Iran and the Bomb: Why the UN Security Council Can’t Get It Done
April 18th, 2010 • No Comments
Russia and China have both backed Iran internationally, in part because Iran “has vociferously defended the Palestinians, but it has stood by as the Russians have slaughtered Chechens and the Chinese have suppressed Muslim Uighurs.[2]” Britain and Russia have both held Iran as an area of interest in the past. France still believes it holds the clout of the ancien regime, however since the collapse of its empire, France has paled in comparison to the other great powers, and only now as a key member of the EU has regained some of its former clout. The United States held Iran as a key ally in the Middle East from the departure of the British to the 1979 Revolution, and after the Iran-Iraq war and the Iran-Contra Affair of the 1980’s the US-Iranian relationship is that of enemies at best, Iran claiming America is the Great Satan and the US under the Bush Administration placing Iran at the centre of the ‘Axis of Evil’. The interests of the UN Security Council ought to be taken in account as a whole, but it is important to consider each individual Security Council members interests. The most important thing to keep in mind while discussing nuclear proliferation is that the debate is consigned by two major areas of thought, internationalism which argues for international regimes and laws which will govern the conduct of states and realism, which argues that it is a war of all against all, the actions of individual states is largely governed by realism while the actions of the Security Council as a whole is largely guided by the internationalist conceptions of the Nuclear Non-Proliferation Treaty and the International Atomic Energy Agency.
Russia has throughout its history opposed American expansionism and influence around the world. This occurred most explicitly during the Cold War in opposition to the Marshall Plan and NATO policies. The Cuban Missile Crisis was a high point in this tension, when the accepted construct of ‘backyards’ was threatened by Russia retaliating against American construction of missile sites in Turkey, by supporting the Cuban government in establishing its own nuclear arsenal. Russia’s support for Iran can be viewed in much the same way; it uses Iran as a burr in America’s and the collective West’s side. By supporting Iran, Russia can still hold itself apart and use this support as a leverage on other important issues such as: expansion of the EU and NATO as well as pipeline development for Europe.
The development of nuclear materials has been a matter of great concern to the international community. The Iranian President has made many statements regarding the annihilation of the Israeli state and has hosted a Holocaust denial conference in Iran. The regime of mullahs that came to power after the 1979 Revolution against the American backed Shah has maintained a rigorous support for anti-Western and anti-Israeli forces, under the guise of international Islamism. Now with Tehran beginning to stockpile and refine its fissile materials, “if Iran’s nuclear program continues to progress at its current rate, Tehran could have the nuclear material needed to build a bomb before US President Barack Obama’s current term in office expires.[1]” With this in mind, it is important to take into consideration the actions and interests of the other nuclear powers on the UN Security Council.
China maintains steady trade with Iran, through technology and agricultural trade and the ever-important fact that “Iran is China’s third-largest crude oil supplier.[3]” China has some of the same interests as Russia in regards to the international arena. Both states have been accused by the other members of the Security Council of abuses of their populations, and having their own sphere of influence allows them to avoid the international complications of Western allied states avoiding trade because of fear of irritating Washington. With China importing almost all of its oil, mostly by sea, which is patrolled by the massive United States Navy, oil supply is a major security risk for the Chinese government and people as a whole. With this in mind it is important to understand that securing its own strategic oil reserves is more important than mitigating the development of an Iranian nuclear program, a program which would most probably not target any of China’s strategic assets and strengthen their position against the United States in the international order. Furthermore it is important to recognize that the Chinese government has taken a hands off approach to international trade. Whereas the United States demands complicity with its own ideals and often uses the International Monetary Fund as well as aid packages and military support, as bludgeons to achieve these aims China restricts itself to trade taking a pragmatic look at the international arena.
France holds part of its international clout due to its status as a nuclear power and a former great power. France’s primary interest in avoiding Iranian nuclear power is to avoid the collapse of the Nuclear Non-Proliferation Treaty, which has held the world in a relatively stable state and limited the development of nuclear capabilities throughout much of the world. With Iran developing a nuclear arsenal it may feel that it can act internationally in a way in which it was incapable before, not only inciting violence against Israel through Hamas and Hezbollah but also encouraging violence within Western States based along ethnic and religious lines. France, with a large Algerian Muslim population, must consider this as a serious threat.
Britain has had a historic relationship with Iran, holding it as an area of interest during the Interwar Period, and supporting the Shah alongside America during the early years of the Cold War. Britain is entrenched in Afghanistan and Iraq alongside their American allies. For Iran to establish itself as a nuclear power would increase instability within the region and possibly threaten British forces and economic interests throughout the Middle East. Britain, which wrote the Balfour Declaration in 1917 and distributed it to the international Jewish community, also has a vested interest in supporting Israel, the former Palestine. This support has resulted in a policy, which deems any threat to Israel as a threat to Britain’s interests. Mahmoud Ahmadinejad, President of Iran, continues to threaten Israel with destruction and has stated he would use a nuclear armament for exactly those aims[4].
This is of greatest concern to the United States, who is Israel’s most stalwart ally, providing military and economic support that has allowed Israel to survive in a sea of opposition. If and when Iran develops nuclear capabilities, Israel will most certainly feel threatened and the United States will lend its support. The United States has lost much of its international clout over the last decades. From the Iran-Contra Affair through the Bush Administration and its Executive Order concerning ‘Enhanced Interrogation Techniques’, America has slowly whittled away at its own legitimacy as a moral leader on the international scene. Because of this, being unable to contain Iranian nuclear ambitions would “not spell the end of efforts to halt proliferation in other parts of the world, it would undeniably deal the non-proliferation regime a setback, by demonstrating that the great powers are unable or unwilling to act collectively to stop proliferators.[5]”
Taking into account all 5 members of the Security Council, their disparate interests and their mutual vetoes, it is hard to see the 5 working together to create a concrete plan to mitigate Iranian nuclear ambitions. Iran has ignored the complaints of the IAEA, but so have states such as Israel and Pakistan. The development of one more nuclear state may simply be that, “nuclear empowerment could well thwart Iran’s hegemonic ambitions,[6]” by driving its neighbours into the support of the American defensive umbrella. Russia and China may also eventually be destabilized or threatened by Iran’s strident statements and blatant Islamism. Although the interests of the individual Security Council members may be different in the long term, a world with more nuclear weapons it can be agreed is not necessarily a safer one. In the long term, the proliferation of nuclear arms to unstable nation states with vitriolic leaderships will fundamentally destabilize the advantages, which the great powers have supported for themselves. A nuclear Iran would inevitably result in a hair trigger conflict much like India and Pakistan’s, the world would have to be on constant alert for nuclear assault not by two state actors but four. Overall it is in the interest of the 5 to work towards their own agendas in the short term, but as those powers, which steer the global agenda, they have a duty to ensure safety for all nations.
[1] Lindsay, James M. Takeyh, Ray. Foreign Affairs (March/April 2010). After Iran Gets the Bomb. P. 33
[2] Lindsay, Takeyh. P. 35
[3] Al-Jazeera. Vow to safeguard nuclear materials. http://english.aljazeera.net/news/americas/2010/04/20104141262263182.html
[4] Der Speigel. Ahmadinejad threatens Israel with Destruction. http://www.spiegel.de/international/world/0,1518,484958,00.html
[5] Lindsay, Takeyh. P. 41
[6] Lindsay, Takeyh. P. 37
Analysis of the International Criminal Court
April 18th, 2010 • No Comments
In the wake of the Second World War following the Nuremburg and Tokyo trials, the international community came to realize that it was necessary for a standing International Criminal Court to exist. This court would act as both a deterrent and a mechanism for punishment if atrocities approaching those of the Second World War were ever committed again. Due to the rise of the spectre of the Cold War and the stalemate that occurred in the United Nations Security Council between the United States and the USSR, the hope for a body that might preserve humanitarian law was postponed.
In order to fully understand the International Criminal court it is necessary to discuss the signatories and the most significant non-ratifiers as well as the courts overall jurisdiction. Furthermore I intend to outline the most important sections of The Rome Statute of the International Criminal Court, which established the International Criminal Court. These sections of course will concern themselves with the constitution of the ICC as a body. Along with jurisdiction, location, the State Parties and the constitution of the ICC, I will outline the current cases and warrants before the ICC.
In order for the ICC to come to fruition it was necessary for the USSR and the United States to end the Cold War. Without an end to that conflict, either power would use their veto on the UN Security Council to end any motion, which would result in the creation of an International Criminal Court. This cessation came about in the early 1990’s with the fall of the USSR and the birth of the Russian Federation. Added to this end of history[1] the culmination of the events in Rwanda, Sierra Leone, the Congo and the former Yugoslavia led to the international community realizing that the time had come for the institution of an International Criminal Court.
As a result of these conflicts and the atrocities that accompanied them, a diplomatic conference was held in Rome on the 17th of July, 1998[2]. At this conference The Rome Statute of the International Criminal Court was written and “as of 21 July 2009, 110 countries are States Parties to the Rome Statute of the International Criminal Court. Out of them 30 are African States, 14 are Asian States, 17 are from Eastern Europe, 24 are from Latin American and Caribbean States, and 25 are from Western European and other States[3].” Some of the world’s most powerful nations have vocally opposed the court, and although some of this opposition has signed the Rome Statute of the International Criminal Court, none of them have ratified it.
These nations in opposition to the ICC include 3 of the members of the permanent Security Council of the United Nations: the United States of America, the Russian Federation and the People’s Republic of China as well as other prominent nuclear states including India and Pakistan. One reasonable argument for this is that many of these nations engage in practices, which may be construed as war crimes. Because of this their leaders wish to avoid signing onto the statute. Another argument put forward by the Americans is that the ICC will compromise the sovereignty of respective nation-states, by superseding their legal jurisdiction and systems and therefore nations ought to abstain from joining. This is a near identical argument to the one put forward by the United States in regards to the International Court of Justice (not to be confused with the ICC).
The largest counter-argument to this rebuff is the fact that within the ICC’s founding document, the court’s jurisdiction is limited to those cases which the respective nation puts forward after its own investigations or the failure thereof. Furthermore, the United Nations Security Council can suggest any case to the ICC, even though the ICC is at arms length from the UN. The United States with its Security Council veto would be able to halt any motion that involved it or its citizens in the ICC. The most important issue, which might come before the court, involving members of the Security Council is the matter of the approval of Enhanced Interrogation Techniques for the CIA by an Executive Order by US President George W. Bush. These tactics have been determined by many in the international community and the NGO Physicians for Human Rights to be forms of torture which fall into the ICC’s jurisdiction under Part II Article 5 Section 1 Subsections b and c: Crimes against humanity and War crimes respectively[4].
This brings us to a discussion of the ICC’s jurisdiction in full. In regards to the ICC’s physical jurisdiction it is situated in The Hague, the Netherlands, although it is capable of sitting “elsewhere, whenever it considers it desirable, as provided in” The Rome Statute of the International Criminal Court[5] through an agreement with the respective state to become a Host State. Furthermore it may relocate to any location in order to try a case and holds field offices in nations, which are involved in cases that the ICC is trying. Article 4 and 5 limit the judicial jurisdiction of the ICC. Article 4 reads as follows:
1.The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.
2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.
Furthermore the ICC is restricted to specific trials as follows:
1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
This jurisdiction is limited by an international legal discrepancy regarding the act of aggression and resolved in the following article:
2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.[6]
Until such a time that the crime of aggression can be agreed upon by the General Assembly of the United Nations as well as the Security Council there won’t be any cases brought before the ICC concerning this international legal issue. Part of the reason for this is that by defining the crime of aggression states would most certainly shackle themselves to a model of international relations, which denied any opportunity for a pre-emptive strike, something extolled in the Bush Doctrine of international relations and a complimentary doctrine to the Powell Doctrine, which espouses a disproportionate use of force in order to end conflict as rapidly as possible. Without this strike against other nations, especially in the case of arms races, pre-emptive attacks would be largely mitigated, which are a critical part of war theory in international relations. Most states that accept war theory, as an integral part of international relations, are unwilling to accept that in the case of their instigating aggression they would be charged. Furthermore aggression can be interpreted in many different ways, blockades, threat of force, and trade embargoes can and have, all been interpreted as forms of aggression.
Another jurisdictional limitation binding the ICC is that of temporal jurisdiction. The ICC may not try a case that occurred prior to The Rome Statute of the International Criminal Court coming into effect, 1 July 2002. This limitation is based upon the legal principle of ratione temporis, that the law cannot act ‘backwards’ in time. This quite obviously prevents cases being brought forward ad infinitum from events prior to the law. Furthermore it would be impossible for a law to be broken or a court to rule on that law when the law did not exist during the time of the supposed breach. Also and very importantly the second section of the act reads:
“If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.[7]”
However, the ICC may act on any case that is brought to its attention by member states, even those states that are not party to the ICC but have engaged a Party State of the ICC. This is pursuant to Article 4, Section 2:
“The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.[8]”
The constitution of the ICC itself is made of five bodies: The Assembly of State Parties, The Presidency, The Judicial Divisions, The Office of the Prosecutor and the Registry. Each of these bodies serves an important purpose within the machinations of the International Criminal Court.
The Assembly of State Parties is the body of State Parties, who have signed on to and ratified the Rome Statute of the International Criminal Court. There is one representative from each member state to speak on their behalf to The Assembly of State Parties. The general rule of the ICC is to attempt to achieve consensus on all matters regarding the court. The Assembly of State Parties controls many of the issues involving the ICC’s governance, including:
(b) Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court;
(d) Consider and decide the budget for the Court;[9]
The Assembly elects the 18 judges of the court as well as the ICC’s President and Vice-Presidents.
The 18 judges are elected along a geographically representative principal, and no two judges from the same nation may hold seats at the same time. These elections along with terms of office and precedence are governed by: The Rome Statute of the International Criminal Court and The Regulations of the Court 26 May 2004 as well as the amendments put into effect 18 December 2007. The judges are, “chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.[10]” The judges’ terms last 9 years. If for any reason a judge must leave their office, tradition, but not mandate, dictates that another judge is elected to fill their position until the term is finished from the same country.
These 18 judges are divided into three courts, the Pre-Trial Division, the Trial Division and the Appeals Division. Each of these courts is presided over by 6 judges, each headed by either the President or one of the two Vice-Presidents. Each of these courts function according to the following:
2. (a) The judicial functions of the Court shall be carried out in each division by Chambers.
(b) (i) The Appeals Chamber shall be composed of all the judges of the Appeals Division;
(ii) The functions of the Trial Chamber shall be carried out by three judges of the Trial Division;
(iii) The functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge of that division in accordance with this Statute and the Rules of Procedure and Evidence;[11]
The Pre-Trial division deals with issues concerning warrants, admissibility of trials and the administration of initial charges against individuals being laid., the Trial division rules upon the cases after individuals have been brought to trial and the Appeals division deals with any appeals brought before the court after a ruling has been issued.
The Prosecutor or any member involved in a trial may request a judge remove themselves from trial in “any case in which his or her impartiality might reasonably be doubted on any ground.[12]” Any such request must be judged on by an absolute majority of the other judges.
The Office of the Prosecutor conducts both investigations and prosecutions for the ICC. The Prosecutor is the head of the department and is assisted by two Deputy Prosecutors. The Office of the Prosecutor is independent from all other branches of the ICC, and “shall not seek or act on instructions from any external source.[13]” The Prosecutor and deputy Prosecutors must be of different nations according to Article 42 Section 2. In regards to the choice of officers an absolute majority on secret ballots in The Assembly of Member States elects the Prosecutor; the Deputy Prosecutors are elected in a similar manner from a list put forward by the Prosecutor to The Assembly of Member States.[14] The President may excuse the Prosecutor or the Deputy Prosecutors from any case if petitioned by them.[15] In regards to disqualification of any of the Deputy Prosecutors or the Prosecutor only the Appeals Chamber shall rule on the matter. This issue is dealt with in Article 42 Section 8:
8. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber.
(a) The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor or a Deputy Prosecutor on the grounds set out in this article;
(b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments on the matter.
This leaves the Registry. The Registry is the bureaucratic organ of the ICC, it governs the everyday goings on of the court, and is not directly involved in the legal proceedings of the court. The Registry is headed by the Registrar, who is the chief administrator of the ICC and exercises their “functions under the authority of the President of the Court.[16]” The Registrar may request a Deputy Registrar should the need arise. Both the appointment of the Registrar and the Deputy Registrar are decided by a secret ballot of the 18 judges, requiring an absolute majority, and taking into account any suggestion by The Assembly of Member States.[17] The Registrar is also responsible for establishing the Victims and Witness Unit, which “shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses.[18]” To assist the Office of the Registrar as well as the offices above mentioned, numerous staff shall be appointed as per the guidance of Article 44.
After coming to an understanding of the jurisdiction of the court and the constitution of its bodies we must understand the courses and warrants before the court. These cases and warrants involve four African states: Uganda, Democratic Republic of the Congo, the Central African Republic and Sudan; specifically regarding Darfur.
Uganda has citizens before the court who are members of The Lord’s Resistance Army, this case was suggested by the Ugandan government, a State Party. Members of this group have been accused of committing war crimes and crimes against humanity. The Lord’s Resistance Army has stated that they will end violence against the government if the Ugandan government withdraws its suggestion for a trial before the ICC. The Ugandan government has entertained the idea of instituting a national tribunal that would meet international standards to try the accused instead. The members accused are: Joseph Kony (Fugitive), Vincent Otti (believed to be deceased as of 2007), Raska Lukwiya (Deceased 12 August 2006), Okhot Odiambo (Fugitive), Dominic Ongwen (Fugitive). These individuals have been accused under Articles 7 and 8 of The Rome Statute of the International Criminal Court.
Democratic Republic of the Congo has four former members of government who have been accused before the ICC due to the events of March 2004. These individuals are: Thomas Lubanga (in ICC custody, trial began 26th January 2009), Germain Katanga (in ICC custody, trial began 24th November 2009), Mathieu Ngudjolo Chui (in ICC custody, trial began 24th November 2009) and Bosco Ntaganda (Fugitive).
Central African Republic has one former member of government, Jean-Pierre Bemba. After his arrest warrant was signed Bemba was found in Brussels the following day. Bemba, a former Vice-President of the Central African Republic, was transferred to ICC custody on the 3rd of July 2008. His trial begins on the 27th of April 2010. His trial is in regards to both War Crimes and Crimes against humanity.
Sudan, unlike the other states concerned had citizens suggested to the ICC by the UN Security Council. These accusations are in regards specifically to the conflict in Darfur. The citizens accused before the ICC are: Ahmed Haroun (Fugitive), Ali Kushayb (Fugitive), Omar al-Bashir (Fugitive) and Bahr Idriss Abu Garda who unlike any other in the courts history is appearing before the court voluntarily. His confirmation of charges hearing began 12th of October 2009.
These individuals will be tried before the court to the fullest extent of its power, which includes:
1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) Aterm of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
2. In addition to imprisonment, the Court may order:
(a) Afine under the criteria provided for in the Rules of Procedure and Evidence;
(b) Aforfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.[19]
Following a ruling, the charged may appeal the courts decision as per Articles 81, 82, 83 and 84. In regards to the victims of these crimes a Trust is established by the court which may pay out compensation for the damages done as per Article 79 of The Rome Statute of the International Criminal Court.
The International Criminal Court has yet to demonstrate that it, as an international judicial body, has teeth. Despite this the ICC has already apprehended and proceeded with trial on 5 of the 12 individuals who still have active warrants on them. Only a resolution to the trials currently before the ICC will determine whether this court has will be able to live up to its mandate “to guarantee lasting respect for international justice.[20]” This is a large expectation of a body that does not have a majority of the world’s population signed onto it, and 5 of the world’s nuclear states refusing to sign on or ratify The Rome Statute. If the ICC is to survive as a respected body, it will require the sanction and support of the world’s Great Powers, otherwise, the ICC like many international institutions before it will risk becoming outdated, ineffectual and under utilized in some of the major issues of the 21st Century.
[1] Fukuyama, Francis. The End of History. The National Interest. 1989.
[2] Rome Statute of the International Criminal Court. 17th July, 1998. The International Criminal Court.
[3] International Criminal Court Website. http://www.icc-cpi.int/Menus/ASP/states+parties/. Mar. 23, 2010.
[4] Physicians for Human Rights. Leave No Marks Enhanced Interrogation Techniques and the Risk of Criminality. August 2007.
[5] Rome Statute of the International Criminal Court. Part I, Art. 3, Sec. 1-3.
[6] The Rome Statute of the International Criminal Court. Part II Art. 5, Sec. 1, 2 Sub. (1. a, b, c, d).
[7] The Rome Statute of the International Criminal Court. Art. 11, Sec. 2.
[8] The Rome Statute of the International Criminal Court. Art. 4, Sec. 2.
[9] The Rome Statute of the International Criminal Court. Art. 112, Sec. 2, Sub. (b, d).
[10] The Rome Statute of the International Criminal Court. Art. 36, Sec. 3, Sub. (a).
[11] The Rome Statute of the International Criminal Court. Art. 39, Sec. 2, Sub. (a, b, c).
[12] The Rome Statute of the International Criminal Court. Art. 41, Sec. 2, Sub. (a, b, c).
[13] The Rome Statute of the International Criminal Court. Art. 42, Sec. 1.
[14] The Rome Statute of the International Criminal Court. Art. 42, Sec. 4.
[15] The Rome Statute of the International Criminal Court. Art. 42, Sec. 6.
[16] The Rome Statute of the International Criminal Court. Art. 43, Sec. 2.
[17] The Rome Statute of the International Criminal Court. Art. 43, Sec. 4.
[18] The Rome Statute of the International Criminal Court. Art. 43, Sec. 6.
[19] The Rome Statute of the International Criminal Court. Art. 77, Sec 1, 2.
[20] The Rome Statute of the International Criminal Court. Preamble.
Some States Ban Stem Cell Research
March 16th, 2009 • No Comments
When earlier this month it was first rumoured that President Barack Obama could overturn a Bush administration policy banning embryonic stem cell research, there was the expected bipartisan uproar at the notion. Now, just one week after the ban was lifted, Oklahoma politician Mike Reynolds has put forward a bill to make the research illegal in his state. Continue reading ‘Some States Ban Stem Cell Research.’
