global texts
Friday, March 07, 2003

Three articles below suggest that the United States government might be torturing people - torturing them to death in some cases. The first, by Professor Joan Fitzpatrick of the University of Washington School of Law, was written as a letter to the editor of the New York Times, in response to two articles in the Times March 4 issue. Professor Fitzpatrick argues that if the information in the articles is accurate, the US and/or the individuals responsible have violated human rights treaties, basic norms of international humanitarian law, and have committed serious crimes under international and US law.

One of the articles that evoked Fitzpatrick's response is "U.S. MILITARY INVESTIGATING DEATH OF AFGHAN IN CUSTODY," by Carlotta Gall. It focuses on the deaths of two Afghans, apparently under interrogation by U.S. military intelligence operatives. Forensic pathologists, also from the US military, performed autopsies and ruled the deaths “homicides.” The killings occurred at an incarceration/interrogation facility set up and operated by the United States military at a US air base in Bagram, Afghanistan. In Gall's article, several Bagram survivors describe the overall conditions the US holds its captives under, and provide accounts of their interrogation sessions. These accounts include allegations that they were repeatedly assaulted by US interrogators. The commander of US forces in Afghanistan denies certain details in the survivors’ description of general conditions.

QUESTIONING OF ACCUSED EXPECTED TO BE HUMANE, LEGAL AND AGGRESSIVE, by Eric Lichtblau with Adam Liptak, the second article Fitzparick commented on, discusses overall US policy on interrogation, torture, and various laws and treaties that address these subjects. It describes certain policies and practices of the Bush administration regarding these subjects. The accuracy of such descriptions is, to a large extent, confirmed by statements of administration officials. Thus, the controversy that the article goes on to report is not factual but normative.

Professor Fitzpatrick’s letter sharply rebuked the Bush administration for its “utter disregard for the most fundamental norms of humanity in wartime.” Apparently her assessment of US policies is not idiosyncratic. The article reports similar criticisms from a number of international law experts and human rights organizations. The practices and techniques they denounce, according to the Bush administration, are permissible and appropriate.


Law Professor Denounces Bush For “Utter Disregard For The Most Fundamental Norms Of Humanity”

[Note: This letter came to me via the American Society of International Law listserve, thus I don’t have a link. Anyone who wants to use it has the author’s permission to do so.]

Subject: Torture as an impeachable offense
From: Joan Fitzpatrick
To: letters@nytimes.com

The "interrogation" techniques described in "U.S. Military Investigating Death of Afghan in Custody" (March 4, 2003, A14) violate basic norms of international humanitarian law. The Geneva Conventions require humane treatment of all prisoners, whether POWs or "unlawful combatants," and regardless of the nature of the conflict. All acts of violence or intimidation, outrages upon personal dignity, and humiliating and degrading treatment are strictly forbidden. Does the Department of Defense argue that chaining naked prisoners to the ceiling, in freezing weather, and kicking them to keep them awake for days on end, are practices consistent with the Geneva Conventions? Is the DOD prepared to tolerate this treatment of American POWs in the Iraq war?

These practices also violate human rights treaties to which the United States is a party, specifically the prohibitions on torture and cruel, inhuman and degrading treatment. The United States may not transfer Al Qaeda suspects to other states to facilitate their torture; that too is a violation. Moreover, there is no state on earth "that does not have legal restrictions against torture" ("Questioning of Accused Expected to Be Human, Legal and Aggressive", March 4, 2003, A13). The prohibition on torture is a peremptory norm of customary international law binding on all nations. The torturer is the enemy of all mankind.

If President Bush has commanded these practices, he has committed serious international crimes and crimes against the laws of the United States that are impeachable offenses. Congress must investigate immediately.
Secretary Rumsfeld last Friday again revealed his complete ignorance of the laws of war by suggesting that Iraqi POWs could be tried before military commissions. They may be tried only by court martial, under rules identical to those applicable to U.S. forces. As Bush and Rumsfeld are poised to launch a major war in Iraq, the world stands appalled by their utter disregard for the most fundamental norms of humanity in wartime. Heaven help our "enemies" and our own soldiers.

Joan Fitzpatrick

Jeffrey & Susan Brotman Professor of Law
School of Law, University of Washington
Box 354600 1100 N.E. Campus Parkway
Seattle WA 98105-6617
phone (206) 543-9368, fax (206) 685-6617

New York Times, March 4, 2003


By Carlotta Gall

YAKUBI, Afghanistan — The United States military has begun a criminal investigation into the death of an Afghan man in American custody in December, a death described as a "homicide" by an American pathologist.A death certificate, dated Dec. 13 and signed by Maj. Elizabeth A. Rouse, a pathologist with the Armed Forces Institute of Pathology, based in Washington, says the man died as a result of "blunt force injuries to lower extremities complicating coronary artery disease."

The Afghan, known by the single name Dilawar, a 22-year-old farmer and part-time taxi driver from this village in eastern Afghanistan, died in December while being held in the main United States air base at Bagram, north of Kabul...Two former prisoners, Abdul Jabar and Hakkim Shah, who recalled seeing Mr. Dilawar at Bagram, said the conditions to which they themselves were subjected at the time included standing naked, hooded and shackled, being kept immobile for long periods and being deprived of sleep for days on end.

Such accounts appear to raise troubling questions about the conditions of detention and the interrogation of prisoners in the fight against terror. President Bush said in January that "3,000 suspected terrorists have been arrested in many countries." He added that "many others have met a different fate" and "are no longer a problem to the United States."
Lt. Gen. Daniel K. McNeill, the United States commander of the coalition force in Afghanistan, ... acknowledged that prisoners had been made to stand for long periods. But he denied that they had been chained to the ceiling or held in chains attached to the ceiling and said he was confident that conditions at Bagram did not endanger lives. "[…]

Mr. Dilawar's elder brother, Shahpoor, produced the death certificate… [which] was handed over to his uncle by a United States military officer in Kabul along with his brother's body on Jan. 17… The certificate describes the circumstances of death: "Decedent was found unresponsive in his cell while in custody." Under "mode of death," there are four boxes listing "natural, accident, suicide, homicide." The box for homicide is marked…The United States military confirmed the authenticity of the document, although it had not disclosed its existence before its discovery here in this eastern Afghan village.

Chris Kelly, public affairs director at the Armed Forces Institute of Pathology… said Major Rouse had taken part in the autopsies of two Afghan men who died in custody at Bagram last year, one of whom was Mr. Dilawar." She is part of a global response team and any time we have suspicious, unusual deaths, or deaths that are not natural, our medical staff would go out," he said. "This is a typical case we would go to." Major Rouse would not be available for interview, he said…
Mr. [Hakkim] Shah, the former prisoner, said he had seen Mr. Dilawar with his feet chained…

So far no military personnel have been arrested or suspended in connection with the death, nor have any changes been made to routines inside the detention center, General McNeill said. “We haven't found anything that requires us to take extraordinary action…We are going to let this investigation run its course[, McNeill said and ]described Mr. Dilawar as having an advanced heart condition and said his coronary arteries were 85 percent blocked.
Another Afghan man also died in American custody on Dec. 3. He was Mullah Habibullah, brother of a former Taliban commander[,]...about 30[.] [He] was held in the same detention center at Bagram. His family said no American official had given them any information or explanation about the death, which [they] learned [of] from the International Committee of the Red Cross.

The United States military said Mr. Habibullah had died of a pulmonary embolism, or a blood clot in the lung.
Both men died within days of arriving at Bagram …in interrogation cells on the second floor of the detention building, a large hangar divided into isolation and interrogation cells upstairs, and an open-plan detention area downstairs, according to descriptions provided by the two former detainees, Mr. Jabar and Mr. Shah, and others. They described as many as 100 prisoners held there, separated into groups by wire-mesh dividing walls.

Mr. Jabar and Mr. Shah said they had been made to stand hooded, their arms raised and chained to the ceiling, their feet shackled, unable to move for hours at a time, day and night.

Mr. Jabar said he endured this treatment for 13 days. The prisoners, he said, were freed from their standing position only to eat, pray and go to the bathroom. Mr. Shah said he had spent 16 days in the upstairs rooms, standing for 10 of them until his legs became so swollen that the shackles around his ankles tightened and stopped the blood flow. He said he was naked the entire time and allowed to dress only when he was taken for interrogation or to the bathroom. Mr. Shah said the cold kept him awake, as did the American guards, who kicked and shouted at him to stop him falling asleep.

[Other] … former prisoners interviewed said they had been kicked by their guards and interrogators, either to prevent them from sleeping or during their interrogations.

Mr. Shah said he had been kicked hard just above the knee by a woman interrogator, while her male colleague held him in a kneeling position. The pain and humiliation was the worst part of his incarceration, he said. "It was a woman kicking me, and I had no power," he said.

Mr. Dilawar, who had a wife and 2-year-old daughter, was arrested, along with two other men, when his taxi was stopped by Afghan soldiers guarding the perimeter of the United States army base Salerno, on the outskirts of Khost, in eastern Afghanistan, according to his father and brother and local government officials.They said the three were innocent and arrested because they were in the wrong place at the wrong time.

That morning two rockets had been fired at the base, and Mr. Dilawar passed by at noon, they said. The soldiers found a stabilizer, a machine used to regulate electricity, in the trunk of his car. One of the passengers, Parkhudin, 30, a local policeman from the village of Turiuba, had a broken walkie-talkie with him. The other passenger, Zakhim, 25, was from the same village. The Afghan soldiers handed them over to the American soldiers in the base at Khost. Both men who were with Mr. Dilawar are still in custody.

On Dec. 5, Mr. Dilawar was admitted to Bagram…Five days later he was dead…Mr. Jabar, 35, a taxi driver from a town near Yakubi, says he remembers seeing Mr. Dilawar, hooded, being led downstairs to the bathroom. "I asked who he was because he was struggling a lot," he said.

Mr. Dilawar seemed to be in distress because he could not breathe through the thick material of the hood, Mr. Jabar said, and when the guard released his chains, he lay down on the ground. "I was sure he was uncomfortable…I told him, `Don't struggle because you make it worse for yourself.' I said, `Don't worry, you'll be there a few days and then you will be moved downstairs where it's better. He was scared because he could not get enough oxygen."

Mr. Shah, 32, a farmer…, also saw Mr. Dilawar once when he was being made to sweep the big room downstairs. "He did not look healthy," he said. "His face was a dark color. His feet were chained so he could not move well. He was looking very worried."

During his time in the upstairs rooms, Mr. Shah said, a doctor visited him three times, and eventually they let him sit down in the cell. When they opened his shackles…his feet were so swollen that he could not feel or move them. Nearly three months later, he says his legs still cause him pain.

The prisoners were kept for roughly two weeks in the cells upstairs and every day taken to an interrogation room where two or three intelligence officers questioned them. Later they were moved downstairs, where the treatment was more lenient. Still shackled but no longer masked, they could sit and lie down and could read the Koran.

Mr. Dilawar's family and friends described him as an inexperienced young man, ill prepared to handle tough interrogation and incarceration. "He had never spent a night away from his father and mother," his brother said.

Neither of the two men who died in Bagram were seen by officials of the International Committee of the Red Cross, who regularly visit prisoners in detention there. Red Cross officials said they did not have access to all the detainees, and from accounts of former prisoners, they do not visit the prisoners chained in the upstairs cells. Caroline Douilliez, a spokeswoman in Kabul, said the Red Cross, which helped trace the families of the dead men and arrange the handover of the bodies, had raised concerns with the United States military over conditions in the detention center and the two deaths there.


By Eric Lichtblau with Adam Liptak

WASHINGTON, March 3 — Khalid Shaikh Mohammed's American captors are likely to use tactics like sleep deprivation and psychological manipulation in trying to pry information from him, officials said today. But the White House promised that Mr. Mohammed, the terrorist mastermind, would be treated humanely. "The standard for any type of interrogation of somebody in American custody is to be humane and to follow all international laws and accords dealing with this type subject," the White House spokesman, Ari Fleischer, said to reporters. "That is precisely what has been happening and exactly what will happen."

Mr. Mohammed, captured on Saturday in Pakistan after a years long pursuit, is in the custody of the C.I.A. at an undisclosed site outside Pakistan, officials said. American officials said they believed that Mr. Mohammed could provide them with a potential trove of information about his boss, Osama bin Laden, and Al Qaeda.

The officials added that they expected the Central Intelligence Agency to use every means at its disposal, short of what it considers outright torture, to try to crack him.

Human rights advocates said they were concerned that the United States might violate the spirit, as well as the letter, of international accords by subjecting Mr. Mohammed to extreme treatment or by turning him over to a country that it knows will be willing to torture him.

With 3,000 terrorist suspects detained since the Sept. 11, 2001, attacks, the C.I.A. has questioned many top-level figures from Al Qaeda at a detention center at the Bagram Air Base in Afghanistan and locations in Pakistan. Officials said Ramzi bin al-Shibh, another important Qaeda supervisor, who was arrested in the fall, was secretly taken to Thailand for questioning before the United States moved him to another undisclosed location.

The United States is holding 650 people captured in Afghanistan, many of them considered lower-level members of the Taliban and Al Qaeda, at the Guantánamo Bay Naval Base in Cuba.

In seeking information from Qaeda members, the United States has deprived suspects of sleep and light, kept them in awkward physical positions for hours and used psychological intimidation or deception to confuse and disorient them, officials said.

"There are a lot of ways short of torturing someone to get information from a subject," a United States official said today. "Keep in mind that this is a guy who was not only the mastermind of 9/11, but was also actively involved in plotting future and ongoing terrorist operations. This is a guy who potentially has information about planned terrorist operations that could save American lives. Everyone would understand the wisdom of finding out whatever information we can from him."

In the case of Abu Zubaydah, an important lieutenant to Mr. bin Laden who was shot in the chest, groin and thigh a year ago when he was apprehended in Pakistan, American questioners teased him with occasional painkillers to try to cull information, officials said. Mr. Zubaydah apparently gave investigators false information that led the Justice Department to issue warnings that were later discredited. But he also gave valuable leads that helped in identifying Mr. Mohammed and Jose Padilla, who was arrested last year in Chicago in a reported conspiracy to detonate a "dirty bomb."

[L]awyers for John Walker Lindh…said he made incriminating statements about his activities with the Taliban in Afghanistan only after American special forces had subjected him to "torturous conditions." The lawyers said Mr. Lindh, "wounded, starved, frozen and exhausted" after being captured in December 2001, was blindfolded, stripped naked and bound with duct tape to a stretcher, with a bullet left in his leg.

American officials dispute those statements, saying he had been well treated.

Washington is also known to have turned terrorist suspects over to countries like Egypt, Jordan and Morocco that are more willing to use more aggressive questioning, what human rights lawyers have called torture, in efforts to break suspects.

"I am allowed to use all means in my possession" in interrogating a suspect, a senior Moroccan intelligence official said in an interview. "You have to fight all his resistance at all levels and show him that he is wrong, that his ideology is wrong and is not connected to religion. We break them, yes. And when they are weakened, they realize that they are wrong."

Senator John D. Rockefeller IV of West Virginia, the ranking Democrat on the Senate Intelligence Committee, has suggested that the United States might consider turning over Mr. Mohammed to a country that does not have legal restrictions against torture. "I wouldn't rule it out," Mr. Rockefeller said on Sunday on "Late Edition With Wolf Blitzer" on CNN. "I wouldn't take anything off the table where he is concerned, because this is the man who has killed hundreds and hundreds of Americans over the last 10 years." ... An aide to Mr. Rockefeller said today, however, that the senator was not condoning the idea of turning Mr. Mohammed over to a country that uses torture, nor does he think the United States will opt to do that.

Under an international treaty on torture and American criminal law, United States officials are prohibited from using torture against suspects. In the treaty, torture is defined as the infliction of "extreme pain or suffering, whether physical or mental." When the United States ratified the antitorture treaty in 1994, Congress also passed a law making torture committed in the United States or by an American anywhere a felony punishable by 20 years in prison. Torture resulting in death can give bring the death penalty.

Legal scholars said if American officials were seeking to avoid those restrictions by winking at rough questioning by officials of other nations to whom they have delivered suspects, they may still be violating the treaty.

"If the United States is turning people over to people who might torture them," said Harold Hongju Koh, a professor of law at Yale and a State Department official in the Clinton administration, "that is a violation of our obligations under the torture convention, which prevents us from returning people to conditions of torture."

Yale Kamisar, a professor of criminal law at the University of Michigan, agreed. "The United States is just as responsible as if it had done the torture itself," Professor Kamisar said. "I don't think the government gains anything by winking."
Elissa Massimino, director of the Washington office of the Lawyers Committee for Human Rights, said, "If the C.I.A. is saying, `We're not really involved in the interrogation, we're just standing outside the room and passing questions,' they are not absolved."

The treaty makes no exceptions for combating terror.

Precisely what constitutes torture is a subject of dispute. The Israeli Supreme Court and the European Court for Human Rights in Strasbourg, France, have ruled that many sorts of intensive questioning, including sleep and sensory deprivation, extreme temperatures, withholding of medical treatment, violent shaking and making prisoners assume awkward positions can amount to torture.

Human Rights Watch…wrote to President Bush in December to protest reports of extreme tactics. It director, Kenneth Roth, said today that he was concerned that with a possible war in Iraq, American captives might be more likely to face torture as a result of Washington's silence on the issue. "The next time Americans are taken as prisoners of war and the Pentagon seeks decent treatment," Mr. Roth said, "the opposing nation will say, `What Geneva Convention? You ripped it up at Guantánamo Bay.' "

Wednesday, March 05, 2003
German Law Journal Vol. 4 No. 3 - 1 March 2003 - European & International Law

"Freiburg Lawyers' Declaration" of 10 February 2003 – On German Participation In A War Against Iraq*

By Kai Ambos

[Editors' Comment: As is well known, opposition to a possible war against Iraq has been, within the Western world, among the strongest in Germany. Accurately sensing an overwhelming rejection of any armed intervention in Iraq among the German populace, the Social-Democrat / Green coalition government led by Chancellor Gerhard Schröder and Foreign Minister Joschka Fischer began to take a stance against the forcible disarmament of Iraq and the toppling of the regime of Iraqi President Saddam Hussein during their re-election campaign in the fall of 2002. Since then, and in the face of an ever more undisguised intention on part of the Bush administration to go ahead with a war under all circumstances, Schröder and Fischer have reiterated and reinforced their position, going as far as to rule out any active German participation in an armed intervention even if such was eventually called for by the Security Council. The German government's position has been complicated by the fact that Germany is currently an elected member of the Security Council, and held its rotating presidency in the month of February. Its relations with the United States have been strained on account of the incompatibility of views on how to resolve the Iraq crisis, and Germany has increasingly found itself in an isolated position on the international plane, though it has recently been joined by France and Russia in its attempts to yet avoid a war. The Christian-Democratic and Liberal opposition have alleged that the Schröder government has internationally isolated the country, and, worse, alienated it from its traditionally strongest ally, the United States, in order to distract from its current domestic unpopularity. Be this as it may, it is probably true to say that the great majority of Germans across all sections of society are genuinely strongly opposed to a war. Such pacifist sentiments link back to the peace movement of the late 1970s and 1980s which saw an equally broad cross-section of society march side by side to protest against the military build-up of the Cold War, and which, among others, brought about the Green party itself. Critics have alleged then and now that such radical pacifism is both naive and the wrong lesson to be learned from Germany's omnipresent Nazi-past. Interestingly, the non UN-sanctioned intervention in Kosovo had the strong support of both this just re-elected government, as well as the general public, although the more mainstream adherents of a German ‘no' to an Iraq intervention point to the very different circumstances in that case.

The open letter to the Chancellor, the Cabinet, and Members of Parliament re-printed below, which has been named the "Freiburg Lawyers' Declaration" by its authors, has to be seen in the context of these pacifist sentiments. Its authors are academics and practicing attorneys from the small but venerable southwest German university town of Freiburg – noted, among others, for a long line of partly world-famous academics, of which the philosopher Martin Heidegger is, perhaps, the best known, as well as for recently having elected the first Green Party mayor in Germany. The fact that the "Declaration" was subsequently signed by more than one-hundred jurists, both academics as well as private attorneys, judges and public prosecutors, shows that the anti-war feeling runs deep and is not strictly tied to party political allegiance. The Declaration's particular take on the legality of the different intervention scenarios is, however, far from uncontroversial, and GERMAN LAW JOURNAL has opted to publish it in order to show the plurality of opinion on this issue, and to encourage serious debate in a climate which is generally marked by mutual prejudice, simplification and misunderstanding. GERMAN LAW JOURNAL, of course, does not thereby substantially endorse or reject this particular point of view.]

Open Letter to the Federal Chancellor of the Federal Republic of Germany, the members of the Federal Government, and the members of the German Bundestag

10 February 2003 – 5:00 p.m.

Authors and Initial Signatories of the Declaration: Associate Professor Dr. Kai Ambos, Freiburg; Attorney and Associate Professor Dr. Jörg Arnold, Freiburg; Attorney Dr. Udo Kauß, Freiburg; Attorney Franziska Scheuble, Freiburg; and Attorney Dr. Konstantin Thun, Freiburg

[1] The US administration has offered several different justifications for a war against Iraq. Yet, in essence, the planned military intervention comes down to an act of aggression against Iraq, the characterization of which as a "preventive" war does nothing to alter its illegality under international law. Every such act of aggression violates the prohibition of the use of force stipulated in Art. 2 ( 4 ) of the UN Charter. The use of force in self-defense under Art. 51 of the Charter is only permitted in order to repel an actual or imminent military attack. The danger of such an attack must be concrete. Any justification of an armed attack under Chapter VII of the Charter would have to be premised on a prior determination by the Security Council that Iraq threatens international peace and security through the production of weapons of mass destruction and that peaceful means to contain that threat are no longer sufficient. A Security Council resolution which would authorize the use of military force against Iraq without having made such a determination, and without having made clear the ultima ratio function of military measures, would itself violate the Charter (Art. 39 read together with Arts. 41 and 42), and, thus, be illegal under international law.

As to a German Participation in a War Against Iraq, Three Possible Scenarios:

Scenario 1: Participation in an illegal war of aggression led by the United States

[2] An active participation by the Federal Republic in an illegal attack on Iraq would not only violate Art. 26 of the Grundgesetz (German Basic Law), (1) but it would also entail the criminal responsibility of those in command for the preparation of a war of aggression (Vorbereitung eines Angriffskrieges) (Section 80 of the German Criminal Code - Strafgesetzbuch). The Federal Republic has most recently reconfirmed its commitment to the prohibition of wars of aggression in Art. 2 of the Two-Plus-Four Treaty, which states that "only peace will emanate from German territory."

[3] As far as participation in a war of aggression within the framework of NATO is concerned, such as the granting of rights of passage through its air space, the Federal Republic, since the Two-Plus-Four Treaty (Art. 7, para. 2), possesses full sovereignty, including sovereignty over its air space. Those rights of free passage without prior consent for NATO contingents which are laid down in the 1994 Additional Protocol of NATO's Status of Forces Agreement (SOFA) and which are meant to enable the fulfillment of NATO's operational tasks, transcend the limits set by both the Basic Law and international law: in case of a war illegal under international law, or contrary to the letter and spirit of NATO, the Federal Republic is not only entitled, but, indeed, constitutionally obliged to refuse the use of German air space to the United States and its allies.

[4] Even the possibility of a deployment of US forces stationed in Germany in an Iraq campaign, the use of military command facilities, or the transfer of military material to the Persian Gulf, would go beyond the limits of the law: according to Art. II of NATO's SOFA, troops stationed in a member state are obliged to respect the law of the host state, as well as to "abstain from any activity incompatible with spirit of this agreement […]." The relevant law of the host state Federal Republic of Germany is the Basic Law, and specifically the prohibition of the planning of any war of aggression. Art. 26 of the Basic Law therefore prohibits a participation in an illegal war not only to the organs of the Federal Republic, but also to the NATO troops stationed in Germany. The federal government is, thus, already obliged by German constitutional law to prevent the involvement of NATO forces stationed in Germany in such a war.

[5] The prohibition of the planning of a war of aggression also includes the rendering of military assistance, such as the provision of the Patriot anti-ballistic missile system and AWACS reconnaissance aircraft, at least insofar as they turn out to directly assist such a war. The Federal Constitutional Court has only recently decided that the Federal Republic may not be a member of a collective security system which does not serve the preservation of peace, or, indeed, engages in the preparation of a war of aggression (Official Collection of Decisions by the Federal Constitutional Court - Bundesverfassungsgericht: BVerfGE Vol. 104, pp. 5 ff., 22 f.).

Scenario 2: Participation in a war authorized by the Security Council but, nonetheless, illegal

[6] A military campaign mandated by the Security Council, which is, thus, formally effective, though materially illegal under international law, still transcends the legal limits outlined above: before it authorizes the use of force according to Art 42 of the Charter, the Security Council has to determine, according to Art. 24, that a threat to international peace and security exists. Although the latter requirement has been somewhat relaxed in recent times, Art. 24 still locates the competence to determine an international breach of the peace in the Security Council; economically motivated military attacks or military reprisals are, hence, forbidden. In any case, an ultra vires act by the Security Council neither alters the law of the UN Charter nor does it set aside the prohibition of a war of aggression under Art. 26 of the German Basic Law. The Federal Republic would, therefore, not merely be forbidden to participate in such a war, but, as a non-permanent member of the Security Council, she would additionally also be obliged to abstain from voting in favor of a legally doubtful UN mandate which had only come about through political pressure.

Scenario 3: Participation in a war which is legal under international law

[7] Should the Security Council find that Iraq has significantly infringed resolution 1441 (2002) and should it determine this to constitute a threat to or breach of the peace according to Art. 39 of the Charter, it may authorize member states to take military enforcement measures. Such use of force would not represent an illegal war of aggression, and the Federal Republic would not be prohibited by Art. 26 of the Basic Law from tolerating, or indeed, from actively rendering assistance to such enforcement action.

[8] Another question, however, concerns an obligation on part of the Federal Republic to render assistance in case of legally mandated enforcement action. The Charter explicitly foresees the use of regional arrangements or agencies for the implementation of enforcement measures (Art. 53 ( 1 )). Whether NATO, as a classic defense alliance, falls under this category is controversial. It is, however, without doubt that the obligations arising through the NATO alliance, as set out in Art. 3 of the North Atlantic Treaty, the SOFA and its Additional Protocols, as well as the bilateral Assistance Agreements between the Federal Republic and the United States of 1955 and 1982, are strictly tailored to the original and core objective of the organization, namely collective self-defense. The expansion of NATO's operational tasks into peace-keeping and conflict prevention through an enlarged concept of security, as set out in the new Strategic Concept of 1999, cannot alter the Treaty's purpose or the obligations of member states arising there under; if anything, these new tasks are, as yet, no more than sub-conventional "soft law" which does not substantially alter the Treaty (BVerfGE 104, 151 ff., 199ff.). This is especially the case with the new US doctrine of "preventive self-defense," which is merely a unilateral governmental declaration from which no multilateral obligations can arise. The Federal Republic is, hence, even in case of legal enforcement action by means of NATO (according to Art. 42), not bound to tolerate or to actively participate in an armed intervention in Iraq. In particular, the Federal Republic retains, on account of its full sovereignty under international law, the option to refuse permission of the use of its air space by NATO forces under Art 57 of the Additional Protocol of the SOFA. "Obligations of friendship" do not exist under international law. Neither does the "mutual assistance" clause in the Charter (Art. 49) mandate German military involvement in a war declared by the Security Council.

[9] It can therefore be concluded that even a legal mandate from the Security Council cannot establish an obligation of the Federal Republic under international law to participate in a war against Iraq. Hence, regardless of any political judgment of the matter, a refusal by the Federal Republic to participate in the war is, in all possible circumstances, in conformity with international law, and in case of an illegal war, it is even mandated. The Federal Government and the Bundestag are, therefore, called upon to develop and support, in accordance with the Charter, all non-violent means that serve the maintenance of peace.

*(*) Translation by Florian Hoffmann, Florence/Tübingen.

(1) Art. 26 ( 1 ) reads: "Acts which are capable of, and are undertaken with the intention to disturb the peaceful coexistence of all peoples, and especially those acts aimed at the preparation of a war of aggression, are unconstitutional. They are to be punished by law."


Bush's Nuclear Revolution: A Regime Change in Nonproliferation

by George Perkovich

From Foreign Affairs, March/April 2003

The WMD proliferation problem involves biological, chemical, and nuclear weapons, but the third raises the most telling issues. Chemical and biological weapons are legally prohibited by treaty, and so the challenge they pose is basically one of enforcement. Nuclear weapons, on the other hand, are temporarily legal in five countries, not illegal in three others, and forbidden essentially everywhere else -- a complex and inconsistent arrangement that presents a unique set of dilemmas.

This regime was established by the nuclear Nonproliferation Treaty, signed in 1968 and extended indefinitely in 1995. Shaped largely by the two superpowers, the NPT posited that the world would be more secure if proliferation did not extend beyond the five states (the United States, the Soviet Union, the United Kingdom, France, and China) that at the time possessed nuclear weapons. It reflected the widely held judgment that the more nuclear weapons holders there were, the greater the risks would be that some weapons would go off, either accidentally or on purpose.

The vast majority of countries, however, felt that "total elimination of nuclear weapons is the only absolute guarantee against [their] use," and enshrined this conviction in Article VI of the NPT. That is, nuclear weapons per se are a problem, even if they could serve as effective deterrents against certain threats. The United States and the other four nuclear powers accepted this proposition and in May 2000 reaffirmed their "unequivocal undertaking" to eliminate their nuclear arsenals.

To persuade the rest of the world to give up its right to future acquisition of nuclear weapons, in other words, the nuclear weapon possessors had to promise to give up their own eventually. They had to offer other incentives as well: a pledge not to use their weapons to threaten non-possessors, help in acquiring and using civilian nuclear technology for states that renounced nuclear weapons and accepted international monitoring, and the enhanced security of knowing that the treaty would also help keep one's neighbors from acquiring nuclear weapons. On this foundation, the United States and other countries have constructed over the years a nonproliferation regime of norms, laws, rules, institutions, sanctions, and, ultimately, un-backed coercion.

Since the NPT was agreed to in 1968, only five states have acquired nuclear weapons: Israel, India, Pakistan, South Africa, and perhaps North Korea. The first three never signed on to the treaty, and so their ongoing possession is morally, politically, and strategically (although not juridically) akin to that of the original five nuclear powers. South Africa subsequently gave up its weapons and joined the regime as a nonpossessor. North Korea, which did sign the NPT in 1985, has been caught twice escaping its obligations and is now trying to cut a new deal.

Argentina, Brazil, South Korea, and Taiwan ceased their suspected nuclear weapons development programs over the years. Belarus, Kazakhstan, and Ukraine inherited nuclear weapons upon the Soviet Union's dissolution but opted to relinquish them in favor of joining the NPT. Iraq had a clandestine illegal nuclear weapons program that was detected and largely dismantled as a result of the last Persian Gulf War. Today, therefore, Iran is the only state known to be actively seeking nuclear weapons -- in violation of the spirit, if not the letter, of its nonproliferation commitments -- that is not also under some form of "arrest."

Most analysts would agree that the arms control regime has worked better and longer than expected but nevertheless needs to be strengthened to better handle new circumstances and challenges. The Bush administration thinks otherwise. It concludes from the few problem cases that "traditional nonproliferation has failed," as one White House official recently told The Washington Post.

To administration radicals such as Robert Joseph (the National Security Council's senior counterproliferation official), Douglas Feith (undersecretary of defense), John Bolton (undersecretary of state), and Stephen Cambone (principal deputy undersecretary of defense), nuclear weapons per se are not the problem -- "bad guys" with them are. Rejecting the fundamental premise of the NPT, these officials seek not to create an equitable global regime that actively devalues nuclear weapons and creates conditions for their eventual elimination, but rather to eradicate the bad guys or their weapons while leaving the "good guys" free of nuclear constraints. Ballistic missile defense, in this vision, will protect against the few weapons that get away, while Special Forces and the Department of Homeland Security will protect against non-missile-borne threats.

The administration has enunciated this position with admirable clarity in its new national security strategy. Commentators have fixated on the invocation of "preemptive" military action to counter enemies seeking "the world's most destructive technologies." Yet this is not the crazy idea it is often portrayed to be. To enforce a robust nonproliferation regime, preemption might actually make sense in certain cases. The real problem in the new strategy is not preemption but narrowness -- the focus on three wretched governments and terrorists, and the emphasis on force, coercion, and selective treaty enforcement as the main instruments of national policy.


Conservative defense intellectuals and officials deserve credit for highlighting the fact that effective nonproliferation requires changes in the policies or governments of states unwilling to abide by international laws and norms. Yet they then proceed to make the reverse mistake, looking only at the outlaws and ignoring the challenges posed by nuclear weapons in general. So long as some states are allowed to possess nuclear weapons legitimately and derive the benefits that flow from them, then other states in the system will want them too -- including, perhaps, the successors to the governments the Bush administration currently opposes. The proliferation threat thus stems from the existence and possession of nuclear weapons and theft-prone materials, not merely from the intentions of today's "axis of evil." Redressing this larger threat requires cooperation from Russia, China, Japan, South Korea, and others, as the administration has discovered now in dealing with North Korea.

The nonproliferation radicals recognize that the good guys of today can become the bad guys of tomorrow. So they say the United States must retain and "upgrade" an enormous strategic arsenal forever to deter or defeat any adversary. At the same time, they argue that the new bad guys (rogue states and terrorists), unlike the old bad guys (the Soviet Union), cannot be deterred and contained and so must be eliminated quickly. The Bush administration thus essentially favors a strategy of repeated regime change plus a large, steadily modernizing nuclear arsenal.

This bleak vision makes sense only if the determination to retain deployed nuclear arsenals forever does not exacerbate proliferation risks, and if the weapons being retained provide a necessary, usable, and effective deterrent against threats that are greater than proliferation. Since neither of these assumptions is valid, the strategy is flawed.[...]


Instead of trying to make nuclear weapons anathema, the hawks prefer to focus on "enforcement." In the new strategy's words, "We will hold countries responsible for complying with their commitments." This is welcome; enforcement of nonproliferation regimes should indeed be strengthened. Yet the administration does not seem to recognize that it is easier to make others comply with their commitments if you comply with yours, both within treaties and across them. The United States does not, in fact, comply with important commitments it has made under the NPT, such as the promise to move toward giving up its weapons, and Washington clearly has no intention of doing so.

The Comprehensive Test Ban Treaty represents the single clearest and most immediate commitment the nuclear weapons states have made to fulfill their disarmament obligations under the NPT. "We're not for that," a Bush administration official says. How about the "unequivocal undertaking" to eliminate all nuclear arsenals? "We're not for that, either," the official says. Indeed, the White House's new counterproliferation strategy does not mention any nuclear weapons state obligations or commitments to reverse the salience, size, and modernization of nuclear arsenals, beyond urging negotiation of a ban on further fissile-material production "that advances U.S. security interests."

As evidence of compliance with NPT disarmament obligations, Bush administration officials cite the recent Moscow Treaty with Russia. Yet this treaty "requires" the United States and Russia only to reduce deployed strategic forces from 6,000 today to between 1,700 and 2,200 warheads. Because the treaty lacks a schedule of phased reductions, either party could defer cuts until December 31, 2012, at which point violations would be moot because the treaty expires on that day. The treaty also does not require the elimination of a single nuclear missile silo, submarine, missile, warhead, bomber, or bomb.


Real security against weapons of mass destruction requires all relevant states and individuals to enforce vigorously the treaties, rules, laws, and procedures that have been established to outlaw chemical and biological weapons and to contain, and ultimately eliminate, the threats posed by nuclear arsenals. Some argue that this is a fantasy because nuclear weapons, and chemical and biological weapons, cannot be disinvented. This ignores the fact that they do not have to be. The Reagan administration and Moscow did not disinvent intermediate-range nuclear missiles, but they eliminated them from their arsenals. South Africa did not disinvent its nuclear arsenal, but it did decommission it.

As Ronald Reagan, for one, envisioned, nuclear weapons can be verifiably withdrawn from the serviceable arsenals of states. This will take many decades to accomplish and will be finished only if and when the world in general has achieved the sort of integration and obedience to the rule of law that the Western hemisphere and Europe have developed in the past 50 years. This rule of law will have to be backed by internationally legitimate and robust instruments of coercion for the dangers to be kept at bay. Merely stating such a goal makes clear how far we are from it at present. But unless the United States and other leading countries vigorously proffer this vision the proliferation problem will get more dangerous rather than less.

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