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

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“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.

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International Law

Omicron and Vaccine Nationalism: How Rich Countries Have Contributed to Pandemic’s Longevity

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In a global pandemic, “Nobody is safe until everyone is safe”, – it is more of true with respect to the current globalized world system. It is said that crisis strikes the conscience and forces the ‘commonality of purpose’ on one another- and a major one in magnanimous scale. But the current Covid-19 crisis seems to have emerged in oddity with this very axiom, of course, due to self-serving, in WHO’s words- ‘self-defeating’ and ‘immoral’, approaches to dealing the pandemic by wealthy countries.

 A new and potentially more transmissible variant of Covid-19 virus, named Omicron by WHO, has been detected in South Africa. With scientists yet to be confirmed about new variant’s epicenter and its likely implication on human immune system, the emergence of Omicron has brought the long-warned case of ‘vaccine nationalism’– a phenomenon in which each nation prioritizes securing ample doses without considering impact on poor ones- to light.

Unheeded to the repeated warnings by scientists and pandemic specialists, many of the world’s richest countries had embarked on a vaccine-acquisition frenzy and hoarded jabs more than their requirements. Some countries have even gone to the extent that they had acquired up to four times what their population needed. Thereby, it has left majority of poor and developing countries, particularly those in global south, unvaccinated, with further risk of the virus being muted into more virulent variants, as in the case of Omicron.

A simple numerical data over vaccination rate across the world exposes the grotesques picture of pandemic recovery divide among the countries and immoral hoarding and hedging efforts on vaccine supplies by wealthy countries. As of now, whereas only 3% of people in low income countries have fully been vaccinated, the figure exceeds 60% in both high-income and upper-middle –income countries. In Africa, the most under-vaccinated and the epicenter of ominous Omicron, only some 7% of its 1.3 billion people are fully immunized.

Given the 9.1bn vaccines already manufactured and 12bn expected by the end of this year, the question is- why does vaccination effort remain so discriminatory and dividing across the regions? The answer, in most part, lies in the ‘pervasive economic inequity’ inherent in initial vaccine-acquisition process. With their enormous capacity to pay out, rich countries, even before pandemic took devastating hold, had pursued a ‘portfolio-approach’ in investing on vaccine development research by pharmaceutical companies- simultaneous investment on multiple ones. In exchange, those countries stroke bilateral deal with each drag company to secure enough prospective vaccine doses to inoculate their respective population several times over.

This absolutist vaccine-acquisition drive of wealthy nations had substantially thwarted the holistic approach taken up by World Health Organization(WHO) under the platform of COVAX, a vaccine sharing program. With the aim of reducing the delay in vaccine allocation to poor and developing countries, and thus ensuring vaccine equity, the multilateral platform didn’t get enough incentives from wealthy ones, since started its journey in April 2020. Both investment and acquisition by well-off countries, having bypassed the COVAX, kept them into the front of manufacturing line, thereby, contributed to the distributional injustice.

‘What starts wrong ends wrong’- initial absolutist approaches in vaccine acquisition started to be manifested in discriminatory distribution of vaccines. Thereby, an amazing scientific breakthrough, development of vaccine in record time, has been offset by awful political policy. In mid-2021, when one portion of world were almost on the track of carefree normalcy, people in bigger portion were struggling to breath. Today, problem is not in production of vaccines, as 2 billion doses of vaccines are being manufactured in every month, rather in the ‘unfairness of distribution’.

Early monopolistic exercise by G20 on acquisition and subsequent stockpile of vaccines has resulted in such galling situation that they have commandeered over 89% of vaccines already produced and over 71% of future deliveries. Consequently, the global inoculation drive, since started, is so unjust that for every vaccine delivered to the poorest countries, six times as many doses are being administered as third and booster vaccines in the richest countries. Adding further to the crisis being escalated, while more than 100 countries, for past one year, have desperately demanded emergency waiver on TRIPs related regulatory restriction on Technologies crucial to pandemic recovery, it has repeatedly been blocked by UK and EU.

Picture is not all-about gloomy with respect to vaccine collaboration but it is quite tiny to the scale of requirements. Rich countries could not deliver on the commitments they did to help poor countries immunize their population. For instance, WHO’s target of having 40% of global population vaccinated by end of this year, through COVAX, seems certainly to fall short largely due to the rich countries failing to deliver on their promise to use their surplus vaccines to immunize the under-vaccinated countries. Far from near, the G7 countries had drastically failed to deliver on their promises made on G7 summit in June. As of last week, USA has delivered only 25%, with further embarrassing arithmetic of EU only 19%, UK 11% and Canada just 5%.

Given the frightening predictions from WHO that another 5 million could be added to the already 5 million death tolls across the world, in the next year or more, it is high time starting a collective endeavor with herculean efforts to inoculate large swaths of unvaccinated people in un-protected areas. Keeping large portion out of vaccination will only make the pandemic endure with no time to end, as virus continues to persist through mutating in un-protected area into a more menacing variant. If so, then again someone else may say, after next the worst wave-We were forewarned- and yet here we are.             

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International Law

The Nuclear Weapons Ban Treaty (TPNW): Wishful daydream or historic milestone?

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The Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted in 2017, has entered into force on the 22nd of January of this year and the number of ratifying states continues to grow, with Mongolia being the latest to announce its accession. This positive trend is certainly welcomed with enthusiasm by the Civil Society campaigners and growing number of supporters of this treaty that represents a huge step forward for the global movement to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons. It would certainly be dishonest to ignore the fact that this new international legal instrument remains controversial, to say the least, for most of the members of the so-called nuclear deterrence community. As preparations are ongoing for the first Meeting of States Parties, scheduled to take place in Vienna on 22-24 March 2022, it is useful to address some of the main doubts and arguments against the treaty.

In this regard, the main criticism is that it makes no sense to support a treaty on nuclear weapons if those states that possess them have not joined nor any intention to join it.  

In order to address this claim, it may be useful to recall that in the case of the Mine Ban and the Cluster Munition treaties, its main promoters and supporters were also states that did not possess those weapons, and that those international instruments also received some harsh criticism for this reason. Despite of this, there is no doubt now that both of those treaties have become remarkable success stories, not only by achieving the goal of approaching universalization, but also by consolidating a general moral condemnation of those categories of weapons. Therefore, the argument that a treaty necessarily needs to be joined by the possessors of the weapons can easily be rebutted. Despite of the current position of the nuclear weapons states, each new ratification of the treaty is not meaningless: on the contrary, it provides the treaty more authority and contributes to the growing pressure on nuclear weapons states to adopt further steps towards nuclear disarmament.

The other major contribution of the TPNW is that it facilitates the process of delegitimisation of nuclear weapons, necessary to finally amend the well-established foundations of nuclear deterrence doctrines. The humanitarian principles that are underlying the treaty are totally incompatible with those doctrines, and therefore are having an impact on them by highlighting the inherent immorality and illegitimacy of nuclear weapons.   

Another argument for the case of ratification is that it provides states the opportunity to support the process of democratization of the global debate on nuclear weapons, as this new treaty has been the result of a very open discussion with active engagement of delegations from all geographic regions and, in particular, of representatives of Civil Society. This is not a minor aspect of this process, but a key element. Indeed, unlike in negotiations of previous international legal instruments, in this era of growing complexity and interlinkages, the main challenges faced by humankind are being addressed by a diverse group of citizens, from all walks of life and regions. Traditional diplomacy is certainly not enough, and in the case of the TPNW, the positive results would clearly not have been possible without the decisive boost provided by the International Campaign to Abolish Nuclear Weapons (ICAN), which was able to mobilize Civil Society and likeminded governments towards the goal of negotiating a nuclear weapons ban treaty. 

While it would be naïve to expect the establishment of the nuclear weapons states to be convinced by the humanitarian narrative and in a foreseeable future to amend its defence and security policies base on nuclear deterrence, the TPNW and its focus on the security of the human being instead of the traditional notion of the security of the state, are already having an impact on the academic and public debates in those states.

The second argument used by its critics is that the TPNW weakens the Non-Proliferation Treaty (NPT).  Actually, this is not only incorrect, the opposite is true. In fact, the TPNW can serve as an initiative to help implement article VI of the NPT, by which parties are committed to undertake to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”. This is of vital importance as the treaty clearly attaches a key role to all parties, and not only to those states that possess nuclear weapons. This commitment has also been reflected in the Final Document of the 2010 NPT Review Conference, and the TPNW can be understood as a reflection of that obligation to contribute to nuclear disarmament by non-nuclear weapons states.

Another common point is that the nuclear weapons industry is too strong and well consolidated and that it would be naïve to pretend that this treaty could actually have an impact on investment decisions.

This pessimism has also been proven wrong. In fact, in 2021, more than one hundred financial institutions are reported to have decided to stop investing in companies related to nuclear weapons production. As a result, the nuclear weapons industry is experiencing a considerable reduction and the trend towards the exclusion of this sector from investment targets is growing steadily. This is not only the consequence from the legal obligations that emanate from the TPNW but a reflection of the devaluation of the public image associated to these industries. As this public image continues to deteriorate, it is likely that this trend will continue and that the moral condemnation of these weapons of mass destruction will be absorbed into the mainstream of society.

Another common misinterpretation is that the TPNW should be understood as an instrument that is only designed to be joined exclusively by non-nuclear weapons states.

In fact, even though the treaty was developed by non-nuclear weapons states, it has been drafted and negotiated with the goal of universal adherence, including, someday, those states that still include nuclear deterrence in their national security doctrines. In particular, the TPNW establishes a clear set of steps for nuclear weapons states in order to eliminate their arsenals of nuclear weapons. Specifically, within 60 days after the entry into force of the treaty for a state party that possesses nuclear weapons, that state must submit a plan for the complete elimination of its nuclear weapons to a competent international authority that has been specially designated by states parties. The treaty also includes a process to designate a competent international authority to verify the elimination of nuclear weapons by a state before acceding to the treaty, and a process for states parties that maintain nuclear weapons in their territories for the removal of these weapons and report this action to the United Nations Secretary General.

It is also noteworthy that this treaty obliges states parties to provide adequate assistance to victims affected by the use or by testing of nuclear weapons, and to take the necessary measures for environmental rehabilitation in areas contaminated under its control. This dimension of the treaty constitutes an important contribution both to the protection of human rights of victims and to the now inescapable obligation to protect the environment, which are aspects that are not covered by the Comprehensive Nuclear Test Ban Treaty (CTBT). This certainly does not affect the value and vital role of this key instrument of the nuclear disarmament and non-proliferation regime but complements it by addressing the fundamental issue of environmental reparation.

The main challenge now is now not only to achieve a wider universality of the TPNW, but to engage more stakeholders and create awareness on the urgency of bringing pressure on the nuclear weapons states to finally move toward nuclear disarmament. In this regard, Civil Society initiatives have been promoting engagement of members of grassroots, parliament, the media and city governments, particularly in nuclear weapons states, which has had impressive results, with hundreds of local governments expressing support for the treaty and generating discussion among the population. These initiatives serve the purpose of putting pressure on politicians and especially, to facilitate a discussion within democratic societies about the sustainability and risks involved in the possession and harboring of nuclear weapons.

Indeed, the TPNW has a long way to go and overcome many obstacles to achieve its objective, but in its first year of entry into force, it has already had an undeniable impact on the nuclear disarmament and non-proliferation debate, despite the expected skeptics and efforts to ignore its existence stemming from the still powerful nuclear deterrence establishment. Most of its technical experts, academics and government officials honestly believe that nuclear weapons have helped to guarantee peace and stability to the world and therefore should continue as the foundation of international security doctrines. These well-established ideas have been based on the questionable assumption that the deployment of these weapons have avoided war and can guarantee permanent peace for all nations. This has served as a sort of dogmatic idea for many decades, but recent research results have shown that the risks involved are significantly higher and that the humanitarian consequences would be catastrophic for every citizen of the planet. The humanitarian impact paradigm, which underlies the process that has inspired the TPNW, has provoked a tectonic shift in the nuclear disarmament and non-proliferation debate, which had been limited to the NPT review conferences with its often-frustrating results. Certainly, the persistence of the different approaches needs to be addressed in a more constructive discussion among the supporters of this treaty and the deterrence community.

Finally, the fact that the first meeting of states parties of the TPNW will take place in Vienna is very meaningful as Austria has been one of the leading nations in this process, particularly in drafting the Humanitarian Pledge to fill the legal gap for the prohibition of nuclear weapons, which has been a decisive step towards the treaty that has already fulfilled that commitment. Despite of all the difficulties and the persistence of significant resistance, the active and committed participation of diplomats and Civil Society representatives, under the leadership of Austria, allow to envisage that this first meeting will help to strengthen the treaty and move forward in the long and burdensome road to the final objective of achieving a world free of nuclear weapons.

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International Law

Regional Mechanisms of Human Rights: The Way Forward: Case of South Asia

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Long debates have evolved since the 1948 UDHR as to whether human rights should always be perceived as universal, or whether they need to be regarded as contextual on regional and local cultures. If we look at  Art. 2 of the UDHR the rights apply “with no distinction given to their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Still in spite of this, the universality has been criticized by some, who argue that by claiming human rights are universal, we ignore and undermine the cultural differences that exist between societies in different parts of the world

Historically, the first written evidence of human rights was found in the famous universal declaration in 1215 A.D., popularly known as the ‘Magna Carta’. Along with the same, there were many thinkers like Hobbes, Locke Rousseau, Milton, and Voltaire who argued in favour of  individual rights and with passage of time and the conclusion of two world wars, the United Nations Organisation came into being on 24th October 1945 that replaced the League of Nations.

Further, the Universal Declaration of Human Rights that was established in 1948 and is considered a milestone in the field of human rights whose primary aim is to protect and promote human rights. In contrast to the said aim, the critics of the UDHR label it as a Western-biased document that fails to account for the cultural norms and values which exist in the rest of the world. It is only with regard to a group of certain core rights like that are listed in the human rights treaties as ‘non-derogable rights’ or considered jus cogens such as the prohibition of the use of force, the law of genocide, the principle of racial non- discrimination, crimes against humanity, and the rules prohibiting trade in slaves and piracy that consensus among nations exist.

The core of the issue is that a group of nations are seeking to redefine the content of the term “human rights” according to their own social and cultural experiences as they argue that the principles enshrined in the Universal Declaration reflect Western values and not their own. These countries sign many international human rights treaties and conventions, but the use of reservations and internal obstacles

jeopardize their implementation. Such claims of social and cultural differences in the past have been dismissed by the western countries and the USA who dismissed such claims as being a screen behind which authoritarian governments can perpetuate abuses.

Coming to South Asian Nations, there does exist violations of human rights in India as there is an absence of any regional framework that can hold the government responsible for the acts committed or provide a forum to individuals to appeal against the decisions of the Courts like the one existing under European Court of Human Rights. To illustrate, the aspect of women’s rights needs consideration and improvement in the daily lives of women to meet the gap between formal rights and actual implementation of the same.  What this means is that there exists a necessity to focus on translating the universal values enshrined under International human rights to local contexts that is the only option available to human beings irrespective of the geographical location to the ideals of equality and freedom from discrimination

In this context, there arises a need for establishing regional and sub- regional human rights codes or conventions. This has also been recognized by the United Nations since in absence of a universal approach that the South Asian states refuse to adopt, it is through regional initiatives that the motives of human rights could be achieved. The need for a regional initiative becomes even more significant because unlike Europe, America, and Africa there is no inter-governmental regional system for human rights protection in South Asia. In practice, the reason cited is that the human rights debate revolves around the South Asian views or perspectives. Although the South Asian governments have ratified international human rights instruments, they fail to reflect in the national constitutions or laws of most governments.

The fact that human rights will enjoy certain specificity in South Asia, still to be elaborated and applied, however, does not mean less for the universality of human rights. The reason being that the international human rights do not originate from merely one homogenous European value system or culture, but from various heterogeneous sources, some of these existing in the long history of South Asia. Thus, human rights are universal not only in their applicability to all human beings in every corner of the world, but are also universal because they originated from every corner in the world.

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