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The war against the “investor”: investor-state dispute resolution and ambiguity in international law

By Meric Sar

Investor-state dispute resolution (ISDR)—an international procedure that allows an investor to enter into arbitration with a foreign government for violations of their property rights—is at a difficult crossroads. Enacted through international treaties, ISDR is facing a legitimacy crisis and skepticism from all ends of the political spectrum, from developing and developed countries alike. Many critics argue that ISDR undermines human rights and states’ regulatory powers.

While ISDR is far from being flawless as a dispute resolution mechanism, many such critiques only undermine the legitimacy of a very important judicial forum that is—and has been—essential for the development of modern international law. The real risk that we are facing today is not the occasional unjust decision by an ISDR tribunal, but the systemic persistence of states in restricting the capacity of international tribunals to develop and fine-tune the substance of international law. ISDR and international investment treaties are vehicles that, if used effectively, can bridge enormous gaps between theory and advocacy at the intersection of human rights and sovereign responsibility.

HISTORY AND CONTEXT

Throughout its history, international investment law faced constant political resistance from developing countries. The legal norms developed in this field rely on a delicate political equilibrium achieved after a centuries-long, painful—and often bloody—struggle between western states and developing nations seeking to find a way to de-politicize investment disputes (see Gunboat politics). At the same time, they wanted to ensure the rule of law in nascent political systems. Especially, the notion of holding a sovereign state liable for its treatment of a foreign merchant based on an “international” law standard stood at the core of academic disputes, especially in the legal traditions of the post-colonial countries.

As the current negotiations for the Trans Pacific Partnership treaty (TPP) and Transatlantic Trade and Investment Partnership (TTIP) continue—both of which include an investor-state dispute resolution clause—the western world has strongly criticized treaty arbitration for the first time. Today, investor-state arbitration’s opponents include Joseph Stiglitz, a renowned Nobel laureate and development economist. He says, “[ISDR] is about rewriting the rules of how our economy works, tipping the balance of power in favor of big businesses at the expense of workers and the public here and in partner countries.” Yet, these concerns often tend to reflect a very narrow understanding of ISDR, which fails to grasp its essential function in the realm of international law.

Most critics argue that ISDR is inherently biased in favor of wealthy investors. However, in reality, small and mid-sized businesses and individuals have accounted for about half of all cases brought to investment treaty arbitration. Another popular argument argues ISDR as an adjudicative process constitutes an undemocratic and “arbitrary” interference with the powers of sovereign states. But, this argument represents a simplistic fallacy as well, and it ignores the foundational tenets of state responsibility under international law. An essential attribute of state sovereignty is the ability to enter into international treaties and thereby restrict a state’s own sovereign powers. On the flip side, within the same treaty, a state can empower a neutral tribunal to adjudicate any claims to be brought against itself by third parties for alleged breaches of any such treaty. The vast majority of bilateral investment treaties (BITs) executed by states (even the treaties executed between two developing countries) are almost identical in terms of their substantive provisions, often merely reflecting the minimum standards of treatment recognized under customary international law. Likewise, the “arbitrariness” claim blatantly overlooks the complexity of ISDR as a legal field. In reality, ISDR is a sophisticated system with a variety of procedural and substantive checks and balances to answer most of the concerns raised by the general public.

THE TABLES TURNING

The skepticism of ISDR in the western world particularly intensified after two controversial cases, which are currently pending before arbitral tribunals. Brought against the governments of Australia and Germany, the cases have a common theme. In both lawsuits, investors seek just compensation for the monetary effects of certain regulations on their investments. These recent regulations were adopted by both governments in the public interest to address legitimate health and environmental concerns. More interestingly, in both cases, countries that are traditionally perceived to have developed democratic institutions and judicial systems find themselves as defendants.

The fact that the plaintiffs in the cases were tobacco and nuclear power companies only amplified the public’s outrage. Why was a commercial company allowed to circumvent domestic legal systems and undermine the “democratic process” of regulatory rulemaking? How could a three-person tribunal consisting of non-judicial legal experts with no political liability be granted so much power over the policies of a democratically-elected government?

NO COUNTRY FOR ARBITRATORS

Following these cases, the Australian government became the first developed country declaring that it will stop including ISDR clauses in its future BITs. Germany and France voiced strong opposition against the inclusion of an ISDR clause in the U.S.-European trade agreement that is currently being negotiated. Likewise, the U.S. revised its model BIT by delineating greater exceptions for labor, health and environment related regulations.

The current events come after a steady trend of withdrawals, beginning in the mid-2000s, from the International Centre for Settlement of Investment Disputes (ICSID) Convention by countries such as Venezuela, Bolivia, Ecuador, and Venezuela, all of which have questionable democratic accountability records. Likewise, in 2009, Russia withdrew from Energy Charter Treaty, which envisaged an ISDR mechanism to handle the disputes arising from the treaty’s application. The future of ISDR looks even bleaker, when the recent wave of skepticism in western society about ISDR is read together with this greater picture.

This concerted effort of western states in restricting the adjudicative powers of ISDR tribunals intends to protect states’ regulatory “police powers against potential legal challenges that can be brought via ISDR. However, although the legal theory of regulatory taking argued in the aforementioned cases may sound over-the-top for the laymen, regulatory taking is a well-established doctrine under the fifth amendment of U.S. Constitution and various other national legal systems. Thus, if the regulatory taking concept—providing compensation to an investor for being unfairly singled out in bearing the burdens resulting from the adoption of a regulation—is not an alien concept to the Western legal system, then should we not expect western states to advocate for the development of similar standards under international law so that it can serve to hold undemocratic regimes responsible? More importantly, what message about the health of international law is conveyed to the rest of the world when a developed state chooses to question the legitimacy of an international dispute-resolution mechanism to which it has given binding power, rather than first honoring the remedies and raising the legal defenses made available by such a venue?

AMBIGUITY AND ARBITRARINESS IN INTERNATIONAL LAW: A STATUS-QUO PLAYING TO THE HANDS OF STATES?

In his controversial article on the current predicament of the human rights and international law, titled “The case against human rights”), Eric Posner, a professor at the University of Chicago Law School, argues that ambiguity and lack of proper interpretation mechanisms are the greatest problems facing human rights and international law.

The first problem is the ambiguity in defining human rights and international norms, which allows governments to rationalize almost anything they do. The vast quantity and diversity of rights often fall short of providing clear guidance to governments. Quite often, protection of a certain right conflicts with securing another. For example, governments often legitimize torture by claiming that torture is a necessary to ensure their citizens’ right to security. Likewise, governments use the right to self‑determination often as a defense for alleged violations of international law. The same dichotomy is valid for freedom of expression and the right to not to be discriminated. Benefiting from institutional reputation and constitutional legitimacy, domestic courts provide a permanent seat to reconcile such normative conflicts in domestic legal systems. However, the jurisdiction of international courts are often established in an ad hoc fashion, and there is not an all-encompassing international court which can serve a function in developing such norms under international law in a way similar to the one of domestic courts.

Posner points out that the lack of institutionalization as the second core problem. The lack of a consensus among states about the scope of certain rights and international norms makes it difficult to establish a hierarchical system for interpreting and enforcing norms of international law. This leaves governments with almost complete discretion on how to interpret international law and enforce their policies as they see fit. In some ways, it is a race to the bottom. In order to avoid being held liable by an international institution, states inherently hesitate to give any binding authority to any international institution at all. This causes international law to function only to the extent when there is a clear and short term benefit for a government to do so.

FINE-TUNING INTERNATIONAL LAW

Given these issues, ISDR may actually have a role to play in strengthening international law and human rights. The general skepticism of states towards international law and adjudication renders those few institutions that we have at our hands ever more valuable. And interestingly, investor-state dispute resolution turned out to be one of the few judicial venues of international law that witnessed a steady rise in the last decades in adjudicating certain claims against sovereign states. Despite the popular skepticism towards ISDR, it may prove to address the ambiguity and institutionalization problems of international law as pointed out by Posner. The problem is: how can we expect the proper development of international law without providing authority to an international tribunal to adjudicate claims addressing such problems?

Indeed, the ISDR system is not perfect. An ordinary case may take years to reach a conclusion. The legal costs associated with filing and advocating a claim may easily amount to millions of dollars. Some claims brought via ISDR amount to billions of dollars may create a heavy burden on any country’s budget, let alone for one at an especially fragile situation economically. Likewise, the dual activities of some practitioners, acting both as a lawyer and an arbitrator in different cases, pose professional and ethical problems.

But despite its inadequacies and shortcomings, ISDR represents an important evolutionary step in the development of international law. It is revolutionary in the way that it provides individuals (at least those who qualify as an “investor”) a direct standing in the interpretation and shaping of international law. By offering a venue to private advocacy, ISDR enriches the landscape of international law. Generating valuable case-law, jurisprudence of ISDR offers guidance to states and fine-tunes various norms of international law. Often acting as a venue of transnational administrative law, ISDR tribunals deal with disputes involving competing interests of individuals and governments. At the very intersection of states’ prerogative powers and their obligations under international law, the tribunals consistently try to figure out ways to reconcile the tension between international law and domestic legal systems, between democratic governance and corporate risk-taking, and between human rights and sustainable development.

Contrary to popular belief, ISDR tribunals do not adjudicate in a vacuum. An ordinary ISDR tribunal consists of reputable experts of international law, often with distinguished academic backgrounds. Different than judges who often benefit from special immunities affording them life-long job protection, arbitrators have strong incentives to preserve their reputations as fair and competent adjudicators. Theoretical predispositions of prominent arbitrators on issues of state responsibility tend to differ from each other quite often, which naturally balances out overly liberal interpretations of international law. ICSID tribunals especially work to maintain transparency and often accept amicus curiae from stakeholders in the community. Furthermore, ISDR has sophisticated procedural rules, which allow for a quasi-appellate review to ensure the fairness of awards under well-established principles.

Current criticism of ISDR fails to take into account the very important function of ISDR in fine-tuning the interpretation of international law when it meets real life conflicts. As a venue, ISDR provides us a tremendous opportunity to give meaning to what we care the most.

Meric Sar is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Marc Treble/Creative Commons

 

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U.S. failure in Kunduz: a mistake that violates international humanitarian law?

By Amaury A. Reyes-Torres

War is neither fair nor pretty. But it does not mean that there are not rules that govern the conduct of those involved in conflict. The primary aim of these rules, embodied mainly in the Geneva Conventions and in customary international law, is to protect civilians, the sick, the wounded or those who no longer fight. These rules extend to objects and buildings, such as medical units, that deserve special protection because of the purpose they serve.

In October 2015, U.S. forces mistakenly bombed a Médecins Sans Frontières (MSF) hospital in Kunduz, Afghanistan, likely in violation of international law. Despite several separate investigations, the details of what exactly happened are still unclear, revealing how the U.S.’ response to this tragedy lacks transparency. As survivors, families of the victims and MSF seek answers, transparency and accountability should be paramount.

THE PROBLEM: ATTACK ON A MEDICAL UNIT

Kunduz has been the location of intense fighting against the Taliban, and was especially so during the first two weeks of October when the Taliban gained control of the city. On Oct. 3, the U.S. military forces conducted a military operation against the Taliban, which consisted of bombing specific targets in Kunduz. But the military operation did not go as expected.

The offensive, carried out by a US AC-130, did not hit a military object, but rather a medical facility operated by MSF, known as Doctors Without Borders in English, despite the fact that MSF had shared their GPS coordinates with all sides of the conflict. The medical facility was occupied by doctors, patients and other staff members during the time of the air strikes, and the attack killed 30 people, including staff and patients, and injured over 27 others. MSF staff described horrible scenes of confusion and suffering, where patients burned in their beds and close colleagues had to operate on one another. The bombing lasted over 30 minutes, despite repeated calls to U.S. and Afghan officials at the beginning of the attack stating that they were hitting a hospital. The personnel in the facility had no opportunity to evacuate.

The U.S. responded with conflicting reports in the four days the followed. The U.S., at first, described the event as an incident where a nearby medical facility could have sustained collateral damage. Later, the U.S. stated that its forces were supporting Afghan forces that were being attacked by the Taliban, and several civilians were struck by accident. Then, the leader of U.S. forces in Afghanistan testified that the airstrikes were ordered by the U.S. and that a hospital has been mistakenly struck. The question is: did this action by the U.S. violate international humanitarian law?

PROTECTION OF MEDICAL UNITS UNDER INTERNATIONAL HUMANITARIAN LAW

The conduct of hostilities in international law is regulated by four major principles: the principles of distinction, proportionality, necessity and the prohibition against unnecessary cruelty. Each of these principles play an important role in how the parties to any armed conflict (international or non-international in character) should formulate military objectives and prioritize the protection of civilians or protected objects.

The principle of distinction has two important components. First, the parties in the hostilities must be able to distinguish between civilians and combatants, or persons who directly participate in hostilities. The same applies with respect to wounded combatants who are considered hors combat, or people who are no longer engaging in conflict. This principle reflects customary international law, and it is included in the U.S Commander’s Handbook.

According to Sandesh Sivakumaran, a professor of public international law at the University of Nottingham, there are certain objects that are entitled to special protection. Although it can be argued that they are, after all, civilian objects because of their purpose, medical units have special protection during the conduct of hostilities. Under this rule, medical units should be respected and protected under all circumstances, unless they are being used outside of a humanitarian function. This includes when no one is receiving care.

This obligation to respect and protect medical units derives from Additional Protocols I (AP I) and II (AP II) to the Geneva Conventions, as well as from article 19 of the First Geneva Convention I, a treaty ratified by the United States. Also, article 18 of the Fourth Geneva Convention (also ratified by the United States) extends these protections to civilian hospitals, which are not necessarily formal hospitals, a category in which the facilities of MSF may fall. Moreover, even countries like the United States, which has not ratified Protocols I and II to the Geneva Conventions, must respect the prohibition against attacks on medical units and transportation bound for medical facilities because these rules are a part of customary international law.

Because an object like a medical unit is entitled to protection, several steps must be taken by all parties in engaged in hostilities. First, all parties must distinguish between a military object, which can be subject to a lawful attack, and a civilian or medical object against which a direct and purposeful attack is forbidden.

Second, under international customary law, all parties must take precautions – especially when it comes to air warfare – to protect civilians and civilian objects in good faith and with due diligence. Under AP I, all parties must: 1) do everything possible to verify the nature of an object; 2) take all necessary precautions, including in the means and methods of attack, to avoid or minimize collateral damages to civilians and civilian objects; and 3) be aware that certain actions could entail a violation of the principle of proportionality.

The amount of information available at the time of an attack is a large determinant of how lawful an attack is. The information available must be reliable, up-to-date and properly interpreted by decision-makers at the time of the action. In this respect, the timing of an attack may be extremely important, as civilian losses can be avoided at certain times of day.

More importantly, parties are obligated to give effective warnings prior to attacks, which is a well-settled rule of international law, according to Yoram Dinstein, an international law scholar. The warnings should alert civilians and civilian facilities that an attack is imminent.

KUNDUZ BOMBING: DISREGARD OF INTERNATIONAL LAW

In the Kunduz bombing, the U.S. military launched an attack on a medical facility, an object that is protected against direct and/or purposeful attack under international humanitarian law. The commander of the U.S. forces in Afghanistan testified that the attack was a mistake. It is clear that the U.S. forces did not properly distinguish a protected object from a lawful military target, and that they did not take precautions to avoid civilian causalities.

According to the Associated Press, American special operations analysts knew that the place of attack was a medical facility. In fact, according to The Guardian, MSF had communicated its coordinates to both U.S. and Afghan authorities as recently as Sept. 29, but apparently this was disregarded.

MSF also said that they were not warned of the attack, as is required under international law as well as the Department of Defense’s law of war manual. Therefore, there are strong indications that the attack was unlawful under the laws of armed conflict. MSF may be justified in calling this a war crime, according to Professor Mary Ellen O’Connell from the University of Notre Dame.

Although President Barack Obama did apologize to MSF, and launched investigations into the events, it is unclear whether the U.S. government will hold accountable the individuals responsible for the ultimate decision to bomb the hospital. Not only do the victims have a right know what happened, but it is also imperative for the U.S. to be as transparent as possible so that humanitarian organizations that do dangerous but necessary work feel reassured to continue or restart their operations.

THE NEED FOR TRANSPARENCY

This tragedy shows us that in the wake of unlawful attacks there is a need for transparency. There are two main questions that require answers: (1) what led the U.S. to believe the target was legitimate at the time of the attack?; and (2) if U.S. knew this building was a hospital, what led them to believe the medical unit had been stripped of its protection under international law?

MSF has called on the U.S. to consent to an independent fact-finding commission, arguing that the U.S., NATO and Afghanistan cannot be relied on to conduct neutral and transparent investigations. This request has unfortunately fallen on deaf ears.

The International Humanitarian Fact-Finding Commission has a mandate to investigate violations against international humanitarian law like the attack in Kunduz. It was created by article 90 of the AP I, and its president has declared that the commission is ready to investigate the attack in Kunduz. Although United States is not a party to AP I, it can still consent to investigation by the commission. Afghanistan can consent as well to its ad hoc jurisdiction.

One potential pitfall of the commission is that it was created by an international document pertaining to international armed conflicts, and not internal armed conflicts like the one taking place in Afghanistan. But, a broad reading of the ad hoc jurisdiction text in article 90(2) AP I could include non-international armed conflicts, which would allow for accountability and transparency in the wake of this tragic incident.

Recently, President Obama announced that U.S. forces will remain in Afghanistan soil until at least 2017. Now, more than ever, the U.S. must meet its obligations under international humanitarian law. In the case of Kunduz, the U.S. must consent to an independent investigation for the sake of the victims who deserve to know the truth. By doing this, the U.S. will show that it is committed to the rule of law, and that it believes that independent investigations are good policy.

Amaury A. Reyes-Torres is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Annette Dubois/Creative Commons


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United States drone strikes: legal mechanisms and controversy

By Sarah Ben-Moussa

As the nature of warfare and military endeavors continues to evolve, one of the most controversial topics continues to be unmanned aerial vehicles (UAVs) and remotely piloted aerial systems (RPAS), more commonly known as drones. They have been mostly used in situations where manned flight is considered to be too dangerous or difficult, in an effort to prevent intrusive military operations. Their use began under the administration of President George W. Bush, and has since increased under President Barack Obama’s administration, becoming a favored military strategy in recent years, despite international and domestic criticism. There is has been a growing and widespread concern for civilian casualties as a result of the use of drones, especially after January of this year, when President Obama faced public backlash over the drone strike that killed Warren Weinstein, a 73-year-old American aid worker, and the Italian hostage, Giovanni Lo Porto, 37.

In a 2013 statement to the National Defense University, President Obama defended the legality of the drone program, stating, “America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces.” However, are drone strikes legal under domestic and international law? And what are their human rights implications?

DOMESTIC LAW AND THE AUTHORIZATION FOR THE USE OF MILITARY FORCE

Domestically, the justification for drone strikes has largely come from the Authorization for the Use of Military Force (AUMF), a congressional act passed in 2001, shortly after the Sept. 11 attacks. The original text of the act authorizes the President of United States “to use all necessary and appropriate force” against those they determine to be involved in the terrorist attacks that occurred on September 11, 2001.

The Act, which has not been revised since its passage in 2001, remains the principle justification for military force against Al-Qaeda and its associates, including the use of drone strikes. Only 60 words in length, it does not speak specifically to the use of drones, nor does it address the subsidiary groups and evolutions of Al-Qaeda that have risen in the last fourteen years. But the language “all necessary and appropriate force” has allowed presidential administrations to interpret the authorizations broadly, allowing for continued and growing targeted killing operations in Afghanistan, Yemen, Pakistan and Somalia.

There have been many critics of the continued use of the AUMF, both from Democrats and Republicans, asserting that the original purpose of the statute does not conform with the changing nature of war. As terrorist groups continue to grow and evolve, the AUMF is used as a blank check for the U.S. to engage in a sort of “forever war,” without seeking Congressional reauthorization for involvement in new conflicts. Moreover, legal scholars have argued that the law may not authorize the targeted killings of those who are indirectly or loosely associated with Al-Qaeda. Critics have expressed concern over the United States’ legal ability to use drones on Americans. Some have also said that the current drone program, which targets individuals in Yemen or Somalia without establishing clear ties between them and Al-Qaeda, is based on an overly-broad interpretation of the AUMF.

Many have called for a revision of the law, which continues to allow such broad presidential powers. These revisions are becoming more pertinent as questions arise about if the AUMF can extend in legal scope to justify military force against the Islamic State in Syria (ISIS), which did not exist at the time of the Sept. 11 attacks, and thus, does not fall under the original parameters of the AUMF.

There are currently two proposed amendments to the law that seek to approve military force in Iraq and Syria. The White House proposed a version that would allow the President to use the armed forces as he determines necessary against ISIS and associated groups, subject to a reauthorization of the act every three years. Despite the administration’s insistence that the proposed bill would not authorize long-term, large-scale ground operations, many criticized the text of the statute as too broad, leaving wide discretionary use of power to use the armed forces. A subsequent revised proposal made by members of Congress sought to confine the authorization of military force to only ISIS, and decrease the scope of presidential discretion. Both proposed versions would limit their reauthorization to three years.

Despite their differences, the language of both bills does not address or regulate the use of drones. The nature of warfare is changing in a way that the world has not seen before. Thus, it is imperative that our laws and authorizations to use military force address the changing nature of war, including the use and regulation of drones.

INTERNATIONAL LEGAL CONCERNS

The predominant concern in assessing the legality of drone strikes under international law is the risk to civilian life. In their May 2010 report, the U.N. Human Rights Council (HRC) took up the issue of “targeted killings,” a term not previously defined in international law. While the term has been used in a variety of contexts, including the use of drones, the HRC has interpreted it to encompass times when lethal force is intentionally and deliberately used, with a degree of pre-meditation, against an individual or individuals specifically identified in advance. The United States has adapted the military tactic of targeted killings in other countries since the attacks on Sept. 11, 2001, causing concern in the international legal community.

The international legal argument on drones involves three principal considerations. Under international humanitarian law, targeted killing is only lawful in times of armed conflict when a target in question is a “combatant” or “fighter.” In the case of a civilian, it is only lawful during the time a person “directly participates in hostilities.” Given the changing landscape of warfare, the exact definition of these terms continues to be the subject of an ongoing legal debate.

Under human rights law, a killing by a state is only legal if it is required to protect life and there are no other means, of preventing that threat to life. In the case of targeted killings across state borders, the HRC clarified that targeted killings conducted outside of the territory of a country’s borders does not violate sovereignty if the other state consents. Furthermore, it is legal if the country conducting the killing is doing so in self-defense under Article 51 of the UN Charter because the other country is unwilling or unable to stop armed attacks launched from its territory. International law permits the use of lethal force in self-defense in response to an “armed attack” as long as that force is necessary and proportionate.

The United States argues that its actions are in compliance with international law because the U.S. is in an armed conflict with Al Qaeda, as well as the Taliban and associated forces. The U.S. further asserts that the targeted killings they conduct fall within the scope of the self-defense as defined under the Article 51 of the UN Charter. Thus, in the case of Syria and ISIS, it is imperative for the U.S. to reauthorize the AUMF in order to meet the definition of “armed conflict.”

However, despite this defense, the HRC pointed to a number of concerns with the U.S. legal justification, including: “the scope of the armed conflict in which the US asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, and the existence of accountability mechanisms.” The U.S. may continue to encounter similar international scrutiny in Syria as in the conflicts in Afghanistan, Pakistan, and Somalia.

CONTROVERSIES OF THE DRONE PROGRAM

The U.S. continues to face backlash over its drone program, especially in Pakistan. The Pakistani government has called for the immediate cessation of the drone program. Even so, it doesn’t seem as though future development of the drone program will halt. The administration has defended its reliance on drones as a way to decrease the effectiveness of terrorists groups, such as Al-Qaeda, who operate in remote areas. Obama has also argued that this program achieves its military objectives while avoiding civilian causalities with “near certainty.”

Despite recent controversy, and many doubting the effectiveness of drones in reducing civilian causalities, research has shown that the civilian causality rate under the drone program has actually been dropping since 2008. The number of civilians and unknowns (persons who cannot be identified) reported killed by drones in Pakistan from the beginning of President Obama’s tenure to 2011 represented 11 percent of fatalities, and in 2012 went down to 2 percent (as compared to 33 percent in the previous administration). Additionally, since 2004, the drone campaign has killed at least 49 militant leaders.

It may be the case that the United States’ reliance on drones in conducting warfare is beneficial in the long term. Proponents of the program have strong arguments for its use as opposed to traditional methods of warfare, especially in the light of evolving terrorists’ threats against the U.S. and other states. The legality of the drone program continues to be debatable, depending on whose interpretation you are relying on. But one thing remains certain: there can be no denying the tragic sense of loss faced by those who are affected by civilian causalities. Our analysis cannot be rooted in a simple cost-benefit inquiry, nor an understanding of legal mechanisms, but must instead look at the issue from a humanitarian perspective. It is imperative for the United States to increase its transparency and administrative regulation when it comes to its drone program, while also balancing prevailing national security interests. The U.S. must institute national review mechanisms of the drone program and ensure continued research into increasing technological effectiveness and accountability. Above all, the U.S. must demonstrate the utmost commitment to the sanctity of civilian life.

Sarah Ben-Moussa is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: U.S. Air Force photo/Staff Sgt. Brian Ferguson/Creative Commons


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Reflecting on Japan’s pacifism and the 70th anniversary of the atomic bombings

By Carolina van der Mensbrugghe

On Sept. 17, Japanese Prime Minister Shinzo Abe’s controversial security bill passed, marking the biggest shift in Japan’s defense policy in half a century, despite months of protest nationwide. These protests have distressed many within the country who are despondent at the divisive polarization of opinions on whether Japan should be able to intervene militarily overseas to aid allies. Mass scale protests themselves are generally uncharacteristic for Japan, however, this issue has inspired aggressive opposition for the security bill within parliament itself. Scenes from the night of the vote were broadcast on national television, including opposition politicians piled on top of the committee chairman, wrestling away his microphone to prevent the voting process. Meanwhile, lawmakers from Prime Minister Abe’s party pulled them away and formed a physical barricade around the podium.

The debate surrounding the constitutionality of affording Japan’s defense forces a larger role overseas continues to obscure the larger underlying question: how will this symbolic shift play out practically? Japan’s self defense force has already been recognized as one of the strongest military forces in the world, with technologically advance air, sea and land capabilities. The extent to which Japan will change practically has yet to be seen, but the public response to the bills’ passing alone has been substantial.

The passage of the security bill effectively reinterprets Article 9 of Japan’s constitution, a pacifist provision stating that Japan “forever renounce[s] war as a sovereign right of the nation.” At the very least, it represents a symbolic shift towards a more hawkish Japan. Domestic opinions on this bill are often polarized, including some people favoring Japan becoming a “normal nation,” while others fear that this change will enable Japan to help the United State wage “an illegal war” in the Middle East.

Much of my work towards the end of this summer focused on speaking with individuals, in both Nagasaki and Tokyo, about their reaction to these historic changes during the 70th anniversary memorial ceremony for the atomic bombing and end of the Pacific War. Japan’s defense policy is inextricably linked to collective war memory, which has added fuel to public polarization on the topic and entrenched the media in a partisan framework.

Both Nagasaki and Tokyo’s memorial ceremonies are rooted in commemorating the past, and both used the same history to advocate for or against increased defense forces, ultimately cautioning against repeating the mistakes of the past. Whereas Nagasaki’s pacifist message for peace has usually focused on the abolition of nuclear weapons in order to ensure a peaceful future, this year marked a shift towards eliminating all forms of war, including even the potential for war. Prior to the security bill controversy, much of the protests in Tokyo focused on decommissioning Japan’s nuclear power plants and speaking out against the human rights problems in Fukushima, following the historic Great East Japan Earthquake in March of 2011. Tokyo’s memorial ceremony was not known for massive protest turnouts, but the introduction of the security bill set the stage for pacifists and hawkish nationalists to have something to rally around or against.

Some American press omitted exploring the relevance of these important memorials in contemporary politics. The New York Times described Hiroshima’s ceremony in detail, briefly touching on the city’s skepticism towards the authenticity of Prime Minister Abe’s declaration for peace. Conversely, for Nagasaki’s memorial, the Times opted to leave out any discussion of the ceremony altogether in favor of reopening the tired debate of whether it was right or not to have used the atomic bomb.

To address the deficit in content covering the nationwide protests, I’ve included below two videos that capture the concern and energy of the protests on both sides of the debate in two cities that represent its extremes, Nagasaki and Tokyo. Although the security bill has passed, the diversity in emotional response has not, and thus, a reflection on public reaction remains relevant. I intentionally left both clips as raw as possible to invite reflection, not political imposition, on viewers to experience viscerally the unfolding historic political protests within Japanese society. What is lacking in domestic debate and discussion is a safe space and public forum for compromise and discussion between both sides. Many historians and political theorists have debated the pros and cons of Japan’s militarization, as well as the relevant implications. In order for Japan to move forward in a rights-respecting way, all of these considerations should be publicly aired.

Nagasaki City, Japan (August 2-9, 2015)

Compared to five years ago, Nagasaki City’s peace events felt different. The city’s rhetoric and messages during the official peace ceremony subtly shifted away from nuclear weapons and towards war as the primary anathema. The city’s Peace Park, always decorated in symbolic crane offerings for peace, included illustrations and posters villainizing the security bill. Many communities from around Japan, including Prime Minister Shinzo Abe’s hometown, travelled to the city to distribute flyers in protest of the security bill and in solidarity with Nagasaki, one of two cities martyred in collective Pacifist memory as a symbol for eternal peace.

The city also seemed less concerned with international response. Whereas five years ago, I was chased down by Japanese journalists for interviews on my thoughts on the lack of American diplomatic presence at the peace ceremony, this year, the media and public shifted focus towards domestic targets and, arguably, persona non grata, Prime Minister Abe.

Nagasaki City Hall commemorated the 70th anniversary of the atomic bombing by inviting hundreds of international boy and girl scouts from over ninety countries to an International Youth Peace Conference. At the conference, a boy scout from Okinawa, a city rife with controversy over the American military presence, asked the keynote speaker, an atomic bomb survivor, what his views were on the security bill. This was not the typical nuclear weapons-related fare. His response was that only two good things that came out of the war: (1) he appreciated his family infinitely more, and (2) Japan adopted Article 9 of the Constitution as a commitment to never wage war again. In addition to participation at the conference, British, French, and even Iraqi global citizens roamed the peace park and city in observance of this special anniversary and its significance in a greater collective wish for peace.

The Peace Ceremony itself was split along partisan lines, and the audience was not afraid to chime with applause and verbal attacks depending on the speaker. Despite the unbearable heat, seating was filled to maximum capacity one hour prior to the opening remarks. Prime Minister Abe remained silent on general security matters, but restated Japan’s commitment to uphold the “Three Non-Nuclear Principles,” and to continue to provide support for aging atomic bomb survivors through the 20-year-old Atomic Bomb Survivors Relief Law. An angry voice in the audience yelled out during the Prime Minister’s speech, but was overpowered by the consistent wave of cicadas chiming before he was pulled away by security. When Sumiteru Taniguchi spoke on behalf of Nagasaki’s atomic bomb survivors, he described the security bill as “a return to wartime era” and that it “will lead to war.” He further described it as “an attempt to overturn the nuclear abolition activities and wishes held and carried out by the hibakusha and those multitudes of people who desire peace,” which drew a round of applause. Nagasaki Mayor Tomihisa Taue directed his speech towards the Prime Minister and Diet, urging them to listen to the voices of unease and concern regarding the destruction of the pacifist ideology “engraved in our hearts 70 years ago.” More applause from the crowd ensued, changing the tone of the ceremony from memorial to impassioned debate forum.

Tokyo, Chiyoda Ward, Japan (August 15, 2015)

Every year on Aug. 15, the anniversary of the end of the Pacific War, the Japanese Emperor and Prime Minister deliver memorial speeches from central Tokyo (Chiyoda Ward) to the nation, amongst invitation-only members of government and surviving family of wartime victims. Near Nihon Budokkan, the indoor arena typically used for this official speech, is the controversial Yasukini Shrine, which has been internationally and “indelibly associated with unrepentant historical revisionism, and a resurgent ethnic nationalism,” according to Christopher Pokarier, a professor of business and governance at Waseda University in Tokyo. In plain terms, it is a shrine to commemorate soldiers and other military officials fallen in war. It is central to the way many honor those who have passed in service, sometimes family, during the Pacific War. Pokarier, writing for Australia’s The Independent, notes that “right-wing groups, militaria aficionados and very many ‘ordinary’ Japanese, visit the shrine. Their motives are as diverse as their social identities, and belie simple generalizations about the meaning of Yasukuni.”

While this memorial has always been normatively divisive, this year, people in favor or against a militarily stronger Japan were faced with contemplating how society may soon be affected. One woman expressed support for the security bill on paper, but was concerned about its execution, specifically the potential for future political abuse, which could result in the unnecessary deaths of many Japanese citizens.

While it is typical to see a diverse crowd of nationalists, military-garbed hawks, ordinary citizens and fringe minority groups around Chiyoda during the commemoration ceremony, the main drag turned into ground zero for marches in support of the security bill by late afternoon this past year. Once more, the heated debate was taken to the streets, literally, as thousands of citizens marched with Japanese flags shouting “頑張ろう日本” or “Try your best/you can do it Japan.” Some citizens stood on street corners with microphones imploring passersby to “get worried” and “to think of the children because China is coming.”As I found myself on the corner of the main intersection, I filmed and watched for about two hours as thousands of people passed by, repeating these messages as others applauded.

Eventually, at least fifty police, in full body armor and helmets, blocked off the street, set up barricades right in front of where I was standing and proceeded to stop traffic by driving their squad buses into the center of the street. While at first it was unclear to me who needed protecting, the group around me suddenly turned sour and began angrily yelling at a group marching through the center of the street. It turned out to be pacifists making their way through the area, sharing their own views on the security bill.

Carolina van der Mensbrugghe was a 2015 Leitner Center Summer Fellow. She conducted an independent project documenting the stories of atomic bomb survivors in Nagasaki, Japan with help from the Nagasaki Foundation for the Promotion of Peace and Nagasaki City Hall.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Video and Photo credits: Carolina van der Mensbrugghe