How to Handle North Korea

How to Handle North Korea The Wall Street Journal May 28, 2010 Friday

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HEADLINE: How to Handle North Korea

BYLINE: By Richard N. Haass

BODY:


The North Korean sinking of the Cheonan has left both the South Korean and U.S. governments with a dilemma. There is the strategic and political need to respond to this unprovoked aggression that killed 46 sailors. At the same time, there is little left to take away from an already poor and isolated North Korea. Moreover, there is the real concern that any proportional -- i.e., military -- response to the attack could trigger a costly, all-out war on the long-divided peninsula.

The administrations of South Korean President Lee Myung-bak and Barack Obama have tried to thread the needle by introducing a series of penalties and criticisms. South Korea has cut off all trade with its neighbor and denied North Korean merchant vessels access to South Korean sea lanes. Diplomats from both countries are busy paving the way for a United Nations Security Council resolution condemning North Korea's aggression and possibly sanctioning it as a result.

Meanwhile, Congress is considering a resolution that would add to the criticism of North Korea. However well-intentioned, it would count for little. If America's elected representatives really want to send a message, they have it in their hands to do so: Pass the Korea-U.S. Free Trade Agreement.

The pact, which makes economic sense for both countries, has been sitting for three years now waiting for congressional action. It is a victim of mostly (although not exclusively) Democratic Party fears that what may make economic sense would hurt politically come November. The Obama administration has not made its passage a legislative priority. But it should be, not simply to create jobs, but to send a much-needed signal of solidarity with an ally at a time of true need.

Even with this action, the problem with the available responses is that they are unlikely to do anything to alter the behavior of the North Korean regime. Efforts to induce or pressure the North into giving up its nuclear weapons and missiles have come to naught. The six party talks designed to bring about denuclearization have not formally met for nearly three years now, and even if they were to reconvene, there is no reason to believe that Pyongyang would give up the weapons it sees as critical to its standing.

So what to do? The next real opportunity to change things for the better is likely to come when North Korea's mercurial tyrant Kim Jong Il departs the scene once and for all time. But positive change will only happen if China acts. If in real estate all that matters is location, location and location, it is only a slight exaggeration to contend that what matters most when it comes to North Korea is China, China and China.

China, however, has been and remains reluctant to use the influence that comes from the fact that the bulk of North Korean trade and energy imports transit Chinese territory and it is China that provides most of Pyongyang's financial links to the outside world. Chinese leaders fear the flood of refugees that would come with North Korean collapse and even more the prospect of a reunified Korean peninsula with its capital in Seoul and lodged squarely within the American strategic orbit.

The good news is that many in China are coming to see North Korea less as an asset and more as the strategic burden that it is. North Korean behavior (such as shown in the sinking of the Cheonan) could easily trigger a war on China's border; North Korean sale of nuclear materials to al Qaeda could trigger an American attack.

This rethinking of what China gets out of its relationship with North Korea may not translate into open Chinese support for a tough resolution at the U.N., but it could well lead to quiet, behind-the-scenes Chinese involvement in North Korea's leadership struggle. China is in a better position than anyone else to increase the odds that Kim Jong Il is succeeded by a reformer who would introduce some market and political changes (call it the Chinese model) and act responsibly towards South Korea and his own citizens.

China has a stake in doing so: to avoid instability on its border, to avoid a crisis that could further roil the region's (and hence China's) economy, and to avoid pressures for nuclear programs in North Korea's neighbors, most notably Japan.

American and South Korean officials need to do more than just point out the risk to their Chinese counterparts of China's current course. They also need to discuss the character of a unified Korea and how one would get there, addressing legitimate Chinese strategic concerns including the questions of non-Korean troop presence and the full denuclearization of the peninsula.

U.S. and South Korean policy should move away from ritualistic calls for resumption of negotiations and toward something far more fundamental: a change in regime in the North that could lead to denuclearization in the short run and Korean reunification over time. In addition, the two governments would be wise to step up their planning for all possible contingencies.

South Korea's president may have signaled an interest in just this on Monday, saying "It is now time for the North Korean regime to change." President Obama should follow suit. There would be no better way to mark this June's 60th anniversary of the Korean war.

---

Mr. Haass is president of the Council on Foreign Relations and author of "War of Necessity, War of Choice: A Memoir of Two Iraq Wars" (Simon & Schuster, 2009).

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NOTES:

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China to make objective, fair judgement on S. Korean warship sinking: Wen

Special Report: Wen Attends Leaders' Meeting of China, Japan, ROK, Visits 4 Asian Nations SEOUL, May 28 (Xinhua) -- Chinese Premier Wen Jiabao said here on Friday that China will make a judgement in an "objective and fair manner" and take its stance on the basis of facts concerning the sinking of a South Korean warship. Wen, who arrived here earlier in the day on a three-day official visit, made the comments during a meeting with South Korean President Lee Myung-bak. He said that China has always stood for maintaining peace and stability on the Korean Peninsula and worked persistently for this end. China always opposes and condemns any acts detrimental to peace and stability on the peninsula, he said. Wen said that as a responsible country, China takes serious note of the results of a joint investigation by South Korea and other countries, as well as the reactions of all parties. Premier Wen urges all parties to keep calm and show restraint, so as to prevent a deterioration of the situation, especially possible clashes in a joint effort to maintain the hard-won peace and stability on the Peninsula. Wen said that all concerned parties should take a long-term perspective, actively promote the process of the six-party talks in a bid to resolve the nuclear issue on the Korean Peninsula and achieve lasting peace and stability on the Peninsula. He said that China hopes the South Korean government will properly handle the warship sinking incident and that China will keep close communication with South Korea on the issue. On March 26, the South Korean naval vessel, Cheonan, with 104 crew members onboard, sank into the waters off the west coast of the Korean Peninsula, killing 46 sailors. On May 20, the South Korean government released the results of a multinational investigation, which concluded that Cheonan was torpedoed by a submarine of the Democratic People's Republic of Korea (DPRK). The DPRK vehemently rejected the accusation and warned that any retaliation would lead to an "all-out" war.

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The Death of the Secondary Boycott Against Israel

Posted: 25 May 2010 12:36 PM PDT

by Roger Alford

At the recent Northwestern Law School conference on the Israeli-Arab Dispute and International Law I had the good fortune to address one of the few bright spots in current Arab-Israeli relations.

Most international law scholars of the Arab-Israeli conflict seem to know little about international trade, and focus almost exclusively on the laws of war in their discussion of Middle East relations. Therefore when I was choosing my topic for discussion, I decided to analyze the current status of the Arab League boycott against Israel. The secondary boycott, of course, involves the blacklisting of any corporation that does business in Israel.

As a result of the secondary boycott, Arab consumers suffered because they did not have access to the most efficient source of goods and services. Israeli investment also suffered because foreign corporations often chose to sell their products to dozens of countries with hundreds of millions of consumers rather invest in one small country with a few million consumers. Third-country corporations were caught in the middle and forced to make hard choices that they should never have been forced to make.

The good news is that in the past fifteen years the secondary boycott against Israel has died a quiet death. According to official reports from the United States, of the twenty-two members of the Arab League boycott, only three countries–Iraq, Libya, and Syria–continue to enforce a secondary boycott. Even then, it appears that only Syria is serious about it. USTR has recently stated that the secondary boycott “has extremely limited practical effect overall on U.S. trade and investment ties with most Arab League countries.” As a practical matter, we are experiencing the death rattle of the secondary boycott against Israel.

One can only speculate about the cause of death, but I would hazard that it has much to do with the legalization of international economic relations. Since the end of the Cold War, thousands of bilateral investment treaties have been signed. Hundreds of those involve Arab countries, with Egypt having signed seventy-nine, Morocco seventy-three, Oman seventy-one, Lebanon forty-nine, Jordan thirty-five, etc. These BITs are unusually significant in that they depoliticize disputes by guaranteeing foreign investors the right to pursue treaty-based investment arbitration. If an investor is blacklisted as a result of the secondary boycott against Israel, then it likely has a viable claim for a BIT violation, such as compensation for conduct tantamount to an expropriation or denial of fair and equitable treatment.

Equally momentous is the binding nature of the WTO rules, which prohibit discriminatory import bans. The Arab League boycott violates WTO rules against MFN treatment and quantitative restrictions. Not surprisingly, none of the twelve Arab League countries that are WTO members enforce a secondary boycott, and only three of them–Kuwait, Saudi Arabia, and the UAE–continue to enforce a primary boycott.

Even the primary boycott is subject to a strong legal challenge before the WTO, but Israel thus far has decided to forego this avenue, concludingthat “the boycott right now is on the defensive as a result of working behind the scenes…. We do not wish to politicize the WTO.” One may take this at face value, or conclude that Israel fears that such a challenge would require the WTO to finally interpret the national security exception, an ambiguous provision that deserves careful interpretation in a less politically-volatile context.

WTO accession talks will continue to create pressure to eliminate the secondary boycott. In its accession talks, for example, Saudi Arabia confirmed that “the application of secondary and tertiary boycotts had been terminated in practice and in law.” Recent WTO decisions involving China’s accession commitments now make clear that those promises are subject to legal enforcement. The three secondary boycott holdouts–Iraq, Libya, and Syria–are all seeking WTO membership, and given the nature of accession talks, one can be sure that termination of the secondary boycott will be a precondition of their membership.

That’s great news for the Arab street. The importance of promoting foreign investment is particularly acute in the Middle East. The Arab world is facing a ticking time-bomb, with approximately 70 percent of its population under twenty-five years old. It desperately needs to find ways for its growing population to contribute to its economy. For most Arab countries, the commitment to strengthen their economies and develop trade relationships has taken precedence over the desire to enforce a secondary boycott against Israel. Almost nine out of ten Arab countries have concluded that the costs of continued enforcement of the secondary boycott outweigh the benefits.

That’s also great news for Israel. It is now enjoying a tremendous influx of foreign investment. The boycott’s greatest risk was always that it would impede direct foreign investment into Israel. That fear no longer animates the discussion. In the same year that Israel was at war with Lebanon, it enjoyed record direct foreign investment of over $13 billion.

What's the Deal With Brazil, Turkey, and Iran?

by David Shorr

May 23, 2010

If it seems like there are a lot of issues embedded in the dueling diplomacy over Iran’s nuclear program, it’s because there are a lot of issues embedded in... Rising powers asserting their influence, the efficacy of sanctions, American fetishes and stubbornness; it’s all here. So I want to draw on some of the excellent commentary and analysis to tackle some of these. Should Brazil and Turkey be welcomed as facilitators or resisted as interlopers? Did they achieve a worthwhile deal? Do sanctions even work? And can this story have a happy ending?

The role played by Brazil and Turkey poses a real dilemma. Many of us have argued the need for help from the emergent powers with just these sort of issues. The inevitable corollary being that they'd assert their influence on their own terms, rather than ours. According to some of this week's commentary, President Lula and Prime Minister Erdogan were sticking their thumbs in America's eyes -- or at least tilting toward the Iranian side of the dispute -- rather than seeking a constructive solution to the problem. Then when the Obama Administration's rebuffed the attempted mediation, critics from the left (e.g.M.J. Rosenberg) said it was being too rigid -- refusing half a loaf will leave it with none.

Were these two key new players working in the right spirit, working the problem rather than merely showboating or seizing a political advantage? I believe so. Here's a quote on President Lula's aims from one of his top aides,Marcel Biato, writing in Americas Quarterly:

President Lula has condemned Iran’s failure to abide by the Nuclear Non Proliferation Treaty. When he hosted President Mahmoud Ahmadinejad in late 2009, he was forthright in expressing concern over Iran’s lack of transparency in dealings with the International Atomic Energy Agency (IAEA). He made it clear that Brazil will only defend Iran’s right to develop nuclear energy for peaceful purposes if it shows good faith in fulfilling its outstanding commitments.

That's singing from the same sheet music, and contrary to the cynics, I see no reason to doubt its sincerity. My quibble is with the execution, not the mission itself; though I do take issue with one key premise. Marcel argues elsewhere in the piece, as have others, that sanctions and confrontation with Iran will only provoke its resistance. Iran's insecurities and suspicions are indeed part of the equation, but there's no way that backing off will induce Tehran to be more responsive. Quite the opposite, Brazil and Turkey were able to reach their deal because of the sword of sanctions hung over Iran's head.

So, does wanting the new powers to take this kind of initiative obligate me to approve of the deal's terms? No, as in any negotiation, a deal has to be judged on its content. On this issue, Judah Grunstein makes a number of smart points, the strongest being:

it's premature to say that the deal is proof of Turkey reaching the "big leagues" in terms of its diplomatic stature. Sometimes just being involved is an accomplishment (although that's usually the case for minor leaguers), and to whatever extent Turkish Prime Minister Recep Tayyip Erdogan managed to gain concessions from Iran, it was a sign of Turkey's influence. But in the big leagues, influence is not measured by getting one party to sign on to a deal that's unacceptable to the other. It's measured by bridging differences to get both sides to sign on, and in the meantime, by getting both sides to abstain from provocative and inflammatory behavior. Turkey's ability to do that will clearly be limited in this case, as witnessed by Terhan's refusal so far to halt 20 percent enrichment and the U.S. decision to press on with U.N. sanctions.

Exactly. And in terms of the process story (the life bread of any true wonk), Josh Rogin tells us that Washington gave the mediators clear signals about the administration's red lines. In addition to Grunstein, RealClearWorld bloggers Kevin Sullivan and Greg Scoblete make further strong arguments for why the warmed-over and half-eaten agreement from last October doesn't cut it. In fact, if we're looking for counterfactuals that acknowledge a potential role for Ankara and Brasilia, a good question is why they didn't come through with a compromise in December or January (oh yeah, the damoclean sanctions threat).

Speaking of sanctions, I'd like to respond to all the skepticism about their efficacy -- particularly the why-is-the-fourth-time-different meme. First off, there is something new about imposing smart sanctions at this point. Remember all those news stories about how the Revolutionary Guard has built an industrial empire in recent years? Perhaps that exposes them to new vulnerabilities.

But the point of sanctions is not to cripple the leadership or create newly intolerable economic conditions. One can concede their limited direct effects and still believe in their value and efficacy. Because the real point of sanctions is a demonstration that a unified international community is staying on their ass, that the trend lines of pressure are not diminishing, irrespective of Tehran's intransigence. (As Greg Scoblete points out, Russia and China probably matter to Iran more than Brazil and Turkey.) The sanctions work when Iranian leaders become convinced non-cooperation isn't worth the hassle.

This also explains the failure of sanctions to work. Because they are instruments of pressure, they have a limited shelf life. Each set of sanctions failed over time as the associated pressure waned. Again, this is why a Brazil-Turkey initiative would have been more helpful in December. The key question about efficacy -- and the entire enterprise -- has to do with keeping the negotiating process on a relatively quick tempo. Does the administration have a game plan of additional requests and incentives to drive this toward a successful outcome?

Which brings me to the final question of a happy end for the current chapter. If Brazil and Turkey still have some diplomatic fight in them, perhaps rather than standing by their unsuccessful bargain, they could induce Iran to a more meaningful one. And if they do, I'll be the first to heap them with praise.

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Brazil's Take on Iran and NPT

Interviewee:	Antonio Ramalho, Professor of International Relations, University of Brasilia
Interviewer:	Bernard Gwertzman, Consulting Editor, CFR.org

May 19, 2010

The successful Brazilian-Turkish effort to get Iran to agree to a deal to send about half of its low-enriched uranium abroad was quickly upstaged by the announcement of a draft resolution for Iran sanctions that had Russia and China's blessing. Brazil wanted to project "political capacity" in the deal it helped craft, says Brazilian international relations expert Antonio Ramalho, who adds that "the very fact that the Iranians have agreed to sign an agreement has already diminished Iran's maneuverability." Ramalho says that Brazil, a late (1998) signatory to the Nuclear Nonproliferation Treaty, debated about whether to sign the NPT but did so to gain access to peaceful nuclear technology.

Why did Brazil take such an active role in working out this nuclear agreement with Iran?

There was one important motivation, which is to project Brazil's political capacity in the world. The Brazilian government has a perception that there have been rearrangements in the international system politically, diplomatically, and economically. Brazil perceives that this allows some room for maneuvering to new powers such as China, India, South Africa, and Brazil. Brazil believes it can provide the international community with diplomatic expertise on the one hand, and help solve conflict through negotiations.

Brazil believes it can play an important role, as a representative of emerging countries, in delivering some solutions that do not depend on the use of force or on the threat of the use of force.

I don't necessarily say that I accept this as "truth," but the Brazilian government has this conviction. Brazil has another conviction, which is that international security cannot be provided without the promotion of an international order that is more equitable than exists today.

What was it in the case of Iran that led the Brazilian government to be so active?

It was, again, the perception of a diplomatic void on the one hand, and the perception of mounting tension over the imposition of new Security Council sanctions. The Brazilian government believes that new and tougher sanctions on Iran would not work. It would only contribute to strengthening Iran's position in the region and strengthening the hardliners within Iranian society and within the Iranian government. They would be able to say that the economic problems they face were due to the sanctions imposed by the international community.

If we impose further sanctions, that will only increase the secrecy in Iran and increase the military orientation of this program.

Brazil is now a member of the Security Council, and it's been involved in these discussions in New York on sanctions. Will the agreement worked out with Turkey and Iran result in tensions between Brazil and the United States?

The Brazilian government believes that new and tougher sanctions on Iran would not work. It would only contribute to strengthening Iran's position in the region and strengthening the hardliners within Iranian society and within the Iranian government.

I don't think so. Turkey is also a member of the Security Council. The perception of the Brazilian government was that there was no longer a possibility of a peaceful way out of this situation involving just the permanent Security Council members and Iran. Brazil believed it was necessary to find an alternative and a creative solution, to take the same agreement that Western countries had discussed with Iran last October, but to change the actors. There is more trust between the Iranian government with both the Turkish and the Brazilian governments, and so the agreement is transformed even though the substance of the agreement has not been changed substantially.

As you know, Brazil would like a permanent seat in the Security Council. There is a common refrain from experts abroad to ask what Brazil has to offer the international community. Brazil does not have nuclear weapons; it does not have a huge armed force. The answer is: What Brazil has to offer is political expertise. Because if you remember well, [Carl von] Clausewitz and all the great strategic thinkers are convinced that it's better to win a battle without having to fight it. So what Brazil offers is not the possibility of using military power or imposing its will, but the possibility of engaging the opponents and turning the Security Council into a more political organization than it is nowadays.

What is Brazil's attitude toward the NPT, which is now having a review conference at the UN? At one time in Brazil's history when the military ran the government, there were apparently secret efforts to develop some kind of nuclear weapon capacity.

What exists is the diplomatic and, again, politically principled position that the NPT is a discretionary treaty. It establishes a difference between countries that are supposedly responsible and can have this nuclear weapons technology, vis-à-vis those who are not considered responsible and would endanger international security if they had the nuclear capacity. Brazil signed the Treaty of Tlatelolco in 1994, which established a nuclear-free zone in Latin America and the Caribbean. We have a unique relationship with Argentina, in fact, which permits experts from Argentina to enter into all nuclear installations in Brazil. Brazil has inserted into its own constitution that its nuclear program is only for peaceful purposes. Last but not least, there is a deep involvement of civilians in the military program that is conducted within the Brazilian Navy. But, as far as I know, Brazil is the sole country in the world that allows the International Atomic Energy Agency (IAEA) to make inspections within its own military facilities.

Was Brazil a latecomer to the NPT treaty?

In 1998, when Brazil signed the NPT treaty, there were arguments for and against. The argument against adhering to the NPT was that Brazil already made its program transparent, but at the same point, it had this principled position which is the one followed by India. Although we know that India had a military program, the Indian government has never agreed to adhere to the NPT [because] it is a discriminatory treaty. In 1998, the majority of the military, as well as many diplomats and experts, [thought] that Brazil should not sign the NPT, based on this argument. It is the tradition of Brazil to fight for a more fair international order that is ruled by institutions and norms [and] that considers states to be equally responsible from the point of view of international law. The argument was that we should not subscribe to a treaty that is discriminatory. This did not mean that Brazil aimed at developing nuclear artifacts or whatever.

There are economic and commercial applications of the nuclear technology, which explains Brazil's refusal to sign the additional protocols.

On the other side of the argument from those who were for signing the NPT was that doing so would lead to a greater access to peaceful nuclear technology. And also that Brazil, Israel, India, and Pakistan were the sole countries that had not signed the NPT. So the concern about being isolated persuaded many of the Brazilian diplomats. Brazil has signed the treaty; it has adhered to the regime. It refuses the "additional protocols."

The additional protocols allows IAEA inspectors to go everywhere they want?

Yes, particularly in terms of having access to technologies that have commercial purposes. The NPT just concerns the amount of uranium that enters and leaves the facilities, while the additional protocols would permit technicians to have access to some technologies that Brazil has developed itself, because it did not have access to foreign technology. So there are economic and commercial applications of the nuclear technology, which explains Brazil's refusal to sign the additional protocols.

You know these things are interconnected, to a certain extent. Brazil's position on its nuclear program is very clear. It is what it is in the Brazilian constitution: We will not use it to develop bombs or any nuclear artifacts. That does not mean that we cannot develop a reactor to be placed into a submarine, which is a military application--but not a military application of nuclear power, but nuclear energy, and that make a huge difference. Close to 95 percent of our foreign trade goes through the sea, and 80 percent of the oil Brazil produces is on the sea. The idea is to have nuclear submarines which are more effective than conventional submarines.

What has been the reaction in Brazil, to the agreement worked out in Iran? There was some criticism of President Luiz Inacio Lula da Silva welcoming Iranian President Mahmoud Ahmadinejad last year, soon after the disputed elections in Iran. Was this regarded as a great achievement for Brazil or is Lula being criticized for it?

Both. I agree with those who are in favor of the agreement, but who are skeptical because they say it's too soon to evaluate the results. It is still too soon to evaluate whether this is going to be a breakthrough for the international community. But from the point of view of Brazil's image abroad, it has been positive already. Because even if it doesn't work, even if all this skepticism about it is correct, Brazil will have taken responsibility for trying to break a dangerous deadlock. If it were not for new initiatives to engage Iran, we would probably go for tougher sanctions, but that would lead to a tougher response from the Iranian government, and this could eventually lead to conflict. So even if it doesn't work, the very fact that the Iranians have agreed to sign an agreement has already diminished Iran's maneuverability, because one month from now if it does not work, Ahmadinejad would be seen as only manipulating Lula and Prime Minister [Recep Tayyip] Erdogan of Turkey. Iran would have lost a positive opinion of countries that favor engagement. And it would be even more isolated than it is now. So in a sense, this has already changed the process.

And what do the critics say?

The critics say that Brazil is too small, that this is an act of vanity based on the idea that he [Lula] can do more than he can. And again, why? Because those people tend to think if you don't have military muscles or economic capacity to press Iran, you will not be able to move the Iranians. But they do not consider that for the Iranians themselves, they want not to be isolated. Although they are right that Brazil does not have a military or economic capacity to sanction and to impose pressure on Iran, Brazil has this political capacity to change the process in such a way to create an opportunity for the Iranians to reorient their place in their region, and to reorient their relations with the international community in a way that would be positive for the Iranians.

Opinion: Do Terrorists Hate Us, or What We're Doing?

May 18, 2010 9:32 AM

In my latest AOL column I make a concerted effort to drive AOL's right-leaning readers into an apocalyptic rage by arguing that in the wake of the Times Square bombing (allegedly perpetrated by Pakistan Taliban terror groups) it's worth remembering that some terrorists hate us not because of who we are . . . but what we do:

(May 17) -- Flying menacingly over northwest Pakistan, U.S. unmanned drones have become the deadliest tool in America's war on terror. While wreaking havoc on al-Qaida's leadership, they have extended the anti-terrorism fight to include al-Qaida's nominal Pakistani Taliban allies, the TTP. So it should come as little surprise that the TTP is now targeting the U.S.

According to Attorney General Eric Holder, the group is suspected of hatching the recently bungled Times Square bombing plot. Suspect Faisal Shahzad has allegedly cited the drone strikes against the Pakistani Taliban as his motivation.

Have U.S. military actions in Pakistan -- including the reported assassination of the TTP leader Baitullah Mehsud last year -- helped to increase the threat of terrorism on American soil?

It's an important question, but there's a good chance it won't be asked. Since Sept. 11, 2001, those who have sought to kill innocent Americans have been portrayed as "evildoers" or "haters of freedom." In the immediate aftermath of 9/11, for example, President George W. Bush spoke to a joint session of Congress and declared that those who attacked America "hate what they see right here in this chamber: a democratically elected government. They hate our freedoms: our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other."

While there's no question that al-Qaida resents Western influence in the Muslim world -- and has yet to make peace with the forces of modernity -- many of its grievances are more specific. It resents the presence of U.S. soldiers near Islamic holy places in Saudi Arabia. It is angered by U.S. support not only for Israel but also for corrupt Arab regimes in Egypt, Saudi Arabia and elsewhere. And it seeks to weaken U.S. influence throughout the Middle East.

It's not that terrorists simply hate American values -- they hate America's foreign policy and its impact on the Muslim world.

This is not to suggest that America's policy choices have been necessarily wrong. There's plenty of justification for them. But there's been very little discussion in the U.S. as to whether these policy choices continue to serve America's interests -- and may in fact be doing more harm than good.

Does unwavering support for Israel hurt our image, particularly in the Arab world? Should the U.S. be pushing countries like Egypt, Jordan or Saudi Arabia toward greater political openness, even if it risks strengthening Islamic political movements? Has the use of military force in Iraq and Afghanistan, to paraphrase former Defense Secretary Donald Rumsfeld, helped to create more, not fewer, terrorists? Finally, would changing any of America's behavior on the world stage leave our country safer?

The tendency among policymakers, legislators and journalists is to not even broach these questions. But only focusing on the inherent "evil" of terrorists provides Americans with an incomplete understanding of the threats they pose.

Along these same lines, current U.S. military efforts in Afghanistan have focused on the importance of weeding out Taliban militants from the Afghan population. Military officials boast about the reduced number of civilians being killed by American arms, ignoring the fact that our very presence in southern Afghanistan helps to inflame the insurgency, plays into the Taliban's anti-occupation rhetoric and almost certainly leads to more civilian casualties.

If, in fact, the Pakistani Taliban is actually responsible for Times Square attack, it raises the question: If the U.S. were not dropping bombs on TTP leaders in northwest Pakistan, what would be the rationale for Pakistani militants -- whose main grievance is with their own government -- to kill New Yorkers?

Earlier this year, an Afghan national named Najibullah Zazi was arrested for plotting to attack the New York subway system. Is it so incomprehensible to imagine that U.S. military actions in Afghanistan may have prompted Zazi to act?

Again, this is not to say that American actions in Afghanistan and Pakistan are necessarily wrong. Attacking al-Qaida leaders who are plotting to kill Americans is certainly appropriate. But if broadening those attacks creates new and greater terrorist threats to the U.S., then perhaps the ends don't justify the means. At the very least, it is a matter worthy of public debate.

When it comes to the war on terrorism, the U.S. likes to portray itself as a benign force in the world: We're innocent bystanders being attacked by terrorists for who we are, not what we do. In that plot line, terrorists are fundamentally irrational and "evil." In reality, they're often rational political actors using what they believe to be their most effective weapon: terror.

A more honest national discussion about terrorism would recognize that America's policies and its broad definition of national interests -- for better or for worse -- can have direct, and often deadly, consequences for the American people. In other words, what we do -- rather than what we are -- matters.

Michael Cohen

IntLawGrrls at ICC Review Conference

osted: 29 May 2010 12:01 AM PDT

(1st in a series of IntLawGrrls' Kampala Conference posts)

The Review Conference of the Rome Statute of the International Criminal Court will open in Kampala, Uganda, this Monday, May 31, and will run until June 11. This is the first Review Conference since the adoption of the Rome Statute in 1998.

As detailed in the provisional work programme, the Review Conference will begin with a plenary, with statements by the current UN Secretary-General, Ban Ki-moon, and the former UN Secretary-General, Kofi Annan. The President of Uganda will also make a statement, as will the President of the ICC’s Assembly of States Parties, the President of the ICC and the ICC’s Prosecutor. These statements will be followed by country statements, including statements by many of the 111 States Parties.

On the evening of June 1, discussions on the subject of IntLawGrrls' year long series, the crime of aggression, begin. So do discussions on the Belgian proposal to amend the war crimes provision to prohibit the use during non-international armed conflict of certain weapons (poison or poisoned weapons; asphyxiating, poisonous or other gases; and bullets which expand or flatten easily in the human body).

On June 2 and 3, there will be a series of stocktaking exercises, evaluating the ICC’s past, current and future impact on victims and affected communities, as well as peace and justice issues, and the application of the ICC’s complementarity and cooperation provisions.

The remainder of the Review Conference will be dedicated to discussions on the crime of aggression, the Belgian proposal, strengthening the enforcement of sentences, and the potential deletion of article 124 (a transitional provision permitting a State to make a declaration excluding the Court’s jurisdiction over war crimes for seven years).

In addition, civil society will hold a wide variety of side-events, taking place in the People’s Space. One that we are very excited about is theWomen’s Court, to be held all day on June 1. It is being organized by the Hague-based nongovernmental organization Women’s Initiatives for Gender Justice. At this Court, women’s rights activists from Uganda, Democratic Republic of the Congo, Central African Republic and Sudan will speak. (image at right courtesy of the Women's Initiatives)

Approximately 2000 state representatives and representatives of nongovernmental and intergovernmental organizations will be in attendance at the Review Conference, including a number of our very own IntLawGrrls. Beth Van Schaack will serve as an academic advisor on the U.S. delegation, and yours truly will serve as an academic advisor on the Canadian delegation. In addition to me, IntLawGrrls Susana SáCouto and Kelly Askin plan to post from Kampala. IntLawGrrls guests/alumnae will also contribute: Margaret deGuzman will post about the stocktaking complementarity discussion, and Brigid Inder, Kate Orlovsky and Katrina Anderson will blog about the Women’s Court and other Women’s Initiatives events. From elsewhere in our world, IntLawGrrl Diane Marie Amann will write "Against aggression," while guests/alumnae Pamela Yates will tell us about the work Skylight Pictures is doing in Kampala, and Carmen Márquez-Carrasco will provide a post about the European Union and the ICC.
More soon from (and about) Kampala ...

An unfortunate detention incentive

Posted: 27 May 2010 02:05 AM PDT

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

In a surprising ruling with remarkably broad implications, the U.S. military has been told that it can seize suspected terrorists anywhere outside the United States, send them to the U.S.-run Bagram detention facility in Afghanistan, and thereby deprive them of the right to challenge their detention in a federal court.

Although the court didn’t address the issue, treating terrorism suspects this way is not supported by the laws of war as interpreted by the U.S. Supreme Court -- that Court has not authorized indefinite detention of individuals seized far from the battlefield.

The unanimous decision in Al Maqaleh v. Gates was issued last week by Judges David B. Sentelle, David S. Tatel, and Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit. The case involves two Yemenis and a Tunisian, one of whom was arrested in Thailand and another in Pakistan, and all of whom were transported to Bagram by U.S. authorities and imprisoned there. Deemed “enemy combatants” when they were seized, they've been at Bagram, without charge or trial, for the past seven years. (Prior IntLawGrrls posts here and here.) (credit for U.S. Army photos made at BTIF, the Bagram Internment Theater Facility)
On its face, the situation of detainees brought to Bagram from outside of Afghanistan would seem to be similar to that of the detainees at Guantánamo Bay, who the Supreme Court in Boumediene v. Bush (2008) ruled do have the right to challenge their detention in a U.S. court.

► Both cases involve imprisoning foreign suspected militants captured abroad and brought to a U.S. military base for indefinite confinement. In Boumediene, the Supreme Court ruled that detainees do have habeas corpus rights because the U.S. has de facto sovereignty over its naval base in Cuba pursuant to a century-old lease. In Maqaleh, the appellate judges acknowledged that the United States appears to have similarly complete control over its Bagram facility in Afghanistan.

► As in Boumediene, the Court of Appeals also acknowledged in Maqaleh that the hearings the U.S. military was giving detainees at Bagram did not constitute due process; in fact, they were even worse than those provided at Guantánamo Bay. Although the hearings have improved over the past year under the Obama administration, the new Detainee Review Board system still doesn’t give Bagram prisoners the right to be represented by a lawyer or even to see the evidence against them. (Now detainees are appointed a “personal representative” who is not a lawyer, and may call witnesses who are “reasonably available” to testify. They still can’t see classified evidence, which may constitute the bulk of the government’s case against them.)

Still, although all this weighed in favor of the detainees’ demand for judicial review, the D.C. appeals court ultimately ruled last Friday that the “practical obstacles” of granting Bagram detainees habeas rights were just too great (p. 16), given that the prisoners are located in an active theater of war halfway across the world.

But should that determine whether the detainees are entitled to due process? Consider these responses:

► As American University Law Professor Steven Vladeck has pointed out, the only reason these detainees were in that theater of war is because the U.S. government had abducted them from other countries and sent them there. The ruling in Maqaleh thus creates a perverse incentive for the U.S. government to move every terror suspect seized anywhere outside the United States to a U.S.-run offshore detention facility, in order to imprison the suspect indefinitely and to evade judicial review.

► As Salon commentator Glenn Greenwald has put it, as a result of Maqaleh,

'the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged.'

If the detainees had been lucky enough to get sent to Gitmo, they might have had a federal court hearing by now.
Meanwhile, it’s not clear that the United States even has the legal authority to continue to detain anyone at Bagram.

The United States argues that its indefinite detention authority stems from the ongoing conflict in Afghanistan. But the war against the Taliban and al Qaeda is not an international armed conflict between nation-states. And there’s no legal authority for detention in a non-international armed conflict such as this one, where Afghanistan has its own domestic laws and criminal justice system. That may be why President Hamid Karzai during his most recent visit to the United States pressed President Obama to turn over the detention facilities to Afghan control as soon as possible.
The Obama administration says it eventually wants to do that.

But it says it doesn’t have enough confidence yet in the integrity and independence of the Afghan justice system to trust that the guilty will actually be imprisoned and the innocent will be allowed to go free. The United States has plans to train judges and lawyers at Bagram and to try to root corruption out of the justice system, at least in national security cases. But that effort has barely begun, and could take years to really have an impact. In the meantime, the U.S. is significantly expanding the prison facility.

Even if the Obama administration eventually does turn over Afghans arrested in Afghanistan to the local authorities, this question remains:

What to do with the rest of the prisoners – the ones who were the subject of the ruling in Maqaleh?

Some military officials want to keep the Bagram prison available for insurgents captured outside Afghan borders. U.S. military leaders in Afghanistan, meanwhile, fear that would inflame local tensions and make Bagram, like Gitmo, another recruiting tool for insurgents. Recent reports of prisoner abuse at Bagram only fuel that concern. But the prison expansion – which is reportedly adding three new detention housing units – suggest that plan has significant support.

International law is apparently not figuring much into these plans. If the laws of war had any say here, captured insurgents would be detained in the countries where they’ve been arrested or allegedly committed crimes. After all, the United States is not supposed to have detention facilities around the world – a point implicitly acknowledged when, upon taking office, President Obama publicly pledged to close most of them – from Guantánamo Bay to the CIA’s secret detention facilities around the world.

Bagram is the one prison he’s wavered on. Unfortunately, by its decision in Maqaleh the U.S. Court of Appeals in Washington has just handed Obama a big incentive to keep it open.