Seminar series restarts today

TODAY: Vicky Honeyman, ‘International Policy from Brown to Cameron’, Social Science Building Room 11.13, 4-5.30, 1 February 2011. Further details of this semester’s seminar series at http://www.polis.leeds.ac.uk/about/events/

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British Academy seminar series (semester 2)

The British Academy funded Seminar Series on British Foreign Policy after Iraq will continue at the University of Leeds this semester.  The next seminar is:
 
01 February, 4 – 5:30pm 11.13 Social Sciences Building  Vicky Honeyman (University of Leeds) “British International Policy from Brown to Cameron”. 

Forthcoming seminars include:

15 February, 4 – 5:30pm 11.13 Social Sciences Building Tim Oliver (Royal Military Academy Sandhurst) ‘The Liberal Democrats and the Coalition’s Foreign and Defence Policy.’

29 February 4 – 5:30pm 11.13 Social Sciences Building Rhiannon Vickers (University of Sheffield) ‘What Happened to the ‘End to Intervention’? Is Cameron the new Blair?’

14 March 4-5.30pm 11.13 Social Sciences Building Ruth Blakeley (University of Kent) ‘The Evolution of the Global System of Rendition and Secret Detention’
 
25 April 4-5.30pm 11.13 Social Sciences Building  Judi Atkins (University of Leeds) ‘A Renewed Social Democracy for an “Age of Internationalism”: An Interpretivist Account of New Labour’s Foreign Policy’.
 
 
 
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Britain’s Secret War. Newsnight follow up

I came across this today.  Perhaps Britain’s War was not as secret as Newsnight claimed.

Oral Evidence Taken Before the House of Commons Defence Committee, 27 April, 2011.

Q28Mr Brazier: Secretary of State, we have already provided the Libyan opposition with body armour and communications equipment. We and the French have now provided a small number of officers as advisers. Presumably you are satisfied that that falls within the provisions of Resolution 1973. Is that the first step towards directly arming the opposition, and would that fall within the current UN Resolutions?

Dr Fox: No, it is not a first step. We have been careful that this is mentoring, not training. As I said, that comes inside the legal advice we get to make sure that we are always very safely inside Resolution 1973. Our mentoring role is to ensure that the opposition forces are able to organise themselves better, that their logistics are better and the communications are better. We believe that that is vital to their stated role and their ability to help protect the civilian population better. So it is not a first step, nor is it intended to be.

I suggested in my previous post that there was seemingly a sliding scale of what assistance was considered lawful.  It seems Fox was drawing a line here between “mentoring” and “training”.

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“Britain’s secret war in Libya.” Newsnight and the UN mandate

Last night Newsnight reported that British special forces had been on the ground during the Libyan operation.  It was set up as a possible breach of the UN mandate, which excluded in Resolution 1973 (2011) ‘a foreign occupation force of any form on any part of Libyan territory’.  The report was used to suggest that the UK had engaged in an illegal use of force.  This implication was developed by the studio guest Nabila Ramdani.  She was not opposed to a humanitarian intervention but argued that the coalition had used a mandate of that kind to disguise political interference in the affairs of a sovereign Arab nation.  The legitimacy of the uprising in Libya was thus ‘absolutely tainted’.  Rory Stewart MP provided the counter-argument.  This implied that we should not be surprised at the evidence presented in the report (indeed the prospect was raised in a House of Commons library report in April) and special forces on the ground could not be interpreted as a breach of the mandate, which contained a reference to the scale of any deployment.  A few special forces do not make ‘a foreign occupation force’.  This was the argument put by the government at the time.  See for instance the references in the above report.  See also this response by the Armed Services Minister, Nick Harvey to the question by John Baron MP on 24 May 2011 (Hansard, col.783), which is a response to the use of attack helicopters rather than special forces but illustrates where the line of legality was drawn.

Mr John Baron (Basildon and Billericay) (Con): Whether or not we deploy attack helicopters, the fact that a key NATO ally has represents, in my view at least, a significant escalation in this conflict and reinforces the point that regime change has been the objective of our intervention. Given the air strikes and this latest news, at what point does the Minister believe that our actions on the ground will cross the line as regards UN resolution 1973?

Nick Harvey: My hon. Friend refers to operations on the ground and asks at what point they would cross UNSCR 1973. What was specifically prohibited was a landing and occupying force and I do not see that one can in any way compare the use of attack helicopters to take on moving targets with a landing and occupying force. We are talking about two completely different things.

The issue might look different if we consider UN Security Council 1970 (2011), which ruled out ‘assistance related to military activities’.  It decided that

“all members shall immediately take the necessary measures to prevent the direct and indirect supply, sale or transfer to the Libyan Arab Jamahiriya …of arms and related material of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance related to military activities or the provision, maintenance or use of any arms and related material, including the provision of armed mercenary personnel whether or not originating in their territories”

This did not apply to supplies of non-lethal equipment meant for humanitarian or protective use and other arms approved by a sanctions committee. 

There was some speculation that this embargo did not prevent assistance to the rebels.  For instance, Malcolm Rifkind is cited in the above HoC Library report (p.6) as equating the “Libyan Arab Jamahiriya” with the Gaddafi regime rather than the territory of Libya.  Cameron replied on the 14 March by acknowledging that this was not an opinion shared by all lawyers. 

This has echoes of the debate on the legality of the Iraq invasion.  The argument that a second resolution was needed for the invasion to be legal was, as the Attorney General put it, only the ‘safest’ argument.  The implication of course was that the second resolution argument was not the only way the government could find legal cover for the invasion.  There was, in that instance, the ‘revived authority’ argument.  I can only speculate, but Cameron’s answer would suggest that the government had two legal opinions, one arguing that the safest course of action was to not to arm or assist the rebels, another arguing that the embargo related only to the Gaddafi regime a la Rifkind’s suggestion.

There is another aspect to this question. It has to do with the question of whether 1973 overrode 1970.  On the 29 March Secretary of State Clinton said “It is our interpretation that 1973 amended or overrode the absolute prohibition on arms to anyone in Libya.” And on the 30 March David Cameron told Parliament (Hansard Col.333) “The legal position is clear that the arms embargo applies to the whole territory of Libya. But at the same time UNSCR 1973 allows all necessary measures to protect civilians and civilian-populated areas… We do not rule it out but we have not taken the decision to do so.”  See Marko Milanovic’s post at EJIL-talk for discussion around this point.

Now, the Newsnight report stated that the French and Qatari’s had supplied the rebels with weapons and Stewart this time did not cite the available legal arguments (that the 1970 didn’t apply to the rebels, or that 1973 overrode 1970s total embargo) to defend their actions.  He seemingly backed away from the action of these allies, insisting that the UK could not be responsible for the French and Qatari actions, something Ramdani contested.  This backing away from the French/Qatari decision to supply arms also appears in the written answer Lord Howell gave to Baroness Tonge on 19 July (2011: Col.WA276) He noted that the French ‘did not consult in advance with the UK Government over their decision to supply some weapons along with other essential supplies to the Libyan Opposition in the Jebel Nafusa resisting attacks by the Qadhafi regime’, but that UN resolutions ‘allow in certain limited circumstances weapons to be provided to the Libyan Opposition’.  This it seems to me suggests that the while the UK government did not regard the supply of arms to the rebels to be illegal it was not, in its opinion, necessarily the safest legal course to take.  It might also suggest that the government thought it was safe legally but not something they necessarily agreed with politically.

I sympathise with Ramdani but I tend to agree with Stewart.  I don’t think Newsnight’s confirmation (if that’s what it is) that UK special forces were on the ground can be understood as a breach of the mandate when we consider 1973’s exclusion of a ‘foreign occupation force’.  But a question remains whether it can be classed as “other assistance related to military activities” banned under 1970.  Even if it is understood in these terms, it does not necessarily mean a breach of the mandate because, as noted above, there are arguments that enabled the international coalition to assist the rebels in various forms.  There was possibly a sliding scale used to assess legality, from an occupation force which was a no-no (convenient because that was a political no-no as well); to arming the rebels which was risky; to military advisers, communication equipment and body armour which was a yes because it was closer the ‘protection of civilians’ mandate.   

I also tend to agree with Stewart and don’t think the presence of special forces on the ground would have escalated the level of violence.  The presence of special forces on the ground did not mean the mission had shifted to regime change.  That, arguably, was the mission even without special ground forces.  In fact, it is possible that the deployment of these forces was necessary to limit the civilian casualties of airstrikes and would have been necessary even in a limited intervention to protect Benghazi. 

That still does not make the pursuit of regime change legitimate.  Like I say, I sympathise with Ramdani and western states must take into account the growing concern that R2P is being used politically, but there is a practical issue she and other humanitarian interventionists have to face up to.  Had the international forces limited their operations to the defence of civilians directly threatened in for instance Benghazi, or had they failed to assist the rebels in their transition into a credible fighting force, then the violence would in all likelihood have been prolonged.  This is the dilemma at the heart of civilian protection, which is articulated nicely by Bellamy and Williams in International Affairs.  

One might still argue that even then this did not give the international coalition the right to pursue regime change under the cover of a civilian protection mandate. But that possibly misses the point.  For the international coalition, regime change was a means of protecting civilians.  If that was a misinterpretation of the UN mandate then the onus was on Russia or someone else holding that opinion to bring the matter back the Security Council.

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“Hitting the Target?” Workshop at Surrey.

“Hitting the Target?” How New Capabilities Are Shaping Contemporary International Intervention (12-13 July 2012) cii – the Centre for International Intervention, University of Surrey, UK Paper proposal deadline: Friday 3 February 2012. Notification by end February 2012.

Abstracts are invited for a two day multidisciplinary workshop at cii – the Centre for International Intervention at the University of Surrey – on 12 and 13 July 2012. The workshop’s objective is to explore how new selective precision strike capabilities available to military and intelligence forces are shaping approaches to international intervention. The workshop will provide a forum for dialogue between different academic disciplines, as well as between academia and policy-makers/practitioners. Hence papers addressing the subject from behavioural, ethical, legal and politico/military perspectives – or a combination of these perspectives – are particularly welcome. The organisers are also keen to explore these issues from the perspective of those on the receiving end of intervention as well as those who carry it out. Confirmed speakers at the workshop include: Mr Geoff Loane, Head of Mission, ICRC Mission in the UK; Dr Jamie Shea, Deputy Assistant Secretary-General, NATO. Participation at the workshop is limited to 60 people. Accommodation at reasonable rates is available on the University campus. We are not able to offer bursaries for travel and accommodation costs.

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GTMO’s 10th Anniversary: the war on terror in its second decade (v)

Yesterday marked the 10th anniversary of the detention facilities at Guantanamo Bay.  A total of 779 different persons have been detained since they opened in January 2002.  The various camps were at their most crowded in May 2003.  A total of 680 detainees were being held at that time.  From that point on the number began to fall.  The interagency task force set up by President Obama in January 2009 reviewed 242 cases and it recommended the release, transfer or trial of the majority of these. Obama’s task force was set up with a view to closing the camps within one year.  As everyone knows that deadline has long gone. 171 individuals remain in the camps today. 

Among those are 89 detainees who have been approved for transfer.  This is perhaps the most shocking aspect of the present situation.  The first habeas petition was presented to the courts shortly after the camps opened and the issue slowly worked its way through the Courts until the Supreme Court ruled in 2008 in Boumediene that the detainees had a Constitutional right to appeal against their detention.  Since then the Courts have ordered the release of certain detainees but in some cases, such as those of the remaining Uighurs, a concern for their human rights stops them being repatriated. Yet Congress has denied funds to transfer any detainees to the mainland (most recently in section 1026 of the National Defense Authorization Act for 2012), and indeed the Appeals Court has upheld the argument that the political branches had ‘exclusive power’ to decide which non-Americans could enter the country (Kiyemba v. Obama 563 US (2011)). This leaves the possibility of transfer to other states.  But the administration and Congress remain concerned that certain foreign governments will not keep close tabs on those it releases.  And indeed other foreign governments are unlikely to take these detainees if the US itself is unwilling to transfer them to its mainland.  There are then many obstacles, even for those the administration accepts need not be in Guantanamo.

Of course, not all detainees have been approved for transfer.  The political/diplomatic problem over the transfer and resettlement of detainees is in fact somewhat marginal to the bigger issue, which is the Obama administration’s insistence that it can hold detainees in what it calls ‘prolonged detention’.  Even if Congress allocated funding to transfer the detainees to the mainland the administration would still insist on detaining some of them without trial in a supermax prison (“Gitmo North”).  Of the 242 cases Obama’s task force reviewed, 48 fell into this category because they were too dangerous to release and could not be put on trial because the evidence against them was inadmissible.  The legal authority for this is the Authorization to Use Military Force (AUMF), which was passed by Congress in September 2001 and reaffirmed in the latest NDAA.  The courts have upheld this in the post-Boumediene habeas litigation, which of course doesn’t always result an order for release.  Indeed, commentators are now concluding that the effects of Boumediene are not that significant.  They focus their attention on the Court of Appeals, in particular its October 2011 decision in the Latif case.   The New York Times offers a nice summary of the case and the concern it raises:

The power of the [Boumediene] ruling … has been eviscerated by the Court of Appeals for the District of Columbia Circuit. The appellate court’s wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.  

The Supreme Court must reject this willful disregard of its decision in Boumediene v. Bush, and it can do so by reviewing the case of Adnan Farhan Abd Al Latif, a Yemeni citizen imprisoned at Guantánamo Bay since 2002. … The appellate court improperly replaced the trial court’s factual findings with its own factual judgments. It also unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate: the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted.

It is undisputed that Mr. Latif was in a car accident in Yemen in 1994 and sustained head injuries. In 2001, he went to Pakistan to seek free medical treatment, and eventually travelled to Kabul to find a Yemeni man who had promised to help him. He was arrested near the border between Pakistan and Afghanistan and transferred to Guantánamo Bay, where he has been imprisoned without a trial. The government contends that Mr. Latif was recruited by an Al Qaeda operative and fought with the Taliban.

The federal trial judge found that the government’s evidence did not sufficiently support its contention, that incriminating evidence was not corroborated and that Mr. Latif had a plausible alternative explanation for his travels.

The appeals court reversed that decision, arguing that the government’s intelligence report on the Latif case should have been given “a presumption of regularity” and that unless there is “clear evidence to the contrary,” trial judges must presume that this kind of report is accurate. But as the strong dissent by Judge David Tatel explains, there is no reason to make such an assumption about the report, which was “produced in the fog of war, by a clandestine method that we know almost nothing about.”

In ruling on 15 habeas cases since mid-2010, the appellate court has made the standard of review toothless, and its views have affected lower court rulings. Since July 2010, district judges have denied 10 habeas petitions in Guantánamo cases and granted none, compared with 22 habeas petitions granted and 15 denied in the two years before that.

The designation of terrorist suspects as unlawful enemy combatants and the militarization of law enforcement is exceptional among liberal nations.  The state of that exception ten years from the opening of Guantanamo appears strong.  The President’s rhetoric and initial promises offered some the hope that the US would once more observe liberal norms, and this was renewed, albeit briefly, when he threatened to veto the NDAA.  Whether the NDAA exacerbates the threat to civil liberties or merely consolidates the threat that was already there with the AUMF is being debated (see this post at Opinio Juris by Marty Lederman and Steve Vladeck as a way in).  But it is probable that the Obama administration would not have wanted to exercise its veto for fear of being portrayed as soft on terrorism in an election year. This says a lot about the state of political opinion.

So what it the British response to this?  There is of course a limit to what it can do but that is not an excuse for silence.  And it appears the government has been working “very hard” to secure the release of the one remaining British citizen.  But in many respects the British obligation goes beyond securing the rights of its citizens.  Indeed, the detention facility at Guantanamo Bay is in many ways a symptom of a much wider problem, which is the consolidation of Bush’s war paradigm under Obama.  This does not just underpin detention policy.  As I have noted elsewhere, it also underpins the policy of prosecution by military commission and targeted killings.  Evidence that British politicians are concerned about the latter can be found in this report by the House of Commons library.

There has been debate within the administration about what actually constitutes ‘the battlefield’.  Is it territorially limited to the Af/Pak region or does it follow specific individuals (AQ, Taliban and associated forces) wherever they may be.  The AUMF and NDAA for 2012 suggest it is the latter, as does the targeting of Awlaki in Yemen.  But then there has also been a debate within the administration about what it means to be AQ.  Does one have to be “part of”, “support” or “substantially support”?   This is technical stuff.  The fact we are looking at this level to judge the state of the American exception is, however, evidence that the war paradigm is well and truly consolidated in American national security policy.

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The left, the right and Syria

Nick Cohen’s new year’s day call for the West to militarily intervene in Syria prompts an end to the break I took from blogging in December.  This break was forced in part by the amendments I was making to my book, which will be out this year, as well as the write -up of the paper I am presenting at the University of Kent later this month; and yes, I did take a holiday.

Anyway, Cohen’s argument (and the 319 comments it has attracted) is an interesting resource for my current project because it provides a snapshot of the left’s take on military intervention and distinguishes parts of it from the Cameron’s liberal conservatism, while allying other parts of it to the neoconservatism of the Henry Jackson society.

I’d put Cohen’s argument on the line that divides neoconservatives from those Tony Smith (A Pact with the Devil) called “neoliberals”, Benjamin Miller (Millennium 2010) “offensive liberals” and Anthony Burke, (Ethics and International Affairs 2005) “new internationalists”.  Neocons and Neolibs share a commitment to regime change and democracy promotion and both have faith in western military force being able to advance that agenda.  As the title of Smith’s book implies, these liberals made a pact with neoconservatives in the Bush administration in order to overthrow Saddam Hussein’s regime in Iraq; and, as many of the comments on this piece suggest, Cohen is seemingly willing to repeat history by advocating that the left support the Henry Jackson Society’s proposal for military intervention in Syria.

The structure of his argument is familiar to anyone who followed neoliberal/neoconservative argument for war against Iraq: create moral outrage by recounting allegations of human rights abuses; dismiss the multilateral efforts to peacefully resolve the conflict as unreasonable – Cohen does this for Syria by noting the observer mission is headed by a Sudanese supporter of Bashir who is wanted by the ICC; dismiss the multilateral efforts to peacefully resolve the conflict as a failure; pre-empt leftist criticism of imperialism by focusing on Arab calls for intervention and insisting that we should not ‘black box’ the “Arab world”; make the consequentialist argument that the costs of inaction outweigh the costs of action.

What, I suggest, distinguishes the neoliberal from the neoconservative on the use of force is the position they take on the role the United Nations Security Council plays in the decision to use force.  The neocon position on this is well known.  Indeed, the Henry Jackson Society seemingly dismisses the relevance of the UN.  It

[b]elieves that only modern liberal democratic states are truly legitimate, and that the political or human rights pronouncements of any international or regional organisation which admits undemocratic states lack the legitimacy to which they would be entitled if all their members were democracies.

This kind of normative attack on the UN lent support to the realists like of Cheney and Rumsfeld, who wanted to go to war against Iraq without first going to the UN.  Yet there were other realists like Powell, who argued that it was in the US interest to go to the UN, and neoliberals like Blair who shared the neocon postion but tried to square it with a “doctrine of international community” by insisting on the UN route. This was a necessity in terms of the domestic and ideological constraints on Blair.  But the question of whether one tries to square a moral imperative to use force, with the legal imperative to act according to a consensus at the UN Security Council, does separate the neoliberal from the neoconservative (see my BJPIR article for elaboration).  Cohen doesn’t mention the UN Security Council, which suggest that he either reduces the “duty” to use military force to a question of morality and can justify illegal interventions; or he insists international law has no moral relevance.

It is also interesting that the question of consensus at the Security Council does not really figure in the comments section either.  It should be said that the comments are overwhelmingly against Cohen.  One might characterise them in terms of what I would call “defensive liberalism”.  The question of the UN mandate might be absent, but there is still concern about by-passing the multilateral efforts that are presently in place, notably the Arab League’s observer mission.  For another example of the importance of these efforts see Jonathan Steele’s emphasis on dialogue in this article on 26th December. 

The importance of giving the Arab League a chance was usually accompanied in the responses to Cohen by the claim that western nations lacked moral authority to intervene despite their democratic credentials, and that Syrian self-determination was still important.  See for instance the comment by Jochedbed1

It’s true that the Arab League … is worse than useless. But “we” have so many, and so many dishonourable, ulterior motives in the Middle East that it is likely we’ll only make things worse in Syria. Not for us, for the Syrians, who have had quite enough foreign powers messing with them, thank you very much – the Ottoman Turks, the French…we (in the shape of NATO?) don’t have to stick our oar in as well. This conflict is for the locals to sort out – and I’m saying that as a person who knows enough Syrians to gauge the Janus-faced but sadistic Assad tyranny, father and son.

There are also important responses to Cohen’s charge that those who defend inaction have blood on their hands.  RichJames, for instance, notes that there are forms of action short of military intervention, such as opening borders to Syrian refugees.  These complement the many comments that argue Cohen’s consequentialism draws the wrong conclusion.  Many cite Iraq to argue that military intervention by western nations will make the situation worse, for the Syrian people themselves.  This is often complemented by the charge that Cohen’s position is not sufficiently informed by area expertise.

This last point reveals a different kind of policy coalition across left and right.  The argument that the international community has a responsibility to protect the victims of repressive regimes but that military action might not always be appropriate, defines Prime Minister Cameron’s ‘liberal conservatism’. It has it seems led the UK government to the conclusion that where military action could protect in Libya it could not in Syria. 

There is also what might be called a traditional “realist conservatism” in the comments on Cohen’s article. This insists that the British government’s first duty is to advance the interests of the British people and that dictates a policy of non-intervention. It should be said, however, that most engage Cohen on the question of whether intervention is in the interests of peace and democracy in Syria, not how the UK might advance and protect its particular interests.

Finally, there is the familiar charge of liberal imperialism based on the socially constructed distinctions between the “civilised western” and “uncivilised Arab” worlds; as well as a demeaning kind of paternalism that is conveyed in Cohen’s opening line – “The Syrian Revolution is a motherless child” (seeDaniel873).  Merowe too dismisses the Henry Jackson Society report as “nothing more than White Man’s Burden 2.0”.

The lack of discussion about whether military intervention could command a legal mandate is interesting.  It suggests that the first consideration on whether to use military force is a political and moral one, and that the Security Council’s position will be assessed accordingly.  That is, those arguing against Cohen would use the lack of consensus at the Security Council to support their own conclusions on the substantive political/moral questions.  Would they be willing to change their position if Cohen and others managed to persuade the Security Council to vote for military action?  I doubt it. They would probably argue the outcome of that particular dialogue reached an unreasonable conclusion i.e. the use of force.  If this is the case, then it suggests these critics would be adopting a kind of reverse neoconservatism.  That is, they put little store in the UN process unless it confirms their position. Is an openness to be persuaded a principle of a centre-left foreign policy?  It would seem to me that it is if the claim to be acting on behalf of ‘international community’ is at the core of the centre-left’s approach.

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