Bombs and rockets – Page 42 – a sibilant intake of breath

Thirteen Days

I watched Kai’s copy of Thirteen Days tonight. As a historical re-enactment of the Cuban Missile Crisis, it is apparently quite accurate. A lot of the dialogue was taken straight from tapes made of the meetings. Though, from what I have read, our historical understanding of the crisis keeps changing as new evidence becomes available. One can only speculate how much of what has happened in world politics more recently will be improperly understood, unless such archives are eventually opened.

The tension between the military and civilian portions of government is a particularly interesting aspect of the film. The kind of autonomy granted to military forces – as required for strategic reasons – is profoundly worrisome, in a world where ever more states have ever more nuclear weapons. That’s what makes the crisis such a chilling incident: the disjoint between intentions and certain action, the possibility of error and catastrophe.

Legal responsibilities of soldiers

A question in international law:

Some people will doubtless have heard about the case of Lieutenant Ehren Watada: the first American commissioned officer to refuse to serve in Iraq, on the grounds that the war is illegal. He has said, for instance:

This administration used us for rampant violations of time-tested laws banning torture and degradation of prisoners of war. Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration and the rules of engagement of desperate field commanders will ultimately force them to be party to war crimes.

In some ways, this is the inevitable product of saying that “I was just following orders” is not a legal defence for someone who has committed war crimes. In effect, stripping them of that protection obliges every soldier to contemplate the legality of their own actions. This is especially true for officers, given their special responsibilities under international law, as referenced in the Youmans Claim¹ and Zafiro Claim².

The Fourth Nuremberg Principle, established to try war criminals after the second world war, states that:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

The Sixth Principle defines “Planning, preparation, initiation or waging of a war of aggression” as a crime against peace, punishable under international law. The Seventh says that mere “complicity in the commission of a crime against peace” can likewise be punished. Kofi Annan has called the second Iraq war illegal, and there is a legal case to be made that it was “a war of aggression.” At the very least, Lieutenant Watada will be able to make an interesting argument.

Politically, this case will probably just perpetuate the mudslinging war between people on the left who accuse the administration of criminality and those on the right who accuse the left of lacking patriotism and threatening American lives.

Lieutenant Watada’s court martial begins on February 5th, and he could be sentenced to up to six year’s imprisonment, if convicted.

[1] US v. Mexico (1926) US v. Mexican General Claims Commission: Van Vollenhoven, Presiding Commissioner; Fernandez McGregor, Mexican Commissioner; Nielson, US Commissioner. 4 R.I.A.A. 110

Essentially, Mexico was found to have not exercised due diligence in protecting three American nationals surrounded by a mob. The fact that Mexican soldiers actually fired upon the Americans while “on duty under the immediate supervision and in the presence of commanding officers” was taken to be relevant.

[2] Great Britain v. US (1925) American and British Claims Arbitration: Nerincx, President; Pound, American Arbitrator; Fitzpatrick, British Arbitrator. 6 R.I.A.A. 160

A privately owned ship with a Chinese crew was being commanded by an American officer. In the arbitration, it was found that in allowing the crew ashore unsupervised, when it could have been anticipated that they would participate in looting, was a violation of international law on the part of the officer.

No doubt, many more cases about the special responsibilities of officers exist. The Wikipedia entry on command responsibility includes a lot more information. American military doctrines and regulations also place special responsibility upon officers. As such, it would seem that people in that position have a special obligation to ask the kind of moral questions that Lieutenant Watada has.

Anfal charges dropped for Saddam Hussein

Compounding the error of hanging him, the Iraqi High Tribunal has chosen to drop all charges against Saddam Hussein in the ongoing trial about the Anfal campaign. He was convicted earlier for the killing of 148 civilians in Dujail, but the campaign against the Kurds in Anfal between 1986 and 1989 killed more than 100,000 people and involved the use of chemical weapons including Sarin.

The brutality and illegality of this campaign has been used by many to bolster the assertion that Saddam Hussein was a tyrant and a criminal, and that the American-led invasion and occupation have been justified. It has also been used by those critical of the United States, particularly because some of the weapons used were almost certainly provided to Iraq by the United States and other western or NATO powers, either during or before the Iran-Iraq War (1980-88). In March of 1986, the President of the United Nations Security Council issued the following statement:

[P]rofoundly concerned by the unanimous conclusion of the specialists that chemical weapons on many occasions have been used by Iraqi forces against Iranian troops… the members of the Council strongly condemn this continued use of chemical weapons in clear violation of the Geneva Protocol of 1925 which prohibits the use in war of chemical weapons.

(S/17911 and Add. 1, 21 March 1986)

The United States voted against the issuance of the statements, while the UK, Australia, France and Denmark abstained.

Those who hoped that there would at least be a proper investigation and documentation of the crimes committed under his regime will be disappointed. Likewise, those who hoped that further precedents about the use of chemical weapons by heads of state might be established in international law. The progression in Iraq seems less and less like one towards a democratic state governed by the rule of law.

Human security

This evening, I have been thinking about ‘human security.’ This is the idea – very hot right now in international policy circles – that the object of security should be the individual, rather than states (which are arbitrary) or governments (which can be selfish or non-representative). “Protect the Human,” as the Amnesty International campaign asserts. Given the atrocities committed against individuals in the quest to assert higher ideals, a moral system based around preventing such abuses has intuitive appeal.

What I am wondering about is the basis upon which the claim can be made that human security is the important sort. There is the possibility that the realities of human life make human security a valid perspective in a deep way that transcends trends in thinking and the present character of the international system. At the other extreme is the idea that this is just a concept cooked up in some reports and boardrooms that is being applied universally by those groups who have accepted it, despite it not having any fundamental validity. The third and most sensible possibility is that the idea of human security has emerged as the product of a lengthy deliberation among states.

That said, the state consensus view has problems of its own. In particular, the manner in which transgressors are dealt with becomes important. When African states and regional organizations fail to condemn Zimbabwe and Sudan for egregious violations of human rights, are they doing so because the think continued integration is the best way to forward a human security ideal they have already internalized (this would be akin to the supposed ‘sunshine policy’ of South Korea in dealing with the North), or do they remain wary of outside impositions, having been at the sharp end of too many in the past?

The present American administration has, in some ways, made this whole debate more difficult. On the one hand, they assert certain moral values as though they have absolute validity: democracy is good, tyranny is evil. At the same time, they are willing to compromise on fundamental moral questions, ostensibly to serve higher ends. Guantanamo Bay is one embodiment of this attitude. To champion both moral absolutes and a huge level of moral flexibility is enormously problematic. Taking a universal stance and then acting in a way that seems hypocritical leads people to question whether there are moral truths with a strong claim to validity. It also profoundly diminishes the ability to that particular moral actor to act as a model to others, or exert moral pressure. Arguably, situations like the inaction of the international community tars all other states that champion a human security agenda with a similar brush.

One of the more stirring things Michael Ignatieff ever wrote relates to just this issue of universal assertions and hypocritical failures to act:

The liberal virtues – tolerance, compromise, reason – remain as valuable as ever, but they cannot be preached by those who are mad with fear or mad with vengeance. In any case, preaching always rings hollow. We must be prepared to defend them by force, and the failures of the sated, cosmopolitan nations to do so has left the hungry nations sick with contempt for us.

That possibility – that the states of the developing world reject ‘human security’ and similar concepts because of the manifest lack of commitment from the developing world – is another potential solution to the puzzle of the status of such concepts in the world today.

Defining state failure

From writing about foreign aid, I have moved on to failed states. I am meant to discuss who defines states as ‘failed’ and what consequences it has for sovereignty. It seems to me that there are three general ways in which a state can be considered to have failed:

States can lose their integrity, as viewed from the security perspective by outsiders.
Alternatively, they can fail to maintain other characteristics that are considered essential in a modern state, such as a monopoly on the legitimate use of force.
Finally, they can fall below some moral threshold, below which their government or leadership is no longer seen as legitimate.

Of course, the relevance of a state being ‘failed’ or not failed lies primarily with how this changes the behaviour of other states and non-state groups towards it. If being a failed state suspends the traditional rights afforded to states – from territorial integrity to diplomatic immunity – being thus categorized could very significantly affect the treatment of both individuals and territory by outsiders.

In the first instance, a ‘failed’ state might be one that has lost control of what passes in and out of its territory, to the point where it endangers neighbouring states. This is a situation very specifically addressed in the United Nations Charter. Chapter VII specifically empowers the Security Council to “to maintain or restore international peace and security.” Generally, serious measures such as sanctions or interventions need to be justified as responses to such a threat. While the issue is sometimes fudged – for instance, by saying that possible refugee flows from an internal conflict threaten international peace and security – this is still quite generous amount of space to give states, in which to manage their own affairs.

There is a problem here, when it comes to states that have strong governments, and possibly even democratic legitimacy, but nonetheless either passively submit to or actively encourage activities that threaten international peace and security. Supplying weapons to illegal groups, for instance, is an activity that a very great many states have engaged in. It may be possible to be a criminal state without being a ‘failed’ state. If so, the difference in terms of treatment is worthy of consideration.

A definition of state failure based on the maintenance of certain characteristics by the state under consideration necessitates a setting out of what the essential characteristics of statehood are. In The Neutrality of Great Britain during the American Civil War, Montague Bernard explained it thusly:

a Community or number of persons permanently organised under a Sovereign Government of their own, and by a Sovereign Government we mean a Government, however constituted, which exercises the power of making and enforcing law within a Community, and is not itself subject to any superior Government. These two factors, the one positive, the other negative, the exercise of power and the absence of superior control, compose the notion of Sovereignty and are essential to it.

Here, non-failed states need to do more than control their borders; they also need to maintain the capacity to enact and enforce laws. Probably, this requires more resources than just maintaining territorial integrity, though it is hard to imagine a state with impeccably policed borders and a largely lawless interior. The bigger issue with this expanded definition is that it begins to subject the internal structures of a state to external scrutiny, in a way closely tied to the ability of that state to maintain international legitimacy and recognition.

(I know we discussed a formal definition of statehood in international law, in the class I took at UBC on that subject. I can’t remember which specific document was involved, however. Anyone who does is very much encouraged to comment. All my notes and textbooks from the course are back in Vancouver.)

The definition of state failure with the widest scope is some kind of affirmation of moral codes that non-failed states must obey, even in the conduct of their internal operations. This is, of course, a conception that arises hand in hand with the idea of human security. The idea that governments that either actively engage in crimes against humanity or allow them to take place unchecked have foregone their sovereignty is one that can be easily justified within a liberal tradition of political theory. Of course, it is a step beyond that to affirm the right of other states, or of the international community, to intervene in such circumstances.

Other problems arise when the above criteria are considered in combination. Take the example of Pakistan. By many measures, it is a strong state. There is an organized central government with a clear structure. There is an organized military and police forces. The state is externally recognized by the international community. At the same time, Pakistan either cannot or does not control the flow of materials and individuals across its northern border with Afghanistan, despite a recent and bloody effort on the part of the army to take control. Also, Pakistan has been shown to be involved in international illicit trade in nuclear materials and information on making nuclear weapons. While few would call Pakistan a failed state, it does demonstrate characteristics associated with state failure.

In the end, it isn’t clear to me that the failed / non-failed dynamic has much usefulness, when it comes to states. It is too simple to allege that a right to intervene arises from failure to comply with one or another set of requirements. Some kind of more sophisticated moral and legal conversation is necessary, making this binary distinction just one point of discussion in a broader dialogue.

Another death in Iraq

The hate of men will pass, and dictators die, and the power they took from the people will return to the people. And so long as men die, liberty will never perish.

Charlie Chapman – “The Great Dictator“

Saddam Hussein’s sentence, discussed here previously, has been carried out. I maintain that it was immoral to kill him, just as it is immoral to take anyone’s life in the pursuit of justice. It is not through the living or dying of individuals that just societies arise, but through the creation and maintenance of fair and impartial institutions. This is why Chapman’s statement, while stirring, is also profoundly naïve. Sadly, very little in the way of a just society seems to be emerging in Saddam’s former kingdom.

I am not sure whether it is legitimate to hope that this will bring some satisfaction to the families of those tortured and murdered by his regime. On the one hand, they deserve whatever kind of compensation can be provided. On the other, encouraging people to delight in the death of a fellow human being seems morally reprehensible. At the very least, let us hope that this action does not spur greater violence in Iraq, and does not cut short the investigation and documentation of the whole sordid history of Saddam’s regime.

[Update: 3:00pm] My friends Lee and Tim have also commented on this matter.

Remembrance Day

After reading my friend Michael’s post on Remembrance Day, I find myself rethinking the event. I can think of three different potentially valid understandings of its purpose:

The day as a formalized period of mourning for the specific people who died in the wars commemorated.
A day meant to serve as recognition of the fundamental badness of war in general
A day meant to encourage contemplation of the specific conflicts being commemorated.

The first and second are clearly somewhat contradictory. You can get around that by either saying that war in general is bad, but these ones were noble and important or that waging war is honourable if done defensively, and all of these conflicts were defensive. Another way out is to say that the actions of those who died, specifically, were honourable, regardless of whether the broader endeavour in which they were engaged was.

The most easily justifiable position is to avoid the automatic taking of a moral stance – in response to the occasion – but rather use the chance to reflect on the specifics of the conflicts themselves: how they arose, how they progressed, what they resulted in, and what the importance of all of that is now. Such an approach has the virtue of independence of thought, but probably rather misses the point of a commemorative ceremony of the sort that Remembrance Day is meant to be.

Regardless of the conclusions you reach, the balance you end up contemplating is one between large-scale strategies and small-scale sacrifices. Whether it’s Canadians being blown up by roadside bombs while trying to aid negotiations between the central government and provincial warlords in Afghanistan today or Canadians dying to test the German defences in Dieppe in 1942, such examples force us to think hard about the aims of our foreign policy, and the purposes for which armed force should be employed in the world.

Saddam to be hanged

Reading the news that Saddam Hussein, former president of Iraq, has been sentenced to die by hanging created a ambivalent combination of feelings. On the one hand, he is certainly guilty: if not of the particular atrocity for which he was tried than for crimes against humanity in general. Likewise, launching the Iran-Iraq War probably constituted ‘conspiracy to wage aggressive war’ – the crime for which the subjects tried at Nuremberg were hanged.

Problems with the trial

That said, there are procedural issues that draw the result into question. One major legal problem is the genesis of the Supreme Iraqi Criminal Tribunal (formerly known as the Iraqi Special Tribunal). This body, where Saddam Hussein is on trial, was not established by an elected Iraqi government, but by the Coalition Provisional Authority: a bureaucracy composed of and supported by the occupying army. To say that this is domestic Iraqi justice is therefore somewhat disingenuous.

Other serious problems have been the lack of security for those involved in the trial: including witnesses, judges, and lawyers. By the end of the trial, Saddam Hussein only had one legal representative left: Khalil al-Dulaimi (largely because others were dismissed, though three were killed). The absence of a stable security situation in Iraq, and Baghdad in particular, further reduces the changes of a free and fair trial being conducted, at an internationally certifiable level of due process.

A further problem is the absence of an adequate process of appeal. There is only a ten-day window in which an appeal can be launched, and it is widely expected to end in failure within weeks. Related is the issue that it is over-hasty to execute Saddam Hussein on the basis of one set of allegations, relating to 148 killings in Dujail in 1982, when so many more charges remain to be considered. The importance of being systematic and fair lies in generating an accurate accounting of the various crimes committed by Saddam Hussein and his regime. If the stated objective of the coalition in “drawing a line” under the Saddam era is genuine, such a comprehensive accounting seems like an important step.

Problems with the death sentence, generally

In general, the international community has condemned the sentence of death. The European Union has spoken against it. As have India, Ireland, The Netherlands, and New Zealand. Even Tony Blair said that he is opposed.

Personally, I don’t feel that execution is an option that should be available to any court. As a form of justice, it is little more than crude retribution. While the danger of convicting innocent people does not apply in this case, the general moral and pragmatic position against the death penalty seems very strong to me.

That said, imposing what has become the international consensus upon the Iraqi court carries problems of its own. To grant the new Iraqi governments powers and then circumscribe their usage does not conform to the project upon which the coalition has supposedly embarked. While it is clearly legitimate for outside actors to urge a reconsideration of the death sentence, it would probably be illegitimate to force the hand of the court in any significant way.

Primarily because of the flawed trial process, the insufficient appeal system, and the importance of rigorously cataloging the misdeeds of the former regime, Saddam Hussein should not be put to death.

All that said, I encourage someone to argue the opposite.

Video exchange: 24

Does anyone in Oxford have the DVDs of the third season of 24?

Continue reading “Video exchange: 24”

Three Kings

Tonight, I watched Kai’s copy of the film Three Kings. I remember the advertisements portraying it as some sort of comedy; at best, it is a pretty dark satire. The point it makes indirectly and well is that the on-the-ground realities of warfare can be starkly different from the press conference versions generally presented to us.

The odd thing about the film is the way in which it plays with your sympathies: there is certainly some for the reservists (part time baggage handlers, those who never finished high school, etc). There is plenty for the general populace of Iraq. Saddam and the first President Bush are only ever in the background, each presenting as truth things that have nothing to do with the immediate reality of the film: Saddam has his smiling portraits everywhere, Bush provided the printed sheets or orders the American soldiers wave at Iraqi troops and civilians from time to time.

While the film is, in many ways, unrealistic it manages to convey a truthful message about human greed and brutality. It becomes harder to hold liberal values when the reality of how imperfectly that are applied in many circumstances is revealed.