Saturday, March 26, 2016

Terror Attacks in Brussels - A Deep-rooted Malaise

Four days after one of Europe’s most wanted terror suspects - Salah Abdeslam, the only surviving terrorist of the November 13 attacks in Paris - was captured in a joint French-Belgian police operation in Brussels, multiple bomb attacks left the Belgian capital reeling.

Two blasts, minutes apart, tore through the departures area of Zaventem airport — the main Brussels airport — shortly after 8 a.m. local time. 

 Within an hour, an explosion hit a train near Maalbeek metro station, close to the EU institutions and around 350 meters from where European leaders hold their summits. 

 Belgian authorities confirmed one explosion at the airport was caused by a suicide bomber. A second was caused by a bomb detonated from a distance.

Two blasts targeted the main hall of Zaventem Airport at around 8:00am (0700 GMT), with prosecutor Frederic Van Leeuw saying the assault likely involved at least one suicide bomber. 

A third hit Maalbeek metro station near the European Union's main buildings, just as commuters were making their way to work in rush hour.

"A man shouted a few words in Arabic and then I heard a huge blast," airport baggage security officer Alphonse Lyoura told AFP, his hands bloodied.

There was no immediate claim of responsibility for Tuesday's attacks, and Belgian Prime Minister Charles Michel said there was no immediate evidence linking key Paris suspect Salah Abdeslam to them. After his arrest Abdeslam told authorities that he had created a new network and was planning new attacks.

The capture of Abdeslam in Belgium was hailed as a breakthrough in the police investigation into the November 13 terrorist attacks in Paris. However, there was no let up in the hunt for other accomplices of Abdeslam who were identified as Mohamed Abrini, a 30-year-old of Moroccan origin and 24-year-old Najim Laachraoui who had travelled to Syria in 2013. According to investigators, Laachraoui had been using the false name of Soufiane Kayal - the name with which he rented an apartment in Auvelais in Belgium and from where the terror attacks were planned. Laachraoui also went under the same false name when he crossed the border between Austria and Hungary on September 9th when he was travelling with Abdeslam and Mohamed Belkaïd, a third terror suspect who was killed in a shoot-out with police in Belgium last Tuesday.

There is bewilderment about the choice of Belgium as a target of ISIS latest attack. Apart from the fact it houses the headquarters of NATO and EU it is not a frontline military power; on the contrary it is the logistical hub of the Islamic State and serves as a launch pad from where IS could carry out its strikes throughout the European continent. While it may not be possible to know why IS targeted Brussels the following factors made Brussels vulnerable to a terror strike.

Belgium’s Complex Polity
Belgium has the trappings of western political structures, but in practice those structures are defective and have long been so. The academics Kris Deschouwer and Lieven De Winter gave an authoritative account of the development of political corruption and clientelism in an essay published in 1998. Almost from the beginning, they explain, the state suffered problems of political legitimacy.

Belgium came late, by western European standards, to statehood. In Belgium there were already existing allegiances to the locality, and although Belgium’s liberal elite threw off Dutch rule in 1830, it could neither uproot nor supplant these attachments to the local community, often intertwined with the Roman Catholic Church. So the formal structure of a Belgian state was erected but framing within it the cultural, social and welfare structures of the Church’s state within a state. Ranged against the Christian Democrats and the socialists were the anti-clerical and middle-class liberals, who constituted the third corner in Belgium’s political triangle. They did not have the same popular support, or the equivalent social structures. That was followed in due course by the development of a socialist/labor movement with its rival structures for mutual assurance, cultural associations. Ranged against the Christian Democrats and the socialists were the anti-clerical and middle-class liberals, who constituted the third corner in Belgium’s political triangle. They did not have the same popular support, or the equivalent social structures.

Eventually, the formal state developed its own services in areas like education, health care and other expressions of a welfare state, but it was obliged to do so respecting (and indeed using) the structures of the political parties. 

Administrations were divided by their political allegiances. Politicians were masters of patronage, with jobs and money at their disposal, and, as a consequence, public service suffered.

Although attempts at reforms were made, in many cases those reforms were not deep-rooted, but involved formalizing the division of spoils, for instance, to allocate control of certain jobs between different political parties.

Belgium’s unique geographical and linguistic status

Belgium is a small country of about11 million people which is divided by language and culture. Slightly more than half of Belgium's population is Flemish. They speak Dutch and live in the north, in Flanders. Less than half are French and live in the southern region of Wallonia. The framework of the Belgium government and the fact that the country's security and intelligence agencies are divided internally makes it relatively easier for these kinds of attacks to happen.

The country at every level and almost every public service -- schools, hospitals, even policing -- is split along linguistic lines. There are French schools and Flemish schools, French hospitals and Flemish hospitals.

Brussels is the capital of Belgium and Flanders, but Brussels is French-speaking.

Lack of intelligence sharing and poor co-ordination internally and within the EU

At least one of the attackers Brahim (or Ibrahim) el-Bakroui was deported by Turkey to the Netherlands in 2015 with a clear indication that he was a jihadist. Yet no action seems to have been taken either by the Dutch or the Belgian authorities. There have been repeated calls for a pan-European intelligence agency that would effectively share information from different countries. Members of the European Parliament denounced, again, the lack of coordination.

According to experts, even within states, intelligence-gathering agencies – France alone has 33 of them – have trouble cooperating. 

"Is it not in the nature of intelligence agencies to keep the information for themselves?" asked Jean-Marie Delarue, who until recently headed the French agency that reviews surveillance requests from these intelligence services.

"Information is power," Delarue said in a recent interview. "In intelligence, one only has enemies, no friends."

Cross-border cooperation would probably have helped prevent Tuesday's attacks.

Europe has had a "counter-terrorism coordinator" for much of the last 10 years, but this fact-finding institution was dismissed as "weak" in a recent French parliamentary report and as "having no operational capacity to offer."

In the absence of an effective centralized European counter-terrorism agency, it is up to the member states to cooperate with one another. Yet they do so only haphazardly.
There are plenty of databases, for instance, but the information they contain is either incomplete or inaccessible, numerous officials complained.

A fundamental one that contains criminal suspects' surveillance records — the Schengen Information System, or SIS — is only weakly supported by most of the member countries. The French parliamentary report last month said the French internal intelligence agency "is the only one that regularly feeds this database" and criticized "the very spotty nature of the information furnished by" other European nations.

"There is nothing automatic about what goes into the SIS," said Francois Heisbourg, a French intelligence expert. He said a decade of European squabbling over the issue had still not resulted in the creation of a minimal tool, the Passenger Name Record, of airplane travelers.

It is not just the main SIS database that is woefully lacking.

Some 5,000 EU citizens are known to have traveled to Iraq and Syria to join the Islamic State and other groups. Yet the Europol database "contains only 2,786 verified foreign terrorist fighters entered by EU member states," the counter-terrorism coordinator pointed out in a recent report.

"I think the biggest problem lies in the different levels of professionalism among the security services in Europe," according to Guido Steinberg, of the German Institute for International and Security Affairs.

The French parliamentary report ruefully acknowledged, without citing a specific assault, systematic "gaps in the transmission of information, which, if they had been realized in time, could have forestalled the attack" in Paris.

The cross-border cooperation failures in the case of the November Paris attacks are a telling case study. Belgium was unable to apprehend Salah Abdeslam, the Belgian-born French citizen of Moroccan descent, one of the key plotters of the Paris attacks swiftly considering the fact that he was stopped the morning after the attack near the Belgian border but was not detained. 

Geographical proximity
Brussels' proximity to major European cities and historic lack of internal cohesion makes it simpler for jihadists to move about without much impediment. Brussels, the capital of the European Union, is just a short drive away from a host of major cities: Paris, Amsterdam, Cologne, Strasbourg, Frankfurt and Berlin can be reached within a matter of few hours by road or rail.

Belgium’s  Jihadi link
Many extremists in Belgium have been inspired by the once-powerful radical group Sharia4Belgium, which targeted vulnerable and disenfranchised communities marred by rampant crime and unemployment.

The group gained prominence in 2010 and was disbanded five years later after a trial that resulted in its designation as a terror organization. [Sharia4Belgium was a Belgian radical Salafist organisation which called for Belgium to convert itself into an Islamist state. In February 2015 the group was designated a terrorist organization by a Belgian judge, and its spokesman, Fouad Belkacem, was sentenced to 12 years in prison].

Today, Belgium has the highest per capita of foreign fighters of any Western European country. Of the 5000-6000 Europeans who fought in Syria up to 550 are reportedly Belgian nationals. 

Over the last two years there had been a Molenbeek link to almost all the terrorist incidents in Europe including the May 2014 shooting by Mehdi Nemmouche at the Jewish museum in Brussels, Charlie Hebdo attack (January 2015), the failed attack by Ayoub el-Khazzani in August 2015 on a Thalys train. Salah Abdeslam, one of the key plotters of the Paris attack was arrested from Molenbeek a few days ago. Thus all the perpetrators of the myriad terror attacks had ties to Molenbeek.  

The inability of Belgian security services to control the flow of fighters traveling to Syria/Iraq to fight alongside IS, and -- perhaps more worryingly -- their failure to track them on return, only indicates that many jihadists have gone unnoticed. Authorities in several neighboring countries believe other attacks are likely. The European Union needs to have re-look at the migration policy and Schengen regime and to have in place an intelligence coordination committee for dissemination of intelligence inputs to thwart attacks in future.

Friday, February 12, 2016

Termination of treaties

There are number of ways by which treaties may be terminated or suspended. The methods of termination or suspension of a treaty and its effects are enumerated in Articles 45, 54, 56, 57, 59-62, 70 and 72.

Termination by consent and by treaty provision

Articles 54 and 57 stipulate that a treaty may be terminated or suspended in conformity with the provisions of that treaty or at any time by consent of all the parties after consultation with the other contracting states. Where, however, a treaty does not contain any provision regarding termination or expressly provide for denunciation or withdrawal, Article 56 provides that a state may only denounce or withdraw from that treaty where the parties intended to admit such a possibility or where such right is implicit by the nature of the treaty.

A treaty may terminate if its purposes and objects have been fulfilled or if it is limited in time and that time has elapsed.

Article 58 of the Convention stipulates that two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone, if:
(a) the possibility of such a suspension is provided for by the treaty; or
(b) the suspension in question is not prohibited by the treaty and:
(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;
(ii) is not incompatible with the object and purpose of the treaty.

Article 59 of the Convention provides that where the parties to a treaty conclude another treaty relating to the same subject matter, then the earlier treaty will be deemed to have been terminated where it appears that the matter is to be governed by the later agreement or where the provisions of the later treaty are so incompatible with those of the earlier treaty that the two treaties are not capable of being applied at the same time.

Termination or suspension as a consequence of breach

An obvious corollary to the breach of a treaty is that the party adversely affected by the breach is entitled to terminate the treaty. However, this right as in the case of a breach of contract may be waived by the party affected. Where a breach occurs in a bilateral treaty, the aggrieved state may consider the breach as a ground for terminating the treaty or suspending its operation wholly or in part.[1] Where a material breach occurs in a multilateral treaty the breach entitles the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either in the relations between themselves and the defaulting state or as between all the parties. Secondly, where a party is specially affected by the breach, it is entitled to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state. Article 60 (3) states that a material breach of a treaty consists in either a repudiation of the treaty not sanctioned by the Convention or the violation of a provision essential to the accomplishment of the object or purpose of the treaty. The latter portion of sub-clause 3 was applied in the Rainbow Warrior Case[2] where pursuant to an agreement between New Zealand and France (concluded in the form of exchange of letters) of 9 July 1986, France was under an obligation to keep two of its agents, guilty of bombing the Greenpeace ship the Rainbow Warrior in July 1985, on the French military facility island of Hao for a minimum period of three years was held to have constituted the object or purpose of the above agreement. France permitted the agents to leave the island (for medical reasons) before the expiry of the three-year period.

Supervening impossibility of performance

Where the performance of a treaty is rendered impossible due to the permanent disappearance or destruction of an object indispensable for the execution of the treaty, a party may invoke the provisions of Article 61 and validly terminate or withdraw from it. If however, the impossibility is temporary, it may be invoked for suspending the operation of the treaty. If impossibility is as a result of a breach by a party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty, then impossibility may not be invoked by that party as a ground for terminating, withdrawing from or suspending the operation of the treaty.

Rebus sic stantibus or fundamental change of circumstances

The doctrine rebus sic stantibus is a principle of customary international law that provides that where a fundamental change of circumstance has taken place since an agreement was concluded, a party to that agreement may withdraw from or terminate it. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda – promises must be kept. Article 62 of the Convention incorporates this principle although this doctrine is never mentioned by name. Article 62 provides the only two justifications of the invocation of rebus sic stantibus: first, that the circumstances existing at the time of the conclusion of the treaty were indeed objectively essential to the obligations of treaty (sub-paragraph A) and the instance wherein the change of circumstances has had a radical effect on the obligations of the treaty (sub-paragraph B).

If the parties to a treaty had contemplated for the occurrence of the changed circumstance the doctrine does not apply and the provision remains in effect. Clausula rebus sic stantibus only relates to changed circumstances that were never contemplated by the parties. This principle is clarified in the Fisheries Jurisdiction Case (United Kingdom v. Iceland, 1973)[3]. In that case, in 1972, Iceland attempted to extend its exclusive fisheries zone from 12 miles to 50 miles. United Kingdom objected to the extension of the zone by Iceland and the dispute resulted in what came to be known as the “Cod War” The International Court of Justice in that case observed:

It is, notes the Court, admitted in international law that if a fundamental change of the circumstances which induced parties to accept a treaty radically transforms the extent of the obligations undertaken, this may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty.

In this case the Court considered whether the agreement of 1961 between Iceland and the United Kingdom, certain provisions of which were in issue in the proceedings before the Court, had come to an end due to fundamental change of circumstances affecting fisheries and fishing techniques and legal opinion on the extent of the jurisdiction. Insofar as the fundamental change of circumstances affecting fisheries and fishing techniques were concerned, the Court did not find it necessary to decide whether the changes were fundamental, and held that in any case the alleged changes could not affect the only provision in the agreement with which the Court was concerned, providing for submission of disputes to the Court. The change of circumstances to give rise to a ground for invoking termination of a treaty, it was also necessary that it should have resulted in a radical transformation of the extent of the obligations still to have been performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from the one originally undertaken. The Court did not consider that condition to have been satisfied. As to the change in the legal opinion on the extent of the fisheries jurisdiction, the Court observed that ‘changes in the law may under certain circumstances constitute valid grounds for invoking a change of circumstances affecting the duration of a treaty’. Nevertheless, the Court held that the fact Iceland may have entered into the agreement in order to obtain immediate recognition of a 12-mile exclusive fisheries zone, and that such a 12-mile zone may no longer be in dispute between the parties, did not mean that the agreement could be regarded as terminated. The object of the agreement was wider than mere recognition of the 12-mile zone and although some of the motives which may have persuaded Iceland to enter into the agreement might not be in existence, it did not justify the repudiation of those parts of the agreement, the object and purpose of which had remained unchanged. The Court also noted that the agreement was in part executed and in part executor, one of the parties having obtained benefit from the executed provisions of the treaty. Hence it was inadmissible to allow that party to put an end to obligations which were accepted under the treaty by way of a quid pro quo for the provisions which the other party had already executed.

Consequences of termination or suspension of a treaty

Article 70 provides for consequences of termination of a treaty:
1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:
(a) releases the parties from any obligation further to perform the treaty;
(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.

Termination of a treaty, thus, unless otherwise provided, releases the parties from any performing any future obligations, but does not affect any right, obligation or legal situation created through execution of the treaty prior to its termination. If a treaty is declared void because it conflicts with a peremptory norm there is a duty cast on the parties to eliminate as far as possible the consequences of any act performed in reliance on such offending provision and with bringing their mutual relations into conformity with the peremptory norm of general international law.

Article 71(2) provides that if a treaty becomes void and terminates under article 64, the termination of the treaty, the parties are released from any further obligation to perform the treaty, but the rights, obligations and legal situation of the parties created prior to the termination are not affected, provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law.

[1] Article 60 (1)
[2] Rainbow Warrior (New Zealand v France) 1990 82 ILR 499
[3]  ICJ Rep (1973) p3