International Law

Coauthored with Claire Schachter, research associate in the International Institutions and Global Governance program. Today, fifty-three countries and four international organizations are gathered in The Hague for the third Nuclear Security Summit. Russia’s annexation of Crimea has cast a shadow over the biannual meeting, threatening to distract delegates from the critical task at hand: following through on their commitments to lock down the world’s unsecured nuclear weapons, fissile material, and related technologies. The summit’s success will depend on whether the participating countries are willing to move beyond the harmonization of national pledges to construct a strong framework for nuclear security, undergirded by more powerful conventions and institutions. The NSS process originated five years ago, in President Obama’s Prague speech of April 2009. Describing nuclear weapons as the most pressing threat confronting humanity, he stressed the need to prevent terrorists from getting ahold of the world’s most dangerous weapons. The following year, his administration hosted the first Nuclear Security Summit in Washington, DC, where participants adopted an ambitious target: securing all vulnerable nuclear material by 2014. When the parties convened for a second summit in Seoul two years later, each country presented a list of national actions taken toward the collective effort. By 2012, 60-80 percent of national commitments to secure or eliminate stockpiles of fissile materials were achieved. According to experts, that percentage of commitments that have been implemented has risen to 90 percent today. Still, it’s clear that progress has been uneven. On the one hand, the NSS has served as a flexible format to catalyze concrete action. Participants arrive at each meeting with specific national pledges, as well as thematic “gift baskets”—voluntary initiatives that countries present and seek to acquire backers for, ideally as many as possible. (This year, for instance, South Korea, the Netherlands, and the United States are announcing a trinational initiative on “Strengthening Nuclear Security Implementation.”) The process also imposes relative accountability, as participating countries must submit national progress reports that explain how they are fulfilling their obligations. Consequently, the number of countries and facilities in possession of HEU and plutonium is decreasing, and many countries have made progress in securing or eliminating vulnerable material. One noteworthy success story is Ukraine, which removed all the highly-enriched uranium (HEU) on its territory in order to fulfill its 2010 NSS  commitment. Observers have rightly noted how much higher the stakes in Crimea might be today had it not done so. There are other success stories. According to the 2014 Nuclear Threat Index, Austria, the Czech Republic, Hungary, Mexico, Sweden, and Vietnam have also eliminated their stocks of weapons-useable nuclear materials. In addition, thirteen other countries have reduced their stockpiles. And today, Japan announced it will turn over a massive cache of weapons-grade plutonium and HEU to the United States—a coup for President Obama. Nevertheless, the risk remains. Terrorists would need only a small amount of diverted fissile material (some thirty-five pounds of HEU or nine pounds of plutonium) to fashion a crude nuclear weapon. Terrorists could also make use of loose radiological material to create a less destructive “dirty bomb.” Such a dispersal device would function as a weapon of “mass disruption,” sowing panic and economic chaos (if deployed, say, at the lower end of Manhattan under the right conditions, it could make that area uninhabitable for decades). It is thus worrisome to learn that in the past year alone approximately 140 cases of missing or unauthorized uses of nuclear and radioactive material were reported to the International Atomic Energy Agency (IAEA). More broadly, it is clear that NSS participants will fall short of their 2014 target goal of locking up all nuclear material. There are still twenty-five states with one kilogram or more of weapons-usable nuclear materials, and some states are still increasing their stockpiles, including Japan, the United Kingdom, India, and Pakistan. Existing institutions also fail to adequately address the threat. Approximately 85 percent of the global stockpile of highly enriched uranium (HEU) and separated plutonium (approximately 2000 metric tons scattered across hundreds of sites in twenty-five countries) remains outside of civilian programs and therefore not subject to IAEA guidelines or to the Convention on the Physical Protection of Nuclear Material [PDF] (CPPNM) and its 2005 Amendment [PDF]. Moreover, many nations have not translated the IAEA guidelines into domestic law, and they are thus not enforceable when it comes to material used by civilian programs. The United States has been pushing countries to commit to more stringent international guidelines and incorporate these into domestic legislation, but its own failure to ratify the 2005 amended version of the CPPNM undercuts these efforts. Perhaps most disturbing are gnawing doubts about the capacity or will of select countries to safeguard their nuclear arsenals, as well as to track, interdict, and prosecute nuclear smugglers. Pakistan is a particular concern, given that country’s growing arsenal of nuclear weapons (including small, portable battlefield devices) and its penetration by (and periodic sponsorship of) jihadist networks. North Korea is another concern, given its penchant for selling sensitive contraband, including weapons, to the highest bidder, and uncertainty about command and control of its nuclear arsenal during internal crisis. Given these continued—and in some cases growing—concerns, NSS delegates cannot afford to rest on their laurels.  Success will require that world leaders: Remove the Crimean elephant from the room: The United States and Russia should release a bilateral statement declaring that despite differences over Crimea and Ukraine, both remain committed to the NSS process and facilitating the fulfillment of the objectives of the Washington Workplan, their individual pledges, and those of all participants. The world needs Russia to play ball on securing civilian-use nuclear material as well as on non-proliferation generally, given the number of facilities and quantity of material still in its possession. It may be too late to prevent unhelpful issue linkage, but confronting the problem squarely could make it more difficult for any stakeholder to hold the process hostage going forward. Untether U.S. leadership: President Obama has allocated political capital to this issue. But the United States cannot lead by example with one hand tied behind its back. The president should declare his determination to work with lawmakers of both parties to push legislation through the Senate that will ensure U.S. compliance with the CPPNM and its 2005 amendment. Share the security burden: The summit communiqué should include a renewed commitment by NSS states to assist developing countries meet their commitments under UN Security Council resolution 1540 (as extended in resolution 1977), including through strengthening the 1540’s committee’s capacity to provide technical assistance to countries that require expertise to deal with proliferation threats. Support Pakistan’s progress: The communiqué should include a strong statement acknowledging the particular challenges facing Pakistan, and pledging multilateral and bilateral assistance from NSS parties, as well as from the IAEA, in assisting the securing of its nuclear arsenal. Such a collective announcement would be less inflammatory than unilateral U.S. efforts to elicit greater nuclear cooperation, given the often fraught relationship between Washington and Islamabad, and would be appropriate given the improvements Pakistan has made and its engagement with the NSS process. Realize the potential of the IAEA: Participants should settle on a near- and long-term strategy for empowering the IAEA to play a greater role in the field of nuclear security diplomacy, starting with transforming the IAEA guidelines into standards and pushing for their implementation, and increasing core funding to the IAEA Office of Nuclear Security. Secure the post-2016 agenda: As things currently stand, the final NSS summit will occur in 2016, the last year of the Obama presidency. To remove uncertainty, the entire NSS membership should endorse the indefinite extension of the biannual summit, which will continue to meet as long as the world faces a threat from unsecured nuclear weapons. Creating a standing summit mechanism should be the first step in formalizing—and ultimately institutionalizing—what has to date been an informal system of parallel national pledges. A concrete, forward-looking communiqué should be the first step in creating a robust multilateral framework for nuclear security, helping to ensure that this agenda moves ahead—even against the eerily familiar backdrop of escalating tensions between a set of nuclear powers.

Yesterday, Russian president Vladimir Putin pulled off a rigged referendum in which an overwhelming majority of Crimean voters chose union with the Russian Federation. But his victory is far from complete. The West retains a powerful card to play: mobilizing international opposition to deny Russia the international legitimacy it seeks for this naked power play.  U.S. and European leaders have roundly condemned the referendum, citing international law. It would be wiser for the West to shift the terms of the debate away from the legal merits of Russian conduct, and to focus instead on the illegitimacy of Russia’s annexation of Crimea and Moscow’s clear aspirations to expand its territory. To date, the global debate over Russia’s intervention in Ukraine has been framed primarily in legal terms, but this is devolving into an exchange of accusations and messy interpretations of historical precedents. Indignant Western governments condemn Russian’s conduct and Crimea’s secession as a blatant “violation of international law.”  Moscow, meanwhile, claims that it is affording the inhabitants of Crimea with their inherent right to national self-determination “in full compliance with international law.” Russia has also accused the West of hypocrisy, invoking the precedent of Kosovo—which unilaterally declared its independence from Serbia in 2008, to the fury of Belgrade and Moscow but the vigorous applause of the United States and many European countries. Moscow notes that the International Court of Justice in July 2010 subsequently judged that Kosovo’s declaration of independence was legal. The West has returned fire, noting that the Crimea already enjoyed considerable autonomy in Ukraine, like several regions in Russia, but that Moscow had brutally repressed independence movements within its own territories, including in Chechnya and Ingushetia. Moreover, the West counters, the Kosovo referendum occurred in the context of a UN peace operation, eight years after a massive campaign of ethnic cleansing at the hands of Serbia. In the case of Ukraine, it is occurring in the presence of Russian military troops occupying Crimea, and with no evidence of any Ukrainian campaign of oppression against Crimea’s Russians. This argument over the legality of Crimean secession has clearly proved a fruitless distraction. International law is flexible on the question of whether self-determination includes the right to secede. It is not a recognized “right,” but nor is it seen as necessarily “illegal.” Given the vulnerability of many states to secessionist movements, the general international preference has been to offer increased autonomy to ethnic minority enclaves, rather than independence. Secession, when it occurs, is expected to be a peaceful outcome of protracted negotiations both with the national government and the international community. In Crimea, of course, neither condition was satisfied. Farcically, the referendum was announced only ten days before it was to occur, and neither of the two options on the ballot included the status quo. And though the vote patently violated Ukraine’s own constitution (article 73 of which requires a referendum of the entire country before its territory is altered) ), secessionists have rarely bothered to consult with the mother country before acting—further undercutting legal arguments. This is true both for successful secessions (e.g., the United States against Great Britain after 1776) and unsuccessful ones (e.g., the Biafran campaign against the state of Nigeria). The "velvet divorce" allowing the secession of Slovakia from Czechoslovakia in 1993 is the exception rather than the rule here. Whatever the legality, Russia will find it even more difficult to sell the Crimean secession as legitimate. Despite attempts to liken it to Kosovo, (which 106 countries have recognized), the Crimean situation is more reminiscent of the Turkish Republic of Northern Cyprus, whose declaration of independence in 1983 has been recognized by only one nation: Turkey itself. As noted in a previous blog, Crimea’s secession sets a terrible precedent. Hundreds of minority populations around the world might in principle insist on secession, throwing existing borders into chaos. Not for nothing did Woodrow Wilson’s secretary of state Robert Lansing bemoan that the principle of national self-determination advanced by his president was “loaded with dynamite.” Moreover, Russia’s aspirations are not limited to Crimea, and its successful annexation could clear a path for the Kremlin to seek to regain de facto sovereignty over territories in the former Soviet Union with large Russian minority populations, under the pretext of protecting “oppressed” compatriots. We have seen this movie before, most obviously in Georgia. In 2008, the Russian military intervened to assist two breakaway republics, Abkhazia and South Ossetia. In the aftermath of that intervention, Moscow pledged to remove its troops. They remain there today. Or consider Moldova, where Moscow has for more than two decades supported the statelet of Transdniester, allowing it to become a veritable Walmart of arms trafficking. But in this case, the scale of Russian audacity is even more alarming. Dismembering portions of tiny Georgia (population 4.5 million) and Moldova (3.5 million) was outrageous but of limited geopolitical significance. Doing the same to Ukraine—population 46 million—is another thing. It suggests that Putin is determined to expand Moscow’s effective control, formal or informal, over as much of the Russian-speaking “near abroad” as he can. That this impulse may be driven less by overconfidence than desperation is of little comfort. Historically, the world has had as much to fear from anxious powers in decline than rising ones eager to sow their oats. Consider the role that miscalculations by Putin’s Romanov predecessors, along with the aging Hapsburg dynasty, played in the outbreak of the Great War one hundred years ago this coming August. Putin’s actions are unlikely to trigger another great power war. The United States and the European Union are already treating the annexation of the Crimea—a territory of only 2.3 million and a strategically and historically important part of Russia—as a fait accompli, But unless the West can make Putin feel the pain of his audacity, his irredentist ambitions are likely to grow. The most obvious target is the large Russian-majority population in eastern Ukraine, including the cities of Luhansk,  and Kharkiv. The resulting dismemberment of Ukraine, if allowed to proceed, would enter the history books alongside the partition of Poland as a naked exercise in power politics. But Ukraine is not the only country of concern. Commentators have expressed worries about the Baltic nations of Estonia, Latvia, and Lithuania, given their sizeable Russian minorities. In 2007, the mere act of dismantling a Soviet-era statue of Lenin in the center of Tallin led to a massive cyberattack, apparently orchestrated from Russia, on Estonian government ministries. At the same time, Moscow is likely to avoid any direct military confrontation with the Baltic states—each of which is a NATO member—to avoid triggering a third world war. More realistic targets for incorporation into an expanded Russian Federation, beyond Ukraine, are Belarus and, potentially, portions of Kazakhstan. The former is already Moscow’s most reliable client state, suggesting there is no hurry to absorb it officially. The latter could become a target, depending on whether the government of Nursultan Nazarbayev toes a Russian line within Moscow’s Eurasian Union or adopts a more independent course, including overtures to China. Russia’s annexation of Crimea—which holds only 4 percent of Ukraine’s population—will not by itself significantly alter the balance of power in Eurasia. But it does establish a worrisome precedent that other powers—great and not-so-great—may seek to emulate. Beyond depriving Putin of recognition of his spoils, the West needs to send a powerful message about the wages of “sin”--in this case, unilaterally challenging the sanctity of borders. Targeting a few senior Russian officials for sanction should be only the beginning. And the Obama administration and international allies should stop citing international law and instead adopt more aggressive rhetoric noting that Russian expansionist aspirations are illegitimate and threaten peace on the continent.

Three years after the outbreak of war in Syria, the agony only deepens for its civilian population. The conflict has already killed 140,000, forced 9.5 million­­—44 percent of the nation’s prewar inhabitants—to abandon their homes, and led some 2.5 million Syrians to flee to neighboring countries, including Lebanon, Jordan, Turkey, and Iraq. Syrian refugees now constitute more than 20 percent of Lebanon’s population, on top of 400,000 Palestinian refugees already present. In January, the United Nations sponsored a conference in Kuwait City, requesting that international donors provide $6.5 billion in emergency assistance for the victims of the Syria conflict—a figure dwarfing any previous humanitarian appeal. The scale of this effort underscores the magnitude of the human tragedy in Syria. It also points to broader strains and dilemmas confronting the humanitarian enterprise globally. The war in Syria, and difficulty of providing emergency aid to its population, underscores five major challenges that are facing the United Nations and other humanitarian actors: Multiple crises are stretching global humanitarian response to the breaking point: Syria is not the only complex emergency confronting the UN system and its member states. Even as they seek to ease suffering in Syria, relief agencies are coping with massive flows of refugees and internally displaced persons (IDPs) in South Sudan and the Central African Republic (CAR). The UN’s Office of the Coordinator of Humanitarian Affairs (OCHA) has designated all three (as well as typhoon Haiyan) as “Level 3” crises—the highest degree of severity. In South Sudan, fighting between the government and insurgents has generated an estimated 708,900 IDPs. The situation in CAR is even more calamitous, as sectarian violence has driven an estimated 950,000 people (mostly Muslim) from their homes, including 300,000 across international borders, particularly to Chad. Thanks to these three crises—and others around the globe, like in the eastern Democratic Republic of the Congo (DRC)—the world now has more refugees and IDPs combined than at any other time. Nontraditional donors have failed to fill the gap: The surging demand for humanitarian assistance is coming at a bad time. Traditional Western donors are exhibiting “aid fatigue” after two decades of seemingly unending crises and exhaustion with nation-building efforts in Afghanistan, Iraq, and elsewhere. To help supplement aid from OECD nations, the United Nations and the United States have appealed for greater support from emerging donor nations, including China, India, and the Gulf states. The results have been underwhelming. The brightest newcomer has been Kuwait, which has pledged and delivered $500 million for Syrian refugees. Saudi Arabia and the UAE, in contrast, have been comparatively stingy. New donors also appear more inclined to let political calculations influence their decisions on relief aid. Witness the miserly Chinese response to typhoon Haiyan in the Philippines, which is locked in a struggle with China over sovereignty claims in the South China Sea. Protracted humanitarian crises require different approaches from brief, fast onset emergencies: Conventional wisdom associates humanitarian response with the fast delivery of relief to cover acute emergencies, including natural disasters and man-made catastrophes. This model, still embraced by some relief agencies and NGO aid workers, is ill-suited to chronic or protracted humanitarian crises. In Syria and its surrounding countries (as well as Somalia and Kenya, Afghanistan, and Pakistan), displacement has become a fact of life, with tens, even hundreds, of thousands inhabiting massive camps. Beyond providing food and shelter, donor agencies and NGO providers must take a longer-term perspective informed by development principles. In response, the UN system is now pushing its own agencies and other donors to adopt a common planning framework that links provision of relief aid with longer-term efforts to improve health and education and provide for displaced populations. Along similar lines, governments, UNICEF and other international actors recently launched a “No Lost Generation” initiative targeting the estimated five million children in Syria who have suffered deeply during the war, including spending the last three years without formal schooling. “Humanitarian space” continues to shrink: Since the “invention” of humanitarian action in the mid-nineteenth century, actors providing emergency relief in the midst of war have counted on combatants to respect their special status, guaranteeing their physical safety and access to victims on all sides of conflict. In return for this “humanitarian space,” relief workers have generally embraced the principles of neutrality, impartiality, and independence. Since the end of the Cold War, however, humanitarian workers have increasingly found themselves as pawns and targets of belligerents, particularly by rebel forces, insurgents, and terrorists. In Afghanistan, humanitarian workers complained bitterly (if controversially) that U.S. and allied military forces exacerbated this problem by conducting their own “humanitarian” operations for political and intelligence purposes, thus blurring the lines between humanitarian actors and soldiers and exposing the former to targeting. The conflict in Syria has thrown the problem into even sharper relief, with both sides, but particularly the Assad regime, using humanitarian actors as pawns in their ongoing struggle. USAID has sought to prevent the diversion of aid by both the government and the rebels, including through the use of bar codes to track supplies. However, the government in Damascus continues to pursue a policy of “kneel or starve,” obstructing delivery of relief supplies to rebel-held areas and diverting supplies to regime sympathizers. This explicitly violates UN Security Council Resolution 2139, which passed unanimously on February 22, and insists on unencumbered humanitarian access—both across lines of control within Syria and across Syria’s borders.  Violations of international humanitarian law jeopardize traditional rules against intervention into sovereign states: Both sides in the Syrian conflict, but especially the Assad regime, have directly targeted civilians and civilian infrastructure, including schools and hospitals. According to UN secretary-general Ban Ki-moon, “some 200,000 people are under siege in government-controlled areas.” Particularly heinous has been the government’s continued use of barrel bombs, in direct contravention of resolution 2139. Deployment of these weapons, intended to terrify and inflict horrific casualties on those perceived as sympathetic to the rebel cause, constitutes a clear violation of international humanitarian law. The deliberate targeting of civilians clearly reinforces the argument for international intervention consistent with the “responsibility to protect” doctrine. But even absent such targeting, the Assad regime’s obstructionism of life-saving humanitarian aid raises two critical policy questions: First, at what threshold does blockage of emergency assistance justify coercive action against a sovereign state to ensure its delivery? Second, when does a regime’s denial of life-saving aid to its civilian population constitute a crime against humanity, for which perpetrators may be held accountable to international justice, whether in the International Criminal Court or some other venue? The Syrian crisis has exposed critical challenges for the future of the humanitarian enterprise, which—for all its faults—surely represents one of most remarkable achievements to reduce suffering in human history. Around the world, emergency relief continues to save thousands upon thousands of lives. Even in Zimbabwe, ruled by Robert Mugabe’s iron fist, a remarkable 86 percent of people requiring aid have received it, according to a recent report. Syria reminds us just how fragile these accomplishments remain, and how the brutality of civil war can challenge cherished humanitarian principles.

South Africa on Monday expelled three Rwandan officials from its embassy in Pretoria. They are charged with complicity in an assassination attempt against a Rwandan dissident living in South Africa. In response, Kigali expelled six South African diplomats. Rwandan foreign minister Louise Mushikiwabo further accused South Africa of providing a safe haven for Rwandan terrorists. There is suspicion in South Africa that Rwanda has been complicit in other assassinations or attempts against Rwandan dissidents, but apparently there was not enough evidence previously to move against the Rwanda embassy. Now there is. The bilateral relationship between Kigali and Pretoria is complicated. Kigali has close political and economic ties with Uganda and Kenya; all three are part of the East African Community. If forced to choose between Kigali and Pretoria, Nairobi and Kampala are likely to choose the former. Nairobi is already cool toward Pretoria: the Zuma administration is a staunch defender of the International Criminal Court, where Kenya’s President Uhuru Kenyatta was arraigned and Vice President William Ruto is currently on trial for crimes against humanity. South Africa also provides peacekeepers to the UN forces in the eastern provinces of the Democratic Republic of the Congo, where there are widespread accusations of Ugandan and Rwandan support for the anti-Kinshasa rebel militias. Official Rwanda complicity in the attempted murder of an asylum seeker in Johannesburg is, of course, an outrageous violation of South African sovereignty. There is speculation that Pretoria may expel the Rwandan ambassador. If so, that will almost certainly be followed by Kigali’s expulsion of the South African ambassador. Official communication between the two countries would then be put on ice. Simon Allison, writing in the Daily Maverick, points out that Pretoria here has the high ground. The danger, as he also points out, is that treating Paul Kagame as an “outlaw” and Rwanda as a “pariah state” could become a "self- fulfilling prophecy." On the other hand, plenty of observers in the eastern Congo would argue that they already are. How, then, is South Africa, a liberal, democratic state governed by the rule of law but with African interests and aspirations to respond?

British Foreign Secretary William Hague has aptly labeled Ukraine the “biggest crisis in Europe in the twenty-first century.” Indeed, he could have gone further. The Russian intervention will reverberate beyond the continent, since it challenges the very principles of a stable world order.  How this crisis plays out may determine whether the twenty-first century remains a time of great power comity, where patterns of cooperation dominate, or deteriorates into a bare-knuckled era of geopolitical competition. Moscow’s intervention is testing several fundamental norms of world politics: It challenges established principles of sovereignty and nonintervention, it raises the specter of a return to great power spheres of influence, and it elevates the principle of nationality over citizenship. Moreover, it has already exposed, yet again, the weakness of collective security in the face of destabilizing action by a great power.  Sovereignty and the sanctity of borders: Most obviously, Russia’s insertion of troops into Ukraine’s Crimea region and effective seizure of the peninsula constitutes a blatant violation of Ukrainian sovereignty and of the nonintervention provisions contained in Article 2.7 of the United Nations Charter. While Russia has long maintained military installations in Sevastopol, home of its Black Sea Fleet, the Crimean peninsula has been part of Ukraine’s sovereign territory since its 1954 transfer from Russia by then Soviet premier Nikita S. Khrushchev. Ukraine has denounced Russia’s actions as a breach of the bilateral status of forces agreement between the two governments, and the United States concurs that international law has been violated. Beyond infringing on Ukraine’s borders and territorial integrity, Russia has challenged the most fundamental aspect of its sovereignty: monopoly on the legitimate use of armed force. Moscow’s “brazen act of aggression,” as Secretary of State Kerry has termed it, may be the clearest unilateral violation of another nation’s sovereignty since Saddam Hussein’s invasion of Kuwait in 1990. It is not without precedent, however: In 2008, Russian troops invaded Georgia to assist two breakaway republics—and has since reneged on its promise to remove its troops. Allowing Russian actions in Ukraine to stand now would gravely undermine the doctrine of state sovereignty, which remains—for all its limitations—a force for global stability. The resurgence of spheres of influence: Moscow’s intervention in Crimea cannot be viewed in isolation. It is part of a broader post-Cold War effort to consolidate control over Russia’s “near abroad.” Putin, who famously called the dissolution of the Soviet Union “the greatest geopolitical catastrophe” of the twentieth century, has never sought to disguise this aim. To pull former Soviet republics into Moscow’s orbit, he has deployed numerous instruments, such as creating a “Eurasian Union” intended to rival the EU and selling subsidized natural gas to friendly neighboring countries. Provided its regional hegemony was secure, Moscow has generally conformed with international norms. But it has been willing to resort to force when challenged, as in Georgia in 2008 or Ukraine today. Spheres of influence are nothing new, of course. During the nineteenth century, they were often explicit arrangements that helped avoid collisions and smooth frictions between the great powers. Later, during World War II, British prime minister Winston Churchill and Russian leader Joseph Stalin in 1944 worked out an infamous “percentages agreement,” which secretly outlined the respective influence that the United Kingdom and Russia might enjoy in postwar Eastern Europe. U.S. President Franklin D. Roosevelt, who learned of these plans, would have none of it. The UN Charter, by enshrining the principle of sovereign equality, was intended to end such arrangements forever. Returning from Yalta, where the Big Three had met in February 1945, Roosevelt proudly told a joint session of Congress: “The conference in the Crimea was a turning point—I hope in our history and the history of the world. It ought to spell the end of the system of unilateral action, the exclusive alliance, the spheres of influence, the balances of power, and all the other expedients that have been tried for centuries—and have always failed.” Ironically, of course, spheres of influence indeed survived into the Cold War in the form of tacit agreements between the superpowers. In Eastern Europe and the Caribbean Basin, respectively, the Soviet Union and the United States reserved the right to intervene to counter perceived threats to their respective strategic and political interests.  (To be sure, the Soviet sphere was far more closed than the U.S. one). With the end of the Cold War, many hoped spheres of influence would become a thing of the past. But Russia’s recent moves—as well as Chinese assertiveness in the South and East China Seas—suggest not. Reasserting the nationality principle. Putin and his hand-picked  parliament have justified his seizure of Crimea as a move to protect not only Russian nationals but “compatriots”—that  is, Russian-speaking inhabitants of Ukraine. In advancing this right, Putin has essentially elevated (Russian) ethnicity above (Ukrainian) citizenship. Like Czar Nicholas I, who claimed responsibility to protect co-religionists in the Ottoman Empire, he is asserting Moscow’s inherent right to defend a wider Russian diaspora in neighboring countries, including the estimated 58 percent of Crimeans who are ethnically Russian. By suggesting that the nationality principle trumps state sovereignty, Putin has opened a Pandora’s box. All  the former Soviet republics, from the Baltic to Central Asia, contain sizeable Russian minorities. Nor is Russia the only country in Eastern Europe  or Central Asia with large diaspora populations: consider that more than one million Hungarians live in Romania, or that a quarter of the inhabitants in Tajikistan are Uzbek. Farther afield, not least in Africa, the frequent incongruity between ethnicity and citizenship becomes even starker—and devotion only to nationality invites anarchy. Putin has recently disavowed any intent to annex the Crimean peninsula. But his actions have empowered local Russian nationalists who may seek to take matters into their own hands, threatening a bloody civil war in Ukraine. Undermining international organizations: The crisis has exposed once again the limitations of collective security when vital great power interests are at stake. The UN Security Council, so feckless in stopping violence in Syria, is even more hamstrung in resolving the Crimea crisis, thanks to the Russian veto. Given P5 divisions, the most that the UN can offer is mediation by senior UN officials. With the UNSC  unable to pass a strenuous resolution, attention has turned to the Organization for Security and Cooperation in Europe (OSCE), which has played an occasionally valuable role in defusing other Eurasian conflicts, as in mediation efforts in Georgia and Kyrgyzstan. The United States and European Union have proposed that the OSCE provide observers to monitor the safety of Ukraine’s Russian population, thus removing Russia’s ostensible justification for intervention and perhaps providing Moscow with a face-saving “off-ramp” from the crisis. But OSCE decisions typically require consensus among the 57 members of the organization. And there seems little prospect that Putin, riding high, will feel much pressure to go along. Consequently, Western multilateral institutions will need to unite behind an approach. The  United States should press its G7 partners, particularly a reluctant Germany, to eject Russia from the G8. This step would have both symbolic and substantive benefits, ostracizing Russia from the high table of advanced market democracies, where it never truly belonged, and consolidating a Western forum united by shared interests and values. Simultaneously, the United States should ensure a solid front among its NATO allies. The alliance is under no obligation to come to the aid of Ukraine (a non-NATO country) and should avoid provocative actions, such as naval patrols near Crimea or mobilization on Russia’s borders. At the same time, it should provide unmistakable reassurances of support, as well as military assets, to its East European members, including the Baltic States, while indefinitely suspending any joint exercises with Russia. These steps are not likely, by themselves, to reverse Russian aggression. But they will at least provide a symbol of Western solidarity.

As the civil war in Syria rages on, and the United States and its international partners appear unable to mobilize a collective response to stem the bloodshed, CFR’s International Institutions and Global Governance program has launched an update to its Global Governance Monitor: Armed Conflict. The revamped multimedia guide uses a new technology platform to track and analyze recent multilateral efforts to prevent, manage, and respond to armed violence around the globe. Combining stunning images and compelling narrative, it identifies the major successes and failures in global conflict mitigation during 2013. The Armed Conflict update underscores dramatic changes in international cooperation on conflict prevention and peacekeeping in the past year. While Syria has absorbed most of the international media attention, the United Nations has also launched or bolstered major peace operations in Africa. “Peacekeeping,” of course, was not even mentioned in the UN Charter, whose World War II architects were preoccupied with preventing and punishing military aggression. Rather, it was an improvisation—something between the peaceful settlement of disputes under Chapter 6 and coercive action under Chapter 7. Initially, these so-called “Chapter 6 and a Half” operations involved the insertion of observers or lightly armed soldiers to maintain ceasefires between warring parties. Over time, however, the scope of peace operations and the number of actors involved expanded dramatically. In 2013, the UN Security Council authorized assertive mandates for missions in Mali and the Democratic Republic of Congo (DRC). These more robust rules of engagement permitted UN forces to take forceful actions such as neutralizing rebel troops acting as “spoilers” in the respective peace processes. As a result, conditions in both countries markedly improved. The Malian government held presidential and legislative elections without significant levels of violence. In the DRC, the M23 rebel movement agreed to put down its weapons to pursue its goals through purely political means. This growing willingness to deploy combat-ready troops for peace enforcement is a welcome shift, helping the UN quell violence and instability, rather than assuming the role of passive bystander when conflicts escalate. At the same time, more assertive mandates, such as those adopted in Mali and the DRC, carry inherent risks. The use of force can have unpredictable consequences, threatening the safety of UN personnel. Such missions may involve the UN directly in the conflict, jeopardizing its reputation as an impartial, honest broker. To mitigate potential harm to the UN’s reputation and avoid undermining its objectives, the updated Global Governance Monitor recommends that the UN reframe the concept of “impartiality” to mean equal treatment to all parties working for peace, combined with resolute opposition to spoilers bent on violence. It also calls on the UN Department of Peacekeeping Operations (DPKO) to prioritize inclusive dialogue and reach out to representatives from all sides of the conflict. Another UN innovation during 2013 was to incorporate drone technologies into its peacekeeping missions. In contrast to drones being used by the United States in Yemen, Pakistan, and elsewhere, these are unarmed. They are designed to provide critical surveillance capabilities for UN peacekeeping missions.  The DPKO launched its first unmanned aerial vehicle (UAV) in the DRC in December 2013. Considered by many to be the future of warfare, drones may actually enable peacekeepers to carry out their mandates more cheaply, safely, and effectively by providing situational awareness of large swaths of territory. The biggest disappointment in multilateral efforts to mitigate violent conflict during 2013 was assuredly the civil war in Syria. The UN Security Council’s (UNSC) failure to produce an authoritative resolution that ends the fighting in Syria has allowed violence to continue unabated, with devastating humanitarian consequences and mounting atrocities against civilian populations. Although the UN’s Office of the Special Advisor on the Prevention of Genocide (OSAPG) has called for countries to cease crimes against humanity, the UNSC has failed to catalyze an international response, given deadlock among its permanent members. International inaction in Syria has undermined, and indeed reversed, consolidation of the evolving norm of the “responsibility to protect” (R2P). In retrospect, the 2011 UNSC-authorized intervention in Libya, which many regarded as a vindication of the principle, appears to have been its high water-mark, as many non-Western countries perceived the action as a façade for facilitating regime change. Security Council dissensus over Syria has cast doubt over the future of R2P as a mainstream international norm and policy guide in situations of mass atrocities. U.S. and international action are needed to ensure that conflict-prevention, conflict-response, peace-building, and state-building efforts are supported with ample political backing and resources. The Global Governance Monitor: Armed Conflict’s issue brief identifies six other priority steps: Enhance the global and regional architecture for conflict prevention: The United States should work with the United Nations and regional organizations to strengthen crisis prevention capabilities. An immediate objective should be to better integrate conflict analysis and early-warning efforts into organizational decision-making processes. The United Nations and regional organizations must also improve information-sharing, particularly given the rise of “hybrid” missions involving both sets of actors. Rebalance budgets to enhance conflict prevention: Given budgetary constraints, officials tend to prioritize immediate crises and may neglect emerging ones. Where possible, international institutions should allocate a greater proportion of their funding to support preventive measures, including mediation. Improve planning of UN peacekeeping and peace-building missions: The UNDPKO should seek to improve strategic planning and coordination between UN peacekeeping missions and broader peace-building efforts in crisis countries. Clarify UN mandates and exit strategies for peace operations: UN missions too often suffer from unrealistic mandates. The UNSC must return to the principles articulated in the Brahimi Report (2000), by ensuring that mandates are reasonable, appropriate to conflict context, and sustained by adequate funds, troops, and logistics. Develop rapidly deployable U.S. military forces to prevent mass atrocities: The Obama administration has declared the prevention of mass atrocities a national security priority. To add muscle behind this commitment, the president should direct the Department of Defense to develop doctrine, plans, and training to make that mission a Pentagon-wide priority. Create a dedicated U.S. mediation support team: The Obama administration should develop a strategic vision for, fund, and staff a rapidly deployable Mediation Support Unit within the State Department’s Bureau of Conflict and Stabilization Operations.

Coauthored with Claire Schachter, research associate in the International Institutions and Global Governance program. By voting Tuesday to curb its judges’ authority to exercise universal jurisdiction, Spain’s national parliament has once again thrust the international legal doctrine of universal jurisdiction into the spotlight. The vote came after a Spanish judge issued arrest warrants for former Chinese president Jiang Zemin and four senior Chinese officials over alleged human rights abuses committed decades ago in Tibet. The shift in Spain’s stance is an opportunity to reflect on why universal jurisdiction rose to prominence, and whether it is an effective means of furthering the goal of ending impunity for egregious human rights violations. The legal concept of universal jurisdiction allows a state to prosecute the most heinous international crimes in its national courts, even if the accused is a foreign national, lives on foreign soil, and has committed a crime that did not affect the prosecuting state or its citizens. It is based on the idea that some crimes—such as crimes against piracy, humanity, war crimes, and torture—are inherently of global concern or are so beyond the pale that their perpetrators should be held accountable regardless of jurisdiction. The idea of universal jurisdiction gained momentum in the aftermath of atrocities committed during the Second World War, most notably the Holocaust, as a tool to prevent war criminals from slipping through the gaps between national jurisdictions. Broadening over time, it evolved into a mechanism to investigate and prosecute violations of international criminal law, whenever and wherever they are suspected of taking place—an especially useful mechanism in the absence of a world criminal court similar to the International Court of Justice. From its inception, however, universal jurisdiction has been a controversial doctrine. Concerns surround the challenge it presents to state sovereignty, the inevitable selectivity of its use, and the danger of politically motivated prosecution. Indeed, universal jurisdiction has always been contentious, raising hackles not only in authoritarian states but also democracies.  The debates within the United States have focused on the risks of trials targeting Americans, especially political officials, such as former secretary of state Henry Kissinger, and members of the U.S. Armed Forces. Such fears seemed close to being be borne out in 2003, when seven Iraqi families in Belgium requested an investigation of former president George H. W. Bush, vice-president Dick Cheney, secretary of state Colin Powell, and retired general Norman Schwarzkopf for war crimes allegedly committed during the first Gulf War. In response to U.S. pressure, the Belgian Prime Minister proposed amendments to Belgium’s war crimes law that were subsequently passed and the investigation did not proceed. A case was also filed in Germany against former secretary of defense Donald Rumsfeld and eleven other high-ranking U.S. officials for war crimes and torture allegedly committed in Iraq, Afghanistan, and at the U.S. prison in Guantanamo Bay, but was ultimately dropped by the German Federal Prosecutor. Efforts launched by foreign nationals and public interest groups in Belgium, Germany, and other states have received less public attention than those undertaken by Spanish judges, most notably Baltazar Garzon. Judge Garzon famously indicted Chilean president Augosto Pinochet in 1998 for crimes against humanity, requesting his extradition from the United Kingdom, which he was visiting at the time. While Pinochet was never prosecuted in Spain, Garzon’s actions helped to pressure a Chilean court to strip Pinochet of immunity. It is because of Spain’s formerly pioneering role in promoting the doctrine that human rights advocates are so alarmed by Tuesday’s vote. Many howl that Spain is kowtowing to pressure from Beijing out of economic self-interest. Others are denouncing it as blatantly hypocritical, since Argentina is currently seeking justice for victims of crimes committed by the dictator Francisco Franco. Strong statements are being made by both detractors and supporters of universal jurisdiction, despite the fact that Spain has retreated from the doctrine once before—parliament passed an earlier amendment in 2009 to narrow its application. Whatever the motivation for this latest step, Spain has done the world a favor by reminding it of the need for a coherent international criminal law regime, anchored by strong international institutions. When national judges turn to universal jurisdiction, they cannot help creating diplomatic frictions, not to mention politicizing—and thereby delegitimizing—the pursuit of international criminal justice. Spain’s decision highlights both the domestic political obstacles that confront individual states seeking to enforce international norms and the damage they can do to those norms when they adopt (as they inevitably must) a selective attitude towards their enforcement. More generally, Spain’s experience strengthens the case for limiting the exercise of universal jurisdiction to the International Criminal Court (ICC). The ICC has now been operating for more than a decade, and although it has struggled at every step to fulfill its mandate of ending international impunity, it retains several advantages over individual activist states such as Spain when it comes to the effective pursuit of international justice. Firstly, when the Court launches an investigation or carries out a prosecution, the threat of diplomatic or economic retaliation does not (or at least should not) weigh as heavily upon it. Nor need it fear domestic political backlash. Secondly, and more importantly, it does not risk the discrediting or dilution of internationally accepted definitions of international crimes, for the ICC’s actions are directed by the language of the Rome Statute, as agreed to by the states parties. When individual states pursue cases with no direct ties to their interests, they must leap over higher diplomatic hurdles and land more softly than the ICC. Thus they run the risk of using the universal jurisdiction tool only selectively, undermining the legitimacy of their efforts, however well-intentioned. Moreover, divergent national criminal procedures, standards of evidence, accepted forms of punishment and the like may contribute to the fragmentation of international criminal law—and make miscarriages of justice more likely. It is worth recalling that the ICC was created  in part to address the inefficient, double-standard-ridden international criminal justice regime that was emerging from the patchwork of tribunals created in the 1990s. It was intended as the first universal institution for enforcing international criminal law. The ICC is of course not immune to criticisms of inefficiency or selectivity. The African Union, for instance, has criticized the court’s overwhelming focus on African cases, and Kenya has repudiated the Rome Statute on these grounds. But the ICC is less exposed, thanks to its broad (though not universal) membership and global mandate, and it cannot comb the distant past for potential cases. It thus runs fewer risks than the typical nation-state of delegitimizing international criminal law and procedure. Rather than lamenting Spain’s decision, human rights activists should redouble their efforts to strengthen the ICC, which remains the most promising institution for meeting the objectives of universal jurisdiction. This should include encouraging the United States and other major nations that have not yet ratified the Rome Statute to do so or—in the absence of becoming members—to agree to cooperate with the Court in myriad practical ways. It should also include monitoring legislation that seeks to incorporate the language of the Rome Statute to ensure that states are consistent in their definition and application of international norms. The evolving position of the United States is instructive in this regard. Although it profoundly shaped the Rome Statute, the Clinton administration ultimately chose not to submit it for Senate ratification, given misgivings that it could expose U.S. officials and servicemen and women to politically motivated prosecutions. The succeeding administration of George W. Bush then famously “un-signed” the Rome Statute, as well as negotiating more than one hundred “Article 98” agreements to protect U.S. citizens from the ICC’s jurisdiction. And yet, by the end of its second term in office, the Bush administration had developed a cautiously pragmatic working relationship with the Court, including voting on the UN Security Council to refer the case of Sudanese President Omar al-Bashir to the ICC. The Obama administration has expanded cooperation and engagement between the United States and the ICC. The not-quite-universal ICC is assuredly an imperfect tool for exercising universal jurisdiction, but single states are at a much greater disadvantage when it comes to investigating and prosecuting complex criminal cases across state boundaries. Spain’s step back from universal jurisdiction deserves close attention because it raises the question of why Spanish judges felt compelled to pursue this avenue to justice. The answer—the  impunity gaps that persist between the ICC’s reach and national courts—should inspire continued efforts to construct a coherent international criminal justice regime.

“The international community” is among the most commonly invoked and most frequently vilified phrases in world politics. As Tod Lindberg points out in a new CFR working paper, “Making Sense of the International Community”,  the expression has become a verbal tic of sorts for U.S., foreign, and international officials. Thus, when the stability of post-election Kenya in 2007-2008 was threatened by violence, “the international community” sprang into action. When the repressive Burmese junta kept pro-democracy leader Aung Sang Su Kyi in confinement, “the international community” united in condemnation. When Bashar al-Assad shelled the city of Homs in 2012, “the international community” groped for an appropriate response. And so on. For hard-bitten realists like CFR President Richard Haass, the phrase is simply silly—redolent of the soft sentimentality of utopian dreamers unable to see the world as it is: a Hobbesian state of nature, in which sovereign states compete mercilessly for power. For neoconservative ideologues, like Washington Post columnist Charles Krauthammer, it is woolly-minded gibberish, propagated by liberal naïfs who refuse to recognize that statecraft is a Manichean game that only those with  “moral clarity” can win. And yet the concept survives, indeed thrives, repeatedly invoked by U.S. and foreign policymakers to capture the ineffable solidarity that seems to bind at least some states, some of the time. The debate over whether “the international community” exists—and if so what it consists of—matters. If it does not exist, its loose invocation is distracting and potentially dangerous, blinding us to the real forces shaping state conduct. If it does exist, we need to clarify its meaning and boundaries more precisely, or risk undercutting the emergence of a more humane framework for world order. It takes considerable skill to shed meaningful light on such an elusive and much-maligned concept. Fortunately, Tod Lindberg of the Hoover Institution is up to the task. Although affiliated with a conservative think tank, he is not easily pigeonholed ideologically. He tends to take iconoclastic positions, like supporting U.S. membership in the International Criminal Court (ICC). He is also an elegant writer, having written for and served for years as editor of the recently shuttered Policy Review. Most importantly, Lindberg takes ideas—and the history of ideas—seriously. This leaves him well-placed to parse the evolving meaning and trace the practical impact of this influential concept. Lindberg’s core argument is that the phrase “the international community” signifies something real. To be sure, it is often used and abused for narrow, instrumental purposes. But at its core, it embodies a classically liberal vision of an international order based on the universal application of moral principles. It reflects the commitment of nations—or at least some major subset of nations—to “a commonly held sense of the good.” To summon “the international community” is to recognize that shared norms, and not simply material interests, can and do inform the conduct of states. Lindberg’s paper is a worthwhile read whatever your theoretical perspective, for he asks the right questions: Does an international community actually exist, and if so, who is eligible for membership? How sticky is the glue that binds its members, and is its expression to be found in existing international institutions, in accumulated international law, or evolving norms of international society? Finally, how coherent is this community, and who can legitimately speak in its name? What follows are just a few of Lindberg’s main insights, as this author sees them. International law underpins the “international community.” For many realists and conservative nationalists, international “law” is nothing of the kind. Lindberg begs to differ. As the late legal scholar Thomas Franck observed, international law exercises a “compliance pull.” Though it typically lacks the force of sanction characteristic of domestic law, most countries  obey it, most of the time. And when they do not—as in the NATO-led intervention in Kosovo taken without UNSC authorization—they offer normative justifications for their departure from the law. And the reason governments do so is that they value international law not only for its contributions to world order but for its embodiment of the community of nations. The “international community” is bound by certain shared norms. When one speaks of community, George Washington University professor Amitai Ezioni writes, we imply “a shared moral culture and bonds of affection.” The sense of community is inherently thinner at the global than the domestic level of course, given the diversity of national political and economic systems and values. Still, the notion of the international system as purely anarchic and populated by self-contained states (the “billiard-ball” image so beloved by neorealists) is woefully out of date. As British political theorist Hedley Bull observed decades ago, the world’s nations, for all their heterogeneity, constitute a kind of “society of states,” whose members share “a sense of common interests in the elementary goals of social life; rules prescribing behavior that sustains these goals; and institutions to make these rules effective.” The “international community” is not inherently Western. There is a strong temptation to depict the West, where the sovereign state system began, as the core of “the international community.” After all, shared values and transnational alliances, networks, and ties have so transformed politics among advanced market democracies that that war among them is today inconceivable. Lindberg rejects this position, after considering it. While the “Atlanticist community” may be “the most highly developed ‘transnational ethical community,’” he writes, “other transnational communities may gather and pursue common ends,” citing the Non-Aligneed Movement (NAM) and the Group of Seventy-Seven (G77) as examples. The main implication? Solidarity within “the international community” may often be thinner than among its sub-groups. The “international community" remains open in principle to all. Lindberg challenges those radical critics who consider the concept of an “international community” inherently exclusionary. Defining a “we” group, he insists, does not depend on a “they” group perpetually excluded from membership. All that is required to join the international community is to accept its fundamental norms and rules. This choice is of course most acute for today’s “rogue” (or in the current parlance “outlier”) states like Iran, North Korea, Syria, and Sudan, which violate fundamental principles and standards of behavior as they pursue of weapons of mass destruction or commit atrocities against civilians. Lindberg’s essay does not provide ready solutions to specific foreign policy problems. But he does conclude with “a practical guide” to help officials decide when it is (and is not) appropriate to invoke the “international community.”  His main counsel is to avoid using the term when international sentiment is deeply  divided on matters of fundamental principle. Employing the phrase more judiciously could avoid a host of problems. At present, he warns, “Our loose talk of international community comes at a price, in terms of sometimes inflated, sometimes diminished expectations about the ability of international politics to be brought into alignment with an evolving yet classically liberal moral order—whose political authority consists in its voluntary acceptance by growing numbers of people, even including governments.”

On December 19, International Criminal Court prosecutor Fatou Bensouda asked the judges to adjourn the trial date of Kenyan president Uhuru Kenyatta because one of the prosecution’s witnesses is now declining to testify and another has confessed to giving false evidence. She is asking for the adjournment to give her more time to seek other evidence before proceeding with the trial. She said: “Having carefully considered by evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial. I therefore need time to complete efforts to obtain additional evidence, and to consider whether such evidence will enable my office to fully meet the evidentiary threshold required at trial.” Kenya’s President Kenyatta and Vice President William Ruto have been indicted in connection with the bloodshed surrounding the 2007 presidential elections. At that time, Kenyatta and Ruto were on opposite sides. Kenyatta was a leader of the Kikuyu ethnic group, while Ruto was a leader of the Kalenjin ethnic group. The two ethnic groups have long been bitter enemies. The origin of the enmity appears to be dispute over land in the Rift valley. However, political figures on both sides have previously fanned the enmity in pursuit of their own agendas. It looks like that might have happened in 2007. At least 1,200 people were killed, and the international community, led by then UN Secretary General Kofi Annan intervened. In 2013, however, Kenyatta and Ruto reconciled their personal differences and led a united ticket against Raila Odinga. Kikuyu and Kalenjin found themselves on the same side. They won in elections that most Kenyans decided were credible. That victory means that Kenya’s president and vice president are both under ICC indictment. Since the elections–and even before–ICC officials, including prosecutor Fatou Bensouda have complained of witness intimidation and general Kenyan non-cooperation. Kenya has sought Africa Union support against the ICC, and the Kenyan parliament has called for withdrawal from its jurisdiction. Under these circumstances, as the years go by, it is likely that it will be increasingly difficult for Bensouda to make her case against Kenyatta. However, Ruto’s case, generally regarded as the stronger of the two, started in September 2013, and is going forward. Should the ICC case against the Kikuyu Kenyatta go away, and should the Kalenjin Ruto be convicted, it is unclear whether that would re-ignite the ethnic conflict between the Kikuyu and the Kalenjin, up to now held in abeyance by the Kenyatta/Ruto alliance.

Many friends and observers of Africa, including myself, see shortcomings in governance as key to the slow rate of economic, social, and political development in some African countries. The converse is also true. Where governance is better, development can be rapid. The Mo Ibrahim Foundation has published its annual ranking of African states. The top five in descending order are Mauritius, Cape Verde, Botswana, Seychelles, South Africa, and Namibia while the bottom five, going from bad to worse, are Zimbabwe, the Central African Republic, Chad, Congo, and Somalia. For a second consecutive year, the Foundation has announced that there is no winner of the Ibrahim Prize for outstanding leadership by a chief of state. Established in 2006, the prize’s independent and highly distinguished judges have awarded the prize only three times, to the former chiefs of state of Botswana, Cape Verde, and Mozambique. They have also recognized the work of Nelson Mandela, out of office long before the prize was established, and Archbishop Desmond Tutu, both of South Africa. Subsequently, I will be blogging on the Ibrahim Index and the Ibrahim Prize. Here I cite them to support the point about the relationship between good governance and social and economic progress, and to point out that poor governance remains a significant challenge for Africa. Essential to good governance is accountability, and the International Criminal Court (ICC) promotes it. In an interview with Radio Netherlands, retired Archbishop Desmond Tutu, an icon of South Africa’s liberation movement, said, “The ICC has been a powerful force for justice, peace and accountability not just in Africa but around the world. Far from targeting Africa, it has served and protected Africa.” Kenyan president Uhuru Kenyatta and deputy president William Ruto have been indicted by the ICC for crimes against humanity in the aftermath of Kenya’s 2007 elections. Though they are cooperating with the court, they are seeking to avoid standing trial, either until their time in office ends, or forever. Accordingly, at a special summit of the African Union (AU), Kenyatta argued that the Western countries, especially the UK and the United States, had turned the court into a neocolonialist tool. He called for a mass walkout from the Treaty of Rome that established the court and which thirty four African countries have ratified. He argued that the ICC was contemptuous of the African Union, and the African Union accordingly resolved that the two should not appear before the ICC. London’s Daily Telegraph is reporting that “European diplomats” are seeking to have the UN Security Council direct the ICC to put the Kenyatta and Ruto trials on hold. A British Foreign and Commonwealth Office spokesman, however, says that there has been no change in the government’s support for the ICC. It remains to be seen whether African states will follow the AU resolution. Adherence to the Treaty of Rome is a matter for individual sovereign states. Kenya’s parliament has already called for Kenya to withdraw, and I believe there is a good chance this will happen. If so, it is difficult to see how the trials of Kenyatta and Ruto can proceed. Legally, their indictments still stand and their trials should go forward. It also remains to be seen whether the efforts by “European diplomats” to seek the trial’s postponement by the UN Security Council will be serious.

Significant African opinion appears hostile to the International Criminal Court at The Hague (ICC). In Kenya, President Uhuru Kenyatta and Deputy President William Ruto, both under ICC indictment for crimes committed during post-election violence in 2007-2009, included in their campaign rhetoric that the ICC was a tool of Western imperialism. This view is shared by many. Others argue that the ICC is somehow “unfair” because its current cases all involve Africa. In Kenya, the parliament has called for the withdrawal from the Treaty of Rome that established the ICC. The African Union has called for the Kenyatta and Ruto cases to be referred back to the Kenyan judicial system. A special African Union (AU) summit meeting is convening in Addis Ababa on October 11-12 to discuss the Union’s relationship with the ICC. Some hope that the AU member states will withdraw as a block from the Treaty of Rome, though few expect that will actually happen. Misunderstandings, even outright lies, about the ICC and the Kenyatta and Ruto cases in particular are underpinning much of this current anti-ICC sentiment in Kenya and elsewhere. Under those circumstances Human Rights Watch (HRW), a distinguished non-governmental organization based in the United States, has performed a service by publishing a short primer on October 7 entitled Perceptions and Realities–Kenya and the International Criminal Court. It sets out eight common perceptions about the Kenyatta and Ruto ICC prosecutions–and then demolishes them. Along the way it shows that the Kenyan judicial system does not have the capacity to prosecute Kenyatta and Ruto and that it has failed to hold perpetrators of electoral or political violence accountable throughout its post-colonial history. It also exposes a lack of substance to the Kenyan government’s cooperation with the ICC in the Kenyatta and Ruto cases–despite the two’s formal cooperation with The Hague court. The HRW primer is the first place to go when looking at the alleged legal arguments for delaying the trials, either by transferring them to Kenyan jurisdiction or through UN Security Council action. HRW also discusses the consequences for the future of Kenya’s failure to hold accountable perpetrators of human rights violations. Impunity in the past implies impunity in the future. Archbishop Desmond Tutu has also weighed in on the key role of the ICC in ensuring that perpetrators of violence are met with justice not impunity. In an op-ed published in the New York Times on October 10, Tutu states that “without this court, there would be no brake on the worst excesses of these criminals.” He also highlights the fact that while the ICC has so far prosecuted only African cases, the ICC could also “not be more African if it tried.” The United States is also a signatory of the Treaty of Rome, but it has never been ratified by the Senate. U.S. policy is, however, highly supportive of the International Criminal Court. In light of non-ratification, many African critics view U.S. support for the ICC as fundamentally hypocritical.

Moscow has seized the initiative in the increasingly dizzying diplomacy over Syria’s chemical weapons (CW). By picking up on Secretary of State John Kerry’s offhand remark—that Damascus might avoid a U.S. military strike by eliminating its CW stockpiles—Vladimir Putin has offered a lifeline to a beleaguered White House. Bereft of domestic and international support for a hard line against Bashar al Assad, Barack Obama must be sorely tempted to make this new initiative work. After all, by disarming Syria of chemical weapons, he can declare “victory” without dragging an exhausted American public into another Middle Eastern quagmire. But before making this leap, the President needs to take a hard look at the political as well as technical requirements for an effective inspection regime. Secretary Kerry and Russian Foreign Minister Sergei Lavrov are meeting in Geneva to hammer out the technical details of a potential UN inspection regime in Syria. The hurdles for such inspections are, frankly, immense, given the likelihood of Syrian duplicity and the fact that the country is in the midst of an all-out civil war. An inspection team must be created from scratch and it must be provided with the location of and access to all relevant installations, including military bases, weapons depots, and factories for the assembly of weapons and production of precursor chemicals. The team will need to secure these facilities from interference or seizure by the government or rebel groups, and it must have sufficient armed protection to guard itself from attack from either side. Under the most optimistic scenario, it will take a year—and more likely two or three—before Syria can be officially declared chemical weapons-free. The biggest obstacles to a strong inspections regime, however, are not technical but political. To avoid its negotiations with the Russians from descending into farce, the United States must insist on three fundamental preconditions: A Strong Security Council Resolution: The envisioned inspection regime must be backed by a UN Security Council Resolution under Chapter 7 of the UN Charter. Damascus must be legally bound to declare all of their CW holdings and facilities, and the resolution must authorize the use of military force in the event that the Syrian government does not comply with these obligations. Moscow’s current position—that inspections should be established pursuant to a nonbinding “presidential statement” by the UNSC—is unacceptable. If the Syrians are indeed serious about coming clean, they should have nothing to fear from a resolution authorizing force if they balk. Full Syrian entry into the Chemical Weapons Convention: Syria has recently submitted documents to begin the process of joining the CWC. This cannot simply be a rhetorical gesture. Immediate steps should be taken destroy weapons handed over to the international monitoring regime. Syria should also be compelled to immediately submit its declarations of chemical weapons rather than waiting thirty days (the normal procedure for a new CWC party). Syria must also accept, both now and in the future, the “challenge inspection” principle whereby any state that doubts the compliance of another can request that the Convention’s Director-General to send a team to the country “any time, anywhere” with “no right of refusal.” Complete access for UN inspectors: For credibility’s sake, the relevant UNSC resolution must also permit UN chemical weapons inspectors to enter any facility in Syria, without prior warning or justification. In other words, Assad must be prepared to surrender a core attribute of Syrian sovereignty, control over his territory, even as he fights to preserve his state against rebel forces. Anything less than complete freedom of movement for inspectors will guarantee an endless game of cat and mouse reminiscent of Saddam Hussein’s antics in the early 1990s. Although these preconditions will be hard pills for Moscow to swallow, the Russians are likely to accept them as the price for U.S. agreement to their initiative. Through skillful, if cynical, diplomacy, Putin has positioned himself as a global statesman and peacemaker and Russia as a still-major power, while simultaneously insisting that the United States act within the confines of international law rather than using force outside the auspices of the UN Security Council. But Putin’s triumph is contingent. It depends on persuading the Obama administration, after years of Russian obstructionism in New York, that the UNSC can deliver a meaningful, credible resolution on Syria. That resolution must meet the U.S. bottom line, promising the elimination of chemical weapons in Syria and consequences if the Assad regime fails to do so. The Obama administration has made several embarrassing pirouettes over the past three weeks. But it is unlikely to accept the humiliation of a meaningless inspection regime over a military strike against Syria—however unpopular. As for Bashar al-Assad, no doubt he will find these preconditions even more bitter. But his paramount concern is survival. A rigorous inspection regime will permit him to fight another day, albeit with conventional means.

Deputy President William Ruto’s International Criminal Court (ICC) trial for crimes against humanity associated with the 2007 elections opens September 10 in The Hague. President Kenyatta’s trial is scheduled to open November 12. On September 5 the Kenyan National Assembly passed a motion calling for Kenya to withdraw from the ICC; the passage of the necessary legislation is expected by the end of the month. As the date of the start of the trial approaches, two more witness have withdrawn from the Ruto case, citing “mental anguish” and “pressure from the family.” Fatou Bensouda, the ICC prosecutor, has complained on numerous occasions of witness intimidation and of the Kenyan authorities’ failure to cooperate in their protection. With respect to President Kenyatta, in the Kenyan press there is a lively debate on whether the immunity conferred by the Kenyan constitution on a sitting president trumps the ICC. The general sentiment is that it does, and that Kenyatta’s trial cannot go forward so long as he is in office. The debate also features a rehash of familiar arguments about the alleged bias of the ICC against African leaders despite the fact that the prosecutor, Fatou Bensouda is a Gambian who received her university and legal training in Nigeria. (She also studied maritime law in Malta.) There are eighteen ICC judges. Five are from Western Europe, five from Africa, three from Latin America, three from Asia and two from Eastern Europe. Kenya’s withdrawal from the ICC appears inevitable. With respect to the Ruto and Kenyatta trials, it changes nothing–and it changes everything. As human rights activists and legal experts point out, Kenyan withdrawal can take place only after a year. Further, withdrawal has no legal impact on the indictments now standing against Kenyatta and Ruto. But, Kenyan withdrawal also changes everything because, in effect, the ICC trial will not be able to function without Kenyan government cooperation. Ruto is required by the ICC to be in The Hague on September 10. He previously pledged to cooperate with the court and therefore is obliged to appear. We will see if he actually goes. The entire dreary episode appears to be a setback for holding African leaders accountable.