Archive for March, 2011

The Vancouver Declaration: the “absolute prohibition of an absolute evil”

Posted on: March 30th, 2011 by Ernie Regehr

The international community has long understood nuclear disarmament as a daunting security and political challenge, but it has been unforgivably slow in fully facing the profound legal questions raised by the possession and threatened use of nuclear weapons. Now, a new “Vancouver Declaration” brings clarity and urgency to the issue through a succinct articulation of the legal principles and laws that make nuclear disarmament not only an urgent political objective and moral imperative, but also an unambiguous legal requirement.  

The Vancouver Declaration,[i] the joint initiative of The Simons Foundation of Vancouver and the International Association of Lawyers Against Nuclear Arms, provides the kinds of detail and specifics that bring both clarity and urgency to our understanding of the ways in which nuclear weapons violate fundamental and well-established global legal principles. In the process, the declaration helps the international disarmament community to understand that “the law has a pivotal role to play in their elimination.”

The Vancouver Declaration has been endorsed by some of the most distinguished global experts in international law, notably: Christopher G. Weeramantry, former Vice President of the International Court of Justice (ICJ) and current President of IALANA; Mohammed Bedjaoui, who was ICJ President in 1996 when it handed down its advisory opinion on nuclear weapons; Louise Doswald-Beck, Professor of International Law, Graduate Institute of International and Development Studies, Geneva, and co-author of a major International Committee of the Red Cross study of international humanitarian law; Ved Nanda, Evans University Professor, Nanda Center for International and Comparative Law, University of Denver Sturm College of Law.

Noted disarmament experts to sign the declaration include Jayantha Dhanapala, former UN Under-Secretary-General for Disarmament Affairs; and Gareth Evans, QC, former Foreign Minister of Australia who recently served as Co-Chair of the International Commission on Nuclear Non-proliferation and Disarmament.[ii]

The statement confirms that all weapons of mass destruction “are, by definition, contrary to the fundamental rules of international humanitarian law forbidding the infliction of indiscriminate harm and unnecessary suffering.” That judgement, it goes on to say, applies especially to nuclear weapons because of “their uncontrollable blast, heat, and radiation effects.”

The statement concludes: “An ‘absolute evil,’ as the President of the ICJ called nuclear weapons, requires an absolute prohibition.”

The declaration includes an especially helpful annex that reviews “the law of nuclear weapons.” The declaration and annex are available here. Some excerpts from the Annex and Declaration follow:

From the Annex:

“Use of nuclear weapons in response to a prior nuclear attack cannot be justified as a reprisal. The immunity of non-combatants to attack in all circumstances is codified in widely ratified Geneva treaty law and in the Rome Statute of the International Criminal Court, which provides inter alia that an attack directed against a civilian population is a crime against humanity.

“That nuclear weapons have not been detonated in war since World War II contributes to the formation of a customary prohibition on use. Further to this end, in 2010 the United States declared that “it is in the US interest and that of all other nations that the nearly 65-year record of nuclear non-use be extended forever,” and Presidents Obama and Singh also jointly stated their support for “strengthening the six decade-old international norm of non-use of nuclear weapons.”
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“Threat as well as use of nuclear weapons is barred by law. As the ICJ made clear, it is unlawful to threaten an attack if the attack itself would be unlawful. This rule renders unlawful two types of threat: specific signals of intent to use nuclear weapons if demands, whether lawful or not, are not met; and general policies (“deterrence”) declaring a readiness to resort to nuclear weapons when vital interests are at stake. The two types come together in standing doctrines and capabilities of nuclear attack, pre-emptive or responsive, in rapid reaction to an imminent or actual nuclear attack.

“The unlawfulness of threat and use of nuclear weapons reinforces the norm of non-possession. The NPT prohibits acquisition of nuclear weapons by the vast majority of states, and there is a universal obligation, declared by the ICJ and based in the NPT and other law, of achieving their elimination through good-faith negotiation. It cannot be lawful to continue indefinitely to possess weapons which are unlawful to use or threaten to use, are already banned for most states, and are subject to an obligation of elimination.

“Ongoing possession by a few countries of weapons whose threat or use is contrary to humanitarian law undermines that law, which is essential to limiting the effects of armed conflicts, large and small, around the world. Together with the two-tier systems of the NPT and the UN Security Council, such a discriminatory approach erodes international law more generally; its rules should apply equally to all states. And reliance on “deterrence” as an international security mechanism is far removed from the world envisaged by the UN Charter in which threat or use of force is the exception, not the rule.”

Back to the Declaration

“The ICJ’s declaration that nuclear weapons are subject to international humanitarian law was affirmed by the 2010 Nuclear Non-Proliferation Treaty (NPT) Review Conference. In its Final Document approved by all participating states, including the nuclear-weapon states, the Conference ‘expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons, and reaffirms the need for all states at all times to comply with applicable international law, including international humanitarian law.’

eregehr@uwaterloo.ca

Notes

[i] Available on the website of The Simons Foundation: http://www.thesimonsfoundation.ca/highlights/experts-declare-nuclear-weapons-contrary-international-humanitarian-law.

[ii] The full list of initial signatories can be viewed at: http://www.thesimonsfoundation.ca/resources/vancouver-declaration-law%E2%80%99s-imperative-urgent-achievement-nuclear-weapon-free-world.

Intervention or War in Libya?

Posted on: March 24th, 2011 by Ernie Regehr

The 2001 “responsibility to protect” report of the International Commission on Intervention and State Sovereignty (ICISS)[i] made a clear distinction between military protection operations and war.  

With the first wave of attacks on Libyan military installations, following the UN Security Council’s unprecedented and welcome vote to authorize international action to protect vulnerable civilians in Libya,[ii] the pundits were already asking about what “the real” objectives and complaining about the lack of definition in the resolution.

But the Security Council’s action is straightforward. The objective is unambiguous – “to protect civilians and civilian populated areas under threat of attack.” The objective is not to overthrow the government of Libya, it is not only to establish a no-fly zone; it is to “protect” people who cannot protect themselves from attacks.

The resolution also calls for a ceasefire. A ceasefire with the Gadhafi regime still in control in Tripoli is a not the nightmare scenario that some commentators have suggested; rather a real ceasefire would mean civilians were not being attacked and it would present a critical opportunity for diplomacy. Some political leaders have insisted that Mr. Gadhafi must go – they are free to voice that preference, and many who favour democracy will agree, but the Security Council resolution does not mandate them to pursue that end.

If the current situation lacks clarity, that needs to be understood as an acknowledgement of reality rather than as a complaint against the Security Council. Civilians generally don’t need the protection of the international community in situations of clarity, or that are predictable and uncomplicated. The 2001 ICISS report anticipated this very uncertainty, assuming it to be endemic to protection operations. It anticipated that there would be “differences in objectives…in discussions over the ‘exit strategy,’ with some partners emphasizing the need to address the underlying problems, and others focusing on the earliest possible withdrawal.” The report also predicted that it would not be able to determine in advance how an intervention would finally play out: “Unexpected challenges are almost certain to arise, and the results are almost always different from what was envisaged at the outset” (p.59).

There was and still is no clarity on what the impact or consequences of the military attacks will be. Whether the international forces have been measured or excessive is certainly open to debate, and how effective they will be in stopping attacks on civilians is also not yet clear. What is clear is that until now the military action taken has been well short, and properly so, of a “war” on the Gadhafi regime.

One of the hardest things for weapons-laden Presidents and Generals to accept is that their military might does not confer on them the prerogative to pick winners and losers or to distinguish between “good guys” and “bad guys.” Such distinctions may be politically comforting, but rarely are they a true reflection of reality. Enough is known about the Gadhafi regime to know that it is not credibly in the “good guy” category, but there is not enough known about the opposition groups to know where they fit or the kind of regime that they would like to establish. All that can be said with some confidence is that it is the Libyan people who have to be given the opportunity to make the choices they want to make – and the current focus of the international forces is to try to allow them to make that choice without the threat of civilians being attacked.

Thus the objective is to prevent mass assaults on civilians and to reach a ceasefire. It is not to “win.” It is in that sense that the intervention in Libya to date is not a war and should not become a war. A “war” is the resort to military action for the purpose of determining a final outcome. In a war, political process is set aside and outcomes are to be decided by dint of force. Military action short of war is action that is not designed to determine political outcomes. It is not designed to circumvent politics; instead it is designed to make politics possible. It is designed to create conditions that allow for political processes to take place and through them determine political outcomes.

Success for the military intervention in Libya will be the prevention of further attacks on civilians and the creation of an opportunity for Libyans to seek political accommodation and politically determine the future of their country.

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That is wise advice. It reinforces the essential fact that the international coalition has no mandate to engineer Libya’s future. The international community has a role to play in ensuring that Libyans have an opportunity to plan their own future without suffering massive assaults and without becoming victims of crimes against humanity.

The Arab League and the African Union should both be particularly actively engaged in trying to bring the Libyan parties together in a governance arrangement that allows for a credible and participatory planning for the future.

The International Criminal Court, in a separate process, will presumably move forward in efforts to bring alleged perpetrators of crimes against humanity to justice.

If there is no possibility of protecting civilians without all-out war and regime change, then the intervention itself must be questioned. All-out war for regime change has not shown itself, from Kosovo to Iraq to Afghanistan, to create environments of safety for civilians. Under the fog of war many thousands of civilians are killed and hundreds of thousands are invariably driven from their homes. That kind of action has not been mandated by the UN.

eregehr@uwaterloo.ca

Notes

[i] The Responsibility To Protect, Report of the International Commission on Intervention and State Sovereignty. 2001. http://www.iciss.ca/pdf/Commission-Report.pdf.

 [ii] United Nations Security Council Resolution 1973 [S/RES/1973 (2011)], 17 March 2011. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/268/39/PDF/N1126839.pdf?OpenElement.

Worst-case scenarios and the F-35

Posted on: March 16th, 2011 by Ernie Regehr

It’s not surprising that F-35 briefings by officials in the Department of National Defence (DND) point to growing dangers in a threatening world – that’s their job. Nor is it surprising that DND wants the most advanced fighter aircraft money can buy – it’s been that way since the Avro Arrow. Those are  understandable impulses, but how do you convert them into good security policy? At least it’s not too late to ask the question.

Among several interesting findings in the Parliamentary Budget Officer’s report[i] on the likely costs of the F-35 fighter aircraft is the unambiguous statement that, despite the Government’s announcement of the purchase, no contract has been signed, no legal obligation to buy it exists, and no financial penalty or other costs would be incurred if the decision to buy was reversed. There is therefore no reason not to revisit the mission and requirements and to consider other options.

The primary mission set out by the Government is, as it has been since the 1950s, to patrol Canadian airspace so that, together with sea and land forces, security forces can “be aware of anything going on in or approaching [Canadian] territory.” Beyond that, the forces are tasked to deter threats and respond to contingencies, in Canada and North America.

Internationally, the mission is to contribute to international peace and security and the stated requirements are open-ended: “This will require the Canadian Forces to have the necessary capabilities to make a meaningful contribution across the full spectrum of international operations [the same phrase used by the Liberal Defence Policy statement of 2005],[ii] from humanitarian assistance to stabilization operations to combat.”[iii]

And it is in imagining potential combat environments that worst-case thinking is given free rein. Combat scenarios pitch Canadian fighter aircraft against an array of state-of-the-art air defence systems as well as the very latest in fifth generation fighters – Russia’s new version being exhibit number one of the kind of thing Canadian fighters must be prepared to face.[iv]

To that are added warnings of land-attack cruise missiles (LACM). The US Air Force says, for example, that “the cruise missile threat to US forces will increase over the next decade. At least nine foreign countries will be involved in LACM production during the next decade, and several of the LACM producers will make their missiles available for export.” Among them are Russia, China, India, and Pakistan[v] – and so the argument is that they could spread and could potentially be fired from off-shore aircraft at targets in Canada and other theatres of operation, with very sophisticated fighter aircraft a primary defence.

Such scenarios, which officials set out in much greater detail, in turn lead to a list of what DND calls “High Level Mandatory Capabilities,” a series of operational characteristics or capabilities that it says the next fighter aircraft must possess to meet all contingencies. There are at least eleven such features, eight of which, says DND, can be met by “fourth generation aircraft,” like the current CF-18:

  • Range: A specific range is not mentioned, but it “must be capable of flying long distances” without air-to-air refuelling;
  • Air-to-air refuelling: In-flight refuelling is nevertheless required to extend that range in certain instances;
  • Speed: Again, no specifics, except to say that it must be capable of intercepting other fighter and bomber aircraft;
  • Endurance: Must be capable of “combat air patrol” within “a range of geographical locations”;
  • Deployable: Similarly it must be capable of being deployed globally “in a full range of geographic, environmental, climatic and threat conditions”;
  • Intelligence, surveillance and reconnaissance: The new fighter is to have “superior” capability in each of these “during and following the deployment of weapons”;
  • Weapons: It must be capable of firing a “range of air-to-air and air-to-surface weapons in all weather conditions, day and night, in threatening and non-threatening environments”;
  • Growth potential: It must be capable of receiving upgrades to enhance operation capabilities, as well as survivability and interoperability.

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But there are three additional characteristics, says DND, which can be met only by fifth generation fighters, i.e. the F-35:

  • Survivability: “The aircraft must be capable of defending itself and its crew by employing a range of self-defence technologies and minimizing the risk of detection, engagement and damage in threatening environments” – meaning stealth.
  • Interoperability: “The aircraft must be capable of effectively operating in joint (land, sea and aerospace) and combined environments with Canada’s allies.”
  • Sensors and Data Fusion: “The aircraft must be capable of accurately detecting, tracking, identifying, prioritizing, engaging and assessing a range of air-to-air and air-to-surface contacts in all weather conditions, day and night, in permissive and non-permissive environments.”

So, there we have the constructed context – an expansive statement of threat and an ambitious definition of requirements. It is the job of security planners to prepare for the unforeseen, but to get a true picture of risk, threat needs to be tempered by probability. And to get a true picture of need, requirements need to be balanced by competing calls on resources.

So, how probable are the threats? What is the likelihood that Canada will or should be drawn into foreign high density combat environments against the most advanced of military capabilities? One way to answer that question is to ask how often that has happened in the past 30 years (during the life of the CF-18s) – and the answer is never. In fact, fighter aircraft are rarely deployed abroad by Canada, not because they haven’t been available, but because fighter aircraft have little utility in expeditionary peace support operations. Indeed, Canada’s CF-18 fighters, have been deployed beyond Canada’s borders on only four occasions: 1) 26 were deployed to the 1991 Gulf War; 18 to the 1999 NATO operations in Serbia/Kosovo; in 1997 six CF-18s did a three-month tour out of Aviano, Italy to conduct air patrols over Bosnia in support of NATO ground forces and to protect airborne warning and control aircraft; and in June 1998 six CF-18s went to Aviano to support peacekeeping forces in Bosnia.[vi] In none of those instances did they face sophisticated air defence capabilities or fighter aircraft [nor is that the case in Libya today (27 March 2011)].

What is the likelihood of Canada facing attacks in North America by the most advanced military capabilities? It certainly didn’t happened in the past 30 years, and the likelihood of it happening in the foreseeable future is even less – given that those dazzlingly effective fifth generation Russian fighters are now on our side. The primary airborne threat we do face comes largely in the form of small civilian aircraft carrying contraband. In effect, the day-to-day activity of NORAD, the Canada-US organization that monitors the air approaches to Canada, is to lend aid to the civil authorities in their drug interdiction efforts. Similarly, the more extensive operations related to the Olympic and the G8-G20 meetings were also assistance to civil authorities.

What are the opportunity costs of buying aircraft at a minimum of $150 million per copy, plus twice that much to operate them for 30 years?[vii] Prudent security planning ought at least to ask what peacebuilding capabilities and diplomatic resources could be financed, even by the equivalent of the cost difference between fourth generation and fifth generation fighter aircraft.

As argued in this space before,[viii] ongoing monitoring of Canadian airspace is certainly essential, as is the capacity to physically confront and intercept isolated intruders. But a wealth of experience tells us that the threats to and from within our national airspace can be met with a reliable surveillance and modest interception capability.

The current Government’s preference for “fifth generation” capability does not translate automatically into need. Domestic surveillance and air defence notably do not require stealth or other advanced capabilities. Internationally, Canada is in a position to decide what kinds of missions to pursue – indeed it must be highly selective since we obviously can’t do everything. There are many other non-military and military ways for Canada to make significant contributions to international peace and security.

At the very least, we need a thorough debate – and the report of the Parliamentary Budget Office confirms that it’s not too late. 

eregehr@uwaterloo.ca

Notes

[i] An Estimate of the Fiscal Impact of Canada’s Proposed Acquisition of the F-35 Lightning II Joint Strike Fighter (March 2011).  http://www2.parl.gc.ca/sites/pbo-dpb/index.aspx?Language=E.

[ii] “A Role of Pride and Influence in the World: Defence,” Department of National Defence, 2005, p. 26.

[iii] Canada First Defence Strategy, Department of National Defence, Ottawa. http://www.forces.gc.ca/site/pri/first-premier/index-eng.asp.

[iv] Steve Gutterman,“New Russian stealth fighter makes first flight,” Reuters, Moscow, 29 January 2010. http://www.reuters.com/article/2010/01/29/us-russia-fighter-idUSTRE60S0UW20100129.

 [v] “Ballistic and Cruise Missile Threat,” National Air and Space Intelligence Center, Wright-Patterson Air Force Base, 2009. Available at: http://www.fas.org/programs/ssp/nukes/NASIC2009.pdf.

 [vi] As documented by Dan Middlemiss in “A Military in Support of Canadian Foreign Policy: Some Fundamental Considerations,” Centre For Foreign Policy Studies, Dalhousie University, Halifax, Nova. http://www.cdfai.org/PDF/A%20Military%20In%20Support%20of%20Canadian%20Foreign%20Policy%20-%20Considerations.pdf.

 [vii] An Estimate of the Fiscal Impact of Canada’s Proposed Acquisition of the F-35 Lightning II Joint Strike Fighter (March 2011).  http://www2.parl.gc.ca/sites/pbo-dpb/index.aspx?Language=E.

 [viii] http://disarmingconflict.ca/2010/10/14/the-f-35-canada%e2%80%99s-air-defence-needs-compared-with-what/.

The Gang of Four on Nuclear Deterrence

Posted on: March 12th, 2011 by Ernie Regehr

Having written several times in support of efforts toward a world without nuclear weapons, four once prominent leaders in US security affairs – George Shultz, William Perry, Henry Kissinger, and Sam Nunn – have now turned their attention to deterrence.

This “gang of four,” as they’ve become known, first appeared together in the pages of the Wall Street Journal in January 2007, where they shocked the world, but in a good way, with a strong message in support of the basic goal of a world without nuclear weapons: 

“Reassertion of the vision of a world free of nuclear weapons and practical measures toward achieving that goal would be, and would be perceived as, a bold initiative consistent with America’s moral heritage. The effort could have a profoundly positive impact on the security of future generations. Without the bold vision, the actions will not be perceived as fair or urgent. Without the actions, the vision will not be perceived as realistic or possible.”[i]

Over the years they have repeated and elaborated on that message, and this week they focused in on the need to maintain nuclear deterrence while the international community reshapes security relationships and paradigms and while it pursues the final elimination of nuclear weapons:

“[A]s long as nuclear weapons exist, America must retain a safe, secure and reliable nuclear stockpile primarily to deter a nuclear attack and to reassure our allies through extended deterrence. There is an inherent limit to U.S. and Russian nuclear reductions if other nuclear weapon states build up their inventories or if new nuclear powers emerge.”[ii]

This straightforward affirmation of deterrence is a serious disappointment to many who had celebrated the conversion of these four security potentates into nuclear abolitionists, and rightly so. It surely is an acute form of political and imaginative bankruptcy when, having concluded that absolutely no use of a nuclear weapon could ever be justified, we still find it necessary to assert that global stability requires us to threaten to do what must never be done.

Furthermore, the term “reliable nuclear stockpile” is now the preferred euphemism in American security discourse for the “modernization” of nuclear weapons – so it seems as if Messers Shultz, Kissinger, Perry, and Nunn have taken rather a giant step backwards.

But that is not an entirely fair charge. Their assertion that as long as anyone else has nuclear weapons the US is likely to retain them is, like it or not, a basic reality – and will so unless there is a rather dramatic change in the US political/security environment. Some Republicans already descry President Obama’s current nuclear disarmament initiatives as the emasculation of America. If other states, like India and Pakistan, continue to increase their arsenals, or if new nuclear weapon powers emerge, say Iran, we can expect that virtually all mainstream political support for continued reductions to the American arsenal, never mind its elimination, will disappear.

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They also call for the development of positive security assurances among states:

“Progress must be made through a joint enterprise among nations, recognizing the need for greater cooperation, transparency and verification to create the global political environment for stability and enhanced mutual security.”

In fact, the transformation of the international security order is a powerful theme for them: “A world without nuclear weapons will not simply be today’s world minus nuclear weapons.” Nuclear deterrence thus will remain, not a necessary presence, but an unfortunate and likely presence until that transformation becomes into clearer focus.

 eregehr@uwaterloo.ca

Notes

[i] George P. Shultz, William J. Perry, Henry A. Kissinger and Sam Nunn, The Wall Street Journal, January 4, 2007. http://www.2020visioncampaign.org/pages/336.

[ii] George P. Shultz, William J. Perry, Henry A. Kissinger and Sam Nunn, “Deterrence in the Age of Nuclear Proliferation: The doctrine of mutual assured destruction is obsolete in the post-Cold War era..,” the Wall Street Journal, 7 March 2011. http://online.wsj.com/article/SB10001424052748703300904576178760530169414.html.