Archive for the ‘U.N. Charter’ Category

After the Ukraine Summit in Paris: What, if anything, was achieved?

Saturday, October 3rd, 2015

Update and Analysis


(1) Stefan Braun (Berlin) und Christian Wernicke (Paris), “Ukraine-Gipfel in Paris: Hollande und Merkel ringen mit Putin; Bundeskanzlerin Merkel und Frankreichs Staatspräsident Hollande treffen sich in Paris mit den Präsidenten Russlands und der Ukraine, um über den Ukraine-Konflikt zu sprechen; Stattdessen geht es hauptsächlich um Syrien; Putin hat mit der militärischen Intervention Fakten geschaffen; Kritik an russischen Luftschlägen will er nicht gelten lassen; Trotz schwieriger Gespräche werten deutsche und französische Diplomaten einzelne Ergebnisse als kleine Fortschritte,” Süddeutsche Zeitung, 2. Oktober 2015 (23:14 Uhr).

(2) “Separatisten beginnen mit Abrüstung in Ostukraine; Es kommt Bewegung in die Friedensbemühungen in der Ostukraine: Kurz nach dem Gipfel in Paris haben die Separatisten mit der Abrüstung begonnen. Ein Punkt für den Frieden ist aber noch nicht erfüllt,” Die Welt, 3. Oktober 2015.

(3) Pilar Bonet, “El cese de la violencia no aplaca el conflicto en el Este de Ucrania; Los acuerdos de Minsk, el marco de solución política y militar, no podrán cumplirse para fines de año, como estaba previsto,” El País, 2 de octubre 2015 (21:22 CEST).

(4) Benoît Vitkine, “Ukraine: le sommet de Paris acte le report de l’application des accords de Minsk,” Le Monde, 2 Octobre 2015 (à 22h17 • Mis à jour le 03.10.2015 à 13h10).

(5) “Ukraine summit on October 2 with Putin in Paris: Remember who you are talking to,” The Trenchant Observer, October 1, 2015.

(6) Benoît Vitkine, “Un sommet sur l’Ukraine à Paris dans l’ombre de la Syrie, Le Monde, le 1 Octobre 2015 (à 10h53 – Mis à jour le 01.10.2015 à 16h16).

The Ukraine Summit in Paris on October 2, 2014 seems to have achieved little in formal terms, but may have given impetus to implementation of the ceasefire and withdrawal of weapons provisions of the Minsk II Agreement.

The main results were that the deadline of December 31, 2015 for the withdrawal of Russian and foreign troops and restoration of the control of the border between Russia and the Donbas region in the eastern Ukraine was pushed back indefinitely, in effect giving Putin tacit approval to continue his ongoing invasion of the eastern Ukraine with Russian troops, irregulars, and modern weapons systems. In exchange, Putin said he would “talk to”the separatists” who have scheduled their own elections on October 18 and November 1 in the areas of Donetsk and Luhansk provinces which they control, in violation of the Minsk II agreement. The idea is that the “separatists” and Kiev will now, for the first time, enter into constructive negotiations for the holding of the elections under Ukrainian law.

Nonetheless, Pilar Bonet of El País underlines the extent to which the leaders of the so-called “separatists” are puppets under the complete control of Vladimir Putin and Russia, who pay their salaries.

Die Welt in its dispatch of today reports that the separatists are withdrawing their weapons.

The end result is that Vladimir Putin remains in complete control of whether “progress” in implementing the Minsk II agreement is made. It all depends on the cooperation of the leaders of the “separatists”, puppets whose every movement he controls.

François Hollande, Angela Merkel, and other leaders in the West continue to play along with this charade, in which the “separatists” agree or don’t agree to cooperate with Kiev in implementing the agreement.

Under Article 2(4) of the U.N. Charter and international law, of course, Russia is under a binding obligation to withdraw its invading troops from the Donbas immediately. This is a norm of jus cogens or peremptory international law, from which there can be no derogation by agreement.

Putin has all the cards, and has just gotten out from under a formal commitment to withdraw Russian and other irregular forces from the eastern Ukraine by the end of 2015.

The Trenchant Observer

Ukraine summit on October 2 with Putin in Paris: Remember who you are talking to

Thursday, October 1st, 2015

See Benoît Vitkine, “Un sommet sur l’Ukraine à Paris dans l’ombre de la Syrie, Le Monde, le 1 Octobre 2015 (à 10h53 – Mis à jour le 01.10.2015 à 16h16).

On Friday, October 2, Francois Hollande, Angela Merkel and Petro Poroshenko will meet with Vladimir Putin in Paris in what has come to be known as the “Normandy format” (France, Germany, Ukraine and Russia). Somehow, without supervision or formal coordination, Hollande and Merkel have come to speak for all of Europe and NATO in seeking to secure implementation of the Minsk I and Minsk II protocols, signed on September 5, 1914 and February 12, 2015, respectively.

The Minsk Protocol was originally entered into on September 5, 2014 in an obvious attempt by Putin to avoid the imposition of third-stage or sectoral sanctions by the EU. His effort failed in terms of achieving that immediate objective, but has succeeded in deterring EU members from adopting even further sanctions against Russia in response to its ongoing violations of the ceasefire and other provisions of the Minsk II agreement.

On the ground, Russia has continued its military invasion of the eastern Ukraine which is now ruled by Putin’s puppets, who are entirely dependent on Russian financial, military and other support.

Over 8,000 people have been killed since Russia began its invasion of the Donbas in April, 2014.

Putin has now ordered his puppets in Donetsk and Luhansk to observe a truce agreed upon on September 1, 2015. For the first time since the original Minsk Protocol a year ago, the truce has generally held.

Building on this “success”, France and Germany, in particular, seek in Paris to make further progress in implementing the other provisions of Minsk II. French President François Hollande has now called for a lifting of the EU sanctions against Russia, while CDU Chancellor Angela Merkel’s coalition partner, the SPD, has through its leader in the Bundestag, Sigmar Gabriel, made an outspoken appeal for such action.

Putin’s goal is clearly to achieve a lifting of the EU sanctions when they come up for renewal in January, 2016. Merkel, for her part, is under pressure from the SPD to lift the sanctions, while at the same time she is under strong pressure from the leader of her CSU partner, CSU Chairman and Bavarian Minister-President Horst Seehofer, who has sharply criticized her policy on refugees and other migrants.

Notably, she had strong praise for Gerhard Schroeder at a recent ceremony launching a new biography of the former SPD Chancellor, who happens to be Putin’s business partner, friend, and chief apologist in Germany.

Ukrainian President Petro Poroshenko, for his part, is seeking to maintain strong EU financial and political support for the Ukraine, while opposing any easing of the sanctions. His ultimate goal is EU membership for his country. Concessions to the “separatists” evoke strong opposition at home.

The summit therefore includes two parties, Russia and France, who are openly calling for a lifting of the sanctions against Russia, and a third led by Angela Merkel whose political future may hang in the balance. Seehofer could oppose her in the selection process for the candidate of the CDU/CSU alliance in the next elections, whereas if she lost CSU support in congress she might need to rely on the SPD to remain in office.

Into this mix the perfidious Mr. Putin will enter with the goal of allowing just enough Minsk II progress to give those in the EU who favor a lifting of sanctions sufficient ammunition to achieve their goal.

He can make some “concessions” to implementing the other provisions of Minsk II, while ensuring that the provisions that call for a withdrawal of all foreign forces and restoration of control of the border to the Ukraine by December 31, 2015, are subjected to new conditions whose fulfillment he controls.

Paris and Berlin may have already paved the way for such concessions. Vitkine reports,

La solution de compromis élaborée par Paris et Berlin prévoit que le scrutin pourra se tenir dans les territoires séparatistes à une date différente du reste de l’Ukraine, mais bien en conformité avec le droit ukrainien, et sous la supervision de l’Organisation pour la sécurité et la coopération en Europe (OSCE). Pour convaincre les séparatistes d’accepter ce compromis, Paris et Berlin ont obtenu une concession de Kiev : que deux autres points très sensibles de cette feuille de route de Minsk – le retour du contrôle ukrainien sur la frontière russo-ukrainienne et le retrait des groupes armés de la région – n’interviennent qu’en toute fin de processus.

In the end, Putin will be negotiating for a Minsk III agreement which changes the terms of Minsk II (as Minsk II changed the terms of Minsk I), so that he will remain in control of the eastern Ukraine, with his soldiers and other forces staying in place in the Donbas while the border with Russia remains open.

We should keep a very watchful eye on what is being negotiated in Paris. Putin, if successful, will have solidified the “frozen conflict” in the Ukraine, retaining the levers of control, while the EU sanctions are lifted (with a parallel lifting of sanctions by the U.S. likely to follow).

Putin is a master chess player. While all attention is now on the Russian military intervention in Syria, the biggest game–which involves upholding international law and the U.N. Charter, and the freedom of the Ukraine to eventually join the European Union–will be playing out in Paris on Friday, and in the corridors of power in Europe where pacifism and appeasement toward Putin and Russia appear to be ascendant once again.

Europeans and Americans, and particularly the French and Germans, need to bear in mind who Putin is, what Russia’s policies of unbridled nationalism and military aggression have wrought and portend, and the fundamental threat that Putin and Russia pose to the existing international political and legal order, not only in Europe but throughout the world.

The Trenchant Observer

The last international lawyer, or so it seemed

Sunday, September 27th, 2015

It was a curious time, when the world fell apart and no one noticed.

Ideas and institutions that men had died to defend no longer seemed important.

The experience of two world wars in the 20th century had left their lessons burned indelibly into the hearts and minds of those who had fought and lived through them, but now they were forgotten.

Or if not forgotten, they were at least drained of their urgent content, reduced to mere intellectual incantations, rote formulations which no longer engaged the heart or the will to take individual and collective action in their defense.

The growth in the 20th century of international law, whose most basic principles were enshrined in the United Nations Charter in 1945, had lost momentum in the world of actions. Left behind was a hollowed-out edifice of principles which all major nations had once subscribed to, and still accepted verbally perhaps, but no longer felt obliged to defend through actions and not just words.

The cornerstone of the U.N. Charter, contained in Article 2 paragraph 4, was the prohibition of the threat or use of force against the territorial integrity or political independence of any state.

There were other principles of international law of fundamental importance. One was pacta sunt servanda (“treaties are to be observed”).

Another, even more fundamental principle in international law, without which international law could not operate in the real world, was the principle that states (countries) must acknowledge actions of which they are the author. This principle is in fact implicit in the existence and operation of any legal system, whether international or domestic.

A further obligation under international law was that states must offer public legal justifications for their actions. In questions involving the use of force, such justifications were explicitly required by Article 51 of the U.N. Charter.

Other international legal principles protecting human rights had been contained in multilateral treaties and customary international law, as well as the U.N. Charter.

However, as the whole system of international law governing fundamental aspects of relations among states had weakened, so too had the legal bulwarks supporting international human rights obligations.

This had led to a world in which leaders seemed unaware of, or oblivious to, any need to uphold fundamental norms of international law and the U.N. Charter.

At the United Nations General Assembly annual meeting in New York in September, 2015, the world’s attention was drawn not to a General Assembly resolution condemning Russian military conquest and “annexation” of the Crimea in 2014, or the ongoing Russian invasion of the eastern region of the Ukraine, but on what Vladimir Putin, the invading conqueror, might say in his address to the General Assembly.

Nor was the world’s attention drawn to the massive war crimes and crimes against humanity committed against the Syrian people by Bashar al-Assad, with the legal and moral complicity of Russia and Iran which backed him to the hilt with money, weapons, advisers and even combat personnel, or to Putin’s current military intervention in Syria enabling al-Assad to continue the commission of these crimes.

Rather, world attention focused on the meeting between Barack Obama and Putin and speculation on the kind of “deal” the West might strike with Putin to cover over the fiasco of their defeat in Syria and Iraq.

The Nuremberg Principles seemed to have been forgotten.

International law itself seemed to have given way to a new system of “might makes right”, the kind of system that had led to two world wars in the 20th century.

Everywhere international law, particularly the international law governing the use of force and that guaranteeing fundamental human rights, had been forgotten.

While President Obama in his General Assembly speech on September 28 did use the words “international law”–a rare occasion during his presidency, he did so with an awkwardness and also other words that revealed his discomfort with the term.

Moreover, harking back to his Nobel Prize Acceptance Speech in 2009, he also declared,

I lead the strongest military that the world has ever known, and I will never hesitate to protect my country or our allies, unilaterally and by force where necessary.

–Office of the Press Secretary, The White House, “Remarks by President Obama to the United Nations,” September 28, 2015.

Indeed, the Trenchant Observer, an international lawyer who had followed these events and knew about 20th century European history, often felt alone.

While he knew there were others who shared his views, their voices were no longer heard outside specialists’ circles. They were no longer heard in the public arena where amid the tumult and shouting public opinion is formed.

Nor did they seem to be heard in the councils of government when decisions to take actions were being made.

Even the current American president rarely mentioned international law and, judging by his actions and not merely his words, held international law–particularly its binding nature which could constrain his freedom of action–in low regard.

Obama’s muddled references to international law in his U.N. Address were a welcome improvement but in the end were only words in a speech, when it is actions that count.

The action heard much more clearly than the words in his speech was that he met with Vladimir Putin, the presumptive war criminal who had invaded the Crimea and the eastern Ukraine, and who was now taking vigorous military action that would enable Bashar al-Assad to continue the commission of war crimes and crimes against humanity in Syria.

The Observer couldn’t avoid the feeling at times that he was alone in his belief in the critical importance of international law and how ignoring it had much to do with all of the chaos he saw unfolding in the world.

He had become “the last international lawyer”, or so it seemed.

The Trenchant Observer

Obama-Putin meeting at UN: The resurgence of pacifism and appeasement toward Putin and Russia in Europe and the U.S.

Thursday, September 24th, 2015


Julia Smirnova, “Die wundersame Rückkehr des Wladimir Putin In der New Yorker UN-Woche drängt Putin ins Zentrum der Weltbühne. Durch die aktive Rolle im Syrienkonflikt hofft der Kreml-Chef auf seine Rehabilitierung. Warum er auf einmal wieder salonfähig ist,” Die Welt, 25. September 2015 (15:54 Uhr).

Peter Baker and Michael R. Gordon, “White House Says President Obama and Vladimir Putin Will Meet Next Week,” New York Times, September 24, 2015.


Vladimir Putin and Russia are driving events and decisions in the Middle East and the Ukraine far faster than the U.S., NATO and Europe can devise coherent policies and strategies to counter them.

One has the impression that Putin and Russian Foreign Minister Sergey Lavrov have a broad strategy which they are implementing with vigor, taking full advantage of the policy disarray they see on the part of the West, which in fact no one is leading.

It is like they see the whole chessboard, nimbly moving their pieces around at will, constantly keeping their opponents off balance, while the U.S., NATO and Europe can only focus on one move at a time.

In two weeks the U.S. has moved from trying to block military shipments to new Russian air bases in Syria, to accepting these Russian strategic and military moves with passivity while “thinking about” whether U.S. interests and Russia’s overlap in Syria.

In the same time period they have moved from a policy of demanding Bashar al-Assad leave office as a condition for any political settlement in Syria, to openly accepting that he will not have to leave “on the first day or in the first month”.

In a word, they have caved in to the Russian position, not having anticipated Russia’s major military move into the country, in coordination with Iran.

At the same time, France has agreed to sell to Egypt the two Mistral-class warships originally sold to Russia, whose delivery was blocked following the Russian invasions of the Crimea and the Donbas region in the eastern Ukraine. It would be interesting to see Russia’s role in the deal, which includes the prospect of selling Russian helicopters for the two Midstral-class warships to Egypt. One has to ask, moreover, where the money for the warships is coming from, Moscow or the Gulf States?

France and Russia have settled the financial details in the dispute over non-delivery of the Mistrals, without France having to pay any penalties. An appreciative Francois Hollande has started calling for a lifting of the EU sanctions imposed on Russia because of its aggression against the Ukraine.

This week Angela Merkel appeared together with former SPD Chancellor Gerhard Schroeder, Putin’s leading and most shameless apologist in Germany, on the occasion of the presentation of a biography of Schroeder. Merkel was full of praise for Schroeder, downplaying their differences in foreign policy.

Perhaps not coincidentally, the leader of the SPD, Sigmar Gabriel, has just come out with a full-throated appeal for an end of EU sanctions against Russia.

German Chancellor Angela Merkel and U.S. President Barack Obama now appear willing to negotiate with al-Assad over the future of Syria, as Russian military forces move into the country to militarily ensure his survival.

Suddenly Barack Obama has plans to meet with Putin on the sidelines during the upcoming session of the U.N. General Assembly in New York, in a visit that shows all the signs of being thoroughly unprepared. It was first announced in Moscow, and appears to have been requested by Putin. His spokesman, Dmitry Peskov, is quoted as saying that the two presidents will talk about the Ukraine “if there is time”.

Given the antipathy between the two men, one would have thought that Obama’s advisers would have done their utmost to avoid a meeting between them, particularly one without the usual policy planning and broad government preparations for a summit.

In the meantime, Putin has directed his puppets in the eastern Ukraine to observe the Minsk II ceasefire, which has been holding for several weeks now.

The outlines of the Western appeasement of Putin are starting to emerge.

In exchange for Putin’s bringing al-Assad to the negotiating table and working toward a political settlement in Syria, provided the cease-fire continues to hold in the eastern Ukraine, EU sanctions against Russia will be greatly eased, with the Americans acting in parallel.

The West will in effect accept and tacitly acknowledge the Russian conquest of the Crimea, and will accept the “frozen conflict” in the eastern Ukraine, with the Russians keeping troops and irregular forces in the Donetsk and Luhansk regions, while continuing to control the open border between the eastern Ukraine and Russia.

Putin wins, in Syria and in the Ukraine, while the harshest sanctions are lifted in response to the ceasefire holding, without full implementation of the Minsk II agreement’s provisions.

The impact on the U.N. Charter prohibition of the use of force is likely to be great.

Whether this acceptance of military aggression by Russia in the Ukraine and its fruits will have any impact on China in the East and South China Seas appears to be a question that has not been seriously considered by Obama or the other appeasers of Putin in Europe.

The U.N. Charter’s prohibition of the threat or use of force against the territorial integrity or political independence of any state (Article 2 paragraph 4) will have lost much of its deterrent force, with Russia having annexed the Crimea, frozen the conflict in the eastern Ukraine through ongoing military invasion, and through military intervention having ensured the hold on power of Bashar al-Assad, a leader who has committed some of the greatest war crimes and crimes against humanity since World War II.

In Syria, Putin is building Russian military bases and introducing combat aircraft and other combat forces, shifting the military balance of power in the region. All of this Russia is doing before a supine and leaderless West.

This is the deal with Vladimir Putin and Bashar al-Assad that Barack Obama, François Hollande, and Angela Merkel are cooking up.

Only if those with a memory of the last four years in Syria, the last two years in the Ukraine, and the most basic norms of the United Nations Charter and international law speak up, and mobilize, will this disaster be avoided.

The Trenchant Observer

Who is Putin? Proof of Russian military aggression in the Ukraine

Wednesday, September 23rd, 2015

A stellar team from a leading German newspaper, Die Welt, have now assembled a powerful narrative of Russian aggression in the eastern Ukraine or Donbas region including the provinces of Donetsk and Luhansk.

While other newspapers such as the Wall Street Journal hide behind “he said, she said” formulas, always noting that Russia denies allegations by NATO and the West of military intervention in the Donbas, Die Zeit and its reporters have for a long time simply reported the facts.

As Vladimir Putin now makes a bold military and strategic move to establish Russian military bases in Syria while shoring up the Bashar al-Assad regime, it is useful to bear in mind who Putin is and the nature of his challenge to the existing international political and legal order, and balance of military forces.

Putin is an adversary, not a friend or partner, and anyone who imagines they will benefit from collaborating with him—so long as Russia occupies conquered territory in the Crimea and continues its invasion of the eastern Ukraine, will be sorely disappointed. Above all, the West needs to rip its blinders off, and see Putin and Russia for the determined adversaries which they have become.

For the facts regarding the Russian invasions of the Ukraine, see

Jörg Eigendorf und Julia Smirnova, “Die Beweise für Russlands Eingreifen in der Ukraine Satellitenbilder, Fotos und Filme sprechen dafür, dass Russland die Separatisten unterstützt hat. Wir haben die wichtigsten Beweise und Indizien für russisches Eingreifen zusammengestellt und geprüft, Die Welt, 15.September, 2015.

We should have no illusions about who Putin is or what his and Russia’s intentions are.

He is not our friend and not a trustworthy partner. Nor will he ever be.

The above account of the Russian invasion of the Donbas, revealing unbridled Russian nationalism and policies of military aggression, drives this point home.

We need to wake up.

As Lech Walensa put it, “How can we win, when (Putin) is boxing and we are playing chess?”

The Trenchant Observer

Kerry and Obama’s strategy on Syria: Work through the Russians and thow a “Hail Mary” pass on negotiations

Sunday, September 20th, 2015


MICHAEL R. GORDON and ERIC SCHMITT, “Russian Buildup in Syria Raises Questions on Role,” New York Times, September 19, 2015.

Stefan Braun, Berlin, und Nicolas Richter, Washington, “Syrien-Konflikt: Kerry und Steinmeier hoffen auf Putin; Gibt es doch noch eine diplomatische Lösung des Syrien-Konflikts? Ein Angebot aus Moskau klingt für die USA und Europa vielversprechend. Aber welches Ziel verfolgt Russlands Präsident Wladimir Putin wirklich?” Suddeutscher Zeitung, 21. September 2015 (06:14 Uhr).

President Barack Obama and Secretary of State John Kerry have no strategy for dealing with the Syrian crisis, and as we pointed out a few days ago are basically clueless.

See “Russia and the U.S. flying missions in Syrian airspace — Failed U.S. Policies lead to dangerous situation as Russia makes strategic military move into Syria,” The Trenchant Observer, September 18, 2015.

Gordon and Schmitt describe this disastrous situation in Kerry’s own words

“We need to get to the negotiation,” Mr. Kerry said at a joint news conference with (British Foreign Secretary Philip) Hammond. “That’s what we’re looking for, and we hope Russia and Iran, other countries with influence, will help to bring that about, because that’s what’s preventing this crisis from ending.”

Right now, Assad has refused to have a serious discussion,” Mr. Kerry added, “and Russia has refused to help bring him to the table in order to do that.”

Kerry focuses on the issue of Assad’s departure, as if that would bring the hell that the conflicts in Syria have become to a resolution. His suggestion is basically similar to that which led to the U.N. Geneva II Conference on Syria in January, 2014, which produced absolutely no results, not even an agreement to keep talking.

What will be needed to resolve the Syrian crisis goes far beyond Assad’s departure. Something like a U.N. Authority for Syria will eventually have to be established under Security Council auspices in order to bring any kind of peace to that country.

The fact that Kerry entertains the idea of negotiating with Russia and al-Assad ignores the fact that any agreement with al-Assad would be utterly meaningless given his track record, and an agreement with Russia would not be worth much more, given Putin’s own record of backing al Assad’s broken promises in Syria and breaking his own in the Ukraine.

Gordon and Schmitt report,

Kerry and Hammond “emphasized that Mr. Assad could not remain in power if there was to be a durable solution to the conflict, but they said that the timing of his departure during a political transition in Syria would be a matter of negotiation.

“It doesn’t have to be on Day 1 or Month 1,” Mr. Kerry said. “There is a process by which all the parties have to come together and reach an understanding of how this can best be achieved.”

That’s where John Kerry and Barack Obama are on Syria. Out of the game, entertaining phantasies and completely ignoring the events in the country over the last four years.

The Trenchant Observer

Crumbling world order: Power politics and international law—the way forward

Thursday, September 10th, 2015


Stefan Kornelius, “Putins Machtspiele; Ruhe in der Ukraine, Druck in Syrien. Russlands Präsident sendet rätselhafte Signale. Sucht er einen Weg aus der Isolation? Oder einen neuen Schauplatz, um Stärke zu zeigen?” Suddeutscher Zeitung, 9. September 2015 (19:05 Uhr).

MICHAEL R. GORDON and ERIC SCHMITT, “U.S. Moves to Block Russian Military Buildup in Syria,” New York Times, September 8, 2015.

The post-World War II political and legal order appears to be crumbling.  At no other time since 1945 have the fundamental norms of the United Nations Charter and the prohibition of the threat or use of force been so widely violated with such an absence of invocation of international law by major countries in the world.

Russia has invaded and seized part of the Ukraine, the Crimea, and almost nowhere does one hear serious demands for Russian withdrawal and a return to the status quo ante, as required by international law. When U.S. Secretary of State John Kerry traveled with a delegation to meet with Vladimir Putin and the Russians in Sochi, the issue was not even mentioned.

Russia continues its invasion of the eastern Ukraine, with thousands of Russian troops, tanks, artillery and other war equipment stationed in the Donetsk and Luhansk provinces (Oblasts) of the Ukraine.

In Syria, the United States and other NATO countries, including Turkey, are engaged in military activities against the so-called Islamic State, the al-Nusra Front, and other jihadist groups. Ankara has been attacking the PKK in Kurdish parts of Syria, and recently has even launched attacks against claimed PKK targets in Iraqi Kurdestan. A number of countries are assisting Iraq and the U.S. in attacking IS positions within Iraq.

In Yemen, a Saudi-led coalition is conducting air strikes against Houthi- held positions.

Within the last year Egypt conducted airstrikes against Libyan militia groups in retaliation for the murder of Egyptian workers.

Israel has conducted a number of air strikes within Syria aimed at preventing the transfer of weapons to Hezbollah in Lebanon, and also launched air strikes against targets in the Golan Heights.

Beyond these obvious uses of military force, the United States has launched drone attacks and special operations attacks against jihadist leaders and other militants. Sometimes they have been  “signature strikes” against victims whose names are not even known, and who are  executed because of a pattern of activities suggesting they are members of terrorist groups. The attacks and special forces operations are not limited to the Afghanistan and Pakistan war theater.

In Syria itself, the Bashar al-Assad regime has carried out war crimes and crimes against humanity on a massive scale, resulting in the deaths of some 220,000 to 250,000 people, the displacement of millions of Syrians, and the current scramble by millions of refugees to find a safe haven in Europe, or other countries.

One of the greatest challenges to international law has become the failure of states to report the use of force to the Security Council as required by Article 51 of the Charter, or to even acknowledge that they are the authors of state actions.

This is a spillover from the use of covert actions to achieve military objectives. Yet without acknowledgement of state behavior, much less attempts to legally justify it, international law governing the use of force cannot really deter future violations.

Perhaps the greatest casualty from these events has been a loss of awareness of the relevance and critical importance of international law and institutions in controlling the international use of force, and demanding compliance with the terms of treaties related to the sovereignty, territorial integrity and political independence of different states or countries throughout the world.

The president of the United States, Barack Obama, has virtually eliminated the use of the term and concept of international law from his discourse, going back as far as his Nobel Prize Acceptance Speech in Oslo in December, 2009.

Moreover, we should not forget that the entire edifice of international human rights is based on international law treaties and the development of customary international law norms in the human rights area.

Human rights are a creation of international law. We should not be too surprised, therefore, to find that the human rights policies of a president who holds little regard for international law have themselves been quite disappointing.

While Russian President Vladimir Putin and his foreign minister, Sergey Lavrov, have invoked international law from time to time, they can hardly be taken seriously so long as Russia stands atop its military conquest in the Crimea, and continues its invasion of the eastern Ukraine.

With these developments, and Obama’s obvious lack of regard for international law, the risk is great that the West, including the U.S., NATO, and the EU, will try to solve the great problems it faces by reverting to the use of “great power politics”— without regard for the development of international law and institutions, and state practice, that have occurred in the last 100 years.

Using this aproach, deals could be struck with Russia to recognize the conquest and annexation of the Crimea, with the lifting or easing of sanctions, in exchange for Russian “cooperation” in solving the Syrian problem.

In this way, the Russians who are themselves complicit in the commission of war crimes and crimes against humanity within Syria, might secure permanent bases and recognition of al-Assad’s continuing hold on power, at least  in a rump state in the North and along the Mediterranean where a high percentage of the Alawite population is found.

So, are we to simply give up on the concept and accumulated state practice of international law governing the use of force?

Or is there some way of dealing with the power politics dimension of international affairs without giving up on international law?

These are the questions for current leaders in the world, from Washington, Brussels and Berlin, to Taipei, Manila and Hanoi, and even Argentina.

What would the world look like without international law governing the use of force, or the protection of human rights?

These are not idle or theoretical questions. For the answers we come up with will determine the future kind of world we live in.

Nor are these new questions. They were fully considered by the Drafters of the U.N. Charter, and by generations of leaders who sought to uphold its provisions.

Moreover, not only leaders need to consider and answer these questions, but also political elites, media, and the populations of different countries.

For their continuing and incessant demand for legal justifications of state actions under international law may be the best and perhaps the only way to ensure that the gains achieved over the last 100 years will not be lost.

No one can take the international law governing the use of force for granted. Only persistent demands for legal justification can guarantee its continuing relevance and deterrent power in a world that threatens to sink increasingly into armed conflict and chaos.

In a nuclear age—and we need always to remember that we still live in one— “power politics” without international law is a formula for disaster, and for the eventual annihilation of the human race through nuclear war, or newer and even more efficient means of mass destruction.

The Trenchant Observer

REPRISE–Syria: Russia and Iran complicit under International Law in the commission of war crimes and crimes against humanity

Tuesday, September 8th, 2015

Late News—-

See MICHAEL R. GORDON and ERIC SCHMITT, “U.S. Moves to Block Russian Military Buildup in Syria,” New York Times, September 8, 2015.

Vladimir Putin is now engaged in extremely dangerous brinksmanship in Syria, apparently introducing Russian troops and special operations forces to bolster the collapsing Bashar al-Assad regime—in a war theater in which U.S. and allied air forces and NATO member Turkey have become militarily active.

Vladimir Putin, the veteran chess master, has moved a big piece on the international chessboard, as European leaders are overwhelmed by the waves of refugees and immigrants now roaming through their territories, while EU sanctions against Russia for its invasions of the Ukraine must be renewed by July 15, with the formal written approval of all 28 governments, or they will lapse. Even a lapse of a few days could have huge and unforeseen consequences.

This is a wonderful playing field for Mr. Putin, but one in which miscalculation, accident or the unexpected could hurtle the nuclear superpowers into a direct and escalating conflict with the potential for nuclear war.

Putin seems convinced he can out outbluff Barack Obama in any nuclear showdown. This could lead to dangerous miscalculations in dealing with an American government whose strategic nuclear decisions could be taken not by a vacillating President Obama acting alone, but rather by a united national security team including Defense Secretary Ashton Carter and the country’s military leaders, acting in concert with the president.

At such a juncture, it is useful to recall that Russia is complicit under international law for the past and ongoing commission of war crimes and crimes against humanity by the al-Assad regime and its supporters.


REPRISE:  Syria: Russia and Iran complicit under International Law in the commission of war crimes and crimes against humanity,” The Trenchant Observer, June 16, 2013.

Sergei Lavrov argues that Russia has to supply modern weapons systems to Bashar al-Assad’s murderous regime in Syria in accordance with contracts that have already been signed, and warns the West and the Arab countries that any military action such as establishing a no-fly zone in Syria (without U.N. Security Council authorization), would violate international law.

Staff and Agencies, “Syria no-fly zone would violate international law, says Russia; Comments by foreign minister Sergei Lavrov underline G8 challenge faced by US in trying to gain support for intervention,” The Guardian, June 15, 2013 (07:11 EDT).

However, as Lavrov makes this argument, one central fact must be kept foremost in mind:

Under International Law, Russia and Iran are themselves complicit in the commission of crimes against humanity and war crimes in Syria. The Russians have knowingly supplied weapons, training and personnel to assist al-Assad’s forces in the commission of such crimes. Both Russia and Iran have helped finance the continuing commission, with their own ongoing advice and participation, of these crimes.

Consequently, they themselves are guilty of the commission of these crimes.

On the relevant international law on complicity in the commission of international crimes, see

Helmut Philipp Aust, Complicity and the Law of State Responsibility, (Cambridge: Cambridge University Press, 2011). Introductory front matter for the book, including a table of contents, is found here.

For a summary of Aust’s book, see Michael Byers, Book Review of Helmut Philipp Aust, Complicity and the Law of State Responsibility, in 23 EUROPEAN JOURNAL OF INTERNATIONAL LAW (EJIL), pp. 583–589 (2012). The full text of the book review is found here.

For an earlier (1996) treatment of the subject, see Bernard Graefrath, “Complicity in the Law of International Responsibility,” 1996 REVUE BELGE DE DROIT INTERNATIONAL, No. 2, pp. 370-381. The full text of the article can be found here.

In view of the above, when Barack Obama and the other G-8 leaders sit down with Vladimir Putin at the G-8 meeting in Belfast on Monday, June 17, they should all bear in mind that they are in the presence of a Russian president who is responsible for Russian aid and assistance to al-Assad’s regime in the commission of war crimes and crimes against humanity, and that as a result Russia itself is guilty of committing these crimes.

Putin and Russia cannot cynically argue that they are allowed to assist al-Assad in the commission of war crimes and crimes against humanity, incurring international responsibility, while under international law the West and the Arab states can do nothing to help protect their victims.

That is not where international law is, today, in 2013.

For an idea of the crimes they are supporting, see the Rome Statute of the International Criminal Court, articles 1, 7 & 8, which largely represent a codification of existing customary international law relating to these international crimes. The text of the Statute of the ICC is found here.

It goes without saying that the commission of all international crimes in Syria must be stopped, including those committed by the insurgents.

The Trenchant Observer

Ukraine Update: Renewal of sanctions, “progress”, and one-sided implementation of Minsk II Agreement (with full text in English)

Wednesday, September 2nd, 2015

“Diplomacy is the art of saying ‘Nice doggie’ until you can find a rock.”

Will Rogers

It is quite amazing how the ceasefire called for in the Minsk II Agreement of February 12, 2015 seems to start to hold just before the EU has to vote again to uphold and extend the sanctions against Russia, which were adopted by the EU following the Russian invasion and “annexation” of the Crimea in February and March 2014, and the Russian invasion of the Donbas or eastern Ukraine beginning in April 2014.

Vladimir Putin’s goal appears to be as clear as his ongong violations of the Minsk II agreement’s terms: to block the extension of sanctions.

If he succeeds, he will have won a great victory over the Europeans, whose policies like those of the U.S. were dictated by pacifists and appeasers at least up until the adoption of Stage 3 sanctions against Russia on September 5, 2015. They came into force on Septemer 12, 2014.

Now if he can show “progress” toward implementing the Minsk II provisions, Putin and the pacifists and appeasers within the EU can push for an easing of sanctions.

Because all 28 members of the EU must vote affirmatively for the extension of sanctions, Putin needs only one vote to block their renewal.

So the push is on to show “progress”, with both the EU and the U.S. exerting pressure on Kiev to adopt constitutional amendments that would enshrine the special status of the Donetzk and Luhansk provinces controlled by so-called “separatists” in the Ukrainian constitution.

And the ceasefire seems to be taking hold.

If these moves lead to a blocking of sanctions, Putin will have achieved a great victory. Even if they don’t, the pattern of Ukrainian compliance with Minsk II in the face of constant violations of not only the ceasefire but other key provisions of Minsk II by the “separatists” puppets of Vladimir Putin and by Russia itself will continue.

Does anyone recall that all foreign fighters are to be withdrawn from the Donbas by December 31, 2015 under the terms of Minsk II?

Has or will there be any “progress” on that front?

See “Minsk II Agreement of February 12, 2015 (with full texts in English and Russian) February 13, 2014 (updated and revised).

The Russian Interfax news agency translation into English of the full text is reproduced at the end of this article.

Does anyone remember or care about the fact that Russia seized the Crimea by military force in February 2014, and continues to occupy what is sovereign territory of the Ukraine, under international law, by military force?

For the moment, all observers and decision-makers need to keep their eye on the ball and the big game in the Ukraine: the extension of all sanctions against Russia, including in particular third stage or Stage 3 sanctions.

Could anyone imagine, for an instant, that full implementation of the Minsk II Agreement would become remotely manageable or possible without them?

On the pressures by the EU and the U.S. on Kiev to adopt constitutional amendments giving special autonomous status to the Donbas, see

Claudia von Salzen (Kommentar),”DER KONFLIKT IN DER UKRAINE: Zerreißprobe in Kiew; Im Ukraine-Konflikt halten die Europäer an einem gescheiterten Abkommen fest. Das Land wird zur Verfassungsänderung gedrängt, während Russland keine Zugeständnisse macht,” Die Zeit, 1. September 2015 (Erschienen im Tagesspiegel am 1. September 2015 11:20 Uhr).

The Trenchant Observer


Full text in English of Minsk II Agreement of February 12, 2015

Translation provided by Russian Interfax news agency, as published in the International Business Times, February 12, 2015.

“1. An immediate and comprehensive ceasefire in certain areas of Ukraine’s Donetsk and Luhansk regions and its strict implementation starting at 0000 (Kiev time) on 15 February 2015.

2. Withdrawal of all heavy weapons by both sides at equal distances in order to create a security zone to be at least 50-km-wide from each other for 100mm or bigger calibre artillery systems, a 70-km-wide security zone for MLRS [multiple launch rocket systems], and a 140-km-wide security zone for Tornado-S, Uragan and Smerch MLRS and Tochka-U tactical missile systems:

– For the Ukrainian troops: from the factual contact line;

– For the armed formations of certain areas of Ukraine’s Donetsk and Luhansk regions: from the contact line according to the Minsk memorandum of 19 September 2014.

The withdrawal of the abovementioned heavy weapons shall begin no later than on the second day after the ceasefire and shall end within 14 days.

The OSCE will facilitate this process with the support of the Tripartite Contact Group.

3. Ensure effective monitoring and verification of the ceasefire regime and the withdrawal of heavy weapons by the OSCE from the first day of the withdrawal, with the use of all necessary technical means, including satellites, unmanned aerial vehicles, radar systems and so on.

4. On the first day following the withdrawal, to start the dialogue on the modalities of holding local elections in accordance with Ukrainian legislation and Ukraine’s law “On the special procedure of local self-governance in some districts of Donetsk and Luhansk regions” as well as on a future regime of these districts on the basis of this law.

Immediately, no later than in 30 days since the date of the signing of the given document, to adopt a Verkhovna Rada [Ukrainian parliament] resolution to specify the territory to which the special regime applies in accordance with the law of Ukraine “On the special procedure of local self-governance in some districts of Donetsk and Luhansk regions” on the basis of the line set by the Minsk memorandum of 19 September 2014.

5. Ensure pardon and amnesty by putting into force a law that would ban persecution and punishment of individuals in connection with the events that took place in some areas of the Donetsk and Luhansk regions of Ukraine.

6. Ensure the release and exchange of all the hostages and illegally held individuals on the basis of the “all for all” principle. This process should be completed no later then on the fifth day after the withdrawal.

7. Ensure safe access, delivery, storage and distribution of humanitarian aid among those who need it on the basis of an international mechanism.

8. Definition of the modalities of a complete restoration of socio-economic ties, including social transfers, such as pension payments or other payments (receipts and income, paying the utility bills on time and renewing taxation within the framework of Ukraine’s legal field).

To meet these objectives, Ukraine will restore control over the segment of its banking system in the areas affected by the conflict, and an international mechanism to facilitate these transfers may be set up.

9. Restoration of full control over the state border in the whole zone of the conflict on the part of the Ukrainian government, which should begin on the first day after local elections and finish after an all-inclusive political settlement (local elections in separate districts of Donetsk and Luhansk regions on the basis of Ukraine’s law, and constitutional reform) by the end of 2015, providing the implementation of clause 11 – in consultations and with the agreement of representatives of separate districts of Donetsk and Luhansk regions within the framework of the Tripartite Contact Group.

10. Withdrawal of all foreign armed formations, military hardware and mercenaries from Ukrainian territory under the OSCE’s supervision. Disarmament of all illegal groups.

11. Realization of constitutional reform in Ukraine, with the new constitution to enter into force by the end of 2015, and assuming as a key element the decentralization (taking into account the peculiarities of certain districts of Donetsk and Luhansk regions, as agreed with representatives of these districts), and the enactment of permanent legislation on the special status of certain districts of Donetsk and Luhansk regions in accordance with the measures specified in the footnotes, until the end of 2015 (see footnotes)

12. Issues related to local elections shall be discussed and agreed with representatives of certain districts of Donetsk and Luhansk regions within the framework of the Tripartite Contact Group on the basis of the Ukrainian law “On the temporary procedure for local self-government in certain districts of Donetsk and Luhansk regions”. Elections shall be held in compliance with the relevant OSCE standards and monitored by the OSCE ODIHR [Office for Democratic Institutions and Human Rights].

13. Intensification of the activities of the Tripartite Contact Group, including by means of establishing working groups to fulfil the respective aspects of the Minsk agreements. They will reflect the composition of the Tripartite Contact Group.


Such measures in accordance with the law “On the special procedure of local self-governance in some districts of Donetsk and Luhansk regions” include the following:

– Freedom from punishment, persecution and discrimination for individuals connected to the events that took place in certain districts of Donetsk and Luhansk regions;

– Right to self-determination of language;

– Participation of local governing bodies in the appointment of heads of prosecution bodies and courts in certain districts of Donetsk and Luhansk regions;

– The state will provide support to the socio-economic development of certain districts of Donetsk and Luhansk regions;

– Assistance from the central executive bodies with cross-border cooperation between certain districts of Donetsk and Luhansk regions and regions of the Russian Federation;

– Creation of people’s police detachments by the decision of local councils with the aim of maintaining social order in certain districts of Donetsk and Luhansk regions;

– The powers of local council deputies and public servants elected during pre-term elections called by the Ukrainian Supreme Council via this law cannot be prematurely terminated.

This document has been signed by the participants in the Tripartite Contact Group:

[OSCE] Ambassador Heidi Tagliavini

Second President of Ukraine L. [Leonid] Kuchma

Russian Ambassador to Ukraine M. [Mikhail] Zurabov

A. [Aleksandr or Oleksandr] Zakharchenko

I. [Igor or Ihor] Plotnitskiy [Plotnytskyy]”

REPRISE: August 20, 1968 — “Dubček, Svoboda!”

Monday, August 24th, 2015

From August 20, 2011

On this date, 43 years ago, the Soviet Union and its Warsaw Pact allies invaded Czechoslovakia, putting down with its tanks what its own broken ideology could no longer extinguish–ideals of freedom of the press and personal liberty free from the oppressive weight of a totalitarian state.

Those ideals and dreams survived, and triumphed.

REPRISE: August 20, 1968 — “Dubček, Svoboda!”

See The Trenchant Observer,
“August 20, 1968 — “Dubček, Svoboda!” (Personal Takes)”
August 20, 2010

The original article, from 2010, is reproduced below.


Alexander Dubcek

Personal Takes

I had a picture of Alexander Dubček on my wall when I was a student studying international law. He represented the hope of many in Czechoslovakia and beyond that the communist party might evolve from within. He and the President of Czechoslovakia, Ludvik Svoboda (whose last name meant “freedom” in Czech), were for a brief moment during “the Prague Spring” the team that stood for the triumph of the human spirit, of freedom, within a communist party and under a communist government.

The threat was too great for the leaders of the Soviet Union, and after a summer of feints and betrayals and illusions, they sent their tanks across the frontier into the sovereign territory of Czechoslovakia, on August 20, 1968.

29 years earlier, Adolph Hitler had sent his tanks into Prague, following the betrayal of Chamberlain at Munich which recognized the annexation of the Sudetenland, an area of Czechoslovakia settled by ethnic Germans.

In March 1938, the linking together or annexation (“Anschluss”) of Austria was consummated at the barrel of a gun. The infamous Munich Pact followed on September 30, ceding the Sudetenland to Germany. On March 15, 1939 Germany invaded and took direct control of the rest of Czechoslovakia. The invasion of Poland on September 1, 1939, followed months later, setting off World War II.

These events, for a young international lawyer, seemed together to define the core values of the structure and body of international law and institutions, which had begun following a terrible “world war” in the 17th century, the Thirty Years War (1618-1648), which at the Peace of Westphalia and through the pen of Hugo Grotius gave birth to the modern system of nation states and to the basic framework of principles and norms of international law.

The devastation and suffering that took place during The Thirty Years’ War underlined the need for rules governing the relations of princes and states. Three centuries later Hitler’s Anschluss and the Soviet invasion of Czechoslovakia defined, in a sense, the core values of international law.

Those core values, which had become clear by the 20th century, included the sanctity of the human person and the principle prohibiting the threat or use of force against the political independence or territorial integrity of any state, except in self-defense.

These values were defined by their utter violation, in much the same way that Albert Camus found that moral values were created by their brutal violation by Hitler’s armies and the Gestapo before and during World War II. Camus, who as editor of the French resistance newspaper Libération was a leader in the French resistance, articulated–particularly in “The Rebel” and his novel “The Plague”—a vision of how values acquired their substance and contours not through abstract logic, but more directly through the experience of the horrors of their violation.

So today, on August 20, 2010, let us salute the courage of Dubček and Svoboda in their struggle to put “a human face” on socialism. Years later, their countryman, Václav Havel, gave expression to the dream of freedom of the Prague Spring generation in a voice that resonated through Eastern Europe and the Soviet Union, and throughout the world. Havel became President of Czechoslovakia as a result of “the Velvet Revolution” in 1989.

I remember how in 1968, after the Soviet tanks had crushed the Prague Spring and the autonomous government of Alexander Dubček, it occurred to me that if there were ever a reform from within the Communist party led by a Soviet Dubček, there would be no Soviet tanks to crush the reform. As it turned out, I was only half right. Twenty years later, Mikhail Gorbachev, introducing glasnost and perestroika, led such a reform. Boris Yeltsin put down the reaction by overcoming tanks in 1991, leading to the breakup of the Soviet Union.

For insight into the Prague Spring, see Milan Kundera, The Unbearable Lightness of Being (1984), and the 1988 American movie of the same title, starring Daniel Day-Lewis, Lena Olin, and Juliette Binoche.

The Trenchant Observer