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From The Bermuda to The So San
We should have kept the Scuds.


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Last month, the interception of a North Korean ship, The So San, carrying 15 Scud missiles bound for Yemen, seemed like another major success in the U.S. war against terror. Indeed, far from being a mere tactical accomplishment, the action seemed to fit nicely into the president’s recently announced National Strategy to Combat Weapons of Mass Destruction, which features a strong interdiction component, making it one of those rare Washington events where words and deeds meshed.

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Unfortunately, this sense of optimism quickly turned to puzzlement when the United States released the ship, allowing delivery of its deadly cargo to Yemen, based on the assumption — articulated by White House spokesman Ari Fleischer — that there was no basis in international law for seizing the ship or its cargo. Fleischer’s remarks were subsequently elaborated on by an unnamed senior administration official. That official, quoted in the Washington Post, argued that, while “we would like to have more tools to deal with this type of situation,” because “we had no legal basis to seize the cargo,” such situations would have to be dealt with through preemptive attacks against those rogue countries or movements that seek to acquire weapons of mass destruction. Although the administration could well have based this decision on geopolitical imperatives alone (President Saleh’s government is an important, if fragile, ally in the war on terror), its reference to legal requirements suggests that Washington, at least for the time being, has needlessly tied its own hands and missed an opportunity to deploy another effective tool against al Qaeda and other parties that are now waging war against the United States or may do so in the future.

In fact, given the ongoing state of armed conflict in which the U.S. is combating terrorists worldwide, international law offers an ample basis upon which to detain The So San, and perhaps to confiscate its cargo. While the ultimate resolution of this matter would have likely rested with the U.S. courts, the existing case law, and international custom, provide good reasons to believe that a Bush administration decision to seize the cargo as contraband of war might have been sustained. As a general rule, a belligerent like the United States is entitled to search neutral shipping at sea, and to confiscate war material intended for a hostile port, or for a hostile belligerent through a neutral port.

The application of this principle is straightforward when a neutral vessel, carrying a contraband cargo that is clearly manifested for a hostile belligerent, is seized at sea. Thus, had The So San’s missiles been consigned to Osama bin Laden, or one of his lieutenants, the United States could obviously have condemned the cargo. Unfortunately, the facts are almost never this clear cut. Here, the Yemeni government, after initial denials, confessed ownership of the Scuds. If this declaration is taken at face value, then the administration’s decision to release the cargo was, indeed, legally compelled. The United States is not at war with Yemen.

However, centuries of experience have taught us that vessels shipping contraband routinely conceal the true destination of their cargoes, carrying false ownership papers, fraudulent cargo manifests, and a variety of national flags. The vital issue in such cases is where, in reality, is the cargo headed. Given the near sanctity attached to the “freedom of the seas” principle and the abiding respect for property rights, courts of maritime nations have amassed a wealth of experience dealing with this set of issues. For example, during the American Civil War, the U.S. Supreme Court dealt with a case involving a putative British ship, The Bermuda, carrying a cargo of cannon, small arms, and powder, among other things, ostensibly to the Bahamas. Based on all of the available evidence, however, the southern states were the real destination of this material. Accordingly, Chief Justice Salmon P. Chase noted that “[t]he interposition of a neutral port between neutral departure and belligerent destination has always been a favorite resort of contraband carriers and blockade-runners. But it never avails them when the ultimate destination is ascertained. A transportation from one point to another remains continuous, so long as intent remains unchanged.” This rule, which looks to the reality of the maritime transaction involved and its consequences, rather than the mere paperwork, was upheld in numerous prior and subsequent cases.

In assessing the status of a captured cargo, the courts have traditionally looked at all of the relevant facts, including the available documents, the nature of the cargo (in addition to military supplies hardly necessary in the Bahamas, Bermuda also carried a range of highly revealing wares, including a “variety of articles, stamped with portraits and legends, thus: ‘Jeff Davis, Our First President. The right man in the right place’” and “On to Washington! Bull Run”), and the actions of the ship’s crew. In The So San’s case, numerous facts suggest that the Scuds may well have been intended by their North Korean shippers for al Qaeda hands, Yemen’s official protestations notwithstanding. To begin with, the ship’s behavior was highly suspicious. It displayed no flag and, upon being challenged, it refused to stop and submit to boarding. In addition, the vessel carried false manifest, listing its cargo as one of cement, destined for Djibouti. Moreover, the Yemeni’s government at first disclaimed any knowledge of the shipment and reaffirmed its earlier pledge, circa 2001, to the United States not to acquire any Scuds.

Aside from these facts, which are specific to The So San, just like the courts have done in all of the maritime seizure cases, the broader context of this affair ought to be examined. It is well-known that al Qaeda has an important presence in Yemen and the neighboring countries. In 2000, al Qaeda attacked the U.S.S. Cole, then berthed in Aden harbor. While following our successful regime change in Afghanistan, the Yemeni government finally began to assist the United States, its ability to control its own territory is uncertain. The recent, successful, U.S. attack on a group of al Qaeda leaders in Yemen reveals both President Salah’s current willingness to cooperate, and the extent to which al Qaeda operatives freely roam his country. Meanwhile, according to Newsweek, the SA-7 missiles fired last month in Monbassa at an Israeli airliner, were stolen from a Yemeni government arsenal.

In short, even if the Yemen government did not itself intend to hand the Scuds to al Qaeda, the possibility that al Qaeda’s penetration of Yemen would have made them ultimately available to that organization was surely not lost on the North Koreans. To be sure, perhaps President Saleh’s lawyers would have been able to convince the U.S. courts that the Scuds were indeed his and his alone. Unfortunately, the administration’s precipitous decision to release the ship ensured that this was not to be. Even worse, basing the decision on supposed legal principles, rather than diplomatic expediency, may have turned one discrete policy decision into an unnecessary rejection of traditional international-law principles that might have proved very handy in the future.

The issues involved transcend the current U.S. campaign to destroy al Qaeda and Taliban. The recent disclosures that Iran and North Korea have dramatically accelerated their nuclear-weapons-related efforts, combined with Saddam Hussein’s continued defiant campaign to protect his chemical, biological and nuclear programs, underscore the extent to which rogue states seek to offset, through the acquisition of weapons of mass destruction and the means of their delivery, American military superiority. There is also evidence that such states frequently collaborate with each and with third parties in their elicit endeavors. Significantly, given the limitations of their indigenous manufacturing capabilities, rogue states invariably import from abroad specialized equipment, machinery and delivery systems. To get to them, however, this cargo must traverse international sea lanes and air space. While having a robust preemption doctrine constitutes the cornerstone of an American response to this grave threat, being able to intercept and confiscate contraband material flowing to the rogue states would be of great military and diplomatic value. To illustrate just one major benefit, the widespread knowledge that the U.S. is committed to an aggressive global maritime interdiction and cargo seize campaign, especially in situations involving false manifests, should help deter such countries as Pakistan or Ukraine which have evidenced willingness in the past to ship contraband to rogue states. Meanwhile, fear of exposure might convince some rogue states not to commence nuclear weapons programs.

Moreover, flexibility has always been an important and useful attribute of American strategy. During the Cold War-era, the U.S. decision-makers, after some debate, came to believe that the ultimate “massive retaliation” option was not sufficiently credible to address all threat scenarios and enriched both its declaratory nuclear strategy and its actual employment policy to include a variety of highly flexible options. They would be well-advised to hue to the same approach today. The fact that, under the administration’s current legal thinking, the U.S. can tie the legality of future maritime cargo seizures to the exercise of the preemptive option itself, is useful, but still does not fully cure the problem. This is the case because there well may be diplomatic and political reasons why the U.S. may want to low key a particular cargo seizure, instead of casting it as a part of the preventive strike against a given rogue state or movement. Given the strategic stakes involved, the administration would be well-advised to reconsider its initial view that there is no basis in international law for confiscating The So San’s deadly cargo.

— David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush Sr. administrations.



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