The Legal Implications of Military Intervention in Libya

(Published in The Huffington Post, March 2, 2011)

As the crisis in Libya deepens there is increasing chatter about the possibility of military intervention. At the moment this is suggested most frequently in the form of a no-fly-zone over Libya, in order to prevent Gaddafi from using the air force against civilian protestors.

A debate is developing over the wisdom of any American or Western military involvement, but as usual there is little being said about the international law principles that would be implicated by such operations. And in the context of the growing unrest throughout the region, perceptions of the legality or illegality of any U.S. military action could have a significant impact on the developing narrative in the Arab world regarding America’s role, and how the emerging regimes ought to frame their relations with the U.S. going forward. The law matters in this situation.

The starting point of the legal analysis is the basic prohibition in international law on the use of armed force against the territorial integrity or political independence of any state. The two primary exceptions to the prohibition are self-defense, which is obviously not applicable here, and operations authorized by the United Nations Security Council in response to a threat to international peace and security. There is no question, therefore, that if the U.N. Security Council passed a resolution authorizing the imposition of a no-fly-zone in order to maintain peace and security in and around Libya, as it did in Iraq in the 1990s, the U.S. and its NATO allies could do so with the full imprimatur of international law.

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DADT, Unit Cohesion, and American Values

(Was set to be published on Dec. 17, when the Senate voted for repeal, making it thankfully moot)

In the debate over repeal of the Don’t Ask Don’t Tell policy, Senators such as John McCain cling to the argument that allowing gays and lesbians to serve openly in the military might negatively impact on unit cohesion, and thus on war-fighting capability. The Commander of the Marines, General James Amos, has fueled such claims, suggesting that repealing the policy in a time of war could cause casualties. As the Senate begins its debate on the issue, it is crucial to understand the assumptions and validity of this argument.

The conclusion of the argument is itself tenuous. Over 25 of our democratic allies have changed their policies within the last twenty years to allow homosexuals to serve openly. Comprehensive studies of those militaries, including those of such close allies as Great Britain, Israel, Australia and Canada, have established that the change in policy did not result in any degradation of fighting capability. Moreover, prior to the policy shifts, surveys of military members in many of those countries found that there was strong opposition to the change, and suggested that there would be significant disruption if implemented. In other words, stated attitudes grossly exaggerated the likely impact. Yet the recent Pentagon study of the U.S. military found that 70% of service members already accept the change and think it would have little impact.

But let us assume for the moment, just for the sake of argument, that there might be some disruption to unit cohesion if DADT is repealed. Why would that be? No one suggests that it is because gays and lesbians are inherently less capable of fulfilling their duties or performing combat functions than their straight brothers and sisters in arms. It is not about their conduct at all. It is all about the response of their comrades. … Read more…

New START is About More Than Russia

(Initially published in The Huffington Post, December 15, 2010)

The Senate is to take up ratification of the New START treaty for consideration again this week. While much has been written on the debate over the issue, there are important considerations that are not being sufficiently addressed. Quite apart from relations with Russia, a failure to ratify the treaty risks a fatal undermining of the nuclear non-proliferation regime.

To understand why this is so requires us to go back to the origins of the nuclear non-proliferation treaty (the NPT). When it was negotiated in the 1960s, to prevent the further spread of nuclear weapons, there was a grand bargain struck. In exchange for agreeing to forswear nuclear weapons, the non-nuclear countries that jointed the regime were promised assistance with the development of peaceful nuclear energy, and the recognized nuclear-weapons states committed to make meaningful efforts towards nuclear disarmament.

189 countries are now party to the NPT, and the treaty has survived as the primary legal framework for the international effort to prevent the proliferation of nuclear weapons. There is no other legal prohibition against the development of nuclear weapons, and absent the NPT and its underlying bargain, there is indeed no principled basis why some countries should be permitted to maintain nuclear weapons while the rest are denied the right to develop them. … Read more…

Revising Japan’s Nonnuclear Principles

(Initially published in The Japan Times, Aug. 18, 2010).

The prime minister’s advisory panel on national security has recommended a reconsideration of Japan’s adherence to the so-called three nonnuclear principles. The panel specifically urged that the third principle, the prohibition on the introduction of nuclear weapons into Japan (which forbids not only the stationing of weapons in Japan, but even the transit of weapons through Japan), be relaxed in order to permit the U.S. greater freedom in deploying nuclear weapons in Japanese territory.

This is a bad idea for many reasons, but for one it would be inconsistent with the Constitution.

As is well known, Article 9, paragraph 1 of the Constitution renounces war and the threat or use of force as sovereign rights of the nation, while paragraph two prohibits the maintenance of armed forces or other war potential, and denies to Japan the right of belligerency. The long established official understanding of paragraph 1 is that Japan can only use the minimum military force necessary for its individual self-defense. It cannot use or threaten the use of armed force for collective self-defense, or for U.N. collective security operations.

Even this understanding, long embraced by successive governments, the courts, and the Cabinet Legislation Bureau, is a strained interpretation of a clause that clearly prohibits those uses of force that remain sovereign rights under international law — which are limited to individual and collective self-defense, and collective security operations. But the proposed changes to the nonnuclear principles would violate Article 9 under even the official interpretation.

The three nonnuclear principles were articulated by the government of Prime Minister Sato in 1967, and formally adopted in a Diet Resolution. Japan went on to sign the Nuclear Nonproliferation Treaty in 1970 and ratified it in 1976. The nonnuclear principles caught the imagination of the Japanese people and quickly became powerful elements of the broader pacifist identity associated with the constitution. As the only victim of nuclear weapons, this stance also made Japan a powerful symbol for the nonproliferation movement. Sato won the Nobel Peace Prize for his efforts. … Read more…