Archive for the ‘U.S. Intervention’ Category

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

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

David Petraeus offers clear policy suggestions on Syria and Iraq in testimony before Senate Armed Services Committee (video and transcript)

Wednesday, September 23rd, 2015

“U.S. Policy in the Middle East, C-Span, September 22, 2015.

Former CIA Director and General David Petraeus (Ret.) testified at a hearing on U.S. policy toward the Middle East and combating ISIS* in the region. He talked about his support for military enclaves in Syria and for greater military action against Syrian President Bashar al-Assad and ISIS. He also gave his assessment of the Russian military build-up in Syria and of the Iran nuclear agreement. 

At the beginning of his testimony, General Petraeus apologized for what what he called his “serious mistake” of sharing classified information with his biographer, with whom he also had an extramarital affair.

* The Islamic State of Iraq and Syria (ISIS), the Islamic State of Iraq and the Levant (ISIL), or DAISH/DAESH in Arabic is a militant group that has called itself the Islamic State.

the transcript of Petraeus’ testimony, and the C-Span video, are found here.

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

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

Tuesday, September 8th, 2015

Late News—-

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Trenchant Observer

The missing elements in the war against ISIS — Taking down their websites and engaging in robust public diplomacy

Friday, June 12th, 2015

UPDATE June 23, 2015

Europe is setting up a special police unit to monitor jihadist sites and content, andd to remove it.


Richard Spencer, “Europe-wide police unit to monitor Islamic State social media; Europol to set up specialist unit in response to concerns not enough is being done to prevent Isil propaganda,” The Telegraph, June 22, 2015 (12:15 p.m. BST).

This is the kind of action that is needed, on a very large scale, not only in Europe but in many other countries.


See Mark Mazzetti and Michael R. Gordon, “ISIS Is Winning the Social Media War, U.S. Concludes,” New York Times, June 12, 2015.

In a converstaion recently, a friend asked what The Observer would do to counter ISIS (or the self-denominated “Islamic State”).

From that conversation emerged crystalized thoughts from months of reflection.  In brief, I would suggest, at least for purposes of debate, that we consider the following:

The Enormity of the Threat

First of all, we must recognize the enormity of the threat to civilized nations represented by ISIS, and the huge progress they have made in waging a war for young Muslim minds. The existence and growth of a barbarian political and military power, in the heart of the Middle East, constitutes an existential threat to societies from the Middle East to Europe, the United States, and beyond.

The most daunting aspect of the threat is the rejection by ISIS and other jihadists of the fundamental moral and legal values undegirding European civilization for the last 400 years. These values have developed since the Peace of Westphalia and the birth of the modern nation state system and international law, following the ThIrty Years’ War (1618-1648) and the Peace of Westphalia in 1648, the Renaissance, the Reformation, the Enlightenment, and the French Revolution (including the revolutions in America and France).

These values spread through the rest of the world following World War II, with decolonization, the founding of the United Nations in 1945, and the universal recognition of governments’ legal obligations to protect fundmental human rights. They are now under attack.

International law obligations to protect fundamental human rights, refrain from the threat or use of force against the territorial integrity and political independence of any state, and to comply with international treaties, customary international law, and the United Nations Charter itself, are all challenged by the growth of ISIS and other jihadists. The latter reject the values upon which the former are founded, retreating to the use of barbarism in fighting all who do not submit to their twisted and extreme vision of Islamic rule.

To date, the West and other civilized countries have not recognized the larger threat posed by ISIS and other jihadists, or at least not reacted in a manner commensurate with the nature and dimensions of the threat.

Responses have been limited in the main to defending against potential terrorist threats to the homeland, and to killing as many jihadists as possible in order to limit their territorial gains.

This approach, however necessary, has essentially failed to stem the growth of ISIS and others. It fails to adequately address the essential nature of the problem, which is that it involves a war for young Muslim minds, not only in Syria, Iraq, northern Africa, Afghanistan and Pakistan, but also in Europe, America and in many other countries throughout the world.

What more can be done?

Proposition for Debate #1: Taking Down Their Websites

First, we should consider whether to attack the capabilities of ISIS and other jihadists to spread their views and to use slick propaganda to gather new recruits.

We could take down their websites as fast as they pop up, and ensure that videos of beheadings and other acts of barbarism cannot be viewed, or viewed for long, on the Internet or social media. We could, perhaps in concert with other countries, prohibit their reproduction on television, in newspapers, or on social media. Italy successfully followed a similar policy in dealing with terrorists in the 1970’s.

We could use all of our military and intelligence capabilities to take down these sites. Freedom of speech is critically important, but it does not include the right to shout fire in a theater, or to incite others to join groups which commit horrendous acts of violence.

To be sure, there will be a need for judicial supervision and review, in some form, of such activities.

One suspects that the intelligence agencies, which probably glean important information about visitors to such websites, will strongly oppose taking them down. Yet a larger view is needed to inform decisions.

Does the intelligence gathered outweigh the benefit of crippling the recruitment and propaganda activities of the jihadists? Who will decide?

We should consider and debate these questions.

Proposition for Debate #2: Creating a much more robust public diplomacy

Second, we could mount a much larger and more effective public diplomacy structure and campaign, something on the scale of the U.S. Information Agency in the 1950’s and 1960’s. Obviously, a large effort would need to be made on the Internet and social media.

But we could also rebuild and build out our shortwave and medium wave broadcast capabilities, fund them, and greatly expand the schedule of broadcasts on the Voice of America and Radio Free Europe / Radio Liberty, for example.

Before this idea is dismissed as obsolete, we should bear in mind that Internet sites can be blocked by those with territorial power such as the “Islamic State” or governments. Users and listeners can be tracked, as they were in Iran in 2009. One of the great advantages of older technologies like radio is that listeners cannot be tracked, and jamming is not always effective. Television can also be beamed by satellites or high-altitude balloons. In an authoritarian country in Africa or the Middle East, radio and broadcast television may still work as ways of getting through. One need only to have listened to a VOA broadcast in a country with no freedom of expression to appreciate this point.

What is clear is that the USIA, since it has been dismantled as an independent agency and wrapped into the Department od State, has lost much of its effectiveness. About all that remains are the VOA and RFE/RL broadcasts, on reduced schedules and to a much more limited number of countries.

Other partners in the battle against ISIS and other jihadists could be encouraged to bolster their own activities. Some form of coordination might be undertaken.

The separation between independent news, on the one hand, and opinion representing the views of the U.S. government, on the other, which flourished when the Agency was led by Edward R. Murrow in the 1950’s, should be strengthened.

Similarly, the laws prohibiting the U.S. government from directing its information activities at domestic audiences should be upheld.

There could be an issue here to the extent such a limitation limits the ways in which public diplomacy efforts can be directed at young Muslims in the United States. Other means of rebutting the jihadists will probably need to be found.

What is critical is that the intelligence agencies, or public diplomacy efforts, not be used to sell government policies to citizens in the U.S. This line has been crossed repeatedly since 9/11, but its strict observance going forward is absolutely critical.

Other Steps

Many defeats in the war for young Muslim minds may be attributed to the loss of respect the U.S. has suffered as a result of its use of torture at Abu Gharib and elsewhere, the conditions in which prisoners were held for years without trial or even military commission review at Guantanamo, the 2003 invasion of Iraq in clear violation of the U.N. Charter’s prohibition of the use of force, the use of drones outside war theaters in apparent violation of international law, and in general actions that do not sit well with America’s preferred view of itself as a city on a hill, where dedication to the pursuit of freedom and the rule of law, both at home and abroad, are the hallmarks of a democratic society and its government.

Improvement in these areas would in the long term help in the struggle for young Muslim minds, and also help reformers within Muslim societies win their struggle for the rule of law in their own countries.

But for now, two issues which urgently merit full discussion are those outlined above.

The Trenchant Observer

ISIS takes Ramadi and Palmyra; Obama undercuts Merkel and the EU with direct negotiations with Putin—who responds by cutting Russian transit routes to Afghanistan

Thursday, May 21st, 2015

U.S. foreign policy is in utter disarray, failing to meet the two greatest challenges to international peace and security in the world: (1) Russian military aggression in the Ukraine; and (2) The growing power of the Islamic State, emerging from the maelstrom of Syria and advancing against the collapsing military of an Iraqi state riddled by sectarian divisions.

Several factors and the cumulative impact of poor decisions over the last six years have contributed to this situation.

President Barack Obama has not been a trustworthy partner with U.S. allies.

In 2012, he apparently undercut Turkey and others as they were contemplating intervention in Syria.

He has cut adrift the Gulf States, among  America’s closest allies for 50 years, and has lost their trust, as evidenced by the failure of many of the Gulf’s leaders to attend Obama’s Camp David summit last week.

The conference showed all the signs of an impromptu affair suggested by someone in Obama’s entourage (like, “We better do something to placate the Gulf states which are unhappy over the Iran nuclear deal. Let’s invite them all to Camp David for a summit.”). The Summit was not well prepared, and produced no results worthy of note. Just words.

Secretary of State John Kerry apparently didn’t even bother to attend, busy as he was off on his fool’s errand of meeting with Putin in Sochi. Instead of the Secretary of State speaking to the media at the summit, it was Obama’s assistant, Ben Rhodes, who commented on the achievements of the gathering, such as they were.

This was amateurism run amok, evidence of a foreign policy in full disarray.

Kerry’s meetings with Putin and foreign minister Sergey Lavrov broke Russia’s isolation, and severely undercut Angela Merkel’s efforts to take a tough line during her visit to Moscow on May 9-10, where the emphasis was on German atonement for the depradations unleashed on Russia during World War II, and the “criminal” aggression by Russia against the Ukraine in the Crimea and the eastern Ukraine, in violation of international law and the bases of the European peace and security order.

In a follow-up to the Sochi discussions, Assistant Secretary of State Victoria “F… the EU” Nuland was scheduled to meet with her counterpart in Moscow.

By undercutting Merkel, Obama also undermined efforts to hold a consensus together within the EU for the reauthorization of sanctions against Russia when they cime up for renewal at the end of July.

In Iraq and Syria, the fall of Ramadi to ISIS, as well as Palmyra, demonstrated the bankruptcy of Obama’s (non) strategy for dealing with Syria, and the growing power of the so-called Islamic State, which has now occupied large portions of Syria (up to 50%), seized Ramadi and Mosul in Iraq, and  sent fighters to Afghanistan and Libya.

If we want to understand the true significance of Benghazi, we need to reflect on the fact that Obama campaigned in 2012 on the proposition that Al Qaeda had been vanquished, just like Bin Laden, whereas the administration knew for a fact this was not the case. That is the significance of the removal from Susan Rice’s talking points of any reference to Al Qaeda or Al Qaeda-connected groups.

On the two greatest challenges facing civilization and the West and the maintenance of international peace and security, (1) Russian military aggression against the Ukraine and purported annexation of the Crimea, and (2) the Syrian maelstrom which has given birth to ISIS and the growing threat to civilization it poses, the Obama administration has done next to nothing, aside from the modest economic sanctions imposed on a small number of Russian individuals and entities.

Even with respect to the nuclear deal with Iran, Obama has maneuvered himself into a weak bargaining position in the run-up to the self-imposed June 30 deadline for reaching a final agreement. Supreme Leader Ali Khamenei has reiterated his opposition to intrusive inspections, for example. With Obama pitching the deal to others before its final text has been agreed, and much of his legacy riding on its conclusion, the United Stats is in a poor position to walk away from a bad deal. Khamenai and the Iranians know this.

Obama’s bottom line with Putin appears to be that he wants to deal, to talk, to “negotiate”—even with Russia illegally occupying the Crimea and engaged in active military aggression in the eastern Ukraine. He wants Russian help on dealing with Syria (despite the evidence of the last four years that Russia has been anything but helpful), and also feels he needs Putin’s help in closing the nuclear deal in the P5 + 1 talks with Iran.

Obama is essentially proceeding from a position of weakness in dealing with Putin, having yielded to big business interests demanding that he impose no economic sanctions on Russia beyond those imposed by the EU. The threat of further sanctions against Russia for its continuing military invasion of the eastern Ukraine is politically impossible in Europe, and as a result is for all intents and purposes off the table.

Obama is unwilling to send lethal weapons to the Ukraine to help that country defend itself against Russia’s invasions.

He is willing to accept Putin’s invasion and “annexation” of the Crimea.

While only America can lead the Western alliance, instead of forging unity in facing down Putin, Obama has actively undercut his allies in Europe such as Angela Merkel.

In all of his actions toward both Putin and ISIS, Obama has demonstrated that he has no capacity for formulating a coherent strategy, and no stomach for ordering strong actions, with more than words, in response to the policies of military aggression and conquest in which both Russia and ISIS are engaged. In his pacifism and appeasement of Putin, he is immovable.

This is the tightly-controlled foreign policy Obama has been running out of his mind, and these are the results.


(1)  Ian Black (Middle East editor), “Seizure of Palmyra and Ramadi by Isis reveal gaping holes in US jihadi strategy; Far from being on the defensive, Islamic State has shown that the arms-length approach of the US to Iraq is failing and Washington is operating ‘day by day’,” The Guardian, May 21, 2015 (18:15).

“Robert Gates, the former US defence secretary, put it even more bluntly: “We don’t really have a strategy at all. We’re basically playing this day by day.” The urgent delivery of new anti-tank missiles for the Iraqi army has been one short-term response. But larger military and political questions are still unanswered.

But Obama’s credibility is extremely low. “Next time you read some grand statement by US officials on [the] campaign against Isis or see a Centcom [US Central Command] map about Isis reversals, just bin it,” commented Emile Hokayem, a respected Middle East expert with the International Institute of Strategic Studies.”

(2) Editorial Board, “The U.S. continues to send the wrong message to Russia,” Washington Post, May 21, 2015 (8:49 PM).

(3)  “Nachschub für Afghanistan: Russland schließt Transitweg für Nato; Für die Nato wird es schwieriger, ihre Kräfte in Afghanistan zu versorgen. Russland stellt sich quer. Regierungschef Medwedew beendet den Transit über sein Land,” Der Spiegel, 18. Mai 2015 (19:05 Uhr).

(4) Josef Joffe, “Im Bomben-Basar; Teheran zeigt den USA, was wahre Verhandlungskunst ist,” Die Zeit, 15. Abril 2015 (08:00 Uhr).

The Trenchant Observer

U.S. strategy and leadership needed: The Middle East and other countries hurtle into the Vortex

Friday, March 27th, 2015

On some days, the news is so disturbing that you want to take a broader view of what is going on in a region, or the world.

The Middle East appears to be convulsed by civil war and situations that could lead to further civil and international conflict. At times it seems that everyone has forgotten about international law. States don’t bother to offer legal justifications for their actions, or sometimes even admit they are responsible for them.

Chaos in the Middle East

Shiite Houthis backed by Iran are taking over Yemen, provoking military responses from Sunni Arab states.

Did anyone offer a legal justification for the actions of the Sunni military coalition?

Barack Obama’s statements several years ago that we should pursue a “Yemen-like” solution to the Syrian civil war don’t look so good today.

Libya has become a failed state, ruled now by violence and near anarchy.

U.S. bombers join in Iraqi government attacks on ISIS in Tikrit, as Iranian-led Shiite militias engaged in the battle for the city stand down or adopt ambiguous postures. The United States is now participating directly in the confict with ISIS in Iraq, in what seems to be an open-ended commitment.

This may be required in order to counter Iranian influence in Iraq, but has not yet been the subject of much public debate in the United Stares.

Israeli-Palestinian relations are at their lowest point since the Second Intifada, following Banjamin Netanyahu’s scurrilous playing of the race card in the last days before the recent elections to the Knesset. After warning right-wing voters that the Israeli Arabs were turning out in droves for the elections, Netanyahu has lost all respect as a leader of Israel.

In the days before the elections, Netanyahu also promised right-wing voters that there would never be a Palestinian state so long as he remained in office. That sounded the death knell for the two-state solution, at least for now.

There are no negotiations underway, and it is hard to see how they can be restarted so long as Netanyahu remains prime minister.

Relations with the Obama administration are at an all-time low, putting the U.S. automatic veto against any U.N. Security Council resolution adverse to Israel into play.

Charlie Rose interviews Bashar al-Assad, giving a megaphone–once again–to a mass murderer guilty of war crimes and crimes against humanity in Syria on a massive scale, where over 220,000 have been killed. With blood dripping from his hands, al-Assad wants to make a deal with the West to fight the Islamic State group or ISIS, leaving his regime and him in power.

In his diffidence to al-Assad, Rose refers to dropping barrel bombs and other war crimes and crimes against humanity as “actions that others look down on” or words to that effect.

Regarding Rose’s shameful interview with al-Assad in September, 2013, on the eve on an expected vote in Congress authorizing Obama to use military force against Syria–following the use of chemical weapons by Syria at Ghouta on August 21, 2013–see

See “CBS News and PBS: Network of Edward R. Murrow and Walter Cronkite, and PBS, give al-Assad megaphone for propaganda to oppose Obama—ON MONDAY!,” The Trenchant Observer, September 8, 2013.

The Islamic State group, the al-Nusra front, the Syrian army, Hezbollah, Iran, Russia, Western-backed so-called “moderate” rebels, and who knows who else mix it up in the meat grinder of Syria.

Threats Beyond the Middle East

An unsteady truce holds in the eastern Ukraine. Putin sits poised like a leopard, waiting for the West to be distracted and/or show disunity before he strikes at Mariupol and continues building his strategic land bridge to the Crimea.

The Greek prime minister suggests, on the eve of his trip to Moscow, that Greece may veto the renewal of EU sanctions against Russia when they come up for renewal later this year.

Putin is driven by a need to continually engage the West in conflict, in order to distract his population from their sinking economy and worsening living conditions. He also seems to be on the path of delusions of grandeur, as he would be the leader who restored the Russian Empire and its sphere of influence.

See John Simpson, “Vladimir Putin is fighting for political survival – by provoking unrest in Ukraine, New Statesman, March 30, 2015 (9:44 a.m)

Writing from Sevastapol, the BBC World Affairs editor John Simpson explains how Russia’s premiere is stalling. His Crimean coup is an attempt to distract the west.

No one refers to international law.

Endless war, including war between Sunni states and Iran, is highly possible.

Once the genie of a broad Sunni-Shiite war in the Middle East is out of the bottle, who could contain it again?

In Washington, as in Europe and the Middle East, leaders are needed to deal with these situations effectively, pursuant to a coherent strategy. Yet such leaders are hard to find.

Into the Vortex we all go.

The Trenchant Observer