Archive for the ‘U.S Foreign Relations’ Category

Airlift of NATO troops to Ukraine should be considered; U.N. Security Council meets on March 13 (links to video and press statements)

Thursday, March 13th, 2014

The Security Council met today to consider the grave threat to international peace and security represented by Russian aggression in the Ukraine including the military seizure of the Crimea.

Vladimir Putin has amassed such concentrated power that no one in an official position seems willing to oppose him. His decision to seize the Crimea by military force was reportedly taken by him and a very narrow circle of advisors which did not include the foreign minister or his representatives.

Putin now heads a rogue state and is accountable to no one, which places the world in a most precarious state given the fact that he commands thousands of nuclear weapons which, if a spark were to set off hostilities, could precipitate a nuclear exchange with wholly unforeseeable consequences.

Today the Security Council met to consider this delicate state of affairs, in which a Russian-orchestrated “referendum” is to be held in the Crimea on Sunday to decide whether to become part of Russia. Given the tightly choreographed scenario Putin is commanding, and clear indications from the Russian Duma, annexation by Russia is likely to follow within a matter of days. The fait accompli will then be achieved, with the only remaining question being whether Russian forces will move into other parts of the Ukraine.

Putin has adopted the worst agitprop techniques from Stalin’s times, using the “Big Lie” technique set forth by Adolf Hitler in Mein Kampf–and later put into practice in places like the Sudetenland.

While Europe and the U.S. have ruled out military action, one has to wonder whether an airlift of 10,000 or 20,000 NATO troops into the Ukraine in response to a request from Kiev for action in collective self-defense under Article 51 of the U.N. Charter might not help to bring Putin to his senses.

At today’s meeting of the Security Council, Prime Minister Arseniy Yatsenyuk of the Ukraine strongly set forth what has happened and his appeal for assistance from the Security Council and the international community.

The webcast video of the Security Council meeting, as well as press statements by various delegates and questions and answers with the press, can be found here.

Putin has done the West and the other civilized nations of the world a great favor: He has ripped away the last illusions about his character and the nature of the Russian state under his leadership.

Although those who followed Syria and the perfidious diplomacy of Russia over the last three years may have harbored few illusions about Putin, as he supported Syria’s al-Assad in committing war crimes and crimes against humanity on a massive scale (over 140,000 dead, so far), now even the naive leaders who preferred “to work through the Russians” in seeking solutions in Syria must have been brought to their senses.

At this point, it should have become clear that Putin will not be persuaded by rational considerations. To prevent him from moving into eastern parts of the Ukraine, or beyond, serious consideration should now be given to moving NATO troops, or troops from some NATO countries, into the Ukraine. Such action would bolster Ukrainian defenses against a rogue state currently engaged in military intervention against its territory.

Without a countervailing force, it is hard to see what can stop Putin from pursuing whatever couse he in his madness may choose. In his mind perhaps, he may think he has little to lose. He has already destroyed the bases for commercial and economic relations with the West.

It is not reassuring that many of his actions appear delusional. Dictators with delusions of grandeur can be the most dangerous of them all. He certainly does not appear to be as clear-eyed and level-headed as Nikita Khrushchev was during the Cuban Missile Crisis in 1962.

Like Julius Caesar, he has crossed the Rubicon. The entire edifice of his hold on power in Russia is now at stake. In such circumstances, one simply cannot predict what might happen, or what he might do.

The Trenchant Observer

Der Scharfsinniger Beobachter
L’Obervateur Incisif
El Observador Incisivo

Ukraine: latest news, opinion and analysis

Wednesday, March 5th, 2014


News Reports

(1) Muchael R. Gordon and Steven Ehrlanger, “U.S. Effort to Broker Russia-Ukraine Diplomacy Fails,” New York Times, March 5, 2014.

(2) Somini Senguptamarch, “Senior U.N. Envoy Threatened at Gunpoint in Crimea, New York Times, March 5, 2014.

(3) (Avec AFP), “Le cauchemar de l’envoyé spécial de l’ONU en Crimée, Le Soir, 5 mars 2014.

Menacé par des hommes armés, harcelé par la foule, Robert Serry a dû rentrer précipitamment à Kiev.

(4) Peter Baker, “No Easy Way Out of Ukraine Crisis,” New York Times, March 4, 2014.

This story, by the White House correspondent of the New York Times, who Obama frequently uses to explain what he is thinking–or even to channel his stream of consciousness, reflects the fact that Obama still doesn’t understand that the conduct of foreign policy is not just an analytical game, where you “explain” to the news media and other countries your analysis of a situation and your thought processes in considering various courses of action.

The public and the world need an executive, not an analyst. They, other nations and history will judge Obama not on the basis of his analyses and speeches, but rather on his actions, and the results they produce.

Opinion and Commentary

(1) Henry A. Kissinger, “how the Ukraine crisis ends,” Washington Post, March 5, 2014 (2:58 p.m.).

(2) Stefan Kornelius (Kommentar), “Russische Besetzung der Krim; Putin muss beeindruckt werdenr,” Süddeutsche Zeitung, “>5. März 2014 (13:14 Uhr).

Eine Woche Intensivkurs Putinismus haben gelehrt: Rationalität steht nicht hinter den Entscheidungen des russischen Präsidenten. Die EU muss klarmachen, dass sie die von Putin geschaffenen Fakten nicht akzeptiert. Nur die Entschlossenheit zu weitreichenden Sanktionen wird ihn zu Gesprächen bewegen.

(3) Lord Weidenfeld, “Außenpolitisch ist Barack Obama eine Niete, Die Welt, 4. März 2014.

In einem sind sich Freunde wie Feinde des US-Präsidenten einig: In der Außenpolitik agiert Barack Obama fast schon schockierend undurchsichtig. Als Führer der freien Welt taugt er nicht.

(4) Eric T. Hansen, “Europa muss Machtpolitik lernen (Kolumne Wir Amis), Die Zeit, 4. März 2014 (22:35 Uhr).

In Europa bilden wir uns ein, die Welt funktioniere auf der Basis von Vernunft, Rücksicht und Kompromissen. Der russische Präsident Putin zeigt uns, dass es nicht so ist.

The Trenchant Observer
(Der Scharfsinniger Beobachter)
(L’Obervateur Incisif)
(El Observador Incisivio)

Vladimir Putin’s March 4, 2014 press conference (transcript—partial—developing); video links to March 3, 2014 Security Council meeting on Ukraine

Tuesday, March 4th, 2014


“Vladimir Putin answered journalists’ questions on the situation in Ukraine, Press Conference, March 4, 2014, (15:40) Novo-Ogaryovo, Moscow Region.

For a video to the webcast of March 3, 2014 of the Security Council Meeting on Ukraine, click here.

For a video of the March 3 Security Council meeting webcast in the original language of the speaker, click here.

For links to wecast videos of statements made at the Press stakeout, click here.

The Security Council issued apress release on March 3, which contains a summery of the remarks made at the meeting. See U.N. Doc. SC/11305, March 3, 2014.

The fruits of pacifist foreign policies: Aggression in Ukraine, atrocities in Syria; Merkel’s fact-finding mission—a last chance to avert disaster?

Monday, March 3rd, 2014

The new hybrid pacifism

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Impact on Nuclear Proliferation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Trenchant Observer
(Der Scharfsinniger Beobachter)
(L’Obervateur Incisif)
(El Observador Incisivio)

At this moment, the following words from the Preamble to the United Nations Charter, in which the drafters explained their purposes, are particularly worth recalling:


• to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
• to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
• to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
• to promote social progress and better standards of life in larger freedom,

• to practice tolerance and live together in peace with one another as good neighbours, and
• to unite our strength to maintain international peace and security, and
• to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
• to employ international machinery for the promotion of the economic and social advancement of all peoples,


Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.

Russia seizes Crimea by force, threatens larger invasion of Ukraine: Putin gambles with Russia’s future in the powder keg of Europe

Saturday, March 1st, 2014


Latest developments

For an excellent overview of the situation in the Ukraine by the New York Times, see

Alison Shale and David M. herszenhorn, “Kremlin Clears Way for Force in Ukraine; Separatist Split Feared,” New York Times, March 1, 2014.

For a particuly insightful report, which places the most recent events in Crimea in perspective, see

Julia Smirnova (Simferopol), Das Protokoll von Putins feindlicher Übernahme; Als Russlands President Putin das Parlament um Truppen für eine Invasion auf der Krim bat, hatte sein Militär die Halbinsel längst unter Kontrolle. Die Moskauer Truppen kamen auf dem Schleichweg,” Die Welt, 1. Marz 2014 (19:22 Uhr).

Der Spiegel provides an overview of the latest developments in the Ukraine crisis, including the “blank check” given Putin by the upper house of parliament to use military foce in the Ukraine. Speculation abounds as to wherher Russian militar action will be limited to the Crimea, or also reach into other areas of the eastern Ukraine.

Benjamin Bidder (Moskau) “Putins Aufmarschpläne: Operation Protektorat Krim; Moskaus Militär-Beschluss gibt Putin freie Hand für eine Intervention auf der Krim; Kreml-Hardliner fordern sogar Vorstöße nach Donezk und Charkow; Doch Russlands Präsident hat wohl andere Pläne: Wahrscheinlich will er eher ein Protektorat – und nicht die vollständige Abtrennung der Halbinsel von der Ukraine,” Der Spiegel, 1. März 2014 (20:37 Uhr).

See also:

“Krim-Krise: Ukraine versetzt Militär in Alarmbereitschaft; Wird die Krim-Krise zum Krim-Krieg? Das russische Parlament gibt Präsident Putin grünes Licht für einen Militäreinsatz auf der ukrainischen Halbinsel; Ukraines Präsidentschaftskandidat Klitschko ruft die Ukraine zur “Generalmobilmachung” auf; Der Westen ist entsetzt; Der Nachrichtenüberblick,” Der Spiegel, 1. März 2014 (19:49 Uhr).

Important commentary includes the following:

Maxim Kireev (Moskau/Kommentar),”Einmarsch beim Brudervolk; Putin will auf der Krim den russischen Einfluss um jeden Preis verteidigen; Der Westen steht vor vollendeten Tatsachen und muss realisieren: Russland ist kein Partner, Die Zeit, 1. März 2014 (19:11 Uhr).

Stefan Kornelius (Kommentar), “Krise auf der Krim: Putin nimmt sich, was er will; Der russische Präsident ist zum Militäreinsatz entschlossen; Er hat auf der Krim schon Fakten geschaffen, bevor er das Mandat zum Einmarsch bekommen hat; So setzt Putin alles aufs Spiel, um ein bestimmtes Ziel zu erreichen,” Süddeutsche Zeitung, 1. März 2014 (14:52).


With these developments, an extremely dangerous situation has arisen in Europe involving nuclear superpowers — which calls to mind the atmosphere in August, 1914. Putin’s military intervention in the Ukraine may be driven by anger and hot-headedness, or cold-blooded calculation, but it has also been based on detailed planning done months in advance.

It will change inevitably the nature of relations between Russia and the West. The only questions are how long it will take Western leaders to wake up to the new realities, what they will do in response, and when they will act.

The Trenchant Observer
(Der Scharfsinniger Beobachter)
(l’Observateur Incisif)
(El Observador Incisivo)

The language issue in Ukraine: The Estonian exerience

Tuesday, February 25th, 2014

In considering the Russian language issue in the Ukraine, compare the experience of Estonia, where there is no linguistic relationship between Estonian and Russian.

See “Russian-language schools’ transition to partial Estonian-language instruction – What is happening and why?”, 31 January 2013.

The Trenchant Observer

Egypt’s new draft constitutiom

Tuesday, December 3rd, 2013



Samuel Forey, “Égypte : l’armée sort sa Constitution,” le Figaro, 2/12/2013

Egypt draft constitution alters roadmap; Draft paves way for presidential vote to precede legislative polls, against the post-July roadmap order of elections,” Al Jazeera, 02 Dec 2013(08:33).

Demandas de los expertos de la ONU sobre desapariciones forzadas, la memoria historica, Baltasar Garzon, y la ombra de la injusticia en Espana

Tuesday, October 1st, 2013

(Articulo en desarollo)

Natalia Junwuera, “Naciones Unidas reclama a España juzgar las desapariciones del franquismo,” El Pais, 30 SEP 2013.

Enviados de la ONU piden al Gobierno un plan estatal de búsqueda de fusilados
El franquismo en el banquillo
El Congreso recibe la recomendación de la ONU de tipificar la desaparición forzosa

See English translation here.

The Trenchant Observer
(El Observador Incisivo)

The Leopard and the Impala: Putin astutely plays Obama for a chump

Thursday, September 12th, 2013

We can’t know for sure what the outcome will be with respect to the Russian proposal to put chemical weapons in Syria under international control and eventually to destroy them.

But I have a sinking feeling in my stomach, as al-Assad argues that Israel will have to give up its chemical and nuclear weapons and Russia cuts down a French proposal for a strong Security Council resolution under Chapter VII of the U.N. Charter, adding that it doesn’t think anything more will be necessary than a (legally meaningless) Security Council “Presidential Statement” taking note of Syria’s accession to the Chemical Weapons Convention.

The “international control” that would be exercised under the ordinary terms of the Chemical Weapons Treaty would give al-Assad infinite opportunities to quibble with the inspectors, while his armies continue to commit war crimes and crimes against humanity against his people.

Several observations are in order:

1. Obama has shown through his vacillating and weak-kneed “pivots” on Syria that he doesn’t have the intestinal fortitude to pull the trigger on planned military action against Syria.

His character is weak. The world now knows this. The consequences to our national security are likely to be grave.

2. Obama has also shown that he is not a stalwart ally or leader, and instead is one who doesn’t hesitate to pull the rug out from under those whose help he has enlisted. A powerful example of this was offered by his decision to undercut Turkey and others who were planning military action a year ago, deciding instead “to work through the Russians”.

In this last week, we have seen multiple examples of how he undercuts members of his own team, e.g., after John Kerry made a strong case for military action and then Obama gave it the “soft-sell” in what was almost a casual manner. Or, following Samantha Power’s strong words regarding the perfidious role the Russians have played in the Security Council, when Obama made a 180 degree turn on a dime and ignored all of that, looking instead to the Russians to lead the effort to get Syria to give up their chemical weapons.

3. The president has also shown that he is the ultimate loner, deciding without consulting anyone else to submit a request for authorization for military action against Syria to the Congress.

It was a moment when he might have pulled the trigger. He flinched. Now his fleet that was on station in the Mediterranean, according to DEBKAfile, has dispersed.

Pulling the trigger in public, as opposed to pulling the trigger in the black shadows of the basement of the White House during a drone strike operation, turns out to be incredibly difficult for the president.

The Russian plan if fully implemented would solve the problem of chemical weapons in Syria. But it would also legitimize al-Assad’s hold on power, potentially at the cost of an undertaking to forswear the use of force against Syria no matter what happens there.

Just as he pulled the rug out from under the Turks a year ago, Obama is willing to pull the rug out from under the Syrian opposition forces we have been encouraging, in word if not in deed, for the last two years. Nor has Obama publicly supported the French who were preparing to present a strong draft Security Council resolution on Tuesday.

However abhorrent their support for and complicity in the crimes against humanity and the war crimes Bashar al-Assad and his regime have committed against the Syrian people, including through the use of chemical weapons at Ghouta on August 21, 2013, it is hard not to appreciate on a technical level the cold-blooded effectiveness with which Sergei Lavrov and Vladimir Putin have sized up Obama, and successfully played him for a chump.

Nonetheless, their bad faith is manifest from the simple fact that Putin continues to insist the attack at Ghouta was by rebel forces, contrary to all available evidence and without producing a shred of evidence himself for that baleful proposition.

The only way a chemical weapons ban in Syria would make any sense would be if it were imposed by the Security Council on Syria through a binding resolution adopted under the authority of Chapter VII of the U.N. Charter.

Even then, it would not make sense unless it opened the way to further collaboration with the Russians in an urgent effort to establish a ceasefire at the earliest opportunity.

Otherwise, the U.S. will have handed Putin and al-Assad an enormous military and diplomatic victory. Having forestalled a palpable risk of military action by the United States against Syria, they could now play the old delay and divide game where any solution depends on al-Assad’s agreement to this or that provision of this or that agreement. The impeteus for military action by Obama will have passed, after his powerful demonstration of weak resolve when the cards were in his hands.

One further point is that Obama’s failure to offer any detailed legal justification for military action against Syria has made it almost impossible for him to build a coalition and a base of support outside the circle of the oldest friends of the United States in Europe and the Gulf, and undoubtedly has also hurt him on Capitol Hill.

So, we can conclude that Obama is not likely to use force against Syria, even under the most compelling of circumstances.

His argument for military action against Syria is divorced from a cogent strategic rationale, while he shows that despite the gassing of over 1400 civilians in Ghouta on August 21, 2013, he remains determined not to try to shift the balance in Syria. Nothing in his policy towards Syria has changed; only the chemical weapons issue has grabbed his attention, and he appears willing to sell out the Syrian opposition and the Gulf states in order to pursue a solution to “his Syrian problem” by “working through the Russians”.

For the moment, he is left with his Russian friends, and what they might deign to do to help him extricate himself from the utter fiasco he has created in the last two years, and the last month in particular, in Syria–and politically back in the United States.

It is bad enough to have a president who is an incompetent foreign policy leader. That misfortune is infinitely compounded when that president is a control freak, and insists on making every foreign policy call himself.

Given his incompetence and that of his White House team, “the gang who couldn’t shoot straight”, the best we Americans can hope for is that through some kind of miracle Obama will relinquish tight control over foreign policy and allow his Secretary of State, who seems eminently qualified for the job, to take the lead. The president’s job would be to back him up.

But of course we live in a world of infinite possibilities, where elephants can fly. Maybe there will be a deal for al-Assad to surrender his chemical weapons, under the terms of a strong Security Council resolution.

Maybe Obama will find the intestinal fortitude to stand up to the Russians when they don’t play nice.

Maybe Obama will remember America’s friends in the Gulf, and how they are likely to react to a U.S. betrayal of the Syrian opposition.

Maybe the Republicans and Democrats in Congress will grasp the disastrous fiasco in Syria the United States has fallen into in the last month, and decide to provide the bipartisan support the president may need to act effectively in the current situation.

One can hope for the best, and hope to be surprised in a positive sense. Maybe elephants can fly.

The Trenchant Observer

A strong but narrow legal justification for military action in Syria: The key to building a strong coalition

Tuesday, August 27th, 2013

The Necessity and Challenge of Crafting a Strong Legal Justification for Military Action in Syria

President Barack Obama is learning, however belatedly, that other nations take international law seriously, and that the strength of the justification under international law for military action in Syria will be an important factor in determining who will support this new “Coalition of the Willing”.

Here, the United States needs to listen carefully to the legal arguments its allies may put forth to justify military action. After years of covert action, including the targeted executions program which continues, it is not an exaggeration to say that the administration has not manifested a deep understanding of the nuances of the international law governing the use of force, as understood by other countries.

It is striking that, over two years after the civil strife in Syria began, the U.S. is now casting about for legal justifrications for military action against the government of Bashar al-Assad in Syria.

Unfortunately, it is clear that the president does not have the benefit of, or perhaps is simply not listening to, first-rate advice on how best to craft a legal justification for military intervention in Syria.

For example, the president and his administration talk of “punishing” Bashar al-Assad for his use of chemical weapons last week in Syria. That is how a layman might understand the matter, but a sophisticated international lawyer with expertise on the legality of the use of force would immediately point out to the president that there is no right to “punish” another state for past acts, as it is universally recognized that “armed reprisals” are illegal under international law.

Nor, except as discussed below, is there any special, independent right under international law to attack another country, absent Security Council authorization, to deter that country from using chemical weapons against its own population in the future. There could potentially be a legal justification for exercise of the right of self-defense if an attack with chemical weapons against another state were imminent, leaving no time for deliberation. But that is not the case here.

How, then, can military action against the al-Assad regime be justified?

Generally, the threat or use of force against the territorial integrity or political independence of another state is prohibited by Article 2 paragraph 4 of the U.N. Charter. Three exceptions to this norm exist:

1) when military action is taken in individual or collective self-defense unter the terms of Article 51 of the U.N. Charter, when an armed attack” occurs or is immediately imminent, as pointed out above;

2) when the military action is taken under the rubric of regional enforcement action by a regional collective security organization, under Chapter VIII of the U.N. Charter, with the approval of the Security Council in accordance with Article 53(1); and

3) when the military action is taken directly pursuant to authorization by the Security Council under Chapter VII of the U.N. Charter (Articles 39, 41 and 42).

The first of these justifications does not fit the facts of the current case. Any interpretation justifying such action as self-defense would open the door to a similar justification for a military attack on Iran by the U.S. and/or Israel, since the required element of an armed attack would be expanded so far as to swallow up the prohibition of the use of force contained in Article 2(4).

Were Syria, on the other hand, to engage in a series of armed attacks on one of its neighbors, e.g., Turkey, other countries could legally respond to a request for assistance in exercise of the right of collective self-defense under Article 51, but any action taken in exercise of that right would have to be necessary and proportionate in order to bring the original attacks to a halt.

The second justification of “regional enforcement action” under Article 53 of the Charter requires Security Council authorization. In the past, the United States has taken the position that the failure to disapprove any such action after the fact satisfies the requirements of Article 53(1). This was the position taken by the John F. Kennedy administration to justify the imposition of an OAS blockade against Cuba in October, 1962. However, such an interpretation flies directly in the face of the text of Article 53(1), and represents precedents which are perhaps best left in the history books.

Finally, military action against Syria may be undertaken pursuant to the authorization of the Security Council, as occurred in the case of Libya.

However, in Syria Security Council approval is clearly not in the cards, at least not any time soon, in view of previous vetoes by Russia and China of even the mild draft resolution of February 4, 2012.

What justification might still be advanced, then, under these circumstances?

It is important that the legal justification that is advanced do the least damage possible to the prohibition of the use of force contained in Article 2(4), and be narrowly tailored to the circumstances of the Syrian case.

A preliminary point is that Russia appears to have been complicit in the commission of war crimes and crimes against humanity in Syria by its ongoing support and enabling of the al-Assad regime as it continues its commission of these international crimes.

Russian cries of grave violations of the U.N. Charter need to taken with a grain of salt, bearing this fact in mind.

The ultimate question boils down to whether the international community is to remain helpless whenever a permanent member of the Security Council blocks effective action by that body through use of its veto, in circumstances as extraordinary as those existing in Syria today.

The February 4, 2012 draft resolution, for example, was approved by a vote of 13-2, with only permanent members Russia and China voting against. Moreover, the General Assembly has condemned the atrocities of the al-Assad regime in resolutions adopted by overwhelming majorities.

The narrowest legal justification for military action against the al-Assad regime would be that such action is necessary and undertaken in order to protect the population of Syria against the continuing commission of war crimes and crimes against humanity, including but not limited to the use of chemical weapons, by the al-Assad regime.

Moreover, the United Nations in 2005 and 2006 reached decisions establishing “the responsibility to protect”. The Security Council adopted Resolution 1674 in 2006 on the protection of civilians in armed conflict. That resolution explicitly accepted and reaffirmed the “responsibility to protect” civilian populations as stated in the 2005 World Summit’s conclusions. Those provisions stated the following:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

While an absolutely literal reading of Article 2(4) of the U.N. Charter would appear to prohibit military action against Syria, in the special circumstances of the present case where the government of Syria is not only failing to protect its population against war crimes and crimes against humanity but is itself actively carrying out those crimes, perhaps the best legal justification for military action in Syria would be one justifying action aimed at halting the commission of those crimes.

A further provision would leave open the possibility of Russia and China playing a constructive role in resolving the situation in Syria in the future, by establishing that such military actions are being taken only as provisional measures of protection of the population against the continued commission of war crimes and crimes against humanity by the al-Assad regime, or anyone else. Further, such provisional measures would only continue until such time as the Security Council is able to take effective action to protect the people of Syria against the commission of these crimes.

Such a justification, it is submitted, would limit the precedent established by such military action to the narrowest of circumstances, those represented in the current Syrian case.

It would emphasize the goal of prevention of future harm, eschewing any language of “punishment” or reprisal. It would establish a framework that would permit a resolution of the Syrian conflict over time, and indeed offer Russia and others incentives to join in effective action through the Security Council at some point in the future.

Military action against Syria is a matter of grave importance. It should be backed by a strong but narrow legal justification such as that outlined above, both to assist in forming a coalition of supporters and in order to leave open a path for future collaboration by Russia and others in forging a cease-fire and rebuilding the country.

The president needs to pay attention to his legal justification, and get it right, now–before he acts.

The Trenchant Observer

For previous articles on Syria by The Trenchant Observer, see the Articles on Syria Page, or click here.