December 17, 2002
"A Pirate Is a Pirate"--An Op-Ed by Prof. Ruth Wedgwood
(This essay was originally published in the Monday, December 16, 2002, edition of the Wall Street Journal.)
A Pirate Is a Pirate
By Ruth Wedgwood, professor of law
There are reasons aplenty why Washington might wince at its recent discovery in the Arabian Sea. A piratical ship -- sailing without a flag -- turned out to have a payload of 15 North Korean Scud missiles, warheads, and rocket propellant, hidden in the hold under sacks of cement.
The ship's manifest said the cement was bound for Djibouti. One might have guessed Iraq. But soon enough, the president of Yemen turned up, wearing a crocodile smile. It was his cargo, if you please, and he'd like to take delivery of the Scuds, bought and paid for. After all, the Scuds were "defensive" and what's more, he promised, Yemen would "not transfer these missiles to anyone." No matter that the Yemeni leader had lied before the capture at sea, disclaiming any knowledge of the ship or its cargo.
It's a tough neighborhood, in the Horn of Africa. The area has long been a free-fire zone for al Qaeda terrorists. Osama's men blew up the American embassies in Kenya and Tanzania in 1998. They bombed the USS Cole in a Yemeni harbor in 2000. A French oil tanker was targeted last October, and a resort in Mombasa, Kenya, was truck-bombed in November. We don't always get to choose our allies in the attempt to face down al Qaeda, especially in that region.
Not surprisingly, then, the White House has allowed the devil its due. The Scuds were sent along to Yemeni President Ali Abdullah Saleh, crediting his solemn promise to keep the missiles under lock and key. President Saleh has cooperated as of late in the war against terrorism -- allowing American special forces to search out members of al Qaeda hiding in the mountainous no man's land of Yemen.
An American Predator aircraft recently located and targeted one of al Qaeda's top military planners as he drove down a track in the arid countryside. Yemeni forces took casualties in an earlier firefight against the al Qaeda leader, trying to make an arrest the old-fashioned way. Yemen's umbrella for American military operations has tightened the vise on al Qaeda's new diaspora.
Accommodating Yemen can be explained in adult terms, by an American president known for his realism. But White House spokesman Ari Fleischer rather gilded the lily when he recently argued to reporters that it was international law that forced Washington to back off from the Yemeni seizure.
Mr. Fleischer announced to White House legal beagles that there was "no clear authority" to seize the Scud-carrying cargo vessel, nor any "provision under international law prohibiting Yemen from accepting delivery of missiles from North Korea."
Mr. Bush's spokesman may want to seek a second legal opinion, in case this happens again. The United States could have seized both ship and cargo, destroyed the missiles, and sent the crew packing.
It is true, of course, that neither Yemen nor North Korea belong to the Missile Technology Control Regime, a voluntary consortium of countries seeking to counter proliferation. But Yemen still breached a binding promise. Yemen gave a solemn assurance to Washington in July 2001 that it would not import North Korean missiles. This pledge was a negotiated quid pro quo in the attempt to avoid U.S. sanctions for earlier dealings with Pyongyang. An undertaking doesn't have to have wax seals or plenipotentiary ceremonies in order to be enforceable. A letter to the American ambassador will do nicely.
Mr. Fleischer's second cause of action is the legal doctrine of "unilateral declaration." The International Court of Justice, sitting in the Victorian peace palace in The Hague, confirmed two decades ago that unilateral statements made in solemn circumstances can be binding. (The court dismissed a challenge to French nuclear activities in the South Pacific, saying it was moot because Paris had already made a public pledge to end testing.) Even without a quid pro quo, a solemn declaration is the tie that binds. Here, the Yemeni letter to the U.S. ambassador said it was "neither the policy nor practice of the government of Yemen to import" Scud missiles from North Korea.
As a third arrow in Mr. Fleischer's new legal quiver, there is the law of piracy. It is not considered polite, in international shipping circles, to sail on the high seas in ghost vessels, without a flag, flaunting a false cargo manifest. The cargo and vessel could be subject to forfeiture under the doctrine of piracy and prize, especially since the cargo owner arranged the surreptitious mode of transportation. Yemen would be welcome, of course, to harass North Korea for the refund of its purchase monies.
Fourth, and most important, there is the law of self-defense. President Bush recently called attention to the altered strategic landscape. Weapons of mass destruction controlled by radical nonstate-actors and rogue regimes pose an acute threat to the American people, and may warrant pre-emptive action. Under the president's new national security doctrine, one need not wait for the North Korean or Iraqi launch code to be executed before countering the threat.
Elihu Root, the Nobel Prize winning ur-multilateralist of the early 20th century, described the "right of self-protection" to an audience at the American Society of International Law in a presidential address. The former U.S. secretary of state proclaimed the sovereign right of a state to take early action to "prevent a condition of affairs in which it will be too late to protect itself."
The Bush and Root doctrine was supplemented last week by a follow-on white paper about weapons of mass destruction. "Effective interdiction," said the White House in theory, "is a critical part of the U.S. strategy to combat WMD and their delivery means."
Efficacy may be in the eyes of the beholder. But surely you don't throw back the contraband after it is seized, particularly where the seller and purchaser have questionable records. Yemeni feelings are not enough reason to knock the legal struts out from under the president's new strategy. If a maritime quarantine against offensive weapons was legal enough for John Kennedy, some might say, it should be legal enough for Ari Fleischer.
Law aside, no one will begrudge the administration's decision to handle the North-Korean-Yemeni shipwreck in a relatively low-key way, at least for the moment. The presidential election in South Korea is slated for Dec. 19 and an escalating crisis could cause slippery footing for both candidates. The Iraqi confrontation has a potential kick-off date in late February, as U.N. inspectors report back to the Security Council.
And finally, the tramp steamer has to be countered in the context of other North Korean misdeeds. Pyongyang continues to stonewall inspections of the Yongbyon plutonium reactor in the northwest, in a 10-year running breach of the Nuclear Non-Proliferation Treaty. Pyongyang's program to produce highly enriched uranium was smoked-out only when Assistant Secretary of State Jim Kelly confronted North Korean negotiators earlier this fall. And Kim Jong Il announced last week, in a completely brazen move, that he would "restart" the Yongbyon reactor without international safeguards, despite the Framework Agreement of 1994.
The only hopeful sign is a new "P-3" alliance -- China and Russia have joined the U.S. in seeking to use diplomatic means to persuade Pyongyang to stand down. Northeast Asia is a crowded quadrant, and Kim Jong Il's attention-seeking escalation is not good for the burgeoning investment climate in China or Russia.
As cartoonist Milt Caniff might have said, a pirate is a pirate. If the Yemeni scuds later turn up in an Iraqi bazaar, or in al Qaeda's kit bag, we should not want for legal theories to indicate our martial displeasure with President Sadeh.
Ms. Wedgwood, a professor of international law at Yale and Johns Hopkins Universities, serves on the Secretary of State's Advisory Committee on International Law and the Pentagon's Defense Advisory Board.