Connect with us

International Law

Targeting Terrorist Leaders After Al-Baghdadi: Legal And Tactical Expectations

Published

on

“For By Wise Counsel, Thou Shalt Make Thy War.”-Proverbs, 24 (6)

Under the protective tutelage of an American president, any American president, “We the People” should expect reasonable levels of safety in world politics.  At a minimum, we should be able to assume that  wide and predictably capable circles of public authority remain ready to thwart terrorist attacks. Most urgently, of course, such assurances should apply with special clarity to mega-terrorist attacks.

Always.

By definition, such mega or WMD aggressions would involve chemical, biological or nuclear elements.[1]

Here, there are both legal and operational issues to be considered. In terms of United States law, the authoritative roots of any such presumptive  assurances go back to Roman statesman Cicero (“The safety of the people shall be the highest law.”) and to seventeenth century English philosopher, Thomas Hobbes. [2] Though plainly unfamiliar to America’s current president, Hobbes’ Leviathan was central to the education of Thomas Jefferson and other Founders.

Notwithstanding far greater difficulties of literary access and convenience in the eighteenth century, the author of America’s Declaration was impressively well read. He cared, really cared, about serious and dignified learning. In stark contrast to Donald J. Trump’s current inversion of US policy-making priorities, which  center on one conspicuous sort or other of “branding,” Jefferson believed in the primacy of intellectual “preparation.”

Expressly.

For Jefferson, erudition maintained an intrinsically serious meaning. It was never something to be used or exploited solely for private embellishment or public adornment.

For the nation’s third president, diplomacy and strategic bargaining  were analytic responsibilities. Accordingly, they were always about variously disciplined calculations. They were never merely about shallow bluster or feigned “attitude.”

Looking ahead to continuously effective US counterterrorist preparations, America’s national security establishment must remain ready for absolutely all contingencies. This needed preparedness includes building the conceptual foundations for any future Abu Bakr al-Baghdadi or Osama Bin-Laden “elimination-type” operations.[3] During the Obama years, one major targeted killing of a Jihadist terrorist was the September 2011 US drone-assassination of Anwar al -Awlaki in Yemen.[4] That case was notably “special” in one frequently overlooked aspect: The Jihadist al-Awlaki was born in New Mexico, and was ipso facto a US citizen.

Despite the US Constitution’s Fifth Amendment protections concerning “due process,”[5] al-Awlaki’s targeted killing represented a tactical option that could sometime need to be repeated.

There are other pertinent concerns. Regardless of clearly valid issues concerning legal permissibility, it is by no means certain that targeting terrorist leaders will prove continuously useful to supporting US national security objectives. What this means, in brief, is that the virulence and capacity of any relevant anti-American or anti-Western ideology (especially a Jihadist-type ideology) might not be removed or even meaningfully blunted by designated terrorist assassinations.

It is even conceivable, in these more-or-less singular matters, that the net security effect of any such “removal” could be markedly negative rather than reassuringly “cost effective.”

As a timely example, the recent elimination of al-Baghdadi could quickly or eventually bring to power in ISIS an even more capable and violent terrorist adversary. What then? In such an unexpected eventuality, the killing of al-Baghdadi will have produced various short-term political benefits for US President Donald Trump, but only at a significantly unacceptable national security cost.[6]

 There is more. For the United States, corollary legal issues must never be ignored. In relevant jurisprudential terms, we must already inquire: What explicit legal guidelines should we Americans expect our leadership to follow? To respond properly (among several other related and also intersecting concerns), Mr. Trump and his counselors would then need to ask: “Is it sufficiently legal to target and kill recognizable terrorists if verifiable linkages between prospective targets and discernible attack intentions can be reliably documented?”  

To properly answer this fundamental or core question, it will first be necessary for Mr. Trump’s relevant national security officials to ask whether a proposed terrorist killing plan would be gainfully preemptive or just narrowly retributive. If the latter, a judgment wherein national self-defense was not in any way the genuinely underlying action-rationale, authoritative determinations of legality could become more and more problematic.[7]

On occasion, matters could get even more complicated. After all, assassination is explicitly prohibited by US law.[8]  It is also generally a crime under international law, which, though not widely understood,[9] remains a legitimate and integral part of American domestic law.[10] Still, at least in certain more-or-less residual circumstances, the targeted killing of Jihadist terrorist leaders could be correctly excluded from certain ordinarily prohibited behaviors. Here, such peremptorily protective actions could be defended as a fully permissible expression of  national law-enforcement.

A similar defense might sometimes be applied to the considered killing of terrorist “rank-and-file,” especially where such selective lethality had already become part of an ongoing pattern of US counter-terrorism. Earlier, the United States had widened the scope of permissible terrorist targeting in parts of Iraq, Afghanistan and Syria. In part, at least, such a widened operational arc of permissibility – one which now modifies the more stringent prior rules of engagement that had once required specific human target identifications – has been an inevitable byproduct of continuously developing technologies.

Most obvious among these emergent technologies is the growing US reliance upon drone-based assassinations, and also on other related forms of long-range or long-distance killing.

In the best of all possible worlds, there would be no need for any such decentralized or “vigilante” expressions of international justice.  But we don’t yet live in such an ideal world. Instead, enduring uneasily in our present and still-broadly anarchic legal order – a context that we international law professors usually prefer to call “Westphalian”[11] – the only real alternative to precise self-defense actions against terrorists is likely to be certain steadily worsening “in-theatre” instabilities.

Ultimately, such expanding hyper-instabilities could include more flagrant and consequential escalations of Jihadist terror-violence. Such escalations could be unaffected or encouraged by future US targeted killings. This is to be expected even where “retributive justice” appeared as both reasonable and legal.

At some indeterminable point, terror-violence escalations could lead to major or even unprecedented instances of chemical, biological or nuclear attack. Plausibly, these attacks might be undertaken by assorted sub-state adversaries or instead, by particular “hybrid” combinations of state and sub-state foes.

At the most basic level of any such issues and calculations, the very idea of assassination or targeted killing as remediation could seem paradoxical, almost an oxymoron.  Seemingly, at least, this understandably objectionable idea must preclude the input of all the more usual “due processes of  law” consideration. Yet, since the current or “Westphalian” state system’s original inception in the seventeenth century, international relations have never been governable by the same civil protections that are potentially available within democratic states.

In this persistently anarchic and prospectively chaotic world legal system, one which still lacks any duly-constituted and effective supra-national authority, assorted Jihadist leaders (ISIS, Hamas, Hezbollah, Islamic Jihad, al-Qaeda, etc) are already responsible for the mass killing of noncombatant men, women, and children of different nationalities. It follows, in at least some still-imaginable circumstances,  that where such leaders are not suitably “terminated” by the United States or by any of America’s key allies (e.g., Israel, in the tumultuous Middle East), incrementally egregious terror crimes could continue to multiply and also to remain unpunished.

Jurisprudentially, at least, any such predictable de facto impunity would be inconsistent with the universal legal obligation to punish international crimes, a jus cogens or peremptory obligation reaffirmed at the original 1945-46 Nuremberg Tribunal and subsequently in the 1946 and 1950 Nuremberg Principles.

 More formally, this lex talionis obligation, which comes to us from both ancient Roman law and the Hebrew Bible, is known correctly as Nullum crimen sine poena, or “No crime without a punishment.”[12]

Inevitably, complex considerations of law and tactics must inter-penetrate. In this particular connection, the glaring indiscriminacy of most jihadist operations is rarely if ever the result of enemy inadvertence. Rather, it is typically the intentional outcome of violent terrorist inclinations, unambiguously murderous ideals that lay deeply embedded in the Jihadist terrorist leader’s operative view of insurgency.

 For Jihadists, there can never be any meaningful distinction between civilians and non-civilians, between innocents and non-innocents. For these active or latent terrorist murderers, all that really matters are certain unassailably immutable distinctions distinguishing between Muslims, “apostates” and “unbelievers.”

As for the apostates and unbelievers, it is all quite simple.  Their lives, believe the Jihadists,  have literally no value. Prima facie, that is, they have no immunizing sanctity.  

In law, recalling Cicero, every government has both the right and the obligation to protect its citizens against external harms. In certain circumstances, this coincident right and obligation may extend derivatively to targeted killing. Actually, this point has long been understood (though also sometimes abused) in Washington, where every president in recent memory has given nodding or direct approval to “high value” assassination/targeted killing operations.

Certifiably, assassination is generally a tangible crime under international law. But in our essentially decentralized system of world law, self-help by individual states still remains altogether necessary, and is more-then-occasionally the only tangible alternative to suffering terrorist crimes. In the absence of particular targeted killings, terrorists could continue to create havoc against defenseless civilians almost anywhere, and do so with more-or-less complete impunity.

 A very specific difficulty here is this:  Jihadist terror criminals are usually immune to the more orthodox legal expectations of extradition and prosecution (Aut dedere, aut judicare).[13] This is not to suggest that the targeted assassination of terrorists will always “work” in tactical terms – indeed, there is literally nothing to support the logic of any such suggestion – but only that disallowing such targeted killing ex ante could not be operationally gainful or legally just.

In principle, if carried out with aptly due regard for pertinent “rules,” assassinating terrorist leaders could remain suitably consistent with the ancient legal principle of Nullum crimen sine poena, “No crime without a punishment.” Earlier, this original principle of justice had been cited as a dominant jurisprudential rationale for both the Tokyo and Nuremberg war crime tribunals. It was subsequently incorporated into customary international law, an authoritative legal source identified inter alia at Article 38 of the Statute of the International Court of Justice.[14]

 By both the codified and customary standards of contemporary international law, all terrorists are Hostes humani generis, or “Common enemies of humankind.”[15]  In the fashion of pirates, who were to be hanged by the first persons into whose hands they fell, terrorists are considered international outlaws who fall within the scope of “universal jurisdiction.” But choosing precisely which terrorists ought to be targeted remains a largely ideological rather than jurisprudential matter.

 Logically, in some current circumstances, tyrannicide could be seen as the “flip side” of American counter-terrorism. Historically, limited support for expressing assassination as a form of tyrannicide is not hard to discover.  It can be found, for example, in the classical philosophical writings of Aristotle and Plutarch as well as Cicero.

Overall, in his consideration of assassination or targeted-killing as counter-terrorism, President Donald Trump (or more realistically his designated counselors) should consider the clarifying position of Swiss scholar Emmerich de Vattel in his most famous work, The Law of Nations, or the Principles of Natural Law (1758): “The safest plan is to prevent evil where that is possible. A Nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor.” 

Earlier, a similar view had been presented by Samuel Pufendorf in his seminal text, On the Duty of Man and Citizen According to Natural Law (1682): “Where it is quite clear that he is engaged in planning violence against me, even though he has not fully revealed his design, I shall be justified in immediately initiating self-defence by force, and in seizing the initiative against him, while he is still making preparations…..The aggressor will be taken to be the party which first conceived the intention to harm the other….To have the name of defender, it is not necessary to suffer the first blow, or merely to elude and repel the blows aimed at one.”

Even earlier, the right of self-defense by forestalling an attack had been established by the foundational Dutch scholar, Hugo Grotius, in Book II of The Law of War and Peace (1625). Recognizing the need for what later jurisprudence would reference as threatening international behavior that is “imminent in point of time” (See The Caroline Case, 1837), Grotius indicated that self-defense must be permitted not only after an attack has already been suffered, but also in advance, wherever “the deed may be anticipated.”

Further on, in the same chapter, Grotius summarized : “It be lawful to kill him who is preparing to kill.”

Interestingly, Vattel, Pufendorf and Grotius were all taken into primary account by Thomas Jefferson in his critical fashioning of the American Declaration of Independence.

There is more. In all these matters, one must assume rational calculation. If the expected costs of a considered assassination should appear lower than the expected costs of  alternative resorts to military force, assassination could emerge as the distinctly gainful and moral choice. However odious it might appear in isolation, assassination or targeted killing in certain circumstances could still represent a security-seeking state’s best overall option.

Assassination will always elicit indignation, even by those who could find large-scale warfare appropriate. But the civilizational promise of some more genuinely centralized worldwide security is far from being realized, and existentially imperiled states could sometime still need to confront critical choices between employing assassination in measurably limited circumstances or renouncing such tactics at the foreseeable expense of national survival. In facing such inherently difficult choices, these states will inevitably discover that all viable alternatives to the assassination option could also include large-scale violence, and these these alternatives are apt to exact a substantially larger toll in human life and suffering.

 Naturally, in a presumptively better world than this one, assassination could have no defensible place as counterterrorism, either as a preemptive measure or ex post facto, that is, as a permissible retribution. But, as if anyone should still need a reminder, we do not yet live in the best of all possible worlds, and the obviously negative aspects of  targeted killing should never be evaluated apart from the foreseeable costs of other still-available options. More precisely, such aspects should always be closely compared to what could reasonably be expected of plausible alternative choices.

International law is not a suicide pact. Ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium;  “Where the ordinary remedy fails, recourse must be had to an extraordinary one.”

President Trump is correctly expected to comply with the rules and procedures of humanitarian international law; yet, he must also continue to bear in mind that Jihadist enemies will remain unaffected by these or any other jurisprudential expectations. Assassination and other still broader forms of preemption may sometimes be not only allowable under binding international law, but also indispensable. Conversely, there are occasions when strategies of assassination or targeted killing could be determinedly legal but remain operationally ineffectual.

Now, recalling the close connections between international law and US law – connections that extend to direct and literal forms of  legal “incorporation” – an American president can never choose to dismiss the law of war on grounds that it is “merely” international. Always, President Trump should consider aptly decipherable connections between assassination, counter-terrorism and United States Constitutional Law. Unexpectedly or not, the targeted killing of Anwar al-Awlaki had been approved by US President Barack Obama  and also by a secret committee of advisors allegedly based within the US Department of Justice.

Under US law, we are now bound to inquire, should an American president ever be authorized to order the extra-judicial killing of a United States citizen – even one deemed an “enemy combatant” – without any at least perfunctory reference to “due process of law?” On its face, any affirmative response to this necessary query would be difficult to defend under the US Constitution.

Of necessity, such presidential approval would need to be based upon a reasonably presumed high urgency of terror threat posed by the prospective victim. Any such “authorized” targeted killing of  US citizens would express a potentially irremediable tension between theoretically indissoluble individual citizen rights and the increasingly peremptory requirements of national public safety.

 Always, US policy on assassination or targeted killing will have to reflect a very delicate balance. Most important, in any such equilibrating calculation, will be the protection of civilian populations from Jihadist terror-inflicted harms. In those fearful circumstances where such harms would involve unconventional weapons of any sort – chemical, biological or nuclear – the legal propriety of targeting Jihadist terrorists could become patently obvious and also “beyond reasonable doubt.”

Nonetheless, such proper legal assessments ought never be undertaken apart from various corresponding operational expectations. This means, inter alia, that before any “extraordinary remedies” should be applied, those presumptive remedies should appear to be not only legal, but also tactically and strategically sound. In this connection, it would make elementary good sense to extrapolate from classical Prussian strategist’s Carl von Clausewitz’s enduring mantra in On War.

Assassination, like war, should always be “…a continuation of political relations by other means.”

More specifically, the targeted killing of terrorist leaders should always be assessed against a determinable and pre-existing “political object.”

In the absence of tangible  “congruence” in any such assessment, there could be no valid reason to proceed with a considered force-based operation. This is the case even where the contemplated targeting would be presumptively lawful and/or where it could expect to produce positive military outcomes.

In his Utopia, published in 1516, Thomas More offered a curious but clarifying juxtaposition of foreign policy stratagems and objectives. Although the Utopians are expected to be generous toward other states, they also offer (in Book II) tangible rewards for the assassination of enemy leaders. This is not because Thomas More wished in any way to appear barbarous, but because he was a fully realistic “utopian.” Sharing with St. Augustine (whose City of God had been the subject of More’s 1501 lectures) a fundamentally dark assessment of human political arrangements, he constructed a “lesser evil” philosophy that favored a distinctly pragmatic and still plausible kind of morality.

Inter alia, Sir Thomas More understood that the truly tragic element of politics is constituted of certain conscious choices of evil for the sake of a greater good. With regard to our ongoing scholarly investigation of US national security and counter-terrorism,, this suggests that assassination must always remain disagreeable in the “best of all possible worlds” (for example, the Leibnizian world satirized by Voltaire in Candide), but that it may also represent a necessary expedient in a world that must remain irremediably imperfect. In any event, these are matters that need to be treated in broadly intellectual and historical terms, and not as seat-of-the-pants decisions based on momentary presidential whim or embarrassingly empty witticisms.


[1] On the plausible consequences of a full-scale nuclear war, by this author, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986); and Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018).

[2] Hobbes argued convincingly that the international state of nature is “less intolerable” than that same condition among individuals in nature because, in the latter, the “weakest has strength enough to kill the strongest.” Significantly, with the spread of nuclear weapons, this difference is disappearing. Interestingly, in the pre-nuclear age, jurist Samuel Pufendorf, like Hobbes, was persuaded that the state of nations “…lacks those inconveniences which are attendant upon a pure state of nature….” Similarly, Spinoza suggested that “…a commonwealth can guard itself against being subjugated by another, as a man in the state of nature cannot do.” (See: Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, Monograph Series in World Affairs, Vol. 10, No.3., 1972-73, p. 65.)

[3] See Louis René Beres, “The Killing of Osama Bin Laden,” Crimes of War, Crimes of War Project, August 2011, http://www.crimesofwar.org/commentary/the-killing-of-osama-bin-laden/; Louis René Beres, “Assassinating Terrorist Leaders: A Matter of International Law,” OUP Blog, Oxford University Press, May 4, 2011; and Louis René Beres, “After Osama Bin Laden: Assassination, Terrorism, War, and International Law,” Case Western Reserve Journal of International Law, 44 Case W. Res, J. Int’l 93 (2011).

[4] Although “assassination” and “targeted killing” are often used interchangeably, there are meaningfully core distinctions to be made. Using the precise scholarly criteria offered by Amos Guiora, an assassination is always an expressly political killing that involves treachery or perfidy, and is not directed toward any suspected terrorist. A targeted killing, on the other hand, is a violent and person-specific expression of preemptive self-defense, and is always oriented to preventing some future act of terrorism. Always, inter alia, the targeted individual must be presumptively involved in the planning and execution of new terrorist assaults. See Amos. Guiora, Legitimate Target: A Criteria-Based Approach to Targeted Killing (New York, Oxford University Press, 2013).

[5] In the U.S. Constitution, Amendments IV, V, VI and VIII comprise a “Bill of Rights” for accused persons, and the phrase “due process of law” derives from Chapter 29 of Magna Carta (1215),  wherein the King promises that  “no free man (nullus liber homo) shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him,  except by a legal judgment of his peers or by the law of the land (per legem terrae).”  See Coke,  Institutes,  Part 2:  50-51,  1669;  cited by E.S. Corwin,  The Constitution and What It Means Today  (New York:  Atheneum,  1963): 217.

[6] In this connection, it was surely not in overall US security interests for the American president to comment publicly  about al-Baghdadi that he “died like a dog….whimpering….like a coward.” Such inflammatory language was gratuitous at best, and could plausibly even incentivize future anti-American terrorism from various ISIS-related groups. Moreover, the language must assuredly have been invented by Trump.

[7] Here we must recall that criminal responsibility of leaders under international law is not limited to direct personal action nor is it limited by official position.  On the principle of command responsibility, or respondeat superior, see:  In re Yamashita,  327 U.S. 1 (1945);  The High Command Case (The Trial of Wilhelm von Leeb),  12 Law Reports Of Trials Of War Criminals 1 (United Nations War Crimes Commission Comp., 1949);  see Parks, Command Responsibility For War Crimes,  62 MIL.L. REV. 1 (1973);  O’Brien, The Law Of War, Command Responsibility And Vietnam,  60 GEO. L.J.  605 (1972);   U.S. Dept Of The Army, Army Subject Schedule No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907),  10 (1970).  The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense.  See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS,  Aug. 8, 1945,  59 Stat.  1544,  E.A.S.  No. 472,  82 U.N.T.S.  279,  art. 7.

[8] See Exec. Order No. 12333, 3 C.F.R. 200 (1988), reprinted in 50 U.S.C.  Sec. 401 (1988).

[9] The authoritative sources of international law are listed comprehensively (and can be most conveniently found) at art. 38 of the Statute of the International Court of Justice.

[10] In the words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.  For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.”  See The Paquete Habana, 175 U.S. 677, 678-79 (1900).  See also:  The Lola,  175 U.S. 677 (1900);  Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774,  781, 788 (D.C. Cir. 1984)(per curiam)(Edwards, J. concurring)(dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied,  470 U.S. 1003 (1985)(“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”).

[11] After the seventeenth century (1648) Peace of Westphalia, which ended the Thirty Years’ War and created the present conflictual system of independent states. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; Treaty of Peace of Osnabruck, Oct. 1648, 1, Consol. T.S. 119. Together, these two agreements comprise the Peace of Westphalia. Thomas Hobbes’ Leviathan was first published in 1651, just three years after the Peace of Westphalia. It is at Chapter XIII that Hobbes famously references the “state of nature” as an anarchic situation characterized by “continuall feare; and danger of violent death….”

[12] Nullum crimen sine poena is the principle that distinguishes between criminal and civil law.  Without punishment there can be no distinction between a penal statute and any other statute. (See Redding v. State,  85 N.W. 2d  647, 652; Neb. 1957)(concluding that a criminal statute without a penalty clause is of no force and effect).  The earliest statements of Nullum crimen sine poena can be found in the Code of Hammurabi (c. 1728-1686 B.C.); the Laws of Eshnunna (c. 2000 B.C.);  the even-earlier Code of Ur-Nammu (c. 2100 B.C.) and of course the Lex Talionis or law of exact retaliation presented in three separate passages of the Jewish Torah or biblical Pentateuch.  At Nuremberg, the words used by the Court,  “So far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished,”  represented an unambiguous reaffirmation of Nullum crimen sine poena.  For the Court statement, see:  A.P. d’Entreves,  NATURAL LAW (London: Hutchinson University Library, 1964), p. 110. 

[13] The extradite or prosecute formula of international criminal law is deducible from Nullum crimen sine poena.  Existing since antiquity, it is an expectation with roots in both natural law (especially Jean Bodin, Hugo Grotius, and Emmerich de Vattel) and in positive law. See also: Resolution on Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity,  G.A. Res. 3074,  28 U.N.  GAOR,  Supp. No.30 at 78, U.N. Doc. A/9030, 1973;  G.A. Res. 2840,  26 U.N. GAOR Supp. No. 29 at 88,  U.N. Doc. A/8429,  1971;  G.A. Res. 96,  U.N. Doc. A/64 at 188, 1946;  Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,  adopted and opened for signature, ratification and accession by General Assembly Resolution 2391 (XXIII) of 26 November 1968,  entered into force,  11 November 1970.

[14] Article 38(1)(b) of the Statute of the International Court of Justice describes international custom as “evidence of a general practice accepted as law.”  59 Stat.  1031,  T.S. No. 993 (June 26, 1945).  Norms of customary international law bind all states irrespective of whether a State has ratified the pertinent codifying instrument or convention.  International law compartmentalizes apparently identical rights and obligations arising both out of customary law and treaty law.  “Even if two norms belonging to two sources of international law appear identical in content, and even if the states in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.”  See Military and Paramilitary Activities (Nicaragua v. U.S.),  1986 I.C.J. Rep.  14,  para. 178 (June 27).

[15] .On the concept of “common enemy of mankind,”  see:  Robert Alfert Jr.,  “Hostes Humani Generis:  An Expanded Notion of U.S. Counterterrorist Legislation,”  EMORY INTERNATIONAL LAW REVIEW,  Vol. 6,  No. 1,  Spring 1992,  pp. 171-214.

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

Continue Reading
Comments

International Law

Why states undermined their sovereignty by signing NPT?

Published

on

Nuclear weapons are known as brawny and cataclysmic weapons. The source of the energy of such weapons is fission and fusion of atoms. Such weapons release huge amount of radiation which can cause “radiation sickness”. Nuclear weapons were used once in a history in 1945. 80000 people were killed in Hiroshima and 70000 in Nagasaki. Due to the evidence of catastrophic impact, they have not been used in any war till today. The proliferation of nuclear weapons is a subject of concern in the international system. There are nine states which possess nuclear weapons: United States, United Kingdom, Russia, France and china. Proliferation is a spread of nuclear weapons both horizontally and vertically. In order to deal with the proliferation, NPT was introduced and still working globally.

NPT:

NPT is known as “treaty on the non-proliferation of nuclear weapons”. It thwarts the states from acquiring nuclear weapons’ technology or developing fissile material for nuclear weapons. The NPT is a multilateral treaty which was opened for signature on July 1st 1968 and entered into effect on March 5th 1970. Its signatory parties are 186 which joined it either by ratification or accession. Russia, UK and US are its depositaries. According to this treaty the states which have manufactured nuclear explosives prior to January 1st 1967 are legal nuclear states which include US, UK, Russia, France and china also known as de-jure states whereas Pakistan, India, North Korea and Israel are de-facto nuclear states. There three main pillar of NPT:

  • “Prevention of spread of nuclear weapons and nuclear technology.
  • Promotion of co-operation in peaceful uses of nuclear energy.
  • Achievement of nuclear as well as general and complete disarmament under strict and effective international control”.

Since the formation of these contraptions, a lot of gloomy predictions were made like in 21st century 20 states would acquire nuclear weapons but only nine states have been observed as nuclear weapon states till today. However, 65 years ago almost 39 states were engaged in nuclear program but sooner or later they gave up their ambition. From the second half of the 1980, the states which were indulge in the nuclear activities were relatively low. This is because of the 186states have signed NPT as a non-nuclear weapon state and condemned proliferation. The question arises here is what motivate states to not acquire nuclear weapons. There are many theories from the past decade to answer this question are grouped into four overarching groups:

  • Capability
  • Security
  • International norms and perception
  • Domestic political context

These are elaborated below:

The capability of any state regarding formation of nuclear weapons comprises on:

  • Technological capability
  • Economic capability

Development of nuclear weapon is not facile. Production of facile material is the most challenging and expensive, scientifically and technologically both. The transformation of that material into a deliveryweapon and development of the delivery system require technological and financial capabilities and which has become an effective obstacle for the less developed countries. As those countries don’t have advanced scientific and technological infrastructure and are not financially strong to afford the investment needed to start its own nuclear program. So, capabilities became a stumbling block for less developed states due to which they sign NPT as a non-nuclear state. But this is not only the decisive factor in taking decision whether to forgo nuclear weapons or not. Political willingness also play a crucial role in it because it devote a considerable share of states’ resources to military sector or public sector e.g. Pakistan and north Korea are poor states with less capabilities but they have developed nuclear weapons. So, it also depends upon the psychology of the leaders too. This point is concluded by saying:

“More highly developed countries proliferate more readily, less highly developed counters do so less readily”.

Security is the dominant theory to explain both questions: why states go nuclear and why not? Security is very appealing factor for the states to acquire nuclear weapons but acquiring nuclear weapons is not always the best way to ensure security. As this world is anarchic and states are rational unitary actor, so for the security, states go for self-help. But sometimes, acquiring nuclear weapons poses a greater threat than to forgo them because it may cause more distrust and tension among the adversaries. Due to the distrust one state may attempt pre-emptive strikewhich can cause nuclear war and end of the both states. So, to avoid this situation, state opted to go non-nuclear because in this condition it has not that’s much adversaries and can focuses on the other public sectors. According to the “prudential realism: “nations under certaincircumstances mayprudently forgo military capabilities that is threatening because states and security-conscious entities”. States which are involve in low intensity conflict would likely to go non-nuclear by signing NPT. Alliances also play an important role in security according to neo-liberalism. States are likely to go in alliance with any nuclear state in order to avoid the risk, cost and difficulties of nuclear weapon programs e.g. NATO countries are in alliance with US. But that nuclear state must give a guarantee of “positive and negative assurance security” so those states chose to sign NPT as a non-nuclear states.

International norms and perceptions also assist states in deciding whether to sign NPT as a non-nuclear weapon state or not. The norms of international system highly influence the perceptions of the states especially norms in the international treaties like NPT. States have a lust of prestige and status in international system. On the basis of non-proliferation norms, states perceive that their status and prestige would be increased by forgoing nuclear weapons. According to Jacques Hymans: “ most states think of themselves as, and want to be seen as , good international citizens and good international citizens don’t build nuclear arsenals”. Due to this reason, majority of thestates don’t acquire nuclear weapons. Constructivism is the basis of international norms and perceptions which have made normative situation for the states in general. NPT have changed the normative environment and situation got changed due to which many states forgo nuclear weapons. Cost-benefit analysis got changed by the non-proliferation norms. It has made nuclear weapon program technically, financially and politically expensive. It has also change the assumption of appropriate state behavior. So to maintain the good self-image in international system states have signed NPT as a non-nuclear weapon states.

The factors of domestic political context have many dimensions. In this cluster, types of governmental systemplay a crucial role for the states to sign NPT as a non-nuclear states. According to some researchers, democracies are less likely to engage in conflicts than autocracies. Democracies obey international laws at greater level to become a good citizen of internal system due to which the chances of democracies to become nuclear states are less. From the lens of political-ideology if a system aims for the economic growth that it would not go for nuclear weapons. According to Solingen “the nuclear programs are less likely to emerge in countries where the political culture is in general sympathetic to economic openness, trade liberalization, foreign investments, and international economic integration” e.g. Saudi Arabia. Psychology of domestic actor also play a crucial role in influencing the decision regarding nuclear weapons and societal groups too. In short, it depends upon the national political circumstances and dynamics that effect the decision of perusing or forgoing nuclear weapons.

Conclusion:

Nuclear free zone or weapons of mass destruction free zone is a great disincentive for the states if combined with the credible pledges by the US and other nuclear states to provide positive and negative assurance security to the non-nuclear weapon states. Like in Middle East only Israel has acquired nuclear weapons which can be equalized by the security given by US or other nuclear state in order to make Middle East nuclear-free zone. As NPT is known as bargaining treaty which offer economic incentives to the states and compel other states to sign NPT. All the above factors showed the reasons of the will of states but some states sign NPTbecause of the fear of the sanction because none of the state survive if it becomes isolated from the whole world e.g. economic sanctions upon Iran. Many under developed countries are unable to resist the pressure of the developed stays and for their survival, they need their support. So, in return, they obey the orders of developed states and don’t go for nuclear weapons. Ukraine, Kazakhstan and Belarus dismantle their nuclear arsenals because of the incentive of the positive assured security. Whereas, the nuclear programs of Brazil and Argentina were dissuaded by the regional security arrangement. South Africa gave its nuclear weapons for the sake of its development. Under developed countries focus on the development of health, education sectors etc. due to which they dismantle their nuclear weapons and got economic assistance. In a nutshell, NPT played a crucial role in resisting nuclear proliferation but at the same time it is monopolizing the power of nuclear states.

Continue Reading

International Law

Why Did States Sign NPT Treaty As Non-Nuclear Weapon States

Published

on

Following the inception of the “Treaty on the non-proliferation of nuclear weapons NPT” in 1967, about 186 states signed NPT as non-nuclear weapon states (NNWS) which are obliged to refrain from acquiring or manufacturing nuclear weapons nor these states are allowed to seek or receive assistance from nuclear weapon states in this regard, and have to comply with the prerequisites defined by IAEA. The reasons due to which these states decided to give up their sovereign right of acquiring nuclear weapons (despite the fact that some of these states are actually capable to develop nuclear weapons) are driven by motivations that vary according to the states’ regional and domestic security dynamics, combined with the international normative values. Hence, in order to identify and understand the relevant reasons, case studies and an analysis have been presented.

CASE STUDIES

UKRAINE: After exploring the official statements related to the nuclear policy, issued by Ukraine’s Ministry of Foreign Affairs (MFA), following reasons were observed due to which Ukraine signed NPT: international pressure, technical incapability, unstable economic affairs, incentive given by NPT in terms of civil nuclear technology (membership of MCTR “Missile Technology Control Regime” saved the space industry of Ukraine), pursuit for the stability of the newly established state in the region etc. At first, Ukraine tried to hold the rights over a nuclear arsenal (that it inherited after the disintegration of USSR). However, it seemed unable to handle international pressure. Moreover, MFA of Ukraine acknoweldged that Ukrain didn’t want to offend the IAEA prerequisites as doing so would result in unstable economic relations with other states, especially Russia; the halted supply of nuclear fuel from Russia would cause the Ukranian nuclear power plants to shut down which might have result in energy crisis.

EGYPT:Previously interested in the procurement of nuclear weapons (due to perceived threat from “nuclear activity of Israel”), Egypt signed NPT in 1981 as it perceived (constructivism) that the benefits of signing NPT were impeccable in terms of diplomatic ties with US and aid of approximately two billion dollars provided by US every year. Moreover, Egypt had the chance to be “good international citizen” as per the international norms and to criticize the Israel’s ambigous nuclear aims.

BRAZIL AND ARGENTINA: Brazil and Argentina faced security dilemma due to the “long-standing rivalry” between them. Later on, due to the adoption of the “democratic regimes”, their rivalry was mitigated. Later on, Argentina and Brazil states became party to the NPT as NNWS in the years 1995 and 1998 respectively. Hence, the security dilemma was over and these states, being democratic states and as per the international normative values, had no reason to stay out of NPT. So the “low security threat” is the main reason due to which these states signed NPT as NNWS.

SOUTH KOREA:Despite having the advanced nuclear reactors manufacturing industry, South Korea chose to sign NPT as NNWS, partly because of its capitalist approach and international norms, and partly because of nuclear umbrella sought by South Korea from USA (though the influence of extended nuclear deterrence remains debatable between scholars).Moreover,according to some scholars, a few states are able to develop and manufacture the final product (nuclear weapons) but have not done it yet, either due to diplomatic reasons or simply because they do not have the reason to rush towards the development of nuclear weapons as they can manufacture nukes any time by withdrawing from NPT in case they perceived potential threat. However, the personal opinion is that it is highly unlikely of South Korea to withdraw from NPT.

JAPAN:Japan signed NPT as NNWS due to the international condemnation it faced which resulted from its aggressive historical background, and due to article 9 (renounced its right to keep armed forces except for defensive purposes) in its constitution. Moreover, like South Korea it has nuclear umbrella from US. However, scholars debate over the future of Japan (Whether it would remain non-nuclear state or not).

ANALYSIS

Although, multiple scholars gave multiple sets of “proliferation motives” yet an attempt has been made in this article to identify the most relevant motives and reasons due to which states signed NPT as NNWS, after studying the cases of the few states ( elaborated above).

First of all, The expense of the enrichment of fissile material (uranium or plutonium) and the development of stable nuclear arsenals, could be a disincentive for developing states to procure nuclear weapons. Therefore, such states might have signed NPT in order to be benefited by prohibitive international laws (for the use of force) in terms of security.

Second reason is theRegional Security Dynamics; whether a state is facing security dilemma with its adversary or not. If a state is not facing any security dilemma then there is no reason for the state to stay out of NPT. Otherwise, procurement of nuclear weapons would pose potential threat to the security of the state as compared to the disarmament. The initiative for the development of nuclear weapons taken by a state would insecure its adversary and may lead to arms race in the region that would ultimately, contribute to the instability of that region. Another reason could be drived from the perceived “Nuclear Umbrella”; state such as South Korea and Japan may not develop nuclear weapons as in case of conflict, they would seek help, in the form of the deployment of nuclear weapons, from the USA; a phenomeon known as extended deterrence.

Thirdly, International Normative values based contructivism could also be considered a reason due to which states signed NPT as NNWS. The term nuclear taboo became the part of the scholarly text which emphasized the constructivist perception that the making and the use of nuclear weapons is immoral and the (perceived) legitimate initiatives related to he non-proliferation and disarmament would increase their prestige (which might also be beneficial for inter-state relations of a state with others and for the trade). This norm has been institutionalized in Non-proliferation Treaty. In other words, “states prefer to be good international citizens; the ones which do not develop nuclear weapons” (Jacques Hymans). Hence, the states overwhelmed (international pressure) by the international norms signed NPT as non-nuclear weapon states. Many states (which possessed the capability of developing nuclear weapons) started nuclear programs before NPT entered into force. Later on, these states terminated their nuclear programs and signed NPT due to the altered norms of cost and benefit analysis; favorable trade agreements and the changed definition of appropriate state behavior. Another factor that contributes to this topic is the history of the states (e.g Japan’ case).

Fourthly,the behavior of the states influenced by intra-state political and economic affairs could also be a reason; political structure and type of government along with the state’s priorities (military security prioritized over economic security and vice versa). Democratic states tend to be the protagonist of NPT and prefer to obey the international laws (However, this opinion remains debatable). Moreover, the “willingness” of the state leaders to prefer the economic growth (through international trade and cooperation; a liberal perspective) could also be a “non-proliferation motive”, since doing otherwise (prefering to develop nuclear weapons) would result in economic sanctions and disintergration.

Fifth reason is the most common and widely understood reason that is the incentive (bargain) offered by NPT to the non-nuclear weapons states; the providence of civil nuclear technology for the peaceful purposes (e.g generating electricity or for medical purposes etc.).

Other reasons have also been assumed after observing the state of world affairs, for example: the monopoly of P5, that is, not to let other states acquire nuclear weapons could also be the reason; the small weak states or the states that are newly established may have signed NPT after being pressurized by these countries on political and economical level. Moreover,some states might have signed NPT to simply support the cause of this treaty. For example, New Zealand signed NPT because it is a great protagonist of the non-proliferation and disarmament cause. In addition to that, these states, at the time of signing the treaty, expected P5 to disarm as per the treaty’s articles. The matter that the P5 haven’t done it yet, has been raised at NPT meetings many times, by NNWS.

CONCLUSION

Since there are 186 states party to the NPT as Non-Nuclear Weapon States (NNWS), the reasons for them signing as NNWS are numerous. However these reasons could be narrowed down to the few major reasons; security dynamics of the regions where these states are situated, their intra-state matters, the prevailing norms in the international system, cost and beneft analysis over the incentives offered by NPT etc. However, the effect of NPT is uncertain since the states that have signed NPT do not have immediate security threats. In case, they face threats from adversary, the decisive role of NPT over such potential security issues remains debatable.

Continue Reading

International Law

How nations states are limited

Published

on

After the World War II, the establishment of the United Nations and the beginning of cooperation between the states was considered by many governments as a positive step. It was a useful step for all governments to start cooperating with European states that had been at war with each other for many years and failed in European history, and for other states to join this process and maintain positive political and diplomatic relations. However, after the recent two world wars, the desire of states to sit at the table of peace has made them forget something. These were the influences of the global government (UN) that would affect the sovereignty of states. Therefore, as liberal relations and the process of globalization develop in international relations, nation-states have begun to move away from the status of individual states to the management of global power. Today, global governance has become a reality. When national states decide on an act in international politics, they are forced to act and implement acts not only in the national interests of the state, but also in the opinion of international organizations. Today, it is not as easy as in the past to seriously change the geopolitical situation and violate international law without the opinion of international political organizations. Because today in the system of international relations there is a control and power through global governance, which will influence the sovereign decisions of states. Therefore, today I will share my views on how global governance, which is a reality today, has brought nation-states closer to decline.

Part 1

Although the emergence and functioning of international organizations dates back to the 19th century, the formation of global governance is largely thought of as the history of the United Nations and some of the political organizations that have emerged since then. As I said, the emergence of global governance is associated with the end of World War II in 1945 and the establishment of the United Nations. As we know, after the Second World War, the world began to move on different realities. With the establishment of the United Nations, a mechanism of global governance has already begun to emerge. However, due to the geopolitical consequences of World War II and the transfer of Eastern Europe to the USSR, global governance through the UN could not cover the whole world, but simply led to the emergence of international organizations with its roots and the division of the world into two poles. As we know, the signing of the North Atlantic Pact in 1949, the emergence of NATO and the formation of the Western bloc, and later the signing of the Warsaw Pact and the establishment of the Eastern bloc in the same year divided the world into two poles. On the one hand, there was the capitalist West in global governance. On the other hand, there was the communist-ruled USSR. This continued until the 1990s.

Then, in 1991, with the collapse of the USSR and the end of the Cold War, global governance began to take over the world and the world came to global power, and liberal relations began to take over the world. Even Fukuyama, when he said the end of history, in fact meant that global governance would cover the world and that the world’s states would operate in the process of globalization based on a liberal tradition. All of this was a small history of how global governance came into being and when it covered the whole world. After the end of the Cold War in 1991, the Eastern European states that had already seceded from the USSR began to integrate into the West. In short, they have joined global governance. Later, some countries in the region, such as Azerbaijan, Georgia, and Ukraine, which gained independence from the USSR, entered the global system of governance, maintaining ties with the West. However, states such as Russia and Iran, in order to further protect their sovereignty, did not allow the influence of this administration to influence them and began to sever ties with the West over time.

However, the process of globalization did not move much with its positive aspects. Not only did global governance influence the decisions of states to control them, but it also had to create hierarchical control over them by creating global hegemony. The ideal option for this was the hegemonic equator. In this hegemonic equator, states are legally and formally equal, but over time they have become economically, politically and militarily unequal. Thus, after a while, this unequal situation began to form a hierarchy of power between states. States with weaker economic resources and militaries are already under constant pressure from powerful states and under the influence of powerful states.

For example, we can see an example of this in our country today. We are all equal in the South Caucasus region. Although Georgia, Iran, Russia and Azerbaijan are formally equal, there is a hierarchy in terms of global hegemony. For example, Russia comes first in this hierarchy. Because Russia is much luckier than others in military, economic and geopolitical terms. The second is Iran. Because the possibility of Iran becoming a nuclear weapon results in its military superiority over other countries in the region. The third is Azerbaijan. Because Azerbaijan’s oil economy, such as oil and gas, makes it more economically viable and stronger than Armenia. Therefore, such differences created by global governance and the limits imposed on sovereign decisions by states have formed a critique of globalization over time, leading to criticism and debate by various academics. This criticism has long focused on the question of whether globalization can lead to the decline of nation-states.

Part 2

As we know, the long-term impact of the globalization process on states has led to serious criticism about whether globalization has transformed states. While some academics believe that global governance destroys and degrades nation-states, others argue that globalization serves the national interests of nations.

The first critical approach is that the process of globalization is very powerful in a globalized world. In this case, we have already moved to a system of non-sovereign states. Today, states are no longer able to make independent political decisions in the long run for their national interests and to act accordingly. This process also weakens the power of states in the world and in international relations, and transnational companies gain a dominant position.

However, in the second critical approach, academics think differently and contradict the first criticism. Academics believe that although globalization affects the independent acts of states, the superpowers of their regions are still the most important entities in global politics. Because both international organizations and economic transnational organizations, which are the concepts of the globalization process, were created by these countries themselves. Therefore, globalization does not harm these countries, but serves their national interests. They can violate international law and the rules of global governance at any time, and even the geopolitical situation can change despite global governance. (For example, the US invasion of Iraq, Russia’s imperialist act against Georgia and Ukraine)

In addition, there is a third and final critical approach, which is the approach of global governance to other forms of power, interests, goals and acts of states. As globalization is now considered a world reality, states are forced to choose between two options. Either Iran, like North Korea, will remain closed and protect its national sovereignty outside of global governance, or, like other countries in the world, will join the process of globalization and cooperate with each other. Since there is an economic reality created by global governance in the world, global governance can keep states under its influence by changing the interests, goals and acts of states.

However, the decline of the state today is not only due to the process of globalization and global governance. In addition, there are institutions such as the global economy, business, large companies, non-governmental organizations and international organizations, which pose a serious threat to the sovereignty of states. Today we live in a world of more international, economic companies and organizations than national states. 49% of these companies and organizations belong to the states and 51% to the international economy. The economic power of some of these companies (Exxon Mobil, General Motors) is already greater than in many Eastern European and African countries. From this we can conclude that the second concept that leads to the decline of nation-states, along with international organizations, is the international economic companies.

Conclusion

As a result, I can say that today the globalized world and international organizations have become a system that borders states and limits their national decisions. If in the 20th century it was so easy to make a decision to start a world war, to use any type of weapon, it has become almost impossible to do so in a globalized world. But in addition, globalization and international organizations can sometimes help strengthen states. For example, today, because states play an important role in international organizations, decisions made through international organizations

sometimes depend on states. For example, the UN Security Council, the Consulate General of the European Union, is a process that depends on states in the decision-making process. The decisions of the member states are considered very serious and decisive in the decision-making process. In this case, too, we can see that international organizations do not act as a tool for the decline of nation-states, but as a concept that strengthens them. Therefore, I do not think it is right to assess globalization today as a system that leads to the decline of nation-states.

Reference

  • Andrew Heywood. (2013, fourth edition). Politics s.18
  • Robert Jackson & Georg Sorensen: Introduction to İR, s. 4
  • Mazarr, M. (1999). Global trends 2005: An owner’s manual for the next decade. New York: St. Martin’s Press.
  • Zygmunt BAUMAN, Küreselleşme-Toplumsal Sonuçları, Çev: Abdullah Yılmaz, Arıntı Yayınları, İstanbul, 2010, s.83

Continue Reading

Publications

Latest

Trending