national security

When Should We Violate International Law in Order to Enforce It?

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(Published in The Huffington Post, September 10, 2013)

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The looming military strikes on Syria are being justified as necessary to enforce and maintain a fundamental international law norm, namely the prohibition on the use of chemical weapons. It is quite clear that in the current situation, and in the absence of U.N. Security Council authorization, such strikes will also themselves violate a fundamental norm of international law, namely the prohibition on the use of force against sovereign states (see here for my own discussion of the legality issues).

At first blush the argument that one should violate the law in order to enforce it seems absurd, encouraging a counterproductive form of vigilante justice at best. But it does raise the question — are there times when we should violate international law in order to enforce it? Or more explicitly in the Syrian context: under what conditions and according to what criteria would it be justifiable to violate the fundamental rule prohibiting the use of force against sovereign states, in order to enforce the fundamental rule prohibiting the use of chemical weapons? Are there some practical responses that might provide some guidance for policy makers?

It must be acknowledged that there are some situations in which we accept that it would be justifiable to violate the law, or at the very least in which the circumstances would mitigate against our full condemnation of a violation. Such justification, in the form of exceptions, defenses, and reduced punishment, is indeed built into most domestic legal systems, and is part of most conceptions of justice.

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How and Why Japan Should Amend its War-Renouncing Article 9

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(Published in The Japan Times, Aug. 4, 2012)

The pressure is mounting to either amend Article 9, the war-renouncing provision of Japan’s Constitution, or to increasingly disregard it and so make it irrelevant. In April the Liberal Democratic Party (LDP) published its proposal for amending the Constitution, and the dangers it posed for Article 9 was analyzed here on June 6 (“LDP’s dangerous proposals for amending antiwar article”). But the response to such amendment proposals by the supporters of Article 9 continues to be one of complete denial — that is, a categorical argument that Article 9 should not be amended at all.

This position is misguided. There are both strategic and legal reasons why the left must develop realistic alternative amendment proposals that would preserve and strengthen the core elements of the provision, but eliminate those elements that undermine it. In a chapter in the book “A Time for Change? Japan’s ‘Peace’ Constitution at 65,” published last month by the Woodrow Wilson Center for International Scholars (the chapter is available online: http://bit.ly/MWGF8T), I explain why Article 9 should be amended, and provide draft language that can serve as a basis for beginning a discussion on alternate amendment proposals.

Flat out rejection of any and all possible amendments to Article 9 is dangerous as a strategic matter. The national security environment of Japan has shifted in the last couple of decades, with the emergence of a nuclear-armed North Korea, and the growing military strength of China. In addition to these perceived threats, there is an increasing sense that Japan should be doing more to fulfill its international responsibilities. Moreover, the Japanese Self-Defense Force (SDF) has participated in non-combat roles in such conflicts as Afghanistan and Iraq with no adverse consequences.

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The Law and Congressional Red-Lines on Iranian Nuclear Talks

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(Published in the Truman Doctrine blog, July 11, 2012)

The Moscow round in the talks with Iran over its nuclear program, in which the world powers are ultimately trying to prevent Iran from developing nuclear weapons, collapsed last month. The next round of talks are scheduled to begin soon. This has renewed claims that further talk is futile and harsher measures are required, and counter-arguments that diplomacy is failing precisely because the U.S. refuses to make reasonable and necessary concessions in the negotiations.

One of the central issues in this debate is whether the U.S. should “permit” Iran to enrich uranium for non-military purposes. Israel and its supporters in Congress have pressed for a categorical “red-line” in the negotiations, according to which Iran should be prohibited permanently from any enrichment whatsoever. Others have responded with powerful policy and strategic reasonswhy, on the contrary, a “concession” to acknowledge Iran’s right to develop a peaceful nuclear program, is necessary for there to be any meaningful chance of success in the negotiations. Past U.S. policy has, of course, been that Iran has the right to peaceful nuclear energy development, and the proposed red-line would be a departure from past policy.

The claims against Iran are, of course, framed largely in legal terms — and there should, therefore, be a careful consideration of the legal principles that relate to this central issue of Iranian enrichment. And an analysis of the law suggests that a U.S. failure to acknowledge Iran’s right to peaceful enrichment would not only be unprincipled and perhaps unwise, but it would be fundamentally inconsistent with the governing legal regime – the legal regime that is the foundation for our objection to Iran’s program to in the first place.

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The Use of Force and Int’l Law: The Void in American Discourse

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(Initially published in the Progressive Fix)

President Obama, in accepting his Nobel Prize, spoke in lofty terms about the requirement that all nations, weak and strong, must adhere to the legal standards that govern the use of force. He noted that the U.S. had played a leading role in creating that legal framework. And he went on to underline that the U.S. too must respect international law: “America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”

And yet the absence of any public discussion or analysis of the legal issues raised by America’s efforts against terrorism is striking. Whether it be torture and extraordinary rendition, military commissions, the targeted killing by drone attacks in Pakistan, the planning of CIA assassination squads, the large number of civilian deaths in air strikes in Afghanistan, or even the prospect of military strikes in Iran, all of these raise significant and complex international law issues. But you will not find any meaningful discussion of those issues in the media, or indeed in the talking points, blogs, or analysis produced by most liberal or progressive organizations.

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