by Mitchell Plitnick

John Kerry’s words at a report-back to the Senate Foreign Relations Committee sent shock waves all the way to Jerusalem. “Unfortunately, prisoners were not released on the Saturday they were supposed to be released,” he said. “And so day one went by, day two went by, day three [...]]]> via LobeLog

by Mitchell Plitnick

John Kerry’s words at a report-back to the Senate Foreign Relations Committee sent shock waves all the way to Jerusalem. “Unfortunately, prisoners were not released on the Saturday they were supposed to be released,” he said. “And so day one went by, day two went by, day three went by. And then in the afternoon, when they were about to maybe get there, 700 settlement units were announced in Jerusalem and, poof, that was sort of the moment. We find ourselves where we are.”

That was well outside the usual boundaries of discourse for top US officials, and it certainly got noticed. Kerry’s own State Department subordinates quickly rushed to reaffirm that “…today, Secretary Kerry was again crystal clear that both sides have taken unhelpful steps and at no point has he engaged in a blame game.”

But the message was clear and Kerry himself has taken no steps to truly back off from it. He technically didn’t “blame” Israel. Rather, as he put it, “I only described the unfolding of events and the natural difficulties involved in managing such a complex and sensitive negotiation.”

The message, in a nutshell, is that the Obama administration is fed up with Bibi Netanyahu and his antics. That’s been welcomed by the vast majority of thinking analysts and observers who understood long ago that Israel has acted as the major obstacle to talks and that US pandering to Netanyahu was only going to harden the Israelis’ positions. But that welcome needs to be cooled a bit.

However frustrated Kerry may be by Netanyahu and Palestinian President Mahmoud Abbas declining to accept a US-brokered deal that was absurdly lopsided in Israel’s favor, the peace process must, apparently, go on. The United States continues intense efforts to bring the two sides back to the table despite the fact that months of talks have only been counter-productive and that the current goal of the talks is to find a framework for talks. At this point, the entire Oslo process is little more than a joke. If anything, it resembles a zombie from the television show, The Walking Dead — it’s really dead but it just keeps walking around and making noise.

Despite Kerry’s testimony, he’s staying in the business of bringing Israelis and Palestinians back to the table, and there’s one reason: the only goal remaining on the Obama administration’s agenda is to prevent the talks from completely breaking down on their watch. Yet it seems even that modest goal is beyond Kerry’s grasp. According to Israeli officials, the method for bringing the talks back to zombie-life is to re-issue the offer Abbas pre-empted with his application to fifteen international treaties and institutions. The only changes apparently on the table are compensation to Israel for Abbas’ heinous crime.

Despite Abbas’ unusually bold action in those applications, his track record of submission suggests he will cave-in again. Still, it’s hard to see how he can justify such a turnaround under these circumstances. So, it’s slightly more likely that he will not agree to this. But the most likely outcome is that the Israelis and Palestinians will continue to squabble, and that the deadline of April 29 will be upon us before Kerry can put the sham talks back together.

Given the beating the US is taking around the world over other issues, especially Ukraine; and the always-tenuous balance of maintaining the Iran nuclear talks, Kerry may have no choice but to finally give up on this poorly planned and even more poorly executed attempt to secure a resolution of the Oslo process. It’s now too late, but given the enormous amount of energy Kerry has devoted to this quixotic task, he may not be able to admit it. In any case, the US now must choose between looking foolish by giving up or looking even more foolish by pressing on in this effort when it’s clearly not prepared to do what it would take to get something done.

Abbas has pretty much mapped his post-talks course, and it certainly seems like most Palestinians are anxious to see it happen. That is, increased activism at the United Nations, including applying for accession to the Rome Statute, which would allow the Palestinians to bring Israeli leaders to the International Criminal Court on war crimes charges. Israel is very concerned about that, and that’s why despite the total harmlessness to Israel of the Palestinians’ fifteen international applications, Israel is reacting with increased threats, including an announced intention to steal the tax revenues Israel, by agreement, collects for the Palestinians.

In fact, it is in Israel where we have seen the most activity in response to the breakdown in talks, and none of it is encouraging. The Israeli opposition took days to comment. Zehava Gal-On, head of the left-wing Zionist Meretz Party had, as one would expect, the clearest criticism, saying Israel had given the United States “the finger.” The ostensible leader of the opposition, Isaac Herzog, was less harsh, but called for new elections. That would, however, be foolish as recent polls clearly indicate a strengthening of the right-wing majority. The two parties within Netanyahu’s coalition — HaTnuah and Yesh Atid — which are supposed to be holding Bibi’s feet to the peace talks fire, scrambled desperately to find credible ways to support Netanyahu instead.

Netanyahu’s critics have come from his right flank, in two different ways. First, Trade and Labor Minister, Naftali Bennett of the religious HaBayit Hayehudi (Jewish Home) party called for Israel to annex large chunks of the West Bank to punish the Palestinians for their fifteen applications. While there is no chance Israel will do that in the near future, Bennett has been pushing annexation since he rose to the top of his party and has vowed to intensify the public campaign in this direction. Given the ongoing rightward trend among Israeli citizens, this is a cause that could gain considerable momentum going forward.

Then, Netanyahu’s Foreign Minister, Avigdor Lieberman continued his efforts to position himself as the next Prime Minister by meeting with Kerry and publicly stating that Kerry didn’t blame Israel for the breakdown. Lieberman thus gave the impression of himself as a true diplomat, an image the radically right-wing and historically undiplomatic leader of the largely Russian Yisrael Beiteinu (Israel Our Home) party, has been trying to cultivate ever since he came back to his post after being suspended while under investigation for corruption charges. Lieberman still invites great skepticism among Israelis, but his image is definitely improving.

Bennett, having gotten wind of the attempt by Kerry to revive the talks, then publicly declared that he would pull HaBayit HaYehudi out of the government if the previously arranged deal, or anything similar, went through. Bennett is known for bombast, and the fact is that this stance of his is not supported by his own party. Even HaBayit HaYehudi Housing Minister Uri Ariel, who played a central role in derailing the talks by announcing new settlement construction just as Kerry was trying to put a crutch underneath the discussions, disagrees with Bennett.

Still, these challenges from his right flank are serious for Netanyahu in the long-term, although right now, his popularity is rising among Israelis. That is probably more dismaying than anything else. Israel has, at last, killed the Oslo process and Abbas’ apparent willingness to continue working with the United States to keep them going for no discernible purpose is not winning him any points among his own public.

In the end, the situation is merely a more concentrated form of the one which has held for most of the Oslo era. The United States insists on both managing the process and keeping it going. It calls on the Israelis and Palestinians to make “hard choices” and take “bold steps,” yet administration after administration is unwilling to make its own choices and take its own steps in the face of expected political backlash to bring about a deal. Israel keeps its own goal front and center; that being to make sure that it minimizes, or even eliminates, the possibility of any significant Israeli concession. And the Palestinian people wait for a leadership that will defend their interests and recognize that cooperation with the United States will never get them to their goals of independence and self-determination.

by Jim Lobe

I suppose this is something to be welcomed, but David B. Rivkin, Jr. and Lee Casey — who spent a good part of the George W. Bush administration offering legalistic defenses in the National Review and on the op-ed pages of the Wall Street Journal of the “global war [...]]]> via LobeLog

by Jim Lobe

I suppose this is something to be welcomed, but David B. Rivkin, Jr. and Lee Casey — who spent a good part of the George W. Bush administration offering legalistic defenses in the National Review and on the op-ed pages of the Wall Street Journal of the “global war on terrorism” in every single aspect, including, of course, the “anticipatory self-defense” by the US in invading Iraq, and who have long accused “the Left,” Palestinians, and other presumed enemies of the United States of waging “lawfare” against Washington’s freedom of action to do anything it likes around the world — yesterday published their latest politico-legal analysis in the Journal in strong support of waging lawfare against Russia’s annexation of Crimea. It’s entitled, “The Outlaw Vladimir Putin,” and among other things, it calls for Washington and its allies to challenge the legality of Russia’s actions “in every conceivable legal venue, whether domestic or international,” including the International Court of Justice (ICJ), the same body that ruled in favor of Nicaragua in the case of the CIA’s mining of its harbors back during the Contra War, and against Israel in the case brought by the Palestine Authority against the “Separation Wall.” The defendants in each case ignored the rulings, although President George H.W. Bush eventually quietly agreed to settle the Nicaragua case for $12 million. Rivkin and Casey worked in the Justice Department for both Ronald Reagan, who was responsible for the mining, and Bush I.

What’s remarkable about the op-ed, aside from their advocacy of lawfare (although they don’t use the term), is their seeming lack of self-consciousness about Washington’s own record over the last 30 years or so. For example,

Now Russia has demonstrated that military force in general, and nuclear weapons in particular, may well remain the only reliable means of protection against hostile actions by larger, more powerful states. … This development is certain to have profoundly destabilizing consequences worldwide.

Or:

Russia’s behavior, and its legal and institutional justifications are dangerously destabilizing the existing international system. What is the likely result? The use of force around the world will be encouraged, and the incentive to acquire nuclear weapons magnified.

Well, all of that is true. But what if we replaced “Russia” in that sentence with “the United States” in reference to its invasion of Iraq? Of course, Rivkin and Casey would argue, as they have in the past, that the Iraq war was entirely justifiable as a case of “anticipatory self-defense,” but frankly even if you accept their argument (which is awfully far-fetched given the lack of any serious, let alone imminent, threat posed by Baghdad in 2003), there’s no doubt that the invasion has had “profoundly destabilizing consequences,” particularly given the fact that Putin himself cited it as an important precedent and an example of Washington’s hypocrisy.

Similarly, the authors take offense at Moscow’s demands that, among other things, Ukraine make Russian the country’s second “official” language, ban certain nationalist political parties, and become neutral and non-allied. They insist that these demands “clearly violate the principle of nonintervention in internal affairs enshrined in the U.N. Charter and customary international law.” Now think of the innumerable times that Washington has demanded certain changes in the domestic and foreign relations of weaker countries as conditions for friendly relations and/or aid. Do Mssrs Rivkin and Casey consider, for example, US demands for the extradition of drug traffickers from Mexico or changes in Uganda’s draconian law against LGBT individuals or other countries to cut oil purchases from Iran to be violations of the principle of nonintervention? I’d be very surprised if they did.

They argue that Moscow should also be held accountable for its alleged violations of the Geneva Conventions and the laws of war which, of course, are precisely the international legal standards that Washington stands accused of abusing by national and international human rights groups in its conduct of wars in Afghanistan and Iraq, not to mention its use of drones to eliminate targets in Pakistan, Yemen, and elsewhere. Of course, their interpretations of these laws, when applied to US actions, tend to be quite liberal and forgiving despite the not inconsiderable number of innocent men, women, and children who have been killed by US forces in these conflicts. Moscow’s use of troops who have removed their Russian insignia, as well as the failure to promptly repatriate captured Ukrainian troops and equipment from Crimea, however, should be considered “major violations” of the laws of war and treated accordingly despite the fact that Moscow’s takeover of Crimea was conducted relatively peacefully and virtually with no bloodshed.

Now, I don’t mean to be justifying anything Russia has done and agree completely with the authors that the Russian action sets a terrible precedent. But, during their service in government, the United States, among other things, carried out covert wars against Afghanistan, Nicaragua, and Angola, invaded Grenada (on the totally phony pretext of protecting US medical students there), and Panama. During the last 12 years, they defended wars in Afghanistan and Iraq and virtually all of the abuses, including “enhanced interrogation techniques,” associated with those. As I said, there’s a certain lack of self-consciousness here, which is rather typical of neoconservatives.

But, by all means, we should take the Russians to the ICJ. That could be a very useful precedent.

Photo: President George W. Bush and former President George H. W. Bush greet Russian President Vladimir Putin at the Bush family house in Kennebunkport, Maine, in July 2007. Credit: AFP/Getty Images/Jim Watson

via Arms Control Law

Colonel Libman was responding to my post from last Thursday regarding Steve Walt’s recent FP piece. However, I wanted to give Col. Libman’s comment, and my response to it, their own post.  I’ll first copy Col. Libman’s comment as a block quote, and then give [...]]]> By Dan Joyner

via Arms Control Law

Colonel Libman was responding to my post from last Thursday regarding Steve Walt’s recent FP piece. However, I wanted to give Col. Libman’s comment, and my response to it, their own post.  I’ll first copy Col. Libman’s comment as a block quote, and then give my response to it below:

Dear Mr. Joyner. I thought this is a blog about LEGAL issues relevant to arms control. This post does not contribute anything to the legal analysis, and seems more like another chapter of the “save Iran” campaign you seem to engage in persistently on this platform.

The first chapter was titled “Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?” and, at least, had some fair legal arguments, although I had two comments on this discussion:
First, the whole discussion was planted in Jus Ad bellum, presuming that an attack on Iranian nuclear facilities will be the beginning of an armed conflict. This is overlooking the possibility that Iran and Israel are already in war. Just this morning Iran’s proxies in the Gaza strip launched Grad rockets to the Israeli city of Beer Sheva, causing a shutdown of all schools in the city (See this report: http://www.ynetnews.com/articles/0,7340,L-4297621,00.html). And this is not a singular incident. Earlier this month, Iran’s northern proxy, the Hezbollah, sent a drone infiltrating Israeli territory. I need only quote Lebanese ex PM, Mr. Siniora (not a great fan of Israel) that said: “Sending the drone over Israel is not a Lebanese decision, however the move was made at an Iranian behest. Such act needs techniques only available in Iran”. Mr. Siniora further expressed the concern that such an act implicates Lebanon in possible military operations and Israeli reactions.
(The Daily Star, Lebanon News: http://www.dailystar.com.lb/News/Local-News/2012/Oct-14/191353-siniora-hezbollah-drone-sent-over-israel-at-irans-behest.ashx#ixzz2Aa1suZtw )
It is interesting to note that Prof. Dinstein, in his book “War, Aggression and Self-Defence”, discusses the 1981 Israeli raid on a nuclear reactor under construction in Iraq. In his opinion, the attack is justifiable as a continuation of the state of war that had started as a result of the Iraqi invasion of Israel in 1948 and its subsequent pulling out without signing an armistice or a peace treaty. Of course, the situation between Israel and Iran is not identical, but perhaps a similar argument can be made.

Secondly, your comment in the discussion following this post that “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military strikes in Gaza and in the West Bank” has no base in the facts, at least when it comes to Israel. Israel never denied the applicability of Jus In Bello to its armed conflict with Palestinian armed groups, ongoing since 2000. Just check the official Israeli government position paper “The Operation in Gaza – factual and legal aspects”, part III (available at: http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/GazaOperationwLinks.pdf ). Indeed, Israel did deny the applicability of the IV Geneva Convention in the territories it occupied from Egypt and Jordan in 1967, but this had nothing to do with the rules on the conduct of hostilities.

The next chapter in this “save Iran” crusade was “The Myth of Surgical Strikes on Iran’s Nuclear Facilities”. I will presume, for the purpose of this discussion that the figures quoted of possible Iranian civilian casualties because of a strike are realistic, although they do not seem to come from impartial sources. However, one cannot draw such unequivocal conclusions about illegality of an attack in Jus in Bello just based on potential civilian casualties. The rule of proportionality is about the RELATION between civilian casualties and damage to civilian objects and the military advantage of the attack. Only when the civilian toll is excessive in relation to the military advantage, is the attack illegal. You have not considered the anticipated military advantage Israel or the US might see in such an attack. Maybe a hint can be found in the words of former Iranian president Hashemi Rafsanjani . In a speech in 14 December 2001, he warned that if Muslims possessed nuclear weapons, “the attitude of global arrogance would have to change”. He added that “the use of even one nuclear bomb in Israel will destroy everything, whereas [a nuclear explosion] would only harm the Islamic world” (available at: http://www.cer.org.uk/sites/default/files/publications/attachments/pdf/2011/wp513_eng_iran-1512.pdf ). And this is considered to be an Iranian “pragmatist” and “moderate” leader.
Just to clarify, I do not necessary think that a military strike on Iran’s military nuclear program, either by the US or by Israel is a good idea. In any case, it can only be a last resort. However, if your legal position is that Israel cannot act before an Iranian nuclear warhead is about to be launched against it in the name of holy Jihad, I suggest you check again your fundamental understanding of law. As the former president of the Israeli supreme court, Aharon Barak, once said : “A Constitution is not a prescription for national suicide” (“The Judge in a Democracy”, 2006, Princeton University press, p. 291). I think it is true for law in general and for international law, too.

Dear Colonel Libman, I cannot help noting the profound irony of the chief international lawyer for Israel’s military – someone who is paid to convince the world that whatever Israel does is legal – accusing me of political bias in my legal analysis.

I certainly won’t apologize for bringing attention to Steve Walt’s article. Unlike you, I don’t see it as a part of a “save Iran” campaign, but as a part of a “let’s think about this rationally and not go to war” campaign. I recommend its reading, and its thinking, to you.

With regard to your legal arguments, I note that you use the non-technical term “state of war” when making your jus ad bellum arguments. I suspect this is because you know that trying to claim that there is an actual armed conflict – the only relevant legal term – in existence between Israel and Iran, would be unpersuasive according to the jus in bello and the relevant facts. There is no armed conflict in existence currently between Israel and Iran, and to claim that there is is just grasping at straws in an unpersuasive attempt to do your job – convince us that whatever Israel does is lawful.  Lawyers for the USG, particularly during the bad old Bush years, have similarly tried to argue that the US is in some kind of eternal state of war with a method of violence – terrorism – and with anyone (names to be continually added) that the USG thinks employs that method of violence against the US or its allies. That argument of a continuing legal war on terrorism, which is of course intended to legally justify anything the USG wants to do anywhere in the world that has any connection to terrorism, no matter how strained the connection – has been similarly unpersuasive to international legal scholars.

When I made the statement that you quote about Israel denying the applicability of the jus in bello to strikes in the West Bank and Gaza, I was indeed referring to Israel’s repeated erroneous denial that Geneva Convention IV applies to the West Bank and Gaza, and its continued argument that these are not occupied territories under the jus in bello. I understand the distinction you are making with regard to conduct of hostilities, and I concede that to be more correct I should have replaced the word “strikes” in that sentence with “occupation,” so that the sentence would have read “We all know the lengths to which the U.S. and Israel have gone to argue that the Jus in Bello hasn’t applied in significant ways to, e.g., the war in Afghanistan; prisoners at Guantanamo Bay; predator drone strikes in Pakistan; military occupation in Gaza and in the West Bank.” The overall point I was making in that sentence, in context, which was clarified by the hypothetical I spelled out in the next paragraph, is that, like the US, Israel has gone to great lengths whenever possible to try to limit its exposure to the law of the Geneva Conventions, and might be expected to do so again in the context of a strike against Iran. Israel’s repeated denials of the applicability of GC IV to the West Bank and Gaza, and denial that Israel has the legal duties of an occupying power – arguments that have been thoroughly discredited by the International Court of Justice and the vast majority of academic commentators – are certainly proof of these efforts.

Now with regard to your comments about the anticipated military advantage of attacking Iranian nuclear facilities, and the potential for this military advantage to outweigh, under proportionality analysis, the very significant civilian casualties that would be caused by the release of dangerous forces from these attacks, which as I and Marco noted in the post and comments, is the subject of both treaty and customary international law establishing an exceptionally high standard of care for the attacking force.

The question of military necessity is of course a complicated one, as is the question of actually applying the proportionality test as between military necessity and civilian protection. I tell my students that it’s kind of like comparing apples and anvils. As it happens, we are very honored here at Alabama right now to have President Aharon Barak visiting with us and teaching a short course. And I had the privilege today of having lunch with him. I mentioned our exchange to him, and we talked about questions surrounding this issue, including whether military necessity in IHL is essentially a subjective determination on the part of military officials, or alternatively whether it is essentially an objective determination that can be reviewed by courts of law and in other legal fora.  And even if it is an essentially objective determination, to what extent should the law defer to military officials’ determination of military necessity?  I found the conversation very enlightening. His view was that military necessity is essentially an objective determination that can be reviewed by courts and judges, and he said that as a judge he didn’t give any deference to military assessments of military necessity over others’ assessments of military necessity. And he said further – and I found this point particularly analytically helpful – that governments bear the burden of proof of military necessity. I think this principle has very useful application to IHL situations, and places the burden for establishing military necessity on the shoulders of the attacking military.

There is of course a long history of disconnect between Israeli military and civilian officials on the one hand, and the broader international legal community on the other, on questions of international humanitarian law, including the question of military necessity and proportionality balancing.

We have seen this disconnect play out so many times in the judgments of the International Court of Justice; in the assessments of investigating groups sanctioned by international organizations including the United Nations; and in the assessments of respected non-governmental organizations.  Israel will claim that military actions in the West Bank, Gaza, or Lebanon are justified by military necessity; but international jurists and other international investigators will subsequently assess these claims to be legally incorrect, in light of countervailing legal considerations of human rights, as protected by international humanitarian law, and embedded in the IHL principles of proportionality and discrimination. Examples of such occasions include the ICJ Wall Advisory Opinion, the Goldstone Report, the van Kappen Report on Qana, and Amnesty International’s reports on the Gaza Blockade and on the 2006 Lebanon campaign.

So often in these cases, Israeli officials’ subjective assessment of military necessity and its proportional relation to anticipated civilian casualties, simply doesn’t convince international jurists and investigators from other countries, who feel they are able to look at the facts and the law in a more objective light, and apply the law objectively to produce a correct result.

Now, who is “right” in the context of these disagreements between Israeli officials and the international community is a complicated question, and one that I have thought a lot about. I was going to say something on this subject here, but I think I’ll have to save it for another day.  I’ll rather limit myself here to saying that I see this same phenomenon happening now in the case of threatened Israeli attacks on Iran’s nuclear facilities.

From a military advantage perspective, attacking Iran’s nuclear facilities – including conversion, enrichment and fuel fabrication facilities – appears to most in the international legal community to offer no appreciable military advantage in itself. There is simply no real evidence that Iran is using these facilities for military purposes. This has been established over and over again by Western intelligence agencies. The idea that Iran might, at some indeterminate time in the future, take the decision to use these facilities as part of a military nuclear program, appears to be a suspicion in the minds of Israeli officials that has no real basis or support in the observed behavior of Iran (not just in the incendiary words of some of its leaders), or in any actual evidence regarding Iran’s nuclear program. With the burden of proof resting upon its shoulders for demonstrating military necessity, these facts will make satisfying this burden impossible for Israeli officials. I know very well that you will disagree with the assessment I have just made. But that is precisely my point. There is a longstanding, and continuing disconnect at work.

And even if one does look ahead to some possible military use of these nuclear facilities in the future to find a military necessity for attacking them now, it is well understood that destroying Iran’s known nuclear facilities now would only set Iran’s nuclear program, whatever its character, back a few years – it would not permanently destroy Iran’s program. And in terms of other factors that should also be influentially weighed in calculating military advantage, there is also an increasing awareness that an attack on Iran’s nuclear facilities would actually likely work as a catalyst to Iran’s development and manufacture of a nuclear weapon, and to its withdrawal from the NPT.

All of these factors, taken together, appear to most in international legal community to produce no military advantage from an attack on Iran’s nuclear facilities. Indeed quite the opposite. I think this is how the international legal community overwhelmingly views the prospect of such an attack, and how international jurists and investigators would assess the military advantage factor in a proportionality analysis under international humanitarian law.  You can see, then, how this assessment of military necessity wouldn’t even come close to the IHL standard necessary to legally justify such an attack on targets that would release dangerous forces, likely resulting in thousands of civilian deaths.  Thus, I am quite confident that the ICJ and other international jurists and investigators would concur with my and Marco’s view that such attacks would be unlawful.

Again, I know that this is not how you would view and assess the military advantage of such an attack, as you’ve said. And therein lies the disconnect that is my overall point here. And again, I’m sure we could go back and forth for hours about who, as between Israeli officials and international lawyers outside of Israel, is right in their assessments of the relevant criteria, and their proportionality with each other.

But I do think it is important to emphasize that the determinations and legal analysis under IHL must remain objectively applied by the international legal community.  If not, and if every attacking state is to be given deference in their subjective determinations of military necessity and the proportionality and discrimination tests, IHL would be rendered completely moot and incapable of fulfilling its primary purpose, which is to restrain the methods, means, and choice of targets of militaries during armed conflict, in order to impose a modicum of civility on this most uncivilized of human activities.