Monday, March 24, 2008

Iraq's Ties to International Terrorism

Last week, with very little fanfare, the Institute for Defense Analyses (an independent, non-profit think tank that provides the US government, and particularly the Department of Defense, with analysis and reporting) released its exceedingly comprehensive study of 600,000 captured documents laying out Iraq's connections, interactions, and activities connected to international terrorist groups (the redacted report, in five volumes, is available on the webpage of the Federation of American Scientists). According to the Executive Summary:

The Iraqi Perspectives Project (IPP) review of captured Iraqi documents uncovered strong evidence that links the regime of Saddam Hussein to regional and global terrorism. Despite their incompatible long-term goals, many terrorist movements and Saddam found a common enemy in the United States. At times these organizations worked together, trading access for capability. In the period after the 1991 Gulf War, the regime of Saddam Hussein supported a complex and increasingly disparate mix of pan-Arab revolutionary causes and emerging pan-Islamic radical movements.


This study found no "smoking gun" (i.e., direct connection) between Saddam's Iraq and al Qaeda.
Saddam's interest in, and support for, non-state actors was spread across a variety of revolutionary, liberation, nationalist, and Islamic terrorist organizations. Some in the regime recognized the potential high internal and external costs of maintaining relationships with radical Islamic groups, yet they concluded that in some cases, the benefits of association outweighed the risks. A review of available Iraqi documents indicated the following:

• The Iraqi regime was involved in regional and international terrorist operations prior to OPERATION IRAQI FREEDOM. The predominant targets of Iraqi state terror operations were Iraqi citizens, both inside and outside of Iraq.

• On occasion, the Iraqi intelligence services directly targeted the regime's perceived enemies, including non-Iraqis. Non-Iraqi casualties often resulted from Iraqi sponsorship of non-governmental terrorist groups.

• Saddam's regime often cooperated directly, albeit cautiously, with terrorist groups when they believed such groups could help advance Iraq's long-term goals. The regime carefully recorded its connections to Palestinian terror organizations in numerous government memos. One such example documents Iraqi financial support to families of suicide bombers in Gaza and the West Bank.

• State sponsorship of terrorism became such a routine tool of state power that Iraq developed elaborate bureaucratic processes to monitor progress and accountability in the recruiting, training, and resourcing of terrorists. Examples include the regime's development, construction,
certification, and training for car bombs and suicide vests in 1999 and 2000.

From the beginning of his rise to power, one of Saddam's major objectives was to shift the regional balance of power favorably towards Iraq. After the 1991 Gulf War, pursuing this objective motivated Saddam and his regime to increase their cooperation with-and attempts to manipulate-Islamic fundamentalists and related terrorist organizations. Documents indicate that the regime's use of terrorism was standard practice, although not always successful. From 1991
through 2003, the Saddam regime regarded inspiring, sponsoring, directing, and executing acts of terrorism as an element of state power.
And from the abstract on the FAS webpage:
Captured Iraqi documents have uncovered evidence that links the regime of Saddam Hussein to regional and global terrorism, including a variety of revolutionary, liberation, nationalist, and Islamic terrorist organizations. While these documents do not reveal direct coordination and assistance between the Saddam regime and the al Qaeda network, they do indicate that Saddam was willing to use, albeit cautiously, operatives affiliated with al Qaeda as long as Saddam could have these terrorist–operatives monitored closely. Because Saddam’s security organizations and Osama bin Laden’s terrorist network operated with similar aims (at least in the short term), considerable overlap was inevitable when monitoring, contacting, financing, and training the same outside groups. This created both the appearance of and, in some ways, a “de facto” link between the organizations. At times, these organizations would work together in pursuit of shared goals but still maintain their autonomy and independence because of innate caution and mutual distrust. Though the execution of Iraqi terror plots was not always successful, evidence shows that Saddam’s use of terrorist tactics and his support for terrorist groups remained strong up until the collapse of the regime.
So, while there is no evidence of any direct links between Iraq and al Qaeda, the report makes two things abundantly clear: One, that Iraq had extensive ties to numerous terror organizations and was willing and able to use terror as a tool of state politics, and; Two, that the religious nature of radical Islamic groups like al Qaeda would not prevent the secular, pan-Arab Iraq from working with them. As today's Wall Street Journal makes clear:

A pan-Arab nationalist, Saddam viewed radical Islamists as potential allies, and they likewise. According to a 1993 memo, Saddam decided to "form a group to start hunting Americans present on Arab soil; especially Somalia," where al Qaeda was then working with warlords against U.S. humanitarian forces. Saddam also trained Sudanese fighters in Iraq.

The Pentagon report cites this as "a tactical example" of their cooperation. When Saddam "was ordering action in Somalia aimed at the American presence, Osama bin Laden was doing the same thing." Saddam took an interest in "far-flung terrorist groups . . . to locate any organization whose services he might use in the future." The Harmony documents "reveal that the regime was willing to co-opt or support organizations it knew to be part of al Qaeda -- as long as that organization's near-term goals supported Saddam's long-term version."

For 20 years, such "support" included using Fedayeen Saddam training camps to school terrorists, especially Palestinians but also non-Iraqis "directly associated" with al Qaeda, continuing up to the fall of Baghdad. Saddam also provided financial support and weapons, amounting to "a state-directed program of significant scale." In July 2001, the regime began patronizing a terror cartel in Bahrain calling itself the Army of Muhammad, which, according to an Iraqi memo, "is under the wings of bin Laden."

It's true that the Pentagon report found no "smoking gun," i.e., a direct connection on a joint Iraq-al Qaeda operation. Supposedly this vindicates the view that Iraq's liberation was launched on false premises. But the Administration was always cautious, with Colin Powell alleging merely a "sinister nexus" in his 2003 U.N. speech. If anything, sinister is an understatement. The main Iraq intelligence failure was over WMD, but the report indicates that the CIA also underestimated Saddam's ties to global terror cartels.

The Administration has always maintained that Iraq is just one front in the war on terror; and the report offers "evidence of logistical preparation for terrorist operations in other nations, including those in the West." In 2002, an IIS memo explained to Saddam that Iraqi embassies were stockpiling weapons, while many of the terrorists trained in Fedayeen camps were dispatched to London with counterfeit documents, where they circulated throughout Europe.

Around the same time, the IIS began to manufacture better improvised explosive devices "designed to be used in civilian areas," and the regime bureaucratized suicide operations, with local Baath Party leaders competing to provide recruits for Saddam as part of a "Martyrdom Project."

Reading over (or to be more accurate, looking over...volume 1 of the report alone is 94 pages while the volumes containing the documents are over 500) the report certainly paints a disturbing picture of a regime looking to export terror wherever and whenever possible. The documents show connections to nearly every major Islamic and Arab terror group, the operations of training camps, attempts to undermine Western and Arab states, the use of Iraqi embassies in countries like Greece, Austria, India, Turkey, and the Czech Republic to hide and distribute weapons such as missile launches and plastic explosives, as well as documentation of major operations. The report certainly gives credence that, as the WSJ put it "all of these are inconvenient facts for those who want to assert that somehow Saddam could have been easily contained and presented no threat to the U.S."

Wednesday, March 19, 2008

Five Years of War

After five long, hard years of war in Iraq, where do things stand? ABC News has produced what seems to me to be the most comprehensive poll of Iraqi public opinion (the article-length summary is here, the pdf with the complete questionnaire and charts is here). The results? "Improved security and economic conditions have reversed Iraqis' spiral of despair, sharply improving hopes for the country's future. Yet deep problems remain in terms of security, living conditions, reconciliation and political progress alike."

According to the survey:

Fifty-five percent of Iraqis say things in their own lives are going well, well up from 39 percent as recently as August. More, 62 percent, rate local security positively, up 19 points. And the number who expect conditions nationally to improve in the year ahead has doubled, to 46 percent in this new national poll by ABC News, the BBC, ARD German TV and the Japanese broadcaster NHK.

Without directly crediting the surge in U.S. forces, fewer report security as the main problem in their own lives  25 percent, nearly half its peak last spring. Forty-six percent say local security has improved in the past six months, nearly double last summer's level.

The number of Iraqis who feel entirely unsafe in their own area has dropped by two-thirds, to 10 percent. And with Sunni Arab buy-in, U.S.-funded Awakening Councils, created to provide local security, are more popular than the Iraqi government itself.

Even more striking is the halt in worsening views. In August, Iraqis by 61-11 percent said security in the country had gotten worse, not better, in the previous six months. Today, by 36-26 percent, more say security has improved. The new positive margin is not large. But the 35-point drop in views that security is worsening is the single largest change in this poll.

In almost all cases, however, the improvement since August and March still has not brought Iraqi sentiment back to its pre-2007 levels. While 46 percent now expect improvements for the country in the next year, that's still far below its level in November 2005, 69 percent. While 55 percent say their own lives are going well, that's down from 71 percent in late 2005.

Similarly, while there's been a big drop in the number who cite security as their own main problem, 50 percent still volunteer it as the nation's main problem overall  little changed from 56 percent in August. One in four Iraqis still report suicide attacks, sectarian fighting and other violence in their own area in just the past six months. And the provision of basic services has barely budged; 88 percent lack adequate electricity.

Much of the improvement since August is driven by Baghdad and Anbar provinces, focal points of the surge. Seventy-one percent in Anbar, and fewer in Baghdad but still 43 percent, now rate local security positively  up from zero in both locales last year. While a dramatic gain, most in Baghdad, home to a quarter of Iraqis, still say security is bad  a reflection of continued, albeit reduced, violence there.

Economic improvement complements the security gains. Fifty-seven percent rate their household finances positively, a 20-point jump, again steepest in Baghdad (especially its Sadr City area) and Anbar. The availability of basic consumer goods has soared even more sharply; 65 percent rate it positively, up by 26 points since August to its highest in polls dating to early 2004. And family incomes are up by 26 percent, about $80 a month.


Challenges remain broad and deep. Beyond their own lives, most Iraqis, 55 percent, still say things are going badly for the country, even if that's down from a record 78 percent in August. Violence remains common, particularly in the cities; local car bombs or suicide attacks, just within the past six months, are reported by 45 percent in Baghdad, 51 percent in Kirkuk and 39 percent in Mosul.

Living conditions for many remain dire, with sizable majorities reporting a lack of electricity, fuel, clean water, medical care and sufficient jobs. Improvement in all these has been modest at best. Six in 10 say they can't live where they choose without facing persecution, although this, too, is well down from its peak.

Sectarian differences remain vast. While more than six in 10 Shiites and seven in 10 Kurds say their own lives are going well, that drops to a third in the Sunni Arab minority. Eighty-three percent of Sunnis rate national conditions negatively. And while half of Shiites and six in 10 Kurds expect their children's lives to be better than their own, a mere 12 percent of Sunnis share that most basic hope.


Views of the United States, while still broadly negative, have moderated in some respects. Just shy of half, 49 percent, now say it was right for the U.S.-led coalition to have invaded, up by 12 points from August; the previous high was 48 percent in the first ABC News poll in Iraq in February 2004.

Similarly, the number of Iraqis who call it "acceptable" to attack U.S. forces has declined for the first time in these polls, down to 42 percent after peaking at 57 percent in August. Even with a 15-point drop, however, that's still a lot of Iraqis to endorse such violence. (Just 4 percent, by contrast, call it acceptable to attack Iraqi government forces.)

Sunni Arabs, dispossessed by the overthrow of Saddam Hussein, are a good example. In August 93 percent of Sunnis called it acceptable to attack U.S. forces. Today, that's down to 62 percent  a dramatic decline, but one that still leaves six in 10 Sunnis on the side of anti-U.S. attacks.


An integral part of the surge strategy  the creation of U.S.-funded and -equipped "Awakening Councils" to provide local security  is generally popular. The councils are better-rated than the United States, local leaders, local militias and even the Iraqi government.

Fifty-six percent of Iraqis express confidence in the councils, compared with 49 percent in the national government of Iraq, 47 percent in local leaders, 22 percent in local militias and 20 percent in U.S. forces. The councils attract confidence from 73 percent of Sunni Arabs  generally the most alienated Iraqis  as well as from 60 percent of Shiites.


On a structural level, 66 percent of Iraqis say the country should continue as a unified nation with its central government in Baghdad, as opposed to a confederation of regional states or outright partition. While Sunnis have been and almost unanimously remain behind a single state, there's been an advance in this view among Shiites, from 41 percent last March to 56 percent in August and 67 percent now. The holdouts are Kurds, nearly all of whom want autonomy or semi-autonomy (details below).


ne thing on which Iraqis tend to agree is the difficult state of their living conditions. In the single worst item, 88 percent say their supply of electricity is bad. (In another measure, just two in 10 report receiving electricity from power lines for more than 12 hours a day, although that is up from just 12 percent last March.)

It's not just about power. Eight in 10 lack adequate fuel for cooking or driving. Sixty-eight percent rate their supply of clean water negatively. Sixty-two percent say they lack adequate medical care, a number that's grown sharply from 36 percent in November 2005  likely relating to the flight of doctors, among other professionals, who've had the wherewithal to leave the country.

As noted, ratings of local security and family finances are sharply better; so is protection from crime  closely related to security and now rated positively by 54 percent, up from 35 percent in August (but still below its peak, 66 percent in November 2005).

The biggest improvement, also as noted, is in the availability of basic household goods, up 26 points to 65 percent positive. Laggards, though, include some essentials: electricity, medical care, clean water, fuel, enough jobs to go around and freedom of movement.

That's certainly a better picture than I believe many of us in the US would have described.

So, what do we learn from these results? First, the surge must not be undone. In the wake of the successes stemming from the increase in US troop presence has come the inevitable, short-sighted response that it's time for troops to come home. Doing that could be disastrous. US forces must remain in Iraq until the security gains have had more time to coalesce into political and societal improvements. Yes, that could take a while. But the alternative is so disastrous as to be unthinkable.

Second, the US and the Iraqi government need to work at improving basic living conditions. It is inexcusable that, five years in, barely 20% of Iraqis have reliable electricity, 80% lack adequate fuel for heating and cooking, and that around 2/3rds of Iraqis lack clean water or adequate medical care. The improved security from the surge has made political reconciliation possible, but if people lack the essentials of day-to-day life, political gains rapidly become meaningless.

The picture in Iraq certainly doesn't seem to be as bleak as many here in the US describe. But it is, at best, extremely fragile. Keeping high levels of US troops in place may be necessary, but so is improving the lives of Iraqis. If these things can be done, the situation will likely continue to improve.

Tuesday, March 18, 2008

Deterring Terrorists?

Today's New York Times has a fascinating article about how the US defense community is beginning to think about applying principles of deterrence to terrorist groups. Some excerpts:

The 2002 National Security Strategy, signed by the president one year after the Sept. 11 attacks, stated flatly that “traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents.”

Four years later, however, the National Strategy for Combating Terrorism concluded: “A new deterrence calculus combines the need to deter terrorists and supporters from contemplating a W.M.D. attack and, failing that, to dissuade them from actually conducting an attack.”

For obvious reasons, it is harder to deter terrorists than it was to deter a Soviet attack.

Terrorists hold no obvious targets for American retaliation as Soviet cities, factories, military bases and silos were under the cold-war deterrence doctrine. And it is far harder to pinpoint the location of a terrorist group’s leaders than it was to identify the Kremlin offices of the Politburo bosses, making it all but impossible to deter attacks by credibly threatening a retaliatory attack.

But over the six and a half years since the Sept. 11 attacks, many terrorist leaders, including Osama bin Laden and his deputy, Ayman al-Zawahri, have successfully evaded capture, and American officials say they now recognize that threats to kill terrorist leaders may never be enough to keep America safe.

So American officials have spent the last several years trying to identify other types of “territory” that extremists hold dear, and they say they believe that one important aspect may be the terrorists’ reputation and credibility with Muslims.

Under this theory, if the seeds of doubt can be planted in the mind of Al Qaeda’s strategic leadership that an attack would be viewed as a shameful murder of innocents — or, even more effectively, that it would be an embarrassing failure — then the order may not be given, according to this new analysis.

Senior officials acknowledge that it is difficult to prove what role these new tactics and strategies have played in thwarting plots or deterring Al Qaeda from attacking. Senior officials say there have been several successes using the new approaches, but many involve highly classified technical programs, including the cyberoperations, that they declined to detail.

They did point to some older and now publicized examples that suggest that their efforts are moving in the right direction.

George J. Tenet, the former director of the Central Intelligence Agency, wrote in his autobiography that the authorities were concerned that Qaeda operatives had made plans in 2003 to attack the New York City subway using cyanide devices.

Mr. Zawahri reportedly called off the plot because he feared that it “was not sufficiently inspiring to serve Al Qaeda’s ambitions,” and would be viewed as a pale, even humiliating, follow-up to the 9/11 attacks.

And in 2002, Iyman Faris, a naturalized American citizen from Kashmir, began casing the Brooklyn Bridge to plan an attack and communicated with Qaeda leaders in Pakistan via coded messages about using a blowtorch to sever the suspension cables.

But by early 2003, Mr. Faris sent a message to his confederates saying that “the weather is too hot.” American officials said that meant Mr. Faris feared that the plot was unlikely to succeed — apparently because of increased security.

“We made a very visible presence there and that may have contributed to it,” said Paul J. Browne, the New York City Police Department’s chief spokesman. “Deterrence is part and parcel of our entire effort.”


Even as security and intelligence forces seek to disrupt terrorist operations, counterterrorism specialists are examining ways to dissuade insurgents from even considering an attack with unconventional weapons. They are looking at aspects of the militants’ culture, families or religion, to undermine the rhetoric of terrorist leaders.

For example, the government is seeking ways to amplify the voices of respected religious leaders who warn that suicide bombers will not enjoy the heavenly delights promised by terrorist literature, and that their families will be dishonored by such attacks. Those efforts are aimed at undermining a terrorist’s will.

“I’ve got to figure out what does dissuade you,” said Lt. Gen. John F. Sattler, the Joint Chiefs’ director of strategic plans and policy. “What is your center of gravity that we can go at? The goal you set won’t be achieved, or you will be discredited and lose face with the rest of the Muslim world or radical extremism that you signed up for.”

Efforts are also under way to persuade Muslims not to support terrorists. It is a delicate campaign that American officials are trying to promote and amplify — but without leaving telltale American fingerprints that could undermine the effort in the Muslim world. Senior Bush administration officials point to several promising developments.

Saudi Arabia’s top cleric, Grand Mufti Sheik Abdul Aziz al-Asheik, gave a speech last October warning Saudis not to join unauthorized jihadist activities, a statement directed mainly at those considering going to Iraq to fight the American-led forces.

And Abdul-Aziz el-Sherif, a top leader of the armed Egyptian movement Islamic Jihad and a longtime associate of Mr. Zawahri, the second-ranking Qaeda official, has just completed a book that renounces violent jihad on legal and religious grounds.

Such dissents are serving to widen rifts between Qaeda leaders and some former loyal backers, Western and Middle Eastern diplomats say.

“Many terrorists value the perception of popular or theological legitimacy for their actions,” said Stephen J. Hadley, Mr. Bush’s national security adviser. “By encouraging debate about the moral legitimacy of using weapons of mass destruction, we can try to affect the strategic calculus of the terrorists.”

It's about time. I have been saying for quite some time (just ask my students) that 9/11 represented a failure in American deterrence. The tepid responses to the numerous attacks against the US and American interests during the 1990s (the first WTC bombing, the dual embassy bombing in Africa, the bombing of the Khobar Towers, and the bombing of the USS Cole, all of which were met by police work and limited [and ineffective] cruise missile strikes) sent a clear message to the leadership of al Qaeda that the US did not consider international terrorism to be a primary concern and that the US would not respond seriously. If Osama bin Laden had believed that bringing down the twin towers and striking the Pentagon would result in the loss of Afghanistan as a haven, it's hard to imagine them not thinking twice about whether the cost would be worth the benefit.

Terrorists are rational actors; they use violence as a means to an end. And even if that rationality is hard for us to understand, they are nonetheless rational. The violence is not meaningless; it is not random. Targets are chosen for particular reasons and to advance particular goals. If the use of violence is ineffective, or even counterproductive, then its use makes no sense. It's about time that the US defense community has begun taking the deterrence of terrorists seriously.

UPDATE: Over at his blog, Dan Drezner notes that:

It's good stuff. But it's not "deterrence" in the Cold War sense of the word.

Successful deterrence of Al Qaeda would be taking place if the organization decided not to take action because they feared retaliation by the United States against assets that they held dear. Deterrence works if an actor refrains from attack because they calculate that the cost of the adversary's response would outweigh any benefit from the initial strike.

But that's not in the U.S. strategy. Instead, what U.S. officials appears to be doing is decreasing the likelihood of a successful attack -- by sowing confuson, interdicting logistical support, and reducing sympathy for the organization. The closest one could come to deterrence is if one defined Al Qaeda's reputation as a tangible asset that would face devastating consequences after a successful attack. Even here, however, the U.S. strategy is primarily to weaken Al Qaeda by increasing the odds of an unsuccessful attack.

The more appropriate word to use here is "containment." The United States is trying to sow divisions within the jihadi movement -- much like Kennan urged the United States to do among communists of different nationalities. The United States is applying counter-pressure in areas where Al Qaeda is trying to gain supporters and symathizers -- much like Kennan urged the application of "counter-force" in areas where the Soviets tried to advance their interests.

He's right. Mostly. Most of what the authors are describing isn't really deterrence, but containment or defense. But, deterrence does have elements that begin to blend into the other two concepts. Denial deterrence, for example, works by convincing the opponent that his attack will not succeed. From an article on the NATO website:

The deterrence by denial theory is not limited to missile defences, of course. The theory applies to any capability that can deny an enemy success in achieving his objectives. For example, passive defences such as decontamination equipment and suits and gas masks for protection against chemical and biological weapons might help to convince an enemy not to use such weapons. The National Security Strategy suggests that "consequence-management" capabilities for responding to weapons of mass destruction (WMD) attacks may contribute to both dissuasion and deterrence by denial. It states: "Minimizing the effects of WMD use against our people will help deter those who possess such weapons and dissuade those who seek to acquire them by persuading enemies that they cannot attain their desired ends."
If al Qaeda can be persuaded that their attacks will be, as I said before, ineffective or counterproductive, they may be deterred from carrying them out. True, this begins to look more like defense, but the lines are blurry here.

Monday, March 17, 2008

What is Justice in Uganda?

The dispute between Uganda and the International Criminal Court over the status of the indictments of Joseph Kony and other leaders of the Lord's Resistance Army has reached a crucial point. Yoweri Musevni, the president of Uganda, has announced that Uganda will refuse to hand Kony and the others under indictment over to the ICC so that a peace deal, including an agreement for Kony and others to face local, Ugandan courts, can be struck. The ICC issued the indictments when Uganda, an ICC signatory, referred the case to the ICC in 2005 and Uganda is now obliged, as a result of its accession to the ICC, to arrest Kony and his lieutenants and remand them to ICC custody. Now, Uganda believes that that obligation is an obstacle to peace, as Kony has little incentive to end his rebellion and sign a peace deal if doing so will result in his arrest and trial in international court. Uganda has asserted the right to withdraw its request for ICC involvement, since Uganda requested the ICC's participation, but, according to the Guardian article linked above:
Richard Goldstone, the former chief prosecutor for the Bosnia and Rwanda international tribunals which laid the ground for the ICC, has said that if Museveni gets his way it would be "fatally damaging to the credibility" of the court.

"I just don't accept that Museveni has any right to use the international criminal court like this," he said last year. "If you have a system of international justice you've got to follow through on it. If in some cases that's going to make peace negotiations difficult that may be the price that has to be paid."

Last week, the ICC prosecutor, Luis Moreno-Ocampo, refused to meet representatives of the LRA and said the indictments still stand.

The LRA is, unquestionably, deserving of punishment far beyond what a civil court can dish out. The LRA is infamous for abducting children and using drugs and terror to enslave them into their ranks, hacking off people's arms, legs, and even lips and eyelids, forcing children to rape and murder their parents, among other documented and reported atrocities. But should the desire to visit punishment and retribution on these monsters win out over the desire to resolve a long-running conflict that has killed, maimed, and dislocated thousands? Should the desire of the ICC and the international community outweigh the request of the Ugandan government to settle this conflict as it sees fit?

Over at Opinio Juris, Julian Ku and Kevin Jon Heller have been going back and forth on this issue. Julian sees the ICC as "an obstacle to peace," where Kevin argues that "it is difficult to argue that the ICC should simply step aside and leave the Ugandan government and the LRA to their own devices." According to Kevin:
There is obviously no guarantee that the two sides, once freed from ICC oversight, will negotiate a peace that is genuinely acceptable to ordinary Ugandans. Indeed, the evidence to date indicates otherwise. And, of course, the Court will suffer significant and potentially irreparable harm if it rewards the combined Uganda/LRA temper tantrum: as John Boonstra noted today (also at UN Dispatch), "[i]f the ICC is seen as capitulating to the demands of its host government — or worse, to those of an indicted war criminal — a dangerous precedent will be set for the court's work elsewhere."

What, then, is the right answer? It seems to me that the answer lies in the ICC's principle of complementarity. Given that ordinary Ugandans favor traditional justice for low-level perpetrators and criminal prosecution for high-level perpetrators, the Court should insist on two things: (1) that the Ugandan government and the LRA revert back to their original plan to try Kony and the other LRA leaders in Uganda's High Court; and (2) that the Ugandan government revamp its criminal justice system to satisfy the principle of complementarity. At that point — and only at that point — should the ICC step aside.
The principle of complementarity to which Kevin refers above is:
The International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes.

If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute.

A country may be determined to be "unwilling" if it is clearly shielding someone from responsibility for ICC crimes. A country may be "unable" when its legal system has collapsed.
I think Kevin has set the bar a bit too high here, but his general point is a good one. Uganda has acceded to the Treaty of Rome, creating a clear jurisdiction for the ICC. The ICC should be more deferential to the needs of its members, particular in cases where indictments may be barring the road to settling a conflict (or convincing a leader to step down). And while it's right for the ICC to insist on some level of serious prosecution, the presumption should favor Uganda. A desire to lightly punish, or even perhaps pardon, Kony in order to end the conflict should not be seen as unwilling, so long as the settlement is real. If that's the price of ending the conflict, and if Uganda is willing to pay that price, the ICC should not stand in the way. If, however, Uganda was to pardon Kony and his underlings without a real end to the conflict, then the ICC would be right to maintain its insistence on carrying out the arrest warrants.

This is a difficult test case for the ICC and the expansion of international law more generally. As the example of Uganda shows, politics is often too complicated for generalized international law to deal with simply. And while law must not be ignored, it also must not be allowed to stand in the way of ending one of the more brutal rebellions on the planet.

Tuesday, March 11, 2008

Why Antigua Matters

Last August, the US lost an important decision before the WTO in which Antigua challenged American bans on on-line gambling. The WTO found that, in general, US bans on on-line gambling were illegal under WTO rules because the US allows significant amounts of domestic on-line gambling (e.g. on-line purchases of lottery tickets, Internet-based off-track betting). Antigua won the right to, if the US didn't comply with the WTO rule by either allowing on-line gambling or banning all on-line gambling, impose sanctions equivalent to $21 million (Antigua had asked for $3.4 billion) on the US through copyright violations. In response, the US withdrew from the part of the WTO dealing with on-line gambling, and is presently in negotiations with several countries over compensation for the US action. According to the previously referenced article:
Under WTO rules, a country may withdraw a service sector committed to WTO jurisdiction only with the authorization of other WTO signatory countries interested in the sector and only after compensating for future lost revenue a WTO signatory country might have earned were the commitment maintained. ... The U.S. is engaged in negotiations with the European Union, India, Costa Rica and Macao to determine how much it must pay them for withdrawing the gambling sector. These negotiations focus on what new service sectors the U.S. will submit to WTO jurisdiction in exchange for withdrawing gambling.
Yesterday, however, apparently dissatisfied with American offers of compensation, the European Union launched an investigation into American rules banning on-line gambling to determine whether those laws discriminated against EU-based companies. The investigation is seen as laying the groundwork for a potential suit in the WTO against the US.

US behavior in this case is absurd and barely explicable. The moral opprobrium argument holds no water, as gambling in the US is widespread and accepted. Is it really any different if someone buys lottery tickets, go to Vegas or Atlantic City, or gambles on-line? The only possible explanation is the US seeks to protect a small gambling industry, and is willing to undermine the global free trade regime to protect that industry. When it was Antigua challenging the US, the US was apparently willing to pay millions of dollars to avoid opening up (or banning altogether) gambling markets. But the entrance of the EU into this equation changes the parameters of the game quite drastically.

Since the dynamics of the US law haven't changed, it seems all but certain that the EU could win any suit filed in the WTO. It also seems certain that the EU would be granted far more than $21 million of damages. At which point the US would be faced with a real choice: Pay the EU billions of dollars in compensation (which would, in all likelihood be equated by some penalty against the EU for European protection) or lift the ban. The latter is, obviously, not preferred by the US domestic political arrangements. The former threatens to undermine the WTO. As I wrote when I initially blogged about this case:

It is very important that the US comply with the WTO's decision. The WTO is one of the cornerstones of the international order, and is vital for insuring the continued prosperity of this country, and nearly every other country in the world. Furthermore, the US has been trying to get smaller, developing countries to accept American intellectual property rights laws under the WTO. Why would they do so if the US refuses to play by the rules (of course, the American, European, Japanese, and Korean refusals to ease or cease agricultural subsidies are already driving this line of thought, but at least ag policy is not currently covered by the WTO)? Refusing to comply will fundamentally damage US credibility and interests to a degree that not even the invasion of Iraq was able to do. It is vital to the US that other countries commit themselves to the WTO and comply with its obligations; it is equally vital that the US do the same.
That was true when it was just Antigua. Now that the EU is involved, it's even more true.

Tuesday, March 04, 2008

Where Is the US in the South American Crisis?

Tensions continue to rise in the squabble between Colombia, Ecuador, and Venezuela. In response to a Colombian raid into Ecuador that resulted in the death of a key rebel leader of FARC, Venezuela and Ecuador both expelled Colombian diplomats, curtailed trade between the countries, and mobilized troops and sent them to the Colombian border. In response, Colombia released revealed documents it claims to have seized in the Ecuadorian FARC camp implicating Venezuelan President Hugo Chavez as a major funding source for the Colombian rebels. Chavez has been blustering about the possibility of war, which, while unlikely, is highly destabilizing, particularly for a fragile country like Colombia. Trade between Venezuela and Colombia is normally robust, and, as Adam Isaacson, an analyst with the Center for International Policy, notes, the countries' militaries are not enthusiastic for war and the populations show little evidence of "war fever." However, revelations of Venezuelan funding for FARC along with Chavez's intimation that FARC will be allowed to operate freely in Venezuela make the possibility of another cross-border operation more likely which, at this stage, could be a catalyst for war, as Chavez has promised to retaliate against any Colombian incursion of Venezuelan territory.

Regional leaders, including the presidents of Mexico and Chile, have offered to mediate an end to the dispute, but so far, little progress at easing tensions has been made. The country that is most needed, in theory at least, to defuse the rising tension is the United States. With its political clout, military power, and economic might to provide inducements for cooperation, the US is invaluable in resolving these kinds of situations. In theory at least. In reality, US involvement would be, to put it mildly, counter-productive. The US, and President Bush, have spent so much time and energy needling Venezuela and Chavez about low-level policy disagreements like Venezuelan arms deal, not to mention the idiotic near-support for the attempted 2002 coup, the US has so poisoned the waters that it has no ability to influence the country when the situation is serious, as it is now. US attention has only emboldened and strengthened Chavez, allowing him to use US "imperialism" as a diversionary tactic to justify his domestic policies. It's hard to understand what the US believes it has gotten out of such antagonism, and now the policies are having a real impact on the ability of the US to maintain regional stability and order.

We can only hope that this situation will be resolved short of war. The countries of South America have enough problems without adding war to the mix. But we can also only hope that US policymakers will learn a valuable foreign policy lesson. Foreign policy capital is far too precious to squander on meaningless needling and ineffective interference. By engaging with and responding to Chavez's rhetoric and by developing a reputation as partisan and opposed to Chavez, the US has compromised its ability to act when its influence and power is most needed.