International Law

Alex Grigsby is the assistant director for the Digital and Cyberspace Policy program at the Council on Foreign Relations.  As Adam mentioned the other day, the Sony hack highlighted the fact that even after years of debates and increased public attention on cyber issues, fundamental policy questions in this area remain unanswered. For example, no one has been able to satisfactorily determine when a cyber incident becomes an armed attack. When does a cyber incident cross the threshold that allows a victim country to respond with force consistent with its inherent right to self defense? Does the incident need to kill people or will physical damage, or even economic damage as in the Sony case, suffice? These are tricky and wrenching questions to answer. Yesterday during a House Foreign Affairs Committee briefing on North Korea, Brig. Gen. (Ret’d) Gregory Touhill, deputy assistant secretary for cybersecurity operations and programs at the Department of Homeland Security, hinted that the Obama administration was working on a framework to determine how the government should respond to a particular cyber incident based on its severity. Responding to a question from Rep. Gerry Connolly (D-VA) who asked "at what point does the intensity and severity and magnitude [does a cyber attack] constitute an aggressive act that has to be addressed?" Touhill replied: Currently, the administration is working to put together that a codified construct for the priorities and the prioritization, and taking a look at it from a risk management and consequence management standpoint. That’s still a work in progress. But ultimately through our congressional processes and our constitutional processes, rather, you know, we -- we will be making those determinations. Touhill’s answer, while convoluted, makes clear that the Obama administration is working on some sort of framework that could determine when a cyber incident reaches the level of an armed attack. Government officials, like everyone else, prefer it when things are easy and straightforward. It would be great to have a framework document that sets out the criteria to determine when the United States is cleared to reply to a cyber incident with force. The problem with these efforts are that determinations of whether something constitutes an armed attack is an inherently political decision, not a bureaucratic one. Responding to a cyber incident with force is a serious decision for any country, and a head of state will want maximum flexibility before making it. They won’t want to be constrained by a bureaucracy’s attempt to rationalize whether an incident meets the armed attack threshold, a concept which is also fuzzy given the lack of international consensus on the definition of an armed attack. Further, as Matthew Waxman argues, a country’s response to a cyber incident will not only rest on its interpretation of the law but also on its broader strategic interests. That explains why NATO’s cyber doctrine gives the North Atlantic Council, the organization’s peak decision-making body, the authority to determine when a cyber incident is severe enough to invoke Article 5 on a case-by-case basis instead of some pre-determined matrix. It also explains why Iran didn’t consider the Stuxnet incident an armed attack, as the Iranians probably didn’t want to trigger a conflict with the United States and Israel, Stuxnet’s alleged authors. Saudi Arabia, Qatar, and the United States probably made the same calculus when confronted with disruptive and sometimes destructive cyber activity that affected Aramco, RasGas, and U.S. financial institutions in 2012. Government mandarins and academics can try as hard as they want to come up with an answer as to when a cyber incident meets the threshold of an armed attack, but a head of state’s likeliest response is going to be: "When I say so."

Below is a guest post by Naomi Egel, research associate in the International Institutions and Global Governance program. Though armed conflict endures, 2014 closes with a bit of good news: the Arms Trade Treaty (ATT) entered into force on December 24. Much of today’s global violent conflict is fueled by illicit weapons, which are easily diverted to conflict zones thanks to a vacuum of oversight. Shockingly, the international banana trade is more strictly regulated than the international arms trade. The ATT is an enormous step toward limiting the suffering caused by these illegal weapons transfers. Ratified by sixty-one countries, including five of the top ten arms exporters, this treaty regulates international arms sales from one state to another, in order to prevent small arms and light weapons from being used “irresponsibly” to perpetrate human rights abuses. The ATT merely regulates the legal arms trade: it recognizes that there are legitimate uses for guns and does not seek to ban them. Though the ATT has its shortcomings, it is an important contribution to a growing body of international humanitarian law that limits how humans can kill and maim. The first major call for an ATT came from a group of Nobel laureates, led by Oscar Arias in 1995, which advocated an International Code of Conduct on Arms Transfers. The laureates, joined by many civil society organizations under the banner of the Control Arms campaign, drew explicit causal links between the irresponsible arms trade and human rights violations, demonstrating how the legal arms trade between countries often fueled violence and hindered development. In particular, they emphasized how human insecurity caused by irresponsible small arms transfers hindered efforts to achieve the Millennium Development Goals (MDGs), tying the issue to states’ existing obligations to alleviate poverty and meet basic needs. Article Six of the ATT explicitly prohibits arms transfers in certain situations—including if the exporter knows they would be used for genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians, or other war crimes. Where arms transfers are permitted, states must undertake a comprehensive risk assessment and examine the probability that the arms might be diverted. The ATT is also the first treaty to ever include a specific provision on gender-based violence: when deciding to authorize a transfer, a state is required to consider the risk that the arms would be used to commit gender-based violence such as mass rape. By requiring states to track arms exports, it creates a dual responsibility for both arms exporters and importers to prevent diversion or illicit trafficking of arms. The ATT has several shortcomings, however. It does not specifically outlaw any arms transfers or sales. States are only required to conduct an assessment and conclude that the transfer would be responsible. The ATT does not establish any sort of arbitration body to resolve disputes over such self-assessments. Furthermore, it regulates ammunition, parts, and components under export licensing obligations but not under most of the treaty’s other provisions, including those relating to imports, transit and trans-shipment, brokering, and diversion. The treaty also does not cover gifts and loans; only direct arms sales from one state to another. In addition, some argue that since the ATT only covers existing weapons, it is ill-equipped to address new types of weapons or future weapons that may fall outside the stipulated categories. Ultimately, the ATT’s ability to safeguard human life depends on its implementation and ability to adapt. The United States has signed, but not ratified the treaty (to sign a treaty is to declare support for it, but to ratify a treaty is to implement it as domestic law). The country is unlikely to ratify the ATT in the near future, particularly under the new Congress. The National Rifle Association (NRA) and other gun advocates have actively opposed the treaty since the start of negotiations. Painting the UN as a “global nanny,” they claim that the ATT would regulate domestic gun sales and would require a national registry of gun owners. Although the ATT regulates only the international arms trade between countries (not domestic transactions between people) and is silent on individual arms ownership, these arguments have convinced many members of Congress to oppose the ATT. Much of the rhetoric in the U.S. debate over the ATT concerns not the substance of the treaty text, but the symbolism of gun ownership, interpretations of Second Amendment rights, and U.S. sovereignty. Failure to ratify the treaty undermines U.S. credibility in advancing human rights globally. Given that the United States already has in place strict requirements for international arms sales that exceed the standard set by the treaty, perhaps one day the Senate can push past these exaggerated concerns and ratify the treaty. In the meantime, the United States could still further the goals of the treaty by using its diplomatic leverage to pressure other arms exporters to stop funneling arms to states and nonstate groups that commit human rights abuses. Even without ratification by the United States—the world’s largest arms exporter—the ATT can effectively make the international small arms trade more responsible. It can achieve this even without the participation of Russia and China, two of the other top five arms exporters. Much of the ATT’s value stems from its normative role in establishing categories of “responsible” and “irresponsible” arms transfers. In an unprecedented step, the ATT extends culpability for human rights abuses to states that knowingly facilitate human rights abuses by providing the weapons used for such atrocities. The ATT also builds on treaties such as the ban on anti-personnel mines that have emphasized humanitarian effects to limit the use of certain weapons. Though the United States never ratified the Mine Ban Treaty, it has brought itself into compliance with the treaty—except for in the Korean Peninsula—and has made significant contributions to clearing mines globally. Thus, it can mimic this “implementation without ratification” strategy for the ATT, and cite this commitment when pressuring others to follow suit. For their part, even if Russia and China do not ratify or otherwise comply with the treaty, they may find that some of their customers, that themselves have ratified the ATT, prefer to not buy arms—even if for legitimate purposes—from countries that facilitate human rights abuses through irresponsible arms sales. Finally, regardless of the participation of top arms exporters, if a high number of states ratify the treaty, criminal arms traffickers will find fewer countries to use as bases or havens from which to traffic arms illegally. Because states assess their own transfers, however, the treaty is only as strong as states make it. As the largest arms exporters that have ratified the treaty, France, Germany, and the United Kingdom can send a strong signal by reporting comprehensive data on their arms transfers. This will encourage transparency in reporting. Additionally, parties to the Arms Trade Treaty must ensure that its secretariat, not yet in place, obtains the robust mandate and sufficient financial resources it needs to assist states in implementing the treaty. While the ATT is not a panacea to prevent human rights abuses involving small arms violence, it is a starting point. While its potential should not be overemphasized, it should be recognized for what it is: a step forward for international human rights.

Alex Grigsby is the assistant director for the Digital and Cyberspace Policy program at the Council on Foreign Relations. Earlier this week, Canada’s parliament passed legislation that would allow it to finally ratify the Council of Europe’s Convention on Cybercrime, more commonly as the Budapest Convention. The Budapest Convention is the only legal instrument specifically designed to facilitate international cooperation to fight cyber crime. It provides: (1) common definitions and criminal prohibitions, (2) unified procedures and rules to ensure the preservation of evidence, and (3) a streamlined legal process to facilitate international cooperation, more formally known as mutual legal assistance, on cyber crime investigations. Canada was one of the countries that originally negotiated the treaty in the late 1990s and was one of the original signatories in 2001. Despite being one of its earliest promoters, it took over thirteen years for Canadian legislators to pass the necessary domestic legislative changes to allow Canada to ratify the treaty. The delay can be attributed to packaging the legislation with controversial lawful interception provisions and successive minority governments throughout the 2000s. The lag put Canada in a tough spot in international venues when working with the United States and European partners to repel BRIC-efforts to launch a negotiation of a new cyber crime treaty under UN auspices, something that could take another decade to negotiate. For Canada, it became hard to argue that a new treaty is premature when it had not ratified the existing one. Russia has long argued that the Budapest Convention is fatally flawed, arguing that particular provision violates state sovereignty, a claim that has been recently debunked by the committee that oversees the treaty. Brazil, China and India argue, in short, that a treaty negotiated by Europe is inherently inapplicable to non-European countries, despite the fact that non-European countries are party to the convention and that whole swaths of international law—still valid today—stem from negotiations amongst Europeans. No word yet as to when Canada will officially ratify the Convention. When it does and unless another country beats it to the punch, Canada will be the seventh non-European country to do so, joining Australia, the Dominican Republic, Japan, Mauritius, Panama, and the United States.

The Republican takeover of the Senate reduces the chance that the United States will ratify any important multilateral treaties over the next two years. Facing a GOP-controlled legislature, President Obama will focus his executive authority on salvaging what remains of his domestic agenda, rather than playing hardball in the field of foreign policy.With the exception of trade agreements—endorsed by incoming majority leader Mitch McConnell—don’t look for any movement on treaties. While the Senate has long been known as the graveyard of treaties, that metaphor is particularly apt today. Even before November 4, securing the U.S. Senate’s advice and consent to multilateral treaties was rare. But since President Obama took office, the United States has ratified a grand total of six multilateral treaties. Eight of the eleven multilateral treaties the president has signed during his term remain unratified, as do twelve of the thirteen multilateral treaties signed by previous presidents which the White House included in its “treaty priority list” communicated to the Senate in 2009. The GOP triumph last Tuesday will only reinforce this gridlock. It was not always thus. Despite admonitions from the Founding Fathers about avoiding international entanglements, the United States has ratified hundreds of multilateral treaties over the past century. As the accompanying chart shows, more than 630 are in force today. Data compiled by Naomi Egel. Source: U.S. Department of State, Treaties in Force, http://www.state.gov/s/l/treaty/tif/index.htm. But recent years have seen a marked slowdown in ratification. A look at the treaty-making process in the United States helps explain why. Treaty-making involves several basic steps. The U.S. executive branch first negotiates and signs a treaty with international partners. The president then submits the agreement to the Senate Foreign Relations Committee (SFRC). The SFRC reports the treaty out to the full Senate on a majority vote, after attaching any reservations. Following floor debate, the Senate gives its consent by a two-thirds vote. Finally, the president formally “ratifies” the treaty by signing it. Delay or treaty failure can occur at any step. The Senate can vote to reject multilateral treaties outright as they did with the United Nations Convention on Persons with Disabilities (CPRD) in 2012.At other times the Senate has approved treaties only after long delays. The most glaring example was the Genocide Convention which took four decades to ratify. In other cases, treaties have never moved out of committee. Finally, in some instances (like the Rome Statute of the International Criminal Court), the president has never submitted the signed treaty at all. Beyond typical executive-legislative struggles, three other factors have complicated timely advice and consent by the Senate. First, seeking the Senate’s advice and consent to multiple treaties carries heavy opportunity costs. It requires the administration to expend enormous political capital it may prefer to devote to more urgent, competing executive or legislative priorities. It can also require Senate leaders to carve out a week of “floor” time for debate before bringing the treaty to a vote. Second, treaty type matters: human rights and environmental treaties have an especially hard time. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1980), the CPRD, and the Genocide Convention are cases in point. These treaties have faced objections of violating U.S. national sovereignty, conflicting with previously existing or state legislation, and touching on sensitive issues like abortion or home schooling. Environmental treaties also generate resistance, based on the perception that they will restrict U.S. business and hamper U.S. economic interests. The Kyoto Protocol is the best-known example but it is hardly alone. Five of the ten multilateral treaties signed by Obama address environmental issues, as do five of the twelve unratified treaties on his 2009 priority list. Finally, ideology matters: ratification is much more complicated when partisanship is high, especially when the Senate is controlled by Republicans and the White House by Democrats. The outcome of the November 4 elections thus provides ample grounds for pessimism. During his first term, Obama averaged only eight treaty transmittals to the Senate for each congressional session, compared to the average of 31.6 treaties per session for the years 1949-2008 (see table below). More importantly, his batting average in getting those approved is well below that of other modern presidents in terms of treaty ratification. Source: Jeffrey S. Peake, "The Domestic Politics of International Agreements during the Obama Administration: Presidential Unilateralism and Senate Obstruction," APSA 2013 Annual Meeting Paper. Things have been even grimmer over the past two years, when President Obama submitted only five treaties for ratification. The president has claimed that foreign policy is about “hitting singles.” But when it comes to treaties, he’s rarely getting on base. The fault lies at both ends of Pennsylvania Avenue. Compared to recent predecessors, the White House has invested little political capital in treaty-making, focusing on big-ticket domestic items, including the American Recovery and Reinvestment Act, as well as Obamacare. At the same time, the White House has made its task harder by seeking approval of more long-languishing treaties on controversial topics like the environment, human rights, and disarmament than other presidents—including George W. Bush, Bill Clinton, and Jimmy Carter—had signed but failed to ratify. The administration’s priority list submitted in 2009, for instance, included CEDAW, the Comprehensive Test Ban Treaty, the UN Convention on the Law of the Sea (UNCLOS), and the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other Related Materials. For its part, the Senate seems less open to treaties. It has consented to a smaller fraction of submitted treaties than the average pace. Outright rejection (which has occurred only four times since World War II) remains a rarity. More telling is the Senate’s ability to ignore treaty submissions. But between 2009 and 2012 the Senate approved only one treaty within a year, compared to 510 out of 850 between 1949 and 2000. In other words, the average lag time has increased. The most important cause of multilateral treaty failure, however, has been the hyperpartisan ideological divide that plagued the 111th, 112th,and 113th Congresses. Particularly noteworthy has been the hard-right shift of the Republican Party. As former State Department legal advisor and adjunct CFR senior fellow John Bellinger wrote in the New York Times, “an increasing number of Republicans had come to view treaties in general (and especially multilateral ones) as liberal conspiracies to hand over American sovereignty to international authorities.” This gridlock has had two major consequences for U.S. interests. First, failure to ratify a multilateral treaty that the United States has signed has concrete costs for U.S. foreign and national security policy. Consider the UNCLOS, which remains unratified twenty years after U.S. signature despite being endorsed by every living former president, secretary of state and defense, chairman of the joint chiefs of staff, major industry, and leadingenvironmental organizations. Resistance has been led by a vocal minority of conservatives who claim, spuriously, that UNCLOS will undermine U.S. “sovereignty” by subjecting the United States to a supranational legal authority and a massive international tax scheme. In reality, remaining outside the treaty deprives the United States of an effective instrument for extending its sovereignty, by participating in the world’s last remaining partition of territory: namely, the allocation to states parties of hundreds of thousands of square miles in extended exclusive economic zones (EEEZs). Second, failure to become party to a multilateral treaty endorsed by the vast majority of other UN member states carries reputational costs. The United States relies on its image as a nation dedicated to the international rule of law and a country capable of making credible commitments. Failure to ratify treaties is particularly problematic when, as in the case of the UN Convention on the Law of the Sea, U.S. negotiators have actually spearheaded multilateral treaty negotiations and shaped the substantive content of international rules to its interests, only to defect at the ratification stage. Such a pattern sends an unmistakable message that the United States is entitled to unique exemptions—that it seeks to constrain and impose obligations on others but refuses to be bound by those same constraints. Here’s hoping that McConnell and Senator Bob Corker (R-TN)—the likely incoming chair of the SFRC—take these costs into account when they consider the long and growing list of unratified international treaties.

This is a guest post by Cheryl Strauss Einhorn, a journalist and adjunct professor at the Columbia University Graduate School of Journalism. Last week, two “firsts” occurred in Africa: Kenya’s President Uhuru Kenyatta became the first sitting president to appear before the International Criminal Court (ICC) where he faces charges of crimes against humanity for allegations that he instigated the ethnic violence that erupted after the December 2007 elections killing over 1,000, the worst violence in Kenya since its independence. President Kenyatta invoked a never-before-used article of the constitution, handing over power temporarily to his deputy president so that he could attend the two day hearing that will determine whether the ICC grants the prosecution more time to gain evidence or to possibly halt the case. Were these the moves of a truly democratic leader, or are they the schemes of a crafty politician who stepped down so he could be tried as a private civilian in a court with the authority, but not the power, to collect evidence? President Kenyatta knows that the ICC has no army or police to seize evidence. He is well aware that the prosecution is struggling to keep its case alive in the wake of two setbacks: witnesses recanting their testimony and a failure to secure Kenyatta’s phone and bank records that prosecutors claim would show he paid collaborators to take part in the post-election violence. Thus far seven witnesses for the prosecution have dropped out, allegedly through intimidation and bribes. The prosecution has already asked once for the trial to be postponed. And judges are under pressure from other African leaders and the African Union to discontinue the case claiming that their heads of state should not be prosecuted by the ICC, which thus far has only brought indictments against African leaders, a state of affairs created by the ICC’s limited jurisdiction and authority. Given the ICC’s difficulty, Kenyatta might expect the judges to feel compelled to drop the case. But perhaps the judges might consider postponing it indefinitely in an effort to delay justice so that it is not denied. Such a decision might have the collateral benefit of preserving the nascent ICC’s credibility as an impartial body. Here’s how: A suspension would acknowledge that while there is no evidentiary cooperation now, the judges convey that it would be a mistake to dismiss the case entirely. It would allow the ICC to sidestep the growing diplomatic conflict with the African Union and effectively punt the future of the case to the ICC’s ruling body, the Assembly of States Parties, a political body that would be deciding the very political issue of when and how to try a case against a sitting leader. While a deferral is at least a temporary win for Kenyatta, the ICC has already made a mark: The Kenyatta indictment sent a signal that the violence of 2007 would not again be tolerated and indeed it was not repeated after the last election. Moreover, leaders don’t often rule forever and thus witnesses may still come forward in the future, as they did after atrocities like the Holocaust. Strong-men like Kenyatta can only continue to hoodwink their citizens with optics over evidence for so long. His grand gesture to step down to stand for a trial that can’t occur does not mean that he is innocent, but it may mean the ICC needs to be patient until Kenyatta’s time and options run out.

Accummulating reports that more than a thousand Russian troops are now engaged in combat in eastern Ukraine signals the definitive end of the “post-Cold War” world. That phrase, which framed a quarter century in terms of what it was not, was never a felicitous one. But it did come to suggest a new era in which great power frictions were in abeyance, as the focus of world politics shifted to the management of global interdependence, the integration of emerging economies, the disciplining of rogue states, the quarantining of failed ones, and (after 9/11) the interdiction and elimination of non-state terrorist actors. Russia’s intervention in Ukraine, however disingenuously denied and creatively concealed, constitutes a frontal assault on the liberal international order that the United States and its Western allies have done so much to promote and build. It represents—along with Chinese assertiveness in East Asia—the resurgence of a more primitive form of power politics. The Wilsonian dream of a gradually but inexorably expanding liberal world order based on the international rule of law—a hope shared alike by George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama, each in their own way—will need to wait. For liberal internationalists, this is a bitter pill to swallow—or even to accept. “You just don’t in the 21st century behave in 19th century fashion by invading another country on completely trumped up pretext,” Secretary of State John Kerry fulminated on CBS’s Face the Nation back in March. Ah, but you do, if you happen to have a mindset more in keeping with Otto von Bismarck than Woodrow Wilson (to say nothing of Barack Obama). The unfortunate truth is that unless and until a new, truly democratic regime emerges in Moscow (as well as Beijing), we are likely to see more naked assertions of power politics than we have experienced since 1989. This will not be a return to the Cold War—a point worth underlining. Neither Russia nor even China (whose leaders long ago abandoned the communist vanguard for the pursuit of profit) offer universalist ideologies capable of competing with free market capitalism. We are not in a “revolutionary” period of world politics, in Kissinger’s terms, in which a radical power—think revolutionary France, Leninist Russia, or Maoist China—pursues (at least for a while) dreams of world revolution. But if history as serious ideological competition is still “over”—as Francis Fukuyama claimed in 1989—history as geopolitical competition marches on. And the implications for world order are profound. As this blog previously noted, Russia’s seizure of Crimea and now its further incursions into Ukraine challenge established norms of the liberal world order. These include: the principle of sovereignty: Russia’s military assault on Ukranian territory infringes on the fundamental norm of nonintervention at the heart of the UN Charter the sanctity of borders: Moscow’s intervention likewise violates the norm that no international border can be altered by force or without the expressed consent of the inhabitants, as determined by pacific processes the illegitimacy of spheres of influence: Russia’s actions and Putin’s rhetoric are redolent of a nineteenth century view that great powers are entitled to special privileges in weaker, neighboring states the supremacy of citizenship over ethnicity: Putin’s claims to be defending Russian “compatriots” elevate linguistic and ethnic identity above citizenship and, were it to become an accepted political principle, would result in the disintegration of multiethnic countries worldwide It is this rejection of fundamental norms of international order that lends global significance to Russia’s aggression in Ukraine. The world is not headed for another Cold War, it risks regressing to an era more red in tooth and claw.The priority for policymakers in Washington will be to cling to as much of the substance of Western liberal order as possible, while carefully managing its rising frictions and differences with Russia and China. There are historical precedents for such a period of great power rivalry—and how to handle it. At the risk of self-promotion, let me quote a passage from an article I wrote for the November/December 2010 issue of Foreign Affairs: In the twenty-first century, the normative foundations for multilateral cooperation will be weaker. An imperfect historical parallel might be the Concert of Europe of the early 1800s. That arrangement leavened the traditional balance of power with a balance of rights, which helped bridge differences between the Western powers (France and the United Kingdom) and the authoritarian monarchies (Austria, Prussia, and Russia) of the Holy Alliance. Global cooperation today may follow a similar logic. The United States might need to pay less attention to regime type and tolerate nations in which democracy is lacking or absent…. Accommodating new powers while retaining as much of the old order as possible will be a constant balancing act, much like the Concert of Europe was two centuries ago. This new era will not be easy for the United States to navigate, given a national political culture prone to dichotomizing other nations (and their leaders) into categories of good and evil. It will require pragmatism and the ability to compartmentalize—castigating and standing up to thugs on some occasions (as when they invade sovereign nations), while collaborating with them where necessary (on Iran’s nuclear program, for instance). And like the strategy of containment before it, it will require patience, and the biding of time.

Coauthored with Isabella Bennett, assistant director of the International Institutions and Global Governance program. Last week, when more than forty heads of state met in Washington for the U.S.-Africa Leaders Summit, improving economic opportunities topped the agenda. The leaders could take pride in Africa’s recent economic performance. But the gathering also spotlighted a daunting obstacle to sustaining robust and widely shared growth on the continent: rampant corruption that robs citizens of billions of dollars every year. By one estimate, illicit financial flows from Africa amounted to $1.4 trillion between 1980 and 2009—more than the economic aid and foreign direct investment the continent received during that period. A joint report by the African Development Bank and Global Financial Integrity found that a staggering 60-65 percent of this lost cash disappears during “commercial transactions by multinational companies.” The extractive industries—which take natural resources like oil and minerals from the ground—are particularly prone to corruption, because they generate huge wealth that is easily diverted to line the pockets of venal rulers or businesses. This can be devastating in resource-rich developing countries like the Republic of the Congo, where the government depends on earnings from extractive industries for 85 percent of its revenue. The siphoning of Africa’s riches is an old story, of course, though today’s culprits are not European imperialists like Belgium’s King Leopold II but unaccountable African officials and corporations, both foreign and domestic. The paradoxical result is the persistence of grinding poverty amidst apparent plenty, a paradox visible in Angola, the Democratic Republic of the Congo (DRC), Nigeria, and a dozen other African nations. For too many Africans, improving governance of natural resource extraction is “a matter of life or death.” The sentiment is broadly shared among civil society groups across the continent. African citizens are increasingly aware that corruption and poor governance is cheating them and their countries out of billions of dollars. In a moving letter to President Obama on the eve of the leaders’ summit, civil society leaders from nine African countries declared that their children’s future depended on ending this destructive cycle: Our natural resources are an opportunity for us to create better lives for our future generations, but if good governance does not prevail that chance will be squandered. And with oil, gas and mining, the one chance is all you get…. We are fighting every day to change our future. We risk arrest and intimidation to bring the issue of natural resources into the open. Where once silence reigned people now debate in the streets how their revenues should be managed. Improving governance in the extractive industries would go a long way toward achieving the five goals of the Obama administration’s vision for the Africa leaders’ summit: expanding trade and investment ties, engaging young African leaders, promoting inclusive sustainable development, expanding cooperation on peace and security, and gaining a better future for Africa’s next generation. In his closing summit press conference, the president announced that the assembled leaders had “agreed to step up our collective efforts against the corruption that costs African economies tens of billions of dollars every year—money that ought to be invested in the people of Africa.” The centerpiece of this effort would be “a new partnership to combat illicit finance,” based on “an action plan to promote the transparency that is essential to econmic growth.” But where to begin? Though it is an uphill battle, there are already a number of worthwhile international initiatives seeking to empower citizens to fight corruption and help ensure that natural resources benefit local communities. The authors of the abovementioned letter, for example, all belong to one network of nongovernmental organizations called Publish What You Pay (PWYP), which campaigns for transparency in extractive industries. The idea is that forcing companies and governments to publicly release information about their negotiated contracts and commercial transactions will discourage them from engaging in corrupt practices, and allow citizens to hold them accountable if they do. The Extractive Industries Transparency Initiative (EITI) is another, increasingly influential coalition that requires participating governments to ensure that transactions between extractive companies and governments are fully disclosed to the public. To maintain their status as “EITI compliant,” member countries must prepare annual reports about how they are implementing common standards. In parallel with this campaign, the Organization for Economic Cooperation and Development (OECD) has released its own set of best practices, “Guidelines for Multinational Enterprises,” and the United Nations has produced its own document, “Guiding Principles on Business and Human Rights” [PDF]. These are all welcome initiatives. But what has their impact been? And how might they be improved? To assess how these various efforts are doing, CFR held a workshop in May 2014, “Governing Extractives on a Global Scale: Challenges and Opportunities.” The event included civil society groups, private sector representatives, and officials from Europe, North America, and Africa. (The entire rapporteur’s report can be read here [PDF].) Despite predictable disagreement about the relative value of different approaches—and criticism regarding overlap among them—participants agreed on one obvious requirement for improving governance: to be able to hold leaders accountable for corruption or poor allocation of revenues, nonexperts must be able to interpret the information that is made public. Simply releasing government contracts to the public, for example, is unlikely to generate results. A 123-page contract [PDF] between the government of Ghana and Tullow Oil, for instance, would likely overwhelm many experienced lawyers, let alone typical Ghanean citizens (who on average receive only seven years of education [PDF]). In the DRC, where the schooling averages only three and half years [PDF], the barriers to harnessing published information for the population’s benefit are even higher. For transparency intiatives to be useful, the United States, other bilateral donors, and multilateral organizations must invest more in training programs that help citizens understand and utilize newly available data. Of course, success in the fight against corruption in extractive industries will require holding accountable not only African leaders but also the foreign oil, gas, and mining companies investing and operating in these countries. The United States has taken some initial steps to raise standards for U.S.-domiciled firms, including by joining EITI. Notably, however, the Securities and Exchange Commission (SEC) has not implemented Section 1504 of the Dodd-Frank Act, which requires SEC-registered companies to publicly report how much they pay governments for access to oil, gas, and minerals. The American Petroleum Institute and other extractive associations successfully challenged the SEC’s disclosure rules in a July 2013 lawsuit. Ironically, while the provision is stalled in Washington, other advanced market democracies inspired by Section 1504—including the United Kingdom, the European Union, and South Korea—have already passed similar legislation of their own. The ultimate objective—particularly given the surge of Chinese investment in Africa—should be to create globally-accepted, industry-wide standards, and a level playing field for all would-be investors. Without such universality, Western companies will remain wary of limiting their own investment opportunities as less scrupulous corporations—including Chinese state-owned enterprises—look the other way.

Coauthored with Daniel Chardell, research associate in the International Institutions and Global Governance program. You might think twice about getting on a plane these days. The headlines are full of bad news. Consider the downing of MH17 in rebel-held eastern Ukraine. Or the crash of an Air Algerie jet over a disputed region of Mali in bad weather.  Or the temporary cancellation of U.S. flights to Tel Aviv due to Hamas rocket fire. Or the still-mysterious disappearance of a Malaysian airliner in the Indian Ocean. Not to mention the fear that your fellow passenger’s “carry-ons” may include the Ebola virus. Beyond elevating the blood pressure of white-knuckled fliers, these incidents raise questions about the safety of air travel. They have also brought unprecedented attention to a global agency accustomed to operating (as it were) under the radar: the International Civil Aviation Organization (ICAO). But first, the reassuring statistics. As your pilot often reminds you, civil aviation remains the safest mode of transportation. The odds of dying in a commercial plane crash have been estimated at one in eleven million—significantly lower than being killed by a shark and far lower than dying in a car accident. Still, these tragedies have naturally increased anxieties about the safety of civil aviation, especially over conflict zones. They have brought unfamiliar scrutiny to ICAO, perhaps the most important international institution you’ve never heard about. Based in Montreal, ICAO was established by the Chicago Convention of 1944—a year before the United Nations itself. It includes almost every UN member state and is the world’s premier forum for developing standards and procedures for civil aviation. That said, ICAO’s mandate and powers are quite limited. The Chicago Convention expressly affirms that each state retains exclusive sovereignty over the airspace above its territory (Art. 1). Thus, member governments reserve the right, for reasons of military necessity or public safety, to “restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory” (Art. 9a). National agencies may also bar their own domestic airlines from flying over dangerous areas—as when the U.S. Federal Aviation Authority (FAA) temporarily halted all U.S. carriers from using Tel Aviv’s Ben Gurion Airport. ICAO is not empowered to close air routes or declare airspace unsafe—nor does it have this responsibility. On this point, however, there remains much confusion. After flight MH17 went down, Malaysian Transport Minister Liow Tiong Lai claimed that ICAO had “approved” the route the plane was flying—mistakenly ascribing to the UN body a power it does not have. The organization rebuffed Malaysian criticism, noting that it is up to sovereign member states to notify other states about potential safety hazards. As ICAO spokesman Anthony Philbin bluntly put it, “It’s not our job.” In exceptional circumstances, ICAO may circulate “hazard notifications” to all member states, but governments can ignore them. Ironically, the organization issued one such notification just four months ago, with respect to Crimea. This April 2 letter advised that states take measures to avoid the airspace above the city of Simferopol. This warning had nothing to do with rebels on the ground or anti-aircraft weaponry, however. Rather, ICAO was concerned that planes flying in Crimean airspace might receive conflicting air traffic direction from the two states competing for control—Russia and Ukraine. Recognizing Malaysia’s apparent misunderstanding, on July 24, ICAO Secretary-General Raymond Benjamin issued a letter of clarification to member states emphasizing each state’s responsibility to monitor threats and conflicts within its territory and, if necessary, to take measures to restrict or close airspace. But recent events have highlighted shortcomings in civil aviation protection, and ICAO faces pressure to up its own game. On July 29, the body hosted an emergency meeting on risks to civilian aviation with its major industry partners—the International Air Transport Association (IATA), Airports Council International (ACI), and the Civil Air Navigation Services Organization (CANSO). In the ensuing press conference, IATA Director General and CEO Tony Tyler—speaking on behalf of IATA’s 240 member airlines—declared that the MH17 tragedy had “exposed a gap in the system.” At the same time, he affirmed, “[t]he system is not broken. It works extremely well in the vast majority of cases.” This is true: by and large, the system works. The paucity of accidents confirms this. But the system certainly is imperfect. MH17 was cruising at an altitude of 33,000 feet when struck by a missile, 1,000 feet above the threshold of airspace that was deemed unsafe by Ukrainian and Russian authorities. “We now know how wrong that guidance was,” said Tyler. This seemingly minor error points to five larger problems: Sovereign state control is sometimes lacking. First, the Chicago Convention assumes that states alone exercise control over their territory and, by extension, the airspace above it. However, from Ukraine to Iraq, security threats are increasingly fueled by nonstate actors, such as armed pro-Russian militias in eastern Ukraine or the Islamic State (IS) in the Middle East. The embattled central government in Kiev incorrectly diagnosed the threat to civil aircraft in eastern Ukraine, in large part because Kiev no longer exercises full sovereignty in this region. Thus, the airspace, like the land, is currently governed not by a signatory to the Chicago Convention, but by a nonstate rebel group intent on secession. Ungoverned territories complicate accident investigations. Article 26 of the Chicago Convention stipulates that, in the event of an accident, the state in which the accident occurs shall conduct an inquiry. The state in which the aircraft is registered—in the case of MH17, Malaysia—may also send representatives to observe the investigation. However, given ongoing violence, Ukrainian authorities are unable to secure the area, obstructing a proper investigation. Similarly, when the Air Algerie flight crashed in northern Mali just days after the MH17 incident,  French troops and members of the UN peacekeeping mission in Mali (MINUSMA), who happened to be nearby fighting Tuareg and al-Qaeda-linked rebels, quickly moved to secure the crash site while the Malian government remained on the sidelines. The proliferation of anti-aircraft weapons threatens airline safety. The MH17 incident demonstrates the dangers that sophisticated anti-aircraft weapons can pose to civil aviation, particularly when they fall into the hands of unaccountable, elusive nonstate actors. ICAO and its industry partners have announced plans to develop an international legal mechanism to better regulate and monitor the design, production, sale, and deployment of anti-aircraft weapons. This is a good start, but as the U.S. suspension of flights into Tel Aviv attests, more must be done to safeguard civilian airliners against a range of weapons—including tens of thousands of man-portable air defense systems (MANPADS) already in circulation in the world’s conflict zones. Securing civil aviation will require overcoming obstacles to intelligence sharing. As ICAO noted at its July 29 meeting, more effective communication about threats to civil aviation over combat zones will require intelligence sharing among member states. While this may meet resistance in some (including U.S.) quarters, the growing dangers to civil aviation should tip the needle toward more sharing. ICAO needs to ramp up its role as an information clearinghouse. As a body composed of sovereign states, ICAO cannot assume responsibility for closing or restricting the airspace of its members. What it can and should do, however, is develop a more robust office that serves as a centralized, neutral source of information on regional threats to civil aviation. This is particularly important when a government (as in Kiev) is unable to effectively monitor its own airspace. As the MH17 crime attests, relying on countries to self-report dangers in their own airspace is not adequate.

African elites generally do not like the International Criminal Court (ICC) that sits in the Hague. There is a widespread view that the ICC engages in selective prosecution and holds African leaders to a higher standard than others. Africans ask why the ICC prosecutes Kenya’s president, Uhuru Kenyatta, but not former vice president Dick Cheney or former prime minister Tony Blair for Iraq-related issues, for example. There have been calls for immunity for African heads of state that are wanted for international crimes. The ICC cases against President Kenyatta and Deputy President William Ruto have particularly focused the debate, and Kenya may withdraw from the Treaty of Rome, which established the ICC. For many Africans, the solution is a specifically African court that would, in effect, replace the ICC. The African Union is moving to establish an African Court of Justice and Human Rights, commonly called the African Court. But, at an African heads of state summit in Equatorial Guinea on June 26 and 27, the decision was made to grant African heads of state and senior officials (not further defined) immunity from prosecution for genocide, war crimes, crimes against humanity, and other serious crimes. Under this provision, the African Court could not try al-Bashir, Kenyatta, or Ruto. This step, obviously self-serving for sitting heads of state and their associates, would appear to eviscerate the African Court before it even starts to function. It certainly reduces the African Court‘s credibility as an alternative to the ICC. As Amnesty International (among other civil society voices) said, the decision “is a backward step in the fight against impunity and a betrayal of victims of serious violations of human rights.” The Institute for Security Studies notes the absence of protest from Africa’s “liberal voices,” especially South Africa; observing that “only little Botswana has raised objections.”

Coauthored with Claire Schachter, research associate in the International Institutions and Global Governance program. Today the UN Security Council voted on a French draft resolution referring the situation in Syria—where government forces have systematically slaughtered civilians—to the International Criminal Court (ICC). Russia and China vetoed the resolution. While not surprising, the double veto is enormously frustrating to those demanding a stronger international response to war crimes in Syria. To some observers, the failure of this referral may signal the impossibility of ensuring accountability in a context of geopolitical rivalry. But the Obama administration’s decision to support the resolution, even in the face of near certain defeat, was appropriate and necessary—appropriate in light of its evolving relationship with the ICC and necessary given its limited options for ending the conflict in Syria. Syria—like the United States, as well as Russia and China—is not party to the Rome Statute, the painstakingly negotiated treaty that created the world’s first permanent international criminal tribunal. Accordingly, the situation in Syria can only be investigated by the Office of the Prosecutor pursuant to a UN Security Council resolution. The Obama administration’s decision to endorse the draft resolution was notable, given the tumultuous history between the United States and the ICC. President Bill Clinton signed the Rome Statute just before leaving office, while advising against U.S. ratification until “fundamental concerns” were addressed. The succeeding Republican administration of George W. Bush signaled its immediate antipathy toward the Court, given the perceived risk that its independent prosecutor might launch politically motivated indictments against U.S. officials or servicemen and women. In May 2002, Undersecretary of State John Bolton took the symbolic step of “unsigning” the treaty (an act he later called “my happiest moment at State”). Despite this initial estrangement, the United States’ relationship toward the ICC has evolved steadily since Bolton’s action. During its second term, the Bush administration began quiet, pragmatic cooperation with the Court, including by providing evidentiary and other materials related to cases on its docket. Most dramatically, in 2005 the United States supported the UN Security Council’s referral of the situation in Darfur to the ICC and the pursuit of prosecutions of those senior Sudanese officials suspected of war crimes.  This quiet support has expanded under the Obama administration, which voted at UN Security Council in spring 2011 to refer the Libya  situation to the ICC. Unsurprisingly, many international observers now regard the United States as a de facto member of the ICC—albeit one that remains outside its jurisdiction. The vote on referral to the ICC was ridiculously late in coming. More than eight months have passed since the government of Bashar al-Assad provoked global outrage by deploying chemical weapons against civilians in the suburbs of Damascus. It has been five months since Navi Pillay, the UN High Commissioner for Human Rights, announced that an international inquiry into Syrian atrocities “indicates responsibility at the highest level of government, including the head of state.” What explains the Obama administration’s decision to back a vote now? One obvious explanation is that the administration is genuinely committed to the principle of accountability for crimes against humanity. On this reading, supporting an ICC referral was a victory for U.S. ambassador to the United Nations Samantha Power, one of the most outspoken advocates of this principle and a proponent of an increasingly close relationship between the United States and the ICC. Power—and perhaps likeminded others in the administration—have become increasing frustrated by the United States’ passivity in the face of Syria’s human rights catastrophe. Cynics might argue that the administration, having struggled to develop a coherent and effective policy to end the bloodletting in Syria—and having shied from pursuing more forceful steps in the face of limited support at home and few allies willing and capable of sharing the burden of military intervention—is grasping at symbolic straws. That would be too harsh an indictment. At this stage, the United States has a very poor hand to play, facing divisions among (and extremists within) the Syrian opposition and the political agendas of veto-wielding countries at the UN. The vote was also bound to fail. Although supported by scores of UN member states, Russia’s publicly stated opposition and dogged defense of a rare client state condemned it from the outset. Vladimir Putin no doubt calculated that he has already lost in the court of Western public opinion, whereas he can still earn points at home for standing up to the West—just as he has over Ukraine. More disappointing though hardly surprising was China’s decision to veto (rather than abstain)—the latest in Beijing’s troubling pattern of passivity toward perpetrators of gross human rights abuses. Belated failure is still hard to stomach, especially because it would have been worthwhile to pursue accountability against Assad now. Critics of pursuing justice before peace argue that if the priority is to end the conflict, indictments are misguided because they may encourage tyrants to hold on to power rather than weaken their position or deter them from further abusing their citizens. According to this perspective, the double veto may have preempted an investigation that would have prolonged the conflict, and also preserved whatever little hope there may be for the Geneva Process. This position, however, is based on the flawed assumption that there is a necessary trade-off between peace and justice; that the pursuit of the latter will necessarily compromise the former. As with the earlier indictment of al-Bashir however, there is little in Assad’s history or behavior to suggest that he needs any additional motivation to cling to power and pursue victory. Today’s vote marks yet another setback for the Syrian people and for the pursuit of international accountability for the most heinous crimes. And yet, by forcing Moscow and Beijing to go on the record as defenders of continued impunity for the Assad regime, the Obama administration did the right thing and demonstrated its commitment to working with the ICC. However, the failed vote also sends an invaluable reminder to the United States that a stronger relationship with the Court is no substitute for willingness to take forceful action to prevent or halt atrocities.

Coauthored with Patrick McCormick, research associate in the International Institutions and Global Governance program. Twenty years ago yesterday two surface-to-air missiles ripped into a plane carrying Rwandan President Juvenal Habyarimana and Burundian President Cyprien Ntaryamira. Hutu militias responded by launching a violent genocide against Rwanda’s Tutsi minority. Over the next 100 days, the country became an abattoir. After twenty years and countless postmortems, one question still reverberates.  Would the United Nations, the United States, and other major powers respond any differently today? The answer is not encouraging. Whether in Darfur, Syria, or the Central African Republic, mass atrocities recur with alarming frequency. The first step in improving international efforts to combat genocide is to learn from the past. Rwanda teaches at least three critical lessons: Lesson 1: Early warning is not the problem. Early action is. In her Pulitzer Prize-winning book A Problem from Hell, Samantha Power dispels the myth that policymakers simply don’t know what’s going on.  “By 8:00 A.M. the morning after the plane crash,” recalls Joyce Leader, then deputy U.S. chief of mission in Rwanda, “we knew what was happening, that there was systematic killing of the Tutsi.”  Leader told her State Department colleagues “that three kinds of killings were going on: casualties in war, politically motivated murder, and genocide.” Over at the Pentagon, Frank Wisner, the undersecretary of defense for policy, received an eye-opening memo:  “Unless both sides can be convinced to return to the peace process,” it read, “a massive (hundreds of thousands of deaths) bloodbath will ensue.” Within the first few days of the killing, Power writes, the Pentagon deployed “some two dozen U.S. special forces…on a one-day reconnaissance mission to Kigali.” They returned, in the words of one senior officer, “white as ghosts,” having seen “so many bodies on the streets that you could walk from one body to the other without touching the ground.” News of the genocide soon reached the highest levels of the Clinton administration. The CIA’s daily briefing for President Clinton, Vice President Gore, and other senior officials clearly described the events as “genocide” and detailed the killing on the ground. Nor was the media in the dark. As early as April 10, the New York Times quoted Herve Le Guilouizic, medical coordinator of the International Committee of the Red Cross, on its front page.  “Yesterday, we were talking about thousands of dead, today we can start with tens of thousands.” Even before the genocide began, the United Nations had “early warning.” Killing on an immense scale, it turns out, takes planning. On January 11, 1994—nearly three months before the genocide began—Canadian Major General Roméo Dallaire, force commander with the United Nations Assistance Mission in Rwanda (UNAMIR), dispatched an urgent cable to UN Headquarters in New York. A “very, very important [Rwandan] government politician,” had informed the general that he had been “ordered to register all Tutsi in Kigali,” and “he suspects it is for their extermination.” He added that “in twenty minutes his personnel could kill up to 1,000 Tutsis.” In a return fax signed by Iqbal Riza, deputy to UN undersecretary general for peacekeeping Kofi Annan, Dallaire was directed to disclose his concerns to President Habyarimana, despite evidence that genocide plans were being prepared within the president’s inner circle. Clearly, the problem was not early warning. It was early action. Lesson 2: Debates over terminology only distract. In spring 1994, U.S. officials wrung their hands over whether to characterize the slaughter of civilians as a civil war with atrocities committed on both sides, as ethnic cleansing, or as genocide.  As Power documents, “American officials… shunned the use of what became known as the ‘g-word,’” in part from fear that employing the term would compel action by the United States pursuant to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. A June 10 statement from State Department spokesperson Christine Shelly illustrated the administration’s uncertainty about how to respond. After noting that “acts of genocide” had occurred in Rwanda, a reporter prompted her to clarify the distinction between “acts of genocide” and “genocide.” Shelly refused to answer how many acts of genocide would constitute genocide and only replied  “Well, I think the—as you know, there’s a legal definition of this … clearly not all of the killings that have taken place in Rwanda are killings to which you might apply that label … But as to the distinctions between the words, we’re trying to call what we have seen so far as best we can; and based, again, on the evidence, we have every reason to believe that acts of genocide have occurred.”  A decade later, protracted squabbles over legal definitions would similarly hamstring the administration of George W. Bush from launching a vigorous U.S. response to mass atrocities in Darfur. By the time Secretary of State Colin Powell concluded that acts of “genocide” had indeed occurred in Darfur, precious months had been wasted. Lesson 3: Mass atrocities do not require advanced killing technology. The Rwandan genocide was committed not with gas chambers or chemical weapons but with machetes and small arms, in response to extermination lists broadcasted by radio. It was often committed one-on-one, by neighbor against neighbor, family member against family member. And yet Rwandans were murdered at a pace three times faster than Jews perished in the Holocaust. Philip Gourevitch vividly renders this reality: “It almost seemed as if, with the machete, the nail-studded club, a few well-placed grenades, and a few bursts of automatic-rifle fire, the quiet orders of Hutu Power had made the neutron bomb obsolete.” Leaders stoked tribal allegiances and called on their Hutu countrymen to take up arms and do their part to eliminate anyone who happened to be Tutsi. None of which should be taken as implying it was disorganized. As Human Rights Watch notes, the Rwandan government had often “mobilized the population for campaigns of various kinds, such as to end illiteracy, to vaccinate children, or to improve the status of women.” In a horrific twist, “the organizers of the genocide similarly exploited the structures that already existed—administrative, political and military—and called upon personnel to execute a campaign to kill Tutsi and Hutu presumed to oppose Hutu Power.”  Existing state structures provided networks to carry out premeditated murder. When it comes to preventing mass atrocities, the first step is discarding illusions that provide excuses to sit on one’s hands. The second is recognizing that stopping genocide is fundamentally a problem of political will. In his desperate cable of January 1994, Dallaire urged his superiors to action.  “Peux ceux que veux,” he declared: where there’s a will, there’s a way. Alas, there was no will.

Amnesty International, the London-based non-governmental human rights organization, has issued a report, "Nigeria: More than 1,500 Killed in North-Eastern Nigeria in Early 2014." Of particular interest is its dissection of what happened on March 14 at Giwa Barracks, the largest military facility in Maiduguri, Borno State. The report finds that Boko Haram staged a successful break into the detention center and that it released all of those being held. Boko Haram gave those freed the option of joining them or going home. Most chose the home option. Boko Haram then withdrew. Shortly thereafter the security forces reoccupied the facility. With the help of the Civilian Joint Task Force, a locally based vigilante group, the security forces then hunted down all of those who had escaped and murdered most of them. Amnesty estimates that over 600 people were killed. Amnesty’s report, which is based on eye-witness accounts, also notes that many of the inmates were emaciated and without shoes. Many also had scars indicating abuse. All of the inmates were unarmed. Earlier, I blogged that according to the media, a senator from Maiduguri stated that 95 percent of those killed in the Giwa Barracks incident were “innocent,” that they were not part of Boko Haram. He also seemed to imply that the security services took advantage the of jail break to murder practically all of the remaining inmates. Amnesty’s report seems to support this argument. As Amnesty observes, the actions of the security forces are consistent with war crimes and crimes against humanity. However, the Amnesty report is balanced. It also profiles the rampant human rights violations by Boko Haram. From the perspective of the security forces, it is difficult to tell who is Boko Haram and who is not. Further, the security services appear to be poorly trained and likely are undisciplined and frightened. Nevertheless, government agencies are held to a higher standard than insurgencies. The question now is: should a conversation begin about possible outsider intervention by an African multinational force into northeast Nigeria?

Having been frozen for four decades, a long-deferred debate over the "war on drugs" is finally heating up. Ever since the Nixon administration, the dominant paradigm informing U.S. and global policy towards narcotics has been prohibition. That failed approach is now being challenged by a slew of influential reports, path-breaking national policies in the Western Hemisphere, and state-level experiments within the United States. Just how turbulent the debate has become was clear at yesterday’s roundtable on the future of international drug policy, hosted by the Center for Strategic and International Studies. The United States will need to chart a new policy course if it hopes to retain credibility and influence as global attitudes toward drugs continue to evolve. The U.S. law enforcement approach has focused on attacking sources of supply, interdicting shipments of drugs and incarcerating dealers. It has also targeted demand, imprisoning and fining addicts and casual users. And yet these repressive efforts have made little dent in the global drug trade. By artificially inflating profits, prohibition has only incentivized criminal activity. Traffickers have successfully shifted production sites and transit routes in response to crackdowns. Criminality, corruption and violence have destabilized vulnerable governments. Prison populations have swollen with addicts and casual users.  And yet drugs are cheaper and more available than ever before. Fortunately, a long-deferred debate over how to handle the global drug trade is gaining momentum. The first cracks in the prohibitionist edifice appeared in 2011, with the publication of the Report of the Global Commission on Drug Policy. The commission—co-chaired by former Mexican president Ernesto Zedillo, former Brazilian president Fernando Enrique Cardoso, and former U.S. secretary of state George Shultz, and including other global luminaries like Kofi Annan, Paul Volcker, and Javier Solana—pulled no punches.  The report’s opening paragraph said it all: The global war on drugs has failed, with devastating consequences for individuals and societies around the world. Fifty years after the initiation of the UN Single Convention on Narcotic Drugs, and 40 years after President Nixon launched the US government’s war on drugs, fundamental reforms in national and global drug control policies are urgently needed. It was time, the commission concluded, to “break the taboo on debate and reform.” The report categorically rejected the “repressive” measures that had “clearly failed to effectively curtail supply or consumption.” The commission endorsed a public health approach to reducing drug use and dependence, an end to incarceration of low-level drug offenders, and a shift from prohibition to regulation and harm reduction, with ample room for national experimentation—including decriminalization and even legalization. The Western Hemisphere has been most receptive to this appeal. The secretary-general of the Organization of American States, Jose Miguel Insulza, last year released a bracing Report on the Drug Problem in the Americas, documenting the damage of the war on drugs and endorsing "differentiated approaches" tailored to national contexts and concerns.  In Central America, ravaged by drug-related violence, Guatemalan President Otto Peréz Molina has insisted that prohibition has failed and that the only solution is “regulation.” In Colombia, which has received billions of dollars in U.S. counterdrug assistance since 2000, president Juan Manuel Santos has announced, “It’s time to think again about the war on drugs.”  Further south, Uruguay has become the first country in the Americas to legalize the marijuana trade. Meanwhile, in the United States, Colorado and Washington have legalized recreational use of cannabis, and eighteen other states and the District of Columbia have decriminalized its use.  And at the federal level, both President Obama and Attorney General Eric Holder have noted the futility and injustice of continuing to imprison millions of Americans for low-level drug offenses. The United States, long the watchdog of the global prohibition regime, is facing a new diplomatic landscape as a result of all this turbulence. Speaking at CSIS, Ambassador William Brownfield, assistant secretary of the State Department Bureau of International Narcotics and Law Enforcement (INL), called it the most significant “national and global debate on drug policy” in history. It is one where the United States increasingly finds itself on the defensive, alternately whipsawed by attacks on its prohibitionist national stance and criticisms of the conduct of its individual states. Last October, Brownfield found himself before the  International Narcotics Control Board, where he was asked to explain why the United States could claim to be “in compliance” with the obligations of the three main international drug conventions, given legal and fast-developing cannabis markets in Washington and Colorado. The diplomatic challenge for the United States is to adjust its prohibitionist stance to new hemispheric and global realities. And it does not have much time. In 2016 the United Nations General Assembly will convene a Special Session (UNGASS) on Drug Policy—the first such event in eighteen years. To move the global debate on drug policy in a constructive direction, the United States has just two years to go from enforcer to reformer. At CSIS, Brownfield expressed confidence that the United States can gain international support for a global drug regime based on four pillars: Defend the integrity of the three existing international drug conventions. Some aspects of these treaties—the 1961 Single Convention, the 1971 Expanded Convention, and the 1988 Convention against Drug Trafficking—may be  outdated. But Brownfield insists that it is far easier to “adjust” these instruments than negotiate completely new ones (much less get Senate approval for ratification). Allow flexible interpretations of the drug conventions. Like the U.S. constitution, these must be seen as “living documents” that can be interpreted “as the world changes.” Tolerate different national strategies and policies: It is inevitable that each UN member state will develop its own approach to controlling narcotics, based on its cultural and political realities. Combat organized criminal groups: Whatever one’s position on legalization, all governments must commit to fighting violent drug traffickers. Other speakers at the CSIS debate were far more critical of the United States, arguing that its commitment to prohibition and repressive drug policies continue to obstruct a new, more realistic global approach to drugs. What U.S. officials were unwilling to address, argued Global Commission members Michel Kazatchkine and Ruth Dreifus, was the most fundamental question: “Have we been successful or not (in our current policies of repression and prohibition)?" "Let’s open an honest debate,” Kazatchkine implored. He noted the “absurdity” that at the most recent UN Commission on Narcotic Drugs meeting in March in Vienna, the final resolution had not even permitted use of the phrase “harm reduction,” which the United States, Japan, and some other countries had considered too controversial. Clearly, the debate over the future of U.S. and global drug policy is only beginning.