to war indicate that the likelihood of
military conflict between the United States and Iran is quite
high. In his book Solving the War Puzzle, John Norton
Moore, legal scholar and the first Chairman of the United
States Institute for Peace, examined the empirical value of a
variety of theories exploring the causes of war. For
example, there is a significant correlation between the
occurrence of war and territorial contiguity.276 While this
initially may appear to lessen the likelihood of war between
Iran and the United States, the significant military interests
that the United States has within Iraq and Afghanistan
reduces the applicability of this theory. Another
statistically strong correlation indicates that nations who
share economically significant, bilateral trade are much less
likely to go to war.277 With the significant sanctions in
place and the absence of any real trade between the United
for Hizbullah, Iran has also supported a wide array of other groups that have attacked Israel). 275 Travis Sharp and Erica Poff, Understanding and Preventing
Nuclear Terrorism, The Center for Arms Control and Non-Proliferation, Dec. 3, 2008, available at
http://armscontrolcenter.org/policy/nuclearterrorism/articles/111408_understanding_preventing_nuclear_terrorism/. 276 JOHN NORTON MOORE, SOLVING THE WAR PUZZLE: BEYOND
THE DEMOCRATIC PEACE 31 (2004). 277
Id.
124
States and Iran, this correlation is, again, not indicative of
peace. The theory of the democratic peace, based on the
statistical correlation that there have been virtually no
significant wars between two functionally democratic
nations,278 also does not apply as Iran is an autocratic
theocracy and the United States is one of the more hawkish
democratic nations with a history of conflicts with nations
like Iran.279 In short, none of these modern theories of the
origins of war indicate that a peaceful resolution is likely
given the growing tension and historical animosity between
the United States and Iran.
Attempting to reach beyond these generalized
theories on the origins of war, John Norton Moore
developed his “Incentive Theory,” analyzing other relevant
theories on war to determine the incentives and
disincentives that influence nations, leaders, and regime
elites in the decision of whether to go to war.280 Under
Incentive Theory, a thorough evaluation of these incentives
and disincentives would result in the calculation of the total
level of "deterrence" that would prevent or encourage a
nation to go to war.281 To further develop Incentive Theory
into a tool that could predict the likelihood of war, John
Norton Moore encouraged Anthony Stenger, a student in
278
Id. at 1. 279 This assertion is based upon the fact that the United States has been in at least nine major armed-conflicts since becoming a world power after World War II: The Korean War; The Vietnam War; the Central American War, The Gulf War; the Kosovo War; the Afghanistan War; the Iraq War; and the 2011 Libyan Intervention. See
MOORE, supra note 276, at 157-58. 280
MOORE, supra note 276, at 59-68. 281
Id.
125
Professor Moore’s War and Peace Seminar, to develop a
mathematical algorithm to determine the level of deterrence
in a given scenario. This work was further refined by
another one of Professor Moore’s students, Geoffrey D.
Fasel, with the resulting algorithm described in Annex I
below. The final algorithm created a range of results from -
5.5 to +10 to describe the level of deterrence to war that
existed in a given situation, with a lower result indicating a
likelihood of war and a higher rating indicating a likelihood
of peace.282
When applied empirically to previously fought
wars, a level of accuracy was revealed that showed “no
situation in which a regime elite/decision-making body
subjectively faced substantial disincentives to aggressive
military action and yet attacked.”283 Applying these
calculations to a situation involving Israel launching an
attack on Iran with direct support from the United States,
the calculations result in a deterrence rating of -1.47.284 To
evaluate this number within a frame reference: the Korean
War had a deterrence rating of -3.94; the Vietnam War had
a deterrence rating of -0.25; the Iran-Iraq War had a
deterrence rating of -1.53; and the Gulf War had a
deterrence rating of -3.38. With a history of intense
animosity between the nations, a deterrence rating of -1.47,
and Iran's development of nuclear weapons providing
justification for war, it appears very likely that an armed
conflict is imminent between the United States and Iran.
282
MOORE, supra note 276, at 34. 283
Id. at 35 (citing Geoffrey D. Fasel, Objectivizing Deterrence (2002) (paper on file with John Norton Moore). 284
See Annex I infra; see MOORE, supra note 276.
126
VII. Moving Forward to Avoid War
Despite the empirical evidence indicating a
probability of war and the historical inability of Iran and
the United States to negotiate in a productive manner, there
is still hope to avoid further conflict and divisiveness
between these two nations. In the face of the threatened
military action, renewed negotiations have recently
commenced between the five permanent members of the
United Nations Security Council plus Germany (hereinafter
the P5+1) and Iran.285 There is some indication that these
talks are supported by Iranian Supreme Leader Ayatollah
Ali Khamenei who is taking a lead role in the matter due to
an apparent rift between himself and Iranian President
Mahmoud Ahmadinejad.286 However, given the historic
failure of Iran to compromise in any fashion and their
reluctance to show any weakness in the face of pressure by
the United States, it is important that negotiators look to the
past for lessons learned as they approach these critical
negotiations with Iran.
Iranian Leadership Cannot Look Weak or Cooperative
With the United States.
Since the coup of Mohamed Mossadegh, anti-
Americanism has been a core pillar of the Iranian view of
the world. Even the Shah would attempt to portray his
political enemies as American sympathizers in order to gain
285 AFP, Iran Urges West to Help End Nuclear Dispute, Yahoo! News UK & IR., (May 4, 2012), http://uk.news.yahoo.com/iran-urges-west-help-end-nuclear-dispute-132715600.html. 286 Roshanak Taghavi, Ayatollah Khamenei Gives Iran Nuclear
Talks Unprecedented Legitimacy, THE CHRISTIAN SCIENCE MONITOR, May 4, 2012.
127
favor with the masses, and it could be argued that it was
President Carter’s New Year’s Eve toast praising the Shah
as a close friend that sparked the Iranian Revolution against
him.287 Likewise, it was the anti-American fervor of the
hostage crisis that provided the political climate that
allowed the Ayatollah to mold his country into a totalitarian
Islamic Republic. In short, Iranian leadership simply
cannot appear to be capitulating to the United States or they
will likely suffer a similar fate to the Shah. With this in
mind, any negotiated solution must seem a victory for Iran
against the United States, and prestigious to the Iranian
people, otherwise the Iranian leadership cannot acquiesce.
The Elimination of All Sanctions Should be on the Table
Given that it is the threat of imminent military
action that has finally brought Iran back to the negotiating
table rather than decades of sanctions, critics of the
sanctions regimes appear to have gained legitimacy.
Opinions regarding ineffectiveness of the sanctions on Iran
have included official government findings, such as the
2007 report of the GAO,288 and the advocacy of
nongovernmental organizations, such as Center on Peace
through its Director, Liberty Ivan Eland.289 At the same
time, the omnipresent sanctions have provided the anti-
American factions within Iran with ample ammunition to
287
FARBER, supra note 24, at 139. 288 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-58, IRAN
SANCTIONS, IRAN SANACTIONS, IMPACT IN FURTHERING U.S. OBJECTIVES IS UNCLEAR AND SHOULD BE REVIEWED (Dec. 2007). 289 Ivan Eland, Iran Sanctions Won’t Work, WASH. TIMES, Jan. 17, 2012, available at http://www,washingtontimes.com/news/2012/jan/17/iran-sanctions/wont-work/.
128
continually demonize the West. Further, as illustrated
above, the total lack of bilateral trade is a highly
destabilizing factor in the equation of whether or not an
armed conflict is likely to erupt between Iran and the
United States.290 With the only available outcomes in this
conflict being either historically unsuccessful diplomacy or
what will likely be a protracted war, all diplomatic options
must be on the table to entice the Iranian government into
abandoning their nuclear weapons program. The
elimination of all sanctions may be exactly the sort of
capitulation by the United States that will allow the Iranian
leadership to claim a victory while coming into compliance
with their obligations under the NPT.
Western Nations Must be Flexible in the Nature of
Negotiations
A lesson learned by the failed efforts of the Carter
Administration during the hostage crisis is that Iranians and
Americans do not share the same understanding as to the
rules by which negotiations should proceed. The most
successful approach to Iran was President Clinton’s
administration unilaterally taking actions in hopes that the
Iranians would reciprocate, which ultimately set up Iranian
cooperation during Operation Enduring Freedom.291 As the
P5+1 approach the next round of diplomacy with Iran, they
should consider unilaterally reducing or eliminating
sanctions upon Iran as a show of good faith. The sanctions
can always be reinstated, and it would allow the Iranian
290
MOORE, supra note 276. 291
POLLACK, supra note 23, at 346.
129
leadership to claim a modest victory so that they may give
ground on more important issues.
The negotiations will likely not be passionless
legalistic affairs. Iranians are prone to flamboyant gestures
and political theater.292 It will be wise for the P5+1 to
allow for this and ignore the bold statements and grand
gestures of their Iranian counterparts, instead respecting
their cultural differences with the Iranians and allowing the
political theater to play its course. While American
negotiators often look at a negotiation process as a series of
transactions with the integrity of the process of central
importance, Iranians see the negotiation process as only a
means to an end, or even an obstacle, to achieving the
ultimate result.293 Thus, it will be important for the P5+1
not to let the process dictate the result, but instead to work
outside of the box towards the ultimate goal of termination
of Iran’s nuclear weapons program.
Iran’s Future as a Nuclear Nation
Another concession that should be simple for the
P5+1 to make is recognition of Iran’s right to have a
peaceful nuclear energy program. Under the NPT, Iran has
an absolute right to nuclear energy and all of the permanent
members of the National Security Council, as nuclear
weapon nations, have a duty to assist Iran in achieving
peaceful nuclear energy.294 Considering the Iranian
penchant for political theater, it is likely that Iranian
negotiators may demand apologies for American violations
292
See LIMBERT, supra note 62, at 169. 293
Id. at 156. 294 NPT at art. IV(1).
130
of the NPT through efforts to restrict Iran's inalienable right
to nuclear energy, while maintaining that their program has
always been only for peaceful purposes despite all evidence
to the contrary. To the P5+1 this may seem an affront to
the negotiation process and an intransigent position that
forestalls any compromise or resolution. However, to the
Iranians this would likely be merely a face-saving gesture
that shows they are standing up to the West while providing
a possible area of resolution.
Iran is correct as they assert their inalienable right
to a peaceful nuclear energy program, and any moves by
the P5+1 that limits such a right would likely be seen as an
assault on Iranian sovereignty and a sign of Western
imperialism that justifies their aggressive rhetoric. Even if
military action were taken to eliminate Iran’s suspected
nuclear weapons development facilities, Iran would still
have a right to a peaceful nuclear energy program. The
reality is that the P5+1 must find a creative solution that
will allow Iran to pursue its peaceful nuclear energy
program while assuring Israel and the United States that
Iran is no longer a threat to develop nuclear weapons.
An Aggressively Creative Solution
One extreme and unlikely example of a creative
solution that may account for Iran’s unique negotiating
ploys while achieving the goal of eliminating Iran’s nuclear
weapons program could involve the P5+1 offering
reparations to Iran for prior sanctions, with the reparations
creating true international oversight of the Iranian nuclear
power program. The reparations would come in the form
of the P5+1 investing resources to make Iran the central
131
sponsor of the IAEA in the Middle East, establishing Iran
as a leader in peaceful nuclear energy technology. For
Iran’s part, it would cede to the IAEA full authority and
control over its nuclear sites at Arak, Qom, Natanz,
Isfahan, Bushehr, and Parchin,295 as well as any future or
unknown nuclear sites, with the P5+1 and the United
Nations fully funding IAEA activities in Iran. The IAEA
would work with Iranians to facilitate the mining,
processing, and enrichment of nuclear materials by
providing modern means and knowledge, while making
certain that no enrichment rises to the level of nuclear
weapons grade. With the IAEA deeply embedded in the
full Iranian nuclear system they would establish policies
and safety measures that would allow them to shut down
any part of the Iranian nuclear fuel cycle that they believe
is evolving towards the production of nuclear weapons.
Further, such an investment would require significant UN
presence to provide security for the international effort.
With such measures in place, the world could be
certain that the Iranian nuclear energy program is peaceful.
At the same time, Iran would gain the prestige and
significant economic advantages of becoming the nuclear
energy center in the Middle East and the knowledge that
the United Nations would act to protect its interests in the
event of aggression from any of Iran’s traditional
adversaries. Of course, the United Nations would also have
to act should Iran attempt to override the IAEA protections
in place to assure the peaceful nature of the program. With
295 See generally Iran’s Key Nuclear Sites, BBC NEWS (Jan. 9, 2012), http://www.bbc.co.uk/news/world-middle-east-11927720.
132
Iran certain that it would be defended by the United
Nations, nuclear weapons in the hands of Israel, Pakistan,
and India would pose a much less significant threat,
reducing the incentive for Iran to develop nuclear weapons.
With trade opening between Iran and Western nations and
the natural academic and diplomatic interactions that the
IAEA’s presence would require, Iran would naturally
emerge from its extreme isolationism. This could have
many positive indirect results as well, including the
liberalization of Iranian society and a significant reduction
or elimination of Iranian sponsorship of terrorism.
Such a solution, while extreme in its creativity and
virtually impossible to bring about, would satisfy Western
powers once and for all in that nuclear weapons
development by Iran is no longer a threat. This would still
play into Iran’s recent rhetoric that they do not want
nuclear weapons and Ayatollah Khamenei’s recent “fatwa”
on nuclear weapons.296 This is the sort of creativity that
may be required to avoid the otherwise likely alternative of
military intervention.
Conclusion
While a diplomatic solution is a possibility, it is
clear that the history of conflict and acrimony between the
United States and Iran makes war in the Middle East a
distinct possibility, if not a probability. Each nation has
legitimate and deep-rooted animosity towards the other,
296 See Akbar, supra note 268, at 1; Gareth Porter, Report on Iran’s
Nuclear Fatwa Distorts Its History, N.Y. TIMES, (Apr. 12, 2012), available at http://www.ipsnews.net/2012/04/report-on-irans-nuclear-fatwa-distorts-its-history/.
133
with the hostage crisis and support of terror placing Iran in
President George W. Bush’s “Axis of Evil,” and the 1953
coup of Mohammed Mossadegh and subsequent support of
the Shah’s brutal regime lending credence to Iranian
rhetoric that the United States is the “Great Satan.”
Aggravating the already hostile relationship between the
two nations is the imminence of Iran's development of
nuclear weapons in defiance of decades of sanctions and
their duties under the NPT. With Iran’s support of terror
and inflammatory rhetoric regarding its desire for the
destruction of Israel, the United States and Israel have valid
cause to consider military intervention. Various theories of
international relations, including the mathematical
calculations of Incentive Theory, indicate that, barring
some unforeseen diplomatic intervention, war is coming
between these nations.
Diplomatic intervention, while historically
unsuccessful, is the last remaining hope to avoid United
States participation in a war in the Middle East. As such,
the P5+1 nations must look to the historical grievances
between these nations as well as the unique diplomatic
challenges that exist when negotiating with Iran, and find a
creative solution to prevent the impending conflict. Iran
will not be castigated into submission as their leaders
cannot be seen to capitulate to the United States and its
allies, nor will continuing the sanctions against Iran have
any positive effect on this last attempt at diplomacy.
Instead, the P5+1 must step away from traditional solutions
and allow Iran to appear stronger in their surrender of their
nuclear weapons program than they would appear should
they actually obtain nuclear weapons. Only with a solution
134
in which Iran can claim some sort of victory over the West
can the Iranian leadership capitulate to the demands of the
United States. Without such a creative solution, war
between the United States and Iran appears inevitable.
135
Annex I: Illustrative Methodology for Measuring
Deterrence1
These calculations represent the possibility of an attack by Israel and the United States upon Iran with a victory being defined as the destruction of Iran's nuclear weapons program.
Table I: Local Deterrence Rating
Element A= Israel D= Iran
Initial Value Selected (Choose One)
Subjectivity Multiplier (Choose One)
Total Value Assigned (IVxM)
1. D’s ability to Prevent Blitzkrieg Victory by A.
a. D unable to prevent blitzkrieg victory by A: +0 b. D possibly able to prevent blitzkrieg victory by A: +1 c. D most likely able to prevent blitzkrieg victory by A: +2
a. A disregards or does not realize D’s capability: M=0 b. A realizes and appreciates D’s capability: M=1
IV=0 M=1
Total=0
1 See Moore, Solving the War Puzzle, 147-151. (This is an
adaptation by Geoffrey D. Fasel of an original methodology by Anthony Stenger. The adaptation and the original were prepared as seminar papers in collaboration with [John Norton Moore] in his War & Peace and the Rule of Law Seminars).
136
2. D’s Ability to prevent an Intermediate Term Victory by A.
a. D unable to prevent an intermediate term victory by A: +0 b. D quite possibly able to prevent an intermediate term victory by A: +.5 c. D most likely able to prevent an intermediate term victory by A: +1.5 d. D able to prevent intermediate term victory and respond with serious counterattack: +3
a. A disregards or does not realize D’s capability: M=0 b. A realizes and appreciates D’s capability: M=1
IV=.5 M=1
Total=.5
3. Economic Effect to A of Attacking D: Taking into account Level of Trade with D that A believes would be lost, as well as the overall
a. Substantial: +.5 b. Moderate: +.25 c. Negligible: +0
a. A’s Regime Elites can insulate themselves from trade loss (at the expense of the population): M=.25 b. A’s
IV=0 M=1
Total=0
137
size of A’s Domestic and International Economy.
Regime Elites are unable to externalize these costs: M=1
4. Domestic Political Costs to A’s Regime elites of initiating War with D.
a. Substantial: +.5 b. Moderate: +.25 c. Negligible: +0
a. A’s Regime Elites are insulated from/ do not care about domestic political costs: M=.25 b. A’s Regime Elites are sensitive to domestic political costs: M=1
IV=0 M=1
Total=0
Total Local Deterrence Rating: (Sum total values assigned for l-4 above).
.5
138
Table I(A): Extended Deterrence Rating
Table I(A)(1): Blitzkrieg Capabilities of D and Her
Allies
Element A= Israel D= Iran
Initial Value Selected (Choose One)
Subjectivity Multiplier (Choose One)
Total Value Assigned (IVxM)
1. D’s and D’s Allies ability to Prevent Blitzkrieg Victory by A.
a. D and D’s allies unable to prevent blitzkrieg victory by A: +0 b. D and D’s allies possibly able to prevent blitzkrieg victory by A: +1 c. D and D’s allies most likely able to prevent blitzkrieg victory by A: +1.75 d. D or D’s allies are not only able to prevent blitzkrieg victory, but D or D’s allies have the
a. A disregards or does not realize D’s capability: M=0 b. A partially fails to realizes or discards D’s capability: M=.75 c. A realizes and appreciates D’s capability: M=1
IV=0 M=1
Total=0
Total including
sub-tables:
0
139
capability of a massive military response: +2.5
Communication of Intent Multiplier
Choose all that apply and add vertically. The sum in the box at the bottom right is the Communication Intent Multiplier.
Applied? Multiplier
a. Unilateral Statement Directed to A, or Known by A, that Ally will Assist D in the Event of an Attack by A.
No .75
b. Formal Treaty Pledging Assistance of D in the Event of an Attack by A.
No .75
c. Membership in an International Organization, the Charter of Which Calls Members to Assist D in the Event of an Attack by A (i.e. NATO).
No .20
d. Ambiguous Unilateral Statement Regarding Consequences if A Attacks D.
No .20
e. No Communication, Either Positive or Negative on the Issue, Despite the Presence of Strong Economic Ties Between Ally and D.
Yes .10
f. Ally Will Not Come to the Assistance of D.
No 0
140
TOTAL EXTENDED MILITARY DETERENCE RATE
.10
Credibility Multiplier
Past Behavior of a Nation: Choose all that apply, add vertically, and apply the sum in the bottom right (marked with an arrow) is the Credibility Multiplier.
Applied? Effect on Multiplier
a. General Behavior of Upholding Commitments.
No +.4
b. General Pattern of Failing to Uphold Commitments.
No -.4
c. General Pattern of Upholding Commitments Communicated in the Same Manner as the Commitment in the Scenario at Hand.
No +.1
d. General Pattern of Failing to Uphold Commitments Communicated in the Same Manner as the Commitment in the Scenario at Hand.
No -.1
e. Pattern of Upholding Commitments with Respect to Nation D.
No +.3
f. Pattern of Failing to Uphold Commitments with Respect to Nation D.
No -.3
g. Upholding Commitment Would be in Compliance with Generally Recognized Principles of International Law.
No +.1
h. Upholding Commitment Would Not be in Compliance with
No -.1
141
Generally Recognized Principles of International Law.
i. Commitment Communicated in Manner Making it Known to Other Nations.
No +.1
CREDIBILITY MULTIPLIER (add all applicable, thru i.).
0
Table (I)(A)(2): Immediate-Term Ability of D and her
Allies
Element A= Israel D= Iran
Initial Value Selected (Choose One)
Subjectivity Multiplier (Choose One)
Total Value Assigned (IVxM)
2. D’s Ability to prevent an Intermediate Term Victory by A.
a. D and D’s Allies unable to prevent intermediate term victory by A: +0 b. D and D’s Allies possibly able to prevent intermediate term victory by A: +1 c. D and D’s Allies most likely able to prevent intermediate term victory by A:
a. A disregards or does not realize D’s capability: M=0 b. A partially fails to realizes or discards D’s capability: M=.75 c. A realizes and appreciates D’s capability: M=1
IV=1 M=1
Total=1
Total including
sub-tables:
1.1
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+1.75 d. D or D’s allies are not only able to prevent intermediate term victory, but D or D’s allies have the capability of a massive military response: +2.5
Communication of Intent Multiplier
Choose all that apply and add vertically. The sum in the box at the bottom right is the Communication Intent Multiplier.
Applied? Multiplier
a. Unilateral Statement Directed to A, or Known by A, that Ally will Assist D in the Event of an Attack by A.
No .75
b. Formal Treaty Pledging Assistance of D in the Event of an Attack by A.
No .75
c. Membership in an International Organization, the Charter of Which Calls Members to Assist D in the Event of an Attack by A (i.e. NATO).
No .20
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d. Ambiguous Unilateral Statement Regarding Consequences if A Attacks D.
No .20
e. No Communication, Either Positive or Negative on the Issue, Despite the Presence of Strong Economic Ties Between Ally and D.
Yes .10
f. Ally Will Not Come to the Assistance of D.
No 0
TOTAL EXTENDED MILITARY DETERENCE RATE
.10
Credibility Multiplier
Past Behavior of a Nation: Choose all that apply, add vertically, and apply the sum in the bottom right (marked with an arrow) is the Credibility Multiplier.
Applied? Effect on Multiplier
a. General Behavior of Upholding Commitments.
No +.4
b. General Pattern of Failing to Uphold Commitments.
No -.4
c. General Pattern of Upholding Commitments Communicated in the Same Manner as the Commitment in the Scenario at Hand.
No +.1
d. General Pattern of Failing to Uphold Commitments Communicated in the Same Manner as the Commitment in the Scenario at Hand.
No -.1
e. Pattern of Upholding No +.3
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Commitments with Respect to Nation D.
f. Pattern of Failing to Uphold Commitments with Respect to Nation D.
No -.3
g. Upholding Commitment Would be in Compliance with Generally Recognized Principles of International Law.
No +.1
h. Upholding Commitment Would Not be in Compliance with Generally Recognized Principles of International Law.
No -.1
i. Commitment Communicated in Manner Making it Known to Other Nations.
No +.1
CREDIBILITY MULTIPLIER (add all applicable, thru i.).
0
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Table I(A)(3): Economic Cost to A’s Regime Elite
Element A= Israel D= Iran
Initial Value Selected (Choose One)
Subjectivity Multiplier (Choose One)
Total Value Assigned (IVxM)
3. Level of Trade with D and D’s Allies that A believes will be lost relative to A’s GDP, as well as the cost of waging war against D and D’s allies to A’s GDP
a. Substantial: +.5 b. Moderate: +.25 c. Negligible: +0
a. A’s Regime Elites can insulate themselves from trade loss (at the expense of the population): M=.25 b. A’s Regime Elites are unable to externalize these costs: M=1
IV=.5 M=1
Total=.5
Total including
sub-tables:
.55
Communication of Intent Multiplier
Choose all that apply and add vertically. The sum in the box at the bottom right is the Communication Intent Multiplier.
Applied? Multiplier
a. Unilateral Statement Directed to A, or Known by A, that Ally will Assist D in the Event of an Attack by A.
No .75
b. Formal Treaty Pledging Assistance of D in the Event of an
No .75
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Attack by A.
c. Membership in an International Organization, the Charter of Which Calls Members to Assist D in the Event of an Attack by A (i.e. NATO).
No .20
d. Ambiguous Unilateral Statement Regarding Consequences if A Attacks D.
No .20
e. No Communication, Either Positive or Negative on the Issue, Despite the Presence of Strong Economic Ties Between Ally and D.
Yes .10
f. Ally Will Not Come to the Assistance of D.
No 0
TOTAL EXTENDED MILITARY DETERENCE RATE
.10
Credibility Multiplier
Past Behavior of a Nation: Choose all that apply, add vertically, and apply the sum in the bottom right (marked with an arrow) is the Credibility Multiplier.
Applied? Effect on Multiplier
a. General Behavior of Upholding Commitments.
No +.4
b. General Pattern of Failing to Uphold Commitments.
No -.4
c. General Pattern of Upholding Commitments Communicated in the Same Manner as the Commitment in the Scenario at Hand.
No +.1
d. General Pattern of Failing to No -.1
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Uphold Commitments Communicated in the Same Manner as the Commitment in the Scenario at Hand.
e. Pattern of Upholding Commitments with Respect to Nation D.
No +.3
f. Pattern of Failing to Uphold Commitments with Respect to Nation D.
No -.3
g. Upholding Commitment Would be in Compliance with Generally Recognized Principles of International Law.
No +.1
h. Upholding Commitment Would Not be in Compliance with Generally Recognized Principles of International Law.
No -.1
i. Commitment Communicated in Manner Making it Known to Other Nations.
No +.1
CREDIBILITY MULTIPLIER (add all applicable, thru i.).
0
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Table I(A)(4): Political Cost (to A’s Regime Elite)
Incentive Type
Initial Assigned Value
Gain or Loss
Multiplier (should be
identical for all incentive
types)
Total Value
Assigned (IVxM)
4. Domestic Political Costs to A’s Regime Elites of initiating War with D’s Allies.
a. Substantial: +.25 b. Moderate: +.10 c. Negligible: +0
a. A’s Regime Elites are insulated from/do not care about domestic political costs: M=.25 b. A’s Regime Elites are sensitive to domestic political costs: M=1
IV=.10 M=1
Total=.10
Total including
sub-tables:
.11
5. International Political Costs to A’s Regime Elites of initiating War with D’s Allies.
a. Substantial: +.25 b. Moderate: +.10 c. Negligible: +0
a. A’s Regime Elites are insulated from/do not care about domestic political costs:
IV=.10 M=1
Total=0
Total including
sub-tables:
149
M=.25 b. A’s Regime Elites are sensitive to domestic political costs: M=1
.11
Communication of Intent Multiplier
Choose all that apply and add vertically. The sum in the box at the bottom right is the Communication Intent Multiplier.
Applied? Multiplier
a. Unilateral Statement Directed to A, or Known by A, that Ally will Assist D in the Event of an Attack by A.
No .75
b. Formal Treaty Pledging Assistance of D in the Event of an Attack by A.
No .75
c. Membership in an International Organization, the Charter of Which Calls Members to Assist D in the Event of an Attack by A (i.e. NATO).
No .20
d. Ambiguous Unilateral Statement Regarding Consequences if A Attacks D.
No .20
e. No Communication, Either Positive or Negative on the Issue, Despite the Presence of Strong Economic Ties Between Ally and D.
Yes .10
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f. Ally Will Not Come to the Assistance of D.
No 0
TOTAL EXTENDED MILITARY DETERRENCE RATE
.10
Credibility Multiplier
Past Behavior of a Nation: Choose all that apply, add vertically, and apply the sum in the bottom right (marked with an arrow) as the Credibility Multiplier.
Applied? Effect on Multiplier
a. General Behavior of Upholding Commitments.
No +.4
b. General Pattern of Failing to Uphold Commitments.
No -.4
c. General Pattern of Upholding Commitments Communicated in the Same Manner as the Commitment in the Scenario at Hand.
No +.1
d. General Pattern of Failing to Uphold Commitments Communicated in the Same Manner as the Commitment in the Scenario at Hand.
No -.1
e. Pattern of Upholding Commitments with Respect to Nation D.
No +.3
f. Pattern of Failing to Uphold Commitments with Respect to Nation D.
No -.3
g. Upholding Commitment Would be in Compliance with Generally Recognized Principles of International Law.
No +.1
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h. Upholding Commitment Would Not be in Compliance with Generally Recognized Principles of International Law.
No -.1
i. Commitment Communicated in Manner Making it Known to Other Nations.
No +.1
CREDIBILITY MULTIPLIER (add all applicable, thru i.).
0
Table II: Potential Aggressor’s Subjective Incentives.
Incentive Type
Initial Value Assigned
Gain or Loss
Multiplier (should
be identical
for all incentive
types)
Total Value
Assigned (IVxM)
Military a. Negligible perceived military benefit: 0
b. Some perceived military benefit: +1 c. Considerable perceived military benefit: +2
a. Gain setting: M=1
b. Loss setting: M=2
IV=2 M=2
Total= 4
Economic a. Negligible perceived economic benefit: 0
b. Some perceived
a. Gain setting: M=1
b. Loss
IV=0 M=2
Total = 0
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economic benefit: +1 c. Considerable perceived economic benefit: +2
setting: M=2
Emotional/ Nationalism Value
a. Negligible perceived emotional benefit: 0
b. Some perceived emotional benefit: +1 c. Considerable perceived emotional benefit: +2
No Multiplier
IV=2
Final Incentives Value Assigned: (Total of TVA for the three Elements)
Total Incentive Value = 4
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Results
The Deterrence Value is calculated as the “Total Disincentives” minus the “Aggressors Perceived Incentives” for a total Deterrence Value of : -1.47
1. “Total Disincentives” is the sum total of the following = 2.26
a. Total Local Deterrence Score from Table I = 0.5
b. Extended Deterrence Score (the sum of i-iv below) = 1.76
i. Short term military capacity from Table I(A)(1): 0.0
ii. Intermediate military capacity from Table I(A)(2): 1.1
iii. Economic capacity from Table I(A)(3): 0.55
iv. Political costs from Table I(A)(1): 0.11
2. “Aggressor’s Perceived Incentives” from Table II: 4
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PROF. KEVIN H. GOVERN
Smart Power for Hard Problems:
The Role of Special Operation Forces Strengthening the Rule of Law
and Human Rights in Africa
ABSTRACT: This article will assess the roles and responsibilities
of Special Operations Forces (SOF) within the newly created U.S. Africa Command (AFRICOM) as an active proponent of a so-called “smart power” national security strategy. In particular, it will outline the economic, political, and military challenges faced in Africa; specifically, how and why SOCAFRICA is the U.S. force of choice for promoting human rights and rule of law in Africa. With the goals of the U.S. military in mind, questions will necessarily arise as to “what success looks like” for both the U.S. and African nations, and the roles of each in joint and combined civil–military initiatives. The concluding comments reflect on how these forces must model “what right looks like,” and provide specific modeling failures, and the consequences when that modeling did not take place. AUTHOR:
The author is an Associate Professor of Law at Ave Maria School of Law, Naples, FL, a Law and Public Policy Instructor for the California University of Pennsylvania, and is an Advisory Board Member and affiliated Faculty for The University of Pennsylvania Law School Center for Ethics and the Rule of Law. He began his legal career as an Army judge advocate, serving 20 years at every echelon
155
during peacetime and war in worldwide assignments involving every legal discipline, to include teaching as an Assistant Professor of law at the U.S. Military Academy, West Point NY. Special thanks go to Ms. Nicole Grossman, Ave Maria School of Law Class of 2013 for her superlative research assistant efforts and invaluable suggestions. Any errors or omissions are solely the responsibility of the author.
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Table of Contents
I. Special Operations Command — Africa (SOCAFRICA) and “Smart Power” 157
II. The Economic, Political, and Military Challenges Faced in Africa 162
III. Surveying SOCAFRICA Efforts to Promote Human Rights and Rule of Law 167
IV. “Modeling what Right Looks Like” and the Consequences when That Does not Happen 176
V. Conclusion 180
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I. Special Operations Command —Africa
(SOCAFRICA) and “Smart Power”
The U.S.’ AFRICOM just celebrated its fifth
anniversary in October 2012 of “standing up” operations and has progressed well beyond “initial operating capability”1 to act as the U.S. Department of Defense’s (DoD’s) newest regional unified combatant command2 in a region of tremendous potential as well as turmoil. AFRICOM was conceived to work closely with the African Union (AU),3 other regional African institutions, and individual nations in order to “provide unique ‘value-added’ capabilities to enhance already existing U.S. and
1 U.S. AFRICOM PUB. AFF. OFF., U.S. Africa Command Reaches
Initial Operating Capability, U.S. AFR. COMMAND (Oct. 1, 2007), http://www.africom.mil/getArticle.asp?art=1462. 2 At the time of this chapter’s writing there were 10 Unified Combatant Commands (UCCs) within the U.S. Department of Defense; four were organized as functional commands with specific capabilities like Special Operations, as in the case of USSOCOM, and six geographical commands with regional responsibilities like U.S. Africa Command (USAFRICOM). See U.S. Dep’t. of Def., U.S. Joint Publication No. 1-
02, Department of Defense Dictionary of Military and Associated
Terms, RA.DEFENSE.GOV, 384 (2001), http://ra.defense.gov/documents/rtm/jp1_02.pdf (“unified combatant command — See unified command. (JP 1); unified command — A command with a broad continuing mission under a single commander and composed of significant assigned components of two or more Military Departments that is established and so designated by the President, through the Secretary of Defense with the advice and assistance of the Chairman of the Joint Chiefs of Staff. Also called unified combatant command. See also combatant command; subordinate unified command. (JP 1).”). 3 Jim Lobe, Africa to Get Its Own U.S. Military Command, ANTIWAR (Jan. 31, 2007), http://www.antiwar.com/lobe/?articleid=10443.
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international programs.”4 As “the military’s first ‘smart power’ command … [AFRICOM has] no assigned troops and no headquarters in Africa itself, and one of its two top deputies is a seasoned American diplomat.”5 This requires AFRICOM to continue to develop integrated strategies (civil–military), resource bases (economic, political, and military) and tool kits (military and diplomatic capabilities) to achieve American objectives with an “approach that underscores the necessity of a strong military, but also invests heavily in alliances, partnerships and institutions at all levels to expand American influence and establish the legitimacy of American actions.”6
Driven by strategic necessity, and policy considerations of retaining a minimal “footprint” on the African continent, the U.S. military has quietly adapted its procedures to primarily employ SOF with great effectiveness, in conjunction with selected conventional forces, to advance AFRICOM initiatives.7 At the time of this article’s writing, AFRICOM’s only permanent base in Africa was Camp Lemonnier in Djibouti, with numerous ongoing unclassified and classified missions including rotating troops and task forces of some 3,200 troops in Combined Joint Task Force – Horn of Africa (CJTF-HOA); including 300 Special Operations personnel working on
4 U.S. AFRICOM PUB AFF. OFF., supra note 2, (quoting General William E. “Kip” Ward, former Commander, AFRICOM). 5 Eric Schmitt, Libya Crisis Thrusts U.S. Africa Command Into
Leadership Role, N.Y. TIMES, (Mar. 22, 2011), http://www.nytimes.com/2011/03/23/world/africa/23command.html?_r=1&pagewanted=print. 6 Richard L. Armitage et al., CSIS Commission on Smart Power, A
Smarter, More Secure America, CENTER FOR STRATEGIC AND
INT’L STUD., 7, (2007), http://csis.org/files/media/csis/pubs/071106_csissmartpowerreport.pdf. 7 Govern, supra note 1, at 294.
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organizing raids and strategizing the drone strikes of eight or more Predator drones “flown” by pilots from thousands of miles away, and eight F-15E fighter-bombs for other strike operations.8 Lemonnier has been described as part of a "constellation” of hush-hush [US] drone, commando or intelligence facilities in East Africa [including] Ethiopia, Kenya, Somalia and the island nation of the Seychelles."9 While DOD has not confirmed or denied those other locations, Niger's Ambassador to the US, Maman Sidikou, told the media in early 2013 that his government has agreed to let US drones operate from its territory, a largely desert
8 Craig Whitlock, Remote U.S. base at core of secret operations, WASH. POST, Oct. 25, 2012, at C4, http://www.washingtonpost.com/world/national-security/remote-us-base-at-core-of-secret-operations/2012/10/25/a26a9392-197a-11e2-bd10-5ff056538b7c_story.html?wpisrc=nl_headlines. For details of the U.S. Government’s “acknowledged,” unclassified site locations in Africa, see LAUREN PLOCH, CONG. RESEARCH SERV., RL
34003, AFRICA COMMAND: U.S. STRATEGIC INTERESTS AND THE ROLE
OF THE U.S. MILITARY IN AFRICA 9-10 (2010). Ploch identified that “AFRICOM’s other Forward Operating Site is on the United Kingdom’s Ascension Island in the south Atlantic. U.S. military facilities in Rota, Spain; Sigonella, Italy; Aruba, Lesser Antilles; Souda Bay, Greece; and Ramstein, Germany, serve as logistic support facilities. The U.S. military also has access to a number of foreign air bases and ports in Africa and has established “bare-bones” facilities maintained by local troops in several locations. The U.S. military used facilities in Kenya in the 1990s to support its intervention in Somalia and continues to use them today to support counterterrorism activities. DOD refers to these facilities as ‘lily pads,’ or Cooperative Security Locations (CSLs), and has access to locations in Algeria, Botswana, Gabon, Ghana, Kenya, Mali, Namibia, Sao Tome and Principe, Sierra Leone, Tunisia, Uganda, and Zambia.” Id. 9 Id.; Craig Whitlock & Greg Miller, U.S. assembling secret drone
bases in Africa, Arabian Peninsula, officials say, WASH. POST (Sept. 20, 2011), http://articles.washingtonpost.com/2011-09-20/world/35273162_1_undeclared-drone-wars-seychelles-president-james-michel-unmanned-aircraft.
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nation on the eastern border of Mali.10 According to U.S. Special Operations Command (USSOCOM) Commander, Admiral (ADM) McRaven, Special Operators will be partnering with the State Department and other federal agencies, as well as friendly foreign militaries, on “nonkinetic”11 programs to prevent extremists from capitalizing on political discontent, ethnic rivalries and economic frustration to fuel their strategy of terror and violence in places like Yemen, the Horn of Africa, and countries bordering the Sahara Desert.12
10 Jamie Crawford & Chris Lawrence, U.S. to base surveillance drones
in Niger, ambassador says, CNN (Feb. 7, 2013), http://www.cnn.com/2013/01/29/us/niger. 11 See, e.g., Donald P. Wright et al., ON POINT II, TRANSITION TO THE
NEW CAMPAIGN: THE UNITED STATES ARMY IN OPERATION IRAQI
FREEDOM MAY 2003 –JANUARY 2005 (Combat Studies Institute Press, 2008), available at http://permanent.access.gpo.gov/lps96027/OnPointII.pdf (“[F]rom the very beginning of the full spectrum campaign [in Iraq], US forces also mounted broader efforts to build popular support for the new Iraqi Government and the Coalition project in Iraq. These operations, sometimes called ‘nonkinetic’ operations, concentrated on the reconstruction of the Iraqi infrastructure, the establishment of representative government, the training of ISF, and general efforts to improve the quality of life for the population.”) 12 John M. Doyle, Special Operations Forces Face Growing Problems
in a Shrinking World, INST. FOR DEF. AND GOV’T ADVANCEMENT (Nov. 12, 2012), http://www.idga.org/unconventional-warfare/articles/special-operations-forces-face-growing problemsin/&mac=idga_oi_featured_2011&utm_source=idga.org&utm_medium=email&utm_campaign=idgaoptin&utm_content=11/13/12; See Admiral William H. McRaven, Posture Statement of Admiral
William H. McRaven, USN Commander, United States Special
Operations Command Before The 112th
Congress Senate Armed
Services Committee, ARMED-SERVICES.SENATE.GOV (Mar. 6, 2012), http://www.senate.gov/~armed_services/statemnt/2012/03%20March/McRaven%2003-06-12.pdf [hereinafter Posture Statement].
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Inheriting the range of special operations missions from Special Operations Command Europe (SOCEUR),13 and complimenting AFRICOM’s conventional force capability, AFRICOM “stood up” a “theater Special Operations Command for Africa,” (SOCAFRICA) to support the Theater Security Cooperation Program14 with planning and responding to real world contingencies in fifty-three countries and more than 13 million square miles.15 Also on October 1, 2008, SOCAFRICA assumed responsibility for the Special Operations Command and Control Element—Horn of Africa,16 and on May 15, 2009, SOCAFRICA assumed responsibility for Joint Special Operations Task Force Trans-Sahara (JSOTFTS)—the SOF component of Operation Enduring Freedom—Trans-Sahara.17 The primary focus of the command is on SOF missions that develop African partner capacity, provide assistance, and support theater security cooperation objectives.18 For SOCAFRICA, however, as with the
13 See, e.g., SPEC. OPERATIONS COMMAND EUR., http://www.soceur.eucom.mil/default.asp. 14 Marina Malenic, Pentagon Begins Constituting Special Operations
Command to Support AFRICOM Efforts, DEF. DAILY (Oct. 9, 2008), http://www.defensedaily.com/publications/dd/4271.html. 15 Bryan Purtell, Haas Assumes Command of Special Operations
Command Africa, U.S. AFR. COMMAND (Aug. 25, 2009), http://www.africom.mil/NEWSROOM/Article/6829/haas-assumes-command-of-special-operations-command. 16
Max Blumenfeld, Training in Trans-Sahara Africa, U.S. AFR. COMMAND (Dec. 13, 2010), http://www.africom.mil/Newsroom/Article/7896/training-in-trans-sahara-africa. 17 Id. 18 See Special Operations Command Africa (SOCAFRICA), GLOBALSECURITY, http://www.globalsecurity.org/military/agency/dod/socafrica.htm (last modified Apr. 13, 2013).
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remainder of AFRICOM assets, the challenge is and will remain that its forces must pursue not a unilateral military presence or bilateral military– to–military cooperation, but a “whole of government approach[,]” which “presents a tension between the importance of representing U.S. activities in Africa as peaceful and respectful of African national sovereignty.”19 Collectively and individually, African nations will continue to raise many challenges surrounding the balance between military power, civil society, and the rule of law.20 With the goals of the U.S. military in mind, questions will necessarily arise as to “what success looks like” for both the U.S. and African nations, and the roles of each in joint and combined civil`–military initiatives.21 II. The Economic, Political, and Military Challenges
Faced in Africa
The 2004 U.S. National Military Strategy
significantly described Africa as lying in “an ‘arc of instability’ stretching from the Western Hemisphere, through Africa and the Middle East and extending to
19 John Tierney, Chairman, Subcomm. on Nat’l Sec. and Foreign Affairs, Keynote Address at Center for Advanced Defense Studies Conference: AFRICOM: An Independent Review for the New Administration (Oct. 28, 2009), available at http://democrats.oversight.house.gov/index.php?option=com_content&task=view&id=4626&Itemid=55. 20 Govern, supra note 1, at 294. 21 Id.
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Asia.”22 Additionally, and similarly troubling, is the observation that “[t]here are areas in this arc that serve as breeding grounds for threats to [U.S.] interests.”23 Indicative of that regional instability, the U.S. had become “increasingly involved in Africa since the end of the Cold War,” with over “[twenty] U.S. military operations in Africa between 1990 and 2000 and another [ten plus] since 2000.”24 As ADM McRaven identified to Congress, the U.S. continues to confront a number of challenges from “insurgents, transnational terrorists, criminal
organizations, nation states and their proxies;” he
22 JOINT CHIEFS OF STAFF, THE NATIONAL MILITARY STRATEGY OF
THE UNITED STATES OF AMERICA: A STRATEGY FOR TODAY; A VISION
FOR TOMORROW 5 (2004), available at
http://www.defense.gov/news/mar2005/d20050318nms.pdf. The 2011 National Military Strategy (NMS) less pessimistically addressed Africa’s “critical states where the threat of terrorism could pose a threat to our homeland and interests[,] . . . violent extremism in the Horn of Africa, particularly Somalia and the Trans-Sahel[,] . . . the security threat to innocent civilians[, and the need to] identify and encourage states and regional organizations that have demonstrated a leadership role to continue to contribute to Africa's security. We will help facilitate the African Union’s and the Regional Economic Communities’ development of their military capacity, including the African Stand-by Force, to address the continent’s many security challenges.” JOINT CHIEFS OF STAFF, THE NATIONAL MILITARY
STRATEGY OF THE UNITED STATES OF AMERICA: REDEFINING
AMERICA’S MILITARY LEADERSHIP 12 (2011), available at
http://www.jcs.mil//content/files/2011-02/020811084800_2011_NMS_-_08_FEB_2011.pdf. 23 Id. 24 See, e.g., Denine Walters, AFRICOM: Newsworthiness and Current
Operations, CONSULTANCY AFR. INTELLIGENCE (Dec. 1, 2009), http://www.consultancyafrica.com/index.php?optio n=com_content&view=article&id=300&Itemid=202. See also Brett D. Schaefer & Mackenzie Eaglen, Clarifying the Future of AFRICOM, THE HERITAGE FOUND. n.3 (Sep. 27, 2007), http://www.heritage.org/Research/Africa/wm1644.cfm (citing Otto Sieber, Africa Command: Forecast For The Future, DTIC (Jan. 2007), http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA519742).
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specified, that these opponents will try to exploit gaps in U.S. foreign and defense policies that were developed in a more predictable world, with their use of cyberspace as a battlefield making them more adaptable as they seek new ways to recruit, train, finance, and operate.25 In Africa and elsewhere, “the strategic environment is changing —
quickly and constantly.”26 At greatest risk in Africa are “weakly governed spaces [that] provide favorable operating environments for violent extremism, piracy, and trafficking of humans, weapons, and drugs.”27 Similarly, numerous other nations with duly constituted governments employ cronyism and favoritism to manipulate the organs of law enforcement and judicial systems, or flaunt international efforts to advance and promote justice. Rule of law and human rights challenges include, but are not limited to, the following in some twenty-first century African nations, governmental entities, organizations, and cultures:
Undeveloped economies, with limited resource bases and insufficient employment and income opportunities for large segments of the
25 Posture Statement, supra note 13. 26 Id. 27 2010 POSTURE STATEMENT U.S. AFRICA COMMAND, U.S. AFR. COMMAND, (Mar. 9, 2010), http://www.africom.mil/Content/CustomPages/ResearchPage/pdfFiles/USAFRICOM2010PostureStatement.pdf. In his March 9, 2010 testimony before Congress, the then-commander of AFRICOM provided an overview of the strategic environment in Africa, explained AFRICOM’s strategic approach, and showed how security cooperation efforts promote stability in support of U.S. foreign policy and national security objectives. See id. It is noteworthy that these Annual Posture Statements seldom, if ever, include “metrics” related to “measures of success,” identifying instead, anecdotal instances of mission successes and efficacy. See id.
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population, resulting in widespread poverty;28 High population growth rates further strain the natural environment and local resources while intensifying competition for resources;29 Ethnic diversity or regional factionalism promoting local or particularistic identifications, while hindering the development of a national identification;30 Ethnic or class politics involving competition among leaders of different language, cultural, or regional populations for state positions of political and economic power with the spoils of victory going to supporters;31 Lack of regime legitimacy, as those large segments of the
28 Paul J. Magnarella, Preventing Interethnic Conflict and Promoting
Human Rights through More Effective Legal, Political, and Aid
Structures: Focus on Africa, 23 GA. J. INT’L & COMP. L. 327 (1993), cited with authority in Paul J. Magnarella, Achieving Human Rights in
Africa, AFRICA STUDIES QUARTERLY, 4(2):2, http://web.africa.ufl.edu/asq/v4/v4i2a2.htm. 29 Id. 30 Id. 31 Id.
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population not culturally or politically affiliated with the ruling elite and not sharing in the spoils, refuse to recognize the regime as legitimate;32 Resort to military or police force to maintain power by suppressing political opponents and disgruntled civilians;33 Violation of economic, civil, and political rights by the regime on the pretext of "national security;"34 and Openly mocking human rights and democracy, aside from corruption and complicity in criminal and terroristic movements.35
What should success look like for SOCAFRICA and conventional force engagement of African forces and governments? According to the House of Representatives’ yearly assessment of AFRICOM, national security is a stable environment “where education and public health efforts, improvements in the rule of law, and the reduction of corruption can significantly increase a government’s
32 Id. 33 Id. 34 Id. 35 See, e.g., Afr. Action and Foreign Policy in Focus Staff, Africa
Policy Outlook 2010, FOREIGN POLICY IN FOCUS (Jan. 22, 2010), http://www.fpif.org/articles/africa_policy_outlook_2010.
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ability to combat these new threats.” In summation, AFRICOM’s “foremost mission is to help Africans achieve their own security” and to support African leadership efforts,36 yet, “they will welcome help in building strong, effective and professional forces.” 37 III. Surveying SOCAFRICA Efforts to Promote
Human Rights and Rule of Law
Part of the SOF “smart power” approach to Africa will involve a mix of direct and indirect approaches to promote stability and security, advancing human rights, and the rule of law. In advancing rule of law principles in Africa, we might look to what the U.S. Department of State (DoS) has attempted to define for Congress as notions of rule of law the U.S. encourages and promotes: While there is no commonly agreed upon definition for the rule of law, we take it to mean a broad spectrum of activities including a constitution, legislation, a court system and courthouses, a judiciary, police, lawyers and legal assistance, due process procedures, prisons, a commercial code, and anticorruption activities. To successfully implement an emerging rule of law, these activities must proceed somewhat sequentially and not
36 John J. Kruzel, Pentagon Official Describes AFRICOM’s Mission,
Dispels Misconceptions, U.S. DEP’T OF DEF. (Aug. 3, 2007), http://www.defense.gov/News/NewsArticle.aspx?ID=46931. 37 Judith Snyderman, AFRICOM Helps African Nations Build Their
Own Secure Future, NAVY (Apr. 10, 2008, 11:35 AM), http://www.navy.mil/search/display.asp?story_id=52478.
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randomly.38
According to ADM McRaven, the direct approach will remain a hallmark capability for SOF in order to provide the necessary means to disrupt this threat, while it ultimately only buys time and space for the indirect approach and broader governmental elements to take effect.39 Less well known but decisive in importance, “the indirect approach includes empowering host nation forces, providing appropriate assistance to humanitarian agencies, and engaging key populations; these long-term efforts increase partner capabilities to generate sufficient security and rule of law, address local needs, and advance ideas that discredit and defeat the appeal of violent extremism.”40 As an effort to advance U.S.–African cooperation and the rule of law in African states, the first Africa Military Legal Conference hosted by AFRICOM concluded on May 21, 2010, at the Kofi Annan International Peacekeeping Training Center in Accra, Ghana. This conference brought together legal experts from fifteen African nations to discuss common challenges, including military justice and
38 Howard J. Krongard, House Committee on Government Reform
Subcommittee on National Security, Emerging Threats, and
International Relations: Testimony of Howard J. Krongard Inspector
General U.S. Department of State and Broadcasting Board of
Governors, OIG.STATE.GOV (Oct. 18, 2005), available at http://oig.state.gov/documents/organization/55371.pdf. Note: the context of this testimony before Congress was ongoing rule of law initiatives in Afghanistan and Iraq. Domestically, as well as internationally, it is far from settled how to define “rule of law,” let alone how to bring it about. See, e.g., Kevin Govern, Rethinking Rule
of Law Efforts in Iraq, JURIST FORUM (Feb. 26, 2007), http://jurist.org/forumy/2007/02/rethinking-rule-of-law-efforts-in-iraq.php. 39 Posture Statement, supra note 13. 40 Id.
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maritime law, and counter-narcotics authorities.41 Major Joy Primoli of 17th Air Force (Air Forces Africa) and Lieutenant Colonel Timothy Tuckey of U.S. Army Africa, led a discussion about the U.S. military justice system and discussed challenges that common law countries face in applying military disciplinary rules to maintain good order and discipline while ensuring that unlawful command influence does not corrupt the system.42 Countries using civilian justice systems for military offenses discussed challenges in case processing, including the lack of resources to dispense timely justice.43 SOF and conventional forces have been involved in promoting, as well as conducting in Africa and elsewhere, the International Military Education and Training (IMET) program that provides funds for international personnel to attend U.S. military professional training programs.44 The IMET program “specifically targets current and future military and civilian leadership in African nations” and “exposes foreign students to U.S. professional military organizations and procedures and the manner in which military organizations function under civilian control.”45 AFRICOM highlights that its IMET programs introduce students to “elements of U.S. democracy such as the U.S. judicial system, legislative oversight, free speech, equality issues, and U.S. commitment to human rights” and
41 Kathleen A. Duignan, Successful Completion of First Africa Military
Legal Conference, U.S. AFR. COMMAND (June 4, 2010), http://www.africom.mil/getArticle.asp?art=4520&lang=0. 42 Id. 43 Id. 44 U.S. AFRICOM PUB. AFF. OFF., Newsroom Documents March 2012, U.S. AFR. COMMAND, Fact Sheet: International Military Education
and Training (Jan. 2012), http://www.africom.mil/NEWSROOM/Document/8841 [hereinafter Fact Sheet: Int’l Military Edu. and Training]. 45 Id.
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promotes force interoperability through “IMET’s mandatory English-language proficiency requirement.”46 Of no small significance “IMET training graduates fill key leadership positions in military of many African nations.”47 There is also irony in this observation, given that Malian coup leader Captain Amadou Haya Sanogo received extensive IMET training in the United States between 2004 and 2010 before leading a military coup of his nation in 2012.48 Funding for U.S. Africa Command IMET recipient countries in Fiscal Year (FY) 2011 was $21.6 million.49 Projected funding for FY 2012 is $20.4 million.50 In FY 2011, 1,292 students from forty-seven partner nations throughout Africa participated in IMET-funded training and educational opportunities.51 With IMET, as with other development and assistance programs, it is the sense of Congress that if a country does “not cooperate with the United States on terrorism or narcotics enforcement, is a gross violator of the human rights of its citizens, or is engaged in conflict or spends excessively on its military,” they will be ineligible to participate in U.S. funded programs.52 Other examples of the indirect approach are SOF’s contributions supporting interagency diplomacy and development efforts. Currently, Military Information Support Teams (MIST) and Regional Information Support Teams (RIST) support the Department of State by augmenting and broadening their public diplomacy 46 Id. 47 Id. 48
See Adam Nossiter, Leaders of Mali’s Military Coup Seem to have
Uncertain Grasp on Power, N.Y. TIMES, Mar. 23, 2012, at A8. 49 Fact Sheet: Int’l Military Educ. and Training, supra note 45. 50 Id. 51 Id. 52 See, e.g., Sense Of The Congress Regarding Comprehensive Debt Relief For The World’s Poorest Countries, 19 U.S.C. § 3731 (2000).
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efforts.53 MIST elements are requested by U.S. Chiefs of Mission and work under their direction to blend the embassy’s Mission Strategic Plan and the Geographic Combatant Commander’s (GCC) Theater Campaign Plan. SOF elements in AFRICOM and elsewhere also support interagency development efforts by deploying civil–military support elements (CMSE) to address refugees, displaced persons, populations at risk, and humanitarian or disaster assistance.54 In addition to their work in the Trans-Sahel, “CMSEs are engaged in seventeen countries and are forecasted to expand to twenty countries in FY 2013 and more than thirty countries by FY 2017” to “support population-focused indirect approaches to combat violent extremism.”55 The U.S. Department of State, Africa Bureau has administered various peacekeeping capacity-building assistance programs since the mid-1990s: the 1996 African Crisis Response Initiative (ACRI) program from 1996
53 U.S. AFRICOM PUB. AFF. OFF., Newsroom Documents March 2012, U.S. AFR. COMMAND Fact Sheet: Military Information Support Team
(MIST), (July 19, 2012) http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CC0QFjAA&url=http%3A%2F%2Fwww.africom.mil%2Ffile.asp%3FpdfID%3D20100719122755&ei=_ueiULefJ66M0QGPmIGIDQ&usg=AFQjCNFm_tlWjVxtEyL5Le4OF5TluV3Ozw&cad=rja; AFRICOM POSTURE STATEMENT: Ward Reports Annual Testimony
to Congress, AFRICOM PUBLIC AFFAIRS (Mar. 9, 2010), http://www.africom.mil/NEWSROOM/Article/7245/africom-posture-statement-ward-reports-annual-test. 54 See Operation Enduring Freedom-Trans-Sahara (OEF –TS),
GLOBALSECURITY, http://www.globalsecurity.org/military/ops/oef-ts.htm, (last modified Jan. 24, 2013). 55 National Defense Authorization Act for Fiscal Year 2013 and
Oversight of Previously Authorized Programs: Hearing Before the H.
Comm. on Armed Serv., 112th Cong. 86 (2012) (statement of Admiral William H. McRaven, USN Commander, United States Special Operations Command).
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through 2004 evolved into the African Contingency Operations Training and Assistance program (ACOTA) in 2004, then into the Global Peace Operations Initiative (GPOI) in 2005.56 The ACRI was designed, according to the U.S. Naval Postgraduate School, “[t]o enhance the capacity of African partner nations to effectively participate in multinational peace support operations,” or in other words, to improve the training and effectiveness of African military forces.57 The goal of these programs has been “to increase the capabilities of these militaries in areas such as human rights, interaction with civil society, international law, military staff skills, and small unit operations.”58 According to Deputy Assistant Secretary of Defense Vicki 56 See Africa Crisis Response Initiative, GLOBAL SECURITY, http://www.globalsecurity.org/military/ops/acri.htm (last visited Jan. 31, 2013); see also NINA SERAFINO, CONG. RESEARCH SERV., RL
32773, THE GLOBAL PEACE OPERATIONS INITIATIVE: BACKGROUND
AND ISSUES FOR CONGRESS 3 (2009). Serafino notes on this transmogrification of Africa Crisis Response Initiative (ACRI) to African Contingency Operations Training and Assistance program (ACOTA) that “[b]efore mid-2004, the United States provided peacekeeping capacity-building assistance to foreign militaries primarily under two programs, the African Contingency Operations Training and Assistance program (ACOTA) and its predecessor program, and the Enhanced International Peacekeeping Capabilities program (EIPC). Both ACOTA and EPIC have been subsumed under the [Global Peace Operations Initiative] GPOI budget line. ACOTA is still the term used to refer to the Africa component of GPOI, however, and is implemented by the State Department’s Africa Bureau. Overall responsibility for GPOI rests with the State Department Bureau of Political-Military Affairs’ Office of Plans, Policy, and Analysis (PM/PPA). (Information about GPOI is available at http://www.state.gov/t/pm/ppa/gpoi.) PM/PPA works closely with DOD offices to plan and carry out the program.” Id. 57 U.S. Government Donates Utility Vehicles to the Nigerian Army,
U.S. DIPLOMATIC MISSION TO NIGERIA (Oct. 24, 2008), http://nigeria.usembassy.gov/prog_10242008.html. 58 Press Release, U.S. Dep’t of State, Africa Crisis Response Initiative (ACRI) (Taken Question) (July 3, 2003), http://2001-2009.state.gov/r/pa/prs/ps/2003/22237.htm.
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Huddleston, “[b]y training professional military units that respect civilian control, these militaries become important contributors to stability and respect for the rule of law,” while AFRICOM’s exercises “provide opportunities to African partners to continue perfecting their professional abilities.”59 Huddleston said such training consists of international standards on human rights, including respect for the rule of law, tolerance, and women’s rights.60 SOF pursuing ACOTA and other missions must be conscious of unique and intensifying politico-military “turf issues” and human rights concerns in Africa, since “U.S. military resources and projects are crossing ministerial lines across the continent.”61 Retired Foreign Service Officer Robert Gribben points to the theoretical “key local client for AFRICOM” as being the host Ministry of Defense, yet the additional realities are that “U.S. military resources already go to projects in ministries of water development, women’s affairs, health, [interior, and]
59 Stephen Kaufman, AFRICOM Empowering African Development as
Well as Security, IIP DIGITAL (July 26, 2011), http://iipdigital.usembassy.gov/st/english/article/2011/07/20110726172840nehpets0.4103968.html#ixzz25F1tTgfY 60 Id. 61 Robert E. Gribbin, Implementing AFRICOM: Tread Carefully, 85 FOREIGN SERVICE J. 25, (2008); Theresa Whelan, Transcript:
Pentagon Africa Policy Chief Whelan Describes U.S. Objectives For
Africa Command, U.S. AFR. COMMAND (Feb. 18, 2008), http://www.africom.mil/getArticle.asp?art=1663 (“There are a number of pieces of legislation -- one of them for example is the Leahy Amendment, which requires human rights vetting of every single individual we train. Even if we’re training a large unit, every individual in that unit has to be vetted as best we can with the information that we have for human rights violations to anyone that there is even the smallest bit of suspicion about is removed from the training program.”); See also. Pub. L. No. 104-208, 110 Stat. 3009-133 (1996) (discussing certain human rights abuses by host nations may trigger restrictions on U.S. funding under the aforementioned Leahy Amendment).
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aviation.”62 This means it is not enough for SOF to vet military compliance with human rights considerations and promote military capabilities; they must also do so for civilian ministries. SOCAFRICA and other component commands and AFRICOM assets must integrate their efforts with the AU, a key partner, despite the fact that the AU faces a crisis of legitimacy such that “[t]he AU is being judged on whether it can and will respond effectively to situations of armed conflict [under the provisions of the AU Constitutive Act].”63 The AU Constitutive Act states that the Union has the right to intervene “in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide[,] and crimes against humanity.”64 They must support AU’s initiatives to build legitimacy and the rule of law, including the “alphabet soup” of allied coalitions, such as: Global Peace Operations Initiative (GPOI), Anti-Terrorism Assistance Program (ATAP), Trans-Sahara Counterterrorism Partnership (TSCTP), East Africa Counterterrorism Initiative (EACTI), ACOTA, and IMET, the African Coastal Security Program, Foreign Military Financing, the AU Standby Force, the Kofi Annan International Peacekeeping Training Center, the Military Personnel Exchange Program, the Regional Defense Combat Terrorism (CT) Fellowship Program, and
62 See Gribbin, supra note 62, at 25. 63 James J.F. Forest, Legitimacy And Peace: Linking U.S. Strategic
Objectives With The African Union And Darfur, TEACHING TERROR (Apr. 19, 2007), http://www.teachingterror.net/lectures/Forest_IDC2007.ppt. 64 Id.
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the National Guard Bureau State Partnership Program.65 Just as the AU is “being judged on whether the presence of AU or regional peacekeeping forces can resolve complex peace support or enforcement operations,” so too will SOCAFRICA and other AFRICOM assets be judged.66 The primary thrust of U.S. targeted killings, particularly through drone strikes, has been on al-Qaeda and Taliban leadership networks in Afghanistan and the remote tribal regions of Pakistan.67 However, U.S. operations are
65 Id. (“The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity”) ( Id.
quoting African Union Constitutive Act art. 4(h), (July 11, 2000), http://www.africa-union.org/root/au/AboutAu/Constitutive_Act_en.htm). Initiatives to build legitimacy, as outlined by Forest at Slide 10, included the following: Global Peace Operations Initiative; Anti-Terrorism Assistance Program; Trans-Sahara Counter Terrorism Partnership; East Africa Counterterrorism Initiative; African Coastal Security Program; Foreign Military Financing; African Union Standby Force; Kofi Annan International Peacekeeping Training Center; African Contingency Operations Training & Assistance; International Military Education Training; Military Personnel Exchange Program; Regional Defense CT Fellowship Program, and National Guard Bureau State Partnership Program. Id. 66 Id. 67 Jonathan Masters, Targeted Killings, CFR (Jan. 8, 2013), http://www.cfr.org/counterterrorism/targeted-killings/p9627.
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continuing to expand in Horn of Africa countries such as Somalia and Yemen, and beyond.68 IV. “Modeling what Right Looks Like” and the
Consequences when that Doesn’t Happen
I have previously proposed Measures of Effectiveness (MOE) for AFRICOM,69 addressing Congressional concerns about each key aspect of force composition, resourcing, and missions, at a time when AFRICOM was still forming such standards and assessing “lessons learned.70 In hindsight, the outgoing first deputy to the commander for military operations, Vice Admiral (VADM) Robert Moeller, (Retired (RET)) said, “during [the command’s] work in designing AFRICOM and helping guide it through the early years of its existence, a number of lessons have helped inform our decisions and ensure we performed our job responsibly and effectively.”71 Those “lessons learned” have equal applicability to SOCAFRICA as AFRICOM’s sub-unified command:
68 See Kevin Govern, Operation Neptune Spear: Was Killing Bin Laden
A Legitimate Military Objective? in TARGETED KILLINGS: LAW AND
MORALITY IN AN ASYMMETRICAL WORLD 347-73 (Claire Finkelstein et al. eds., 2012). AFRICOM assets, using “geospatial intelligence” or “GEOINT” can “help intelligence and defense agencies find warlords like Uganda’s Lords Resistance Army’s Joseph Kony, or Al Qaida in the Islamic Maghreb (AQIM), or help development groups track poverty and population movements.” Kevin Baron, GEOINT trains
sights on Africa, FOREIGN POLICY (Apr. 1, 2013), http://e-ring.foreignpolicy.com/posts/2013/04/01/geoint_trains_ sights_on_africa. 69 Govern, supra note 1, at 327. 70 Armitage et al., supra note 7. 71 Robert Moeller, The Truth About Africom, FOREIGN POLICY (July 21, 2010), http://www.foreignpolicy.com/articles/2010/07/21/the_truth_about_africom?page=full.
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Lesson 1: AFRICOM does not create policy. Lesson 2: AFRICOM must work hand in hand with the diplomatic corps. Lesson 3: Keep our footprint in Africa limited. Lesson 4: AFRICOM is most effective when it listens to the concerns of its African partners. Lesson 5: Don't expect instant results. 72
Each of these aspects contribute to a long-term vision AFRICOM shares with its African partners, building capabilities through sustained security programs which, “over time, help support the conditions for economic development, social development, and improvements in health -- so that people will continue to see progress in their lives and growing prosperity in their communities.”73 Even when these “lessons learned” are heeded, and best efforts are made to assess and promote adherence to the highest legal and operational standards, some resulting circumstances may fall short where exemplifying and educating “what right looks like” does not happen. For instance, Malian Army Captain and coup leader Sanogo “attended an English-language instructor course at the Defense Language Institute, a special school for
72 Id. 73 Id.
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international military students at Lackland Air Force Base, Texas, from August 2004 to February 2005,” then “[n]early three years later, in December 2007, Captain Sanogo returned to the United States, this time for more English language classes at Lackland before attending the Army’s entry-level course for intelligence officers at Fort Huachuca, Arizona, instruction that he completed in July 2008.”74 Did IMET and other training enhance Sanogo’s ability to plot and conduct his coup, or deter him from committing greater human rights violations than he is accused of having committed? Only time and careful consideration will tell, as the “green arc of instability” from the Sahel to the Horn of Africa becomes less stable through this forcible revolt.75 SOF must also scrupulously demonstrate the highest legal, ethical, and moral standards in their personal and professional conduct. What better way to hold the “high ground” and to encourage those being trained and those advised to do likewise? Regrettably, as negative exemplars for African forces and nations within the Area of Responsibility (AOR), come the consequences of
74 Nossiter, supra note 49. Sanogo ultimately “agreed to step down and allow the re-installation of a civilian government. However, at the time of this writing, he has been a continuing obstacle to efforts by the Economic Community of West African States (ECOWAS).” See Mark P. Fancher, Beware the Rotten Fruit of AFRICOM Training, BLACK
AGENDA REPORT (May 1, 2012, 11:30PM), http://blackagendareport.com/content/beware-rotten-fruit-africom-training. 75 Arc of instability in Africa may turn into battlefield – Moscow’s
envoy, RT (Mar. 27, 2012), http://rt.com/politics/mali-africa-arab-spring-538/. Mikhail Margelov, the Kremlin’s special envoy to Africa stressed, “A ‘green arc of instability’ is being formed from the
Sahel (the region bordering the Sahara Desert) to the Horn of
Africa. Therefore careful monitoring of events in the region is
necessary not to allow the transformation of this arc into a
battlefield.” Id.
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unprofessionalism and criminal misconduct by AFRICOM’s highest uniformed leaders. Pentagon inspector general investigators found that former AFRICOM Commander, Lieutenant General (LTG) Ward (formerly General (GEN)) spent thousands of dollars on inappropriate travel expenses,76 and engaged in several "inappropriate" activities, including “submitting expense reports with extravagant and unacceptable charges, inappropriate use of military staff, and misuse of government funds,” involving "not an insignificant sum of money;" as a result, Ward was relieved of command (fired), demoted in rank affecting his lifetime pension, and had a recoupment of $82,000.77 Less than six months after Ward’s relief, his outgoing replacement, GEN Carter Ham, head of AFRICOM, relieved Major General (MG) Ralph Baker, commander of the CJTF-HOA in Djibouti, of command on April 4, 2013 and fined Baker a portion of his pay after an administrative hearing and review.78 AFRICOM officials said Ham lost confidence in Baker's ability to command because of alcohol and sexual
76 Michael Muscal, Top general demoted amid questions about his
lavish expenses, L.A. TIMES.COM (Nov. 13, 2012, 1:39PM), http://www.latimes.com/news/nation/nationnow/la-na-nn-top-general-demoted-because-after-questions-about-his-expenses-20121113,0,2021373.story. 77 Barbara Starr, Four-star general faces demotion over misspending
allegations, CNN (Aug. 15, 2012, 6:42PM), http://security.blogs.cnn.com/2012/08/15/four-star-general-faces-demotion-over-misspending-allegations. According to CNN, “Ward went through a public retirement ceremony from Africa Command in April of last year, but did not retire pending the outcome of the investigation. Since leaving Africa Command, he has worked in an Army staff job out of the limelight, serving as a two-star general. Under Army guidelines, a four-star who is not serving at that rank for 60 days is automatically demoted until the case is resolved.” Id. 78 Lolita Baldor, Officials: General Fired Over Alcohol, Sex Charges, MILITARY.COM (Apr. 5, 2013), http://www.military.com/daily-news/2013/04/05/officials-general-fired-over-alcohol-sex-charges.html.
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misconduct charges involving harassment and inappropriate contact.79 GEN David M. Rodriguez, one of the Army’s most battle-tested officers, assumed command of AFRICOM in April 2013 as Africa confronts a growing threat from Islamic militant groups operating across the continent, and refocuses AFRICOM on core missions, implementing lessons learned, and setting and maintaining the highest professional and personal standards of conduct.80 He will need to implement strategies to face threats while simultaneously setting and maintaining the highest professional and personal standards of conduct. V. Conclusion SOCAFRICA has even greater challenges than conventional forces in the AFRICOM AOR regarding physical and political risk, operational techniques, modes
79 Id. 80 John Vandiver, Rodriguez, experienced in Afghanistan, becomes new
AFRICOM boss, STARS AND STRIPES (Apr. 5, 2013), http://www.stripes.com/news/rodriguez-experienced-in-afghanistan-becomes-new-africom-boss-1.215169; Claudette Roulo, Rodriguez
Succeeds Ham as Africom Commander, DEFENSE.GOV (Apr. 5, 2013), http://www.defense.gov/news/newsarticle.aspx?id=119699. Rodriguez’s vast experience included commands of joint, combined and interagency operations comprised of conventional forces (heavy armored and airborne light infantry), as well as SOF (Ranger) units. Vandiver, supra; See also Roulo, supra. Rodriguez’s predecessor, as a tribute to outgoing the outgoing AFRICOM Commander, General Martin Dempsey, Chairman of the Joint Chiefs of Staff, lauded Ham for “principled and grounded leadership,” and for his “steady hand when times felt very unsteady.” Vandiver, supra; See also Roulo, supra. These comments may have alluded as much to Ham’s decisive and successful operational efforts as to his restoring a command climate of dignity and respect as well as military discipline and adherence to professional ethics.
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of employment, and dependence on detailed operational intelligence and indigenous assets; given operational and training element sizes, locations, defensive postures, and close engagement with local populaces; and African government personnel, and host nation military forces.81 SOF furtherance of human rights and the rule of law, in every instance, can and must be considered in light of VADM (RET) Moeller’s “lessons learned,” but also measured against and meet the Five SOF Mission Criteria:
It must be an appropriate mission or activity for SOF. The mission or activities should support the Joint Force Commander’s (JFC’s) campaign or operation plan, or special activities. Mission or tasks must be operationally feasible, approved, and fully coordinated. Required resources must be available to execute and support the SOF mission. The expected outcome of the mission must justify the risks.82
As I have previously written, the effective use of SOF will likely mean fewer in extremis requirements for direct action or targeted killing of terrorists and other
81 DEP’T OF DEF., Joint Publication 3-05 Special Operations, DTIC, ix
(Apr. 18, 2011), http://www.dtic.mil/doctrine/new_pubs/jp3_05.pdf. 82 Id., at x.
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persons threatening U.S. national security like bin Laden.83 SOCAFRICA will play an indispensible role in aiding African nations with “foreign internal defense” missions; that is, “participation by civilian and military agencies of a government in any of the action programs taken by another government or other designated organization to free and protect its society from subversion, lawlessness, insurgency, terrorism, and other threats to its security.”84 As challenges in Africa arise and continue, so too will AFRICOM’s need for SOF increase, utilizing these highly trained, culturally astute, superbly disciplined uniformed service members to promote and maintain a vigilant and active peace.85 In this manner, rather than targeting the symptomatic expressions of terror, the United States will instead prescriptively promote the rule of law abroad as one of many measures to eliminate the root causes of terrorism, while maintaining the capability to deliberately and carefully tailor uses of authorized, licit force around the world.
Operating in joint, combined, and interagency operations, SOCAFRICA can and will promote “democracy, opportunity, health, and the peaceful
83 Govern, supra note 69, at 373. “In-extremis’ refers to a situation of such exceptional urgency that immediate action must be taken to minimize imminent loss of life or catastrophic degradation of the political or military situation.” See U.S. Dep’t. of Def., U.S. Joint
Publication No. 1-02, Department of Defense Dictionary of Military
and Associated Terms, RA.DEFENSE.GOV, 174 (2001), http://ra.defense.gov/documents/rtm/jp1_02.pdf. 84 Army Doctrine Publication (ADP) 3-05 Special Operations,
ARMYPUBS.ARMY.MIL, 9 (Aug. 31, 2012), http://armypubs.army.mil/doctrine/DR_pubs/DR_a/pdf/adp3_05.pdf 85 Govern, supra note 69, at 373.
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resolution of conflict”86 as SOF “diplomat-warriors” coordinate and synchronize U.S. military activities with U.S. diplomatic and economic objectives in Africa.87
86 Speeches & Remarks, President Barack Obama, Remarks by the President to the Ghanaian Parliament, WHITEHOUSE.GOV (July 11, 2009), http://www.whitehouse.gov/the-press-office/remarks-president-ghanaianparliament?utm_soure=wh.gov&utm_medium=shorturl&utm_campaign=shorturl. 87 Govern, supra note 1, at 285.
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LAURA CHAFEY
“Injustice Anywhere is a Threat to Justice Everywhere”
1
Internal vs. International Armed Conflicts:
Should the Distinction be Eliminated?
ABSTRACT: This article discusses international humanitarian
law, particularly the Geneva Conventions and its Additional Protocols. It analyzes the rights of protected persons under the Geneva Conventions, such as prisoners of war and civilians, as well as the obligations of States during armed conflicts. Furthermore, the article points out the flaws in the Geneva Conventions, such as the discrepancy between the obligations of States during an international armed conflict vs. during an internal armed conflicts. It argues that this distinction between international and internal armed conflicts should be
1 Dr. Martin Luther King, Jr., Letter from Birmingham Jail, April
16, 1963, available at
http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html (Applying Dr. King’s quote referring to the civil rights issues in the United States during the 1960s, to international humanitarian law issues occurring in various countries in the world. The full quote reads: “Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”).
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eliminated and that States’ obligations should be the same for both conflicts. AUTHOR:
Laura L. Chafey is the Executive Editor of the University of Baltimore Journal of International Law and Vice President of the International Law Society. In addition, she is a Student Fellow of the University of Baltimore Center for International and Comparative Law. Ms. Chafey has a B.A. in International Studies with a Concentration in Politics and she will obtain her J.D. in May 2013 along with a Concentration in Public International Law.
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Table of Contents
Introduction 187
I. Background: International Humanitarian Law 188 II. The Geneva Convention 192
A. “Grave Breaches” 194 B. Common Article 3 196 C. Additional Protocol II 198
III. The Problem: International Humanitarian Law in Non-international Armed Conflicts 201 A. The Applicability of Common
Article 3 and Additional Protocol II 202 B. No Status for Combatants 204 C. Failure to Enforce 209
IV. Resolution: No Distinction 211 A. Saving All Victims from the
Scourge of All Wars 213 B. Internal Conflicts are International
Conflicts 214 C. All States Owe a Duty during
Internal Armed Conflicts 217 Conclusion 219
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Introduction The Geneva Conventions are international treaties that govern the conduct of warfare, particularly the treatment of the victims of war.1 These Conventions distinguish international armed conflicts from non-international armed conflicts, which is the cause of great concern in the field of international humanitarian law.2 The law that governs non-international armed conflicts, Common Article 33 and Additional Protocol II,4 affords significantly less protections for the victims of war and
1 Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]; Geneva Convention relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. 2 See Geneva Convention I supra note 2; Geneva Convention II supra note 2; Geneva Convention III supra note 2; Geneva Convention IV supra note 2. 3 Geneva Convention I, supra note 2, art. 3, 6 U.S.T. at 3116, 3118, 75 U.N.T.S. at 32, 34; Geneva Convention II, supra note 2, art. 3, 6 U.S.T. at 3220, 3222, 75 U.N.T.S. at 86, 88; Geneva Convention III, supra note 2, art. 3, 6 U.S.T at 3318, 3320, 75 U.N.T.S. at 136, 138; Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, art. 3, 6 U.S.T. at 3516, 75 U.N.T.S. at 287 [hereinafter Common Article 3]. 4 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, art. 4(2) (adopted June 8, 1977), 1125 U.N.T.S. 609 [hereinafter Additional Protocol II].
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fails to provide for any enforcement mechanisms. However, victims of international armed conflicts receive an array of protections, and if grave breaches of these protections occur, states are obligated to prosecute such violations.5
This distinction of internal and international armed conflicts results in a discrepancy in protections and prohibited acts, based on where the armed conflict occurs. The resolution of such problem is to eliminate the distinction and apply the laws of international armed conflicts to all armed conflicts, regardless of where the conflicts occur. One should not receive less protection from the scourge of war, and one should not have impunity from heinous war crimes, simply because of the borders they are within. These injustices inherent in internal armed conflicts are threats to justice and peace in the international community. As such, internal conflicts should be treated as international conflicts.
I. Background: International Humanitarian Law International humanitarian law is simply the law of war.6 Although in war there seems to be the absence of law and only chaos, there are treaties7 and customary law8 that
5 Geneva Convention I, supra note 2, art. 49, U.S.T. at 3146, 75 U.N.T.S. at 62; Geneva Convention II, supra note 2, art 50, 6 U.S.T. at 3250, 75 U.N.T.S. at 116; Geneva Convention III, supra note 2, art 129, 6 U.S.T. at 3418, 75 U.N.T.S. at 236; Geneva Convention IV, supra note 2, art. 146, 6 U.S.T. at 3616, 75 U.N.T.S. at 386. 6 BARRY E. CARTER ET AL., INTERNATIONAL LAW 1033 (6th ed. 2011). 7 For example the 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW) or the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on
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govern the conduct of warfare. Even in ancient Greek mythology there was a distinction between Ares, the god of mere violence, and Athena, the Goddess of warfare, in which warfare was understood “as an organized, disciplined, rationally conducted collective activity.”9 Therefore, this idea that warfare should be restrained by law is ancient. The laws of war originate in the just war theory developed by the great thinkers of our past, Saint Augustine (354-430) and Saint Thomas Aquinas (1225-1274).10 The just war theory distinguishes between the justice of war, jus
ad bellum, and the justice in war, jus in bello.11 Jus ad
bellum determines when resort to war is just and unjust.12 Historically, a just war required that the cause be just, that war be the last resort, that it be authorized by a lawful government, that the violence be proportional to the cause, that the war be fought with rightful intention rather than a mere pretext, and that the war carry a possibility of
Their Destruction (Ottawa Treaty) are examples of these types of treaties. Convention on the Probation of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, open for signature Dec. 3, 1977, 2056 U.N.T.S. 211; Convention on Probations or Restrictions of the Use of Certain Conventional Weapons which may be deemed Excessively Injurious or to have Indiscriminate Effects, open for signature Apr. 10 1981, 1342 U.N.T.S. 137. 8 DAVID LUBAN ET AL., INTERNATIONAL AND TRANSNATIONAL
CRIMINAL LAW 1039 (2010) (stating that the four bedrock principles of the rules of warfare are noncombatant immunity, proportionality, necessity, and no unnecessary suffering). 9 STEVEN C. NEFF, WAR AND LAW OF NATIONS: A GENERAL
HISTORY 16 (2005). 10 GREGORY M. REICHBERG ET AL., THE ETHICS OF WAR: CLASSIC
AND CONTEMPORARY READINGS (2006). 11 LUBAN, supra note 9, at 1039. 12 Id.
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success.13 Since World War II, jus ad bellum is governed by the United Nations (UN) Charter, Article 2(4), which bans “the threat or use of force against the territorial integrity or political independence of any state.”14 However, there are exceptions to Article 2(4), which allow war in cases of self-defense (Article 51) or when the UN Security Council authorizes it, provided they find a threat to or breach of international peace and security (Article 42).15 Jus in bello, on the other hand, determines whether combatants are fighting justly or unjustly.16 There are four main principles that govern jus in bello: The principle of distinction, the principle of proportionality, the principle of necessity, and the principle to avoid unnecessary suffering.17 The principle of distinction, or noncombatant immunity, distinguishes between civilians and combatants, in that combatants may be directly attacked, whereas civilians may not.18 However, civilians are only protected against direct attack “unless and for such time as they take direct part in hostilities.”19 In addition, combatants that have surrendered or become hors de combat (outside of combat), because of wounds or disease, are also protected from direct attacks.20 It is inevitable that some civilians will become collateral damage and be killed during war. However,
13
Id. 14 U.N. Charter, art. 2, para. 4; LUBAN, supra note 9, at 1040. 15 Id. at arts. 42, 51. 16 LUBAN, supra note 9, at 1040. 17 LUBAN, supra note 9, at 1040-42. 18 Id. at 1041 (citing J.I. HENCKAERTS ET AL., CUSTOMARY
INTERNATIONAL LAW OF WAR 3 (2005)). 19 Id. (citing J.I. HENCKAERTS ET AL., CUSTOMARY
INTERNATIONAL LAW OF WAR 3 (2005)). 20 Id. at 1040.
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collateral damage is permitted provided it is unintentional and is proportional to the military goals of such attack.21 This is known as the principle of proportionality.22 The next principle is the principle of necessity, which states that no violence is permitted unless militarily necessary, that is, unless it contributes to overcoming the enemy.23 Lastly, there is a principle to avoid any unnecessary suffering, which states that no violence is permitted that would inflict suffering for its own sake.24 The result of combatants complying with these jus in bello principles is that they receive belligerent privilege or immunity, and they will not incur criminal liability for killing or injuring the enemy, or even collateral damage, provided it was proportionate.25 Today, international humanitarian law is primarily governed by “Hague law” and “Geneva law,” as well as numerous treaties on specific subjects, such as prohibited weapons.26 The International Committee of the Red Cross (ICRC) has been essential in the creation and maintenance of international humanitarian law. The ICRC was founded in 1859, when a Swiss businessman, Henri Dunant, visited a battlefield after the Battle of Solferino during the Second War of Italian Independence.27 Appalled by the conditions of the wounded and dying men abandoned on the field and moaning in pain, Dunant founded the ICRC to aid and assist the victims of war.28 In addition, the ICRC lobbied states to negotiate treaties regulating the conduct of war.29 As a result, various states met at The Hague in 1899, and 21 Id. at 1041. 22 Id. 23 Id. 24 Id. 25 Id. at 1041-42. 26 Id. at 1043 27 Id. at 1042. 28 Id. 29 Id.
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again in 1907, to adopt The Hague Conventions, which codified the rules of war and most importantly, established the principle that the right of combatants to injury the enemy is not unlimited.30 These conventions are often referred to as “Hague law.”31 In 1949, again with the help of the ICRC, the Geneva Conventions were adopted to further specify the rules of war.32 Since then, the ICRC has become a major interpreter of international humanitarian law and its commentaries on the Geneva Conventions have “semi-official standing.”33 The Geneva Conventions were a significant development in the field of international humanitarian law.
II. The Geneva Conventions
After World War II, states met in Geneva,
Switzerland and adopted the four Geneva Conventions of 1949.34 These Conventions regulate the treatment of “protected persons,” which are civilians and hors de
combat, such as prisoners of war or sick and wounded combatants.35 The first Geneva Convention deals with wounded and sick soldiers in the field, while the second deals with the wounded, sick, and shipwrecked at sea.36 The third deals with the treatment of prisoners of war (POWs) and the fourth with the protection of civilians.37
30 Id. at 1043. 31 Id. at 1043. 32 Id. 33 Id. 34 Id. 35 Geneva Convention I, supra note 2; Geneva Convention II, supra note 2; Geneva Convention III, supra note 2; Geneva Convention IV, supra note 2. 36 See Geneva Convention I, supra note 2; Geneva Convention II, supra note 2. 37 See Geneva Convention III, supra note 2; Geneva Convention IV, supra note 2.
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The Geneva Conventions also distinguish between international armed conflicts and armed conflicts not of an international character, non-international or internal armed conflicts.38 Article 3, common to all Geneva Conventions, is the only provision that applies in non-international armed conflicts, whereas the rest of the provisions apply to international armed conflicts.39 In 1977, two additional protocols were adopted to supplement the Geneva Conventions and expand the protections of the victims of war.40 These protocols also distinguished between international and non-international armed conflicts – Additional Protocol I only applied to international armed conflicts while Additional Protocol II only applied to non-international armed conflicts.41
Because the applicability of the Geneva Conventions depends on the type of armed conflict, it is important to note when an armed conflict is international and when it is non-international. An “international” armed conflict requires that two or more states be involved in the armed conflict.42 In the reverse, a “non-international” armed conflict is an armed conflict that is not between two states, that is to say, an armed conflict within a state, such as a civil war or insurgency.43 This distinction is significant because there are far more protections for those in international armed conflicts.
38 See Geneva Convention I supra note 2; Geneva Convention II supra note 2; Geneva Convention III supra note 2; Geneva Convention IV supra note 2. 39 Common Article 3, supra note 4. 40 LUBAN, supra note 9, at 1043. 41 Id. 42 Id. at 1044 & n. 3. 43 Id. at 1060.
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A. “Grave Breaches” The rules in the Geneva Conventions for international armed conflicts are extensive and complex, and therefore, our focus will only be on the violations that amount to grave breaches. “Grave breaches” are the most serious war crimes and core violations common to all four Geneva Conventions.44 The grave breaches are, “any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health.”45 Geneva Conventions I, II, and IV also add “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”46 to the list of grave breaches. Other grave breaches include compelling prisoners of war (Geneva Convention III) or protected persons (Geneva Convention IV) to serve in the forces of a hostile power, and willfully depriving prisoners of war (Geneva Convention III) or protected persons (Geneva Convention IV) of their rights to a fair and regular trial.47 Geneva Convention IV further declares that unlawful deportation or confinement of a
44 Id. at 1047. 45 Geneva Convention I, supra note 2, art. 50, 6 U.S.T. at 3196, 75 U.N.T.S. at 62; Geneva Convention II, supra note 2, art. 51, 6 U.S.T. at 3250, 75 U.N.T.S. at 116; Geneva Convention III, supra note 2, art. 130, 6 U.S.T. at 3420, 75 U.N.T.S. at 238; Geneva Convention IV, supra note 2, art. 147, 6 U.S.T. at 3618, 75 U.N.T.S. at 388. 46 Geneva Convention I, supra note 2, art. 50, 6 U.S.T. at 3196, 75 U.N.T.S. at 62; Geneva Convention II, supra note 2, art. 51, 6 U.S.T. at 3250, 75 U.N.T.S. at 116; Geneva Convention IV, supra note 2, art. 147, 6 U.S.T. at 3618, 75 U.N.T.S. at 388. 47 Geneva Convention III, supra note 2, art. 130, 6 U.S.T. at 3420, 75 U.N.T.S. at 238; Geneva Convention IV, supra note 2, art. 147, 6 U.S.T. at 3618, 75 U.N.T.S. at 388.
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protected person, and taking hostages are grave breaches as well.48 Each state is required to criminalize grave breaches of the Geneva Conventions domestically, giving states universal jurisdiction over these specific violations.49 States must “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches.”50 In addition, each state has an “obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts” or “hand such persons over for trial to another High Contracting Party.”51 This concept is also known as the “try or extradite” principle or aut dedere aut judicare.52 Furthermore, all Geneva Conventions provide that no state party can be absolved of any liability incurred in regards to these grave breaches, meaning that no amnesties may be granted.53 Additional Protocol I to the Geneva Conventions not only expanded the protections applicable in international armed conflict, but also expanded the list of
48 Geneva Convention IV, supra note 2, art. 147, 6 U.S.T. at 3618, 75 U.N.T.S. at 388. 49 See Geneva Convention I supra note 2; Geneva Convention II supra note 2; Geneva Convention III supra note 2; Geneva Convention IV supra note 2. 50 See Geneva Convention I supra note 2; Geneva Convention II supra note 2; Geneva Convention III supra note 2; Geneva Convention IV supra note 2. 51 See Geneva Convention I supra note 2; Geneva Convention II supra note 2; Geneva Convention III supra note 2; Geneva Convention IV supra note 2. 52 CARTER, supra note 7, at 1120. 53 Id. at 1117.
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“grave breaches” that give rise to universal jurisdiction.54 For example, Additional Protocol I added to the list of grave breaches prohibitions of acts, such as: making protected persons the object of attack, perfidious use of the red cross emblem, unjustifiable delay in repatriation of protected persons, apartheid and other inhuman and degrading practices involving outrages upon personal dignity, attacks on historic monuments, works of art, or places of worship.55 In addition, Additional Protocol I states, “[a]ny willful act or omission which seriously endangers the physical or mental health or integrity of any person who is in the power of a Party other than the one on which he depends…shall be a grave breach of this Protocol.”56 While all provisions in the Geneva Conventions apply to international armed conflicts, only one article in the Geneva Conventions applies to non-international armed conflicts; Article 3.57 B. Common Article 3 Article 3, common to all four Geneva Conventions, is specifically concerned with armed conflicts not of an international character, and is the only provision in the Conventions related to such internal conflicts.58 Common Article 3 provides:
54 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted by June 8, 1977, 1125 U.N.T.S. 3, 41-42 [hereinafter Additional Protocol I]. 55 Id. 56 Id. at art. 11, para. 4. 57 Common Article 3, supra note 4. 58 Anthony Cullen, The Parameters of Internal Armed Conflict in
International humanitarian law, 12 U. MIAMI INT’L & COMP. L. REV. 189, 193 (2004).
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In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees
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which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.59
These protections are significantly less protective
than those protections given in an international armed conflict. However, states attempted to fix this issue by adopting Additional Protocol II in 1977.60 C. Additional Protocol II Similar to Common Article 3, the Additional Protocol II to the Geneva Conventions only applies to armed conflicts of non-international character.61 Additional Protocol II was intended to supplement Common Article 3 and advance the protections of persons
59 Common Article 3, supra note 4. 60 Cullen, supra note 59, at 199. 61 Charles Lysaght, The Scope of Protocol II and its Relation to
Common Article 3 of the Geneva Conventions of 1949 and other
Human Rights Instruments, 33 AM. U. L. REV. 9, 25 (1983).
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taking no active part in hostilities.62 Additional Protocol II includes all of the Common Article 3 protections and adds: order that there shall be no survivors, violence to the health and physical or mental well-being of persons, corporal punishment, collective punishments, acts of terrorism, rape, enforced prostitution, indecent assault, slavery, slave trade, pillage, and threats to commit any of the foregoing acts, to the list of prohibited acts towards protected persons.63
Children receive special protections in Protocol II, whereas they did not in Common Article 3. Although children may have fallen under Common Article 3 protections as persons taking no active part in hostilities, Additional Protocol II extends protections specifically for children and creates affirmative obligations regarding the treatment of children.64 For example, children under the age of fifteen years shall not be recruited in the armed forces or groups, and should they take part in hostilities and are captured, children under the age of fifteen are still afforded special protection.65 Also, those facing punishment of criminal offenses related to the armed conflict under the age of eighteen at the time of the offense shall not be given the death penalty.66 Additionally, there are affirmative obligations to: provide children with care and aid, facilitate the reunion of families temporarily separated, and to remove children temporarily from areas where hostilities are taking place to a safer area.67
Those, whose liberty has been restricted, such as people interned or detained, also receive more protections
62 Id. 63 Additional Protocol II, supra note 5, at art. 4(2). 64 Id. at art. 4(3)(c)-(d). 65 Id. 66 Id. at art. 6(4). 67 Id. at art. 4(3)(b),(e).
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under Additional Protocol II.68 These protected persons shall “be provided with food and drinking water and be afforded safeguards as regards health and hygiene and protection against the rigors of the climate and the dangers of the armed conflict . . . allowed to practi[c]e their religion . . . if made to work, have the benefit of working conditions and safeguards . . . allowed to send and receive letters and cards . . . have the benefit of medical examinations,” among other protections.69 Additional Protocol II also expanded upon the safeguards required during prosecutions and punishment of criminal offenses related to the armed conflict, and encourages authorities in power at the end of hostilities to “grant the broadest possible amnesty to persons who have participated in the armed conflict.”70
The most important advances of Additional Protocol II are the specific protections for civilian populations. Generally, civilian populations shall not be the object of attack, and “[a]cts or threats of violence[,] the primary purpose of which is to spread terror among the civilian population[,] are prohibited.”71 Starvation of civilians as a weapon of war is prohibited. As such, it is prohibited to “attack, destroy, remove or render useless for that purpose, objects indispensable to the survival of the civilian population such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works.”72 Attacks against “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples . . .” are prohibited.73 Displacement of civilian
68 Id. at art. 5(1)-(2). 69 Id. 70 Id. at art. 6. 71 Id. at art. 13(2). 72 Id. at art. 14. 73 Id. at art. 16.
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populations shall not be ordered, unless the civilians’ security is at risk or military necessity demands it, and in such case, conditions of shelter, hygiene, health, safety and nutrition must be satisfactory.74 Additionally, the protection and care for the wounded, sick and shipwrecked, as well as medical and religious personnel, was also extended in Additional Protocol II.75 Although Additional Protocol II expanded protections afforded in non-international conflicts, there are still many issues with international humanitarian law in non-international armed conflicts. III. The Problem: International Humanitarian Law in
Non-international Armed Conflicts
The distinction between international and non-international armed conflicts in international humanitarian law is a growing problem. Steven Solomon, the Principal Legal Officer of the World Health Organization, agrees. He says, “[s]imply put, conduct which was prohibited in international warfare was not specifically prohibited in internal warfare. There was, in a word, a gap in the law and, consequently, a gap in the protections available for those caught up in non-international armed conflicts.”76 One of the problems with international humanitarian law for non-international armed conflicts is the difficulty of the applying Common Article 3 and Additional Protocol II.77 Another problem is that protected persons, particularly combatants that are captured, in non-international armed
74 Id. at art. 17. 75 Id. at arts. 7-12. 76 Steven Solomon, Internal Conflicts: Dilemmas and
Developments, 38 GEO. WASH. INT’L L. REV. 579, 580 (2006). 77 Anthony Cullen, Key Developments Affecting the Scope of
Internal Armed Conflict in International Humanitarian Law, 183 MIL. L. REV. 66, 67 (2005).
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conflicts receive fewer protections than those of international armed conflicts.78 But the most significant problem is the lack of enforcement mechanisms in international humanitarian law for non-international armed conflicts.79 A. The Applicability of Common Article 3 and
Additional Protocol II
It is difficult to determine exactly when Common Article 3 applies to a situation. Common Article 3 does not set out any standards to determine when an internal armed conflict is occurring and therefore there are no standards determining its applicability. This is an issue because the recognition of the existence of an armed conflict is then left to the discretion of the state hosting the conflict.80 Therefore, the implementation of Common Article 3 is based on the willingness of that state to recognize the armed conflict. Should the state refuse to recognize the armed conflict, it avoids application of Common Article 3.81 Thus, the problem is that “[i]ndividual states are . . . left with a carte blanche to decide when . . . [C]ommon Article 3 should be invoked.”82 States are unlikely to recognize an armed conflict because it would limit the use of repressive measures in which the state could employ to
78 Laura Lopez, Uncivil Wars: The Challenge of Applying
International Humanitarian Law to Internal Armed Conflicts, 69 N.Y.U. L. REV. 916, 933-36 (1994). 79 Lysaght, supra note 62, at 27. 80 Cullen, The Parameters of Internal Armed Conflict in
International Humanitarian Law, supra note 59, at 198. 81 Cullen, Key Developments Affecting the Scope of Internal Armed
Conflict in International Humanitarian Law, supra note 78, at 108. 82 Id. at 97.
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suppress such conflict.83 This results in Common Article 3 not applying in many situations in which it should.
Although Additional Protocol II has more protections than Common Article 3, as previously discussed, its application is much more limited than that of Common Article 3.84 Additional Protocol II is limited to armed conflicts between High Contracting Parties’ armed forces and “dissent armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.”85 There is no language in Common Article 3 stipulating as to the type of armed forces required for its application–it only requires that there simply be an “armed conflict” within the territory of a High Contracting Party.86 Furthermore, Additional Protocol II “shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”87
In Prosecutor v. Tadić, the International Criminal Tribunal for the former Yugoslavia (ICTY) defined armed conflict, with regard to internal armed conflicts, as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”88 Therefore, there is a higher
83 Cullen, The Parameters of Internal Armed Conflict in
International Humanitarian Law, supra note 59, at 197. 84 Lysaght, supra note 62, at 22. 85 Additional Protocol II, supra note 5, at art. 1(1). 86 Common Article 3, supra note 4. 87 Additional Protocol II, supra note 5, at art. 1(2). 88 Prosecutor v. Dusko Tadić, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (Int’l Crim. Trib. For the Former Yugoslavia Oct. 2, 1995) (emphasis added).
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threshold to trigger the application of Additional Protocol II than there is for Common Article 3. Not only must the armed groups be “organized,” but they must be “under responsible command” and “exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.”89 Therefore, not all cases of non-international armed conflicts will be covered by Additional Protocol II. For example, Additional Protocol II will “probably not operate in a civil war until the rebels [are] well established and [have] set up some form of de facto government.”90 In addition, only 166 countries are state parties to Additional Protocol II, compared to the 194 state-parties to the Geneva Conventions; therefore, the Additional Protocol II applies in fewer states than the Geneva Conventions.91 The inability to trigger the application of these instruments leaves victims of non-international armed conflicts without protection.
B. No Status for Combatants Even when Common Article 3 and Additional Protocol II are triggered, combatants in non-international armed conflicts do not receive as much protections as combatants in international armed conflicts. Unlike combatants in international armed conflicts, combatants in non-international armed conflicts do not receive belligerent privilege or immunity, nor do they receive prisoner of war
89 Additional Protocol II, supra note 5, at art. 1(1). 90 LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED
CONFLICT 66-67 (1999). 91 International Commission of the Red Cross (ICRC), The Geneva
Conventions of 1949 and their Additional Protocols, ICRC (Oct. 29, 2010), http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm and http://www.icrc.org/ihl.nsf/INTRO/475?OpenDocument.
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(POW) status if captured.92 This refusal to recognize such a status for combatants in internal armed conflicts is exemplified by the provision in Common Article 3 declaring that it “shall not affect the legal status of the Parties to the conflict.”93 The ICRC, commenting on this provision, confirms the lack of status for combatants of non-international armed conflicts, stating that “the Article does not give [the adverse party] any right to special protection or any immunity, whatever it may be and whatever title it may give itself or claim.”94 As you may recall, belligerent privilege or immunity means that the combatant may not be held criminally liable for killing or injuring the enemy during an armed conflict, but can only be held accountable for gross violations of international humanitarian law.95 Without such belligerent immunity, combatants in internal armed conflicts may be prosecuted and punished for violating any national laws during the conflict, unlike combatants in international armed conflicts.96 Common Article 3 does not affect the legal or political treatment that the combatant may receive as a result of his behavior, that is, the article doesn’t affect the state’s right to prosecute, try and sentence adverse combatants for their crimes, according to its national laws.97
92 Lopez, supra note 79, at 933-34; see also Lysaght, supra note 62, at 21. 93 Common Article 3, supra note 4. 94 International Committee of the Red Cross (ICRC), Commentary on Art. 3 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War, (Aug. 12, 1949), http://www.icrc.org/ihl.nsf/COM/380-600006?OpenDocument. 95 LUBAN, supra note 9, at 1042. 96 Cullen, supra note 78, at 86. 97 Commentary on Art. 3 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War, supra note 95.
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In addition to not receiving belligerent immunity, combatants in non-international armed conflicts are not extended POW status if captured during the conflict.98 Whereas all of the protections in the Geneva Convention III regarding the treatment of POWs apply to captured combatants of international armed conflicts, none of these protections are afforded to combatants captured in internal armed conflicts.99 For example, POWs must be detained under special conditions and at the end of the conflict POWs must be repatriated, whereas captured combatants in non-international armed conflicts are not required to be repatriated after the conflict.100
In Hamdan v. Rumsfeld, the Supreme Court of the United States discussed which Geneva Convention protections applied to Hamdan, who was captured in 2001 during hostilities in Afghanistan.101 The Court found the conflict to which Hamdan was involved to be “not of an international character” because this particular incident involved al Qaeda, a non-state actor, rather than the armed forces of Afghanistan, which would have made the conflict an international one.102 Thus, the Court found that Common Article 3 applied to the situation. However, the Court noted that the article provides less protection for Hamdan than the rest of the Geneva Conventions, stating, “Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a non-signatory who are involved in a
98 Lopez, supra note 79, at 933-34. 99 See Geneva Convention III, supra note 2 (listing the rights and protections of POWs captured in international armed conflicts). 100 Roy S. Schndorf, Extra-State Armed Conflicts: Is There a Need
for a New Legal Regime?, 37 N.Y.U. J. INT’L L. & POL. 1, 70 (2004). 101 Hamdan v. Rumsfeld, 548 U.S. 557, 566 (2006). 102 Id. at 629.
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conflict ‘in the territory of’ a signatory.’”103 The case focused specifically on the judicial proceedings and guarantees required by Common Article 3. Common Article 3(1)(d) prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”104 Although Common Article 3 does not define the terms of this requirement, the Court understood the requirement to mean “at least the
barest of those trial protections that have been recognized by customary law.”105 The Court in the Hamdan case continued, saying that, “Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones.”106 The Hamdan case exemplifies the lack of protection, particularly judicial guarantees, provided to captured combatants in non-international armed conflicts. Captured combatants in non-international armed conflicts are also at a higher risk of harsh treatment while detained. Captured combatants in non-international armed conflicts are protected from “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture . . . outrages upon personal dignity, in particular, humiliating and degrading treatment” under Common Article 3.107 However, POWs in an international conflict are protected from “willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health” under Article 130 and from “[a]ny unlawful act or omission by the Detaining Power causing death or
103 Id. at 630. 104 Common Article 3, supra note 4. 105 Hamdan, 548 U.S. 557 at 633 (emphasis added). 106 Id. at 635. 107 Common Article 3, supra note 4.
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seriously endangering the health of a prisoner of war in its custody . . . physical mutilation or medical or scientific experiments of any kind . . . acts of violence or intimidation and against insults and public curiosity . . . [and] measures of reprisal against prisoners of war” under Article 13 of the Geneva Convention III, regarding the treatment of POWs.108 POWs in international conflicts receive extensive protections compared to combatants of non-international conflicts. As such, even omissions that could endanger the health of POWs and acts of intimidation are violations of the Geneva Conventions.109 In addition, the ICRC has permission to visit POWs in international conflicts to ensure compliance, whereas in non-international conflicts, the ICRC can merely offer its services, which can be rejected by the host state.110
This lack of status for combatants in non-international armed conflicts is an issue because these combatants receive all the burdens of being a combatant without any of the benefits of being a combatant. The burden is that these combatants do not receive civilian status and therefore may be directly targeted.111 But these same combatants are still not given the benefit of POW status and all the protections that follow such status if captured. Therefore, combatants in non-international armed conflicts have no incentive to abide by the rules of war; they are neither protected nor restrained.112
108 Geneva Convention III, supra note 2, at art. 130. 109 Id. 110 Common Article 3, supra note 4. 111 Common Article 3, supra note 4; LUBAN, supra note 9, at 1040-41 (citing J.I. HENCKAERTS ET AL., CUSTOMARY INTERNATIONAL LAW
OF WAR 3 (2005)). 112 Lopez, supra note 79, at 934.
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C. Failure to Enforce The most significant failure of Common Article 3 and Additional Protocol II is that they lack an enforcement clause. While the Geneva Conventions for international armed conflicts require states to “enact any legislation necessary to provide effective penal sanctions” and “bring such persons, regardless of their nationality, before its own courts” or “hand such persons over for trial to another,” neither Common Article 3 nor Additional Protocol II call for such action in non-international armed conflicts.113 Thus, states are not required to prosecute war criminals in non-international armed conflicts, like they are required to in international armed conflict. In fact, there is not even an article stating that parties shall ensure the observance of Common Article 3 or Additional Protocol II.114 However, all Geneva Conventions include an article that requires state parties to “undertake to respect and to ensure respect for the present Convention in all circumstances.”115 On the contrary, Common Article 3 states that it “shall not affect the legal status of the Parties to the conflict.”116 ICRC commentary suggests that this provision means that Common Article 3 “is in no way concerned with the internal affairs of States” and “does not limit in any way the Government’s right to suppress a rebellion using all the means – including arms – provided for under its own
113 Geneva Convention I, supra note 2, art. 49, U.S.T. at 3146, 75 U.N.T.S. at 62; Geneva Convention II, supra note 2, art 50, 6 U.S.T. at 3250, 75 U.N.T.S. at 116; Geneva Convention III, supra note 2, art 129, 6 U.S.T. at 3418, 75 U.N.T.S. at 236; Geneva Convention IV, supra note 2, art. 146, 6 U.S.T. at 3616, 75 U.N.T.S. at 386. 114 Lysaght, supra note 62, at 25. 115 Geneva Convention I, supra note 2, at art. 1; Geneva Convention II, supra note 2, at art. 1; Geneva Convention III, supra note 2, at art. 1; Geneva Convention IV, supra note 2, at art. 1. 116 Common Article 3, supra note 4.
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laws.”117 The result is that, not only are violators going unpunished, but also the parties are encouraged to engage in measures that violate international humanitarian law, thinking that they will not be held accountable. The enforcement of Additional Protocol II is not any better than that of Common Article 3. Additional Protocol II not only promotes impunity with the lack of an enforcement provisions, but also encourages granting amnesty for criminal offenses related to the armed conflict. Article 6(5) of Additional Protocol II states that, “the authorities in power shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict.”118 However, a state party in international armed conflicts is not allowed to absolve itself or any other state of any liability incurred for grave breaches, such as granting amnesty.119 Furthermore, Additional Protocol II has an article dedicated specifically to the principle of non-intervention. Article 3 of Additional Protocol II declares: (1) Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State. (2) Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or
117 ICRC, Commentary on the Convention (I) for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in the Field, at 60-61 (Aug. 12 1949). 118 Additional Protocol II, supra note 5, at art. 6(5). 119 Geneva Convention I, supra note 2, art. 51, 6 U.S.T. at 3196, 75 U.N.T.S. at 62; Geneva Convention II, supra note 2, art. 52, 6 U.S.T. at 3250, 75 U.N.T.S. at 116; Geneva Convention III, supra note 2, art. 131, 6 U.S.T. at 3420, 75 U.N.T.S. at 238; Geneva Convention IV, supra note 2, art. 148, 6 U.S.T. at 3618, 75 U.N.T.S. at 388.
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external affairs of the High Contracting Party in the territory of which that conflict occurs.120
Thus, Additional Protocol II cannot be used as a pretext or justification to intervene in an internal armed conflict.121 States are discouraged from prosecuting war criminals in internal armed conflicts and are prohibited from intervening to help the victims of internal armed conflicts.
IV. Resolution: No Distinction In 1977, during the Diplomatic Conference which produced the Additional Protocols, Norway proposed that there should no longer be a distinction between international and non-international armed conflicts.122 This proposal was based on the idea that “victims in all situations of armed conflict, whatever their nature, are subject to the same suffering and should be helped in the same way.”123 From 1990 to 2000, there were fifty-three non-international conflicts and just three international armed conflicts.124 There continues to be significantly more non-international armed conflicts in the world than there are international armed conflicts. So, today there are more victims of war with less protection than when the Geneva Conventions were created and when international armed conflicts were more prevalent. This result cannot possibly be the intent of international humanitarian law, or the intent of the states when they gathered at Geneva in 1949. The way to resolve this issue, as the Norwegians
120 Common Article 3, supra note 4. 121 Id. 122 Solomon, supra note 77, at 581. 123 ICRC, Commentary on the Additional Protocols of 8 June 1977
to the Geneva Conventions of 12 August 1949, at 1328 n. 31. 124 Solomon, supra note 77, at 579.
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proposed, is to no longer distinguish non-international from international armed conflicts.125 International humanitarian law of international armed conflicts should then be applied to all armed conflicts, regardless of where the conflict occurs and by whom the conflict is fought. How can the elimination of this distinction be effectuated? International law is created either by international conventions or treaties and international custom, a general practice accepted as law.126 It is highly unlikely that states would agree to amend the Geneva Conventions or adopt a new instrument that would eliminate this distinction because such actions would threaten their sovereignty.127 This is evidenced by the lack of signatories (including the United States) to Additional Protocol II, which sought to extend protections to victims of internal armed conflicts.128 The Restatement (Third) of Foreign Relations Law defines customary international law as resulting “from a general and consistent practice of states followed by them from a sense of legal obligation.”129 Although it is argued that Common Article 3 is considered customary international law, there is no evidence that the rest of the provisions in the Geneva Conventions–those applying to international conflicts–have been applied to internal armed conflicts. In order for the elimination of the distinction to become customary law, states must apply international humanitarian law of international conflicts to their internal conflicts in a 125 Id. at 581. 126 Statute of the International Court of Justice, art. 38, para.1, available at http://.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0&PHPSESSID=ff1ae5b7c3b59702f0c5f132cc7cc2e1#CHAPTER_III. 127 Lopez, supra note 79, at 950. 128 1949 Conventions & Additional Protocols, supra note 92. 129 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 102(2) (1987).
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consistent way, and do this in the belief that they are legally obligated to.130 However, states have been reluctant to take the steps necessary to effectuate the elimination of the distinction by way of custom. For example, in Hamdan v.
Rumsfeld, the United States refused to give a combatant of a non-international conflict any more protections than what was required by Common Article 3.131 So we must ask, is there a higher law that can govern this issue? A. Saving All Victims from the Scourge of All Wars
The United Nations (UN) Charter declared that the
peoples of the UN are “determined to save succeeding generations from the scourge of war . . . and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”132 Notice that in the UN Charter–which is arguably the constitution of the world and at the top of the hierarchy of international conventions–there is no distinction between international wars or non-international wars. Stated simply, the purpose of the UN is to save people from “the scourge of war” in general, implying all wars.133
The Charter goes on to reaffirm the “dignity and worth of the human person,” that is to say all people.134 Additionally, the Charter notes the equality of “nations large and small,” further eliminating a distinction based on geography.135 If the ultimate goal of all states in the world is to save all people from the scourge of all wars in all
130 Id. 131
See Hamdan v. Rumsfeld, 548 U.S. 557, 566 (2006). 132 U.N. Charter pmbl. 133 Id. 134 Id. 135 Id.
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territories, why is there a difference in the protection of these people depending on the type of war or where it is fought? Logically, a distinction does not make sense. Furthermore, Article 103 of the Charter states, “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”136 Thus, the Charter trumps any treaty provisions inconsistent with its purpose and principles, such as Common Article 3 and Additional Protocol II, which claims there is a distinction between the international and internal wars, and the protections afforded in each. B. Internal Conflicts are International Conflicts
Another way to eliminate the distinction between international and internal armed conflict is through creative interpretation. The UN’s purpose is “[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.”137 Under Chapter VII, the UN Security Council determines when a threat to or breach of international peace and security exists and then decides which measures to take, whether it involves armed force (Article 42) or not (Article 41).138
Throughout history, the Security Council has declared many internal conflicts as threats to and breaches of international peace, and continues to do so. In 1993, the Security Council, in response to the internal armed conflict 136 Id. at art. 103. 137 Id. at art. 1. 138 Id. at art. 39, 41-42.
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occurring in Yugoslavia, adopted Resolutions 808 and 827, both “[d]etermining that this situation constitutes a threat to international peace and security.”139 A year later, the Security Council adopted Resolution 955, declaring the internal conflict in Rwanda as constituting a threat to international peace and security.140 The Security Council declared the internal conflict in Darfur, Sudan a threat to international peace and security in multiple resolutions.141 And in 2011, the Security Council declared the internal conflict in Libya as constituting a threat to international peace and security through Resolution 1973.142
It is clear that internal conflicts can rise to the degree constituting a threat to international peace and security, calling for international measures to be taken. Therefore, it be said that such internal conflicts become international conflicts when they threaten or breach international peace and security. By threatening the peace and security of other states, internal conflicts become a problem for other states, thus becoming an international conflict. International humanitarian law of international conflicts can then be applied to the situation. From the time that the Geneva Conventions were adopted in 1949 until the present, the world has become more globalized and states have increasingly become more interconnected and dependent upon each other. President Mohammed Bedjaoui in the advisory opinion on the 139 S.C. Res. 808, ¶ 7, U.N. Doc. S/RES/808 (Feb. 22, 1993); S.C. Res. 827, ¶ 4, U.N. Doc. S/RES/827 (May 25, 1993). 140 S.C. Res. 955, ¶ 5, U.N. Doc. S/RES/955 (Nov. 8, 1994). 141 See S.C. Res. 1556, ¶ 21, U.N. Doc. S/RES/1556 (July 30, 2004); S.C. Res. 1564, ¶ 14, U.N. Doc. S/RES/1564 (Sept. 18, 2004); S.C. Res. 1591, ¶ 17, U.N. Doc. S/RES/1591 (March 29, 2005); S.C. Res. 1706, ¶ 12, U.N. Doc. S/RES/1706 (Aug. 31, 2006); S.C. Res. 1769, ¶ 16, U.N. Doc. S/RES/1769 (July 31, 2007). 142 S.C. Res. 1973, ¶ 20, U.N. Doc. S/RES/1973 (March 17, 2011).
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Legality of the Threat or Use of Nuclear Weapons discusses this issue:
It scarcely needs to be said that the face of contemporary international society is markedly altered . . . the progress made in terms of the institutionalization, not to say integration and “globalization”, of international society is undeniable. Witness the proliferation of international organizations, the gradual substitution of an international law of co-operation for the traditional international law of co-existence, the emergence of the concept of “international community” . . . A token of all these developments is the place which international law now accords to concepts such as obligations erga omnes, rules of jus cogens, or the common heritage of mankind. The resolutely positivist, voluntarist approach of international law still current at the beginning of the century… has been replaced by an objective conception of international law, a law more readily
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seeking to reflect a collective juridical conscience and respond to the social necessities of States organized as a community.143
So, a conflict in one state will inevitably affect other
states because of their interconnectedness, and possibly the international community as a whole. Thus, an armed conflict in one state is a conflict in other states, making such a conflict an international one. Internal conflicts are international conflicts, and should be treated as such.
C. All States Owe a Duty during Internal Armed
Conflicts
Some rules by their very nature are “the concern of
all states,” and thus, “all states can be held to have a legal interest in their protection.”144 Such rules are referred to as obligations erga omnes, and each state owes a duty to the international community as a whole to fulfill such obligations.145 Because all states owe a duty to the international community with regard to these obligations and all states have an interest their observance, matters involving such obligations are no longer solely within the domestic jurisdiction of the state in question.146
The ICRC, commenting on Geneva Convention IV
regarding the protection of civilians, stated that “the spirit which inspires the Geneva Conventions naturally makes it
143 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 270 (July 8). 144 Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5). 145 Id. 146 Id.
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desirable that they should be applicable ‘erga omnes.’”147 In addition, the International Court of Justice (ICJ), in its advisory opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian
Territory and its judgment in the Case Concerning Armed
Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), declared international humanitarian law as having obligations erga omnes.148 Obligations erga omnes are so significant that Judge Bruno Simma, in his separate opinion in the Case Concerning
Armed Activities on the Territory of the Congo, believed that:
If the international community allowed such interest to erode in the face not only of violations of obligations erga omnes but of outright attempts to do away with these fundamental duties, and in their place to open black holes in the law in which human beings may be “disappeared” and deprived of any legal protection whatsoever for indefinite periods of time, then international law, for me,
147 ICRC, Commentary on the Geneva Convention (IV) relative to
the Protection of Civilian Persons in Time of War, at 16 (Aug. 12,1949) 148 Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 199 (July 9); Case Concerning Armed Activities on the Territory of the
Congo (Dem. Rep. of the Congo v. Uganda), 2005 I.C.J. 168, 349 (Dec. 19).
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would become much less worthwhile.149
Therefore, the obligations delegated by international
humanitarian law are so important that they concern all
states, all states have an interest in them, and all states owe such obligations to all other states. For such fundamental obligations, it seems strange that such obligations would vary depending on the type of circumstances involved, in this case the type of armed conflict involved. Furthermore, if the protection of civilians during war and the special treatment of POWs are so essential as to be the concern of all states, the lack of such protection or special treatment in non-international conflicts would seem to defeat the purpose of making them erga omnes obligations. In order to properly fulfill the obligations erga omnes of international humanitarian law, the rules governing international armed conflicts must be applied to all armed conflicts, including non-international armed conflicts.
Conclusion By their nature, the protections afforded to victims of war and the prohibited acts in warfare are of international concern and interest. Thus, the absence of these protections and the occurrence of such prohibited acts in internal armed conflicts, create a conflict for the international community as a whole. As such, internal armed conflicts should be treated like international armed conflict, in which all provisions of the Geneva Conventions apply. There should be no distinction between international and internal armed conflicts when it comes to the application of international humanitarian law. War is 149 Case Concerning Armed Activities on the Territory of the
Congo, supra note 149, at 350 (2005) (Simma, J., in a separate opinion).
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horrific no matter where it occurs and victims of internal armed conflicts suffer as much as victims of international armed conflicts. The outdated notion that victims of war should receive less protection, and that perpetrators of war crimes should go free, merely because the armed conflict was internal to one state, is an injustice to that state and those victims. Such injustice is a threat to all states and to the stability of the international community, and therefore should no longer be tolerated.
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GEORGE WEBER
The Humanitarian and Human Right
Duties of the United Nations Security Council
ABSTRACT.
International intervention has increased in recent history for the abuses of humanitarian law and human rights. This article reflects on the history of human rights and humanitarian law reasoned interventions authorized by the United Nations Security Council and examines whether a duty now exists in international law for future action. The question of whether a duty exists, and the legal repercussions of failing to exercise that duty, is of paramount importance to international law. Whether the duty currently exists or is currently developing, the analysis that follows will show why the Security Council should have the duty of intervention and how the duty is emerging from both practice and necessity.
AUTHOR.
George Weber is President of the International Law Society and Editor in Chief of the Journal of International Law at the University of Baltimore School of Law. He serves as a student fellow to the Center for International and Comparative Law and will be earning a concentration certificate in International and Comparative Law when he earns his Juris Doctor in May 2013. He will also be attending Georgetown University Law Center to pursue his Master of Laws (LL.M.) degree in individualized study tailored to International Law, Foreign Relations Law of the United States, and National Security Law.
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Table of Contents
Introduction 223
I. Security Council: A Merely Permissive Legal Framework 226
II. Importance of Human Rights, Humanitarian Law, and the Responsibility to Protect 230
III. Intervention Beyond the United Nations Framework 235
IV. Past and Present Practice of the Security Council 241
V. Duty to Authorize Intervention – A Proposed Logical Legal Framework 252
Conclusion 256
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Introduction It was generally agreed that the situation in Libya,
where government forces targeted civilians, authorized unlawful killings, committed sexual violence, and recruited children for armed conflict, was a violation of human rights and international humanitarian law.1 Due to the circumstances of armed violence in Libya, the United Nations Security Council passed Resolution 1973 (2011) to authorize intervention in order to stop violations of human rights law, international humanitarian law, and crimes against humanity.2 The Security Council authorized intervention, as it has done in the past, to protect people from internal abuse by state governmental authority.
This article examines whether the Security Council has developed a duty to authorize intervention when gross human rights and humanitarian law violations occur. Although past cases have seen the Security Council authorize intervention in situations where human rights and humanitarian law are violated, little thought is given as to whether there is a duty to authorize such intervention.3
In analyzing the question in support of a duty, I will examine the international importance placed on human rights and humanitarian law by treaty and custom; how the
1 See. S.C. Res. 1973, U.N. Doc. S/RES/1973 (March 17, 2011). Resolution 1973 describes the official reasons for authorizing intervention and gives the Security Council’s views regarding the situation in Libya as a definite violation of human rights and international humanitarian law. Id. 2 Id. 3 See infra notes 85-120.
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United Nations Charter framework, in its present form, ensures that human rights and humanitarian law are adhered to only on a selective basis; why the ultimate responsibility to ensure adherence falls to the Security Council; and how that responsibility has been exercised in the past by the Security Council.
This question is particularly relevant considering the “Arab Spring” taking place in northern Africa and the Middle East.4 In Syria, for example, there is extensive evidence that governmental forces have committed human rights violations against their own citizenry.5 In the case of Syria, however, the Security Council has been slow to reply compared to the overwhelming response to the Libyan situation. Although the Security Council had at one point responded by requiring a cease-fire and sending unarmed observers, there is little evidence of that limited measure’s success considering the history of the protracted conflict
4 The Arab Spring is “a succession of civilian uprisings” in the Middle East and Northern Africa targeted at oppressive regimes. Jonathan Masters, Issue Guide: One Year of ‘Arab Spring’ Upheavals, COUNCIL ON FOREIGN RELATIONS, (Dec. 12, 2011), http://www.cfr.org/middle-east/issue-guide-one-year-arab-spring-upheavals/p26764. 5 See S.C. Res. 2043, U.N. Doc. S/RES/2043 (Apr. 21, 2012); S.C. Res 2042, U.N. Doc. S/RES/2042 (Apr. 14, 2012); Michael Haggerson, UN investigators: human rights violations in Syria increasing, JURIST (Sept. 17, 2012), http://jurist.org/paperchase/2012/09/un-investigators-human-rights-violations-in-syria-increasing.php; Human Rights in
Syria, HUMAN RIGHTS WATCH, http://www.hrw.org/node/106266 (last visited Apr. 14, 2013); Independent UN panel urges action amid
ongoing human rights abuses in Syria conflict, UN NEWS CENTRE (Feb 18, 2013), http://www.un.org/apps/news/story.asp?NewsID=44163&Cr=syria&Cr1=human%20rights#.UVO0jL9i5hg; UN Report: Syrian forces commit
‘gross violations’ of human rights, CNN (Nov. 29, 2011), http://www.cnn.com/2011/11/28/world/meast/syria-un-report.
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and evidence of defiance on the part of the parties involved.6
When violations of human rights, international humanitarian law, and crimes against humanity occur, what entity other than the Security Council has the authority under international law to authorize intervention? Are states able to intervene lawfully without the Security Council’s authority? The answer to the latter question is probably not.7
The question of whether a duty exists and the legal repercussions of failing to exercise that duty are of paramount importance to international law. Regardless of whether there is an existing duty, this paper attempts to answer why the Security Council should have a duty to authorize intervention in the face of gross human rights violations while still respecting the fundamental precepts to the principle of non-intervention. Although there may not be enough agreement to state with certainty that such a duty currently exists, there is certainly evidence of an emerging duty on the part of the Security Council to intervene in cases of gross human rights violations. Moreover,
6 S.C. Res 2043, U.N. Doc. S/RES/2043 (April 21, 2012); S.C. Res. 2042, U.N. Doc. S/RES/2042 (April 14, 2012); Independent UN
panel urges action amid ongoing human rights abuses in Syria conflict,
UN NEWS CENTER (Feb 18, 2013), http://www.un.org/apps/news/story.asp?NewsID=44163&Cr=syria&Cr1=human%20rights#.UVO0jL9i5hg; CNN Wire Staff, U.N. authorizes
300 unarmed Syria monitors, CNN (Apr. 21, 2012), http://www.cnn.com/2012/04/21/world/meast/syria-unrest/index.html?hpt=hp_t1. 7 U.N. Charter art. 2, para. 4. The United Nations Charter specifically decries in Article 2(4) that states cannot violate the sovereign territorial integrity of another state. The exceptions to this rule are outlined in Chapter VII where the Security Council can authorize intervention. See U.N. Charter arts. 39-51.
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international legal values suggest that such a duty should exist.
My analysis will show why the Security Council should have a duty to authorize intervention in the face of gross human rights violations, and how a duty is emerging from Security Council practice and from necessity.
I. Security Council: A Merely Permissive Legal
Framework
The United Nations Charter sets up a framework where intervention into the territory of another state is only permissible when authorized by the Security Council or where self-defense is employed.8 The Security Council must even, under Article 39, determine the existence of a threat to international peace and security before the legal framework of the Charter will permit intervention.9 A possible exception to Security Council authorization and self-defense is the Uniting for Peace Resolution, which is discussed below.10 However, without any of the
8 U.N. Charter art. 2, para. 4; U.N. Charter arts. 39-43, 51. 9 U.N. Charter art. 39. 10 Uniting for Peace, G.A. Res. 377(V) A, U.N. Doc. A/Res/377(V) (Nov. 3 1950); “[T]he Assembly’s power in maintaining international peace and security is only recommendatory, not mandatory. It may only ‘make recommendation to the members of the United Nations or to the Security Council or to both’, ‘discuss any question relating to international peace and security’, call the attention of the Security Council to situations which are likely to endanger international peace and security’, and ‘recommend measures for the peaceful adjustment of any situation’. However where ‘Uniting for
Peace’ resolutions are concerned, the General Assembly, not having mandatory power conferred upon it by the Charter, can adopt resolution that are binding in the sense that they are based on the principles of international law. The Assembly’s function in this regard is the focal point for state’ views on international law, not one that can be said to create a mandatory power and certainly not one that grants the
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aforementioned justifications, intervention premised on any basis that affects the sovereign territory of another state is not permissible under the charter regime.
The legal basis for all intervention in the United Nations Charter is Chapter VII. Chapter VII allows the Security Council to determine a breach of the peace and to take actions with respect to that breach.11 However, this mechanism is completely voluntary—the determination of whether there is a breach is solely within the hands of the Security Council. Failure to determine “the existence of any threat to the peace, breach of the peace, or act of aggression”12 makes it impossible for intervention to occur; by not recognizing a situation requisite for a legal intervention, the world can do nothing. This entire process is within the hands of the Security Council to determine. In the human rights context, this means that intervention is only legally valid if the Security Council declares a breach of international peace and security with regard to human rights violations is occurring, and authorizes intervention.
Under the Charter, as it stands now, a determination that human rights violations are occurring, other than by the Security Council under Article 39, would not constitute the set of circumstances necessary to allow for intervention.13 Even widespread international belief in the existence of a humanitarian crisis, human rights violations, or crimes against humanity would not be enough to allow the international community to intervene in such a way that is
Assembly a coercive power to order economic or military enforcement measures.” Kamrul Hossain, Complementary Rule of the United
Nations General Assembly in Peace Management, Uluslararasi Hukuk ve Politika [UHP] [REV. INT’L L & POL] 77,79 (2008) (Turk.). 11 U.N. Charter arts. 39-42. 12 U.N. Charter art. 39. 13 U.N. Charter arts. 2, 39-42.
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precluded under the Charter unless authorized by the Security Council. The reality of this problem is contradictory to the philosophy behind the establishment of the Security Council. Moreover, the only solution may be to circumvent the Security Council entirely.
It has been suggested that the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) may be a legal vehicle to circumvent the Security Council.14 It is true that Article I of the Genocide Convention calls on signatories to prevent and punish genocide15 but Article VII requires the signatories to go through the “competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide.”16
The Uniting for Peace Resolution is a possible solution to circumvent the Security Council’s necessary determination of a threat to international peace and security under Article 39, but it is imperfect – lacking the sturdy and forceful effect of Security Council action.
The Uniting for Peace Resolution is compelling because it shows the Charter regime is open to evolving interpretation; however, it is no substitute for the Security Council.17 The Resolution resolves that when the Security
14 See Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951); Eyal Mayroz, The Legal Duty to ‘Prevent’: After the Onset of
‘Genocide’, J. OF GENOCIDE RES. 79 (2012), available at http://www.genocidewatch.org/images/About_Genocide__12_3_2_Legal_Duty_to_Prevent.pdf. 15 Convention on the Prevention and Punishment of the Crime of Genocide, supra note 14. 16 Id. 17 G.A. Res. 337(V) A, supra note 10, at 4.
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Council cannot exercise its responsibility to maintain peace and security, the General Assembly can act in its stead, making recommendations for collective actions, including armed force, to maintain international peace and security.18 The General Assembly has used this framework to recommend several actions with respect to the use of force when the Security Council was deadlocked.19 The International Court of Justice has advised that Uniting for
Peace is legitimate under the Charter, including the General Assembly’s approval of use of force, but limits such authorization to the consent of the states concerned.20 Although Uniting for Peace gives options to the General Assembly when the Security Council refuses to act, there is still some question as to how effective the General Assembly can be when utilizing the resolution.21 In particular, requiring the consent of the states concerned can be a huge obstacle especially in the human rights context, when permission is required from an offending state.
The question of intervention would not be difficult to answer but for the United Nations Charter principle of non-intervention22 which prevents states from interfering in the internal affairs of other states. This is not to say, however, that the adoption of Article 2(4) was in any way a bad idea – preventing war and promoting peace is the most noble of ideas. But the presence of Article 2(4) in the United Nations Charter creates an obstacle and prevents intervention in cases of human rights violations. There is a
18 Id. 19 BARRY E. CARTER ET AL., INTERNATIONAL LAW 1002-4 (6th ed. 2011). 20 Id. at 1004; Kamrul Hossain, The Complementary Role of the
United Nations General Assembly in Peace Management, 4 Rev. Int’l L. & Pol. 77, 83 (2008). 21 Carter, supra note 19, at 1004; See Hossain, supra note 20, at 83. 22 U.N. Charter art. 2, para. 4.
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need to remedy the obstacle of obstinacy on the part of the Security Council when it neglects to authorize intervention in situations where the humanitarian situation is dire. The current Charter framework does not textually specify any positive duty of the Security Council in the intervention context. Considering the fact that the Council itself is the only entity able to determine the “legal” existence of any threat to international peace and security, based solely on its own collective judgment and the ability of any one permanent member to veto measures designed to consider intervention, begs the question of whether a positive duty exists or whether one should be imposed.23 Clearly, there is need for a change; but is there a duty?
II. Importance of Human Rights, Humanitarian Law,
and The Responsibility to Protect
Human rights law and humanitarian law are of paramount importance in international law as a whole. Although both concepts are not the same, strictly speaking, they are interrelated. Both branches of law are directly tied to the United Nations as well as to individual states.
The International Court of Justice has described portions of international humanitarian law and human rights law as part of international custom so fundamental that they cannot be violated.24 Relatedly, human rights law is now looked upon and recognized as not within the sole
23 See U.N. Charter arts. 2, 24, 25, 39–42; Judith A. Miller, NATO’s Use of Force in the Balkans, 45 N.Y.L. SCH. L. REV. 91, 91-92 (2000-2001). 24 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8).
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province of individual states but as an international law principle transcending borders.25
In fact, The Responsibility to Protect report, adopted by the International Commission on Intervention and State Sovereignty, declares human rights to be a mainstream part of international law—a “central subject and responsibility of international relations.”26 Although the International Commission on Intervention and State Sovereignty is a commission set up by the government of Canada, the report was recognized by the World Summit Outcome Document in 200527, and its principles were subsequently adopted by the United Nations General Assembly28 and the United Nations Security Council.29 The report itself declares that states have a duty to protect the human rights of their citizens—that it is first the responsibility of state governments to protect citizenry
25 Malcolm N. Shaw, INTERNATIONAL LAW, 278 (6th ed. 2008). 26 Rep. of the Int'l Comm'n on Intervention & State Sovereignty, The Responsibility To Protect, 6 (2001), available at http://responsibilitytoprotect.org/ICISS%20Report.pdf. The
Responsibility to Protect references, as support, the Universal Declaration of Human Rights, the four Geneva Conventions and two Additional Protocols on international humanitarian law in armed conflict, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the two 1966 Covenants relating to civil, political, social, economic and cultural rights, and the adoption in 1998 of the statute for the establishment of an International Criminal Court. Id. 27 2005 World Summit Outcome, G.A. Res. 60/1, U.N. Doc. A/RES/60/1 (Oct. 24, 2005); The Responsibility to Protect, supra note 26, at 2. 28 G.A. Res. 63/308, U.N. Doc. A/RES/63/308 (Oct. 7, 2009); Mahrdad Payandeh, With Great Power Comes Great Responsibility?
The Concept of the Responsibility to Protect Within the Process of
International Lawmaking, 35 YALE J. INT’L L. 469, 479 (2010). 29 S.C. Res. 1674, ¶ 4, U.N. Doc. S/RES/1674 (Apr. 28, 2006); see
also S.C. Res. 1894, U.N. Doc. S/RES/1894 (Nov. 11, 2009); S.C. Res. 1706, U.N. Doc. S/RES/1706 (Aug. 31, 2006); Payandeh, supra note 28 at 478.
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from human rights abuses, humanitarian crises, and other international crimes such as genocide.30 But, if states fail to meet their responsibility, the international community assumes the responsibility to respond through the United Nations—particularly the Security Council.31 Human rights are thought to be universal—meaning state borders will not provide immunity from transgressions committed in the name of sovereignty.32
Human rights protections are a reflection of values that are important and fundamental to the operation and fair treatment of other human beings. Apart from being a legal issue of intervention, human rights violations are moral wrongs committed directly against the value of human existence. Internal state laws against killing and harming others reflect this.33 As a human society, we have come to the point where humane treatment is a staple right of all persons. The evidence is present in the flood international covenants, treaties, and resolutions by the United Nations General Assembly and Security Council declaring genocide, torture, rape, unlawful killing, and violence as the antithesis of what is right for humanity.34
In short, international human rights and international humanitarian law are of the utmost importance to the values of humanity. However, when a
30 The Responsibility to Protect, supra note 26 at XI; THOMAS
BUERGENTHAL ET AL., INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL, 119 (4th ed. 2009). 31 The Responsibility to Protect, supra note 26, at XII. 32 Kok-Chor Tan, The Duty to Protect, in HUMANITARIAN
INTERVENTION 84, 90 (Terry Nardin & Melissa S. Williams eds., 2006). 33 See John Mikhail, Is the Prohibition of Homicide Universal?
Evidence from Comparative Criminal Law, 75 BROOK. L. REV. 497, 515 (2009-10). 34 See The Responsibility to Protect, supra note 26.
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sovereign state violates or allows human rights violations to occur, there is no effective enforcement remedy under international law because there is no compulsory or consistent remedy offered or mandated by international law. The only mechanism for authorizing intervention is the United Nations through the Security Council35, an entity that can at best be described as selective.
International human rights are so important to the world order that the United Nations Charter included them as a paramount principle—Article 55 of the Charter states that the United Nations shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”36
Although the United Nations Charter is vague about how respect and observance of human rights is to be achieved, subsequent documents have defined the importance and standing of human rights as reaching the status of customary international law.37 The Universal Declaration of Human Rights, passed by the United Nations General Assembly, was interpreted, early on, as being “an authoritative interpretation of the United Nations Charter of the highest order” which has obtained the status of customary international law.38 In addition to the Universal Declaration of Human Rights, two treaties, the International Covenant on Social, Economic and Cultural 35 U.N. Charter, arts. 39-51. 36 U.N. Charter art. 55, para. c. 37 See Universal Declaration of Human Rights, G.A. Res. 217(III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948); Abdullahi Na-na'im, The Rights of Women and International Law in the Muslim Context, WHITTIER L. REV. 491 (1987); Shannon Oliver, The International Fight
for Human Rights: Women Lately Discovered, 2 HOWARD SCROLL: THE SOCIAL JUST. REV. 77, 85-86; 38 Na-na'im, supra note 37 at 502.
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Rights39 (ICESCR) and the International Covenant on Civil and Political Rights40 (ICCPR), were ratified by many states—showing the widespread acceptance by the world community.41 In fact, some academics and theorists believe that certain human rights have achieved the status of jus cogens42 when it comes to crimes of physical violence including torture, extra-judicial executions, genocide, war crimes, disappearances, crimes against humanity, and massive human suffering.43 They are regarded as the highest category of international law, and of such consequence that violation of human rights amounts to a crime of the highest severity. K. Lee Boyd writes that jus cogens crimes entail individual as well as state responsibility to safeguard against the commission of such crimes and equating a violation thereof to be a disruption of the domestic and international order.44 Andrea Bianchi
39 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6136 at 490 (1966); opened for signature Dec. 16, 1966, U.N.T.S. 2, available at http://www.un.org/ga/search/view_doc.asp?symbol=A?RES/2200(XXI). 40 International Covenant on Civil and Political Rights, opened for
signature Dec. 19,1966, 999 U.N.T.S. 171. 41 Oliver, supra note 37 at 96. 42 See M. Cherif Bassiouni, International Recognition of Victims’
Rights, 6 HUM. RTS. L. REV. 203, 203-79 (2006); K. Lee Boyd, Universal Jurisdiction and Structural Reasonableness, 40 TEX. INT’L
L.J. 1, 36 (2004). A jus cogens norm is a “peremptory norm of general international law . . . accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331. 43 Bassiouni, supra note 42; Boyd, supra note 42; M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga
Omnes, 59 LAW & CONTEMP. PROBS. 63, 68 (1996). 44 Boyd, supra note 42; Bassiouni, supra note 42.
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describes human rights, in general, as being synonymous with jus cogens–that they developed together.45
The United Nations Charter memorializes human rights as a paramount concern of the international community. Although human rights can be said to have originated before the Charter, it is the United Nations Charter framework, the Universal Declaration of Human Rights, and all subsequent treaties, conventions, resolutions, and the like that have raised human rights to the level of customary international law and defined their importance as worldwide human values. In short, human rights are deserving of the highest protections, from the individual level all the way to the international level because when states fail to protect their citizens, or worse commit human rights violations against them directly, only a remedy with teeth will protect the prized rights of our fellow men and women—intervention by the international community.
III. Intervention Beyond the United Nations
Framework
Examining history is a good place to start when discussing why the United Nations Charter Article 2 framework is so preventive.
Professor Mortimer Sellers, in his article The
Legitimacy of Humanitarian Intervention Under
International Law declares “humanitarian intervention has always played an important part in international relations.”46 He asserts that even the strongest proponents
45 Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 EUR. J. INT’L LAW 491, 491-92 (2008). 46 Mortimer Sellers, The Legitimacy of Humanitarian Intervention
Under International Law, 7 INT’L LEGAL THEORY 67 (2001).
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of the principle of sovereignty have made exceptions for intervention on “public welfare” grounds.47 Further, there are examples of states, prior to the creation of the United Nations, acting consistent with this theory.
In the 17th century, legal scholars believed that intervention was appropriate when the mistreatment of state nationals was occurring in another state that was so bad as to shock the conscience of the international community.48 It was said that this doctrine co-existed with the concept of sovereignty49—that sovereignty was not absolute and there could exist circumstances that would supersede the sovereign authority of the state.50 This concept, as stated above, originated with the premise that protection of the state’s nationals abroad was an interest that superseded the offending state’s authority—that this doctrine of protecting rights fundamental for human existence, over time, equated to universal rights that are so essential that a state cannot violate them.51 This led to the legal doctrine allowing intervention by other states when the denial of human rights occurred.52 In fact, Professor Sellers mentions that “under ordinary international law, as it has existed for centuries, states are entitled to take diplomatic, economic and other ‘measures’, individually and collectively, against states that have violated their international obligations.”53 The reference to “other measures” is a reference to the use of force.
47 Id. at 67. 48 BUERGENTHAL, supra note 30, at 3. 49 FRANCIS KOFI ABIEW, THE EVOLUTION OF THE DOCTRINE AND
PRACTICE OF HUMANITARIAN INTERVENTION 22 (1999). 50 Id. at 30. 51 Id. 52 Id. 53 Sellers, supra note 46, at 72.
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By the end of the 19th century a majority of international legal scholars believed that the right of intervention on humanitarian grounds existed.54 This intervention had rules that governed when interference was allowed–an international legal restraint perhaps. Intervention would occur based on the grounds of “tyranny, extreme atrocities, and violations of specific fundamental rights” by the offending state.55 Additionally, there was a preference that there be collective action by several states, as opposed to unilateral intervention, and the intervention only be instituted if undertaken for humanitarian motives.56 The preference for collective intervention was later memorialized in the United Nations Charter and can be seen in several articles.57
Several instances during the 1800s highlight the exercise of this principle. From the intervention of France, Britain, and Russia in Greece from 1827–1830 to stop massacres committed by Turks;58 to the intervention of France, after authorized by Britain, Austria, Prussia, Russia, and Turkey, in 1860 in Syria to restore order;59 to the intervention of Russia in the Balkans in 1877 due to harsh treatment by the Ottoman Empire;60 and finally by the United States in Cuba following the Cuban revolt against the Spanish for humanitarian reasons.61
Despite the limiting principles in this legal doctrine, it was often misused as a pretext for war.62 The largest 54 Abiew, supra note 49, at 40. 55 Id. at 43. 56 Id. at 42-43. 57 See U.N. Charter, arts. 43–49. 58 ABIEW, supra note 49, at 48. 59 Id. at 50. 60 Id. at 51. 61 Id. at 54. 62 BUERGENTHAL, supra note 30, at 3.
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example of using humanitarian intervention as an excuse for war was Hitler’s argument that “Aryan” minorities were bring oppressed in other states as a reason to incorporate Austria into Germany and to justify the invasion of Poland and Czechoslovakia.63 Consequently, Germany’s actions and the failure of the League of Nations to prevent another world conflict, drove the victors of World War II to create the United Nations—hence the current Charter framework for giving authority to intervene solely to the Security Council.64
The old humanitarian principles that predate the United Nations show a right of states to intervene for humanitarian purposes.65
Kok-Chor Tan argues that, today, there is a general duty, on the part of the international community, to intervene—that when intervention is permissible, it is also obligatory.66 He stresses that The Responsibility to Protect report supports the theory that there is an “international responsibility to protect” when human rights violations occur that “shock the conscience of mankind.”67 Professor Sellers agrees when he states, “some level of interference by governments or individuals to prevent the human rights abuses of others must be tolerated.”68
Both the General Assembly and Security Council have adopted the Responsibility to Protect doctrine in 63 ABIEW, supra note 49, at 56-57. 64 Id. 65 Eve Massingham, Military Intervention for Humanitarian
Purposes: Does the Responsibility to Protect Doctrine Advance the
Legality of the Use of Force for Humanitarian Ends?, 91 INT’L REV. OF
THE RED CROSS 803, 880-11 (2009). 66 TAN, supra note 32, at 90. 67 Id. at 88-89. 68 Sellers, supra note 46, at 67.
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resolutions declaring its protection principles to be paramount.69 Although it is probably not held as a customary international law norm, its presence in United Nations resolutions and international discourse on intervention at the very least shows the impact of The
Responsibility to Protect and its influence on intervention considerations.70
The main point of The Responsibility to Protect doctrine is that sovereignty is not absolute—that sovereignty contains the responsibility of states to protect their subjects and citizens.71 Under The Responsibility to
Protect, failure of states to meet their responsibility to safeguard, or in cases of willful commission of harm against people, will result in the abrogation of sovereignty and the international community will assume the responsibility to remedy the situation.72
Six principles contained in The Responsibility to
Protect establish criteria for international intervention that gives the international community guidelines as to when intervention is appropriate and permissible.73 These principles are (1) Just Cause, allowing the international community to intervene only when there is an extraordinary amount of suffering occurring; (2) Right Intention, where
69 See supra notes 27-29. 70 See Payandeh, supra note 29, at 514-15. 71 INTERNATIONAL COMMISSION ON INTERVENTION & STATE
SOVEREIGNTY, supra note 26, at 13; Rebecca J. Hamiilton, The
Responsibility to Protect, supra note 26; Rebecca J. Hamilton, The
Responsibility to Protect: From Document to Doctrine – But What of
Implementation?, 19 HARV. RTS. J. 289, 289-90 (2006). 72 INTERNATIONAL COMMISSION ON INTERVENTION & STATE
SOVEREIGNTY, supra note 26, at 13; Hamilton, supra note 71. 73
INTERNATIONAL COMMISSION ON INTERVENTION & STATE
SOVEREIGNTY, supra note 26, at 29, 32; Hamilton, supra note 71, at 290.
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the international community can only intervene if it is for the purpose of stopping human suffering; (3) Proportional Means, which requires the international community to use the most minimal means to stop human suffering; (4) Last Resort, which requires all non-military options to be exhausted before force is used; (5) Reasonable Prospects, where military intervention will not take place unless there is a reasonable likelihood that it will be successful; and (6) Right Authority, where Security Council authorization should be sought before intervention occurs.74
Support for The Responsibility to Protect doctrine is growing. According to Rebecca Hamilton in The
Responsibility to Protect: From Document to Doctrine civil society organizations, state governments, and international bodies, including the United Nations, are endorsing the principles of The Responsibility to Protect.75 Growing support of The Responsibility to Protect doctrine necessitates a mechanism in international law that supports the principle of intervention in response to gross violations of international law. The Security Council, under the United Nations Charter, has the authority to act as the international community’s voice in these matters.76
The Security Council’s practice, as detailed below, shows that the precedent has already been established to authorize intervention in situations where human rights have been violated. Essentially, The Responsibility to
Protect doctrine has already been utilized, albeit not always explicitly by reference, in situations where the Security Council has authorized intervention to remedy human
74 INTERNATIONAL COMMISSION ON INTERVENTION & STATE
SOVEREIGNTY, supra note 26, at 32; Hamilton, supra note 71, at 290-91. 75 Hamilton, supra note 71 at 294-95, 297 n.43. 76 U.N. Charter arts. 2, 24, 25, 39–42.
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rights violations. But with an emerging responsibility of the international community to intervene, evidenced by increasing support of The Responsibility to Protect, the current Security Council framework is not sufficient to support the responsibility of the international community. Is a Security Council duty to authorize intervention necessary? Probably so. To say otherwise would ignore the responsibility of the international community and, at the same time, the United Nations Charter.
IV. Past and Present Practice of the Security Council
There is evidence of an emerging duty on the part of the Security Council to authorize intervention in gross human rights violations. The past practice of the Security Council has shown that by authorizing intervention with respect to human rights and humanitarian law violations, it compels authorization to intervene in certain situations in the future. Such practice, at a minimum, can be evidence of the Security Council’s ability to make international law at least with respect to the United Nations Charter framework.77 The Security Council’s past actions on human rights and humanitarian issues is compelling evidence that a self-created duty to intervene is emerging.
The Security Council has stated in past resolutions that “widespread violations of international humanitarian law” constitute threats to peace under the United Nations Charter.78 In fact, Malcolm Shaw believes that the Security Council’s practice in the area of “civil war and internal
77 Inger Osterdahl, The Exception as the Rule: Lawmaking on
Force and Human Rights by the UN Security Council, 10 J. CONFLICT
& SEC. L. 1 (2005). 78 Shaw, supra note 25, at 1238.
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strife” has allowed Article 39 to apply in cases of internal armed conflict.79
In the past, the Security Council has authorized intervention for the purpose of securing adherence to international human rights. The United Nations has an interest in authorizing intervention in areas where human rights violations have taken place because of the importance that human rights and humanitarian law play in international law in general. This interest has come, not from the argument for a legal duty for intervention to occur, but rather because of the international pressures and obligations surrounding past conflict. In these situations, the Security Council used the current United Nations Charter framework to intervene.
The authors of International Human Rights in a
Nutshell, consider the decisions by the Security Council to include hints that the old customary international law doctrine of collective intervention, present before the creation of the Security Council, may be becoming more prevalent.80 The Security Council has not referred to any pre-UN doctrine specifically—although, as mentioned previously, there has been reference to the newer Responsibility to Protect. However, the Security Council’s decisions show that there is at least a belief in the international community that intervention should be authorized in response to large-scale violations of human rights.81
The belief that the Security Council should intervene in gross violations of human rights started after the end of the Cold War when an increase in action, 79 Id. at 1240. 80 BUERGENTHAL, supra note 30, at 5. 81 Id. at. 4.
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pursuant to humanitarian crisis and human rights violations, started to take place under the auspice of Chapter VII of the Charter.82 Chapter VII, which applies to “threats of the peace, breaches of the peace, and acts of aggression,”83 would now apply to human rights cases as well.84
The Security Council’s main focus is to maintain international peace and security.85 Is not the violation of human rights and international humanitarian law a breach of international peace and security? The Security Council has determined that it does in many cases, as described below. In many situations, beginning in the 1990s, the Security Council had declared threats to international peace and security for human rights and humanitarian reasons. In the following examples, the motives of the Security Council included the position that human rights are of the highest importance and must be protected. Pursuant to Article 39, they determined a threat to international peace and security, and acted to authorize intervention.
In 1992, under Resolution 770, the Council determined that the situation in Bosnia-Herzegovina warranted use of force to protect humanitarian interests.86 The Security Council described the situation in Bosnia-Herzegovina as constituting “a threat to international peace and security” reasoning that humanitarian violations, including abuses committed against civilians, were a major
82 Id. 83 U.N. Charter art 39. 84 BUERGENTHAL, supra note 30, at 4-5. 85 U.N. Charter art. 24, para. 1. 86 S.C. Res. 770, U.N. Doc. S/RES/770 (August 13, 1992); Osterdahl, supra note 77, at 3.
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consideration in authorizing intervention through the use of force.87
Later in 1992, the Security Council authorized another intervention with “military enforcement measures”88—this time in Somalia. Under Security Council Resolution 794 the Council described the “magnitude of the human tragedy caused by the conflict” combined with “the obstacles created to the distribution of humanitarian assistance” created a threat to international peace and security.89 The resolution further expressed alarm “of widespread violations of international humanitarian law occurring” which included reports of “violence and threats of violence” against those engaged in humanitarian efforts, “deliberate attacks on non-combatants, relief consignments and vehicles, and medical and relief facilities,” and in stopping help from arriving to those in need.90
A few years later, in 1994, the Security Council authorized military intervention in Rwanda. Under Security Council Resolution 929, the Council described the “magnitude of the humanitarian crisis in Rwanda” as constituting “a threat to peace and security in the region.”91 The Security Council referenced the killing of civilians by the parties to the conflict and the displacement that those killings caused as being part of the decision to authorize intervention.92
Later in 1994, the continued situation in Haiti, which originated from the ousting of the elected president,
87 S.C. Res. 770, ¶ 5, U.N. Doc. S/RES/770 (August 13, 1992). 88 Osterdahl, supra note 77, at 3. 89 S.C. Res. 794, ¶ 3, U.N. Doc. S/RES/794 (December 3, 1992). 90 Id. at 2. 91 S.C. Res 929, ¶ 10, U.N. Doc. S/RES/929 (June 22, 1994). 92 Id. at 1.
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turned into a humanitarian crisis moving the Security Council to act by passing Resolution 940.93 The resolution was passed because of, among other reasons, “the significant further deterioration of the humanitarian situation in Haiti, in particular the continuing escalation by the illegal de facto regime of systematic violations of civil liberties” and the “plight of Haitian refugees.”94 Under Chapter VII, the resolution granted intervention authorizing “member states to form a multinational force under unified command and control and, in this framework, to use all necessary means” to end military leadership, return the ousted president and restore legitimate authorities, and to “establish and maintain a secure and stable environment” under the Governors Island Accord.95
In 1996, the Security Council authorized humanitarian intervention in Zaire.96 The resolution authorizing intervention stated that the “situation in eastern Zaire constitutes a threat to international peace and security in the region.”97
In 1997, the Security Council again authorized intervention for humanitarian reasons in Albania under the auspice of the crisis being a “threat to international peace and security in the region.”98 Resolution 1101 called for an end to the acts of violence occurring in Albania and authorized “a temporary and limited multinational
93 S.C. Res 940, ¶ 4, U.N. Doc. S/RES/940 (June 31, 1994). 94 Id. at 4. 95 Id. at 2. 96 S.C. Res.1080, U.N. Doc. S/RES/1080 (Nov. 15, 1996) (The United Nations Security Council, concerned about the deteriorating condition in Zaire, adopted Resolution 1080 which authorized the offering Member States to intervene in Zaire by means of humanitarian organizations). 97 Id. at 2. 98 S.C. Res. 1101, ¶ 9, U.N. Doc. S/RES/1101 (June 19, 1997).
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protection force to facilitate the safe and prompt delivery of humanitarian assistance, and to help create a secure environment for the missions of international organizations in Albania, including those providing humanitarian assistance.”99
In 1999, the Security Council, under Resolution 1244 authorized an international civil and security presence in Kosovo in order “to resolve the grave humanitarian situation” and “to provide for the safe and free return of all refugees and displaced persons to their homes.”100 The resolution describes the situation in Kosovo to be one of “humanitarian tragedy.”101 The resolution also states that one of the key purposes of the international security force was to protect and promote human rights.102
Later in 1999, the Security Council determined that a threat to international peace and security continued to exist in East Timor—authorizing a United Nations Transitional Administration in East Timor (UNTAET) “empowered to exercise all legislative and executive authority, including the administration of justice.103 The threat existed because of “the grave humanitarian situation resulting from violence in East Timor and the large-scale displacement and relocation of East Timorese civilians, including large numbers of women and children”104 and because of “reports indicating that systematic, widespread
99 Id. at 2. 100 S.C. Res. 1244, ¶ 4, Doc. S/RES/1244 (June 10, 1999). 101 Id. at 1. 102 Id. at 4. 103 S.C. Res. 1272, U.N. Doc. S/RES/1272 (October 25, 1999). 104 Id.
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and flagrant violations of international humanitarian and human rights law have been committed in East Timor.”105
In 2003, the Security Council authorized an Interim Multinational Force in the Congo to, among other things, “contribute to the improvement of the humanitarian situation.”106 The resolution authorizing intervention refers to “fighting and atrocities” with regard to the humanitarian situation.107
Later in 2003, the Security Council authorized the United Nations Mission in Liberia (UNMIL), a stabilization force created for humanitarian intervention reasons.108 The resolution declared: “the situation in Liberia continues to constitute a threat to international peace and security in the region, to stability in the West Africa sub region, and to the peace process for Liberia.”109 The threat to international peace and security was declared to be because of, among other reasons, the “violation of human rights, particularly atrocities against civilian populations, including widespread sexual violence against women and children.”110
In 2004, the situation in Haiti again was determined to constitute a threat to international peace and security by the Security Council.111 The adopted resolution cited evidence of a threat existing due to the continuing violence and deterioration of the humanitarian situation.112 The resolution authorized the deployment of a Multinational 105 Id. 106 S.C. Res. 1484, U.N. Doc. S/RES/1484 (May 30, 2003); Osterdahl, supra note 77, at 4-5. 107 S.C. Res. 1484, U.N. Doc. S/RES/1484 (May 30, 2003). 108 S.C. Res. 1509, U.N. Doc. S/RES/1509 (September 19, 2003). 109 Id. 110 Id. 111 S.C. Res. 1529, U.N. Doc. S/RES/1529 (February 29, 2004). 112 Id.
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Interim Force to “maintain public safety and law and to promote and protect human rights.”113
Later in 2004, the Security Council authorized African Union observers in Darfur because of the “ongoing humanitarian crisis and widespread human rights violations, including continued attacks on civilians that are placing the lives of hundreds of thousands at risk.”114 The Security Council determined the situation constituted a threat to international peace and security.115 In 2006, the Security Council reiterated that the situation was a threat to international peace and security and began the process of incorporating a United Nations operation.116 In 2007, a co-United Nations-African Union force was implemented by the decision of the Security Council.117 In that decision, the Security Council stated that it regarded the situation occurring in Darfur to be a violation of human rights and international humanitarian law and that the situation was still a threat to international peace and security.118
Most recently in 2011, the Security Council authorized intervention in Libya.119 The resolution, while precluding an occupations force, gave member states the ability to use “all necessary measures” to protect civilians and populated areas under attack by Libyan governmental forces.120 Use of force allowed the Libyan opposition to fend off attack, prevent killings by governmental forces, and eventually topple the Qadhafi regime that committed
113 Id. 114 S.C. Res. 1556, U.N. Doc. S/RES/1556 (July 30, 2004). 115 Id. 116 S.C. Res. 1679, U.N. Doc. S/RES/1679 (May 16, 2006). 117 S.C. Res. 1769, U.N. Doc. S/RES/1769 (July 31, 2007). 118 Id. 119 S.C. Res. 1973, U.N. Doc. S/RES/1973 (March 17, 2011). 120 Id.
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human rights and humanitarian violations against civilians.121
The above situations determine for certain that the Security Council is not limited to the strict interpretation of the Charter. The Council has shown that its power to determine “threats to international peace and security” can apply in other contexts,122 in particular, within the realm of humanitarian and human rights contexts through Article 39, which makes decisions binding. The above situations show that the Council has determined humanitarian and human rights violations to constitute threats to international peace and security.
The previously illustrated situations, if not creating a state practice standard important to create customary international law binding on states, almost certainly place an international law custom standard important for international law interpretation binding on the United Nations Charter.123 Inger Osterdahl states, “The way the Security Council interprets and applies the UN Charter has an effect on the import of the Charter because Security Council is an authoritative and important body within the Charter system and, moreover, holds the rare power to take legally binding decisions.”124 He goes on to suggest that,
121 David Clark, Libyan Intervention was a Success, Despite the
Aftermath's Atrocities, THE GUARDIAN, (Oct. 28,2011), http://www.guardian.co.uk/commentisfree/2011/oct/28/intervention-libya-success. 122 Shaw, supra note 25, at 1240. 123 Osterdahl, supra note 77, at 2. Customary international law is traditionally created by “opinio juris” and state practice. See Jo Lynn Slama, Opinio Juris in Customary International Law, 15 OKLA. CITY
U.L. REV. 603, 617-18 (1990). See also The Statute of the International Court of Justice art. 38, June 26, 1945, 59 Stat. 1055, T.S. 933, 3 Bevans 1179. 124 Osterdahl, supra note 77, at 19.
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through practice, the Security Council makes Charter law and that the only way the Security Council could cease this practice is to stop adopting resolutions.125 Adding to Osterdahl’s premise, Articles 25 and 49 require member states to carry out decisions of the Security Council, giving decisions of the Council a binding effect—perhaps an elevated legal effect.126
Though traditional standards of creating law through performance, i.e. state practice, apply to states in creating general customary international law, it makes sense to allow Security Council practice to play a role in interpreting the United Nations Charter. Further, Security Council practice could create a traditional customary international law norm in existence outside the Charter law. As such, the practice of the Security Council in authorizing intervention in the human rights and humanitarian situations described above, over time, is creating an emerging duty on the Security Council to intervene if the above examples are to be given weight under the “practice” portion of creating customary international law.
If the Security Council can make Charter law, the Security Council, through its past actions, is declaring to the world that human rights and humanitarian law ultimately deserve forceful intervention when all other measures fail.127 In so declaring, the Security Council establishes a duty upon itself because it is the only entity that can authorize such action.
In the alternative, assuming arguendo that the Security Council cannot use its own actions to interpret the
125 Id. at 19. 126 U.N. Charter, arts. 25, 49. 127 See Osterdahl, supra note 77, at 19; see also Slama, supra note 123, at 647.
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Charter framework, do not the actions of the states taking part to enforce the Security Council’s decisions in cases of humanitarian and human rights violations show that state practice and opinio juris exist to support the duty? Should the act of states “merely” carrying out the authorization of the Security Council, through continued practice of intervening on behalf of these principles establish such a duty on the Security Council by traditional customary international law methods? I think that it does. States take part in drafting the resolutions (through membership), take part in the decisions of the Security Council (as members), and carry out binding decisions (by direction).128 Such a process, if applied to situations of one doctrine—human rights and humanitarian law—surely satisfies the customary international law prerequisites of state practice and opinio juris. Essentially, it can be argued that states intervening pursuant to Security Council resolutions are establishing state practice and the Security Council and participating states are establishing opinio juris.
The counterargument to the proposition that Security Council interventions are creating an emerging duty to intervene is that there are times when the Security Council may have decided not to authorize intervention. Of course, non-intervention is difficult to address because traditional methods of creating international law refer to practice, not the lack thereof, to be the constitutive element of customary international law. In fact, looking at lack of practice in this area would serve little purpose. Law develops over time. As such, a linear observation must be taken into account. As illustrated above, the Security Council has been increasingly willing to intervene in situations on the more recent part of history’s timeline.129 128 BARRY E. CARTER, PHILLIP R. TRIMBLE & CURTIS A. BRADLEY, INTERNATIONAL LAW 468-72 (4th ed. 2003); U.N. Charter arts. 39-51. 129 See supra notes 86–121
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This should be taken into account because, as times change, so does the law (as it should). Law is not stagnant; it is molded with the experience and actions of our world. The Security Council’s practice shows that its influence on the Charter reflects progressive and modern ways of looking at and valuing the human condition.130
Inger Osterdahl, commenting on inconsistent Security Council practice states, “even though it acts in an inconsistent or ad-hocish way, whatever action the Security Council takes has a normative impact.”131 The combined notion of accepting practice (as opposed to non-practice), the restrictive circumstances upon which Security Council action affects only Charter interpretation, and the increased nature of interventions show that non-intervention should not be considered when interpreting the Charter framework.
V. Duty to Authorize Intervention – A Proposed
Logical Legal Framework
Although I have already posited an emerging duty on the part of the Security Council based on its own practice, a logical, normative argument can also be made in favor of imposing a duty on the Security Council.
Premise: The Security Council has a duty to intervene when human rights violations have occurred. Is there an alternative? The Security Council, and no other entity, has the power to authorize intervention under the United Nations Charter framework.132 Because of the refusal of the Security Council to get involved in some areas where clear human rights and humanitarian law
130 Id. 131 Osterdahl, supra note 77, at 19. 132 U.N. Charter arts. 2, para. 4, 39-43, 51.
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violations are occurring, there is a disconnect. A refusal to accept a situation exists to preclude states from acting, just as refusing to act in the face of a recognized humanitarian crisis. Before the United Nations came into existence, there was a clear right of states to intervene—a right present before the proliferation of human rights and humanitarian law in the international context.133
Today, there is an international standard for human rights and humanitarian law, as well as a voluntary remedy through the Security Council for violations of that law. But this is not enough. For the following reasons, the current UN charter framework and the current state of international humanitarian law and human rights demands that the Security Council be required to authorize intervention in cases of humanitarian and human rights gross violations.
International law makes humanitarian and human rights violations unlawful.134 The duty, first and foremost, falls to the individual state to ensure adherence to the law.135 This is as it should be. States should take care that subjects and citizens are guaranteed their human rights, and should refrain from committing any sort of violation against them. However, sometimes states do not comply with this principle.136 In such a case, the state has failed to exercise its duty.
133 See supra notes 48-64. 134 See, e.g. Universal Declaration of Human Rights, G.A. Res. 217(III)A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, (July 8); The Responsibility to Protect, supra note 26. See also, DAVID
LUBAN ET AL., INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW 1039, 1043 (2010). 135 The Responsibility to Protect, supra note 26. 136 See supra notes 86-121.
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When the state fails in its duty to ensure humanitarian and human rights, it becomes an international issue and concern, as humanitarian and human rights law is of international concern. The humane treatment of people is an interest that the human condition demands. Thus, as an international issue, the United Nations, being the forum and entity that has emerged as the central international body on Earth, assumes the issue on behalf of the international community. Again, individual states, or coalitions of states, cannot interfere at this point in any other way than through diplomacy and other actions short of intervention, as the United Nations Charter will not allow it137 unless and until the Security Council permits it.138 By signing onto the United Nations Charter, individual member states gave up the portion of their authority to make unilateral decisions with regard to use of force without “world” consent (i.e., without the Security Council’s approval).
The legal dilemma comes to a head when the permissive framework meets the passive or non-interested state parties.
Assume there is a universally understood situation of gross humanitarian and human rights violations occurring in the world—a situation that is generally agreed upon by the majority of United Nations member states as constituting a situation in dire need of intervention, but the Security Council is deadlocked. Because states cannot interfere without the authorization of the Security Council by virtue of the United Nations Charter, there is a deadlock in international law. People are harmed without any
137 U.N. Charter art. 2, para. 4. 138 U.N. Charter arts. 39-43.
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remedy to alleviate their suffering or make the situation right, except by taking up arms.139
The question that I posed earlier is still relevant. Can the duty fall to any other entity under the current state of international humanitarian and human rights law in light of the current United Nations Charter framework? No. By sheer necessity, the Security Council holds the duty to authorize intervention, as a last resort, in cases of gross violations of humanitarian and human rights. Based upon the importance that the international community has placed on humanitarian and human rights, it is evident that it is of utmost concern to ensure that those rights are adhered to. Thus, a logical conclusion is that a duty has arisen. By virtue of the international legal framework existing in the form of the United Nations Charter, that duty falls to the Security Council in humanitarian and human rights cases.140 Similar to the reasons Professor Sellers gave for interference sometimes being necessary because it cannot be totally avoided in any legal system, the duty of the Security Council is necessary here because it is the only entity that can act, it has acted before, and it is necessary that it do so in certain future situations.141
139 See generally Andrew Baskin, Human Rights Organizations
Seek to Refer Syria to the International Criminal Court, 27 NO. 12
INT'L ENFORCEMENT L. REP. 1010 (2011). See also Syria: The Story of
the Conflict, BBC, March 15, 2013 available at http://www.bbc.co.uk/news/world-middle-east-19331551. The current conflict in Syria is an example. The Security Council will not authorize intervention. Therefore the people have taken up arms against the regime for violation of human rights and humanitarian law. 140 U.N. Charter arts. 2, para. 4, 39-43. 141 Id.; Sellers, supra note 46, at 67.
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Conclusion
The Security Council should have a duty to authorize intervention in circumstances of gross violation of human rights, humanitarian law, or crimes against humanity. It is likely that the duty, as understood under customary international law, is not currently present. However, what appears to be an emerging duty out of the Security Council’s practice is promising for the future of human rights and humanitarian law enforcement. Normative arguments are also promising as they give an alternative to the “practice” assertion.
Before the formation of the United Nations, intervention was a collective right of states.142 During the pre-United Nations period, however, the prevalence of human rights and humanitarian law was not as paramount and defined as it is today. The establishment of the United Nations and the proliferation of humanitarian law and human rights, including the new category of crimes against humanity, establish that the treatment of humanity is a paramount concern of the world community. That paramount concern is expressed through the United Nations. Expression of this vital concern is manifested and remedied by the Security Council in its actions to cure situations where humanitarian violations exist. As the Security Council is the mechanism set up to maintain world order and ensure the peace and prosperity of the world, it makes sense that it have a duty to espouse the values of humanity by enforcing international human rights and humanitarian law. That a duty will arise on the part of the Security Council seems inevitable, if not already present, as described by normative arguments.
142 See Supra notes 48-64.
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Failure of a state to protect its citizens or affirmative actions taken to harm civilians necessitates authorization for intervention. The Security Council was established up to maintain international peace and security but its purpose evolved to enforcing human rights and humanitarian law. There is no other entity that can authorize intervention. When all diplomatic options fail, the world turns to the Security Council for authorization to intervene. Its duty should always be to authorize intervention when great suffering occurs, when people are massacred, where torture is present, and where the state cannot or will not protect the people—essentially in situations of gross human rights violations. In the face of the protracted situation in Syria, and other instances of humanitarian and human rights atrocities occurring around the world, the need for recognizing a Security Council duty to authorize intervention is paramount and necessary.
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Remarks on the Arab Spring Symposium,
Fall 2012
Prof. Chiara Giorgetti 259
Joost Hiltermann 266
Prof. Patrick O’Malley 272
Prof. Charles Schmitz 279
Prof. Richard J. Wilson 284
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PROFESSOR CHIARA GIORGETTI
AUTHOR:
Professor Chiara Giorgetti teaches and writes in the areas of international law, international arbitration, international dispute resolution, and state failure and fragility. She has authored over a dozen publications on these topics, and her JSD doctoral dissertation resulted in the publication of her book, A Principled Approach to State
Failure, International Community Actions in Emergency
Situations, in 2010. Prior to joining the Richmond Law faculty in 2012, Professor Giorgetti practiced international arbitration in Washington D.C. and Geneva, Switzerland. Professor Giorgetti also worked extensively with the United Nations in New York and Somalia, where she oversaw the implementation of United Nations Development Programme governance programs. She has served as a consultant for various international organizations and non-governmental organizations and taught advanced international courses at Georgetown Law Center. Professor Giorgetti clerked at the International Court of Justice in The Hague. She is an active member of the American Society of International Law (ASIL) and co-chaired its 2011 annual meeting. She also founded and co-chairs ASIL's Interest Group on International Courts and Tribunals. REMARKS:
I would like to thank the organizers of this event for inviting me to talk today about a topic which is both timely and important: The Arab Spring and Syria. I was asked to be brief and provocative, and I hope that I can do both in my presentation. I would like to make three points. First, I would like to briefly discuss the doctrine of Responsibility
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to Protect, and its legal and political implications. Then, I will examine how the Responsibility to Protect doctrine has been recently applied in Libya. Finally, building on these two elements, I will assess the applicability of the Responsibility to Protect principle in the context of the crisis in Syria.
To start, the Responsibility to Protect is a doctrine that, among other things, and at its maximum, allows members of the international community or a state to intervene to address mass atrocities and human rights abuses in another State, which causes these mass atrocities.1 This doctrine, also known as R2P, has been a much-discussed topic since 2000 in international law, international politics, and international relations. R2P has been both a promising and, at the same time, a disappointing concept. Conventional wisdom says that R2P was developed as a reaction to the United Nations (U.N.) and the Security Council’s lack of action in Rwanda and Yugoslavia (both in Bosnia and Kosovo). It was meant as a way to overcome the deadlock created by the veto-based voting system of the Security Council and to ensure that the international community would address gross violations of human rights effectively. In my view, it is more correct to see the development of the R2P as a policy reinterpretation of the U.N.’s role, in general, in intervention to maintain
1 See infra, Rep. of the Int'l Comm'n on Intervention & State Sovereignty, The Responsibility To Protect, 6 (2001), available at http://responsibilitytoprotect.org/ICISS%20Report.pdf; See also
generally, Saira Mohamed, Taking Stock of the Responsibility to
Protect, 48 Stan. J. Int’l L, 319 (2012).
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international peace and security.2 As such, it comes in the aftermath, not only of inaction in Rwanda and Yugoslavia, but also of the attempted first interventions in Somalia, East Timor, Iraq, and Haiti. This means that R2P comes at a time when the U.N. is trying to redefine a role for itself in international crises and on matters that were newly considered to be a “threat to international peace and security.” Therefore, it is a continuation of the rebalancing of the sovereignty and intervention dichotomy, and it addresses the question of to whom sovereignty belongs. The R2P debate continues the discussion on sovereignty that belongs to the people and not to the State, and intervention as protection of that sovereignty.3 R2P provides a framework for action so that the international community and other States have a right of intervention in cases of mass human rights violations. This right is rephrased as a duty and as an obligation that States have to intervene in case of egregious mass violations of human rights. It is structured as an intervention to overcome the veto-holding powers in the Security Council so that States have to act and have a justification or reason to act.
2 See U.N. Charter art. 1 (stating that the first purpose of the United Nations is “to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”); See also U.N. Charter art 41 (“the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken […], to maintain or restore international peace and security.”). 3 W Michael Reisman, Sovereignty and Human Rights in
Contemporary International Law, 84 Am. J Int’l L 866, 872 (1990).
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R2P was first discussed in a 2001 Canadian report
commissioned and published by the International Commission on Intervention and State Sovereignty (ICISS).4 The Report, called The Responsibility to Protect, provides for an escalating three-prong process: First, the state itself has a primary duty to prevent mass human rights violation. Second, it is the duty of the state itself to protect civilians. Third, and only if the first two procedures fail, there is a duty to intervene by outside States.5 Throughout this process, the role of the Security Council in securing peace remains.
In 2005, the U.N. World Summit endorsed the Responsibility to Protect doctrine in its Outcome Document, which was also formally adopted by the U.N. General Assembly. As adopted, the RP2 was much scaled down and diluted. The Outcome Document provides that:
138. Each individual State has the responsibility to protect its populations form genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means.
4 Rep. of the Int'l Comm'n on Intervention & State Sovereignty, The Responsibility To Protect, 6 (2001), available at http://responsibilitytoprotect.org/ICISS%20Report.pdf. 5 Id.
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139. …We [States] are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis, in cooperation with relevant regional organizations, as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.6
And so this is my first provocative point: R2P was very important politically in trying to reframe the issue of intervention differently, but legally it didn’t really change anything. The role of the Security Council is maintained and the initial responsibility to protect remains on the State. In the Outcome Document, as paragraph 139 demonstrates, states essentially agree to act in accordance to the UN Charter. In 2005, States further diluted R2P by restricting and defining the mass violations that would entail the intervention and responsibility to protect.
The second provocative point relates to the intervention in Libya in 2011, often considered and
6 2005 World Summit Outcome, G.A. Res. 60/1, ¶¶ 138-39, U.N. Doc. A/RES/60/1 (Sept. 16, 2005), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement.
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presented as a triumph of R2P. The Economist said that is was finally R2P in action. 7 But if one looks at the language of the U.N. Security Council resolution 1973/2011, it only states that the responsibility to protect its people rests with the Libyan government.8 There is no mention of the responsibility to protect in reference to the international community. The mandate that gave power to NATO and other States, and created sanctions, was based on a different principle, not R2P. The resolution provides
The Security Council acting under Chapter VII of the Charter of the United Nations, authorized members states that have notified the Secretary General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary General “to take all necessary measures … to protect civilians and civilian populated areas under threat of attack” in Libya.9
The third provocative point is about Syria. Is the
Responsibility to Protect going to be something that can help resolve the Syrian crisis? I think that it is very unlikely that this will happen. Not only as an R2P, but also
7 The Lessons of Libya, Economist, May 21, 2011, available at http://www.economist.com/node/18709571. 8 S.C. Res. 1973 ¶¶ 3-4, U.N. Doc. S/RES/1973 (Mar. 17, 2011) available at http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/1973(2011) 9 S.C. Res. 1973, U.N. Doc. S/RES/1973 (March 17, 2011).
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generally as an act of intervention, the Syrian crisis is much more complicated than the crisis in Libya. Political and economic issues are very different from those that were present in Libya, and are much more complex. But furthermore, because of what happened in Libya and how the R2P principle is seen as having been applied in Libya, I think it is even less likely that the principle would be applied in Syria.10 Unless major changes occur, I doubt we will see any R2P intervention and use of military force sanctioned by the U.N. to protect the people of Syria.
Thank you, and I look forward to your comments
and questions. Post-Script: Few months after delivering these
remarks, the situation in Syria has not changed. The civil war continues and the international community has been unable to agree to intervene to protect civilians. At the end of April 2013, however, President Obama declared that the use of chemical weapons against civilians would be a “game changer.”
10 See Charles Homans, Responsibility to Protect: A Short History,
FOREIGN POL’Y, Nov. 2011, at 34-35, available at http://www.foreignpolicy.com/articles/2011/10/11/responsibility_to_protect_a_short_history.
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JOOST HILTERMANN
AUTHOR:
Joost Hiltermann is Deputy Program Director for
the Middle East and North Africa at the International Crisis
Group. He is also a Research Affiliate at MIT’s Center for
International Studies. Previously, he was Executive
Director of the Arms Division of Human Rights Watch and
research coordinator of the Palestinian human rights
organization Al-Haq in Ramallah. In 2008-2009 he was a
consultant to the UN Assistance Mission in Iraq (UNAMI)
on Iraq’s disputed internal boundaries, and he has been a
consultant on Kirkuk to both the Friedrich Naumann
Foundation (since 2008) and the Dialogue Advisory Group
(since 2010). He is a member of the Board of Advisors of
the Open Society Foundations’ Arab Regional Office, and a
member of the Board of the Center for Civilians in Conflict
(previously CIVIC). He is author of A Poisonous Affair:
America, Iraq, and the Gassing of Halabja (Cambridge,
2007), and Behind the Intifada: Labor and Women's
Movements in the Occupied Territories (Princeton, 1991).
He holds a PhD in Sociology from the University of
California, Santa Cruz.
REMARKS: I’m a sociologist, not a lawyer, so I’m going to talk
to you as a sociologist but I will make references to the law. I’ll give you a synopsis of our understanding of the Arab Spring. The Arab Spring is, in essence, a grassroots outcry and movement for social justice. The reason why it didn’t stay limited to Tunisia, but spread throughout the
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Middle East and North Africa, is that this cry reflected deeper trends and grievances that included, most importantly, the notion of patrilineal succession in what I call republican monarchies. These are, basically, republican dictators acting as if they were monarchs ready to hand power over to their sons. Another reason is because of conspicuous corruption. Not just corruption, which is widespread anyway, but corruption in a very conspicuous way, especially by the sons of these dictators and their friends and cronies, which is visible to all. And finally, the lack of opportunity and the lack of upward social mobility, especially in a situation where you have a youth bulge. All of these factors combined created this outcry, which started in Tunisia. Because it was so quick there and so successful, it was able to spread very quickly to other places. Middle class youth and professionals who used social media to organize and mobilize led it initially.
The big drawback of this movement is that the participants refused to organize. They were willing to join together and come out into the squares and the streets to protest but they resisted the notion of self-organization and leadership. This meant that over time, which didn’t take long actually, they were overshadowed by political parties that took advantage of the vacuum that had been created. These parties had been there all along but had been suppressed or illegal, or were lying low, and they were very well organized. The main group was the Muslim Brotherhood, which is a Sunni Islamist movement that is politically moderate but socially conservative. They are as extreme as Obama is an extreme Christian, which is not at all; or Romney, for that matter. Among Islamists, they are moderates. In addition to their rise, there were other parties that also took advantage of what were essentially a free-for-all and a vacuum after the fall of some these dictators, including more radical, fundamentalist groups, like the Salafis.
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The main challenge that these parties, which are coming to power through elections, face is solving the very deep economic crisis that exists throughout the region, especially in North Africa. The problem is that these parties have no experience in governance. They don’t have the capacity and they don’t have the tools to address this very deep economic crisis. So it is very likely – and we should look at this on a case-by-case basis, because each country is going to be a little bit different – that the future will bring either a descent into chaos, which hopefully will not happen but is certainly a possibility, or a new trend towards authoritarianism. The only way to keep people on board and quiescent is to create new forms of authoritarianism. Of course, people have now found their voice, but the problems, which are very deep, are not being resolved. As such, the people are going to make claims that the state will not be able to satisfy. In addition, we have had elections in many places and now we are facing constitutional battles in Egypt, Tunisia, Libya, and possibly Yemen.
As these events took place, when the first dictator fell and then the second, the third dictator said, “Hey, wait a minute. This is not going my way.” This was Qadhafi, and unfortunately for him, he ended up on the side of the ledger with the ex-dictators, or as a dead dictator in his case. Another one, Ali Abdullah Saleh in Yemen, also ended up an ex-dictator. But the remaining ones, with Qadhafi first, put up a fight. Qadhafi lost because of the combination of popular uprising and military intervention, and the other dictators learned the lesson, especially the next one in line: the leader of Syria, Bashar al-Assad. They did everything in their power to head off popular uprisings in their countries. This included the region’s monarchs, who have been handing over power to their sons for
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generations. Their populations have generally accepted this. Yet these monarchies have the same socio-economic problems and same issues of social injustice and corruption that we saw in the republican states. They include Jordan, Morocco, and the Gulf monarchies. Some of the latter are immensely wealthy and therefore can buy off their own people more easily than the relatively poor states in North Africa.
When the surviving regimes realized that they might be next they decided to sow discord, which was the easiest thing to do. They set people up against each other. How? By pushing certain buttons. The most important button was the sectarian one. So they said about a certain group, “Those people are Shia and they want to gain power, and you as Sunnis, you should help us resist them, or civil war and chaos will ensue.” They said this very explicitly and it worked like a song. It worked in Bahrain and it worked in Syria. The result in Bahrain has been a kind of stalemate: the regime remains very strong and enjoys the regional support from Saudi Arabia and the other Gulf states. In Syria, the result has been civil war – the regime’s threat come true.
The rise of sectarianism must be understood in the context of a larger regional struggle between Sunni-dominated and Shia-dominated states, but also between Iran and the Arab world. Iran is a predominantly Shia country and the Arab states are mostly Sunni, some with substantial Shia minorities, or even a majority. For example, Iraq has a Shia majority, as does Lebanon and Bahrain. So the Arab world is actually divided between Sunni and Shia. Many of the Sunnis consider Shias as proxies for Iran. There is a political cold war between Iran and the Arab world, but it takes sectarian overtones. This is very dangerous and destructive.
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You will also see that some of the stronger states, Iran on one side and Saudi Arabia, the Gulf states, and Turkey – the Sunni states – on the other, are fighting this cold war in the territory of the weaker states, such as Palestine, Lebanon, Iraq, Bahrain, and Yemen. The question is: Is this like the old cold war between the super powers, where there were hot conflicts fought by proxies in other places, or are we going to see some kind of stalemate? That is the big question with regard to the Syrian civil war.
Finally, on United States (U.S.) policy, the Obama administration has been essentially bewildered and perplexed, not knowing how really to respond, because these events are out of the administration’s control. This was the first time where, at mass protests in the Arab street, you didn’t hear the slogan “Down with the U.S.” The fact that the U.S. was irrelevant is very interesting. It meant that, in a way, President Obama had a free pass at first, but also that he had to keep a low profile and play things very carefully in order to take advantage of the Arab Spring so that, in the end, the U.S. would find itself “on the right side of history.” As such, essentially de facto, the U.S. chose the side of the new powers-that-be, primarily the Muslim Brotherhood, in the countries that have undergone a democratic transition. You won’t find the administration saying this explicitly, but that is what is happening.
Now we find the U.S. suddenly with new allies who used to be persona-non-grata. As a U.S. official, you used to generally not be able, or allowed, to speak to the Muslim Brotherhood. Perhaps low-level diplomats could contact them but you definitely were not able to have open relations with this group. Now this has changed dramatically. At the same time, old allies have become intensely embarrassing. One example of this is the Bahrain
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monarchy, which has undertaken a series of highly repressive measures against its Shia population. Even the U.S. says this is the wrong thing to do, but at the same time, the Obama administration recognizes Bahrain is a strong and strategic ally, and so they reason, “We have a lot of military assets there, we face an Iranian enemy across the Gulf, so what can we do?”
By contract, in Syria the U.S. has placed itself on the side of the rebels who are trying to overthrow Bashar al-Assad. Some of these have a jihadist agenda and are somehow affiliated with al-Qaeda or feel an affinity towards al-Qaeda. The U.S. has found itself de facto on their side because it is against the regime and wants it to fall. The U.S. cannot really pick and choose in this confusing and fluid environment of multiple groups seeking to topple the regime. It cannot really control where weapons go and so de facto it is reinforcing radical groups that are strongest because they are so particularly violent and brutal. These groups could prevail in the end and impose their own post-regime political agenda in Syria, regardless of what the U.S. might wish. We thus could find ourselves in a situation similar to that of the Mujahedeen in Afghanistan in the 1980s, when the U.S. helped create al-Qaeda in the first place. This would indeed be a very unfortunate outcome of the Arab Spring.
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PROFESSOR PATRICK O’MALLEY
AUTHOR:
Patrick T. O'Malley has been an adjunct professor of law at the University of Baltimore School of Law for the past five years where he teaches National Security Law as well as a seminar on Military Law. He is an Assistant General Counsel for Classified Litigation in the Federal Bureau of Investigation in Washington, DC. Recently, he returned from an active duty tour as the Staff Judge Advocate for the US Task Force Sinai, Multinational Force and Observers, the international peacekeeping force that enforces the Camp David Accords between Israel and the Arab Republic of Egypt. Subsequent to that he was assigned to the US Cyber Command at Fort Meade, MD until this year. All opinions expressed are solely his own and do not represent the views of any of his employers, past or present.
REMARKS:
I will start by speaking of something that happened one day in Egypt. They went through many rounds of elections while we were there. That’s essentially why I’m here tonight. I want to also thank George Weber for asking me, or identifying me as someone who spent a year in Egypt. I was part of the Multinational Force and Observers, the international force that has been organized to keep the peace between the Israelis and the Egyptians. It has been there since 1981. The United States (U.S.) sends a battalion of soldiers there every year. Last year was the Maryland National Guard’s turn. So there I was. We worked with a lot of Egyptian civilians, and the Egyptian
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military, on a day-to-day basis. There was an incident that illustrates one of the points I want to make.
Several of the contractors, whether they were
mechanics or cafeteria workers, were named Mohammed. And after a while, to differentiate them to know who you were talking about, they took on the name of their jobs: one guy was ‘Drive-Right Mohammed.’ His job was to make sure the ‘Drive-Right’ system worked. The Drive-Right system made sure that we all drove twenty-five miles an hour and didn’t kill ourselves out on the highways. So one of the Captains who did not get the message said to Drive-Right Mohammed, “Hey Mohammed, you must be really excited about the elections coming up. You’re going to get a chance to vote. This is the first time you have ever voted, right?” “Yes, that is correct.” “You must be pretty excited, right?”
--I have to point out that we were near in the Sinai where there are tourist areas. A lot of Italians and Russians visit the Sinai. There is a lot of diving—it is one of the great dive spots in the world if you can make it there. So the Captain said, “you must be very excited about the opportunity to vote.” Mohammed said, “Ah yes. It’s going to be great.” “Why are you excited to vote?” “Well I think the country will be much better off—when we get rid of the tourists.” “The terrorists? Yeah, nobody likes terrorists. Terrorists are bad.” “No, no. The tourists! With their alcohol and their bikinis…they all must go!”
Mohammed is not an isolated individual. Up until this Arab Spring, Egypt made about $14 billion a year in tourism. Two years ago, that was down to about $8 billion. I believe it’s still plummeting. You’ve got to imagine that Egypt is a country with 80 or 90 million people. There is not a lot of capital coming in. And yet, Mohammed is not alone in his sentiment. There are millions of people who
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share his views. But, there are also millions of Egyptians who do not share his views.
The point I am trying to make is that Americans
naturally want democracy. Whether we’re on some Wilsonian quest, or we’re just wishing this for other people, we want them to have our system. We want democracy all over the world. The problem is, when others finally get democracy, we get very upset at the people that they elect, once they have a choice.
Sixty years ago there was a debate in America: Who
lost China? You know, which political party was responsible for losing China [to the communists]?
We have lost Egypt. Egypt was a strategic ally.
People can argue, “Well we really haven’t lost them.” Maybe those people will prove to be right. But, it kind of passed without much comment, even in a presidential election year. There was some back-and-forth. The President said that Egypt was not an ally, and then I suppose one of his Ivy League staffers had to remind him that, yes, they are an ally. Be that as it may, they are, along with Israel, essentially the number one recipient of [U.S.] foreign aid—almost all of that is military.
Moving on…Hosni Mubarak, who was my
neighbor until about August of 2011, lived in a hospital that, ironically, or maybe not ironically, was shaped like a pyramid just a couple of miles down the road from us. He was our guy. We gave him $3 billion dollars every year for about thirty years. We had our troops stationed there. Now we’re just moving that same $3 billion, without any hesitation, to the new regime. One of the questions should be, “what are we getting for that?” It’s not humanitarian aid. What are we getting for that?
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Keep in mind too that Egypt and all these countries
are not all one big mass. Egypt is a quarter of the Arab world, if you just go by population. If you go by where these young people go to college in the Arab world, it’s much more important than that. It’s very important. Cairo, as an intellectual center, is where people go to college, study medicine, etc. But it is also a great recruiting ground for al-Qaeda, and has been in the past. Egypt is central to any discussion about anything that purports to be an Arab Spring.
I disagree slightly with a little bit of history
[regarding the Muslim Brotherhood]. There was an individual in the ‘60s named Sayyid Qutb, an influential leader of the Muslim Brotherhood. He is no longer with us. But to some extent, he was the intellectual godfather of what became al-Qaeda. He was executed eventually for his opposition to the Egyptian state and certainly he bears a lot of reading.
I would submit that the Muslim Brotherhood of the
‘50s and ‘60s never went away. Far from there being a power vacuum [when Mubarak was deposed], they were always poised to go [at any opportunity to achieve political power]. They have been recruiting through the good years, the bad years, the years when they were locked up, so I don’t think that there has been a true vacuum. We are told that the Muslim Brotherhood is secular, and perhaps I’m wrong [that the Brotherhood is not secular] —I don’t think I am—I guess time is going to tell.
Keep in mind again that seventy percent of Egypt’s
economy is run by Christians, Coptic Christians. It is important to note that they have a tiny minority of 8 million
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people running the Egyptian economy. Keeping that in mind, we need to note that Egypt is both modern and medieval at the same time. It’s most modern institution, for our purposes, for good or bad, are those Egyptian Armed Forces. The Camp David Accords, I submit, were one of America’s greatest breakthroughs diplomatically. But, outside of the army and apart from two individuals named Anwar Sadat and Hosni Mubarak, there is not tremendous popular support in Egypt from the common people for peace with Israel. Peace is a vital American interest.
I stand before you as something of an agnostic. I
don’t really believe there is an Arab Spring. In January of 2011, an article appeared in Foreign
Policy Magazine titled ‘Obama’s Arab Spring.’ I would submit that, the term itself and, its prayer for success became associated with the Obama administration and its, now realized, reelection. Again, I’d submit that that term, like the President’s first election, is something of a blank slate onto which we can project what we wish.
As an example, the initial Egyptian demonstration
was organized through social media, such as Twitter and Facebook, which easily allowed Americans to think of cool kids in western clothing sipping Starbucks and listening to Coldplay, all the while texting each other quotes from JFK and Thomas Jefferson. I wish that had been entirely the case. Now I have no doubt, as was stated earlier, that the increasingly youthful demographics in Arab world contributed to instability. And I do not doubt for a minute that this part of the world is in dire need of change. It is. What I question is what type of change is possible and what kind of change we can expect. I start from a point of view that questions how interconnected these phenomena are in the ten different countries in which they’re occurring.
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The term “Arab Spring” works great as a marketing
term. But we have to question what the true causes are in each country, where change is headed, and is it taking that country to a better or worse place. The other panelists have far more in-depth knowledge of some of those countries, and I look forward to learning from them as I already have. I am honored to be sitting, or at the moment standing, up here with them.
For those that can remember the South African
experience, with dismantling apartheid and transitioning to democracy, one will recall that the end state was not guaranteed. Despite its brutal and racist past, South Africa did have certain legal and cultural traditions, as well as an incredibly forgiving and farsighted leadership, that created a path forward, in some measure, of genuine reconciliation. Those traditions, I would submit, are largely absent from the Arab world at this moment. Corruption, brutality, and violence—we were talking about the dictators and their sons before [in the prior discussion], but these [traits] are not a special privilege only of tyrants. The Libyan experience has hopefully taught some of us here in the U.S. that these conflicts are often bad guy against bad guy, despite whatever narrative the media gives us. That is not a new and unfamiliar situation for the U.S. abroad. Nor is the American self-delusion that “these people just want the same things we do.” That’s not new either. What is new is our inability to consider the consequences of our actions. At this point the American public is aware that our government armed and provided air cover for people we knew very little about, as my prior colleague just stated.
What you don’t know, but readers of Israeli newspapers do know, is that large stockpiles of weapons from that American adventure in Libya made it through underground tunnels, through Egypt, and into the Gaza
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Strip. There, our new friends, who we knew very little about, fired on our old and, I would submit, our true friends.
Again, Bahrain or Syria can be seen as ethnic
conflicts, in the sense that one group controls the country and oppresses all others. That is part of what leads me to be an agnostic as far as the Arab Spring [is concerned]. The price of bread had a lot more to do with the downfall of Hosni Mubarak than the image I painted of the young guys listening to Coldplay.
It is complicated and I think the media lens has
distorted it somewhat by attempting to simplify it for our consumption.
I do not believe there is such a thing as an Arab
Spring. If there is [an Arab Spring], I also believe it died with our ambassador in Benghazi.
Thank you.
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PROFESSOR CHARLES SCHMITZ
AUTHOR:
Dr. Charles Schmitz is Professor of Geography,
Globalization and Disciplines, and Economic Geography at
Towson University where he has taught since 1999. He is
the President of the American Institute for Yemeni Studies.
He is a scholar of Yemen, particularly its political
economy, but also works on counterterrorism, international
law, and other issues related to Yemen. He has followed
the Arab Spring in Yemen closely and has written many
articles related to the Arab Spring.
REMARKS:
American foreign policy in the Middle East has many different objectives. The narrative that we often hear is that the United States (U.S.) supports dictatorships in the name of its national interests. I would argue that U.S. policy, in the last twenty years, has shifted to some degree. The U.S. certainly does look after its interests. For example, the U.S. supports Saudi Arabia which does not look anything like a democracy. It does not support the political values of the United States. The Saudis helped crush a democratic movement in Bahrain, yet the U.S. did not criticize Bahrain or Saudi Arabia. In this case, U.S. supports the authoritarian monarchies in order to secure U.S. interests in the region. This is the narrative that we often hear about U.S. foreign policy in the Middle East.
On the other hand, the U.S. State Department has put a lot of effort into supporting civil society organizations that push for democratization. Many of the bloggers and
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social media activists in the Middle East have been trained or supported by the U.S.; some of them through U.S. supported agencies and others indirectly. In addition, the broader justification for the invasion of Iraq was to establish a democracy, not just to eliminate weapons of mass destruction. This shift towards emphasizing democracy was a result of criticisms of the U.S. in the past about supporting dictatorships in the Middle East. So U.S. policy and actions are sometimes quite contradictory.
Professor Hiltermann did a nice job of laying out the parameters and forces that are driving the Arab Spring. I want to look at Yemen as a case study.
What is the Arab Spring? It is a good question and people are debating how to describe these events. They were initially called “youth rebellions,” or “youth revolutions.” The uprisings have clearly brought a new political ethic to the Middle East. The idea that people have to live under dictatorships is rejected. People now in the Middle East understand that they can overcome authoritarianism and this is very powerful. This has shifted to some extent the dynamic of politics within the countries of the Middle East.
I think the best term I’ve seen is “rebellion” and not “revolution,” because we have yet to see what is going to happen. I think the best case is Tunisia where you had a tradition of institutional integrity. In other cases I am not so sure. I’ll tell you a little bit about the Yemeni case. In the Yemeni case, as Professor Hiltermann pointed out, there was a succession. The president of the republic was trying to position his son to become the next president, which was widely rejected by people in Yemen. The insistence of the President on grooming his son for the position was the lightning rod around which other
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grievances such as the lack of economic development and, particularly, the lack of popular political participation—the ability of people to shape their political future—coalesced. Then, the Arab Spring in North Africa—the fall of Ben Ali [in Tunisia], the fall of Mubarak in Egypt—inspired the Yemeni youth and students outside the university set up a protest movement. The President immediately backed down in response. He said that there would be early elections. He also stated, “I will not be a candidate nor will my son.” Saleh got the message. Things continued for a little while until, about two months into the demonstrations, security forces started shooting into the demonstrators. At that point, the key enforcer in inner regime, Ali Muhsin al-Ahmar, the general most known as the face of oppression as the person who put out fires, who fought many wars, in Yemen against the President’s enemies, split off and said he was going to protect the protesters from the government troops.
Those of us who knew Yemen saw the wolf guarding the sheep, but the split in the elite was significant in the Yemeni case because it brought the President’s military power into check. There now were two opposing military forces, with more or less equal power, and the country ground slowly into what could have been a civil war. After General al-Ahmar split from the regime, the opposition parties rallied around him to become a significant force against the President. There they sat for quite some time, with guns pointed at each other in the capital city ready to explode into a civil war. So in Yemen, there was an initial rebellion, and a split in the political elite, that the opposition political forces within the country took advantage of. Interestingly, the drive for international intervention in Yemen really came from the Gulf Cooperation Council, from Saudi Arabia, because Saudi Arabia’s relationship to Yemen is like the relationship of
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the United States to Mexico. The U.S. fears Mexican instability and the Saudis fear Yemeni instability. The Saudis also fear a powerful Yemen. They like a Yemen that is stable, but not too strong. They felt that Yemen’s rebellion was getting out of control, so they negotiated an agreement between the elite, which the Yemenis are following right now. They have a transitional two-year government, where half the government is composed of the old ruling party and half the government is opposition people. They are trying to have a national dialogue after which they are going to write a new constitution, and have new elections. The Gulf Cooperation Council rather than the United Nations (U.N.) brokered the agreement. The U.N. initially had very little to do with the agreement. The U.N. sent an observer, who, because of [his] own personality, has become very influential in the subsequent negotiations. Now the U.N. is playing a prominent role in Yemen in negotiating the future, but the political force that really brought the Yemeni parties together was the Gulf Cooperation Council.
Because of the split within the political elite in Yemen, centrifugal forces in Yemen are strong. Yemeni society is quite diverse and people have the monopoly on the means of coercion. Everybody is armed in Yemen. The central state does not have the ability to repress in any systematic way. Some regions and groups in Yemen are now completely autonomous. The fact that Yemen is so diverse and that everyone has the ability to break off and to negotiate on their own via military force, I think, has forced the Yemenis to try to think about the rules that will allow a political settlement amongst this diversity. There is no one group in Yemen that can impose itself on everyone else. So, the Yemeni are beginning to think about institutionalizing political processes that will allow this diverse society with so many different interests, with no
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one group that is able to dominate, to survive. People are talking about institutionalization of diversity rather than dominance of one group or another. This may be the beginning of the rule of law in Yemen, I’m hoping, as a result of the particular characteristics of the situation in Yemen.
The last point I want to talk about is the U.S. position in Yemen. Yemen for the United States is primarily a battleground against al-Qaeda. Yemen is the “cutting-edge” of the U.S. counterterrorism policy in that the military and CIA are involved in the use of force far from any declared warzone. The U.S. is not at war with Yemen yet the U.S. is using military means to assassinate people in Yemen. This is a very controversial policy. Inside of Yemen, there is considerable blowback but the media coverage here in the U.S. misinterprets Yemeni opinion. People here argue that drones are driving people into the hand of al-Qaeda. I don’t think that’s quite the case. What is clear is that no one in Yemen likes the drones. Everyone is against the drone policy and it is causing quite a bit of blowback against the U.S.—not driving people into al-Qaeda but against the U.S. and, in particular, over the issue of national sovereignty. It makes the Yemenis feel as if they do not have control over their own territory and airspace. People fear anything that flies above them. It is quite an unsettling situation and it turns people against U.S. foreign policy in Yemen.
Thank you.
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PROFESSOR RICHARD J. WILSON
AUTHOR:
Richard J. Wilson is Professor of Law and founding director of the International Human Rights Law Clinic at the Washington College of Law, American University, in Washington, DC, where he has taught since 1989. He taught at CUNY Law School from 1985-1989, and has been a visiting professor at law schools in the Netherlands, Japan and Peru, a Fulbright Scholar in Colombia, and during spring semester, 2010, he was the Tillar House Fellow at the American Society of International Law. He has consulted with law schools on curricular reform in more than 40 countries worldwide. His litigation work includes representation of detainees at Guantanamo Bay, Cuba in federal courts and military commissions; several U.S. capital cases at the Inter-American Commission on Human Rights; three cases in the Inter-American Court of Human Rights; and counsel for the European Union in friend-of-court briefs in the US Supreme Court, cited by the majority in striking down the death penalty in Atkins v.
Virginia (2002) (persons with mental retardation), and Roper v. Simmons (2005) (juveniles under 18).
REMARKS:
Thank you Tim, and particular thanks to the students who gathered this amazing panel. I found it incredibly enlightening to hear each of the other panelists speak. There were great contributions, and I feel honored to be part of the group.
I feel a bit like the latecomer. My topic for tonight is on what happens now and what will happen in the future
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during and after the Arab Spring with regard to reform and transition. In particular, I am going to speak about a topic with which I have done much previous work—reform of legal education. Something that I think will resonate with students here, particularly, is the issue of clinical legal education. I will say more about the particular context of that in a moment, but the two phrases that Joost used in his presentation resonate particularly powerfully for me: the invocation of the Arab Spring as a movement or cry for social justice and then his later invocation of giving the U.S. a kind of “free pass.”
Before I begin to talk in more detail, I should
explain exactly what I mean by “clinical legal education.” Elsewhere, I have said it is composed of five essential components: (1) students providing legal services to actual clients with real legal problems within a framework permitted by local statute, bar or court rules permitting limited student practice, advice or other legal services; (2) schools granting academic credit for participation in the clinical course, within the law school curriculum; (3) clients entering the program who are marginalized or legally indigent; generally, they are not able to afford the cost of legal representation and/or they come from traditionally disadvantaged, marginal or otherwise underserved communities; (4) attorneys supervising students who are licensed to practice law in the relevant jurisdiction, preferably a professor who shares the pedagogical objectives of clinical legal education; and (5) students previously or concurrently attending a law school course, for credit, on the skills, ethics and values of practice, as well as the necessary predicate doctrinal knowledge for the area of practice of the clinic.1 1 Richard J. Wilson, Western Europe: Last Holdout in the
Worldwide Acceptance of Clinical Legal Education, 10 GERMAN L.J. 823, 829-30 (2009).
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Our human rights clinic at American University has
been in operation for 23 years, and yet this fall was the first case we have ever had from the Middle East. We have a Syrian refugee to whom we are providing help in her quest for asylum in the United States (U.S.). It was my hope to be able to talk to you about her case but she is understandably very concerned about public revelation of information about her case and the risk to her family back in Syria, so she asked me not to speak about it in detail. I will honor that request.
In the spring, we hope to take on our first project in
the Occupied Palestinian Territories involving Bedouins in the West Bank who are in a land conflict with the Israeli government and have legal case in which lawyers from the Norwegian Refugee Council are involved. We will partner with them on the issues.
Those are the first two cases we have taken from the
Middle East, and I do not think it is a coincidence that this happened this way. I want to talk a little bit about this issue of how clinics have developed in the Middle East and how our particular work has evolved in that area. First, why is the work important? Second, what is a little bit of the history of the work, particularly in the Middle East? Third, what is that work? And fourth, is it imperialistic, part of that “free pass” that Joost mentioned?
First why should we talk about it? Aren’t there
bigger issues? Yes, there are; stabilization and security come
before institution-building. But, during transitions such as the Arab Spring, we should talk about legal education because I think every trauma to nations ends up with a
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transition period, followed by reconstruction, and usually, legal education is one of the last institutions to reform. So any movement in this field is a positive step.
Each great reform movement in human rights law in
the 20th century followed major turmoil and destabilization, much of it brought on by law itself. After WWII, in fact, we saw in the Nuremberg Jurists’ Trial, United States v. Altstötter et al.,2 that some lawyers and judges stood trial for upholding the law on the books of the Nazi regime. They were tried for following that law, and their experience puts all of us lawyers in a very difficult moral quandary as to when we should follow the law on the books and when we should rebel against it. When should we say no? When should we say we will not follow the law because the law is morally wrong? Few of us have the courage to take that action. Job security is often more important than principal. The lawyers and judges in the Jurists’ Trial were convicted and sentenced to terms in prison for following the law and for enforcing the law on the books. Law reform, grand or small, follows during transitions from conflict to stability, but historically, legal education is among the slowest of legal institutions to reform.
Trauma to nations leads to space for reform. It
leads to a kind of vacuum where new ideas can flourish, and I think that there is no place where this is more apparent than what we saw in Central and Eastern Europe after the fall of the Soviet Union, from 1989-91. I had the privilege of working in that geographic area during the 90s with reform of clinical legal education in the former Soviet Union and the Caucuses. I saw programs of law reform
2 United States v. Alstötter (the Justice case), 3 T.W.C. 954 (U.S. Military Trib. 1951).
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flourish incredibly quickly. This growth of the clinical movement in countries like Poland gathered such grassroots strength that it became a national obligation that all law schools have clinical programs, and there is now a national body in Poland that sets up standards and decides what the minimum floor is for all clinical programs. Every law school has to offer a clinical experience in order for students to be able to get through law school. In Poland, the reforms are profound and lasting, and they are but one example of the openings for legal education reform after profound changes.
Yet, in 2006 one of my colleagues, Professor Peggy
Maisel, wrote an article about the development of clinical legal education globally between 1981 and 2003. She charted the work and gave great credit to what was going on in Central and Eastern Europe, but one region, the Middle East, was notably absent from reform movements. Prof. Maisel made this observation about why reform of legal education in the Middle East had not occurred: "perhaps because of cultural attitudes, language issues, and the role religion may play in the law. Very few respondents reported working in the Middle East outside of Israel."3 That was true in 2006, and it was still true in 2011 when Frank Bloch edited a book called “The Global
Clinical Movement" which documents this incredible ground-swell of interest in clinical legal education around the world.4 Yet there is no chapter on the Middle East in his collection of essays by region. There is only brief mention in the Africa chapter of a clinic that started in 2007 in Morocco.
3 Peggy Maisel, The Role of U.S. Law Faculties in Developing
Countries: Striving for Effective Cross Cultural Collaboration, 14 CLINICAL. L. REV. 465, 506 (2007-2008). 4 THE GLOBAL CLINICAL MOVEMENT: EDUCATING FOR SOCIAL
JUSTICE (Frank Bloch, ed., Oxford Univ. Press, 2010).
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So it was quite an event when, this past May of
2012, a regional Middle East colloquium on access to justice and legal education reform was held in Jordan, in which I participated. There was talk about invoking clinical legal education as a reform movement there. It was very tense. The participating countries included both Palestinians from the occupied territories and Israeli clinical teachers. On the first day, the Palestinians made some strong political statements about not wanting to be in the same room with the Israelis. By the end of the conference, everyone became more comfortable with each other. In addition to the Palestinians and Israelis, there were Egyptians, folks from Iraq, teachers from Oman, the UAE, Jordan, and Kuwait. There were also international experts from other areas of the world where legal clinics are thriving: the U.S., France, Spain, Poland, South Africa, Thailand, and others. It was quite an event, and we did a lot of work on very basic issues about legal education and access to justice.
This conference was about providing supervised
law student assistance to people who would not otherwise have access to a lawyer. There is remarkable resistance from both traditional law faculties and bar associations who find this a threat to putting bread on their table, but this is a movement that has gained momentum and is moving forward; my sense is it is just the beginning of a very serious reform movement that might grow and flourish in that region.
The work that clinics do might be called cross-
cutting, in the sense that it is not just providing legal services to poor people, but can include educating people about their rights. There is a program called Street Law that is an educational program for individuals in the
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community, and it is but one example of the work done by clinics. Another example is the work done by a friend in Turkey, Professor Idil Elveris. Her book, Alone In The
Courtroom: Accessibility And Impact Of Criminal Legal
Aid Before The Istanbul Court is an empirical study of the absence of lawyers in the Istanbul courts and the need for the provision of adequate counsel in those contexts, based in part on studies done by she and her students in a law clinic at Bilgi University in Istanbul.5 I mention Turkey because I think Turkey can be a lever in the region and is a place where clinical legal education has begun to take hold. Israel is a place where clinics have flourished. The clinics in Haifa and Tel Aviv are very sophisticated; they have provided clinical courses for years and years. So these are great movements for reform under way in the region.
Lastly, are legal clinics a vestige of the U.S. legal
education system and, if so, is their export imperialistic? I am willing to allow for some possible hubris on
my part. But my strong sense is that the export of clinical legal education to the Middle East is not imperialistic. These are movements that most often begin with foreign donors. Also, the movement would not happen but for donors such as the U.S. Agency for International Development (USAID), which paid for the conference in Jordan, and the Open Society foundations that Professor Sellers and I have worked for before, as well as a number of other private donors and national donors that have contributed to these kinds of changes. But my strong sense is the reform movement has a lot of resonance in the region, and now we are beginning to see, if you will, a kind of movement between the countries other than the original 5 See generally IDIL ILVERIS, ALONE IN THE COURTROOM: ACCESSIBILITY AND IMPACT OF CRIMINAL LEGAL AID BEFORE THE
ISTANBUL COURT (Istanbul Bilgi Univ. Yayinlari, 2007).
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donor nations. So, in the meetings in Jordan, the president of the Polish legal clinic association was there to talk about their recent experience, and we had South African, Spanish, French and Indian law professors there who were talking about their experience with clinical legal education. I do not think this is something that you could sell as “made in America,” even though we have a rich and long tradition of legal clinical education. It will not work if it is not wanted locally, and it feels to me as though there is a reason why this movement has flourished and grown so exponentially. That is also why there is such promise for clinical legal education in the Middle East.
My sense is that this kind of experiential learning is
universal and that what we know about adult learning and cognition tells us that people love to learn experientially, and do so quite effectively. Students increasingly demand it, and I hope you do here.
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