Archive for the ‘U.N. Charter’ Category

Whaling: Japan defies World Court, International Law, and U.N. Charter

Saturday, November 28th, 2015

Japan has decided to resume whaling in the Antarctic Ocean by the end of March after a hiatus since last year, a move likely to prompt international outrage.

The International Court of Justice ruled in March last year that Japan’s decades-old whale hunt in the Antarctic should stop, prompting Tokyo to cancel the bulk of its whaling for the 2014/2015 season.

The order from the United Nations court was binding and cannot be appealed.

–Reuters, “Japan to resume Antarctic whale hunt despite ICJ ruling; International Court of Justice ruled last year that Japanese whaling must stop, amid widespread outrage at the practice,” The Telegraph, November 28, 2015 (9:52AM GMT).

See also

Pdatrick Ramage, “Will Japan join the U.N. Security Council and defy the World Court on whaling?” IFAW (International Fund for Animal Welfare), October 14, 2015

In defying the judgment of the International Court of Justice, Japan is giving strong impetus to a growing tendency of major nations to ignore fundamental norms of the United Nations Charter, which has constituted the basic framework for international peace and security since 1945.

If Vladimir Putin can invade the Crimea and the eastern Ukraine in flagrant violation of the prohibition of the threat or use of force contained in Article 2(4) of the Charter, and Japan or any other country can defy a judgment of the ICJ in flagrant violation of Article 94(1) of the Charter, and other nations acquiesce in these actions, what is left of the postwar legal order?

What legal argument can Japan use if China decides to seize islands in the East China Sea or the South China Sea in violation of Article 2 (4) of the Charter?  Can it argue that some binding articles (e.g., Article 2 paragraph 4) of the Charter are really binding, but others (e.g., Aericle 94 paragraph 1) are not?

The great tragedy here is that Japan, a real democracy, is standing on the side of Putin in tearing down the U.N. Charter.

The Trenchant Observer

Thinking clearly about Putin and Syria

Tuesday, November 24th, 2015

Barack Obama, John Kerry and other Western leaders should always bear in mind wiho Vladimir Putin is, and what he has done in the last four years with respect to Syria, the Crimea, the eastern Ukraine, and in challenging NATO at every turn. Nor should they forget his probable role in the assassination in Moscow of his leading opponent, Boris Nemtsov, on February 27, 2015.

They should never forget that Putin and Russia pose a direct challenge and continuing assault on the post-World War II international legal and security order, anchored by the United Nations Charter and its prohibition in Article 2 (4) of the threat or use of force against the territorial integrity or political independence of any state.

The United Nations Charter is the cornerstone of the framework of international law and institutions which govern relations between states.  They protect not only the territorial integrity of states but also guarantee the observance of fundamental human rights such as the right to life, the physical integrity of the human person, due process of law, free speech, and the right to participate in government.

Putin by his “annexation” of the Crimea and ongoing invasion and occupation of the eastern Ukraine stands in opposition to all of that.

Since Russia’s and China’s veto of a mild U.N. Security Council resolution on February 4, 2012, Russia has played a dirty game in Syria.

Russia has done everything it could to support Bashar al-Assad’s murderous regime, which has committed war crimes and crimes against humanity on a massive scale. These crimes, which are ongoing, have resulted in the deaths of 250,000 to 300,000 Syrians, displaced millions of refugees, and helped to create the space in which ISIS has been allowed to grow and thrive.

The massive war crimes and crimes against humanity committed by al-Assad, with Russia’s complicity and support, have constituted an important element in the appeal of ISIS which has drawn tens of thousands of suporters from around the world to join its cause.

The U.N. peace process in Syria, which followed the Arab League’s 2011 peace process, was first headed by Kofi Annan in 2012, and subsequently led to two Geneva peace conferences.  It has served principally to provide Western countries with a pretext for not using force to bring al-Assad’s atrocities to an end, and Russia with a diplomatic vehicle to maintain him in power.

The idea of a negotiated solution to the multi-sided civil war in Syria is a pure illusion, under current circumstances.  This is the case even more so now than when Kofi Annan offered his “castles in the sky”, which  succeeded only in forestalling any significant use of force by the West to halt al-Assad’s atrocities.

“There can be no military solution in Syria, only a negotiated outcome” has been the mantra of those unwillng to take effective action against al-Assad. It worked for the Russians up until recently, when the growing threat of ISIS became manifest with the seizure of Ramadi and Mosul in Iraq, and most recently with deadly attacks on foreign soil and against a Russian airliner in Paris, Beirut, and on the Sinai peninsula.

Francois Hollande now seeks to build an international military coalition against ISIS with the Russians, following the November 13 bombings in Paris.

This is the same Hollande who was ready to sell NATO down the river with his insistence on the sale of two Mistral-class warships to Russia even after Russian “annexation” of the Crimea and in the face of its ongoing invasion of the eastern Ukraine.

It is the same Francois Hollande who with Angela Merkel negotiated a deal with Putin in October, in the so-called “Normandy format”, which removed the December 31, 2015 deadline for the withdrawal of all foreign fighters from the eastern Ukraine which had been established under the terms of the Minsk II Agreement of February 12, 2015.

There is of course already a coalition against ISIS, but one which Barack Obama has not led effectively in carrying out urgent military actions.

Hollande, at least, is trying to lead a coalition of states willing to take forceful military action. The extent to which he is playing the Russian game and/or is a dupe of Putin must be carefully and constantly analyzed, however, given his obvious interest in the lifting of EU sanctions against Russia.  In any event, Hollande will have to coordinate with the Americans.

Washington and NATO, for their part, should be extremely wary of any close cooperation with the Russians. Putin’s goal is to maintain Bashar al-Assad in power and to block any military actions against his regime by holding out illusions of “a political solution”.  At the same time, he seeks to undermine Western solidarity for upholding the economic sanctions imposed against Russia in response to its seizure of the Crimea and its ongoing invasion of the eastern Ukraine.

The West does not need Russia to take down ISIS. They don’t need Russia to secure “a political solution” in Syria, because such a solution is a pure illusion, and will remain one until facts on the ground have changed, including an end to Russia’s support of al-Assad and its attacks on non-ISIS insurgents seeking to overthrow him.

Above all, the West must resolutely resist any temptation to enter into an agreement with Putin that would lead toward a lifting of sanctions against Russia in exchange for Russian “cooperation” in resolving the Syrian conflict.

The Trenchant Observer

REPRISE: Veterans’ Day, 2011: “Where have all the flowers gone, long time passing?”

Wednesday, November 11th, 2015

First published, November 11, 2011

My uncle died in a field in northern France with a German bullet in his head. To him, and all the other veterans of America’s wars, I am immensely grateful for his, and their, sacrifice.

The Vision of Peace After World War II

At the end of World War II, the leaders of the world had a clear vision of the horrors of war, and acted with resolution to bring wars to a halt through the creation of the United Nations in San Francisco in 1945, and by codifying the international law governing the use of force in Article 2 paragraph 4 and Article 51 of the U.N. Charter. Article 2 paragraph 4 prohibited the use of force against the territorial integrity or political independence of members of the organization, a prohibition later extended to include all states. Article 51 provided for an exception in the case of an “armed attack”. These provisions have become customary international law and, importantly, also aquired the status of jus cogens or peremptory law from which there can be no exception or derogation by agreement.

A Vision of Perpetual War

Unfortunately, President Barack Obama and the United States are currently embarked on a policy based on the assumption of perpetual war. The implementation of this policy includes targeted assassinations through drone strikes and other means, the establishment of new drone bases throughout the northern part of Africa, the Middle East, and South Asia, and the development of new generations of drones some of which are as small as insects.

This policy has been implemented with little regard for the international law governing the use of force, and even less regard for the duty of the United States to contribute to the development of international law and institutions that can help ensure the security of the United States and other countries in the future.

These actions indicate that the United States has no current vision of peace as an overriding goal to be achieved, and no coherent strategy for actually achieving this objective.

Without the goal of peace, we are not likely to take the actions necessary to achieve peace, or to give those actions the urgent priority they should receive.

Where have all the flowers gone, long time passing?

In these circumstances, one is reminded of Pete Seeger’s famous song entitled “Where have all the flowers gone?” For the lyrics, click here.

Pete Seeger’s performance of this song is available on YouTube here.

See also,, “Grandpa’s War – A Veteran’s Day Post,” November 11, 2011, which contains recollections of America’s recent wars, and a link to a clip of Pete Seeger singing ” Where have all the flowers gone” with a moving montage of photographs evoking American experiences of war, created by the TheSpadecaller in 2008.

Joan Baez, in a more recent performance of the song, can be found on YouTube here.

Marlene Dietrich’s recording of this song in English is also found on YouTube here.

For Dietrich’s performance of the song in French, see “Qui peut dire ou vont les fleurs?” here.

For her performance of the German version of this song, see “Sag mir wo die Blumen sind”, here.

Marlene Dietrich, in a version of perhaps her most famous song, “Lili Marleen”, written in 1915 and later a hit among troops on both sides during World War II, takes us back to November 11, 1918 and the terrible war that preceded the armistice on that day. Her recording of the song, in English, is found on YouTube here. The original German version of the song is found here.

Obama’s Vision of Perpetual War and International Law

In his Nobel Prize Acceptance Speech in Oslo, on December 10, 2009, President Obama said:

In the wake of such destruction (World War II), and with the advent of the nuclear age, it became clear to victor and vanquished alike that the world needed institutions to prevent another world war. And so, a quarter century after the United States Senate rejected the League of Nations – an idea for which Woodrow Wilson received this prize – America led the world in constructing an architecture to keep the peace: a Marshall Plan and a United Nations, mechanisms to govern the waging of war, treaties to protect human rights, prevent genocide, restrict the most dangerous weapons.

I do not bring with me today a definitive solution to the problems of war. What I do know is that meeting these challenges will require the same vision, hard work, and persistence of those men and women who acted so boldly decades ago. And it will require us to think in new ways about the notions of just war and the imperatives of a just peace.

We must begin by acknowledging the hard truth: We will not eradicate violent conflict in our lifetimes. There will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified.

To begin with, I believe that all nations – strong and weak alike – must adhere to standards that govern the use of force. I – like any head of state – reserve the right to act unilaterally if necessary to defend my nation. Nevertheless, I am convinced that adhering to standards, international standards, strengthens those who do, and isolates and weakens those who don’t.

Closely parsed, these statements are full of contradictions, as when President Obama affirms:

(1) “We will not eradicate violent conflict in our lifetimes. There will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified.”
(2) “To begin with, I believe that all nations – strong and weak alike – must adhere to standards that govern the use of force.”
(3) “I – like any head of state – reserve the right to act unilaterally if necessary to defend my nation”; and
(4) “Nevertheless, I am convinced that adhering to standards, international standards, strengthens those who do, and isolates and weakens those who don’t.”

Affirmation (1) accepts violent conflict as inevitable. (2) states that all nations must adhere to the norms that govern the use of force. (3) states that he, the president, “like any head of state”, reserves the right to act unilaterally if necessary to defend his nation. And (4) states he is convinced adhering to “international standards” strengthens those who do.

These contradictions in Obama’s thinking, it is submitted, have contributed to the incoherence of U.S. foreign policy, particularly when measured against the requirements of international law, and the historical burden of strengthening international law and building better international institutions, which is no less important today than it was in 1945.

Reading these excerpts and the whole speech reveals that the president does not have a clear vision of peace as the goal, or a strategy on how to achieve that goal. While he pays lip service to observing international law, he insists that he has the paradoxical right–“like any head of state”–to violate it if necessary, in his view. So much for the concept of international law governing the use of force.

Without the clear and overriding goal of peace or a strategy for achieving peace, it is hard to see how we and other nations can view as the highest priority taking the steps necessary to achieve peace.

President Obama and the United States currently seem to have no overarching vision of peace, or strategy for achieving peace. As a result, their policies and actions are not guided by the pursuance of this goal in a strategic sense, but rather only by the demands of meeting with expediency the challenges of the moment.

By way of contrast, consider, if you will, the vision of the founders of the United Nations in 1945, particularly as set forth in the Preamble and Articles 1, 2, and 51 of the Charter.

We in the United States, like citizens in other countries, need a strong vision of peace and a coherent strategy for achieving it. Consequently, we need a president who has such a vision, and is guided by it.

The Trenchant Observer

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, 2015 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.”

The policy, if you can call it that, is to “work through the Russians” and to throw a “Hail Mary pass” on negotiations, hoping that through some divine intervention negotiations might lead to a solution to the conflict, when there is virtually no evidence to suggest that might happen.

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