Category Archives: International law

Iranian Sanctions with an Extra Bite

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Saudi Probe Is Not a Job For the U.N.

By David B. Rivkin Jr. and Lee A. Casey

October 24, 2018, in the Wall Street Journal

The murder of Jamal Khashoggi has justly triggered international outrage. Yet calls for a United Nations-led investigation are neither justified nor prudent.

Those urging the U.N. to investigate argue that with so much at stake, no sovereign state can be trusted to conduct a full and fair probe. And there is a potential for bias—by the Saudis, whose officials are implicated; by Turkey, a rival of Riyadh; and by the U.S., the Saudis’ longstanding strategic partner. The same is true of many other states, including Britain, France and Germany, all of which have economic and strategic interests in the region.

But this objection proves too much. There are numerous instances in which countries have been accused of terrible crimes, including torture and extrajudicial killings. The list includes the U.S. and every other permanent member of the Security Council. This standard would disqualify virtually every U.N. member.

The general rule is that sovereign states both have the authority and the obligation to put their own houses in order by investigating and prosecuting alleged offenses. Only in the most extreme circumstances can an international inquiry be justified—such as when the state concerned is incapable of undertaking the investigation, or when the alleged offenses rise to the level of widespread international crimes, for which international law prescribes individual criminal responsibility.

The classic examples are war crimes and crimes against humanity, neither at issue here. The murder of a specific person has very rarely been the subject of an international investigation, as in the case of former Lebanese Prime Minister Rafik Hariri’s 2005 assassination. Syrian and Hezbollah involvement was suspected, and the Lebanese government was unable to conduct an investigation free of interference. Beirut thus agreed to the Security Council resolution establishing an independent investigative commission. Yet that probe was shunned by most intelligence services and failed to bring to justice any high-level culprits.

In this instance, Saudi Arabia is fully capable of investigating Khashoggi’s death and has the greatest interest in the matter. Khashoggi was a Saudi national; so, it appears, are his killers. There is obvious concern about the fairness of a Saudi investigation because of the potential involvement of high-level officials close to the royal family, and the conflicting Saudi explanations have been justifiably criticized. Yet the kingdom has been a respected member of the international community and surely understands a whitewash would severely damage its standing.

Turkey, too, has legitimate interests here. If Riyadh officially sanctioned Khashoggi’s killing in its Istanbul consulate, it would be an abuse of the diplomatic rights Turkey affords another sovereign under treaty. The U.S. and other Western powers can and should support and assist both Riyadh’s and Ankara’s investigations.

The U.S. has a strong interest in preserving international legal norms, grounded in the 1648 Treaty of Westphalia, which recognize the nation-state as the highest authority and establish rules that apply equally to all states. There is a determined movement to undermine this traditional system in favor of a supranational authority. These efforts have frequently targeted America, including its operations in Afghanistan and Iraq, renditions, interrogations and drone strikes. These matters have elicited condemnations at the U.N. and demands for international investigations. The U.S. has properly opposed such demands because it can and does investigate the allegations itself.

This leaves us with only one solution, as Secretary of State Mike Pompeo put it a few days ago: “We’re going to give them”—the Saudis and the Turks—“the space to complete their investigations of this incident, and when they issue their reports, we’ll form our judgment about the thoroughness, depth and the decisions they make about accountability connected to that.”

Messrs. Rivkin and Casey practice appellate and constitutional law and have argued before international legal bodies, including the International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice.

Source: https://www.wsj.com/articles/saudi-probe-is-not-a-job-for-the-u-n-1540335772

Trump is right on Nord Stream 2

President Trump was right to criticize Chancellor Angela Merkel’s plan for a new pipeline carrying Russian natural gas to Germany. This project threatens European independence and the North Atlantic Treaty Organization, and it was opposed by the Obama administration and many Senate Democrats, although not much was done to stop the pipeline’s construction. Numerous European countries have also been sharply critical of Mrs. Merkel’s energy plans. Mr. Trump has correctly sought to diminish Moscow’s European energy footprint, belying claims he is a stooge of Vladimir Putin.

In 2015 the European Commission cited Russia’s politically motivated disruptions of energy exports as one of the main causes of Europe’s energy insecurity. Moscow is the largest energy exporter to Europe; Gazprom alone supplied almost 40% of Europe’s natural gas in 2017. According to World Bank data, Gazprom’s European gas prices last year were more than double the U.S. domestic price. Russia has also repeatedly used its gas to blackmail Europe, cutting off the supply in 2006, 2009 and 2014, and causing severe shortages in Eastern Europe.

Germany has sought for years to maintain a special energy relationship with Moscow as a means of securing its own energy-supply predominance in Europe. Once the Nord Steam expansion is completed, it will account for 80% of Russian gas imported to Europe, making Germany the Continent’s major gas-distribution hub.

The Nord Stream 2 project has received particularly strong support from the center-left Social Democratic Party, a key member of Mrs. Merkel’s shaky governing coalition. Gerhard Schröder, a former SPD chancellor, has served as chairman of Nord Stream 2 AG, a Gazprom-owned consortium.

Berlin signed the original Nord Stream pipeline deal with Russia during Mr. Schröder’s chancellorship in 2005. In 2017 the Russian government nominated Mr. Schröder to the board of Rosneft, the Russian oil giant. German media report that Mr. Schröder was paid some €250,000 annually at Gazprom, and is expected to be paid €300,000 to €425,000 at Rosneft. But Germans have largely shrugged at the spectacle of a former chancellor on Russia’s payroll.

Many other European countries, however, have been critical of Germany’s Russian-energy romance. Thirteen EU states vehemently oppose the Nord Stream expansion. They are concerned about the loss of transit-fee revenue from existing pipelines that run mostly through Ukraine and the security risk of Russia’s growing dominance over Europe’s gas market. They have demanded the European Commission transfer negotiating power over the pipeline from Germany to the EU.

The new pipeline would enhance Russia’s blackmail capability by enabling Moscow to cut off gas supplies to Eastern Europe without subjecting Western Europe to the same treatment. Not surprisingly, Eastern European states have taken the lead in trying to develop alternatives. In 2016 Croatia and Poland led the formation of the Three Seas Initiative, or 3SI, which united 12 states from the Baltics to the Balkans.

At a 3SI summit in Warsaw in June 2017, Mr. Trump pledged that the U.S. would bolster exports of liquefied natural gas to Europe so the Continent “can never be held hostage to a single supplier.” That statement was anchored in the administration’s broader strategy of transforming the U.S. into a pre-eminent low-cost global energy supplier.

Russia’s gas stranglehold is a source of vulnerability as well as power. Europe accounts for more than 80% of Gazprom’s exports. Energy accounts for almost half of Russia’s exports and 40% of its national budget. The implementation of a 3SI energy plan would drain Russia’s pocketbook and frustrate its geopolitical ambitions.

Moscow has recognized the challenge and done its best to block efforts to diversify European energy supplies. Russian proxies have moved to delay or stop the 3SI project. According to the Croatian media, Gasfin, a Luxembourg company acting as Gazprom’s cat’s-paw in Europe, is supporting local environmentalists opposed to construction of a new LNG terminal on Croatia’s Krk Island. Gasfin has even purchased land on the island so that it can hobble the project via legal challenges—while at the same time suggesting that Gazprom might support the Krk project if it receives only Russian gas. During Croatian President Kolinda Grabar-Kitarovic’s visit to Russia last October, Mr. Putin publicly offered a partnership to gasify Croatia.

Mr. Trump’s leadership on this issue has had tangible results. Poland has committed to buying LNG from the U.S. and has already completed a new LNG terminal. It will not renew a contract with Gazprom set to expire in 2022, ending a 74-year exclusive partnership. U.S. LNG imports to Europe rose 22% last year, and will likely keep growing.

Yet the fate of 3SI is uncertain. The Trump administration should ramp up its energy strategy in two ways. First, promote U.S. investment in all facets of 3SI projects. Second, nudge European countries to accept a long-term package of sanctions on Russian energy, patterned after Carter- and Reagan-era sanctions, including restrictions on technology transfers and financing of Russian gas production and exports. If the Europeans balk, the U.S. should impose such sanctions unilaterally.

An all-out U.S. effort to stop Nord Stream 2 would help restore credibility in the aftermath of the Helsinki summit. Over time, this strategy would reduce Moscow’s European gas exports dramatically, freeing Europe from Moscow’s blackmail. American energy exports to Europe would be reliable and fairly priced. More Americans would have jobs, trans-Atlantic ties would be stronger, and it would be a major blow to the Putin regime.

Mr. Rivkin, a constitutional litigator, served in the Reagan and George H.W. Bush administrations at the White House Counsel’s Office and the Energy and Justice departments. Mr. Zuzul is a former Croatian foreign minister and ambassador to the U.S.

Source: https://www.wsj.com/articles/trump-is-right-on-nord-stream-2-1532289915

Russia’s actions in Ukraine clearly violate the rules of war

By David B. Rivkin Jr. and Lee A. Casey

While Russia’s aggression against Ukraine tramples the United Nations charter, Moscow gets a free ride on its other transgressions of international law. Few have focused, for instance, on how Russia’s military operations in Ukraine violate the 1949 Geneva Conventions. The failure to challenge this misconduct is profoundly wrong and damages the integrity of this whole body of law.

The Geneva Conventions are a great civilizational accomplishment, tempering how wars are waged. For years, they have been transgressed by non-state actors who fight out of uniform, target civilians, take hostages and engage in torture.  But these critical legal norms are far more threatened when such conduct is embraced (in action if not word) by a sovereign state and a party to the Conventions.

The fact that Russian troops operate in Ukraine in unmarked uniforms, or pretend to be civilians, is a significant Geneva violation. States can and do use commandos who operate with stealth and concealment, as the United States did in both Afghanistan and Iraq. There is a fundamental difference, however, between using special forces in an announced armed conflict and doing so while denying that one’s military is engaged at all, as Russia has done.

Moscow is trying to avoid political and legal responsibility for its actions — and Ukraine is not the only place it is prepared to act. Latvian analyst Janis Berzins has analyzed internal Russian military documents describing Moscow’s “new way of waging war” that includes undeclared wars, undercover destabilization, attacks on civilians to create false humanitarian crisis and psy-op operations. Moscow believes this style of waging war could be particularly effective against neighboring countries with large Russian-speaking populations.

Russia’s denials ring hollow. Moscow has inserted intelligence operatives, Spetsnaz personnel and other elite troops into the region, and some of these individuals have been apprehended by Ukrainian forces. Evidence of Russia’s involvement includes the Russian body armor these forces wear and the specialized and expensive Russian weapons they carry, such as AK-74 automatic rifles and Dragunov sniper rifles.

During the most recent fighting around Slovyansk, Russia’s stronghold in eastern Ukraine, hundreds of Russian personnel and irregulars deployed mortars, heavy machine guns and antitank weapons. The National Security Agency, NATO intelligence services and the Ukrainian government have also intercepted communications indicating that senior officers from Russia’s Southern Military District control Moscow’s operations in eastern Ukraine, as Secretary of State John F. Kerry discussed in meetings last week.

Moscow-led forces have also engaged in an intimidation campaign of assassination and torture against Ukrainian civilians, among the most serious Geneva offenses. Examples include Vladimir Rybak, a local government official in the Donetsk region and a strong supporter of the Ukrainian government, who was kidnapped, tortured and killed. His body was thrown into a river on the outskirts of Slovyansk.

In another palpable violation of the Geneva Conventions, which require military operations to be waged in ways designed to minimize collateral damage to noncombatants, Russian forces have staged assaults on police stations and government buildings in ways designed to maximize civilian casualties. This was done to discredit the Ukrainian government and provide a “humanitarian” justification for further Russian intervention.

Russian forces in eastern Ukraine have seized hostages, including Organization for Security and Co-operation in Europe observers. They have also violated the Geneva Conventions and the customary laws of war byrecruiting Ukrainian civilians and police personnel. In two regions of eastern Ukraine, Luhansk and Donetsk, about 50 percent of local police personnel have reportedly switched sides. The Ukrainian Security Service says Russian banks have been transferring funds to make daily payments to pro-Russian Ukrainians. .

While the responsibility for Russia’s actions in Ukraine begins with President Vladi­mir Putin and other Moscow leaders, the Geneva Conventions require that the Russian military be held accountable for its violations of the laws of war. The first step should be for the United States, NATO and the Ukrainian government to release all of the available information about the Russian offenses, including the names of all individuals involved. The second step should be sanctions that would prevent Russian military officers from traveling to any Western countries regardless of the purpose. No equipment sales or technology transfers to the Russian armed forces should be approved, and no Western military should buy Russian weapon systems or equipment.

Because military establishments, by their nature, value respect and esprit de corps, ostracizing Russia’s armed forces could have a significant impact on Moscow’s behavior, getting its attention in real and immediate ways. They would also underscore the strong Western commitment to upholding the laws of war in general and the Geneva Conventions in particular.

Source: http://www.washingtonpost.com/opinions/russias-actions-in-ukraine-clearly-violate-the-geneva-conventions/2014/05/06/74c8fcde-d22f-11e3-937f-d3026234b51c_story.html

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler; they served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.

Not just the Middle East: Obama foreign policy record is appalling

The organizing principle of the administration’s foreign policy is one of weakness and passivity, coupled with a conspicuous rhetorical abdication of American leadership, write David Rivkin and Lee Casey.

by David B. Rivkin, Jr. Lee A. Casey | September 21, 2012 4:45 AM EDT

A few days ago on The Daily Beast, Leslie Gelb praised President Obama’s handling of the unfolding crisis in the Middle East last week and evidently discerns no connection between the ensuing wave of anti-American violence and the broader parameters of American foreign policy. He is wrong on both counts. The administration’s crisis management has been mediocre. Even more fundamentally, the current assault on America’s position in the Middle East is attributable not to the trailer for an obscure anti-Muslim movie, but to Obama’s own foreign-policy failures.

The administration’s crisis-management strategy continues to emphasize its regret about that film, Innocence of Muslims. This was manifest not only in the original (and subsequently retracted) statement from our embassy in Cairo, but in all statements by Secretary of State Hillary Clinton and the president. But deploring efforts to denigrate Muslim religious beliefs is only the first half of the sentence. The administration should have also robustly propounded its commitment to the virtues and values of free expression in a free society, and why this must necessarily encompass offensive speech. Whenever the White House mentions the First Amendment these days, it is done mostly in a defensive mode, by way of explaining (almost in sorrow) to the Muslim world why the U.S. government cannot legally suppress anti-Muslim films rather than a compelling explanation of why such films should not be suppressed. As Clinton stated on Sept. 14, “I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day.” But simply saying that free speech is enshrined in our Constitution “is not enough” the administration must explain why that is a good thing to which they too should aspire.

The administration also has failed to tell the Muslim world that Western critics of religion, far from singling out Islam, regularly unleash a torrent of offensive speech directed at Christianity and Judaism. In addition, no senior administration official has seen fit to elucidate any historical perspective on America’s relationship with the Islamic world, including our unparalleled record of support for Muslim causes. Brief references to U.S. support for the Libyan revolution is not sufficient” this must be at the center of our message to the Muslim world. America and its NATO allies have spent their own blood and treasure to protect Muslims facing slaughter and oppression in places ranging from Afghanistan to Bosnia to Kosovo to Iraq.

Equally lacking has been any public manifestation of the administration’s anger about the anti-American demonstrations that have taken place over the last week. Simply condemning violence is not enough. The administration must make clear that there can be no justification for any protests against America as a country simply because some private Americans have exercised their First Amendment rights in an offensive manner. And Washington’s failure to do so is viewed as the ultimate manifestation of American guilt, thus enflaming, rather than calming, the situation.

The administration has also conspicuously failed to criticize publicly President Mohammed Morsi and other Arab leaders, whose responses to the anti-American demonstrations have been slow, equivocal, and relatively ineffective. Indeed, to this day Morsi has condemned violence but endorsed the anti-American protests from which it ensues. The fact that the Egyptian prosecutor-general has found time to indict several American citizens, allegedly associated with the production of an anti-Islamic film, is both a violation of international law and a sign of disrespect for the United States.

The ultimate irony for an administration oft-praised for superior rhetoric is that in today’s tightly knit global environment, words have palpable consequences.

Morsi’s behavior is particularly deplorable because the U.S. was instrumental in bringing him to power, first by easing out President Hosni Mubarak and later by playing the leading role in restraining the Egyptian military during the post-Mubarak transition. The fact that Morsi has unimpeachable Islamic credentials, and is therefore in an excellent position to both speak out forcibly and act robustly against anti-Americanism, makes the administration’s failure to call him to account all the more glaring.

But all of this flawed crisis management pales in comparison with the administration’s strategic failures. The organizing principle of the administration’s foreign policy is one of weakness and passivity “whether in dealing with Russia, China, or Venezuela” coupled with a conspicuous rhetorical abdication of American leadership, evident in speeches by the president, secretary of state, and other administration officials. The ultimate irony for an administration oft-praised for superior rhetoric is that in today’s tightly knit global environment, words have palpable consequences.

This overarching problem is accentuated by the fact that everybody in the Middle East “our friends, foes, and folks in between” has correctly concluded that the administration has begun America’s disengagement from the region, on a scale unseen since the days of the British withdrawal from “East of Suez”. This has manifested itself in virtually every facet of our Middle East policy, from our failure to maintain any American military presence in Iraq and the consequent loss of diplomatic and economic influence in Baghdad; to Washington’s unwillingness to rally the American public to support our military efforts in Afghanistan and its repeated snubs of our strongest traditional Middle East ally, Israel; to our leading from behind on Libya and the total failure to lead from any direction on Syria; and last but not least, to our timidity in confronting the Iranian nuclear weapons program. As a result, the Middle East elites and the proverbial “Arab street” have concluded that the U.S. is a waning power, Israel’s future is one of a besieged state that someday may disappear from the regional chessboard, and Iran has an excellent chance of becoming a regional hegemon, to be feared and placated.

These are self-inflicted wounds. The American disengagement has not been caused by military defeat or some adverse international developments that we have tried but failed to stop, but by an administration that has profoundly misunderstood the kind of world we live in, the types of threats we confront, and what constitutes vital American interests. The administration has amassed not just a middling or even moderately bad foreign-policy record, but an appalling one. It is this record that is shaping the way the governments in the Middle East are handling the anti-American unrest. Unless the record is decisively reversed, it will lead to many disastrous developments down the road.

Source: http://www.thedailybeast.com/articles/2012/09/21/not-just-the-middle-east-obama-foreign-policy-record-is-appalling.html

Bringing ‘Alien Torts’ to America

A court case that could invite specious international damage claims to the U.S.

(published in The Wall Street Journal, Feburary 28, 2012)

By DAVID B. RIVKIN JR. And LEE A. CASEY

This Tuesday the Supreme Court will hear arguments in two cases that should interest every U.S. company doing business overseas, and especially those operating in the developing world. Kiobel v. Royal Dutch Petroleum Co. and Mohamed v. Palestinian Authority raise the issue of whether corporations can be sued for violations of international law under U.S. statutes, including the Alien Tort Statute.

The ATS was adopted in 1789 by the first U.S. Congress. The statute permits suits by aliens in federal courts for certain alleged international-law violations, but it was moribund for nearly 200 years and its purpose remains opaque. The best guess is that Congress wanted to provide a means by which the U.S. could fulfill its international obligations to vindicate a very discrete set of damage claims by diplomats and other foreign nationals injured or abused by Americans.

Beginning in the 1980s and 1990s, however, activists and plaintiffs’ lawyers began using the law as a means of suing foreign nationals, and then U.S. nationals and companies, in federal court for alleged human rights abuses overseas. They included abuses perpetrated not by the defendant corporations but by the foreign governments with which the companies have done business. This type of “aiding and abetting” liability reached its high-water mark in Khulumani v. Barclay National Bank Ltd. (2002), a case brought in Manhattan’s federal district court against dozens of U.S. companies that had done business with the South African government during that country’s apartheid years.

The trial judge properly dismissed the case, but the U.S. Court of Appeals for the Second Circuit partially reversed that decision, permitting the ATS claims to go forward. The Supreme Court initially agreed to review the case but then changed its mind because too many Justices would have had to recuse themselves, being shareholders in one or more of the defendant companies. The Second Circuit decision that corporations could be sued under the ATS merely for doing business with the wrong government stands.

In Kiobel and Mohamed, the Supreme Court will again have the opportunity to bring some certainty and sanity to this area of the law. Those cases involve international tort (or damage) claims against nonnatural “persons”—oil companies alleged to have aided and abetted international law violations by Nigeria’s government in Kiobel, and by the Palestinian Authority for torture and extrajudicial killing in Mohamed.

Traditionally, international law applied only to nation states. As Emmerich de Vattel, an early and influential scholar much admired by the Constitution’s Framers, explained in the 18th century: “The law of nations is the science of the law subsisting between nations or states, and of the obligations that flow from it.” Exceptions for individuals involved piracy and attacks on diplomats or those traveling under “safe conducts,” the very claims the ATS was likely meant to address.

Yet these exceptions applied only to natural persons. The recognition of corporate entities as legal “persons” is a relatively recent development. There is no basis in customary international law—the actual practice of states in their dealings with each other—for corporate liability on the international level.

Even the dissolution of German companies implicated in Nazi atrocities after World War II was not a judicial action. The corporate entities did not stand in the dock at Nuremberg. Their punishment was a political decision by the victorious Allies intent on creating a new, democratic Germany.

Extending ATS violations to corporate entities would go beyond what international law supports. It would open U.S. courthouse doors to international disputes in which the U.S. itself may have little if any interest and/or which are more appropriately dealt with at the diplomatic level.

Permitting ATS actions against corporate entities would also expand a new frontier for plaintiffs’ lawyers, seeking out wrongs committed by foreign governments overseas and then bringing actions for money damages against U.S. companies who may have dealt with, or even simply operated in, those countries. It will add to the litigation explosion that already has done much harm to the U.S. economy and society.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush. They have filed amicus curiae briefs in opposition to corporate liability in both the Kiobel and Mohamed cases.

Source: http://online.wsj.com/article_email/SB10001424052970204520204577249072967967832-lMyQjAxMTAyMDIwODEyNDgyWj.html?mod=wsj_share_email