There have been interesting developments recently in the saga of the UN's endangered Golan Heights peacekeeping force. The withdrawal of several troop-contributing states has left the UN scrambling for replacements. But some outlets are reporting that Fiji--a regular contributor to peacekeeping operations--might step in. Meanwhile, the UN is reportedly leaning on Austria to slow down the departure of its troops. Via Al Arabiya:
The U.N. has asked Vienna to keep soldiers in the buffer zone between Syria and Israel until the end of July, a month longer than the four-week timetable Austria gave when it announced on June 6 it was recalling its forces.
“We are still going to pull out, but the question of how and when has to be negotiated with the U.N.,” Spindelegger told reporters.
The defense ministry, however, has said the withdrawal would go as planned.
Spindelegger said Austria’s troop commitment accord stipulated that any exit from the Golan, where the Philippines and India also have troops, requires three months’ notice.
“These three months would end on Sept. 6. The offer from the U.N. says July 31. Now we, together with the defense ministry, have to see that we reach a joint withdrawal plan with the U.N. that heeds everyone’s interests,” he said.
The spectacle of elected Western leaders standing on equal footing with Russia's Vladimir Putin at the G8 summit is too much for some observers. In yesterday's Wall Street Journal, David Gordon and Ash Jain proposed a solution to the phenomenon of multilateralism that treats democratic and non-democratic states as equals:
We suggest building upon an initiative launched by the U.S. State Department in 2008. That year, policy-planning directors from several democracies gathered in Toronto to launch a new dialogue on global challenges. Those invited to participate were strategically like-minded—committed to addressing certain threats and maintaining democratic values—with the requisite economic, military and diplomatic resources to act on a global scale. The resulting group included America's closest allies—the United Kingdom, France, Germany, Italy, Canada, Japan, Australia and South Korea.
Subsequent meetings in Washington and Seoul during Mr. Obama's first term were productive, but higher-level engagement is now required. The U.S. should convene the foreign ministers from these nine states to endorse and reinforce this construct. With the addition of the European Union, the resulting "Democracies 10" (or D-10) would account for more than 60% of global GDP and more than three-fourths of the world's military expenditures...
The U.S. and its D-10 partners will not agree on every issue. And addressing many issues will still require working with Russia, China and other world powers. But by providing a powerful and integrated platform for strategic collaboration, the D-10 would allow the U.S. and its like-minded allies to advance common interests and act effectively on the most critical challenges facing the West today.
Gordon and Jain recognize that such a development will irritate many key states--including key emerging powers--and they suggest that the D10 keep a relatively low profile (although it's not clear whether that is compatible with meetings at the level of foreign minister). For a more in-depth elaboration of the idea, see here and here.
As the United States moves toward more open support of the Syrian rebels, several simmering international legal questions will likely become more prominent. Below is a thumbnail sketch of a few issues.
The legality of arming the rebels: Most obvious is the question of what international law says about arming rebels groups and how the United States will seek to justify the policy. Unsurprisingly, the Syrian government has described the policy as "incitement to murder." Russia, China, and others have also argued that the policy would be illegal. Vladimir Putin recently drew a sharp contrast between the legal basis for arming the government and that for supporting the rebels:
[L]et me draw your attention to the fact that Russia supplies arms to the legitimate government of Syria in full compliance with the norms of international law. We are not breaching any rules and norms. Let me emphasize that: we are not breaching any rules and norms, and we call on all our partners to act in the same fashion.
There's plenty of dissent within the West as well about the legal basis for arming the rebels. The Austrian government reportedly circulated a paper pointing out the legal problems with the policy. The argument against legality is straightforward: the Assad regime remains the recognized Syrian government, and the U.N. Charter does not permit other states to act against it militarily (other than in self-defense or with U.N. approval). There's plenty of legal support for the notion that providing arms (rather than, say, funds) to rebel groups itself constitutes a use of force, including the 1986 International Court of Justice ruling in the Nicaragua case.
But international law is murky on the issue, and there's ample room for the United States to argue that arming the rebels is lawful. Traditional international law supports the idea that outsiders can arm rebel movements that are widespread, well established, and that control territory. (Some ambitious international lawyers might even argue that there's an obligation to do so when the rebel movement faces the prospect of genocide or crimes against humanity.) As the Syrian rebellion solidifies, so does the legal basis for providing weapons.
A distinct legal question is whether sending arms to forces that might use them to commit human rights violations is illegal. There's no shortage of evidence that rebels have committed atrocities. The U.N. General Assembly recently approved an Arms Trade Treaty (ATT) that for the first time obliges states to take into account human rights law when it transfers weapons internationally. Many states are already parties to "codes of conduct" that emphasize the same principle. But the ATT ultimately allows each state to determine whether a weapons transfer threatens violations of the law, and there's no mechanism for reviewing that judgment. (What's more, the ATT likely won't come into force for at least a year.)
The legality of a no-fly zone: Recent reporting suggests that the United States is at least mulling the idea of a limited no-fly zone in Syrian airspace. The immediate legal question that arises is whether that kind of initiative would require a UN Security Council resolution. Most international lawyers argue that any coercive restrictions on a state's territory not in immediate self-defense require UN approval. Russian officials have made clear that they would veto any resolution authorizing a no-fly zone.
"All these maneuvers about no-fly zones and humanitarian corridors are a direct consequence of a lack of respect for
international law," a Russian official told Reuters.
Last week's Wall Street Journal account of U.S. thinking suggested that U.S. officials believe they can do so without UN approval.
Proponents of the proposal say a no-fly zone could be imposed without a U.N. Security Council resolution, since the U.S. would not regularly enter Syrian airspace and wouldn't hold Syrian territory.
U.S. planes have air-to-air missiles that could destroy Syrian planes from long ranges. But officials said that aircraft may be required to enter Syrian air space if threatened by advancing Syrian planes. Such an incursion by the U.S., if it were to happen, could be justified as self-defense, officials say.
That reasoning is a stretch, but there's a long history of Western legal gymnastics in this arena. NATO intervened in Kosovo without U.N. permission, and the United States and the United Kingdom patched together a legal rationale for the 2003 Iraq war. The key issue will not be the strength of the legal case but the strength of the political opposition to the move. Russia will squawk no matter what, but they'll also quietly let the West know whether a no-fly zone is something they can tolerate.
International prosecutions: The most obvious mechanism for holding accountable those committing abuses in Syria is the International Criminal Court (ICC). Because Syria is not a court member, however, the ICC will only acquire jurisdiction if the Security Council refers the case (the only other route would be if the national of an ICC member state committed crimes in Syria). A council referral appears impossible at the moment because of Russian and Chinese opposition. Even were Moscow and Beijing willing to acquiesce, it's not clear that Washington would support a referral, which might limit options for negotiating an Assad exit.
For the moment then, the courtroom door is barred. But that doesn't mean international justice won't play a role. If the rebel movement can solidify itself and win international recognition as the new government, for example, it could in theory give the court jurisdiction to investigate. The Rome Statute allows states -- even nonmembers -- to give the court the jurisdiction it needs by special agreement. For the rebels, the question would then be whether they're willing to accept the scrutiny that an ICC investigation would entail.
The issue I wrote about this morning--allegations that judges at the international tribunal for Yugoslavia have been tweaking rulings to protect powerful states--has taken a bizarre turn. A Danish newspaper reported today on a leaked email from a tribunal judge making that same allegation:
Harhoff, an expert in international law who was appointed a judge by the United Nations General Assembly in 2007, directly accuses the president of ICTY, American Theodor Meron, of putting his judges under pressure to acquit war criminals. The motive apparently has to do with the fact that the court in The Hague is creating a – from the military point of view – alarming practice, which can mean that top-ranking officers or leaders can be put on trialif their subordinates have committed war crimes, even if the officer's part in these crimes was a minor one.
"It would seem", writes Judge Harhoff, "that the military establishment" in leading states such as Israel and the US "felt that the tribunal was getting too close to top-ranking military commands."
"Has an Israeli or American official influenced the American President of the tribunal to effect a change of course?" Harhoff writes in the letter.
I've noted here the striking number of acquittals at international criminal tribunals. Recent refusals to convict senior Serbian officials at the International Tribunal for the former Yugoslavia (ICTY), based in The Hague, have been particularly controversial. Given the damning evidence of Serbia's role in the Bosnia conflict, and considering the money and expertise poured into the tribunal's work, it's fair to ask what gives.
A few weeks ago, the scholar Eric Gordy advanced a theory. He suggested that the tribunal judges and, in particular, American judge Theodor Meron have been interpreting the law in order to protect Western leaders from possible future international prosecutions:
Probably we will not know completely the reasons the judges decided to reverse course for the tribunal’s final stretch until it has closed its doors and key personalities release their memoirs. One possibility is that while the establishment of legal standards looked fine for small and marginal states like the ones involved in the Yugoslav conflict, it threatened the flexibility of more powerful states likely to be involved in conflicts in the future.
The rejected bases of responsibility in the three major acquittals in the last year included targeting civilian objects and arming and financing forces that committed crimes. It does not take a large stretch to see the implications that precedents in cases like this would have for the activity of powerful states in countries like Syria and Afghanistan.
Some of this reasoning might look like an invitation to conspiracy theorists to look for sinister influences on the tribunal’s decision-making. But no conspiracy is needed to explain that judges represent the states that nominated them to the tribunal, and that law is a conservative profession. To an outside observer it looks as though the International Criminal Tribunal for the Former Yugoslavia was on its way to establishing groundbreaking precedent, saw what this implied, and jumped backward.
[I]f the recent jurisprudence of the ICTY cannot be reasonably explained by a theory of an American judge imposing unjust legal standards on indolent or politicised ICTY judges, how can it be explained?
I believe that judges – Meron included – were driven by legal considerations. Such trivial explanation surely lacks the drama the conspiracy theory offers, but it has the advantage of not sounding silly.…
Contrary to what the critics allege, in the recent ICTY decisions, the law was applied consistently with the court’s precedents. The conclusion the court ultimately reached, that the evidence did not support a finding of guilty, reflects the peculiar nature of the two cases, rather than a change in the court’s approach.
The question of whether judges on international courts rule in ways compatible with the interests of their home states has been examined by legal scholars and political scientists. And there's some evidence that political considerations do in fact influence their behavior. Eric Posner examined the decisions of judges at the International Court of Justice and found "judges are significantly biased in favor of their home states when that state appears as a party." Erik Voeten reviewed the performance of judges on the European Court of Human Rights and reached a more nuanced conclusion. "Judges are politically motivated actors in the sense that they have policy preferences on how to best apply abstract human rights in concrete cases," he wrote, "not in the sense that they are using their judicial power to settle geopolitical scores." Given these findings, it's important to take seriously the question of whether political considerations impact international judges (and prosecutors).
But it's quite a leap from these strands of research to the suggestion that Gordy is making. After all, major powers and their nationals are not directly implicated in the Yugoslav tribunal cases. Leading Western countries -- and the United States, in particular -- are undoubtedly concerned about the possibility of international justice turning on them, but they continue to promote in various ways the principle of accountability for senior leaders. In 2011, for example, the U.N. Security Council unanimously referred the situation in Libya to the International Criminal Court -- a move council members had to know would lead to high-level prosecutions.
Given this complex reality, Gordy's suggestion that Meron and other tribunal judges are somehow channeling Western angst about the hypothetical political implications of these criminal accountability principles is a stretch. Even more problematic for Gordy's version of the political-influence thesis, Meron has been a consistent and outspoken advocate of the tribunal and its work in holding senior officials in the Balkans accountable. (In his voluminous writings, Meron has had a few words to say on the importance of judicial independence in the international context.)
I suspect the reality behind the acquittals at the ICTY and other international courts is much more mundane: Prosecutions against senior political officials are extremely difficult. Even when the political guilt of these figures is beyond question, it's awfully tough for prosecutors to link them directly to crimes in ways that will stand up in court.
Al Jazeera’s Sue Turton in the Golan Heights witnessed armoured personnel-carriers transporting the Austrians to the main UN base on the Israeli side of the ceasefire line.
She said that the troops were from the logistics unit, and not from the main body of the peacekeepers.
“There isn’t a large number of them but it’s a significant that they’ve already started to come out,” Turton said, adding that Austria was expected to remove the rest of its force later this month.
Japan and Croatia have also withdrawn their troops in recent months, as battles between the Syrian government and opposition forces spread into the ceasefire zone.
In Israel, the troop withdrawal was read as a betrayal of the United Nation's commitment to regional security, pledged during Israeli disengagement from Syria in 1974. Austria, along with troops from India and the Philippines, has provided a critical portion of the United Nations Disengagement Observer Force (Undof) charged with ensuring quiet on this sensitive border for the past 40 years.
"The only reason you want anyone there in the first place is in time of trouble," one senior Israeli official told the Guardian. "For the first time in 40 years, it's not easy so the presence ends? That sends a very problematic message to the Israeli public.
"This means that in any future deal with the Palestinians, we won't accept any disengagement forces from the United Nations because at the first sign of trouble, they'll disappear."
A more reserved statement issued by Israel's foreign ministry expressed its regret at Austria's decision and hoped that "it will not be conducive to further escalation in the region."
As UNDOF crumbles, it's worth recalling why it's there in the first place. From William Durch's The Evolution of UN Peacekeeping:
The Golan Heights … rise from less than 200 meters above Israel's Yarmak Valley at their southern end, to more than 2,700 meters at the northern end, at the summit of Mount Hermon. Guns placed on the Heights behind the old armistice demarcation line could dominate much of northern Israel. On the other hand, Syria's capital, Damascus, is just 75 kilometers of good tank country northeast of the Heights. Neither Syria nor Israel, in short, can afford to allow the other side exclusive control of this land.
A senior advisor to Egyptian President Mohamed Morsy is complaining that the International Monetary Fund is slow-walking the long discussed $4.8 billion loan. Via the Financial Times:
“The question [of when a deal would be signed] should be addressed to the IMF,” Mr Haddad told the Financial Times during a visit to London last week. “There’s always something coming up,” he said, complaining that fund officials wanted to see greater political consensus on the programme.
It's not surprising that IMF officials are insisting on strong evidence of political consensus before agreeing to a loan. Egyptian political and religious leaders have been sharply divided over the wisdom of accepting IMF funds. What's more, one lesson that the IMF staff derived from its recent review of Greece's loan program was the importance of assessing whether a society can sustain the conditions a loan program includes. "The Greek program … provides further evidence that the success of a program hinges centrally on the depth of its ownership," that report concluded.
This renewed focus on the political sustainability of its loan programs raises a question: If the IMF is headed down this path, shouldn't it be hiring political scientists as well as economists and lawyers?
The bigger challenge is one of orientation. The IMF is largely staffed by economists, which means that devising and communicating politically feasible policies can be a challenge. Managing Director Lagarde recognized this soon after taking office when she suggested that the Fund needs new thinking and outside expertise on how social and political trends affect macroeconomic stability. Whether this call for new thinking will translate into changes in staff recruitment is an open question.
Whether a UN peacekeeping force engaged in armed conflict with opposing forces should be considered a party to the conflict (for the purposes of applying international law) has been controversial for a number of decades. The UN has never publicly admitted that its peacekeepers are parties to the conflicts in which they engage, notwithstanding the fact that on a number of occasions it has acknowledged that its peacekeeping forces have engaged in offensive operations against armed groups. As a matter of law, it is difficult to conclude that the Brigade would not be a party to the conflict in situations where it conducts offensive operations. As a party to the conflict, the Brigade would be required to abide by international humanitarian law.
Troops that will form the brigade have been trickling into Congo, and the unit reportedly conducted its first patrols this week.
David Bosco reports on the new world order for The Multilateralist.