International Law

Below is a guest post by Martin Willner, research associate in the International Institutions and Global Governance program. More often than not, when we think about customs and laws, we think of them as two distinct categories. Customs are encouraged, but optional: replying to an RSVP request, writing a thank-you note, shaking hands. Laws are mandatory: stopping at red lights, paying taxes, going to jury duty. As Kipling might put it, custom is custom and law is law and never the twain shall meet. ...except when we are talking about international law. Contrary to popular assumption, international law is more than just treaties. In addition to the catalogues of written agreements, the customs and practices of states play an equally important role in determining international legal issues. But when and how do customs actually become law, and when do they simply remain customs? These questions have been the focus of discussion within the International Law Commission (ILC) for the past year. This summer the ILC is presenting its preliminary findings in a report to the UN General Assembly. Historically, the customary practices of states have been transformed into international law. For example, the laws of war that are now codified in the Geneva conventions were developed over centuries, not through treaties but through the consistent practice of states regarding issues such as the treatment of civilians. Even before these laws were written down and clarified in Geneva, they were already considered binding under customary international law. While it is relatively easy to trace this type of transformation in retrospect, it is extremely difficult to pinpoint if, when, and how a specific custom reaches the status of binding international law. The difficulty in identifying customary international laws has real consequences. As courts around the world attempt to ensure their respective countries’ compliance with international law, they must try to determine for themselves if any customary laws apply to domestic cases. Without consensus on how to identify customary international law, what is considered international law by a country such as South Africa may be different from what is considered international law by the United States. Much of the current problem lies in the fact that customary law is, by definition, unwritten. It is derived, according to the Statute of the International Court of Justice (ICJ), from “international custom, as evidence of a general practice accepted as law.” However, this definition has often been said to be a result of “poor drafting.” Despite the nearly seventy years that have passed since the ICJ articulated this definition, fundamental terms have yet to be clarified. What does general practice mean? Does it mean that a practice is universal? Or, is it simply practiced by a majority of states? While it is tempting to blame the inefficiency of the ILC, the UN, or any other international body for failing to provide a clearer definition for an important term, this critique fails to address the inherent complications of customary law. It is perhaps the greatest weakness of the ICJ’s definition—its lack of clarity—that allows for its greatest strength—its flexibility. With its currently fuzzy definition, customary law provides domestic courts with the flexibility to (mostly) interpret the application of these laws for their own countries. The flexibility to interpret at a domestic level is particularly important for individual states regarding customary law. Unlike treaty law, once a custom is determined to be part of international law it becomes binding on all states—regardless of whether or not a country has consented to that specific law. The ILC is therefore currently undertaking a virtually impossible balancing act between providing clarity and preserving flexibility. When ultimately deciding which side to sacrifice for the other, it is likely that the ILC will prioritize flexibility—as it has in the past. The ILC has tried to address the same issues surrounding customary international law twice before, and each time it has failed. In 1971, the second time the task was attempted, the ILC came to the conclusion that “[i]t is counterproductive, and may be impossible, to codify the relatively flexible process by which rules of customary law are formed.” Furthermore, if the ILC decides to sacrifice flexibility for clarity, the resulting document would have potentially troubling consequences for courts around the world. In effect, any definitive guidance could alter the current state of compliance with international law around the world. Taking Israel’s not-so-secret nuclear arsenal as an example, in the event that Israeli courts were to use new ILC guidelines and hold that non-proliferation was part of customary international law, the country would immediately be in violation of international law despite the fact that it is not party to the NPT. In other words, future guidance provided by the ILC—a closed commission of thirty-seven members—could affect the domestic law-making process around the world. The United States would certainly not be immune from these ramifications. Currently, the United States is an outlier regarding its practice of capital punishment. Were the ILC’s guidance influential on the Supreme Court, it would be possible that the judicial branch might deem capital punishment illegal under customary law. Already without guidance from the ILC, the Supreme Court has abolished the juvenile death penalty noting that “only seven countries other than the United States ha[d] executed juvenile offenders.” The frequent and significant use of customary international law to supersede the legislative branch’s ability to make law is certainly unlikely, but poses a truly worrisome threat to the existing American balance-of-powers. Over the next four years it will be interesting to see where the ILC decides to make sacrifices as it looks to provide “guidance not prescription” on the fundamental questions of customary international law that have thus far remained unanswered. Fortunately, there is still time for the commission to successfully provide guidance—this summer’s report is only the first of four. This success, however, will depend on its ability to balance the fundamental issues of flexibility and clarity in customary international law.

Omar Hassan al-Bashir, the president of Sudan, is under indictment by the International Criminal Court (ICC), which has a warrant out for his arrest. He briefly attended a July 13-14 African Union (AU) health summit in Nigeria, but left when Nigerian human rights groups called for his arrest. The ICC justices in The Hague also issued a statement reminding Nigeria of its obligation to “honor its warrants” and hand over Bashir. A Sudanese government spokesman was quoted by the New York Times saying that Bashir’s departure had nothing to do with fear of arrest but that “he had matters to attend to in Khartoum.” Reuben Abati, Nigerian president Goodluck Jonathan’s press spokesman, said that Nigeria had not invited Bashir to come. Rather he was present for an AU event and that “Nigeria is not in a position to determine who attends an AU event and who does not attend.” This Day, a Nigerian newspaper, reported that the Abuja government was not even aware that Bashir would be attending until a few days before the conference. While President Jonathan had personally invited some of the other African leaders, Bashir was not one of them. Moreover, if Nigeria had stopped Bashir from attending, it may have risked losing the honor of hosting the summit altogether. According to Bashir’s spokesman, while in Abuja Bashir met with the presidents of Nigeria, Kenya, and Ethiopia. The president of Kenya, Uhuru Kenyatta, is also under ICC indictment. However, the court has not issued a warrant for Kenyatta’s arrest because he is cooperating with the court–unlike Bashir. The ICC is awkward for the AU. Two of its chiefs of state are now under indictment. But, the court is unpopular among many Africans who think that it unfairly targets Africa for its prosecutions. The U.S. position on the ICC is not straightforward; U.S. policy is to support the court, and the United States signed the founding Treaty of Rome. But no administration has ever sought Senate ratification of it. There has been some speculation that Nigeria’s welcoming of Bashir was somehow intended to distance itself from the United States. I think that is highly unlikely. Bashir’s visit seems to have posed quandaries for the Jonathan government, which must be mindful of its relationship with the AU. Nigeria has provided the largest number of peacekeepers in Sudan’s Darfur. Like Charles Taylor, the former Liberian warlord, Bashir is also deeply unpopular among many in Nigeria, not least because of his alleged human rights violations in Darfur and South Sudan. Under these circumstances, I find Abati’s explanation credible: Nigeria admitted Bashir because he had been invited by the AU to its summit that Nigeria was merely hosting. I also find it credible that Bashir bailed out essentially without notice because he feared being arrested.

Thirty-five years ago, U.S. National Security Advisor Zbigniew Brzezinski famously declared that the doctrine of détente “lies buried in the sands of Ogaden.” By exporting revolution to the Horn of Africa, he implied, Moscow had abandoned norms of peaceful coexistence, as well as prospects for the SALT treaty. One wonders if a more recent would-be doctrine, the “responsibility to protect” (R2P), is destined to suffer a similar fate. Two years ago, the UN Security Council seemed to vindicate this new norm, by authorizing “all necessary means” to protect Libyan civilians against strongman Muammar al-Qaddafi. Today, R2P clings to life support in Syria, as the civilian body count there mounts to appalling levels. Many commentators, including this one, welcomed the Security Council’s authorization of intervention in Libya as the first legitimated use of armed force under R2P. UNSC Resolution 1973, as well as historic support from the Arab League, provided legitimacy to a NATO-led intervention that reversed Qaddafi’s depredations and, ultimately, provided cover for Libyan rebels to remove him from power. At the time, the intervention seemed to tick all the boxes: the situation was grave, the interveners’ cause was just, and their response was proportional. After a lengthy air campaign, in which no NATO troops lost their lives, Qaddafi had been toppled from power. At the time, it was easy to overlook the fact that this Western interpretation was not widely shared—and that the Libyan case had unique features that were unlikely to be easily replicated in other settings. These features included a dictator despised in the Arab world, a country of minimal strategic importance, a small national population, and topography conducive to an aerial campaign. Diplomatic fallout began quickly. Russia and China, which had abstained from the resolution, soon objected that the NATO-led coalition had transformed the UN mandate into a license for “regime change.” Such a claim was either naïve or cynical, since all involved in Security Council deliberations should have been well aware of the expansive implications of authorizing “all necessary means,” as well as the unlikelihood that Qaddafi himself would agree to a negotiated agreement with rebel forces. Nevertheless, the complaint resonated in many corners of the globe. The African Union (AU) also emerged as a primary critic, depicting the intervention as yet another ill-advised imperialist venture on the continent. This reflected less knee-jerk opposition to R2P—after all, the AU’s constitutive act declares “non-indifference” to the internal affairs of other countries, and its Peace and Security Council has endorsed the principle of intervention in cases of genocide and mass atrocities—than pique at being sidelined diplomatically. By brushing aside AU efforts at diplomatic mediation, the Western powers reinforced African insistence that future interventions on the continent be endorsed by the African Union. The chaotic aftermath of the Libyan intervention also left a sour taste in the mouths of many UN member states. Indeed, independent militias continue to run rampant in parts of Libya two years after the intervention.  Moreover, the collapse of Libyan domestic security permitted a wave of weaponry to wash over neighboring countries—contributing to instability in the Sahel. In Mali, al-Qaeda in the Islamic Maghreb (AQIM) and extremist Tuareg groups exploited this flow of material to launch their bloody insurgency, at one point controlling nearly half of the country. Even before the civil war in Syria, then, the implementation of R2P in Libya had generated buyer’s remorse among many governments that had endorsed it at the 2005 UN World Summit. In an effort to rescue the concept, Brazil proposed that UN member states embrace the related concept of “responsibility while protecting” (RWP) in November 2011. Under this framework, the UN Security Council would undertake military intervention only as a last resort, after weighing the balance of likely consequences, and ensure that any force used was proportionate to the gravity of the situation. It would also oblige the Security Council to adopt a formal monitoring and review mechanism where states would discuss and debate the implementation of any ongoing R2P action. The proposed RWP scheme is not without problems: the “last resort” requirement is at odds with the reality that early, preventive action is often the best way to head off atrocities. The Permanent Five (P5) may also balk at committing to an ongoing monitoring mechanism for R2P-mandated missions. Nevertheless, the Brazilian proposal offers a potential bridge to bring skeptical governments back to the R2P fold. As such, it merits careful U.S. consideration rather than dismissal. It is the bloody situation in Syria, however, that has fostered disillusionment with (though not yet the demise of) R2P. The most obvious lesson to be drawn is that the implementation of R2P will inevitably be selective. If one or more of the P5—in this case Russia—sees a significant national interest in protecting the offending government, the UNSC will be blocked. Interventionist powers will then face the unpalatable choice of doing nothing or (as the United States did in Kosovo with NATO) pursuing a surrogate form of multilateral legitimacy for coercive action. Second, the Syrian case demonstrates the difficulty of applying R2P when the conflict in question has evolved from a government making war on unarmed civilians into a full-blown civil war in which both regime and rebel forces commit atrocities. When opposing sides are wearing neither white nor black hats but varying shades of grey, the threshold criteria for R2P intervention—and the means by which it should be implemented—become even cloudier than normal. Third, the situation in Syria underscores the difficulty of reconciling humanitarian ideals with geopolitical concerns. The Obama administration, from the President on down, has often denied this distinction, on the grounds that mass atrocities create dangerous spillover consequences for entire regions (with the Great Lakes region of Africa a case in point), as well as fomenting forces of (and providing havens for) extremism. Perhaps. But the strategic, economic, and human consequences of a U.S.-led military intervention in Syria are hard to predict. The costs—for regional instability, budgetary overstretch, and U.S. lives—could be gargantuan. And they need to be weighed against the likelihood (and benefits) of “success”—something the administration has yet to define. This cost-benefit analysis must also include an honest assessment of the expenses associated with “the responsibility to rebuild” the post-intervention society (something the Bush administration notoriously neglected to do in Iraq). It would be premature to describe Syria as the death knell of R2P. But it is clear that much of the idealism surrounding the UN’s unanimous endorsement of the norm eight years ago has dissipated, buried in the Libyan Desert and the blood-soaked hills of Syria.

Kenya, the International Criminal Court (ICC) and, by extension, the international community currently face the dilemma of dealing with a president and a deputy president, freely and fairly elected (more or less; many questions remain) that are charged with crimes against humanity associated with 2007 election bloodshed. Africa Confidential has an excellent review of the current state of play. Kenya’s permanent representative to the UN, Kamau Macharia, on May 2 sent a thirteen-page letter to the UN Security Council (UNSC) asking it to end the ICC cases against President Uhuru Kenyatta and Deputy President William Ruto. He argued that Kenyatta and Ruto were duly and democratically elected and could not perform their duties in the face of “an offshore trial that has no popular resonance and serves no national or international purpose.” A variation of this argument is heard among Kenyatta’s supporters; “peace” is more important than “justice,” and the ICC process should somehow go away. But, Ruto promptly disavowed the letter on the basis that the UNSC lacks the legal authority to stop the ICC proceedings. Ruto’s lawyer reaffirmed his client’s cooperation with the ICC. The attorney general of Kenya, Githu Muigal also disavowed the letter saying Kenya is not a party to the cases and has reaffirmed Kenyan cooperation with the ICC. On May 13, the ICC prosecutor, Fatou Bensouda, rejected the Kenyan government’s claim that it is cooperating with the court. Specifically, she said that the government failed to provide certain financial records and has not facilitated interviews that could provide her with information about the role of the police in the aftermath of the 2007 elections. Earlier, she said that the government failed to provide adequate protection for potential witnesses and that bribery and intimidation played a role in the withdrawal of potential witnesses. The ICC charges against Kenyatta and Ruto were an issue in the 2013 Kenyan elections and popular backlash against the Court probably helped them. Many Kenyans seemed to think the charges would be dropped in the aftermath of an election victory, probably at the instigation of the United States and the United Kingdom because of the importance of their ties with Kenya and Nairobi’s crucial role in Somalia. In fact, UK prime minster David Cameron hosted Kenyatta in London at the May 7 Somalia conference. The UK argued Kenyatta’s presence was “essential,” and, in effect, trumped British policy to have only “essential contact” with Kenyatta and Ruto. However, Africa Confidential credibly speculates that President Obama will skip Kenya during his next Africa trip and suggests, also credibly, that there will be a cooling of relations between Kenya and the UK and the U.S. The ICC has agreed to postpone Ruto’s trial until October. Many observers think that the ICC case against him is stronger than that against Kenyatta. If the ICC were to convict one and acquit the other, there could be serious political consequences in Kenya. Kenyatta is a leader of the Kikuyu, Ruto of the Kalenjin. The two ethnic groups have long been rivals, and fighting among them was an important element in the 2007 violence. Then, Kenyatta and Ruto were on opposite sides. For 2013, they made a political alliance, and there was little fighting between Kikuyu and Kalenjin, a factor in the largely peaceful elections. A Ruto conviction and a Kenyatta acquittal might put at risk the current truce between the Kalenjin and the Kikuyu.

The May 8 New York Times carries above the fold an Adam Nossiter story, “Bodies Pour in as Nigeria Rounds Up Islamists.” The story mostly consists of horrific reports of Nigerian security services (army and police) abuses of Northern Nigerian citizens, alleged members of or connected to Boko Haram, a radical Islamic insurgency. Nossiter notes that Boko Haram is “thoroughly enmeshed” in the local population making it difficult to root out the insurgents. He observes that security service brutality “…has turned many residents against the military, driving some toward the insurgency…” The security services and the Jonathan administration in Abuja continue to flatly deny that any abuses are happening, much less systematically carried out; despite the testimony of a wide range of credible northern observers. Many of us have heard reports similar to Nossiter’s from Nigerian contacts for some time. Human Rights Watch also issued a report that, in effect, argued that the International Criminal Court should investigate both Boko Haram and the security services for crimes against humanity. For a long time I have heard that the security services round up large numbers of young men who simply disappear. They are never formally arrested, prosecuted, tried or, if convicted, punished. They simply disappear, outside the justice system altogether. I had assumed that most so detained were quietly released after a time, in part because there were few reports of mass graves. To some extent, that may be true. But, Nossiter’s grim report confirms what many local people say; that in fact, many are murdered. The disposal of so many corpses is posing a problem. The Council’s Nigeria Security Tracker (NST) has long followed security service abuses in northern Nigeria. NST data—current through April 30—confirms that violence involving Boko Haram and the security services continues to escalate in northern Nigeria. April 2013 had the highest death toll since the NST started, in May 2011. The numbers of dead that Nossiter saw are a reflection of the escalating carnage. Among the security services, training is often poor or non-existent; pay is also poor. As a matter of policy, soldiers and police are deployed outside their region of origin. Hence, security service personnel often have little understanding or sympathy for the populations they are supposed to protect. Literally, many don’t even speak the same language. But, such factors are no excuse: the security services, an arm of a state with democratic aspirations, must be held to a higher standard than vicious insurgents. Boko Haram terror is no justification for what Nossiter and others report the security services are doing. And the government’s stonewalling is counterproductive. New York Times coverage will raise the profile of Nigeria’s dirty war in the United States. Hopefully there will be more American political pressure on the Jonathan administration to take concrete steps to control its security services.

While violence broke out sporadically, post-election Kenya is far from the domestic Armageddon that followed the 2007 elections. Uhuru Kenyatta, under indictment by the International Criminal Court (ICC) for crimes against humanity in the aftermath of those elections, will be sworn-in as president this month following the 2013 elections judged credible by the Supreme Court. His chief rival, Raila Odinga, has accepted the Court’s ruling, and has conceded. Why has 2013 been so difference from 2007? Perhaps most important has been the thorough-going political reforms enshrined in a new, post 2007, constitution that significantly decentralized government authority. It replaced a unitary state with something approaching federalism. This significantly modified Kenya’s hitherto winner-take-all political culture. It also established multiple venues for political competition. For example, in 2013, Kenyatta won the presidency, but Odinga’s party won the county (state) government of Nairobi. Second, Kenyans have not forgotten the horrors of post-election 2007. There was a remarkable consensus among Kenyans that it should never again be repeated. This imposed a new degree restraint on rhetoric and behavior that is difficult to quantify, but was nevertheless real. Third, both Kenyatta and Odinga have from the beginning said they would accept the Supreme Court’s ruling on contested election results, and urged their followers to do the same. Sporadic violence after the Supreme Court ruling on March 30 indicates that Kenya is not altogether out of the woods. Nevertheless, the longer Kenya avoids a conflagration, the less likely one becomes. Though Kenyatta’s ICC indictment is an overhanging cloud, these are hopeful time for Kenya.

Yesterday Antonio Gutteres, the United Nation’s High Commissioner for Refugees, briefed the UN Security Council on the deteriorating humanitarian situation in Syria. Gutteres’ remarks, delivered in closed session but subsequently published on UNHCR’s website, provide a chilling summary of the human cost of this grinding conflict. The crisis, in his words, presents a “moment of truth” to the international community. That is true in at least two senses. The world needs to take bolder steps to alleviate human suffering in Syria. And it needs to hold the perpetrators of atrocities accountable. The humanitarian crisis in Syria is dire. In April 2012, UNHCR had registered 33,000 Syrian refugees in neighboring countries. Today, ten months later, this number has swelled thirty-fold, to 963,000—and it continues to climb. “Since early January, over 40,000 people have fled Syria every week,” Gutteres observed yesterday. The number of Syrian refugees in Lebanon now exceeds four hundred thousand—nearly ten percent of that country’s population of 4.3 million. A similar number have found shelter in Jordan (population 6.2 million). On Monday alone, 4,585 Syrians entered that country. Many tens of thousands of more have fled to Turkey and Iraq. As the conflict deepens, the risk is growing that Syria’s Palestinian refugees, numbering half a million, may once again be forced to flee. Syria’s refugees, Gutteres notes, have “lost everything they once owned—businesses, homes, livelihoods.” Most are living in austere conditions in crude camps, suffering through one of the harshest winters in years. An entire generation of children has been traumatized, their lives uprooted and shattered. Meanwhile, host countries (with the exception of prosperous Turkey) are straining to provide social services to refugee populations, who are taxing modest budgets and infrastructure. They are also struggling to manage the potentially explosive societal and political consequences of this massive influx—as well as the possible spillover of violence across their borders. It is the situation inside Syria, however, that is “most tragic”. While precise figures are impossible to come by, the Internal Displacement Monitoring Center estimate that more than 3 million, or over fifteen percent, of Syria’s remaining population is internally displaced. More than four million [PDF] Syrians are in need of vital food and other assistance from UN agencies to survive. Particularly alarming are growing reports of mass atrocities committed by Assad’s military and, to a lesser degree, insurgents. On February 18, a special commission appointed by the Human Rights Council released a 131-page report documenting of widespread war crimes and crimes against humanity perpetrated by both government and opposition forces. Based on 445 individual interviews, the report details multiple instances of summary executions, massacres, targeting of civilians, abuse against children, and sexual violence. Yesterday, Zainab Hawa Bangura, a Sierra Leonean who serves as the UN’s special representative on sexual violence in conflict, provided the Security Council with what Britain’s UN ambassador termed a “disturbing” account of “the widespread use of sexual violence by the regime.” While both sides have committed atrocities, the Human Rights Council report is a scathing indictment of the regime’s strategy of punishing civilians perceived as sympathetic to the opposition: Indiscriminate and widespread shelling, the regular bombardment of cities, mass killing, indiscriminate firing on civilian targets, firing on civilian gatherings and a protracted campaign of shelling and sniping on civilian areas have characterized the conduct of the government. Based on this growing body of evidence, the UN High Commissioner for Human Rights, Navi Pillay, has repeatedly urged that the Syrian situation be referred to the International Criminal Court. But the UN Security Council, the one body that could authorize such a referral (since Syria is not party to the Rome Statute), has failed to do so, due to opposition from Russia and China. “It’s incredible the Security Council doesn’t take a decision, because crimes are continuing, and the number of victims is increasing day to day,” says Carla del Ponte, former chief prosecutor for the international criminal tribunals for Rwanda and Yugoslavia and a member of the special Human Rights Council commission on Syria. “Justice must be done.” Meeting in Rome with Syrian opposition leaders, Secretary of State John Kerry promised to expand “non-lethal” U.S. aid to those fighting Assad’s regime. While a welcome development, the Obama administration should take two additional steps to reduce human suffering in Syria and bring perpetrators of mass atrocities there to justice. First, the United States should increase its relief assistance both for refugees outside Syria’s borders and for those internally displaced within the country. Doing the former means directing more funds to UNHCR and other international agencies on the front lines. Doing the latter will require the United States (and other donors) to shift away from their current policy of directing relief assistance through the government of Damascus. As Kenneth Roth of Human Rights Watch notes, that approach guarantees that little aid gets to rebel-held areas. The new approach would entail expanding cross-border assistance with or without the consent of the Assad regime, so that it gets to the populations in most desperate need. Second, the United States should push the Security Council to refer the crisis in Syria to the ICC. By the beginning of the year, more than fifty UN member states had already called for this step, and several more EU leaders endorsed it last week. To be sure, Russia and China will likely cast vetoes against any such resolution. Nonetheless, there would be symbolic value in forcing a vote, likely to enjoy overwhelming support of the UNSC’s other members. The typical counterargument—that such a referral would be counterproductive, since it would only lead the Damascus regime to dig in its heels—seem untenable. When it comes to digging in, Assad is already up to his neck.

Kenya goes to the polls on March 4 with Uhuru Kenyatta and Raila Odinga the only credible presidential candidates. The Ipsos Synovate poll shows that Kenyatta is ahead with 44.8 percent of the vote to Odinga’s 44.4 percent. Kenyatta is ahead in twenty counties while Odinga has nineteen. The polling company identifies Nairobi and three other counties as toss-ups. To win the presidency without a runoff requires the victor win 50 percent plus one of the votes. Under those circumstances, a runoff looks highly likely. Both candidates are longtime political rivals; Kenyatta is the son of Jomo Kenyatta, one of the early African independence leaders and Kenya’s first president. In the past, elections have been dominated by appeals to ethnic identities and coalition building. There has been widespread electoral fraud and considerable violence that threatened the legitimacy of the democratic process. The elections of 2007 were particularly bloody and provoked a political crisis that lasted for months. It ended only with a power-sharing agreement brokered by former UN Secretary General Kofi Annan with strong international support. Under its terms, the incumbent president, Mwai Kibaki, assumed the presidency while Odinga became prime minister. Subsequently, the country adopted a new constitution designed to reduce the saliency of ethnic divisions and reform electoral procedures. Nevertheless, there is widespread fear that the March 4 elections will be violent. The Nairobi Star comments that Kenyans are moving out of areas that are ethnically mixed, and shop keepers are emptying their shelves and closing their doors. Kenyatta is under indictment by the International Criminal Court (ICC) in The Hague for crimes he allegedly committed during the 2007 elections. If he wins on March 4, or in the possible runoff, Kenya will face the challenge of an indicted chief of state. Kenya is a signatory of the Rome treaty (unlike the United States) and therefore recognizes the jurisdiction of the ICC. Polls show that voters opposed to Kenyatta are significantly swayed by his indictment.

Smuggling may not be the world’s oldest profession, but it must rank a close second. For as long as political authorities have sought to control borders, criminal networks have tried to circumvent them, evading customs duties and trafficking in illicit goods. Indeed, as Peter Andreas shows in his spectacular new book, Smuggler Nation: How Illicit Trade Made America, smuggling has been an enduring feature of the American experience since colonial times. It has been as important in shaping the development and global trajectory of the United States as the factors historians usually invoke—such as the liberal political principles of the nation’s Founders, the legacy of the frontier, the doctrine of American exceptionalism, the country’s geographic position, or its abundant natural resources. Once you read his fascinating account, you will never look at U.S. history the same way again. Andreas, a professor at Brown University, has been a prolific writer on transnational crime since the late 1980s. But unlike many political scientists—to say nothing of policymakers—he has a deep interest in and knowledge of history. This grounding, he writes, left him skeptical of much official and expert commentary on the contemporary challenge of cross-border criminality. According to this now conventional wisdom (and here I plead guilty too), accelerating globalization has created unprecedented opportunities for illicit trafficking. This leaves sovereign nation-states at the mercy of criminal networks. Andreas’ book is an invaluable corrective to such “presentism” when discussing transnational crime. As he makes clear, the arms race between states and criminals is a venerable one. There was never a time when states had total control of their borders. This is particularly true of the United States, Andreas’ chosen topic. Smuggling was omnipresent within the Thirteen Colonies. In fact, black market commerce in West Indian molasses, needed to distill rum, was integral to the transatlantic “triangle trade” involving African slaves as well as a means for the colonies to balance their current account deficit with the British Empire. It was Great Britain’s belated effort to crack down on illicit trade—which involved prominent New England merchants like John Hancock—that helped foment rebellion in the colonies. During the American Revolution, smuggling provided George Washington’s threadbare army with vital provisions it needed to defeat the world’s most powerful empire—just as illicit trade in cotton by Confederate blockade runners would prolong the Civil War more than eight decades later. One of Smuggler Nation’s most jarring insights is that the very process of smuggling—and official responses to it—have been integral to the process of state formation and state-building in the United States and around the world. Andreas offers a clever twist on the historian Charles Tilly’s famous formulation that “the state makes war and war makes the state”, writing: “states make smuggling and smuggling makes the state.” What he means is that state authorities “make” smuggling by defining what is (and is not) illegal and, so doing, force market activity for illicit goods into the shadows. As governments seek to tax cross-border commerce or to prohibit imports of particular items, smugglers adopted evasive strategies. These strategies led state authorities to build up new border enforcement and interdiction capabilities. This raised profit margins for risk-takers, creating even greater incentives for criminals to adapt—and so on, in a never-ending spiral of action and reaction. Thus the rise of smuggling and the rise of the state go hand-in-hand, even as the official definition of what constitutes illicit contraband evolves—from untaxed molasses in colonial days to illegally imported slaves during the early nineteenth century or from black market alcohol during Prohibition to trafficking in narcotics and migrant laborers today. Andreas also reveals that the relationship between the U.S. government and smugglers has been far more complicated than the common image of a beleaguered country gallantly defending its borders and citizens from vices. He provides numerous colorful examples in which senior U.S. officials have turned a blind eye to or manipulated smuggling—not only for private gain through corruption, but also for reasons of state, whether in commissioning privateers during the Revolutionary War, collaborating with Louisiana pirates (particularly the brothers Lafitte) during the War of 1812, or encouraging the Afghan mujahideen to profit from the opium trade following the Soviet invasion of 1979. He also reveals how some of the most successful individuals in American history made their fortunes from ill-gotten gains. These include America’s first millionaire, the fur baron John Jacob Astor, who gained his riches by trading alcohol to Indian tribes in violation of federal law. They also include prominent Rhode Island merchant John Brown—eponymous founder of the University that employs Andreas—who was the first American tried and indicted for violating the 1794 Slave Trade Act. Smuggler Nation reveals how official U.S. attitudes toward illicit trafficking changed with America’s rise to world power. In the first decades after independence, the United States not only turned a blind eye to intellectual property theft, it actively encouraged it. To aid the country’s development, U.S. officials encouraged Americans to evade British prohibitions on sharing industrial secrets and exporting advanced manufacturing machinery. Samuel Slater, lauded as “the father of the American industrial revolution,” arrived in the United States having smuggled himself out Britain, in violation of that country’s strict emigration laws. Given this history, it is ironic that the United States, which subsequently became a global economic powerhouse, is now the world’s chief defender of intellectual property rights (IPR), routinely lambasting China and other emerging countries for violating U.S. patents and counterfeiting U.S. goods. Today’s China, he suggests, is merely stealing a page from Alexander Hamilton’s Report on Manufactures, which can be read as endorsing “state-sponsored theft and smuggling.” Today, the United States is both the world’s leading market for smuggled goods and also the premier exponent of global prohibition regimes—as well as “source control” approaches that tend to focus on the supply side of the problem. Andreas shows the Sisyphean futility of attempting to enforce such prohibition regimes, particularly when it comes to drugs, since most eradication and interdiction efforts simply lead traffickers to shift production locations and transit routes without tackling the real problems of domestic demand. And he exposes the hypocrisy and selectivity of U.S. enforcement of many illicit flows, with the crackdown on illegal migrant labor from Mexico being a case in point. Smuggler Nation is an eleganty written book that injects invaluable historical perspective into contemporary policy debates. And yet I was left with at least three lingering questions. First, what impact has the globalization of finance—which permits instantaneous financial transactions around the globe and the development of offshore financial havens—had on the arms race between states and criminals? Second, it is often claimed that today’s criminals are more adept than their predecessors at diversifying product lines, adopting horizontal networks rather than hierarchical organizational structures, and making temporary alliances with other illicit groups—in sum, that they are more fluid and nimble. Is this accurate? Finally, what are we to make of arguments that today’s smugglers pose an existential threat to U.S. national security, given the growing “nexus” among terrorists, criminals, and WMD traffickers? Does such “threat convergence” present dangers of a different magnitude?  

Coauthored with Andrew Reddie, research associate in the International Institutions and Global Governance program. Israel’s January 31 aerial attack on a Syrian  research facility and arms complex has raised once again the thorny question of when preemption against a developing threat may be justified under international law—as opposed to simply strategic calculation. Predictably, the Israeli bombardment elicited a hail of criticism from some regional and global players. Syria has threatened to retaliate, while Iran has suggested that Israel would regret its violation of Syrian sovereignty. The Russian response, however, was particularly intriguing, since it highlights an ongoing disagreement over the circumstances in which the use of force may be warranted. In the aftermath of the Israeli strike, Russia’s foreign ministry stated, “if this information is confirmed, then we are dealing with unprovoked attacks on targets on the territory of a sovereign country, which blatantly violates the UN Charter and is unacceptable, no matter the motives to justify it.” Russia, of course, has a long history of defending the principle national sovereignty, particularly as a permanent member of the United Nations Security Council. In their complaint, Russian officials invoked paragraph four of Article 2 of the UN Charter, which reads, “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state….” In Moscow’s view, this uncompromising statement renders the Israeli attack on Syria unacceptable under international law. In fact, international law contains greater ambiguities than Moscow admits. Article 2 must be read in conjunction with Article 51of the UN Charter, which reads, “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.”  From a legal standpoint, the question is, was the Israeli attack a legitimate response to a perceived threat? Judgement about the legality of armed force in instances of self-defense typically have to pass what is often referred to as “the Caroline test” of imminence. In 1837, British forces attacked a U.S.-flagged steamboat (the SS Caroline) being used to supply rebels in Upper Canada against the British colonial government. In his famous analysis of the incident, the U.S. Secretary of State Daniel Webster exculpated the British. “[E]ven supposing the necessity of the moment authorized them to enter the territories of the United States at all, [they] did nothing unreasonable or excessive.” The act was justified, inasmuch as the “necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation.”  Subsequent international legal development has generally embraced this idea insofar as self-defense is allowed in anticipation of attacks that are imminent, though the precise contours of this standard remain contested. Much more problematic is the launching of a “preemptive” attack against a threat that is developing but not yet imminent. A decade ago, in its 2002 National Security Strategy of the United States [PDF], the administration of George W.Bush enunciated a right to “preemption”. The basis of this controversial doctrine was that in an age of catastrophic threats, the United States needed the leeway to launch armed attacks to protect itself from catastrophic threats that were emerging but not yet fully realized. Israel has not acknowledged the strike, so it has not provided any legal justification, but its actions fall on the preemption side of the line. Experts speculate that it had three purposes. The first was to destroy Syrian heavy weapons, including SA-17 surface-to-air missiles, that Israel worries could be transferred to Lebanon, helping Hezbollah upgrade its offensive capabiltiies. The second was to warn Damascus not to use (or lose control of) its biological and chemical weapons, which had been the subject of research at the facility. The third was to signal to Iran Israel’s readiness to launch devastating attacks if the Iranians approach nuclear weapons capability. As outgoing Defense Minister Ehud Barak said cryptically in Munich, the attacks provided “another proof that when we say something we mean it.” From Israel’s perspective, the failure of the UN Security Council to act to stop the bloodshed in Syria—and prevent the spillover of weapons to its neighbors, mitigates the violation of Syrian sovereignty. The action should also be placed in the context of past missions targeting suspected nuclear facilities in Osiraq, Iraq, and Deir ez-Zor, Syria. Clearly, Israel holds a broad view of what constitutes its self-defense. This view is sustained by the fact that Israel and Syria have failed to sign a peace agreement following their most recent conflagration in 1982. For their part, Israel and Hezbollah have remained at odds following conflict in 2006 while Israel, along with the United States, has labeled them a terrorist organization. These geopolitical concerns explain the circumspect reaction from Washington. As Secretary of Defense Leon Panetta explained drily, “the United States supports whatever steps are taken to make sure these weapons don’t fall into the hands of terrorists.” Israel’s use of force may be a prudent act of statecraft. Whether it is formally legal is another matter, and doubtless of secondary concern in Jerusalem.  

Throughout the Mali crisis, the role of racism in shaping the conflict has not received much emphasis, at least in U.S. commentary. Yet, it plays an important role on the ground. Mali is on the dividing line between north Africa and sub-Saharan Africa.  It has a small but traditionally cohesive population of Tuaregs and Arabs (approximately 10 percent of Mali’s total population) who regard themselves as “white.” They regard other Malians as “black.” Tuaregs and Arabs participated in the trans-Saharan slave trade, sometimes selling and enslaving “blacks” when they could. Tuaregs and Arabs move freely across the borders of Mali, Algeria, and Mauritania. During the colonial and post-colonial periods, the Malian government in Bamako kept antipathy between “whites” and “blacks” relatively under control. The Islamists associated with al-Qaeda in the Islamic Maghreb (AQIM), who drove the Malian army out of the north and in turn have been driven out of northern Mali’s cities by French and Malian forces, were led by Tuaregs and Arabs. Based on the impressionistic and scanty reporting available today of Islamist rule in the northern cities, the victims of gross Islamist punishments–stonings and amputations–appear mostly to have been blacks. Now, the other shoe has dropped. UN special advisor for the Prevention of Genocide, Adama Dieng, is publicly expressing concern about Malian reprisal attacks against ethnic Tuaregs and Arabs. He refers to accusations that the Malian army is carrying out summary executions and “disappearances.” He also refers to incidents of mob lynching and looting of Arab and Tuareg property.  Additionally, there are anecdotal reports of Tuaregs and Arabs going into hiding. The chief prosecutor of the International Criminal Court, Fatou Bensouda, has warned Mali over possible military abuses, and Dieng welcomed an ICC investigation. The identification of “white” Tuaregs and Arabs with AQIM is likely a factor limiting the group’s influence among “black” populations, including Boko Haram supporters in northern Nigeria.    

Environmental degradation associated with the petroleum industry in the Niger Delta impacts directly on the livelihoods of indigenous farmers and fishermen. Environmental issues were an important basis for popular support, or at least acquiescence, for the low level insurgency carried out against the federal and state governments by the Movement for the Emancipation of the Niger Delta (MEND) between 2004 and 2007, with sporadic activities continuing into the present. In part because it has operated in Nigeria for more than fifty years, and because its operations have been mostly on land, the multinational oil giant Shell is often the focus of local and international environmentalist ire. According to the Nigerian press, the director of the Dutch branch of Friends of the Earth, Geert Ritsema, claims Shell should be held responsible for pollution in the Niger Delta region: “The pipeline network of Shell in Nigeria is in a very poor state.” He said that Shell has spilled twice as much oil over the years as the amount leaked during the British Petroleum disaster in the Gulf of Mexico in 2010. Shell and other big oil companies respond that the spills are caused by sabotage, oil theft, and illegal refiners, and that when spills occur, they are cleaned up to the satisfaction of the Nigerian federal government. Nigeria’s oil belongs to the Nigerian state, but most of the oil is produced by private oil companies, such as Shell, in partnership or by agreement with the Nigerian National Petroleum Corporation, a government-owned entity. Most of the profits go to the Nigerian state. In part because of this close relationship between the oil industry and the state, international environmentalists seek to try pollution cases in European or American courts rather than Nigerian. Accordingly, four Nigerian farmers, with the support of the Dutch non-governmental organization Friends of the Earth, sued Royal Dutch Shell in the Dutch District Court of The Hague for four oil spills between 2004 and 2009. The case was watched closely in Nigeria and by the international environmental community. On January 30, 2013, the court ruled that the oil spills were, indeed, caused by sabotage, that Royal Dutch Shell is not liable. It dismissed the claims of the Friends of the Earth. The court did find that the Shell Petroleum Development Company of Nigeria (SPDC), a Nigerian subsidiary, could have prevented the sabotage in one case by plugging the well. The Court acknowledged the SPDC subsequently contained the leak. Nevertheless, legal proceedings continue against SPDC with the possibility of damages compensation to one farmer. This Dutch court ruling would appear to support the argument that much of the Niger Delta pollution is, indeed, caused by criminal activity carried out by local actors. In what may be an example of making lemonade out of lemons, Evert Hassink,a spokesman for Friends of the Earth expressed disappointment in the verdict which he described as “mixed” but observed that “we’ve succeeded in establishing the principle of going to court in the Netherlands or Europe because of what happened in another country.” The Nigerian media quotes Wale Fapohunda, a commissioner with the National Human Rights Commission, as saying the fact the case was filed in The Hague shows a lack of faith in the corrupt Nigerian judicial system. Lawrence Quaker of Human Rights Law Services in Lagos, said Nigerians are seeking international justice because of the failure of Nigeria’s judiciary. He observed that former Delta State Governor James Ibori was convicted in a UK court of stealing U.S. $77 million in public funds. In Nigeria, he had been found not guilty. Quaker is quoted as saying “It shows that the judiciary abroad is not biased and we can take cases against companies to their motherland for adjudication and get a fair hearing.”

The International Criminal Court (ICC) has been active in sub-Saharan Africa. Seven investigations have been launched in Uganda, Kenya, Sudan, the Central African Republic, the Democratic Republic of Congo, Ivory Coast, and Mali. Four prominent Kenyan politicians are due for trial in The Hague in April 2013. One of them, Uhuru Kenyatta, is a leading candidate in the upcoming Kenya presidential elections. Should he win, the new Kenyan head of state would start his term under ICC indictment. About half of sub-Saharan Africa accepts ICC jurisdiction. The United States does not. Many Africans resent the ICC as a “foreign” entity and accuse it of bias against the continent. They express concern that all present ICC indictments involve Africans–there are none from any other part of the world, though there have been in the past. Hence African interest in enlarging the jurisdiction of the African Court on Human and Peoples’ Rights so that it can try individuals for the mass crimes over which the ICC currently exercises jurisdiction. Many hope that such an African court would eventually replace the ICC. Yet, some Africans are wary about whether an African court would show the willingness of the ICC to try and convict African leaders in light of the longstanding tradition of African leaders protecting each other. Others are concerned about the costs of establishing a new tribunal, especially in face of the ICC’s own current financial difficulties. Still others are exploring the possibility of an African court that would supplement, but not replace, the ICC. But, it remains unclear whether there is sufficient support for the establishment of an African alternative. The issue will likely fester for some time to come. Of the current serving ICC judges, seven are from Western Europe, six are from Africa, five from Latin America, three from Asia, and three from Eastern Europe. The position of prosecutor is high-profile.  The current prosecutor is Fatou Bensouda of Gambia, who succeeded Luis Moreno Ocampo of Argentina last year. Bensouda’s first formal investigation was launched to look into atrocities committed in northern Mali over the past year.