Justice for All

Published December 14, 2009 International Criminal Justice Leave a Comment

A spate of recent international judicial actions is nipping at heels of the some of the world’s most powerful states and suggesting that although a culture of impunity persists, getting off scot-free is little by little on the wane, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 14 December 2009

Involvement by the International Criminal Court (ICC) in Afghanistan, Israel-Palestine and potentially the UK and Canada is showing itself an emerging challenge to the disparity between strong and weak states in international criminal justice. For the strong and high-minded, it is an inconvenient lot.

In many ways, including in particular implementation mechanisms for judicial decisions, a comprehensive framework for international criminal justice lags. The ICC, launched in 2002, institutionalized the international community’s resolve to hold to account individuals implicated in the violation of jus cogens or peremptory norms of international law, violations so grave as to make their perpetrators hostis humani generis or enemies of all mankind.

The Rome Statute of the ICC gives the Office of the Prosecutor (OTP) jurisdiction over war crimes, crimes against humanity and genocide, committed on the territories or by nationals of “States Parties.”

A principal impediment to the development of a comprehensive framework is the non-participation of strong states, hindered by their concerns over sovereignty and the potential for politicization of international judicial actions. Chief among them is the US. This category also includes China, Russia, India, much of the Middle East and North Africa, and Southeast Asia.

The weak

For states toward the bottom of the international power hierarchy, acceding to the Rome Statute yields benefits. These include: projecting deference for the rule of law, gaining access to a forum to influence other states, and earning a modicum of protection against the use of force by other – usually more powerful – states on their territories.

But with several Congolese in the dock, a head of state under indictment and fat cat, rabble-rousing politicians in Kenya wondering who will be first to face the music, many in Africa perceive that the ICC is inordinately targeting the weak.

This perception, however, is misleading. The Democratic Republic of Congo, the Central African Republic, Uganda and Kenya are all ‘States Parties.’ Sudan is not; but was legally referred to the ICC by the UN Security Council. African countries, moreover, disproportionably suffer from dysfunctional judicial systems that often necessitate outside assistance.

In a broader sense, though, many observers of international affairs acknowledge the critique is legitimate. Strong states, particularly in the West, often preach justice, but seldom conform to their own standards internationally.

ICC involvement or the looming threat of ICC involvement in two ‘non-States Parties’ and two ‘States Parties,’ all regarded as strong or fairly strong actors in international affairs, suggests a correction may be in the works.

False alarm

Since September, conservative pundits in the US have fretted that ICC chief Prosecutor Louis Moreno-Ocampo’s decision to preliminarily look into allegations of Statute crimes by belligerents in Afghanistan could implicate US citizens. The development is precisely the scenario they warned of, they sigh; the Bush administration’s hostility toward the Court is vindicated. Afghanistan has been a States Party to the ICC since February 2003.

But, in speaking with ISN Security Watch, Ben Schiff, professor of politics at Oberlin College in Ohio and author of Building the International Criminal Court, points out that, “The prosecutor’s announcement that he’s looking into allegations against combatant forces in Afghanistan should cause little concern in the US if its military justice system and civilian controls are operating properly and with adequate transparency to assure the OTP that ICC involvement is unnecessary.”

Niamatullah Ibrahimi, co-founder of Afghanistan Watch, a human rights organization in Kabul, and the focal point of the Coalition for the International Criminal Court (CICC) in Afghanistan, explained to ISN Security Watch via e-mail that, “Although little is known about the prosecutor’s intentions in Afghanistan, two issues involving international forces remain the most controversial: detention and treatment of suspected insurgents and civilian casualties during their air bombardments. Many of their operations have apparently mistakenly hit civilian targets. An important question regarding these incidents is whether more careful planning and intelligence gathering could have avoided the damages caused to civilians.”

Schiff reckons, moreover, that the prosecutor’s preliminary investigation in Afghanistan may also yield information about the misdeeds of actors other than the US – including perhaps the Taliban. “This should be viewed as salutary by the US.”

Should Ocampo decide that US efforts are falling short, in theory, he could complicate travel for select US servicepersons or policymakers. Detention and transfer to The Hague, however, looks unlikely. Afghanistan’s 2002 ‘Article 98’ Bilateral Immunity Agreement (BIA) with the US precludes Kabul from surrendering US citizens to the ICC.

Upon entering office, the Obama administration rescinded the coercive sanctions that accompanied BIAs. All the same, the US-Afghan agreement remains on the books and it is unclear whether or not the Obama administration would move to enforce it.

Goldstone

The uncomfortable spotlight of international criminal justice has also fixed on Israel and its conduct during ‘Operation Cast Lead’ in December-January 2008-2009. Although Israel is not a States Party – necessitating a highly improbable UN Security Council referral for ICC intervention – international outrage at what was widely viewed as Tel Aviv’s disproportionate response to Hamas rocket fire produced the controversial Goldstone report.

The report urged both Hamas and Israel to conduct their own investigations into its findings. If they declined, it recommended the UN Security Council refer the situation to the OTP of the ICC.

Schiff argues, “Despite the invective to which it has been subjected, the Goldstone report did uphold a conventional interpretation of war crimes norms as established in the Geneva Conventions. The response to it has, predictably, been entirely political.

The report’s effect might have been greater if the UN Human Rights Council itself had greater international respectability, but the basic problem is that any attempt to deal judicially with this extremely politicized situation gets submerged by vituperation. If the alternative to the Goldstone report was no international investigation or response to the Gaza conflict at all, then the fact that the investigation was carried out, responsibly drafted and publicized is, on balance, a positive measure in upholding international standards,” he said.

Not I…

Elsewhere, two countries that are also influential actors in international affairs as well as States Parties to the ICC are equally set to test their commitment to justice.

Humble Canada could face criminal action. Whistle-blower and Canadian diplomat Richard Colvin last month charged that Canadian Forces failed to properly monitor detainee conditions in Afghanistan. He also claimed that Ottawa ignored repeated warnings about detainee transfers to Afghan units known to perform torture.

The government initially dismissed calls for a public inquiry. Canada is a States Party and the ICC could intervene if Ottawa fails to maintain complementarity standards.

Human rights watchdogs have been calling on the UK to conduct judicial inquiries into allegations of British complicity in torture in Pakistan and elsewhere overseas for close to a year now. The government has stonewalled.

New York-based Human Rights Watch published a report, Cruel Britannia, last month, which details the cases of five UK citizens of Pakistani origin who claim to have been tortured in Pakistan by Pakistani security agencies between 2004 and 2007. The report finds no direct evidence of UK participation, but argues that complicity is obvious.

Amnesty International said in a 10 August press statement: “Amnesty International urges the UK authorities not to pick and choose when they will observe their legal obligations: torture and complicity in torture are absolutely banned. It is high time for the British government to have its record assessed and for those who may be responsible for such serious abuses to be held accountable.”

According to a 26 November Daily Mail article (UK), if swept to power in upcoming elections, the opposition Tories claim they would support a wider inquiry. The UK is a States Party, and although the press has eschewed the point so far, ICC intervention is plausible.

As US President Barack Obama stated in reaction to Iran’s election turmoil in June, quoting Dr Martin Luther King, “The arc of the moral universe is long, but it bends towards justice.”

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?lng=en&id=110487

Baghdad Divided

Published November 9, 2009 Uncategorized Leave a Comment

Maps detailing the sectarian cleansing of Baghdad question the utility of the US surge in Iraq as a template for Afghanistan, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 9 November 2009

Analysis suggests that the US surge in Iraq, and the troop increase in particular, did not bring about an end to Iraq’s civil war in 2006-2007. Rather, the surge dovetailed a series of converging dynamics on the ground, facilitating more so than engendering a cessation of hostilities.

Iraq’s civil war was foremost about the country’s violent post-invasion shift from a Sunni minority-run state under Saddam Hussein to a Shia majority-run country. Maps developed by Dr Michael Izady for Columbia University’s School of International and Public Affairs (SIPA) Gulf/2000 Project, an information center on Persian Gulf countries, which have tracked the sectarian make-up of Baghdad in the post-invasion period illustrate this sea change.

”Ethnic Groups in Baghdad’ – a set of five maps – depict the all but complete sectarian cleansing and segregation of Baghdad during 2006-2007.

Surges and sahwat

The US surge in Iraq or “The New Way Forward,” announced by President George W Bush on 10 January 2007, included three components. First, US commanders on the ground reformed their tactics, focusing on safeguarding the civilian population and adopting a ‘clear-hold-build’ versus a more rudimentary ‘clear’ strategy for counterinsurgency.

Second, the US surge successfully embraced the Sunni ‘awakening’ movements or sahwat. Lastly, the surge called for the deployment of an extra 28,000 US troops, the lion’s share to Baghdad.

The first two components helped temper the bloodletting. The third likely played a marginal role in stamping out smoldering embers.

Starting in 2005 and gaining momentum through much of 2006 and 2007, the sahwat, an alliance led by Sheikh Abdul Sattar al-Rishawi, played an integral role in ending Iraq’s civil war.

The fall of Saddam Hussein robbed Sunni tribal sheikhs of their longtime patron. An influx of foreign fighters, many with jihadi ambitions, links to al-Qaida and an appetite for indiscriminate violence complicated their predicament.

Welcomed at first and harbored by Iraq’s Sunni population, the sheikhs and their constituents eventually determined that the foreign fighters, many fighting under the guise of al-Qaida in Iraq (AQI), were hindering more so than advancing their cause. AQI began challenging the authority of the Sunni sheikhs, and increasingly, egged on a civil war with the Shias that the Sunnis could hardly expect to win.

Many Sunnis also disagreed with AQI’s ideological aspirations. Whereas most of Iraq’s Sunnis favored a nationalist agenda, AQI yearned for the reactionary Islamization of Iraq.

By late 2006 and moving in to 2007, the US embraced the sahwat, put them on Uncle Sam’s payroll, encouraged the tribes to stop providing safe haven to AQI and urged them to curtail their own use of force. It worked. By May 2007 the sahwat had largely expelled AQI and curbed their fighting. Analysts and journalists have since attributed much of the decline in violence to their exertions.

But some observers, including Dr Izady, point out that this account, though accurate in the main, fails to explain why the Sunni tribes so willingly acceded to US support, in effect tying their fate to US magnanimity.

The answer rests with Sunni fears of imminent Shia vengeance and hegemony.

The Baghdad purge

Eight-tenths of the violence in Iraq befell Baghdad and its surrounding areas. An explosion in Baghdad paid high political dividends and was quickly reported around the world. More significantly, pre-invasion Baghdad was the most ethnically diverse region of Iraq.

Dr Izady developed his maps using dozens of itinerant civilian informants in Baghdad. What his maps show is that from early 2006 to mid 2007 – the al-Askari mosque bombing in the city of Samarra in February 2006 marked the start of Iraq’s civil war – the Mahdi army and affiliated Shia militia groups cleansed Baghdad of Sunnis, forcing diehards into Sunni stronghold neighborhoods in the western part of the city.

The gains were astounding. Izady explained to ISN Security Watch, “Judging by the body counts at the time in the Baghdad morgues, three Sunnis died for every Shia. Baghdad – basically a Sunni city into the 1940s, by the end of 2008, had only a few hundred thousand Sunni residents left in a population of over 5 million.

“However regrettable,” continued Izady, “if the massive Shia killing of the Sunnis and comprehensive ethno-sectarian cleansing had not taken place, the prospect of the Sunnis ‘awakening’ and sensing their imminent destruction or subjugation by the Shias would not have transpired.

“The surge was the psychological marker that the US could and in fact might leave and let the Sunnis deal with the Shias alone. From 2003 when the Sunnis saw the US and coalition forces as enemies to be ejected from Iraq, to fall 2007 where the Americans were seen as the only force standing between them and the vengeful Shias in their millions, a 180-degree transformation had taken place.”

In August 2007, Muqtada al-Sadr, the leader of the Mahdi army declared a unilateral ceasefire. Although the motives for his decision were manifold, including increased US military pressure, the sectarian cleansing and consequent shift in the balance of power was complete.

A bomb killed Sheikh Abdul Sattar al-Rishawi on 13 September 2007; suspicion fell on AQI, not Shia militia groups. Nonetheless, the Sunni alliance had lost its charismatic leader.

By August/September 2007, Iraq’s civil war was over. Since US troops withdrew from Iraq’s cities on 30 June 2009 the violence has not returned. Baghdad remains divided.

In a 3 November 2008 report, IWPR quoted Iraqi defense ministry spokesperson Brigadier General Muhammad al-Askari as saying, “I do not think al-Sahwa elements have the ability or desire to take up arms against the government, because they are now in need of protection from [the groups they have been fighting].”

Did the civil war of 2006-2007 lay the groundwork for a new dictatorship – in this case, a dictatorship of the majority? Izady reckons, “The Kurds are safe in their mountains, and all but independent since 1991; the Shia are having a field day with their newfound (and absolute) power, and the Sunnis – whose numbers might have been reduced to just about 12 percent of the Iraqi population (due to massive emigration to Syria and Jordan) – are the ‘endangered species.’ An odd turn of events, where the dominant force in Iraq since its inception in the 1920s is now a tertiary force at the mercy of the primary Shias, whose idea of democracy is a ‘dictatorship of the majority’?”

The Afghan version

The dissimilar contexts of Iraq and Afghanistan aside, advocacy of a US troop surge in Afghanistan based on the perceived efficacy of added boots in Iraq is likely just that – a perception.

The civilian/ethno-sectarian death toll in Iraq peaked in December 2006-January 2007, suggesting US soldiers were unable to check the sectarian bloodshed at its high point, and the preponderance of the sectarian cleansing occurred well in advance of the US troop increase to Baghdad.

The troop increase became operational a short time before the end of the civil war, in mid-June 2007. Enough time, roughly two months, to nudge the various Shia militia groups to back down, but insufficient time to end a civil war the US did not control.

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?lng=en&id=109316

REDD for Green

Published October 8, 2009 Climate Change Leave a Comment

Riddled with pitfalls, REDD may nevertheless hold out hope for meeting emissions reduction targets globally, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 8 October 2009

The irony is that in putting many of us out of work, the global economic recession has reduced greenhouse gas (GHG) emissions at an unprecedented scale. This portends well for the environment, particularly in the short run. But in considering the big picture, the recession has dented the menace of climate change only marginally.

Participants to the UN climate change summit on 22 September in New York (hailed by the UN as the largest so far in terms of heads of state and ministerial-level participation) underscored this assessment. President Hu Jintao of China won substantial plaudits for proclaiming his country’s commitment to curb GHG emissions, albeit offering up few specifics.

In his speech, Hu repeatedly framed coming efforts under the banner of “common but differentiated responsibilities,” acknowledging the need for developing countries to partake, and maybe, but unlikely, hinting at the developing world’s own fast-accruing record of atmospheric pollution.

Part of the solution will likely be REDD, reducing emissions from deforestation and forest degradation. The process is riddled with pitfalls and burdened by a tree-hugging stigma, but deforestation accounts for roughly 20 percent of global GHG emissions, the second largest driver of anthropogenic climate change after the burning of fossil fuels.

Although big emitters China and India will likely have little to do with REDD – they host few tropical forests – other middle- and low-income equatorial countries will be primary targets. REDD will have to focus on tropical forests because of their elevated climate change mitigation potential. Tropical forests have a higher albedo and recycle carbon dioxide better than their northern counterparts. What is more, they exhibit the most alarming rates of deforestation.

The prime target regions for REDD include the Amazon in Brazil; Southeast Asia, from Myanmar/Burma to the Philippines and Indonesia; the Congo basin; Madagascar; and the southern tip of Central America.

Pros and cons

REDD presents several benefits. First, REDD may be rather inexpensive. Numbers floated by researchers so far range in the neighborhood of $50 billion per year. (Caveat: REDD costs are highly dependent on the development of an effective monitoring, reporting and verification (MRV) regime that prices the carbon in trees.)

Second, as suggested above, the emissions reduction and consequently ecological impact of REDD could be considerable.

Finally, if carried out graft-free – and this remains a big if – REDD could have positive developmental effects by funneling money to some of the world’s poorest.

REDD, however, also entails numerous challenges that will likely try its implementation. Monitoring and verification of REDD projects could turn out to be onerous undertakings.

Protecting the tenurial rights of indigenous people living in forests, a constituency that already enjoys little voice in international circles, will also be difficult. They risk being neglected altogether.

David Brown and Neil Bird have pointed out in an Overseas Development Institute opinion that for REDD to be developmentally sound and socially just, policymakers have first to understand, “the social, institutional and political conditions that drive land use change and that often operate beyond the forest sector at local, national and international scales.”

Deforestation, moreover, is in large measure the result of illegal land use that for many governments is difficult to control. The countries that host the largest swaths of tropical forest often also happen to suffer from anemic and dysfunctional legal systems.

As such, the greatest obstacle to REDD is misaligned economic incentives. For some, land use that causes deforestation is a lone avenue to escape the misery of poverty. For others, and less nobly, illegal logging and land use yields handsome profit that is hard to forgo. To counter this, REDD will have to pay people to plant, and more crucially, to not cut down trees.

Creeping action

Under the existing Kyoto framework developing countries can apply for Clean Development Mechanisms (CDMs) to help fund projects that mitigate GHG emissions, but REDD does not qualify, yet. The CDM Executive Board can only fund projects that demonstrate ‘additionality.’ In other words, planting a new tree counts, but saving one from being felled does not.

Critics of channeling REDD through CDMs moreover fear that if approved, developed countries may use the mechanism to outsource the business of emissions reduction by earning Certified Emission Reductions or carbon credits, which they can then turn around and use to meet their own emissions reduction targets. If a developed country concomitantly eschews improvements back home, this would in effect amount to cheating.

The private and non-for-profit sectors also carry out REDD projects. However, their impact is limited, and setting and maintaining standards for emissions reductions on an individual basis is highly problematic.

Seeking to tackle the problem from an alternative angle, environmentally conscious policymakers in net timber consuming countries have taken to defensive measures to limit deforestation outside their borders.

The EU’s FLEGT initiative – Forest Law Enforcement, Governance and Trade – partners with producing countries on a voluntary basis to set up licensing schemes that discriminate against illegal timber entering the European marketplace. The US has also started to control the importation of illegal timber under the 1900 Lacey Act. It was amended in 2008 to include such protections.

Curiously, some researchers suspect import controls may ultimately yield more benefits than paying people for REDD.

As the deadline for action in Copenhagen nears, REDD may come to define equatorial developing countries’ “common but differentiated responsibilities.” Given the wholesale potential for REDD to attenuate the deleterious effects of global climate change, continuing its exclusion in a post-Kyoto agreement may be passing up an imperfect but potentially constructive opportunity.

Speaking with ISN Security Watch by telephone from London, Jade Saunders, an associate fellow of the Energy Environment and Development Programme at Chatham House, a UK think tank, is nevertheless cautious.

“Don’t assume that all of this comes down to money. There are complicated cultural and capacity challenges to reducing deforestation. If we raise $50 billion and spend it in ways that we already know don’t work, there is a good chance we won’t have any impact at all on global carbon emissions.

“My call would be for a more thoughtful approach to REDD, one which bears in mind and learns from the history of forest interventions over the past several decades.”

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?lng=en&id=106803

The UBS Imbroglio

Published August 11, 2009 Banking Secrecy Leave a Comment

The widely reported UBS-IRS tax row scheduled to go to court later today in Miami for an initial hearing has been delayed until 3 August, and a settlement still looks a ways off, Claudio Guler comments for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 13 Jul 2009

Judge Alan S Gold of the United States Florida Southern District Court was to preside over civil proceedings in the tax dispute between the US and Union Bank of Switzerland (UBS) later today in Miami. US authorities are outraged that UBS client advisors roamed the US from 2002 to 2007 in search of wealthy clients and provided them with unlicensed, tax-free wealth management services.

The US hopes to crack Switzerland’s banking secrecy and obtain the client information of up to 52,000 high-net-worth Americans suspected of withholding an estimated $14.8 billion in taxes from the US Internal Revenue Service (IRS). The Swiss are looking to hammer out a deal that preserves banking secrecy and eschews further disrepute. The US claims that tax havens deprive its treasury of roughly $100 billion a year.

UBS admitted wrongdoing on 18 February 2008, after a former US-based employee, Bradley Birkenfeld, informed on the bank in exchange for a reduced penalty in his own tax fraud investigation. UBS entered into a Deferred Prosecution Agreement and pledged to cooperate with US authorities or again face criminal charges. It also released the names of some 300 alleged US tax cheats, paid a $780 million fine and immediately began exiting the US offshore wealth management business.

The IRS, with the backing of US Senator Carl Levin (D-Michigan) who has since introduced the Stop Tax Haven Abuse Act in the US Congress, felt a civil suit was the best and possibly only means to compel UBS to cooperate and demanded UBS reveal its entire roster of American offshore clients. UBS and the Swiss authorities declined, arguing that the request constituted a “fishing expedition” and would expose UBS employees to criminal proceedings in Switzerland.

The Swiss have largely deemed the IRS’ follow-up civil suit an underhanded blow. They accuse the US – a country with questionable corporate taxation practices of its own, a fresh record of financial calamity, and a thirst for funds to plug fiscal deficits – of targeting asymmetric Switzerland unreasonably.

Yet UBS and Switzerland are on the defensive. UBS’ actions assured that should a climate of fiscal thrift arise, the proverbial sleeping dog would be prime for an awakening. Now, a compromise, one that avoids devastating entirely the integrity of Swiss banking secrecy increasingly looks like the best Switzerland can hope for.

Recent glimmers of hope have proven ephemeral. Switzerland renegotiated a double taxation treaty with the US on 19 June: It is still in ministerial channels. The move is part of Switzerland’s broader initiative to renegotiate 12 double taxation treaties before the end of 2009 to bring itself into line with OECD standards on information exchanges and get off the OECD’s grey list. Some hoped, to no avail, that these negotiations would also resolve the tax dispute.

On 23 June, the New York Times published an article headlined “Settlement Anticipated in UBS Case,” which quoted an American official arguing, “To have a complete meltdown in Swiss-US relations and go to the mat with Switzerland three years from now when money is getting back into the system doesn’t make sense.” The US swiftly denied the official’s conjecture. UBS has three years to appeal any adverse ruling by Judge Gold.

In the interim, frustrations are growing and Swiss-US relations are suffering a setback. The conservative Swiss People’s Party (SVP) is pining to anchor banking secrecy in the national constitution. Other, smaller Swiss banks are avoiding or retreating from the lucrative US market altogether, never mind their legal status.

If releasing names in bulk is not an option for Switzerland (assuming it can mount and maintain a proper defense), the US and Switzerland will likely have to reach a diplomatic compromise – it promises to be expensive. Swiss Finance Minister Hans Rudolf Merz hinted on 7 July that USB might consider paying back lost taxes. Switzerland has also been in talks with the US to receive Guantanamo Bay inmates as President Obama shuts down the base. These overtures, however, may be ineffective in the short run.

In response to the UBS scandal, on 23 March, the IRS initiated a temporary, more lenient voluntary disclosure program to encourage US taxpayers with offshore accounts to come clean.

Considering the unusually aggressive nature of the US’ offensive against UBS, it seems unlikely that the US would settle before the IRS concludes its program has paid adequate dividends. Moreover, for the US, this case is about money, but it is also about names, sovereignty limitations, and just maybe, some showcase criminal proceedings down the road.

If a settlement is in the cards, it may still be some time. But the trial injunction looks auspicious.

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?ots591=4888CAA0-B3DB-1461-98B9-E20E7B9C13D4&lng=en&id=103183

Sudan: Keeping a Clinched Fist

Published August 11, 2009 International Criminal Justice Leave a Comment

With the rainy season fast approaching, Darfur’s next humanitarian crisis looms large and recently expelled aid agencies wonder who will fill the gaps as the peace process marks time, writes Claudio Guler for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 5 Jun 2009

Khartoum’s 4 March expulsion of 13 private international aid agencies in retaliation for the International Criminal Court’s (ICC) arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir has left a significant aid gap in its wake. With the rainy season fast approaching, humanitarian circumstances in Darfur stand to deteriorate.

The expulsion likely secured diplomatic leverage for Bashir, mostly in delaying the peace process. But observers note that it also showcased callous disregard and did little to demonstrate willingness to pursue peace in Darfur. Speaking in Cairo on Thursday, US President Barack Obama described the Darfur conflict as “a stain on our collective conscience.”

In an attempt to put the peace process back on track, the US is pressing diplomacy. It has yielded limited results and holds out hope for more, but Darfuris are unlikely to emerge unscathed.

Ejected agencies expect the worst

The expulsion targeted aid agencies in Northern Sudan and Darfur only, sparing operations in Southern Sudan. Melissa Winkler, communications director for the International Rescue Committee (IRC), one of the expelled aid agencies, told ISN Security Watch, “The aid agencies expelled carried out an estimated 60 percent of aid operations in Darfur.” The UN reckons the sustenance of one million people or more is on the line. Filling the aid gap will not be easy.

Disease, more so than food and water, is now the chief humanitarian concern. The rainy season, which spans June to September, typically increases the incidence of water-borne diseases such as malaria, cholera and diarrhea. This year, with the aid agencies absent, tasks such as servicing latrines may go unattended, enabling the spread of disease.

The UN’s World Food Program (WFP) and World Vision – a Christian humanitarian charity organization – among others, have stepped up operations to get food and water to those affected by the NGO expulsion. On 15 March, WFP distributed two-month of food rations. These are now nearing depletion and any efforts to distribute supplies since have been ad-hoc. Khartoum insists that it alone will compensate for the aid gap.

Alun McDonald, regional media and communications officer for the Horn, East and Central Africa for Oxfam UK – also one of the expelled aid agencies – told ISN Security Watch in a recent telephone interview, “The longer it drags on, the worse it could potentially get. I don’t think there’ll be a sort of tipping point, unless the rainy season brings on an outbreak of disease. Over time it will gradually get worse.”

On 6 May, Khartoum announced itself willing to admit “new” aid agencies. However, no convincing word of such developments has been reported. Sudan, moreover, is a difficult country to work in; Khartoum confiscated all of the expelled aid agencies’ assets before showing their personnel the door.

McDonald elaborated: “Working in Darfur is extremely difficult, given the security situation. It’s even more difficult because it takes a lot of paperwork and negotiations with the government [to set up operations].” In 2004 and 2007, the Sudanese government signed agreements pledging to ease restrictions for aid agencies, but he claims that “not much of that was ever really implemented.”

In deciding which aid agencies to expel, Khartoum settled on high-profile, western organizations from the US, the UK and France, accusing them of colluding with the ICC. The reasoning fits well with Bashir’s repeated characterization of the ICC as an arm of western imperialism. An aid worker who spoke to ISN Security Watch on condition of anonymity adds, “There is a feeling that some of the expelled agencies are among the more outspoken ones, or ones that have been involved in sensitive work, around victims of sexual abuse and mental health.”

Pushing diplomacy

The US and Qatar have spearheaded diplomatic efforts to advance the enervated Darfur peace process. Qatar is providing the forum. The US, represented by Special Envoy Scott Gration, has spent the past two months urging stakeholders to the table.

Gration traveled to Sudan in April and May. He returned from his initial trip in April calling for closer US-Sudanese relations, reasoning this was the best way forward. His exertions, moreover, likely convinced Bashir to permit the remaining aid agencies to step up their activities and fill some of the aid gap.

The special envoy also visited China, Qatar, the UK and France in May and June. His trip to China – Khartoum’s most influential ally – produced some mildly auspicious results. Foreign Ministry spokesman Ma Zhaoxu announced to reporters on 26 May that China was ready to work with the US to “promote settlement” of the Darfur conflict. On 28 May, China’s envoy to Sudan, Ambassador Liu Guijin, met with members of the Darfur rebel group Justice and Equality Movement (JEM) for the first time in Qatar.

Just yesterday, the US announced it would host a peace conference on 23 June to assess implementation of the 2005 North-South Comprehensive Peace Agreement (CPA), hoping to use the occasion as a stepping stone to reinvigorate the Darfur peace process.

Following in the footsteps of US Senator John Kerry (D-MA), who visited Sudan back in April, Senators Johnny Isakson (R-GA) and Bob Corker (R-TN) traveled to Sudan from 25 to 27 May. They too returned expressing optimism. Yet on 26 May, the UK paper The Independent reported Bashir lashing out at the aid agencies once again, this time accusing them of fomenting regime change.

Khartoum resists engagement

In his inauguration speech in January, Obama offered some of the world’s more unsavory regimes a compromise: “Unclench your fist, and the US will extend you a hand.”

Sudan is testing the limits of this approach. The US has engaged, but Khartoum has been reluctant to reciprocate, particularly concerning the critical, humanitarian issue of the expelled aid agencies. Readmission would serve as an olive branch in Khartoum’s pursuit of warmer US-Sudanese relations and do much to help Darfuris.

On Friday in New York, chief prosecutor of the ICC, Louis Moreno-Ocampo, will address the UN Security Council in his biannual report. He has, as of late, argued that ICC judges would soon approve a genocide charge for Bashir.

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?ots591=4888CAA0-B3DB-1461-98B9-E20E7B9C13D4&lng=en&id=101181

Slow Dancing With Sudan

Published August 11, 2009 International Criminal Justice Leave a Comment

Khartoum’s aces of stonewalling may be at it again. Discrete diplomacy is an apt first step, but if it fails to yield results, Obama should speak up, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 8 May 2009

Pre-Trial Chamber I of the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir on 4 March on seven counts of war crimes and crimes against humanity, and as anticipated, he retaliated. The US has stepped in, yet maybe not forcefully enough, and Washington risks getting hoodwinked.

Retaliation

The day after the issuance of the arrest warrant, Khartoum accused 13 private international humanitarian aid agencies of cooperating with the ICC, revoked their licenses and expelled them from its territory. Estimates given by the aid agencies to various media sources suggest international humanitarian organizations – including among others Oxfam, Médecins sans Frontières and the International Rescue Committee – provide anywhere from 40 to 70 percent of the aid internally displaced Darfuris need.

In addition to expelling the aid agencies, al-Bashir embarked on a regional grandstanding tour. He secured the support of the Arab League (AL) and the African Union (AU), and paid visits (in sequence) to Eritrea, Egypt, Libya, the Arab League Summit in Doha, Qatar, Saudi Arabia and Ethiopia.

South Africa is the first country to have told al-Bashir that it could not host him for newly elected President Jacob Zuma’s inauguration because of its legal obligations under the Rome Statute of the ICC. Botswana has dissented from the AU position as well.

Peace vs justice

The concern, particularly among humanitarians and peace negotiators, is that the pursuit of justice conflicts with the pursuit of peace.

In the Sudan, they fear, the ICC’s actions are disrupting peace negotiations and humanitarian aid to suffering Darfuris. The ICC, however, was established as an autonomous, apolitical, judicial institution. If the evidence against al-Bashir is convincing and meets the threshold for prosecution, the Prosecutor and Chambers should proceed, argues Ben Schiff, professor of politics at Oberlin College in Ohio and author of Building the International Criminal Court (Cambridge University Press, 2008). Under the Rome Statute, responsibility for the political judgment that suspension or delay would be appropriate lies not with the Court, but with the UN Security Council and the Permanent Five in particular.

Under US President Barack Obama, the Permanent Five’s most prominent member finally looks set to shake its disdain for the ICC.

Fence-mending

US support for the ICC would likely reinforce the case against al-Bashir. After eight years of subversion, Washington now signals cooperation.

In a recent telephone interview with ISN Security Watch, Professor Schiff argued that improved relations were likely to result in a policy of “benign engagement,” skirting ratification of the Rome Statute because of the domestic political costs associated with advancing this position.

Indicators support this assessment. The Fiscal Year 2009 omnibus appropriations bill no longer includes the Nethercutt amendment that limited US aid to states sympathetic to the ICC. In written testimony to the US Senate Committee on Foreign Relations, Secretary of State Hillary Clinton said, “We will end hostility towards the ICC, and look for opportunities to encourage effective ICC action in ways that promote US interests by bringing war criminals to justice.”

The controversial nomination of Harold Koh, former dean of Yale Law School, to the US State Department’s senior legal advisory post also appears auspicious. Referring to the situation in Sudan on 28 April, Koh stated prudently before the US Senate Committee on Foreign Relations: “It’s a complicated situation in which international justice, I believe, could play an important role in bringing a better outcome in Sudan than we have now. On the other hand, I don’t think that we should reengage [the ICC] without fully protecting American interests.”

Matthew Heaphy, deputy convenor of the American NGO Coalition for the International Criminal Court (AMICC) told ISN Security Watch: “Harold Koh is a leading and highly regarded international law expert who clearly appreciates and understands the work of the ICC. We expect that his role in creating the new US policy on the ICC will be positive and constructive.”

Professor Schiff highlighted viable areas for US-ICC cooperation once the relationship warms. He told ISN Security Watch: “My assumption is that the US has all kinds of information, in all the areas of the ICC’s operations being generated by intelligence and other sources [...] and as far as we know publicly that information has not been shared with the ICC.”

The professor noted satellite images and cell phone intercepts in particular, arguing that such information, if material, could strengthen the prosecutor’s case against al-Bashir.

Discrete diplomacy

The US administration has reacted to Khartoum’s retaliation with diplomatic engagement. Obama tapped retired Air Force General J Scott Gration as his special envoy to Sudan and dispatched him in early April. Gration held talks with Sudanese officials and returned promising “friendlier” US-Sudanese relations, reasoning that this is the best avenue to a political settlement. According to an 8 April news report, he also gave Khartoum 30 days to resolve the expulsion issue. Gration went back to Sudan on 6 May to assess Khartoum’s commitment.

US Senator John Kerry (MA-D) also traveled to Sudan in April. Upon returning to Washington, Senator Kerry gave an interview with National Public Radio (NPR) and said that a deal had been brokered with the Sudanese to readmit some of the aid agencies. He also published an editorial in the Boston Harold entitled “Diplomacy has chance in Sudan.”

On 6 May, Khartoum announced itself willing to admit “new” aid agencies (this may entail simply repainting the doors of agency vehicles), but concerns linger that all services may not be restored. UN humanitarian chief John Holmes welcomed the move.

Attempting a strategy of discreet diplomatic engagement first is shrewd – all parties save face and are therefore more likely to sign up to a deal. However, the present government in Khartoum is notorious for stonewalling and may renege on promises of action.

Action entails first and foremost securing the readmission of the expelled humanitarian aid agencies. It further calls for guaranteeing Khartoum’s adherence to the Comprehensive Peace Agreement (CPA) that ended the 20-year North-South civil war; advancing peace talks on Darfur, for example by way of the ongoing Qatari forum; and securing al-Bashir’s cooperation with the ICC arrest warrant.

A contingency plan

If Khartoum elects to stonewall, Obama should consider employing his normative leverage. It is Obama’s most valuable asset and it could make a difference.

The tide may even be turning in the Islamic world. In a recent televised Doha Debate, a Muslim audience voted 55 to 45 percent in favor of sending al-Bashir to The Hague.

Obama could stigmatize al-Bashir. He could convey the message that doing business with the present government in Khartoum is reprehensible. Obama could also pressure the AL and the AU to renounce their support for al-Bashir, and encourage them to follow the South African and Botswanan examples.

Normative politics may also be a sagacious way to encourage China – Khartoum’s protector-in-chief at the UN Security Council – to temper its defense. Beijing cares about image politics. Normative pressures likely convinced China to abstain on UN Security Council Resolution 1593, which referred the situation in Darfur to the Prosecutor of the ICC in the first place. Obama, however, should avoid targeting Beijing directly. Such an approach is fraught with pitfalls; indirect pressure is preferable.

Time is ticking. Rations and medical supplies are running low. If Khartoum stonewalls, Obama should consider speaking up.

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?ots591=4888CAA0-B3DB-1461-98B9-E20E7B9C13D4&lng=en&id=100004

The Climate Refugee Challenge

Published August 11, 2009 Climate Change Leave a Comment

Climate change must be considered from a security perspective as it portends to generate millions of climate refugees, rendering the issue of ‘environmentally induced migrants’ a leading 21st-century global security challenge, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 14 Apr 2009

The chief obstacle in marshalling resources to curb climate change lies in clarifying the abstract nature and inconsistent onset of the issue. When and where will climate change occur? How long does the world have to react? Will climate change necessarily be bad for everyone?

Obscurity fuels skepticism, which in turn delays action. Considering climate change from a security perspective allays this quandary. Climate change portends to generate millions of climate refugees, imperil human security and threaten regional and international stability.

Rising sea levels, coastal erosion, the increased incidence of severe weather events, encroaching desertification and water shortages, all pose a threat to livelihoods. The ramifications of climate change are manifold; they incorporate, nevertheless, an unmistakable north-south component. Those least equipped to cope will likely be those most affected.

Numbers expected to ‘double’

In 2007, the United Nations High Commissioner for Refugees (UNHCR) reckoned it served some 31.7 million persons of concern under its mandate. This figure included 11.4 million political refugees, but did not take into account persons displaced by environmental change.

Projections on climate refugees vary widely. According to an UNHCR estimate, climate or environmental refugees totaled roughly 25 million in 1995. Professor Norman Myers of Green College, Oxford University, has put forth other often-cited estimates. By 2010, Professor Myers forecasts the 25 million figure to double to 50 million. He counsels, nevertheless, that “the 1995 estimate of 25 million environmental refugees is cautious and conservative.”

By 2050, most observers project climate refugees to swell into the range of 150 to 200 million. If accurate, these figures readily surpass those of conventional political refugees.

Not-so-trite semantics

Albeit popular in the press, the term “climate refugee” enjoys no legal authority. The 1951 UN Convention Relating to the Status of Refugees is the core treaty of international refugee law. Article 1 defines a refugee as any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” The definition does not afford binding legal protection to environmentally displaced persons, and focuses instead on political refugees and refugees of violent conflict.

A 1967 Protocol later amended the 1951 Convention and removed geographic and time constraints, rendering the convention a more universal document. Climate refugees, however, remained outside the legal framework. The UN world recognizes this dissimilarity and employs a verbose working definition instead – “environmentally induced migrant.”

The result puts humanitarians and environmentalists compassionately at odds. Humanitarians argue their limited resources are already overstretched. Environmentalists note that climate change and consequently environmental displacement are byproducts of human-led industrialization. Sheltering those victimized by climate change is a moral and security imperative.

Governments, academics and NGOs are exploring measures to close this loophole, particularly in the run-up to the UN Climate Change Conference in Copenhagen from 7-18 December. The near-term prospects, however, remain unpropitious.

An adaptation fund focusing on least developed countries (LDC) and other developing states is to go on line soon. It was established under the United Nations Framework Convention on Climate Change (UNFCCC). All the same, Dr Koko Warner of the United Nations University Institute for Environment and Human Security (UNU-EHS) told ISN Security Watch: “[It is not] clear whether issues such as resettlement or migration will actually be eligible for adaptation funding. Right now, the conversation is a little too early.”

Professor Frank Biermann of the Vrije Universiteit in Amsterdam explained to ISN Security Watch that “politically speaking, we are now in the process of agenda setting…an agenda around climate refugees is forming, but this needs maybe a decade until [it] is really institutionalized in the political process, in the form of legal agreements, funding structures and implementation programs.”

In a December 2008 article in Environment magazine, Professor Biermann and researcher Ingrid Boas made the case for a global protocol to deal with climate refugees. In his conversation with ISN Security Watch, Professor Biermann underscored, “We propose a fund that is specifically there for climate refugees.”

Resettlement easier said than done

Eventually, to avoid the most adverse of scenarios, resettlement and funding schemes will be needed. Civil society is leading the charge. Due to their proximity to the Pacific islands, the governments of Australia and New Zealand have become early targets of pressure.

The right to resettlement, however, begs a fundamental question: How does the international community distinguish between victims of climate change and casualties of unsustainable development? Professor Biermann explains that although this distinction may be useful in the developed world, elsewhere it is unfitting. “It is difficult to say for developing countries [...] you can’t tell the Egyptians its your problem that you settled in the Nile [Delta], because this what they have been doing for the last 5,000 years.

“[That] is why we make the distinction between climate refugees and other refugees – because of the moral link between causation and consequence. Rich industrialized countries, they have been responsible for the largest part of this problem.”

Any resettlement, nevertheless, will likely be onerous. Displaced populations may be forced to take up residence in foreign countries, straining cultural traditions and in certain cases the very existence of their national identities. Refugees, never mind their genesis, are rarely regarded as a blessing. They necessitate costly assistance and their presence – albeit through no fault of their own – frequently engenders political strife with local communities, all the more reason for drafting resettlement schemes early on.

Sea change for developing countries

Those living near low-lying coastal areas are most exposed. The Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) expects sea levels to rise anywhere from 9 to 88 cm by 2100. (Note: Some regard this estimate as too conservative). Of a projected global population of 9 billion in 2050, just under one-third will live within 96 kilometers of the coasts.

Some idyllic small island states – many members to the Association of Small Island States (AOSIS) – are at risk of disappearing entirely. The atolls of Tuvalu lie just 4.5 meters above sea level. A sea level rise of one meter threatens flooding, crop destruction and fresh water contamination. President Anote Tong of Kiribati told the UN he expected his country to become uninhabitable in 50 years, arguing: “Our very lives are at stake.” Maldives President Mohamed Nasheed has publicly expressed his interest in relocating the country.

Large river deltas are another imperiled area. In Bangladesh, one of the lowest-lying countries in the world, locals are contemplating ways to move their livelihoods onto boats. Bangladesh stands to generate 20 million climate refugees by 2030. Sections of the eastern coast of China, the Niger Delta region, The Netherlands and Venice, among others, face increasing prospects of flooding.

The US Gulf Coast, in addition to being a victim of coastal erosion and rising sea levels, has as of late demonstrated the dangers associated with the increased incidence of severe weather events.

Fresh water shortages, encroaching desertification and declining food production in equatorial regions represent other sources for concern. This has already manifested itself in East Africa. The conflict in Darfur, which has left an estimated 300,000 dead and 2.7 million displaced, arose in part because of encroaching desertification, scarce grazing opportunities for livestock and resource competition. Climate change has forced an estimated one million pastoralists in Kenya to renounce their livelihoods. Over the past 100 years, Kenya has fallen prey to 28 major droughts. Their frequency is increasing.

Central and Eastern Asia will likely experience significant fresh water shortages. India, Pakistan, China and the Central Asian countries all rely on river systems fed by glacial waters that originate in the Himalayas. Receding glaciers equal diminishing water supplies.

Setting priorities a priority

Climate refugees exemplify the human security challenges associated with climate change. Even though, as Professor Biermann points out, the discussion on climate refugees remains in its infancy, priorities lie ahead for the international community and developed countries in particular.

If 1.5 to 2 percent of the global population has the potential to find itself on the move by 2050, the international community must make headway in defining legally who does and does not constitutes a climate refugee. It is also incumbent on the international community to draft and approve comprehensive resettlement and funding schemes. If the unavoidable, yet predictable security perils of climate change are to be mitigated, orderly resettlement will be of paramount import.

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?ots591=4888CAA0-B3DB-1461-98B9-E20E7B9C13D4&lng=en&id=98861

UBS: Banking on Secrecy

Published August 11, 2009 Banking Secrecy Leave a Comment

UBS’ gall blights Swiss banking secrecy and ignites the debate over offshore tax havens, while Bern mounts a defense to save what it can, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 18 Mar 2009

They could have stayed home, waited for the money and profited handsomely. Instead, in the mad dash to make cash, UBS experimented. With its misdeeds now exposed, a Swiss national value stands blighted. And Bern is forced to defend itself in an unpleasant row.

Union Bank of Switzerland (UBS) is the world’s largest wealth management firm. At its apogee in mid-2007, UBS managed assets north of US$2 trillion. The global economic crisis has forced UBS to write down more than any other European bank, US$50 billion plus. The bank has groveled for loans from both the National Bank of Switzerland and the Singapore government. The latest scandal precipitated a massive boardroom reshuffle.

The financial sector is a cornerstone of the Swiss economy. According to the website of the Swiss Federal Department of Foreign Affairs, the financial sector contributes to over 10 percent of Swiss gross domestic product (GDP) and employs roughly 6 percent of the country’s workforce. Estimates suggest Switzerland is the single largest offshore center, caching just under one-third the total offshore assets of the world’s high net-worth individuals (HNWIs). (Typically, any person or family with investable assets in excess of US$1 million constitutes an HNWI.)

The Road to the Courthouse

Instead of operating in the US exclusively by way of its registered wealth management arm, UBS dispatched unlicensed client advisors from Switzerland, possibly on as many as 3800 meetings. They assisted US citizens with funneling money into offshore accounts and hiding incomes from the US Internal Revenue Service (IRS). Internal e-mails leaked to the press confirm UBS understood its behavior to be criminal.

Client advisors employed nefarious tactics. They dubbed clients with code names, made calls using pay phones, traveled with encrypted computers, received training in counter-surveillance techniques, and claimed on US immigration forms that their trips were for personal leisure rather than business. The US Justice Department estimates UBS helped American HNWIs stash in the neighborhood of US$14.8 billion.

The affair first came to light when in June 2008, Bradley Birkenfeld, a US citizen and former UBS employee, himself indicted for tax fraud, cut a deal with US tax authorities. His cooperation alleged that over the period 2002 to 2007 UBS helped American HNWIs commit massive tax fraud.

On 1 July 2008, US authorities initiated a “John Doe summons” against UBS in a Miami criminal court. Their aim: to learn the names of what they suspected to be some 19,000 US citizens banking with UBS. Eight months later, on 18 February 2009, UBS admitted guilt and entered into a deferred prosecution agreement. In exchange, the Swiss Financial Market Supervisory Authority (Finma), with the approval of Swiss Federal Councilor Hans-Rudolf Merz – who oversees the financial dossier – ordered UBS to release the names of some 250 to 300 US clients suspected of meeting the threshold for tax fraud in Switzerland. UBS also paid a US$780 million fine and pledged to exit the US wealth management business.

The deferred prosecution agreement, however, stipulated ancillary conditions. The US would still pursue a civil suit to disclose the names of what is now believed to be some 52,000 US clients. Were UBS to lose the suit or fail to comply, the US reserved the right to reopen criminal proceedings.

The stipulation has grown into a major bone of contention. The Swiss government views it as a fishing expedition, illegal under Swiss law and an existential threat to banking secrecy and has ordered UBS not to comply. The US claims it is simply trying to audit taxpayers, and if necessary, recover back taxes. In the words of Senator Carl Levin (D), who is spearheading the initiative in the US Congress, “This kind of conduct, which actively facilitates tax evasion, amounts to a declaration of war by offshore secrecy jurisdictions against honest hard-working tax payers.

“We’re determined to fight back and end the abuses inflicted on us by those tax havens.”

The Swiss up in Arms

Back in Switzerland, the public chastised Merz for permitting selected information exchanges. He defended himself in front of his party, the FDP/Liberal center-right coalition, arguing that banking secrecy does not shield against blatant cases of tax fraud. Not all were convinced. Many asked themselves, moreover, why diplomats had made no progress during the initial phase of the investigation from July 2008 to February 2009.

On 6 March, Merz convened a group of experts to determine what aspects of banking secrecy could be reformed and enumerated Switzerland’s options: give up banking secrecy altogether, remain steadfast or seek compromise. The Federal Council opted for the latter.

Merz advocated early on the need to make concessions to safeguard banking secrecy. The left-of-center Socialist Democratic Party (SP) welcomed efforts in this direction. The center Christian Democratic People’s Party (CVP) voiced its understanding. The right-wing Swiss People’s Party (SVP), the largest in Parliament, called instead for retaliation.

As Levin put it, the Swiss covet banking secrecy. “The Swiss hold out bank secrecy as a national value. In the way Americans prize freedom and democracy, the Swiss claim that bank secrecy is essential to protecting individual privacy.” Switzerland legally anchored banking secrecy in Article 47 of the Banking Law of 1934. Paradoxically, outside pressure played a role in its codification.

Swiss banking secrecy, which has existed either implicitly or at the cantonal level for roughly 300 years, was written into federal law because of experiences with the economic turmoil of the Great Depression. Suspicions of snooping Nazis and the ‘Paris Affair’ – a scandal in which French authorities tried to recover taxes from their own country’s elite – confirmed the need for federally guaranteed banking secrecy. Most Swiss still deem banking secrecy to be an integral element of an individual’s right to privacy. In a 1984 referendum, 73 percent of Swiss voted to uphold it. An 11 March 2009 opinion poll by the Swiss Bankers Association concluded that 78 percent of Swiss citizens support the preservation of bank-client confidentiality.

In practice, of course, the Swiss financial community profits considerably from banking secrecy. Yet as Vogler argues, it alone cannot explain Switzerland’s financial allure. A high degree of political stability, Switzerland’s sound monetary policy, and the stability and easy convertibility of the Swiss Franc also play their part.

The Swiss argue quietly, moreover, that they are just one among many, competing in an international business worth trillions and governed by tax arbitrage. Numerous other countries also offer incentives to attract HNWIs and other large concentrations of wealth. Morality, the argument goes, is a poor metric.

The trust, a model that emerged from the Anglo-Saxon tradition, offers a similar arrangement to banking secrecy. An irrevocable trust can achieve significant tax breaks, similar if not akin to those afforded by banking secrecy. Moreover, incurious islands, some under the jurisdictions of the US and the UK, provide offshore banking services close to home. Among their ranks are the US Virgin Islands, Anguilla, Bermuda, the Cayman Islands and the Isle of Man.

The US state of Delaware is also a frequent target of criticism, with 63 percent of all Fortune 500 companies and more than 50 percent of all publicly traded companies in the US incorporated there. The US Government Accountability Office estimated in January 2009 that many publicly traded US companies, some even Washington bailout recipients, have offshore holdings. Joseph Stiglitz, the Nobel prize-winning US economist, who heads a UN-sponsored panel charged with making recommendations for reforming the international financial architecture, has expressed his concern over not only offshore banking, but also opaque onshore centers.

Bern Scrambles to React…

Tax treaties exist between the US and Switzerland that set the parameters for information exchanges and double taxation limits. The dilemma with information exchanges, however, is one of the chicken and the egg. Switzerland distinguishes between tax fraud and tax evasion: Tax fraud is a criminal offense, while tax evasion is a civil infraction. The former involves downright lying on tax forms. The latter entails omitting some of the truth.

Under the existing treaty regime, in order to release names and remain in compliance with Swiss law, the authorities at Finma must have convincing evidence of tax fraud. In the case of tax evasion, no information is shared. Any US effort to obtain financial details hinges on providing Finma with a name and evidence of tax fraud, effectively tying the US’ hands but for a few exceptions.

US and EU pressure over the past month, nevertheless, has convinced Switzerland that reforming banking secrecy and embracing diplomatic negotiations are the only viable ways forward.

Switzerland has sought out good company. Officials from Austria and Luxembourg – countries that also have banking secrecy policies – stated on 9 March they backed Switzerland in its row with the US. Czech Foreign Minister Karel Schwarzenberg, a dual Czech and Swiss citizen, argued to the Neue Züricher Zeitung (NZZ) that people should not try to “break” Swiss tradition. His country presently holds the rotating EU presidency.

Switzerland has also started to prime diplomatic channels. Federal Councilor and Justice Minister Eveline Widmer-Schlumpf traveled to Washington DC to meet her US counterpart, Attorney General Eric Holder on 2 March. Upon arrival, a Holder surrogate received her. The attorney general previously represented UBS in legal proceedings, creating a conflict of interest and forcing him to forgo talks. Swiss Foreign Minister Micheline Calmy-Rey met briefly with US Secretary of State Hillary Clinton on 6 March in Geneva.

In addition to making the diplomatic rounds, Switzerland may emphasize its material leverage. The Good Offices of Switzerland protect US interests in Tehran and Havana, as well as of late Russia’s interests in Georgia and vice versa. Switzerland is also considering accepting inmates from the Guantanamo Bay detention center for the US.

UBS’ capital management and investment banking businesses employ roughly 25,000 people in the US. A source, who prefers to remain anonymous, but is intimately familiar with the bank’s US portfolio told the ISN Security Watch, “These businesses are sound, not yet profitable, but solvent. And unlike UBS’ wealth management arm, no noteworthy fraud.”

Holder’s conflict of interest is a harbinger of what probably lies underneath. If Switzerland releases the names of some 47,000 American HNWIs individuals (this was the latest figure hinted at by UBS’ Chief Financial Officer Mark Branson at a 4 March congressional hearing in Washington DC) the names are likely to include prominent personalities in business and government, or in other words, America’s elite.

Bern’s most immediate challenge, however, is to avoid getting blacklisted at the G20 London Summit on 2 April. French President Nicholas Sarkozy and Germany’s Angela Merkel have both expressed their support for stigmatizing Switzerland and adding it to the OECD’s uncooperative tax haven blacklist. Rumors abound that a new draft of the OECD blacklist names Switzerland.

…and Relents

On Friday, 13 March, the Federal Council yielded and adopted a more permissive standard for information exchanges in line with OECD rules. The move came on the heels of Liechtenstein and Andorra announcing that they too would ease banking secrecy laws in response to international pressure.

The Swiss government no longer distinguishes between tax fraud and tax evasion for foreigners. It will have to renegotiate numerous treaties. As before, however, automatic information exchanges are forbidden. A foreign country suspecting its citizen of tax fraud must first furnish Swiss authorities with satisfactory particulars to justify releasing a name, a potentially subjective sticking point. For Swiss citizens, the distinction between tax fraud and tax evasion persists.

The coming weeks will reveal whether the Swiss Federal Council compromised sufficiently to dodge the OECD blacklist. They will also make known whether diplomacy can settle the Miami civil suit. Regardless, UBS’ gall – a patent transgression of US law – has challenged Switzerland’s sovereignty, ignited the debate over offshore tax havens and undermined the reputation of Switzerland’s banking services.

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?ots591=4888CAA0-B3DB-1461-98B9-E20E7B9C13D4&lng=en&id=97855

Geoengineering: Cloudy science clears

Published August 11, 2009 Climate Change Leave a Comment

As the fight to curb climate change dithers, manipulating the climate through the ‘junk science’ of geoengineering may offer a boon, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 23 Feb 2009

When does junk science turn sound? Perhaps when it concerns climate change and geoengineering. It’s a risky proposition, yet the likelihood of missing the window to curb climate change is growing, and a geoengineering contingency plan may prove useful.

Geoengineering entails the large-scale manipulation of climate processes to curb or limit the effects of global climate change. Proposals focus on increasing the earth’s albedo, limiting the amount of sunlight that strikes the earth, and reducing the concentration of carbon dioxide (CO2) in the atmosphere – the chief greenhouse gas (GHG).

Industrialization, first attempted by the British in the 19th century and then proliferated throughout the world, can be thought of as a giant geoengineering experiment of sorts, just unintentional and in reverse. Humans have worked diligently to extract carbon from the ground and to burn it to produce energy. This excess carbon now needs to go back underground or into the oceans, lest global temperatures continue to increase.

The facts

The projections for climate change offer a sobering reality. The concentration of CO2 in the atmosphere during the pre-industrial age measured 280 ppm. That has increased dramatically to form the inverted and now familiar hockey stick graph. In 2008, according to measurements taken at the Mauna Loa Observatory in Hawaii, the concentration of CO2 in the atmosphere attained 386 ppm. It continues to increase at the rate of slightly more than 2 ppm per year.

The 2007 IPCC Fourth Assessment Report asserted that in order to stabilize the concentration of CO2 in the atmosphere below 400 ppm, the world would have to reduce emissions by 85 percent to 50 percent by 2050. So doing, nevertheless, still commits the world to a 2 – 2.4 degree global increase in temperatures and a .4 to 1.4 meter rise in sea levels. By 2100, the report estimates, sea levels could swell anywhere from 9-88 cm depending on the scenario. These models, however, only consider sea level rises due to thermal expansion of the oceans, and do not take into account melting of the Greenland and Antarctica ice sheets. The estimates therefore could be low.

Some concur. Dr James E Hansen from the NASA Goddard Institute for Space Studies in New York is among the most vocal. In a 2007 article, Hansen asserted that the global climate system might be approaching a tipping point. Tipping points occur when climate change achieves a new state or plateau that triggers positive feedback loops. The summer melting of the polar ice cap, which serves to reflect much of the sun’s energy back into space, and the thawing of the Siberian tundra, which stores large quantities of methane gas, another warming agent, could accelerate climate change and lead to more rapid sea level rises than forecast.

The Republic of Maldives is taking such concerns to heart. Member of the Alliance of Small Island States (AOSIS), Maldives has set aside funds in its budget to save up for a new home. Lying just a meter or two above sea level, most of the islands in the Maldives archipelago could disappear, forcing the population to resettle.

Dithering

This reality raises pressing security concerns. Roughly one-third of the world’s population, 2.75 billion people, will live within 96 kilometers of the coast by 2025. Rising sea levels could generate large numbers of climate refugees, endanger global stability and put pressure on inland settlements and water resources. (This map reveals the impact of rising sea levels and the capacity for dislocation.)

Politically, curbing global warming is nearly intractable. The profound lack of urgency is due in large part to the imperceptibility of long-term climate changes. Yet other factors also contribute. A collective action problem plagues the individual level of analysis. The low price of fossil fuels, at least for the moment and relative to alternatives, permits individuals to consume prodigally and hinders the emergence of political pressures for reform.

At the national level, established interests such as the utility and oil industries, as well as others, are notorious for lobbying vigorously to steer clear of costly regulations. And in the international arena, the clash between developed and developing countries and their respective responsibilities to reduce emissions stymie progress.

Moreover, the estimated costs of any emissions reduction scheme further suppress appetites for reform. The 2006 Stern Review, an often-cited study, estimated that 1 percent of GDP would have to be invested to avoid the worst effects of climate change. Two years later, Sir Nicholas Stern revised his estimates and announced 2 percent of GDP may be necessary to compensate for observed accelerations in climate change.

Yet more than almost any other issue, this global problem necessitates a global solution. The diplomatic record is inauspicious. From the 1992 United Nations Framework Convention on Climate Change (UNFCCC) to Kyoto, on to Bali, and soon on to Copenhagen, reluctance has prevailed. The US delegation to Bali under the former Bush administration capitulated just minutes before the conference’s close and under significant pressure from other delegations, agreeing ultimately to continue talks to finalize a new multilateral treaty to replace Kyoto in Copenhagen in December 2009.

The new US administration appears more amenable. On the White House website, US President Barack Obama states that his environmental policy is to reduce GHG emissions by 80 percent by 2050. True to form, he mentions no details. Yet his disposition remains propitious.

The schemes

The prospective costs of geoengineering schemes, conversely, amount to a fraction of the costs of reducing emissions. David G Victor, a professor at Stanford University and an adjunct senior fellow at the Council on Foreign Relations, noted in a November 2008 article in the Oxford Review of Economic Policy that “early estimates suggest that the discounted present cost of a geoengineering program extended into perpetuity is of the order of $100 billion, which compares favorably with the $1 trillion order-of-magnitude costs for mitigation.”

Several geoengineering schemes have been suggested. One is to increase the earth’s reflectivity or albedo by spraying sulfur dioxide or synthetic aerosols into the stratosphere. Another idea, set forth by Professors Stephen Saltner and John Lantham, is to spray salt into the troposphere using a flotilla of Flettner vessels to cloud-seed, which would generate additional clouds and reflect more sunlight back into space.

As of yet, salt is not considered a pollutant. But sulfur dioxide, which causes acid rain, has already been the target of international regulation. The notion of “whitening” the surface of the earth, i.e. painting roofs white, has also been brainstormed. Its impact, however, remains dubitable.

To decrease the amount of sunlight striking the planet, some have considered deploying massive sunshields into space. The obstacles to overcome are multitudinous and the unintended consequences could be grave.

Finally, a number of proposals have focused on actually removing CO2 from the atmosphere, so-called “carbon sequestration.” Plans include fertilizing the oceans with iron to spur phytoplankton growth and planting more trees. Both would remove CO2 from the atmosphere automatically while undergoing life processes. The problem with fertilizing the oceans, however, is surging acidification, which dissolves the shells of marine animals and destroys coral reefs, a first line of defense against coastal erosion.

The experts

Experts remain divided on geoengineering’s final merits, but interests are piqued. Researchers at the University of East Anglia (UEA) in the UK concluded the first comprehensive assessment of the climate cooling potential of different geoengineering schemes in late January 2009. They reckon that “enhancing carbon sinks could bring CO2 back to its pre-industrial level, but not before 2100 – and only when combined with strong mitigation of CO2 emissions.”

Moreover, “stratospheric aerosol injections and sunshades in space have by far the greatest potential to cool the climate by 2050 – but also carry the greatest risk.”

Not to be outdone, scientists at the Royal Society in the UK launched their own study into the potential for various geoengineering schemes. The chair of the Royal Society working group undertaking the study, Professor John Shepherd, noted, “Some of these proposals seem fantastical, and may prove to be so. Our study aims to separate the science from the science fiction and offer recommendations on which options deserve serious consideration.”

Dr Ken Caldeira from the Department of Ecology at the Carnegie Institution for Science stated in a testimony before the British House of Commons: “We need a climate engineering research and development plan. The widespread desire for the “good life” afforded by economic growth and development places us increasingly at risk of profound and widespread climate damage […] prudence demands that we consider what we might do if cuts in carbon dioxide emissions prove too little or too late to avoid unacceptable climate damage.”

Elsewhere, a May 2008 workshop on geoengineering at the Council on Foreign Relations highlighted the potential benefits of unilateral geoengineering. If the international political process to curb climate change stays bogged down, a small group of wealthy, like-minded nations could conceivably undertake geoengineering projects on their own and mitigate exposure to the most pernicious effects of climate change. However, the workshop cautions that without coordination, some states may decide to undertake dangerous geoengineering projects that could do more harm than good.

Fund the science

With US President Obama set on curbing anthropogenic warming of the earth’s atmosphere, geoengineering deserves further consideration. Studies in the UK are under way. The US – historically the world’s foremost emitter – should follow suit. Providing added funding for the science is the first step to ascertaining the true potential, both good and bad, of any geoengineering scheme.

There looms, at last, the risk of moral hazard – relying exclusively on geoengineering as a means to tackle climate change as technological solutions begin to crystallize. Obama should use his normative influence to caution emphatically against taking the easy way out.

Geology Professor Steve Wojtal, Oberlin College, told the ISN Security Watch: “I am afraid that the global society will need to draw upon the full range of options to address the issue of climate change effectively. I believe, however, that there are a wide range of unintended consequences that can arise when we attempt to use what I call a ‘technological fix’ to address a problem that has arisen as a result of rampant technology.”

Geoengineering may help, but it’s no Plan A.

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?ots591=4888CAA0-B3DB-1461-98B9-E20E7B9C13D4&lng=en&id=96814

Bringing down al-Bashir

Published August 11, 2009 International Criminal Justice Leave a Comment

An ICC indictment against Sudanese President al-Bashir appears to be forthcoming, but arresting the terror of Darfur could prove complicated, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 26 Jan 2009

An official indictment against Sudanese President Omar Hassan Ahmad al-Bashir is expected sooner rather than later, possibly before the end of February, which would make the embattled leader the first head of state indicted by the International Criminal Court (ICC).

ICC Chief Prosecutor Louis Moreno-Ocampo applied for an arrest warrant on 14 July 2008 for charges that include 10 counts of war crimes, crimes against humanity and genocide. The issuance of an arrest warrant will mark a milestone for the ICC, the people of Darfur and international criminal law in general.

The Darfur conflict started in February 2003. In an attempt to take advantage of the political opening generated by negotiations on the Comprehensive Peace Agreement (CPA) – which tenuously ended the 20-year North-South civil war in Sudan – the Justice and Equality Movement (JEM) and the Sudan Liberation Army/Movement (SLA/M) launched attacks on Sudanese government installations. Their grievances focused on Khartoum’s economic and political marginalization of Darfur; issues aggravated by encroaching desertification and increased resource competition.

Khartoum’s response was devastating. It funded the janjaweed militias to carry out, in collaboration with the armed forces of the government of Sudan, a heinous campaign of violence against the people of Darfur. The conflict probably remains – save for the Second Congo War – the international community’s most neglected of the past decade.

President al-Bashir came to power in 1989 when, as a colonel in the Sudanese army, he orchestrated a bloodless coup that ousted democratically elected prime minister Sadiq al-Mahdi. The Revolutionary Command Council for National Salvation was installed and al-Bashir was declared its chairman. In 1993, al-Bashir dissolved the council and appointed himself president.

On 31 March 2005, the UN Security Council adopted Resolution 1593 that referred the situation in Darfur to the ICC. Two of the UNSC’s permanent members, the US and China, abstained from voting. The US, actively opposed to the ICC under the Bush administration but committed to pursuing justice in Darfur, did not block the resolution’s passage. China, which maintains significant economic investments in Sudan’s petroleum sector, expressed its preference for a national prosecution, but normative pressures likely persuaded it to abstain as well. With Resolution 1593 adopted, Ocampo opened his investigation.

The prospects for an indictment appear to have unsettled al-Bashir. In October 2008, the GoS embraced a Qatari initiative sponsored by the Arab League and the African Union to negotiate a peace settlement. Shortly thereafter, on 12 November 2008, al-Bashir ordered an immediate ceasefire to the Darfur conflict. He has called for similar ceasefires before, and they all proved fleeting. These expediently timed examples, nevertheless, suggest some limited vulnerability to normative pressures.

Ocampo’s warrant request will likely be approved, but the charge of genocide may be dismissed. In his application, the chief prosecutor noted that al-Bashir “masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity.” In the event Ocampo fails to meet the evidentiary threshold for genocide, he could still move forward with the war crimes and crimes against humanity charges. His reputation, however, would take a hit.

It would come in addition to his office’s mismanagement of potentially exculpatory evidence in the case against Thomas Lubanga Dyilo, former leader of the Union of Congolese Patriots (UPC). This misstep delayed Lubanga’s trail and raised suspicions concerning Ocampo’s prosecutorial integrity.

When an indictment is handed down, al-Bashir’s reaction will be closely watched. The possibility remains that he may retaliate by authorizing another campaign of violence.

The eventuality illustrates the peace versus justice debate, and raises the prospects for an Article 16 suspension. Article 16 of the Rome Statute permits, by vote of the UNSC, the suspension of an ICC investigation for one year and is renewable. Both France and the UK have hinted at supporting an Article 16 suspension, but their final intentions remain uncertain. China probably wishes it had vetoed Resolution 1593 when it had the chance. Now it finds itselflobbying UNSC members to support a suspension. A US veto could in any case block such an initiative. It remains to be seen how the Obama administration will act.

The janjaweed and the armed forces of the government of Sudan have ravaged Darfur. Of a population of 6-7 million, the UN claims that possibly 300,000 plus Darfurians have been killed, up to 2.6 million displaced, and 4.7 million affected by the conflict. Given al-Bashir’s ruthlessness and insincerity, as well as the broad measure of neglect the international community has already demonstrated on Darfur, delaying the pursuit of justice will only exacerbate the plight of Darfur, not improve it.

Once an arrest warrant is issued, one critical matter then remains outstanding: How to go about apprehending al-Bashir? As of yet, no plan exists.

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?ots591=4888CAA0-B3DB-1461-98B9-E20E7B9C13D4&lng=en&id=95736

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