by Mitchell Plitnick

US President Barack Obama’s decision to use force in response to Syria’s use of chemical weapons but to seek Congressional approval before doing so was very surprising. It is a major reversal of the behavior of every president since the 1973 War Powers Resolution was enacted. That Resolution, [...]]]> via LobeLog

by Mitchell Plitnick

US President Barack Obama’s decision to use force in response to Syria’s use of chemical weapons but to seek Congressional approval before doing so was very surprising. It is a major reversal of the behavior of every president since the 1973 War Powers Resolution was enacted. That Resolution, which set limits on the President’s ability to embroil the United States in a lengthy military action in the wake of two extended but undeclared wars in Korea and Vietnam, has been a point of contention for presidents ever since, with all of them without exception calling the resolution unconstitutional.

The constitutionality of the resolution has never been tested in court, like whenever it has been violated (as Ronald Reagan did in Lebanon and Bill Clinton did in the Balkans). Congress has merely voiced its disapproval, but taken no further action. Neither side can be sure of how the Supreme Court would decide the question. But every Chief Executive from Nixon to Obama have claimed that it violates the separation of powers by impinging on the president’s purview as Commander in Chief. Others claim, with some justification, that it actually codifies presidential impingement on Congress’ exclusive authority to declare war.

Obama surely knows that the War Powers Resolution would not have even come into play in his proposed action. The resolution does not stop the president from taking a limited action that would last, at most a few days, although the constitutional question is considerably more complicated. But the tug of war between the legislative and executive branches that it represents is an ongoing one, with Congress always pushing for more involvement in foreign policy and the president jealously guarding his prerogatives. It is absolutely unprecedented for a president to give any ground on this without a fight.

That, however, is what Obama has done. He knows well that the US public does not want to see us involved in another Middle East war; that, as despised as Bashar al-Assad is, the Syrian rebel forces are no longer identified with the Syrian people Assad is hurting in the minds of many Americans, and that some of the most radical elements among them scare Americans more than Assad does; that Russia will veto any action against its Syrian ally at the UN Security Council; and that, especially after the vote in Britain’s House of Commons against action, the president has few allies abroad to offer international legitimacy to American actions.

Given that he surely knows Congress has no legal right to vote on this question, Obama’s decision is a purely political one. He is quite likely unhappy that his foolish declaration of a red line at chemical weapons has put him in this position, and he is being attacked from all sides, either for not acting right away or for bringing the US closer to a new intervention in Middle Eastern conflicts. He knows that his credibility in the region is now at stake and that allies like Saudi Arabia and Israel, as well as adversaries like Iran, will lose even more faith in him if he fails to act. So he is sharing that burden with Congress.

I suspect that, given that the red line has been drawn and most members of Congress will not want the US to look weak and indecisive — however much the Republicans might enjoy Obama looking that way — Congress will vote to support a strike. There will also very likely be a lobbying push in support of Congressional support for Obama. Saudi Arabia opposes Assad, so it would certainly want to see an attack. Israel is much less interested in seeing Assad ousted because a new Syrian government is unlikely to keep the Syrian-Israeli border as quiet as the Assad dynasty has for four decades now. But, despite his being the devil Israelis know, the Israelis don’t have any stake in seeing Assad emerge triumphant at this point, since that would represent a major victory for Iran and, especially, Hezbollah, and there is no way of knowing how Assad would deal with Israel after a victory. Still, while Israel has no great stake in the victor of this conflict, it very much wants to see the chemical and biological weapons Assad has destroyed. Israel does not want those weapons in Syria at all, whoever might have them. So, AIPAC will spur into action, although they may do so quietly, not wanting to be perceived as pushing the US into a war for Israel.

If Obama is wise, he will use the time he now has to try to, at best, find some common ground with Russia where they can come together on a diplomatic plan or, at least, shore up more international support for his “limited attack” on Syria. What seems unlikely, unless Congress does vote against the attack, is any other way to avoid a strike on Syria. Obama has committed the US with his red line declaration, and now, if he doesn’t act, not only does it damage his credibility; it will also tempt the Assad regime to do it again.

No doubt, Iran will be a major part of the debate. A major argument for striking Syria — and it is likely to be very persuasive on the Hill — will be that if we don’t, it will destroy our credibility with respect to “all options” being on the table in preventing Iran from a nuclear weapon. The more productive place for Iran to occupy in this discussion is much more of a long shot. That is, that Iran, if brought into the diplomatic process as a partner, can help find an actual resolution that stops, or at least curtails the massive violence in Syria. Such an engagement with Iran could also help solve the ongoing nuclear conflict and give Washington time to test the intentions of the new Iranian president, Hassan Rouhani. That course seems to have been hinted at by Obama in recent statements, and some excellent analysts, including Jim Lobe and Barbara Slavin believe he may be trying to open the door to including Iran in the process. I would applaud loudly if this turns out to be the case, but it still seems far too risky a political move to me.

In the end, I think Congress will approve the resolution. Having gotten an unprecedented gift from Obama in the form of a president asking for congressional authorization when he doesn’t have to, lawmakers will want to encourage such behavior in the future. Combined with the credibility question and Saudi and Israeli lobbying, that should bring a sufficient number of votes into his column. I suspect Obama must have done some informal gauging of Congressional opinion on this question in the days before he made this announcement.

It is unclear what Obama will do if the vote goes against him. It would seem unlikely that he would defy such a vote, but he might if the House and Senate split on it. That’s a possibility, as the House GOP is more virulently anti-Obama and isolationist in orientation.

But if Obama gets his stamp of approval, then the lasting legacy of this episode will be his decision to ask Congress at all. There’s a real double-edged sword here. On the one hand, it is obviously a more democratic way of operating. On the other hand, a major reason for keeping foreign policy in the hands of the executive is that Congress is much more subject to political pressure and lobbying. Increasing Congress’ role in foreign policy means increasing that role for lobbying groups, and not only AIPAC. It lessens the role of strategic thinking in the process, a role which is already far too small. As with many other aspects of life in the United States, it will only work well if people get involved on a much larger scale than they are now.

by Robert E. Hunter

Now, after careful deliberation, I have decided that the United States should take military action against Syrian regime targets. This would not be an open-ended intervention. We would not put boots on the ground. Instead, our action would be designed to be limited in duration and scope.

I’ve [...]]]> via LobeLog

by Robert E. Hunter

Now, after careful deliberation, I have decided that the United States should take military action against Syrian regime targets. This would not be an open-ended intervention. We would not put boots on the ground. Instead, our action would be designed to be limited in duration and scope.

I’ve made a second decision: I will seek authorization for the use of force from the American people’s representatives in Congress….this morning, I spoke with all four congressional leaders, and they’ve agreed to schedule a debate and then a vote as soon as Congress comes back into session.

–President Barack Obama, August 31, 2013

President Barack Obama’s announcement this weekend that he has “decided that the United States should take military action against Syrian regime targets” is remarkable for many reasons, in particular because he coupled it with a commitment to “seek authorization for the use of force from…Congress.”

The first remarkable element is that he has already taken the decision to strike before fully engaging Congress, instead of the usual practice of reserving judgment on possible military action until that process is complete. This immediately begs the question “What if Congress balks?” Does the president go ahead anyway? And if Congress turns him down — after all, he is not “consulting” but “seek[ing] authorization” — does that affect his (and America’s) credibility, as the author of the “red line” against the use of chemical weapons by the Syrian government? Proponents of a military strike are already making that point, although, in this writer’ judgment, it is grossly overdrawn, and no one who wishes us ill should put much weight on this proposition.

The best counterargument is that, at a time when the UN and others are still assembling evidence on the use of chemical weapons (undeniable) and “who did it” (probably the Syrian government), waiting awhile is not a bad thing. Obama covered the point about risk of delay by citing the Chairman of the Joint Chiefs of Staff “…that our capacity to execute this mission is not time-sensitive; it will be effective tomorrow, or next week, or one month from now.” Taking the  time “to be sure” is thus useful; as is the value in trying to build support in Congress, especially given the clarity of memory about the process leading up to the US-led invasion of Iraq a decade ago, when the intelligence “books” were “cooked” by Bush administration officials, as well as by the British government.

The second remarkable element is that the president did not ask Congress to reconvene in Washington in the next day or two, but is content to wait until members return on September 9^th. This provides time for the administration to build its case on Capitol Hill, supporting a decision the president says he has already taken; but it also risks diminishing the perceived sense of importance that his team, notably Secretary of State John Kerry, here and here, has been building about the enormity of what has been done.

A related factor is that the United States will not be responding to a direct assault on the United States or its people abroad, civilian or military, and the case for America’s taking the lead is less about our interests than what, at other times, has been called America’s role as the “indispensable nation.” As has been made clear by all and sundry, if the US does not act, no one else will shoulder the responsibility. But this lack of a direct threat to the nation heightens the president’s need to make his case that the US must take the lead.

The need to make the case to Congress was hammered home by the British parliament’s rejection of a UK role in any attack on Syria, despite the lead taken by Prime Minister David Cameron and Foreign and Commonwealth Secretary William Hague in pressing for military action — and thus helping to “box in” the US president. No doubt, what Parliament did influenced Obama’s decision to get the US Congress firmly on record in supporting his decision to act.

A third remarkable element, though not surprising, is that the administration has apparently given up on the United Nations. To be sure, Russia and China would veto in the Security Council any resolution calling for force; but it would have been common practice — and may yet be done — for the US to apply to the recognized court of world opinion by at least trying, loud and long, to establish an international legal basis for military action, even it fails to achieve UN agreement. There is precedent for this approach, notably over Kosovo in 1998, where the UN failed to act (threat of vetoes), but the US at least made a “college try” and demonstrated the point it sought to make. This made it easier for individual NATO allies to adopt the fudge that each member state could decide for itself the legal basis on which it was prepared to act.

But the most remarkable element of the President’s statement is the likely precedent he is setting in terms of engaging Congress in decisions about the use of force, not just through “consultations,” but in formal authorization. This gets into complex constitutional and legal territory, and will lead many in Congress (and elsewhere) to expect Obama — and his successors — to show such deference to Congress in the future, as, indeed, many members of Congress regularly demand.

But seeking authorization for the use of force from Congress as opposed to conducting consultations has long since become the exception rather than the rule. The last formal congressional declarations of war, called for by Article One of the Constitution, were against Bulgaria, Romania, and Hungary on June 4, 1942. Since then, even when Congress has been engaged, it has either been through non-binding resolutions or under the provisions of the War Powers Resolution of November 1973. That congressional effort to regain some lost ground in decisions to send US forces into harm’s way was largely a response to administration actions in the Vietnam War, especially the Tonkin Gulf Resolution of August 1964, which was actually prepared in draft before the triggering incident. The War Powers Resolution does not prevent a president from using force on his own authority, but only imposes post facto requirements for gaining congressional approval or ending US military action. In the current circumstances, military strikes of a few days’ duration, those provisions would almost certainly not come into play.

There were two basic reasons for abandoning the constitutional provision of a formal declaration of war. One was that such a declaration, once turned on, would be hard to turn off, and could lead to a demand for unconditional surrender (as with Germany and Japan in World War II), even when that would not be in the nation’s interests — notably in the Korean War. The more compelling reason for ignoring this requirement was the felt need, during the Cold War, for the president to be able to respond almost instantly to a nuclear attack on the United States or on very short order to a conventional military attack on US and allied forces in Europe.

With the Cold War now on “the ash heap of history,” this second argument should long since have fallen by the wayside, but it has not.  Presidents are generally considered to have the power to commit US military forces, subject to the provisions of the War Powers Resolution, which have never been properly tested. But why? Even with the 9/11 attacks on the US homeland, the US did not respond immediately, but took time to build the necessary force and plans to overthrow the Taliban regime in Afghanistan (and, anyway, if President George W. Bush had asked on 9/12 for a declaration of war, he no doubt would have received it from Congress, very likely unanimously).

As times goes by, therefore, what President Obama said on August 29, 2013 could well be remembered less for what it will mean regarding the use of chemical weapons in Syria and more for what it implies for the reestablishment of a process of full deliberation and fully-shared responsibilities with the Congress for decisions of war-peace, as was the historic practice until 1950. This proposition will be much debated, as it should be; but if the president’s declaration does become precedent (as, in this author’s judgment, it should be, except in exceptional circumstances where a prompt military response is indeed in the national interest), he will have done an important and lasting service to the nation, including a potentially significant step in reducing the excessive militarization of US foreign policy.

There would be one added benefit: members of Congress, most of whom know little about the outside world and have not for decades had to take seriously their constitutional responsibilities for declaring war, would be required to become better-informed participants in some of the most consequential decisions the nation has to take, which, not incidentally, also involve risks to the lives of America’s fighting men and women.

Photo Credit: Truthout.org

by Wayne White

The Bush administration’s deception and irresponsible military action involving Iraq had a wide-ranging adverse impact on populations in countries critical to the enforcement of international standards regarding war crimes. Yesterday’s vote by the British parliament to oppose UK participation in military action against Syria illustrates just how deep that [...]]]> via LobeLog

by Wayne White

The Bush administration’s deception and irresponsible military action involving Iraq had a wide-ranging adverse impact on populations in countries critical to the enforcement of international standards regarding war crimes. Yesterday’s vote by the British parliament to oppose UK participation in military action against Syria illustrates just how deep that mistrust and anxiety still runs today.  Yet, as British Prime Minister David Cameron has said, failure to act could give the Syrian regime a virtual “green light” to take even more brutal measures against the opposition and Syrian civilians. Nonetheless, the vote should warn the Obama Administration to slow down (and perhaps scale back) its plans for punitive military action considerably in order to address the serious concerns that surround it.

Five days after the August 21 attack, we have just learned, a regime attack was launched against an urban area in the vicinity of Aleppo using incendiary munitions that terribly burned scores of schoolchildren. This additional outrage took place even before Bashar al-Asad and his unconditional allies in Moscow and Tehran were buoyed by the news from London. Though not banned, the use of horrific flammable munitions against an urban area could offer yet another a foretaste of what is to come in the absence of a firm international response.

Official and public disquiet over the planned strike emanating from the UK, Germany, global media, and the US typically features concerns associated with the distortions of intelligence and military overreach of the Bush Administration ten years ago. Although wariness toward potentially deceitful government behavior is a healthy counterbalance overall, such concerns can be taken to extremes.

In the wake of the Bush Administration’s appalling abuses and their weighty negative consequences, a global mindset has developed in which practically all pronouncements out of Washington are subject not only to great scrutiny, but almost knee-jerk skepticism — even when pitted against assertions on the part of notoriously abusive and deceitful authoritarian governments like Syria’s that face virtually no domestic accountability whatsoever.

Consequently, there have been wide-ranging demands for a UN Security Council (UNSC) mandate despite its futility in the face of a certain Russian veto because Moscow fully supports the Syrian regime in its war of internal repression and is incapable of viewing the facts of this case impartially.  Similar Russian tolerance of atrocious war crimes in Bosnia on the part of another of Moscow’s allies in the 1990’s compelled a NATO coalition to act in lieu of the UNSC.  But that was prior to the 2002-2003 episode of US (and UK) intelligence deception in support of a vastly more extensive military intervention.

Still, the Obama Administration must deal with the situation as it is.  Barreling ahead with a “compressed” timeline for punitive strikes despite extensive pushback resembles in the eyes of many just the sort of brash behavior exhibited by the Bush Administration.  And this is precisely what President Obama (and French President Francois Hollande) should avoid under the circumstances.

Personally, I believe some observers are exaggerating the potential fallout from limited military action in this case.  In fact, much of the bluster from Damascus and Tehran probably consists mainly of scare tactics meant to play to nervous Western constituencies. However, to head off any regrettable consequences, allied punitive action against Syria must narrowly focus on the issue at hand—and not be expanded to include strikes meant to weaken the regime and play out over two to three days.

Critical to salvaging the situation and calming many of those now hesitant, the White House must patiently await the results of the UN inspection team.  UN Secretary General Ban Ki-moon has said the findings should be made available to the UN Security Council on Sunday.

Sunday is only two days away. The Syrian military is tied down holding various vital positions lest the rebels move in and seize them, so it cannot simply go away and hide in preparation for punitive strikes strikes — even if proper consultations require another week. And if the UN inspection results confirm the use of nerve agent against the affected Damascus suburbs, that information could reinvigorate the Western allies to act more as Washington hopes (even if, as expected, the Russians once again block UNSC consensus to serve their own craven interests in Syria).

by Peter Jenkins

For the last week the British government has given every sign of being in a dreadful muddle over how to react to the suspicion that chemical weapons (CW) were used in the suburbs of Damascus early on 21 August.

Two words that ought to have featured prominently in ministerial [...]]]> via LobeLog

by Peter Jenkins

For the last week the British government has given every sign of being in a dreadful muddle over how to react to the suspicion that chemical weapons (CW) were used in the suburbs of Damascus early on 21 August.

Two words that ought to have featured prominently in ministerial statements, “due process”, were entirely absent. Instead, Messrs William Hague and James Cameron spoke at times as though the UK and its Western allies were fully entitled to act as judge, jury and executioner.

I hope I won’t offend US readers if I say that Europeans half expect that sort of mentality from US leaders. We look on the US as a country in which habits formed in the Wild West in the nineteenth century resurface from time to time. But from our own European politicians, schooled by centuries of intra-European conflict, we look for more measured and cautious responses.

Reinforcing the impression of indifference to international legality, British ministers seemed hopelessly confused about how the precipitate use of force that they were advocating could be justified, and about what it was supposed to achieve.

At one moment President Bashar al-Assad had to be “punished”; at another the West had to “retaliate” for his use of CW (although so far Western nationals are not reported to be among the victims).

Some statements suggested that the West should act to uphold an international norm against the use of CW, others that the West had to act in order to protect Syria’s population from further CW attacks (although none of the military measures reportedly under consideration can come close to delivering “protection”).

Mercifully, as of 29 August, it looks as though Messrs Hague and Cameron are at last starting to come to their senses, sobered perhaps by parliamentary resistance to signing a blank cheque for a resort to force and by opinion polls suggesting that the British public is opposed to force by a margin of more than two to one.

To those of us who are familiar with the Chemical Weapons Convention (CWC) this pantomime has been puzzling.

Syria is one of (only) seven states that have not ratified the CWC. The rational way to proceed, however, is to treat Syria, mutatis mutandis, as though it were a CWC party, since the norm enshrined in the CWC dates back to 1925 and is, effectively, a global norm, a norm that no state can reasonably reject (unlike the so-called “right to protect”, propagated by Mr. Blair and others, which is far from being universally accepted).

The relevant provisions of the CWC can be summarised as follows:

- CWC parties are entitled to request “challenge inspections” to clarify possible instances of non-compliance with the Convention’s prohibitions, and to have this inspection conducted “without delay”;

- The inspection team will produce a report which contains factual findings as well as an assessment of the cooperation extended by the inspected party;

- The inspected party has a right to comment on that report and to have its comments submitted to other parties;

- The parties shall then meet to decide whether non-compliance has occurred, and whether further action may be necessary “to redress the situation and to ensure compliance”.

Note the emphasis on giving the inspected party a right to comment before parties come to conclusions about what the inspection report implies. This could be especially important in the Syrian case if, as leaked signal intelligence implies, a Syrian army unit used CW last week against the wishes of the Syrian Ministry of Defence.

Note, too, the emphasis on redressing the situation. What matters in Syria now, if the UN inspectors report that government CW were used last week, is that the government take steps to ensure that this never happens again. Ideally, the UN Security Council (acting, so to speak, on behalf of CWC parties in this instance) can persuade the Syrian government to adhere to the CWC and destroy its CW stocks under international supervision. There will be no resistance to that outcome from Russia, Iran or China, all fervent supporters of the CWC.

Note, finally, the absence of any reference in the CWC to the “punishing” of non-compliance. That is consistent with a view that it is inappropriate for sovereign states to treat one another like common criminals (a view to which the West eagerly subscribes when the non-compliant state is Israel). Of course, if the Syrian government wishes to punish the commander(s) of any unit(s) found to have been responsible for last week’s outrage, this is another matter.

By giving priority to “due process” and “redressing the situation” Western leaders have an opportunity to set a good precedent for the handling of future challenges to global norms.

Russia is not staying silent as the US appears to be positioning itself for an attack on the Bashar al-Assad regime in Syria. Defending its last key ally in the region, Russian Foreign Minister Sergei Lavrov warned the West against intervention. Western nations [...]]]> via LobeLog

by Mitchell Plitnick

Russia is not staying silent as the US appears to be positioning itself for an attack on the Bashar al-Assad regime in Syria. Defending its last key ally in the region, Russian Foreign Minister Sergei Lavrov warned the West against intervention. Western nations should avoid repeating “past mistakes,” said Lavrov.

More importantly, Lavrov illustrates just how broken and vaporous the system of “international law” is when it comes to conflict and protecting civilians. “The use of force without the approval of the United Nations Security Council (UNSC) is a very grave violation of international law,” he said. And there is no question that he is correct.

An intervention in Syria requires the approval of the Security Council in order to be comply with international law. Such authorizations are, quite naturally, exceedingly rare. Not only does it require a majority vote in the Council, but, more importantly, all five permanent members of the Council (the US, Russia, China, Great Britain and France) must also agree. Any one of those countries can exercise its right to veto any resolution before the Council.

The idea, in 1945, made some sense. In the post-World War II era, there was still some question as to whether the US and USSR would perhaps build on their wartime alliance and find a way to work together, but it seemed unlikely. An incentive to maintain some sense of order in the world by working together on such matters and being able to block one-sided moves might have seemed sensible. It’s even worked out that way from time to time. But for the most part, it’s been a recipe for paralysis and a means to prevent action on matters of global concern, rather than to promote it.

The most obvious example of this is the matter on which there has been, by far, more Security Council vetoes than any other: Israel’s occupation of territories captured in the 1967 war. From 1946-1971, the USSR was the overwhelming leader in Security Council vetoes; no other country was even close. These were, of course, mostly Cold War-related resolutions that directly or indirectly took aim at Soviet actions and policies in various parts of the world. Since then, the overwhelming leader has been the United States, with the clear majority of those vetoes being made on behalf of Israel, protecting its occupation and concomitant violence and settlement expansion.

Indeed, in recent years, the problem has gotten so bad that most resolutions regarding Israel-Palestine have been withdrawn in advance, knowing the US will veto as a matter of course. The matter reached its ultimate absurdity in 2011, when the Obama administration vetoed a UNSC resolution that stated nothing at all that was not already official US policy. But the veto was expected and required. The fact that it was such a moderate resolution raised fears among AIPAC and its various fellow travellers in the Israel lobby, and there was a lot of public pressure on Obama to veto. But there’s no reason to think he wouldn’t have done so anyway.

Politics and power, not international law, govern international matters. The fact is that legality will have no bearing on the US decision to attack Syria or refrain from taking action. The decision will be based on strategy and politics.

The system of international law is irreparably broken. Ultimately, any system of law depends entirely on the ability of the judicial body to enact penalties and sanctions on lawbreakers. Such penalties don’t exist for the United States, nor for Russia or China or the other members of the Security Council. Britain and France are more compliant with international law than the others, but this is due not to fear of censure but because their own situations (including widespread European support for abiding by international law, as well as the experience of the two World Wars and the end of colonialism, the latter having removed a lot of European disincentives toward international law) push them in that direction.

Indeed, it is worth asking this question: if one believes that intervention in Syria is needed to stop what is already a humanitarian disaster from getting much worse, should international law be ignored in doing so? It seems inescapable that the answer to that question is yes, and one is then left with only the question of whether military intervention will help or hurt the millions of Syrians in the crossfire.

But at what point can we claim with reasonable certainty that the moral imperative trumps the law? Particularly in a hypothetical world where the law actually matters, where should that line be drawn? In point of fact, few people are so naïve as to believe that military intervention ever occurs for purely humanitarian reasons. It is generally done in order to pursue the invading country’s interests, and if some humanitarian good is done on the way, well that is just fine. And most of the time, the humanitarian interests are only a cover for other goals; the situation is often oversimplified so the public will support the intervention, which is sometimes vastly distorted.

In this instance, it is Russia warning the United States against violating international law, but the US has played the same game on many occasions — the 2003 push for a UN imprimatur for the invasion of Iraq being perhaps the most prominent and revolting instance.

The alternative to a world governed by international law is a world where might makes right. That is, indeed, the world in which we live. The point here is not that international law should be done away with. On the contrary, it must be strengthened exponentially. A legal system that can enjoy at least some insulation from the whims of politics, both domestic and international, is crucial, and the International Criminal Court and International Court of Justice have at least some of that. But more importantly, there must be a mechanism where even the most powerful country can be held accountable for violating the law.

Such a system will never be perfect, of course. Even in the realm of domestic law, we regularly see differences in how it is applied and defied by the rich and the poor. But even the wealthiest individuals have to at least consider their actions when breaking the law. Some system where powerful actors are treated the same as everyone else must be put into place. The answer to how that can be achieved is for better minds than mine, but asking the question is the first step.

Other aspects need revision or at least revisiting as well. Sovereignty is a crucial principle, without a doubt, but it is also used by tyrants to shield themselves from, for example, reprisals under international human rights law. The debate over intervening in Syria following alleged chemical weapons use by the Syrian government is inherently related to the current system of international law, which is broken far beyond the point of having any effectiveness. In many ways, it is an obstacle. It needs to be rebuilt, before more Syrias confront us.

by Peter Jenkins

In defence of his 2003-05 record, Iran’s president-elect Hassan Rouhani writes, “While we were talking with the Europeans in Tehran, we were installing equipment in parts of the facility in Isfahan. In fact, by creating a calm environment, we were able to complete the work in Isfahan.”

Some claim [...]]]> via LobeLog

by Peter Jenkins

In defence of his 2003-05 record, Iran’s president-elect Hassan Rouhani writes, “While we were talking with the Europeans in Tehran, we were installing equipment in parts of the facility in Isfahan. In fact, by creating a calm environment, we were able to complete the work in Isfahan.”

Some claim this as evidence that Rouhani duped and tricked his European counterparts in the negotiations that took place in Tehran in October 2003.

That interpretation is wrong. I will explain why.

The agreement that British Foreign Secretary Jack Straw and his French and German counterparts (the E3) reached with Rouhani on 21 October 2003 specified that Iran would suspend “all uranium enrichment and reprocessing activities as defined by the IAEA [International Atomic Energy Agency]”.

The E3 hoped that Mohamed ElBaradei, Director General of the IAEA, would produce a definition of enrichment that would stop work at the Uranium Conversion Facility (UCF) at Isfahan, which was due to start converting uranium ore (yellowcake) into uranium hexafluoride, the feed material for centrifuge enrichment, in the course of 2004.

Instead, ElBaradei defined enrichment as the operation and/or testing of centrifuges; the installation of centrifuges; the introduction or use of material in any facility capable of isotopic separation; and the construction, testing or operation of any isotopic separation facility.

In doing so, ElBaradei opened the way for Iran to complete, hot test and start up production at the UCF without breaching the Tehran agreement with the E3. Iran also continued to manufacture, assemble and test centrifuge machines — while honouring its commitment to suspend the activities specified by ElBaradei…

As soon as the E3 could, they set about trying to renegotiate the Tehran agreement to close these loop-holes; but it was only in November 2004, in Paris, that they finally got Iranian agreement to extend the suspension to “all enrichment related activities, and specifically the manufacture and import of gas centrifuges and their components; the assembly, installation, testing or operation of gas centrifuges; and all tests or production of any uranium conversion installation”.

It follows that Rouhani is entitled to claim that the agreement he negotiated in October 2003 allowed Iran to complete and start up the UCF. This achievement, however, stemmed from ElBaradei’s judgement that a narrow definition of enrichment would be more accurate than a broad definition. The achievement was not the result of trickery or deceit.

Let me also deal with the breakdown of the Tehran and Paris agreements in the course of 2005.

Trickery and deceit played no part in that breakdown. The essential cause of the breakdown was the E3’s rejection of an Iranian proposal, in March 2005, that Iran resume enrichment to a limited extent and under rigorous IAEA monitoring. The rejection led Ayatollah Ali Khamenei to think that the E3 sought an indefinite suspension of enrichment, which he had never intended to concede (as the E3 knew full well). The proximate cause was a resumption of activity at the UCF in August 2005, on the Supreme Leader’s orders.

The E3 took the view that Iran had gone back on its side of the Tehran and Paris bargains, but did not consider that reversal treacherous or dishonest, because Rouhani had never undertaken to maintain suspension indefinitely.

Instead, seeing the reversal as releasing them from their side of the Tehran bargain, the E3 set about arranging for the IAEA to forward to the UN the Director General’s 2003 report of Iranian safeguards non-compliance. They hoped that the UN Security Council would turn suspension from a voluntary measure into a binding requirement, and that Iran would feel obliged to comply. The Security Council delivered; Iran’s lack of compunction in ignoring the Council’s diktat was plain for all to see.

As I have written before, the big misfortune in October 2003 was that no one insisted on linking Iranian suspension to the completion of IAEA investigations under the Additional Protocol. The justification for suspension was a (palpable and widespread) loss of confidence in Iran’s nuclear intentions. An IAEA assurance — under the Additional Protocol — that all nuclear material and plants in Iran had been declared, would have re-built confidence and led all but a handful of IAEA members to conclude that Iran should be allowed to enrich uranium for civil purposes under IAEA safeguards. The hold-outs would have been unable to persuade the Security Council to make suspension mandatory and impose sanctions.

Anyway, the lesson to be drawn from Europe’s experience nearly a decade ago is that Iran’s president-elect is not some wily Oriental who cannot be trusted; he is rather a defender of Iranian interests who drives a hard but honest bargain and is true to his word.

Photo Credit: Abdolvahed Mirzazadeh

Listening, on 15 April, to the House Foreign Affairs Committee hearing on US policy towards Iran put me in mind of the inscription Dante imagined over the entrance to Hell: “Abandon hope all you who enter here”.

There seemed no notion among members of the committee that territories beyond the borders of [...]]]> by Peter Jenkins

Listening, on 15 April, to the House Foreign Affairs Committee hearing on US policy towards Iran put me in mind of the inscription Dante imagined over the entrance to Hell: “Abandon hope all you who enter here”.

There seemed no notion among members of the committee that territories beyond the borders of the United States of America are not subject to US jurisdiction – still less that reasoned persuasion and reciprocity can be more effective tools for achieving US foreign policy goals than sanctions (how the good Congressmen love sanctions!) and the infliction of pain.

Wendy Sherman, the Under Secretary of State for Political Affairs who heads the U.S. delegation in the P5+1 negotiations with Iran, must have come away from that hearing with the feeling that she has an impossible task. Congress will howl if the administration makes the slightest concession to secure Iranian agreement to non-proliferation assurances and restrictions on nuclear activities. Yet if Iran is offered nothing in return for measures it deems to be voluntary, because they lie beyond the provisions of the Nuclear Non-Proliferation Treaty (NPT), it will continue to defy the US and its allies.

Still, it is hard to avoid the thought that the administration could have made more of this opportunity.

Ambassador Sherman’s opening statement contained no reference to the US intelligence community’s confidence that Iran’s leaders have not taken a decision to acquire nuclear weapons. Instead, it referred to the need for Iran to “change course”, which the congressmen could be forgiven for taking as confirmation of their chairman’s opening assertion that Iran is trying to build a nuclear arsenal.

On top of that, Ambassador Sherman fed the Congressmen’s appetite for a penal approach by stressing that the goal of US policy is to have Iran live up to its “international obligations”. The Congressmen were left undisturbed in their conviction that Iran is entirely in the wrong and most certainly should not be rewarded for mending its ways. The opportunity to start helping their Honours to understand that the reality is more complicated went begging.

I hope LobeLog readers who know what lies behind that last sentence will forgive me for explicating it.

Iran’s “international obligations” come in two forms. One lot of obligations stem from the provisions of the NPT. Iran accepts that these are genuine obligations under international law and is ready to comply fully with them without reciprocity. Indeed some observers believe Iran is already fully compliant.

The other lot stem from the provisions of four Security Council resolutions adopted under article 41 of the UN Charter. Iran refuses to accept the legally-binding nature of these, not unreasonably, given that, when they were adopted, the Council had not determined that Iran’s nuclear activities represented a threat to international peace and security. Instead, Iran offers to proceed on the basis of reciprocity, volunteering the steps specified in these resolutions in return for recognition that Iran has NPT rights as well as obligations, and also for the lifting of nuclear-related sanctions.

The third missed opportunity was ethical in nature. The administration had no need to indulge in misrepresentation and distortion but succumbed to temptation.

The Congressmen were told that Iran is “isolated”. In reality, Iran maintains full diplomatic relations with some 100 states. Iran’s Foreign Minister is received courteously almost everywhere in Asia and Europe apart from the US, the UK and Israel. Just this week Iran assumed the chair of the Conference on Disarmament in Geneva. Currently Iran presides over the 120-member Non-Aligned Movement

Ambassador Sherman implied that responsibility for the appalling civil conflict in Syria must be ascribed to Iran, “a destabilising influence across the entire Middle East”. The initial supply of weapons to the Syrian opposition by Turkey, Qatar and Saudi Arabia was not mentioned. Some Middle Eastern states are allowed to have interests beyond their borders, it seems, and others are not.

Oh, and in Syria all the violence against “the Syrian people” is being inflicted by the Assad regime, supported by its Iranian ally. Perish the thought that the opposition has shed a single drop of Syrian blood!

Most Europeans yearn for the objectivity and ethical agnosticism that underlay the US opening to China, détente with the Soviet Union, and the final flurry of US/USSR agreements heralding the end of the Cold War. That sort of objectivity should come naturally, one might think, when the adversary is Iran, a state so very much weaker than the US. Alas, the opposite seems to be the case!

President Obama’s re-election last month raised hopes that the US government would at last be in a position, politically, to work with Iran towards a negotiated settlement centred on confidence-building and the provisions of the Nuclear Non-Proliferation Treaty (NPT). This was the basis of the understanding reached this April in Istanbul. It was therefore [...]]]> via Lobe Log

President Obama’s re-election last month raised hopes that the US government would at last be in a position, politically, to work with Iran towards a negotiated settlement centred on confidence-building and the provisions of the Nuclear Non-Proliferation Treaty (NPT). This was the basis of the understanding reached this April in Istanbul. It was therefore a little puzzling that during the International Atomic Energy Association (IAEA) Board of Governors meeting on 29 November, the US representative was once more engaging in a diplomacy of threats and ultimata.

The issue under discussion was the absence of progress in relation to clarifying concerns about past, but also possibly ongoing, Iranian activities of a non-peaceful nuclear nature, often referred to as a “possible military dimension” (PMD). The US representative asserted that Iran could not be allowed indefinitely to ignore “its obligations” and implied that in the event of a continuing absence of progress when the Board meets in March, the US will argue for Iran to be found in non-compliance with those obligations.

This raises two questions. To what extent is Iran in non-compliance with its IAEA obligations in failing to cooperate to resolve these concerns? And, is Iran likely to become more cooperative as a result of this threat?

It is widely accepted that Iran’s safeguards agreement with the IAEA entitles the agency secretariat to verify not only that all nuclear material declared by Iran remains in peaceful use, but also that such declarations are correct and (most importantly) complete.

Notably, paragraph 73 of the standard NPT safeguards agreement (to which Iran is subject) states that the IAEA may request a special inspection if it deems information made available by a state inadequate for the Agency to fulfil its official responsibilities.

So, insofar as Iran is failing to cooperate to resolve concerns which may reasonably imply the existence of undeclared nuclear material, there is a case for saying that Iran is in breach of its obligation to cooperate.

However, in this instance it’s questionable whether all the activities for which Iranian cooperation has been sought imply with adequate credibility the possibility of undeclared nuclear material. These activities were described in the annex to GOV/2011/65 of 8 November 2011 (the IAEA report used to build support for further sanctions at the turn of the year). A careful reading of that annex suggests that several of these activities, maybe even the majority of them, would not have involved nuclear material.

Of course it could be argued that PMD activities not involving nuclear material, such as missile warhead design work, can imply that at some future stage a state intends to acquire nuclear material which it does not intend to declare. That, however, seems a very tenuous basis on which to base an IAEA non-compliance finding. Moreover, it would also imply that all states that have engaged, even as a precautionary measure, in research into any aspect of the design or construction of nuclear devices should be found non-compliant.

So, my first conclusion is that if the US decides in March to accuse Iran of fresh non-compliance, it should take care to focus the accusation on activities that can reasonably be suspected of involving the use of nuclear material and are manifestly not the figment of some other state’s imagination.

However, to come to my second question, is proceeding in that way likely to be productive? The experience of the last seven years suggests not. Each time the West has resorted to punitive or coercive measures to influence Iranian behaviour, the results have been either unproductive or, worse, counterproductive. Iran was far more cooperative when, between October 2003 and April 2005, a less aggressive diplomacy was used to influence Iran’s leaders.

Furthermore, for some time there have been hints that Iran’s failure to cooperate in resolving PMD concerns is not its last word. On the contrary, cooperation can be expected in return for Western flexibility on sanctions and certain assurances in the context of an overall settlement based on the provisions of a treaty to which Iran insists it’s committed to, the NPT.

Moreover, if Iranian suspicion of Western good faith is one of the greatest obstacles to achieving an agreement, then the priority in the coming months should be to overcome that suspicion. This will not be achieved by seeking yet again to unite the IAEA Board in a humiliating condemnation of Iran, least of all if the legal grounds for that condemnation are not watertight. On the contrary, securing a further IAEA non-compliance finding would be a rum way to go about convincing Iran’s Supreme Leader that the US should no longer be seen as the Great Satan.

If, nonetheless, the US persists on the non-compliance course and succeeds, what then? Will Russia and China allow Iran to be penalized in the absence of evidence that it has decided to make nuclear weapons and therefore constitutes a genuine threat to international peace and security? If they do, will Iran pay any more heed to such a resolution than it has to the five previous Chapter VII resolutions of dubious legitimacy?

It’s certainly desirable that light be shed on suspected research into nuclear warhead construction and delivery, especially if it involved or involves undeclared nuclear material. But at last US voters have created political space for the West to revert to less aggressive, less confrontational tactics. At last the West can afford to experiment with a more exploratory, empathetic approach. It would be a pity to squander that opportunity.