Archive for the ‘Barack Obama’ Category

REPRISE — The fruits of pacifist foreign policies: Aggression in Ukraine, atrocities in Syria

Tuesday, October 21st, 2014

Viewing the developing Russian-Ukrainian war from the vantage point of March 3, 2014, it is striking to note how much of what has happened since was in effect a tragedy foretold. It has indeed been a tragedy foretold, like in a Greek tragedy where the audience (here, some in the audience) know the outcome, but the chief protagonists don’t, as they proceed to go about playing their tragic roles.

The question today (October 21, 2014), of course, is whether we can see further tragedies about to unfold and yet may still act to avert what the Greeks might have considered to be irreversible Fate.

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REPRISE — The fruits of pacifist foreign policies: Aggression in Ukraine, atrocities in Syria; Merkel’s fact-finding mission—a last chance to avert disaster?,” The Trenchant Observer, March 3, 2014.

First published on March 3, 2014

The new hybrid pacifism

The new, hybrid pacifism of Barack Obama and NATO countries has been obscured by Obama’s use of drones, and military operations begun long ago but now winding down in Afghanistan.

The military intervention of France and NATO in Libya pursuant to a U.N. Security Council mandate represented an exception to the general pacifism which characterizes Obama’s foreign policy, an exception and now rare case (outside of Africa) where military action is undertaken pursuant to authorization by the U.N. Security Council.

Other interventions by France and U.N. and African Union forces in Mali and the Central African Republic have reflected the paradoxical nature of current pacifist policies, which are hybrid in nature, admitting the use of military force to stabilize situations in African countries when there is a Security Council mandate or an invitation by the government of the target country.

However, often hiding behind simplistic interpretations of legal prohibitions, in effect ruling out the strong use of military force against powerful opponents when real blood and treasure must be put at risk, the new hybrid pacifism has the effect of ceding the playing field to ruthless countries such as Syria, Iran and Russia, allowing war crimes, crimes against humanity, and military invasions to effectively go unopposed.

On legal interpretations and justifications, see Sir Daniel Bethlehem QC, “Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention,” EJIL Talk, September12, 2013.

The U.S. and other NATO countries, reeling from their losses in Iraq and Afghanistan, with little to show for their sacrifices, don’t want to live in a world where real military force may have to be used.

So they rule it out. U.S. and NATO military leaders, seemingly unaware of the impact of their words on adversaries, loudly proclaim they are ruling out the possible use of military force. This has occurred not only in the Ukraine, but also and repeatedly in Syria. These statements, like those of U.S. military leaders stressing the difficulty of taking military action in Syria, are essentially aimed at domestic audiences and allied governments while naively ignoring their impact on opponents.

Furthermore, it is painful to see military and NATO leaders allow themselves to get drawn into political debates, in public. These discussions should be conducted behind closed doors, without leaks to the press about what is going on or what leaders are thinking with respect to military action.

In Syria, this new, hybrid pacifism has been obscured behind cynical acceptance of Kofi Annan’s illusory six-point peace plan for Syria (and the promise of political settlement at the Geneva I and Geneva II peace conferences), and behind the simplistic legal argument that the U.N. Charter prohibits any military action (except self-defense) without the approval of the Security Council, even to stop the commission of war crimes and crimes against humanity on a massive scale, as in Syria.

Under this interpretation, Russia would have been allowed to install nuclear missiles aimed at the United States during the Cuban Missile Crisis in October, 1963, the genocidal war in the former Yugoslavia would never have been halted, and Serbian ethnic cleansing in Kosovo in 1999 would have been allowed to proceed.

In a future world (after the Permanent Members’ veto has been eliminated), adherence to such a norm would be essential. In the meantime, we must rely on the closest approximations possible, limiting any such actions to the most narrowly circumscribed cases, where there is overwhelming support by the nations of the world for the action to be undertaken, and preferably when it is carried out under the authorization of another international organization.

In any event, this new form of hybrid pacifism has taken hold in America and NATO countries. As a result, Bashar al-Assad has been left free to commit his atrocities, which include not only the bombardment of civilian populations including hospitals and medical personnel, but also the arrests, torture, and executions in the night which do not make the daily news, and of which those who follow events closely only hear much later from international organizations when the latter report, for example, that maybe 80,000 people have “disappeared”.

Another, highly significant result has been Russia’s aggression against the Ukraine in February and March, 2014. This aggression follows that in Georgia in 2008, which NATO and the West allowed to stand, conducting business as usual with Russia afterwards. To be sure, Georgia was not blameless in the evolution of events. However, in the end Russian aggression through the illegal use of force across international frontiers was allowed to stand, without serious consequences for Russia.

Russia’s calculus in the Ukraine might have been very different had Anders Rasmussen, the Secretary General of NATO, not assured his members–and Russia–that options involving the use of force by NATO were not under consideration, and if, for example, NATO countries had put their military forces on alert, and NATO naval and air assets been strategically deployed within the region.

Now, however, absent a determined will to deploy force against the illegal threat or use of force, the pacifist leaders of the U.S. and Europe, and other NATO countries, must now resign themselves to the depredations of a Russian leader willing to invade neighboring countries in utter defiance of international law, and indeed the foundations of the post-WW II international legal and political order.

Given the current pacifism of the West, and given the fact that major consequences for Russia have already been triggered by its military intervention in the Ukraine, there is little to dissuade Putin from similarly using his military power to bring Georgia and Moldova (and other former Soviet Republics) back within the Russian “sphere of influence” or community of states.

China supports Russia, suggesting that it too might in the future be willing to settle its disputes with its neighbors through the use of military force.

Nonetheless, we need to recall certain hard-won lessons from history.

International law and order are in the end indivisible, for if the prohibition of the threat or use of force can be defied with impunity by one country in one part of the world, surely it can be defied by other countries elsewhere. When Argentina invaded the Falkland Islands in 1983, it is worth recalling, the military operation was named “Operation Goa”, recalling the precedent set by India when it invaded the Portuguese colony and enclave of Goa in 1961.

Obama’s pacifism, and that of Europe and NATO, have left a vacuum in Europe which Vladimir Putin appears ready to fill with Russian military forces. Even if his actions are delusional, and make no sense in reality as the latter is understood in the West, they have already had momentous consequences which will reshape economic and political relations in Europe and beyond for decades to come.

Further, Putin’s actions have produced a situation in which the Ukraine has become a tinderbox, while madmen are running around with torches in their hands.

War is by its very nature wholly unpredictable. What could happen, for example, if Russians started killing Ukrainians, and Poland decided to send military forces to support Kiev in exercise of the right of collective self-defense?

Impact on Nuclear Proliferation

One impact from Russian intervention in Ukraine is of exceptional significance for the future of international peace and security. Following Russia’s violation of the 1994 Budapest Memorandum guaranteeing the territorial integrity, sovereignty and political independence of the Ukraine in exchange for its surrender of its nuclear weapons, it is inconceivable that any arms control agreement with Russia could be ratified by the U.S. Senate so long as Putin remains in power–and probably long thereafter.

See Peter Spiegel, “Ukraine and the West: an international legal primer, Financial Times (Brussels Blog), March 2, 2014.

If one thinks carefully about the Russian military intervention in the Ukraine, it is obvious that Russia would have been extremely reluctant to engage in such behavior if the Ukraine still had the 1900 nuclear warheads on missiles it surrendered in 1994, when it also joined the Non-Proliferation Treaty (NPT).

One of the greatest impacts of the Russian military intervention in the Ukraine is likely to be the powerful impetus it will give to the forces of nuclear proliferation. Even in the context of the 5+1 nuclear talks with Iran, the invasion is likely to reduce the credibility of any guarantees of Iranian territorial integrity, sovereignty and political independence to near zero, at least insofar as Russia is concerned..

A Last chance to draw back from the abyss? Merkel’s fact-finding mission

There may still be a slight chance to avoid unleashing the dogs of war, what the founders of the United Nations referred to as “the scourge of war, which twice in our lifetime has brought untold sorrow to mankind” (U.N. Charter, Preamble, below).

Russia and Putin appear to be under a kind of delusional spell which seems to result from believing their own propaganda, having stirred up a public which appears eager to use military force, in scenes reminiscent of the enthusiasm for war felt among the populations of the European powers in 1914 on the eve of and during the first days of World War I.

In these circumstances, Angela Merkel’s proposal to send an impartial fact-finding mission to the Crimea and the Ukraine should be implemented immediately. Putin has told Merkel that he agrees to the proposition.

The mission could be undertaken under the aegis of the Organization for Security and Cooperation in Europe (OSCE), or even an organ of the U.N. such as the Human Rights Council where Russia does not have a veto.

At the same time, it could be useful for NATO to place some military forces on alert and move military assets into place in case a need arises for them to be used.

Russia is spewing lies about what is going on in the Crimea and the Ukraine, and seeking to provoke violence which might provide a thin veneer of legitimacy to its legal claims that it is intervening in the Crimea to protect its nationals.

These claims should be rebutted immediately in official reports published by NATO and other countries. The fact that the transitional president of Ukraine has vetoed a bill which would have revoked the 2010 language law allowing use of Russian as a second language should be made known to every citizen in Ukraine.

During the Cuban Missile Crisis in 1963, John F. Kennedy and Nikita Krushchev exchanged letters at the most critical moments of the crisis, when nuclear war was a most palpable possibility. Khrushchev sent one letter to Kennedy on Friday, October 26 which was conciliatory in tone:

If, however, you have not lost your self-control and sensibly conceive what this might lead to, then, Mr. President, you and I ought not now to pull on the ends of the rope in which you have tied the knots of war, because the more the two of us pull, the tighter the knot will be tied. And a moment may come when that knot will be tied so tight that even he who tied it will not have the strength to untie it, and then it will be necessary to cut that knot, and what that would mean is not for me to explain to you, because you yourself understand perfectly of what terrible forces our countries dispose.

–“Krushchev letter of October 26, as received in the White House,” reprinted in Larson, “Cuban Crisis”, pp. 175-80, quoted in Graham Allison and Philip Zelikow, “Essence of Decision: Explaining the Cuban Missile Crisis,” at p. 355 (2d ed. 1999).

Saturday, October 27, when an American U-2 was shot down over Cuba, a much harsher letter bearing the stamp of the Kremlin’s collective leadership was broadcast over the radio, adding new conditions to the offer in the Friday letter. Kennedy decided to ignore the second letter and to reply to the first (in what was referred to as “a Trollope ploy”, alluding to the acceptance of ambivalent gestures as a marriage proposal, in Anthony Trollope’s 19th century novels).

The West should now follow Kennedy’s example, and accept Putin’s acceptance of Merkel’s proposal for sending a fact-finding mission to the Ukraine, regardless of what he or the Russians have said since. Moreover, they should do so at breakneck speed, blasting through the diplomatic procedures that normally slow things down. The goal must be to get the first elements of the fact-finding mission on the ground in the Crimea within a matter of hours, not days. Time is of the essence.

Reports from the mission, including daily press briefings or updates, could then help defuse the war fever in Russia, affording Putin a gradual way to climb down should he become sufficiently enlightened to do so. Also worth bearing in mind is the fact that he may have unleashed organizational and bureaucratic forces which are not easily controlled, and may need time to be able to reverse course successfully when and if he comes to his senses and decides to do so.

The ends of the rope on which the knot of war has been tied must be loosened now, if at all possible, even at this late hour. German Chancellor Angela Merkel, assisted by her capable and experienced foreign minister, Walter-Frank Steinmeier, should lead the effort, with full support from the United States, France, Poland and other European and NATO countries.

The Trenchant Observer

Ommitted: Preamble to the United Nations Charter

REPRISE II: Dare anyone say it? “We applaud the courage of the Ukrainian government and people in defending public order and the sovereignty and territorial independence of the Ukraine.”

Monday, October 20th, 2014

October 20, 2014

Since the article below was written, Russia continued its invasion of the eastern Ukraine sending in Russian troops, tanks, artillery and other equipment, which participated in the fighting and rolled back some of the recent gains of the Ukrainian army. NATO decided on September 5 to establish a rapid reaction force in eastern Europe, and to reiterate the goal of each member spending 2% of GDP on defense (to be achieved within 10 years). The EU adopted harsher “Stage 3″ economic sanctions against Russia on September 5, and after some hesitation finally implemented them on September 12. The U.S. implemented parallel harsher sanctions shortly thereafter.

The Minsk Protocol was also signed on September 5, and generally halted the advance of Russian and separatists forces on Mariupol, though sporadic fighting has continued. The current situation is that of a truce which is only partially working, as Russian troops remain in the eastern Ukraine or on the border poised to dictate terms to Kiev. Vladimir Putin’s announced order to withdraw 17,000 troops from the border area, made in anticipation of the Milan summit and side meetings on October 16-18, 2014, has not produced any noticeable movement on the ground accounting to NATO’s top commander, U.S. Gen. Philip Breedlove.

Putin has had the effrontery to argue that his invasion of the Crimea was legal under international law.

Angela Merkel disputed that assertion in Milan.

The whole world should dispute that assertion, every minute of every day, until even Vladimir Putin, the dictator of Russia, get’s the point. He has no legitimacy or authority to criticize anyone. He needs to implement the Minsk protocol, all 12 steps, including the withdrawal of Russian troops.

Putin will also need to return matters to the status quo ante in the Crimea, perhaps as part of and in order to make possible a negotiated settlement of the Crimean conflict of 2014. International administration of the peninsula for a couple of years, followed by a genuine plebiscite under international supervision, represents one potential path that might be explored. As a military diktat, the invasion and annexation of the Crimea will not stand.

Following is the introduction to the REPRISE of this article and then the original article itself.

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July 6, 2014

In what may be a turning point in efforts to defend the country’s territorial integrity and repel Russia’s aggression and military intervention in the eastern Ukraine by special forces, intelligence operatives, and so-called Russian “volunteers” under their direction and control, Ukrainian forces have retaken Sloviansk and Kramatorsk and are pressing foreward with their “anti-terrorist” campaign. The so-called “separatists” withdrew first from Sloviansk to Kramatorsk, and then shortly thereafter from Kramatorsk to Donetsk.

See:

(1) Pilar Bonnet, “Los prorrusos acusan a Putin de traicionarles para mantener su poder; Los rebeldes creen que Rusia les abandona para evitar el conflicto con Occidente, El Pais, 6 de Julio 2014 (22:49 CEST).

(2) “Regierungstruppen wollen Donezk und Luhansk belagern
Die ukrainische Armee will die Städte Donezk und Luhansk blockieren und die Separatisten zur Kapitulation zwingen. Diese haben heftigen Widerstand angekündigt,” Die Zeit, 6. Juli 2014, 6. Juli 2014 (20:28 Uhr).

(3) Ukraine-Krise: Armee rückt auf Millionenstadt Donezk vor; Die Rebellenhochburg Slowjansk ist schon erobert – nun nähert sich das ukrainische Militär der Metropole Donezk. Dort halten sich prorussische Milizen zu Tausenden verschanzt. Es droht ein Belagerungszustand,” Der Spiegel, 6. Juli 2014 (17:48 Uhr).

(4) Le Monde avec AFP et Reuter, “Les forces ukrainiennes progressent vers Donetsk,” 6 Juillet 2014 (Mis à jour à 23h09)–avec carte / with map.

(5) Benoît Vitkine (Sloviansk, envoyé spécial), “Ukraine: le récit de la chute de Sloviansk, tournant de la guerre entre l’armée et les séparatistes,” Le Monde 06 Juillet 2014 (Mis à jour à 11h09)

(6) Alan Cullison (in Sloviansk) and Philip Shishkin (in Donetsk), “Ukrainian Government Troops Target Further Gains in East; Separatist Leaders Say Evacuation From Slovyansk Was Strategic,” Wall Street Journal, July 6, 2014 (Updated 11:51 a.m. ET).

(7) “A day in Sloviansk after liberation,” Kviv Post, July 6, 2014 (6:05 p.m.)(with photos).

REPRISE: Dare anyone say it? “We applaud the courage of the Ukrainian government and people in defending public order and the sovereignty and territorial independence of the Ukraine,” July 6, 2014.

First published on May 3, 2014

REPRISE published on July 6, 2014.

In the face of Russian aggression, in the last few days the Ukrainian government has shown great courage in defending public order, and the territorial integrity, political independence and sovereignty of their nation.

Their courageous actions should make the authors of the cowardly responses of the West and the broader international community feel deeply ashamed. For the latter have merely paid lip service to the defense of freedom, human rights and international law, while engaging in a policy of pacifism and appeasement in the face of blatant Russian aggression.

Nor is the duty to act to uphold the U.N. Charter, international law, and the maintenance of international peace and security solely that of the United States and the West. The abstention by Brazil, South Africa, India and other countries on the General Assembly resolution condemning the invasion and annexation of the Crimea, for example, will long remain as a black page in the histories of these countries.

The appeasement by the West and other countries is particularly clear with respect to the military invasion and annexation by Russia of the Crimea. These actions have upended the entire postwar international political and legal order. The demands of Western leaders for a restoration of the status quo ante in the Crimea have grown silent, while they have adopted no sanctions which can be realistically viewed as aimed at securing a reversal of the aggression and annexation.

In all communities, the force of law and its deterrent effect weakens when the community whose interests it protects do not act to uphold its norms.

Russia’s invasion and annexation of the Crimea, its attack on the eastern Ukraine through special operations forces and the organization, coordination and direction of pro-Russian militias and armed thugs–taking over public buildings and even towns by armed force, and its continuing threats of military intervention by massing combat-ready troops on the border poised to launch an invasion, have placed the entire postwar military, political and legal order in question in the greatest crisis of this nature since World War II.

Will anyone speak out in praise of the actions of the Ukrainian government, without which Russian aggression would triumph, and the rule of law and protection of the human rights of citizens in the eastern Ukraine would be lost?

Are Western leaders afraid to remind the world each time they speak that Russia has committed aggression in the Crimea and continues fresh acts of aggression in the eastern Ukraine?

Will they not only speak out in defense of international law and human rights, in defense of liberty and the rule of law, but also undertake immediate and concrete measures of a serious nature to come to the defense of the Kiev government and assist it in facing down Russian aggression?

Though Barack Obama and Angela Merkel and other world leaders seem oblivious to the fact, Ukrainian soldiers and security forces are today fighting to uphold the principles of the U.N. Charter and international law which guarantee their security and that of the citizens they mrepresent.

If these leaders can grasp this point, might they not do more, through really significant actions, to aid the Ukraine in its defense of their common values of respect for international law and international human rights?

The future of their countries and of the international political and legal order are in their hands. If they are leaders, and not merely followers of ill-informed public opinions on critical foreign policy matters, can and will they lead?

The Trenchant Observer

A rudderless U.S. foreign policy: Obama flounders in dealing with the Ukraine, ISIS, and Ebola

Saturday, October 11th, 2014

Draft

While the United States has finally, and belatedly, begun military actions in Iraq and Syria to slow the advance of ISIS forces, the country is still led by a White House of extraordinary incompetence. This is not about politics, but rather about the ability to formulate coherent strategies, policies and plans, and then to execute them effectively.

If this is what “driving from the back seat”means, it is a total and unmitigated disaster.

We have witnessed this disaster in the making, with Obama’s contradictory and indecisive policies toward Syria as far back as 2011 and 2012, when he refused the unanimous advice of his principal foreign policy advisers to provide military support to the Syrian opposition forces. His refusal to do so had the result of helping Syrian president al-Assad beat back the insurgents, and opened the space for the growth of what became known as ISIS, which now threatens not only Iraq and Syria but countries across the world, from Australia to the U.S. and Europe.

One element of Obama’s indecisiveness led to pulling the rug out from under Turkey in 2012 as it was poised to intervene in Syria, according to well-founded reports.

At the moment, Turkey stands over the border from Kobanê in Syria, a town with a large Kurdish population which has been coming under increasing pressure from ISIS notwithstanding U.S. and perhaps allied airstrikes and which, according to some reports, could soon fall into the hands of ISIS.

In order for it to intervene, Turkey is demanding a commitment from the U.S. that it will also include in its goals the defeat of the Syrian regime, which has caused the deaths of over 200,000 persons in Syria through barbarous atrocities including war crimes and crimes against humanity on a grand scale.

In Iraq, despite U.S. and allied coalition airstrikes, and even the use of Apache heliocopters, in addition to the successful formation of a new Shiite-led government after the departure of former president al-Maliki, reports speak of the realistic possibility that all of Anbar province could fall to the ISIS fighters. ISIS already holds a broad swathe of territory in the province.

While the U.S. has done an admirable job of putting together a coalition to fight ISIS, at least on paper, it has yet to prove that it is capable of leading and coordinating an effective military campaign and coalition war against ISIS, as demonstrated not by statistics on the number of airstrikes launched (self-regarding) but rather by strategic objectives and results obtained on the ground.

At the moment, Obama would appear to be not following the advice of his generals. When Chairman of the Joint Chiefs of Staff Martin Dempsey stated in Congressional testimony that conditions could conceivably arise under which he would advise the president to send ground combat forces to Iraq, he was immediately contradicted the following day by President Obama who, in a military setting, firmly asserted that he would not introduce combat troops into Iraq.

With respect to the Russian-Ukrainian war, Obama was so slow in reacting that the Crimea had been annexed before the U.S., NATO and the EU could get around to offering a serious response. On economic sanctions, the U.S. did succeed in getting coordinated sanctions adopted with the EU, but only after much delay. Since September 5, when the sanctions were agreed and NATO also announced the creation of a rapid deployment force, the ceasefire called for in the Minsk Protocol of September 5 has stopped the advance of Russian troops, tanks and artillery, but has proven shaky particularly in the Donetsk region and around the Donetsk airport.

Over a month after the sanctions were agreed and the Minsk Protocol was signed, Russian troops remain in the Ukraine, and neither Obama nor the EU have taken any concrete initiatives to force their withdrawal.

With respect to the Ebola epidemic, currently out of control in West Africa in Liberia, Sierra Leone and possibly Guinea, which potentially threatens the entire world, the U.S. Centers for Disease Control (CDC) have played a superb role in leading the response to he crisis on a technical, medical level. They have laid out the case that if 70% of new cases are not confined to Ebola treatment centers by November 20, the exponential growth in the number of infected individuals may reach 1.4 million in Liberia and Sierra Leone by January 20.

Obama has pledged to send 3,000 military personnel, but they will not be on the ground before November. Meanwhile the contagion of the disease continues to explode. Resources and above all the coordination of efforts have been slow to materialize on the ground. This is a situation which calls for massive and extraordinarily urgent action, but the U.S. has only said what it is going to do, and that’s it.

The common thread to these ongoing failures of foreign policy, to which many other examples could be added, is Obama’s emphasis on what the U.S. is going to do–no more, and what other nations need to do. The emphasis almost seems to be on what the U.S. is not going to do, in a world in which time is not of the essence.

The focus is self-regarding, on what the U.S. and others are going to do, and not going to do, and not on the realities of the challenge on the ground and what is required to meet that challenge within the time limits that those realities impose.

Whether with respect to the Ukraine, ISIS and al-Assad in Syria, the defense of Anbar province and beyond in Iraq, or halting the explosion in Ebola infections, we are faced with policies which include many necessary elements (e.g., the replacement of al-Maliki with the formation of a a more inclusive regime in Baghdad (a work in progress, yet to convince the Sunnis), but which are blind to the urgency of the moment, to quickly developing military advances of ISIS on the ground, or the rapid explosion in the number of Ebola cses in West Africa.

Returning to the situaiton in Kobanê, one has the impression that Obama is far more interested in winning a battle of wills with the Turks over whether to also target the al-Assad regime than he is in protecting the hundreds of thousands of human beings who will be affected by a continued failure to take effective action. The airstrikes are important, but not sufficient to achieve the goal.

Obama doesn’t seem to grasp the importance of symbolic and strategic victories or of momentum on the ground.

The Daily Star in Beirut expressed the general exasperation with Washington’s policies in the Middle East in an Editorial published on October 10. The paper wrote,

The vastly contradictory statements coming from the U.S. government over the last few days are emblematic of a wider problem: that the Obama administration apparently has no coherent strategy when it comes to Syria, and now Iraq, and is playing the whole thing by ear. But this absence of any tangible policy will have ramifications far wider than simply the countries directly involved.

Despite a campaign of airstrikes against ISIS, backed by a coalition of some 60 countries, the U.S. is confused and confusing. Secretary of State John Kerry said Wednesday that the U.S. was looking closely at the idea of a buffer zone along the border with Turkey, inside Syria. Hours later the Pentagon and the White House said option was absolutely not on the table.

This flip-flopping really makes one wonder where decisions are being made, and by whom….

(T)the mistakes of Obama’s administration have done untold and likely irreparable damage.

And the vacuum that has been left appears to have given oxygen to the most extreme and most dangerous groups around the world. The destruction and loss of life happening now across the Middle East is only the beginning. The aftershocks of current political indecisiveness will be felt for generations.

The Trenchant Observer

International law and the use of military force against groups in Syria

Tuesday, October 7th, 2014

Preliminary draft – developing

There is considerable confusion over the legality under international law of taking military action against groups and targets in Syria.

This has led some governments participating in the coalition against the so-called Islamic State (or ISIS, ISIL, or Da’eesh) to support military action within Iraq but not within Syria.

It should be helpful to clarify the different legal authorities under international law under which military force may be used in Syria.

These break down into three broad categories:

(1) Action againsr ISIL in Syria may be taken in exercise of the right of individual or collective self-defense recognized by Article 51 of the U.N. Charter “in the case of an armed attack”. ISIL has launched and is currently engaged in such an armed attack.

If Iraq issues a request for military assistance in repelling that attack, other states may use force that is necessary and proprtional to defending against the attack.

Collective self-defense is a valid justification for U.S. and allied air strikes and land action against ISIL in Syria.

With respect to Kobane, in particular, given the scale of the attack on Iraq and in response to a request from that country for assistance in collective self-defense, Turkey would be justified under international law in sending ground forces into Syria to attack ISIL forces and to repel the attack on that border city.

(2) The second justification for using military force in Syria, whether against ISIL or the Bashar al-Assad regime itself, would be to halt he commission of war crimes and crimes against humanity on a broad scale, until such time as the U.N. Security Council can take effective action to halt the commission of these crimes.

The justification is somewhat novel under international law, but it is submitted makes eminent good sense if narrowly drafted within the framework of the Security Council’s duty to implement the “responsibility to protect” resolution adopted in 2006.

See

(1) “The U.N. Charter, International Law, and Legal Justifications for Military Intervention in Syria—Obama’s Debacle in Syria — Update #83,” The Trenchant Observer, September 1, 2012.

(2) “Humanitarian Intervention in Syria Without Security Council Authorization—Obama’s Debacle in Syria — Update #24,” The Trenchant Observer, April 8, 2012.

In the case of ISIL, this would be a second legal justification, in addition to that of collective self-defense.

In the case of the al-Assad government, which has not committed an “armed attack” against Iraq, this would constitute the main legal justification for taking military action against Syria.

As set forth in considerable detail in previous articles on the legality of humanitarian intervention in Syria to halt al-Assad’s atrocities, the objective of such military intervention should be to halt the commission of war crimes and crimes against humanity by the al-Assad government, under extraordinary circumstances and then only until the Security Council can take effective action.

Whatever objections Russia may have at one time been prepared to make to such an argument, resting on an overly mechanistic interpretation of Article 2 paragraph 4 of the U.N. Charter, it is hardly now in a position to make in view of its invasions of the Crimea and the eastern Ukraine.

(3) The third category of actions involve taking military action within Syria against jihadist or al-Qaeda related groups which have not been involved in an armed attack against Iraq or, arguably, even the large-scale commission of war crimes or crimes against humanity.

Here, the weakness of the international legal arguments used by the U.S. to justify drone attacks and other uses of force outside the Afghanistan-Pakistan war theater comes fully into view.

The U.S. argument turns essentially on assertions that the war against jihadists is global in nature with the result that the war theater is also global, and that certain interptetations by the U.S. of the laws of war or humanitarian law are (1) valid within the framework of humanitarian law itself; and (2) take precedence over the prohibition of the threat or use of force against the territorial integrity or political indedendence of any state contained in article 2(4) of the U.N. Charter, which is universally recognized as a kind of “super” or mandatory law (jus cogens), from which there can be no derogation.

The legal arguments used to support this third category of military actions within Syria are widely disputed outside the U.S. government, and do not appear to be supported by a wide number and variety of states.

That is why the recent U.S. air attacks on the Khorasan group, an al-Qaeda cell deemed to be particularly dangerous, at the same time the U.S. attacked ISIL targets in Syria, created much confusion, particularly in the absence of a detailed written legal justification for either kind of attack.

What was provided was a letter to the U.N. Security Council justifying the attacks both as collective self-defense and in the case of the attack on the Khorasan group as individual self-defense by the U.S.

The latter justification consisted in the mere statement of a conclusion, and failed to address the three self-defense requirements of immediacy, necessity, and proportionality.

The Trenchant Observer

Comments are invited.

If Putin invades Mariupol and seizes a land corridor to the Crimea, what will NATO, the U.S. and the EU do?

Friday, October 3rd, 2014

Developing

Russia’s continuing aggression in the Ukraine, and continuing appeasement in the West

The ceasefire in the Ukraine established by the Minsk Protocol is being violated on a grand scale. Russian troops remain in the Ukraine, as supplies of weapons and other military assistance to Moscow’s “separatists” presumably continue.

Russian troops illegally occupy the Crimea, which Russia has purportedly “annexed” following military invasion and conquest.

There appear to be no strategies or plans in the West to make Putin disgorge the Crimea, which with full compliance with the Minsk Protocol establishing a ceasefire in the Donbas and a plan to achieve peace, might open the path for Russia to turn away from its current policies of military aggression and to cease its open defiance of the U.N. Charter’s prohibition of the use of force.

Given Russian defiance of the international law norms governing the use of force, upon which the entire structure of the United Nations is based, Putin may in the absence of a strong countervailing force cede to the powerful logic of war that would unite the Crimea with Russia proper, by conquring Mariupol and other territory between the Donbass and the Black Sea fleet based at Sevastopol.

The question of the hour is: Where is that countervailing force?

Europe is focused on the approval by he European Parliament of the cabinet or team proposed by the new EU Commission president, Jean-Claude Junker. Several of his nominees do not seem acceptable to the parliament’s elected members.

Some EU member states, including the U.K. and France, are also distracted by their military engagement as participants in the activities of the coalition fighting ISIS in Iraq and Syria.

The United States is highly distracted by its ongoing military operations against ISIS in Iraq and Syria, and the militarily grave situations that exist on the outskirts of Baghdad and in Kurdish regions in Syria close to the border with Turkey, whose parliament has just authorized military intervention in Syria.

Politicians in the U.S. are also focusing on the upcoming Congressional elections to be held on Tuesday, November 4, 2014. The Democrats, who currently control only the Senate while the Republicans control the House, are at serious risk of losing control of the Senate. If this were to happen, Barack Obama would be turned into a real “lame duck” president for the last two years of his term.

Attention is also focused on the frightening Ebola epidemic in West Africa, which has just registered its first American case in Dallas in the form of a passenger who arrived by air from Liberia. If 70% of new cases in West Africa are not confined to Ebola treatment centers by November (the current figure is 14%), the exploding number of cases is predicted to,number in the millions, with further risks of the disease being spread by travelers to other countries.

NATO is in transition, with the new Secretary General Jens Stoltenberg, the former Prime Minister of Norway, having taken office only on October 1. Not only must the Alliance proceed with rapid implementation of the decisions taken at the Wales summit on September 4-5, but also consider the potential invocation of Article 5 of the NATO Treaty by Turkey in the event it is attacked by ISIS. Further deployments of NATO troops in the East are also needed, and the issue should be receiving high-priority attention.

At the same time, the demonstrations in Hong Kong over the issue of universal suffrage have the potential, if not carefully managed by parties on all sides, to spin out of control generating responses that could be fateful not only for Hong Kong but also for the evolution of Chinese society as a whole.

In this mix of headline-gripping developments, it is easy for the Western nations to assume that the Ukraine crisis is under control and can be left to simmer on the back burner for a while.

In terms of facts on the ground, however, this is not the case. The ceasefire is not being observed in the Donetsk region, particularly around the airport where serious fighting continues. Other steps in the Minsk peace plan are not being complied with fully, if at all. Prisoner exchanges have come to a halt.

Putin’s modus operandi is to strike suddenly and with great surprise. The distraction of the Western countries, and the fact that they are not even talking about the imposition of further sanctions, may create an opportunity for Putin to strike while the West’s guard is down.

For those leaders in the West who seem to be distracted, asleep, or still in the grip of pacifism and appeasement, the central question in their minds should be:

“Why shouldn’t Putin just go ahead and invade Mariupol and seize the corridor between the Crimea and the Donbas, guaranteeing a secure overland supply route to the Crimea during the coming winter?”

See

James Rupert, “As Winter Nears in Ukraine, Will Moscow Attempt Another Strategic Invasion? Continued Attacks Show Kremlin May Be Preparing Drive Toward Crimea, Analysts Say,” Atlantic Council, September 29, 2014.

James Rupert, “Can US Support for Ukraine Help Prevent a New Russian Invasion?
Canadian Analyst Says US Should Signal Moscow To Avoid Any Assault in South,” Atlantic Council, October 3, 2014.

Mychailo Wynnyckyj, “10 reasons that a full-scale invasion of Ukraine is possible before winter,” EuroMaidan Press, October 3, 2014.

What is to be done?

The first thing that is required is for the leaders of the West to put the Russian-Ukrainian war at the top of their list of priorities.

Among the steps they should take, in order to demonstrate to Putin and Russia that a powerful countervailing force exists, are the following:

1. Take the Minsk Protocol to the U.N. Security Council and put a resolution incorporating its terms to a vote.

2. The U.S. should take the lead on further sanctions, including banning Russian banks from using the SWIFT system for the transfer of international payments.

3. The U.S. and the EU and their allies should push for decisions annulling the decision to award the World Cup to Russia in 2018.

The World Cup should not be held in a country which has launched a war of aggression against a neighboring state, annexed part of its territory seized through military conquest, and violated the fundamental human rights of the populations subjected to its control (e.g., freedom of expression, right to participate in free elections, right to life, integrity of the person, and not to be arbitrarily detained, right to due process and a fair trial),

4. U.S. provision of “lethal” military weapons and assistance to the Ukraine should commence immediately.

The White House rationale for not doing so is rooted in policies of pacifism and appeasement (fear of antagonizing the aggressor), and should be reversed now in the light of events since February.

Appeasement has not worked with Putin, and it will not work with him either now or in the future.

5. The U.S. and the EU should begin an active diplomatic campaign for support of a strongly-worded U.N. General Assembly resolution on the Ukraine, condemning Russian aggression and reaffirming the U.N. Charter’s prohibition of the threat or use of force. They should focus their diplomatic efforts in particular on South Africa, Brazil and India, and be prepared to take serious measures against states which vote with Moscow, whether with a negative vote or by abstention. The vote will count. A vote to support Russia should carry a heavy price.

6. Plans and decisions for the stationing of large numbers of U.S. and other NATO troops in Lithuania, Latvia, Estonia, Poland and Romania should be made soon, and their implementation begun on an urgent basis.

The status quo cannot be accepted, if the crumbling international order and the U.N. Charter’s prohibition of the threat or use of force are to be preserved.

The Trenchant Observer

Putin’s threats against NATO and other countries

Saturday, September 27th, 2014

There are disturbing signs that Vladimir Putin’s ambitions, following his successful invasions of the Crimea and the eastern Ukraine, have become or remain boundless.

He has threatened to take Kiev, according to EU President Jose Manuel Barroso.

He has threatened to invade Lithuania, Latvia, Estonia, Poland and Romania, in conversations with Ukrainian President Petro Poroshenko, according to EU documents relating Poroshenko’s account to EU members or officials.

He has made not so veiled threats against Kazakhstan.

Significantly, on a number of occasions, he has mentioned the threat of nuclear war against the West.

These threats, long ignored by Washington, Brussels, and NATO, need to be taken seriously.

President Barack Obama should be grilled by the media, repeatedly, on the question of what he is doing to prepare for the possibility of a nuclear showdown with Russia.

The following articles provide facts and perspectives regarding these issues.

(1) Daniel Brössler (Brüssel), “Putin soll Europa massiv gedroht haben,” Süddeutschen Zeitung Sueddeutsche Zeitung, 18. September 2014 (05:00).

Russische Truppen binnen zwei Tagen in Warschau, Riga, Vilnius oder Bukarest: Kremlchef Wladimir Putin soll dem ukrainischen Präsidenten Petro Poroschenko gesagt haben, dass seine Armee zügig osteuropäische Hauptstädte erreichen könnte. Das geht aus einer Gesprächszusammenfassung der EU hervor, die der “Süddeutschen Zeitung” vorliegt.

(2) Justin Huggler (Berlin), “Putin ‘privately threatened to invade Poland, Romania and the Baltic states'; German newspaper Suddeutsche Zeitung reports that Ukrainian President Petro Poroshenko told European Commission that Putin made the threat in a recent conversation,” The Telegraph, September 18, 2014 (6:48 p.m. BST).

(3) George F. Will, “An eye on the Baltic states?” Washington Post, September 3, 2014

(4) Paul Roderick Gregory, “Ukraine Is More of An Existential Threat Than ISIS, Because It Could Destroy NATO,” Forbes Magazine, September 23, 2014 (8:33 a.m).

(5) Ian Traynor, “Kazakhstan is latest Russian neighbour to feel Putin’s chilly nationalist rhetoric; As Obama reassures Baltic states of Nato’s protection, Kazakhs wonder if they will follow Ukraine, Chechnya and Georgia,” the Telegraph, September 1, 2014 (14:42 EDT).

This includes a photograph of Russia’s President Vladimir Putin, Kazakhstan’s President Nursultan Nazarbayev, and Ukraine’s President Petro Poroshenko, in which in Putin’s eyes — contrary to the countless photos of an expressionless face, you can see a hint of the malice that lurks in his heart.

The Trenchant Observer

REPRISE II — Putin’s wager: Russia’s rogue authoritarianism versus fundamental human rights and the existing international political and legal order

Wednesday, September 24th, 2014

Russia and the Ukraine—The Big Picture

Originally published April 24, 2014

In a fatal error, Putin challenges the modern postwar international political and legal order

It is historically ironic, and from Vladimir Putin’s point of view perhaps tragic, that Russia’s crowning achievement at the Sochi Winter Games culminated precisely when the Yanukovych government in the Ukraine began to stumble and fall. On the other hand, Putin had only himself to blame.

Since then, Vladimir Putin has overreached, and made the fatal mistake of undertaking actions that put Russia permanently at odds with the world’s international political, legal and economic order.

While formally created during and at the end of World War II (1939-1945), the system has roots that go back to Hugo Grotius and the Thirty Years’ War of 1618-1648. The idea for the United Nations can be traced back to the Hague Peace Conferences of 1899 and 1907, and the Covenant of the League of Nations and the founding of the League in 1919.

Since the founding of the United Nations in 1945, the system of international law established within the framework of the United Nations Charter, including its bedrock principle prohibiting the threat or use of force against the territorial integrity or political independence of any state, has become the very fabric of international society, constituting principles that have been repeatedly accepted in countless treaties and agreements as binding norms of international law by virtually every country.

Now along comes Russia’s new Dictator to suppress within Russia fundamental human rights such as freedom of the press, freedom of assembly, and the right to a fair trial; to challenge the entire structure of the existing international political and legal order by invading the Ukraine, seizing the Crimea by military force and annexing it to Russia; and now threatening to invade the eastern Ukraine if the government of that country responds to Russia’s initial invasion by special forces and seizure of government buildings by force with its own necessary and legal use of force to reassert its control over its own government offices and territory.

Putin wants Russia to be able to invade the eastern Ukraine with special forces, and then to be able to decry any attempt by the Ukrainian government to restore public order as “crimes” against the Ukrainian constitution. He does so without mentioning his own crimes against the Russian constitution by suppressing civil liberties, or his own use of brutal force in putting down the rebellion in Chechnya–which included the commission of war crimes on a very large scale.

Putin and his lieutenant, Foreign Minister Sergey Lavrov, accuse the Ukraine and the West of violating international law, as they sit on the spoils of Russian aggression in the Crimea, and openly threaten military intervention in the Eastern Ukraine if that country’s government moves with force to restore public order and the ordinary functioning of government institutions.

Like the case of Northern Cyprus, invaded by Turkey in 1967, or East Timor which was invaded and annexed by Indonesia in 1975, Russian invasion and annexation of the Crimea will never be accepted by other nations.

Nor will any further conquests in the eastern Ukraine, or of independent countries which formerly made up the Soviet Union, ever be recognized.

An invasion of the eastern Ukraine will indeed produce results, just not those Putin in his demented shortsightedness seeks to secure.

An immediate result will be stiffer sanctions from the U.S. and the EU, which moreover are likely to grow in intensity over time.

An invasion is highly likely to produce permanent enmity toward Russia in the Ukraine, and to strengthen the desire of Ukrainians, East and West, to join the European Union and, if necessary to protect their independence in the future, to join NATO as well (whatever time may be required to achieve this result).

An invasion is also likely to produce energetic responses from NATO aimed at Russia, if not immediately then at least over the intermediate term. To counter potential Russian aggression, large forces of American and other NATO-country troops are likely to eventually be moved from Germany to forward bases in Poland, Romania, Lithuania, Estonia and Latvia. The current drawdown of American forces from Europe, in time, could be reversed.

Europe will probably also undertake vigorous policies to reduce its consumption of Russian gas and oil, though this may take a few years.

Putin’s wager is that his domestic repression and suppression of freedom of the press, free elections, the right to a fair trial and other fundamental human rights will be a model others will want to emulate, or at least be willing to ignore.

His wager that wars of aggression involving military invasions and the annexation of conquered territories will not matter to other countries, which will be happy to look the other way and continue doing business with Russia, is not likely to be successful in the middle or long term.

To be sure, the slowness with which democracies respond to military challenges may appear to be acqiescence or appeasement in the short term, but in the intermediate to longer term the combined economic and military strength of the U.S., NATO, Japan and their allies will be able to contain Russian military expansionism while depriving Russia of vital opportunities to join the first ranks of nations in a wired and interconnected world.

Finally, Putin’s wager overlooks the vital forces within Russia itself, symbolized by courageous dissidents such as Andrei Sakharov, or even Communist party leaders like Mikhail Gorbachev and Boris Yeltsin. These forces have visions of Russia that are deeply at odds with Putin’s embodiment of autocratic dictatorship at home, and wars of aggression abroad.

Putin’s wager may in fact hasten the day when his greatest fears are realized, the day the Maidan comes to Red Square.

The Trenchant Observer

Abdullah and Ghani reach agreement on power-sharing, national unity government in Afghanistan

Saturday, September 20th, 2014

In what constitutes a big foreign policy success for President Barack Obama and the United States, Afghan presidential candidates Ashraf Ghani and Abdullah Abdullah have reached agreement on a power-sharing arrangement.

See

Rod Nordland, “Afghan Presidential Rivals Finally Agree on Power-Sharing Deal,” New York Times, September 20, 2014.

Under the agreement, Ghani will assume the position of President, while Abdullah will assume the new position of Chief Executive Officer, with primary responsibility for the execution of government policies. Top posts will be shared equally among the followers of the two candidates.

Nordland reports,

The draft agreement obtained by The Times has changed slightly since it was written, according to diplomats and campaign officials, but the key points are unaltered in the latest version initialed Saturday night. The agreement gives substantial powers to the newly created position of chief executive officer, defining it as having “the functions of an executive prime minister.”

The agreement also creates a council of ministers, headed by the chief executive and including two deputies and all cabinet ministers. “The Council of Ministers will implement the executive affairs of the Government,” the agreement states. In addition, while the president would head his cabinet, which also includes the ministers, “The CEO will be responsible for managing the Cabinet’s implementation of government policies, and will report on progress to the President directly and in the Cabinet.”

Another clause calls for “parity in the selection of personnel between the President and the CEO at the level of head of key security and economic institutions, and independent directorates.”

Significantly, the U.S.-brokered agreement was achieved in large part as a result of the leadership and efforts of Secretary of State John Kerry.

The deal opens the way to the inauguration of President Ghani in the next few days, the signing of the Status of Forces agreement with the U.S. which will allow the continuation of military assistance beyond 2014, and the financial and military support accompanis it.

A strong U.S. presence and active role in brokering differences between the two candidates and their followers will be required if the agreement is to take hold, and the great distrust between the opposing camps is to be overcome.

The agreement marks a great success, if not of the democratic electoral process in Afghanistan, at least in terms of avoiding the great disaster that would have occurred had it not been reached.

The inauguration og Ghani will also mark the first peaceful transition of power in as long as anyone can remember, with President Hamid Karzai giving up the formal reigns of power which he has held for the last 12 years.

The Trenchant Observer

Obama in Control: No lethal aid for Ukraine, no combat troops in Iraq no matter what, and lethal aid for “moderates” in Syria

Saturday, September 20th, 2014

Friday night fatigue can affect one’s musings on world affairs.

Much of the fatigue this week comes from the news,

The Russian-Ukrainian War

Russia is sending another white truck convoy into the Donbas, probably again without Ukrainian authorization or ICRC and OSCE inspections prior to crossing the border, as in the two prior cases, bearing who knows what cargoes in each direction.

Such violations of Ukraine’s terrirorial integrity, sovereignty, and political independence have become so numerous that they have become routine.

Like repeated rapes of a helpless victim from whom onlookers look away so as not to see, the Russian rape of Ukraine’s sovereignty is repeated often, probably across unmarked tracks in the middle of the night—and by white-truck convoys of who knows what.

In terms of looking away, it was highly significant today that the New York Times didn’t even carry its story on the Poroshenko visit on the front page, relegating the little issue of the Russian invasion of the Ukraine and the visit of its president to the back pages.

The repeated rapes of Ukraine’s sovereignty and territorial integrity have become so routine that almost no one still bothers to object.

Those who seek to investigate and throw light on the Russian invasions are beaten up like the BBC news team this week, or the local legislator who wrote about the dispatch of the unit of a Russian soldier to the Ukraine who was killed there. Or they are labeled as subversive, as in the case of a prominent NGO of mothers of soldiers who pressed too hard for information about soldiers who had died or disappeared in or near the Ukraine.

In America, Ukrainian President Petro Poroshenko gave an extraordinarily eloquent speech before Congress about what is involved in the Russian-Ukrainian war, calling to mind John F. Kennedy’s “Ich bin ein Berliner” speech in West Berlin on June 26, 1963. He then met with Barack Obama, who ruled out giving the lethal aid that he has for months been requesting.

The body language in the photos and videos says it all: Obama does not publicly embrace, with positive energy and enthusiasm, the one leader in the world who personifies the struggle for freedom in the face of military aggression, and who has been orchestrating with great courage the defense of his country against Russian intervention.

Obama may still mouth pretty words about freedom from time to time, but for the Observer his pacifism and appeasement toward Putin, and the incredible record of incompetence he has built over the last six years, have driven home the fact that when it comes to foreign policy he lacks substance.

Obama’s reception of Petroshenko in the White House showed how cold-blooded and petulant the U.S. President has become. He was obviously peeved at Poroshenko for appealing directly to Congress for lethal aid. The package of non-lethal assistance which Obama announced yesterday was paltry, on the order of $50 million dollars foe a country engaged in war with a nuclear power with still perhaps the second strongest military on the planet.

Obama’s stated rationale for refusing lethal aid was pathetic, sounding as if it had not been updated since March: the provision of lethal aid might provoke the Russians to further acts of military aggression. Only days before, NATO Supreme Allied Commander for Europe, U.S. General Philip Breedlove, had described the troop positions of Russian military forces within and on the border of the Ukraine as being arranged to dictate terms to Kiev, or to take Mariupol, while maintaining open suppy lines to the “separatists” in the Donetsk and Luhansk areas which they control

One of the greatest tests of a president is whether he (or she) can ascertain and react to the most urgent threats facing the country. This week, President Obama focused on taking the battle to ISIS or the self-denominated “Islamic State”.

In doing so, he failed to understand the magnitude of the threat represented by Russia, whose army sits astride two regions of the Ukraine following military invasions and annexation of one of them, the Crimea.

Obama may also have been cowed by big business which, in full-page advertsiements in the New York Times, the Wall Street Journal, and other newspapers, pressured him not to adopt sanctions against Russia that went further than those the EU imposed. The arguments put forward by the American Association of Manufacturers and the American Chamber of Commerce were lame in the extreme. Here, however, it is campaign contributions and political support—money, in a word—that counts, not the logical strength of arguments for a policy.

The War Against ISIS

In Syria and Iraq, Obama seems determined to use the least amount of military force possible. This led to an open display of civilian-military tensions this week. After Chairman of the Joint Chiefs of staff Martin Dempsey stated in Congressional testimony that circumstances could conceivably arise that could lead him to recommend the sending of combat troops to Iraq, the next day, Obama went out of his way, before a military audience, to declare that he would not send ground troops to Iraq. Period.

The military was probably not pleased with this put-down of their leader.

The administration’s argument that the Iraqi’s must take both political and military actions to repel ISIS have merit, but miss the essential point that they may not be sufficient to turn the tide on the battlefield within the time frame needed.

The decision to arm the “moderate” rebels in Syria with $500 million of arms, training and equipment is over two years’ overdue. But the situation has changed. One cannot supply rebels whose goal is to defeat al-Assad and tell them it must be used only to fight ISIS. It won’t work.

The U.S. needs a coherent startegy toward Syria, but doesn’t have one.

The challenge of devising a coherent approach to ISIS and Syria is daunting. Had Obama acted to arm the rebels and take direct military action against Syria to halt the comission of war crimes and crimes against humanity on a massive scale (which would lead to over 200,000 deaths by 2014), ISIS would not have the weapons, men, money, and control of territory they have today, or represent the overwhelming threat that they have become.

A successful strategy toward ISIS and Syria would require not only effective military action against ISIS within Syria, but also aid to the “moderate” rebels to enable them to fight both ISIS and al-Assad’s forces in order to bring to a halt the commission of war crimes and crimes against humanity.

Such a strategy would require taking a clear stand against the barbarism of both al-Assad and ISIS, and defending Western values of respect for fundamental human rights and the rule of law.

Confusion in Threat Perception, Priorities, and Strategic Responses

$50 million in non-lethal aid for the Ukraine, $500 million in lethal aid and training for the “moderate” rebels in Syria.

These actions signify a confusion of priorities and means that is stunning, but wholly consistent with Obama’s leadership of U.S. foreign policy through tightly-controlled decisions by him and his White House foreign policy team, “the gang who couldn’t shoot straight”, whose exploits have been detailed in earlier articles here.

Because the president sets the national agenda, his confusion over priorities affects the press and all of us. That is why the New York Times story on Poroshenko’s visit was buried in the back pages

Obama seems to have no plan for turning back Russian military aggression in the Ukraine, other than to continue down the path of apeasement, taking care not to provoke Putin by supplying lethal weapons to Kiev.

One last thought or feeling can be shared:

The reception given Poroshenko by Obama, including his flat refusal to supply arms and other lethal aid, and the palty amounts of non-lethal aid announced, made yesterday a day of shame for America. The defense of freedom in the world and opposition to military aggression faltered.

From all of Obama’s beautiful words and speeches, the only figure that sticks in the mind is that of a man utterly out of his depth, unable to perceive grave strategic threats to the country or devise effective responses to those he sees.

Of greatest importance to the president, it seems, are the domestic political consequences of foreign policy actions, his own control of every aspect of foreign policy, and the management of his foreign policy narrative through carefully crafted words.

Filled with hubris, he remains determined to impose his own will in implementing foreign policy, in a world where others do not fully understand the issues and he is unable to genuinely see that he has made any mistakes.

The Trenchant Observer

Poroshenko’s capitulation: The new “special status” law and implementation of the Minsk Protocol

Wednesday, September 17th, 2014

UPDATE: The text in Ukrainian of the new law on “special status” is found here.

A very rought translation into English is found in Nikolai Holmov, “Status of The Donbas – Presidential Bill,” ODESSATALK, September 17, 2014, here.

*****

Minsk Protocol

The 12 points in the Minsk Protocol are:


1. Ensure the immediate bilateral ceasefire.
2. Ensure the monitoring and verification by the OSCE of the ceasefire.
3. A decentralization of power, including through the adoption of the law of Ukraine “about local government provisional arrangements in some areas of Donetsk and Luhansk Oblasts” (law on the special status).
4. Ensure the permanent monitoring of the Ukrainian-Russian border and verification by the OSCE with the creation of security zones in the border regions of Ukraine and the Russian Federation.
5. To immediately release all hostages and illegally detained persons.
6. A law on preventing the prosecution and punishment of persons in connection with the events that have taken place in some areas of Donetsk and Luhansk Oblasts.
7. Continue the inclusive national dialogue.
8. To take measures to improve the humanitarian situation in Donbass.
9. Ensure early local elections in accordance with the law of Ukraine “about local government provisional arrangements in some areas of Donetsk and Luhansk Oblasts” (law on the special status).
10. Withdraw the illegal armed groups, military equipment, as well as fighters and mercenaries from Ukraine.
11. To adopt the program of economic recovery and reconstruction of Donbas region.
12. To provide personal security for the participants in the consultations.

*****SIDEBAR*****

Armed with nuclear weapons and a powerful military, Vladimir Putin is as popular in Russia because of extreme nationalism and policies of aggression as Adolf Hitler was in Germany in 1938 or 1939.

The West had better give top priority to this existential threat to its vital national security interests.

It represents a far graver threat than ISIS or the “Islamic State”, however large and real that threat may be.

See Ilya Koval, “Russland: Warum Putin nicht einlenken wird,” Die Zeit, 17. September 2014 (14:39 Uhr).

“Mit Sanktionen und Zugeständnissen versucht der Westen, Russlands Regierung von ihrem aggressiven Kurs abzubringen. Das aber ist utopisch. Fünf Gründe dafür.”

*****END OF SIDEBAR*****

Since Russian regular forces entered the Ukraine in large numbers in August, and bloodied Ukrainian forces while pushing them back from the gains they had made in previous weeks, Ukrainian President Petro Poroshenko has been increasingly accommodating to the demands of Russian President Vladimir Putin.

First, Poroshenko announced that 70% of the Russian troops had been withdrawn from the country, after the signing on September 5 of the Minsk Protocol establishing a 12-point plan including ceasefire and other steps in a peace plan for the eastern Ukraine.

NATO did not confirm this number. On September 16, 2014, NATO’s Supreme Allied Commander for Europe, U.S. General Philip Breedlove, was quoted as making the following statement:

SACEUR commander, Gen. Philip Breedlove, Statement on Russian troops in and bordering Ukraine

“I will paint a picture for you, which is that from a peak of well over 10 battalion task groups inside of Ukraine, I believe we’re now down to elements of probably four battalion task groups inside Ukraine.

The Russians have been removing forces to the east of the Ukrainian border back into Russia, but make no mistake – those forces are close enough to be quickly brought back to bear if required. They have not left the area that would allow them to be either a course of force or a force used for actual combat, if required.

Inside of Ukraine, we see forces that now are arrayed, I think, with two purposes. One purpose is to keep the flow of support and supply to the separatist forces and the Russian forces in the Luhansk and Donetsk area wide open. So those avenues of support will remain wide open, and I think that the Russian forces are arrayed to ensure that.

Secondarily, I think we see Russian forces arrayed to bring great pressure on Mariupol. So currently, there is a large force that threatens Mariupol. I think it has one of two possibilities for use. It can sit there and be a coercive force to ensure that the negotiations for peace fall out along the lines that Russia wants them to fall out, or it could also be used to take Mariupol, if it was there. But these forces are arrayed to allow them to do either.

So I think it’s important to say that, yes, some of the force structure has come down. No, none of it has departed. It is all still available. And the forces that remain inside of Ukraine are arrayed to set conditions to completely support the long-term effort of the separatists in the east and to either coerce or force the hand in Mariupol,” Breedlove said.

–“Four Russian Battalion Groups Remain in Ukraine – NATO Allied Commander,” Censor Net, September 17, 2014 (07:32).

The ceasefire has been broken repeatedly by the separatists, though in general it still appears to be holding.

The monitoring of the ceasefire by the OSCE, as called for in the point 2 of the Minsk Protocol, is not firmly in place. Yesterday, fire was directed at an OSCE observer team, leaving their two vehicles damaged or destroyed.

Putin participated in a similar tactic in Syria in the spring of 2012, when UNMIS observers were shot at and increasingly became targets of Bashar al-Assad’s forces, until they were forced to withdraw first to their hotels, and then from Syria.

Nor does the monitoring of the border by the OSCE, called for in point 4 of the Minsk Protocol, seem to be functioning.

Second, Poroshenko has now caved into Putin’s demands regarding the terms of the “special law” on the status of regions of Donetsk and Luhansk Provinces under the separatists’ control.

See

(1) “Ukraine: Abgeordnete wollen Sonderstatus des Donbass kippen, Der Spiegel, 17. September 2014 (07:33 Uhr).

“Der Sonderstatus für die Ostukraine wackelt: Nachdem das Parlament in Kiew den Regionen um Donezk und Luhansk weitreichende Rechte gewährt hat, wollen Anhänger von Ex-Ministerpräsidentin Timoschenko den Beschluss für ungültig erklären lassen.”

(2) Carsten Luther (Kommentar), “Uraine: Putin behält den Fuß in der Tür,” Die Zeit, 16. September 2014 (17:48 Uhr).

“Ein Tag voller Zugeständnisse: Autonomie für die Separatisten in der Ostukraine, Freihandel mit der EU erst später. Putin hat bekommen, was er gewollt hat.”

(3) Rodrigo Fernandez / Ignacio Fariza (Moscú / Bruselas), “Ucrania aprueba el autogobierno para el este con una policía autonómica,” El País, 16 Septiembre 2014 (20:57 CEST).

(4) “Donbas ‘special status’ law is a concession to the West — Heraschenko,” EuroMaidan Press, September 17, 2014.

The new law, approved by the parliament or Rada in Kiev on September 16, is being challenged as invalid by the Fatherland Party of Iulia Timoshenko, due to alleged violations of parliamentary procedure (e.g., the law failed to win approval on the first vote, the vote was secret, electronic voting was used instead of a roll-call vote).

The law passed on Tuesday represents a capitulation to the demands of Russia and the “separatists”.

While intended to uphold the sovereignty of the Ukraine over these areas, the law calls for a three year period of “autonomy” for the region which has a very strong potential for splitting the country permanently, and even facilitating a secession by the region from the Ukraine as new facts are created on the ground.

With passage of the law, if it goes into effect, Putin through military aggression will have achieved one of his principlal goals, that of creating a “frozen conflict” in the Ukraine (like the one in Georgia).

Several provisions of the law are worth noting.

First, it provides for local elections on November 7, but establishes no mechanisms to ensure that they are free and fair. One might imagine that they would be held under OSCE auspices and supervision, which would include oversight over the voter lists and the counting of votes in a transparent manner. But there is no evidence that this will be the case.

Second, the law establishes the right of the territories under separatists’ control to establish their own militias independent of Kiev’s control. Again according to first reports, there appear to be no obstacles to the separatists’ militias simply reconstituting themselves as these militias, assuming the mantle of legitimacy which the law confers.

Third, the separatists are apparently given control over state prosecutors and the courts. The practical result will be felt when the law’s limitations on granting amnesty to those involved in very serious crimes are put into practice. It also gives the insurrectionists the authority to persecute their opponents through the legal system.

Fourth, the law authorizes the region to establish relationships with bordering regions within the Russian Federation to deal with matters of local concern. While the text of this prvision appears inocuous enough, it could potentially be misapplied to open a slippery slope that could lead to secession and/or incorporation of these areas into the corresponding Russian regions.

There is evidence to suggest that Western leaders pressured Poroshenko to pass the law on “special status”.  See the comments of Anton Haraschenko, quoted in the EuroMaidan Press article cited above.

A close reading of an informal translation into English of the law suggests that its terms may not actually be as bad as they seemed in the first reports in the press. This would be similar to the way the actual text of the Minsk Protocol turned out not to be as one-sided as first press reports had suggested.

Still, while up until now Poroshenko has done an excellent job of defending his country’s sovereignty and territorial independence, there are signs that Putin through his threats and acts of military aggression has convinced him that the only way he can prevent further military advances by Russia and its “separatists” is to go along with what Putin wants.

His calculus may be that a “frozen conflict” in Donetsk and Luhansk is preferable to the Russians and their “separatists” taking Mariupol, and indeed going on to take territory that would build a land bridge all the way to the Crimea.

Poroshenko has called for EU and NATO countries to join in negotiations with Russia over the Donbass, recognizing that Ukraine by itself is not in a position to negotiate effectively with Putin. They should do so, without illusions, in order to buttress Porosheno and the Ukraine.

There is the additional factor that Putin’s word is absolutely worthless, while his and Russia’s statements are full of blatant lies, distortions, and misrepresentations.

Putin’s leverage over Poroshenko resides in his ability to uphold the Minsk Protocol and ceasefire, or not.

Poroshenko needs to be careful not to overvalue his own ability to get along with Putin and elicit promises that he will keep, or even the viability of the Minsk Protocol if it gets in the way of Putin’s drive to achieve his goals.

Poroshenko needs support from the West and the rest of the civilized world which is interested in upholding the U.N. Charter and international law, and in particular the prohibition of the threat or use of force.

One way to provide this support would be to bring the Minsk Protocol to the U.N. Security Council, which could table a resolution incorporating its provisions. This might possibly be done in a manner which would make it very difficult for Russia to exercise its veto.

Finally, there is an important human rights dimension to the adoption of the “special law” on areas in the Donetsk and Luhansk Provinces under “separatists” control. The law should not create an enclave in which the internationally protected human rights of Ukrainian citizens are left to the arbitrary rule of separatists who up until now have been guilty of committing war crimes and widespread violations fundamental human rights in territories they control.

The “special law” should be amended to include mechanisms to ensure the observance of international human rights within the special territories governed by the law. These should include the right to vote in free elections and to participate in government.

One need have no illusions that they will be fully honored. Nonetheless, they should be added to the law, as they could exercise some influence toward moderation and introduce reporting and accountability considerations for the “separatists” to take into account.

This, at least, can be done to help mitigate the Ukraine’s moral and legal responsibility for delivering to the “separatists” areas where a large percentage of the population does not not support their goals or methods

Actually, if it is only one human being, his or her fundamental human rights should be protected.

The Trenchant Observer