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New hope for Libya… and the Security Council?

Just a couple of hours ago, a French fighter jet fired on and destroyed a Libyan military vehicle, the first use of force by the international community under the mandate of UN Security Council resolution 1973 (2011), adopted last Thursday. This seems to signal a turn-around in the situation on the ground in Libya – Colonel Kaddafi’s luck may finally have run out.

Beyond Libya, the consequences of this bold move by France may prove even more significant. For the first time in a very long period, the UN Security Council has shown to be able to take forceful action against a leader and a state that massacres its own people in violation of international law. This is rather unique: in 1994, the Security Council failed to stop the genocide in Rwanda, and in 1999 the Council’s inertia prompted NATO’s unilateral intervention in Kosovo. As a result, many have criticized the Security Council for being irrelevant and outdated, and academics and policy-makers have actively sought ways to circumvent the Council (see, for example, the debate on a “responsibility to protect”, or R2P).

Enter resolution 1973 (2011) and its swift enforcement by the France and Britain. The current events are reminiscent of the military action by the international community in Kuwait in the early 1990s. Then, the fall of the Berlin Wall and the end of the Cold War instilled great optimism in the future of world politics (see, for example, Bush sr.’s “Toward a New World Order” speech in 1990). Resolution 678 (1990), authorizing states to use “all necessary means” to restore peace and security in the Gulf area, was hailed as an awakening of the Security Council after decades of deadlock. Now, after some bad experiences with semi-unilateral actions in the last decade (most prominently Iraq and Afghanistan), states are returning to the Council – despite talks about its irrelevance. Thursday’s vote gives the Council renewed credibility as the primary global forum to deal with international crises. It may herald an era of new, more mature optimism about the role of the Security Council at the centre of global politics.

Another point of interest is that, this time, it is not the US who is taking the lead. Quite the opposite: the US is very careful not to be seen as targeting yet another Muslim nation. Strategically, this seems the right choice. But it demonstrates that a hitherto hegemon feels that it has reached the limits of its powers and is painfully aware of the dangers of imperial overstretch.

Obama, Master of Life and Death

This blog is cross-posted on lsdimension

Another victory for executive power, another loss for the Rechtsstaat. According to a US federal judge, there are no legal limits on the President’s power to order the killing of alleged terrorists outside the US, even if these individuals happen to be US citizens. At least, no legal limits that can be enforced in a US courtroom – Judge Bates of the DC District Court ruled that the matter amounts to an unjusticiable “political question”.

The NY Times:

WASHINGTON — A federal judge threw out a lawsuit on Tuesday that sought to block the American government from trying to kill Anwar al-Awlaki, a United States citizen and Muslim cleric accused of playing a significant role in Al Qaeda’s branch in Yemen.

The ruling clears the way for the Obama administration to continue to try to kill Mr. Awlaki and represents a victory in its efforts to shield from judicial review one of its most striking counter-terrorism policies.

The court not only rejected the lawsuit on the grounds that Mr. Awlaki’s father had no standing to file it on behalf of his son, but held that decisions to mount targeted killings overseas are a “political question” for executive officials to make — not judges.

In an 83-page opinion, Judge John Bates of the District of Columbia district court acknowledged that the case raised “stark, and perplexing, questions” — including whether the president could “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based the mere assertion that he is a dangerous member of a terrorist organization.

But even though the “legal and policy questions posed by this case are controversial and of great public interest,” he wrote, they would have to be resolved on another day or outside of the courts, since this case had to be dismissed at the onset.

The Justice Department had no immediate comment on the ruling. But Jameel Jaffer, a lawyer for the American Civil Liberties Union who helped represent Mr. Awlaki’s father, Nasser al-Awlaki, in the matter, called the decision “a profound mistake” that he said would dangerously expand presidential powers.

“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation,” Mr. Jaffer said. “It would be difficult to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”

Judge Bates rejected the notion that his ruling amounting to holding that the executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” His ruling emphasized that it was limited to the circumstances of Mr. Awlaki, whom the intelligence community has said is engaged in specific operational planning of attacks against the United States.

“The court only concludes that it lacks capacity to determine whether a specific individual in hiding overseas, whom the director of national intelligence has stated is an ‘operational member’ ” of Al Qaeda’s Yemen branch, Judge Bates said, “presents such a threat to national security that the United States may authorize the use of lethal force against him.” Robert Chesney, a University of Texas law professor who specializes in national security law, said the limits of the theory articulated by Judge Bates would be a matter of hot dispute.

“The slippery slope is obviously the concern here,” Mr. Chesney said. “Judge Bates is at pains not to decide this question for other circumstances. But the question remains, what else besides this fact pattern would enable the government to have the same result — no judicial involvement in a targeted-killing decision?”

The A.C.L.U., along with the Center for Constitutional Rights, brought the lawsuit on behalf of Mr. Awlaki’s father last summer. It first had to receive permission to represent Nasser al-Awlaki from the Treasury Department, which has labeled Anwar al-Awlaki a “specially designated global terrorist.

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Granted, Judge Bates was in an unenviable position, having to juggle national security concerns and fundamental human rights. No matter how he would have ruled, he was going to be severely criticized.  Nevertheless, that doesn’t delegitimize critique on his ruling – here are three points:

First, Judge Bates denied the father of Mr. al-Awlaki standing to bring the claim, arguing that Mr. al-Awlaki’s incommunicado status is of his own choosing – surely he could easily walk up to the US embassy in Yemen to claim his constitutional rights. It is rather unfortunate that the judge relies on this legal fiction: who really believes that the US government would quietly sit down with one of the most sought-after individuals on its hit list, rather than fire a – Presidentially authorized –missile at him as soon as he discloses his location?

Second, the political question doctrine is a well-known and legitimate tool that prevents judges from having to meddle in political issues, such as foreign affairs and national security. Yet in this case national security concerns directly challenge one of the most fundamental human rights, namely the right not to be killed without due process (presuming that capital punishment is okay in the first place, which it is not). It’s the very raison-d’être of the judiciary to offer a counter-balance against the executive in these situations – Judge Bates effectively undermines the carefully constructed checks and balances of the American constitutional system.

Third, the slippery slope is very real. Judge Bates understandably tries to do away with this case on the basis of exceptional circumstances, arguing that this case of a “specially designated global terrorist” is one-of-a-kind. Yet a similar logic applied to the 775 “unlawful combatants” at Guantánamo Bay, the approximately 3000 extraordinarily renditioned individuals, and the War on Terror as a whole. Repeated exceptions for hard cases dilute the rule of law. As the ACLU stated, this expansion of executive power could prove more dangerous to American liberty than a former imam in Yemen.

P.S.: It would be interesting if this case goes up to the Supreme Court, though I’m not optimistic about the outcome of such a ruling.

Competing fora of world power: the Security Council and the G20

Obama’s unexpected public support for a permanent seat for India in the United Nations Security Council did not only spur the debate on UN reform, it also provoked reflections on the significance and role of the Security Council in the 21st century. Several commentators noted that the US’ willingness to consider increasing the permanent membership of the Security Council signals a diminishing interest in the Council – it has become “sufficiently irrelevant” for P5 to stop worrying about a dilution of their power within the body. Instead, it has been argued, big powers circumvent the Council to convene in alternative fora, such as the G20, which is currently in session in Seoul, South Korea.

It is true that the Security Council is an anachronistic body that has a doubtful record in providing universal peace and security. It’s permanent membership has not been updated to reflect global power changes in the last 65 years, the P5 veto power paralyzes decision making and powerful states continuously defy its authority (see, for example, NATO’s bombing of Serbia over Kosovo, Russia’s invasion of Georgia and the US invasion of Iraq). The G20, on the other hand, has proven a flexible instrument of global governance, the meetings of which attract heads of state and create a media and policy buzz in capitals, colleges and cafes, both in member and non-member states.

Yet regardless these issues, there are some fundamental differences between the two bodies that should not be lost out of sight, particularly with regard to procedure, substance and authority of the institutions:

First, it is important to remember that the Security Council is a permanent body within a universal international organization, which includes almost all states in the world. The non-permanent members of the Council are elected by all UN members, a procedure that grants the Council a sense of global legitimacy. The G20, on the other hand, is a self-appointed group of powerful economies that lacks a permanent secretariat or staff. Its members include only one African state, South Africa, and leave out other influential nations, such as Iran (19th largest economy) and Norway (not an EU member, so not represented through the organization like Spain, Netherlands and Poland).

Second, the Security Council is mandated to maintain international peace and security (art. 24(1) of the UN Charter). Due to several factors, including the atomic bomb, economic interdependence and the growing aggression from non-state actors (terrorists), its traditional focus on inter-state relations seems increasingly outdated. Yet it cannot be easily replaced by the G20, an economic council that is concerned with the well-being of the international financial system and global economic stability.

These two issues bring me to a third point: as a treaty body that is mandated with the maintenance of international peace and security, the Security Council has the authority to issue decisions that are binding on all UN members. By interpreting its mandate increasingly broadly, the Council has used these powers widely: it has created peacekeeping missions, established international criminal tribunals and, on occasion, acted as global legislator. On the other hand, the G20 issues declarations that indicate broad policy guidelines, rather than binding prescriptions. Its findings are influential, but cannot legally oblige other states, or even its members, to follow in its footsteps.

To be sure, I am not trying to dismiss the significance of the G20, or make the Security Council more important than it is. However, with these three points I do want to make clear that it is very difficult to compare the two bodies. I would argue that the shift in world attention from the Security Council to the G20 does cause the one body to replace the other. Rather, it signals that powerful states consider that their marginal gains from increased economic cooperation are higher than from more collaboration in the security field. This change of interests might make states more amenable to Security Council reform. However, the Security Council will remain the primary forum for issues concerning international peace and security.

Fear and Loathing in Oklahoma

Ok, the Republicans took the House. Media worldwide are busy analyzing the consequences of this national shake-up. Yet some of most interesting trends can be found in the less publicized election results on local and state level.

Take the ballot measures in Oklahoma. Apart from voting for the Senate, House and Governor (all but one House seat overwhelming victories for the Republicans), voters were asked to give their opinion on no less than 11 specific proposals. And they did. The people of Oklahoma voted against mandated health care (64.7%), in favour of making English the language of official state actions (75.5%) and to forbid use of international law or sharia law in state courts (aka the “Save our State” amendment) (70.0%).

So this is what “taking back the country” looks like: trying very hard to keep out any federal or foreign influences. What could be consequences? If states can indeed reject the federal health care bill, which is still an open debate, many poor Oklahomans will likely lose their insurance, again. Making English the official language of state actions will make it more difficult for non-English (read Spanish) speakers to access government services. And prohibiting courts from looking “to the legal precepts of other nations or cultures” will not only complicate the work of judges, it might also deter international business from entering the state, as it creates uncertainty about the enforceability of international contracts or judgments of foreign courts and tribunals.

Some other states demonstrated similar tendencies. In Kansas, voters found it necessary to guarantee the right to bear arms (88.6%). Arizona joined the protest against mandated health care (55.4%). On the other hand, the rally against “Obamacare” seems not to have been successful in Colorado (with 88% of the votes counted, 52.8% voted against prevention of mandated health care). Hopefully, these remain local outbursts of paranoia – listening to the ads and speeches of Republican victors last night, they might not be.

 

Global governance from a cold climate


It’s GA week, the one time a year that New York truly becomes the centre of the world: all the world’s leaders flock to the city to take the floor at the United Nations General Assembly. After Barack Obama, Mahmoud Ahmadinejad and Robert Mugabe, the lame-duck premier of the Netherlands also put in his two cents. Rather than rallying for the Israel-Palestine conflict, lambasting international capitalism or blaming Western sanctions for the dire state of its people, Mr. Balkenende spoke on the safe issue of UN reform.

Or rather, he called for an entire global governance overhaul, stretching from the international financial institutions to the criminal courts and from human rights bodies to Security Council reform.  While this issue might be less abhorrent and delusional than 9/11 denial, it is at least as predictable. Balkenende repeated the usual mantra: the UN is dead, long live the organization we can’t do without.  His criticisms were not unjustified, yet were also easily made. And although he made a few concrete suggestions for reform, his overall statement remained general and vague.

This seems to be one of the main problems in the discussions on UN reform: while many agree something needs to be done, the agenda is so long that it is difficult to decide where to begin. Also, issues get blurred easily. For example, Balkenende made a case for the International Criminal Court in The Hague, yet the Court is not part of the UN system (granted, the Security Council does appear in arts. 13(b) and 16 of the Court’s Statute). Moreover, it is easy to conflate the bureaucratic inefficiencies of the UN Secretariat with the political predicaments of a 192-head decision-making body. Even more problematic, though probably inevitable, is to base calls for reform on political arguments: Balkenende saw the need for Security Council reform in the Council’s failure to blame North Korea for the sinking of a South Korean naval vessel.

His most interesting comment came with regard to this last point: Security Council reform should not only open the world’s most significant forum for the new big states, but also for the smaller nations “that, as troop-supplying countries or as interested parties in a particular region, should have the right to speak.” I’m curious how this would translate into actual SC membership: Pakistan and Bangladesh contribute most troops to UN peace-keeping missions, but I’m not sure whether Mr. Balkenende meant to refer to these states. Too bad that he followed this with a tacky Churchill quote: “the price for greatness is responsibility.”

Balkenende’s point was worth making, though I wonder how many diplomats were actually listening – illustrating the weakness of a UN GA statement. The UN abides, in one way or another. After all, the experience of sharing a room with people from every single state in the world remains unbeatable.

The statement can be found here