Posts Tagged ‘jus cogens’

Reports that Merkel is negotiating a settlement with Putin that would recognize Russian annexation of the Crimea, in violation of peremptory norms of international law

Wednesday, August 6th, 2014

Forbes describes reports that German Chancellor Angela Merkel and Russian President Vladimir Putin are working on “a closed-door peace plan” that would recognize Russian annexation of the Crimea in exchange for securing the border between Russia and the Ukraine. According to Forbes,

Germany’s chancellor Angela Merkel and Russian president Vladimir Putin are reportedly working on a closed-door peace plan that involves securing the border and acceptance of Russia’s March 17 annexation of Crimea, a former Ukrainian autonomous region in the Black Sea. Germany is keen on ending this ordeal. Russia supplies 40% of Germany’s imported natural gas.

–”How The Ukraine-Russia Crisis Might End,” Forbes, August 5, 2014 (4:23PM).

If there is any substance to the reports, Merkel would be well-advised to bring in her international lawyers from the foreign ministry, who might be able to educate her regarding the fact that any such agreement, to recognize the acquisition of territory acquired by the illegal use of force in violation of Article 2 paragraph 4 of the U.N. Charter, would be null and void under the international law principle of jus cogens.

Jus cogens is mandatory or peremptory law, from which there can be no derogation by agreement. It is universally recognized that Article 2(4) is a norm of jus cogens under international law.

On a political level, it is distressing in the extreme that due to President Barack Obama’s inability to lead the Atlantic Alliance, Merkel and other European leaders feel free to engage in free-lancing by negotiating directly with the aggressor, Vladimir Putin, instead of adopting a united front among NATO, the EU, the U.S., and other allies.

The results are clear to see.

So far, Putin has been able to achieve his objectives in pursuit of policies characterized by xenophobic nationalism and aggression, war propaganda in the mold of the Third Reich and Joseph Stalin, and the coordination of thugs, mercenaries and irregular Russian forces in the eastern Ukraine who have systematically violated the fundamental human rights of the inhabitants of the region.

If Merkel thinks she can cut a deal with Putin that recognizes the military invasion and annexation of the Crimea, she had better study some basic principles of international law before proceeding further. She might also reflect on the fact that Article 25 of the German Grundgesetz or Constitution requires Germany to comply with norms of customary and general international law, including jus cogens norms.

The Trenchant Observer

Der Scharfsinniger Beobachter
L’Observateur Incisif
El Observador Incisivo

Russia seizes Crimea through use of military force

Friday, February 28th, 2014

While Obama and his administration appear unable to think quickly on their feet and to understand what is going on as Russia seizes control of the Crimea by military force, independent observers with a keen eye can figure out what is happening and the significance of events.

See, for example,

(1) Luke Harding, “Crimean coup is payback by Putin for Ukraine’s revolution; After what Moscow regards as the western-backed takeover of Kiev, the Kremlin’s choreography has been impressive,” The Guardian, February 28, 2014.

(2) “Krim-Regierungschef bittet Russland um Hilfe; Der prorussische Regierungschef hat sich zum Oberbefehlshaber des Militärs und der Polizei erklärt. Er bittet Russland um Unterstützung; Der Kreml will die Bitte prüfen,” Die Zeit, 1. März 2014 (9:39 Uhr).

Little room for doubt exists that a coup orchestrated and carried out by the Russians has taken place. The new president of the regional assembly, elected under the gaze of men with automatic weapons who had seized the regional parliament building, made the following statements, according to Die Zeit:

Angesichts der angespannten Lage auf der ukrainischen Halbinsel Krim hat der Regierungschef der autonomen Teilrepublik Russland Unterstützung gebeten. “Aus Verantwortung für das Leben und die Sicherheit der Bürger bitte ich den russischen Präsidenten Wladimir Putin um Hilfe bei der Sicherung von Frieden und Ruhe auf dem Gebiet der Krim”, sagte Sergej Axjonow in einer von örtlichen Medien verbreiteten und im russischen Fernsehen ausgestrahlten Botschaft.

Axjonow sagte zudem, er habe die Befehlsgewalt über alle Militäreinheiten sowie für die Polizei und Sicherheitskräfte auf der Halbinsel übernommen. Alle Kommandeure sollten sich seiner Befehlsgewalt fügen oder ihre Posten verlassen.…Aksjonow, der am Donnerstag vom Krim-Parlament zum Regierungschef ernannt worden war, ist der Chef der größten pro-russischen Partei auf der Halbinsel.

What has occurred is a seizure of control of the Crimea by the Russians, in what might be termed a Blitzputsch, a kind of a lightning military coup d’etat (here by a foreign power) that is over before anyone knows what is going on.

Now the charade of Russian citizens in the Crimea requesting military intervention to protect Russian citizens is being played out, as we write. This is a well-orchestrated act that was aleady foretold by Dmitri Medvedev when he claimed Russians lives and safety were being threatened earlier this week, on February 24.

See

(1) “Konflikt in der Ukraine: Krim-Regierung ruft Putin um Hilfe an,” Der Spiegel, March 1, 2014 (8:40).

Die Regierung der Krim geht überraschend einen großen Schritt Richtung Russland: Der Premier der Halbinsel Sergej Aksjonow bittet den Kreml um Unterstützung “bei der Friedenssicherung” in der Region. Er übernahm zudem die Kontrolle über Flotte, Polizei und Innenministerium.

(2) “Russia’s Prime Minister Medvedev claims direct threat to Russian citizens, laying basis for Russian military intervention in Ukraine,” The Trenchant Observer, February 24, 2014.

(3) Pilar Bonet, “El nuevo líder de Crimea pide ayuda a Putin para restablecer la paz,” El Pais, 28 Febrero 2014 (23:57 CET).

–Un portavoz del Kremlin responde que no ignorarán la petición de la región ucrania prorrusa
–El jefe del Gobierno pone bajo su control “temporal” todas las instituciones armadas de Crimea
–Obama advierte a Rusia de que intervenir en Ucrania tendrá “costes”
–La tensión en Crimea crece tras la ocupación militar de dos aeropuertos
–Kiev teme un estallido de las tensiones entre comunidades

Now we will see if Obama and the Europeans have the guts, the commitment and the resources to stand up to the mighty King of the Caucasus and his well-honed propaganda machine.

Among the first responses to “Putin’s coup” that should be implemented are the following:

1) Expulsion of Russia from the Group of Eight;

2) Repeal of most-favored-nation status for Russia by the U.S.

3) Re-establishment of the Johnson-Vanik amendment, which was reapealed when MFN status was granted to Russia in 2012.

4) Imposition of strong eonomic sanctions on Russia. If they block transit routes for America’s withdrawal from Afghanistan, so be it.

5) If the Russians do not withdraw from the Crimea, agreement on early accession of the Ukraine to full NATO membership.

The point is that Putin will not yield to the persuasive logic of fancy words. Something much stronger, like actions that directly hurt Russia, must be used instead.

Europe, America and the other civilized nations in the world must now take firm action against Russia, in order to uphold and reaffirm the prohibition of the threat or use of force contained in Article 2(4) of the United Nations Charter.

The Trenchant Observer

UKRAINE: Russia military intervention underway in Crimea, in flagrant violation of international law

Friday, February 28th, 2014

Developing

Background

“Ukraine: Russian military interventiom underway or likely, as Putin follows Hitler’s playbook in the Crimea,” The Trenchant Observer, February 27, 2014.

“U.S. should revoke MFN status and impose sanctions on Putin and Moscow if Russia intervenes in Ukraine,” The Trenchant Observer, February 25, 2014.

“Russia’s Prime Minister Medvedev claims direct threat to Russian citizens, laying basis for Russian military intervention in Ukraine,” The Trenchant Observer, February 24, 2014.

Russia is currently carrying out a military intervention in the Crimea, in an open act of aggression against the territorial integrity and political independence of the Ukraine, thereby violating the bedrock principle prohibiting the threat or use of force contained in Article 2(4) of the U.N. Charter.

The lies and subterfuges being employed by Vladimir Putin and Russia hark back to the lies and subterfuges of Adolf Hitler when he secured the annexation of the Sudetenland through the threat of military intervention, scheduled to occur a day after the infamous Munich Pact was signed on September 29-30, 1938.

Putin publicly calls for a de-escalation of tensions in the Crimea, as Russian helicopters cross into Ukraine and Russian troop transports land at airports secured by Russian soldiers wearing unmarked uniforms. The president of the regional parliament is replaced by a Russian citizen following the seizure and occupation of the parliament building by similarly disguised Russian soldiers wearing military uniforms with no insignia. Meanwhile, Putin is conducting large-scale military exercises in western Russia including areas adjacent to the border with the Ukraine.

International law is absolutely clear in its prohibition of the threat or use of force against the territorial integrity or political independence of any country. This is a principle of jus cogens or mandatory law from which there can be no exception by way of agreement. Even if treaties between Ukraine and Russia granted Russia a right of military intervention, which they do not, their provisions would be void under the jus cogens principle contained in Article 2(4) of the U.N. Charter.

The use of Russian military personnel who are in the Crimea pursuant to treaties between Ukraine and Russia does not authorize them to act outside of the specific terms of the treaties, and any such actions such as those currently underway constitute acts of aggression.

Russia cannot come to the assistance of Russians in the Crimea to protect them against illusory threats whch have no basis in reality, and when the only threats in the Crimea are those that are being made by the Russians themselves.

The Russians, under international law, cannot intervene militarily to restore order in the Crimea, especially when it is they who have disturbed and are disturbing law and order on the Crimean peninsula.

No seizure of the Crimea by Russian military forces will ever be recognized under international law. Putin might well recall the cases of Lithuania, Latvia and Estonia, which were invaded by the Soviet Union in 1940 but were never recognized as part of the Soviet Union under international law.

The Russian threat is not likely to subside in a matter of days or weeks, absent Putin’s recognition that he has made a enormous geopolitical mistake and absent a decision by him to quickly back down. In Czecholslovakia, it will be recalled, the Soviet Union made a number of thrusts and feints over several months, before finally invading the country on August 20, 1968.

If Putin does not desist from his present couse of action, he will become the Leonid Brezhnev of our times. He should also bear in mind that actions such as military intervention in the Ukraine, whatever their short-term popularity in Russia, will only hasten the day that the Maidan comes to Red Square.

For information on the latest developments, see the following articles (list will be updated):

(1) “+++ Minutenprotokoll zur Krise in der Ukraine +++: Grenzposten verschanzen sich vor russischen Marinesoldaten,” Der Spiegel, 28. februar 2014 (12:59 Uhr).

Äußerstt angespannte Lage am Freitag auf der Krim: Über Nacht haben unbekannte Bewaffnete zwei Flughäfen besetzt. Russische Militärhelikopter kreuzten die Grenze zur Ukraine – und Marinesoldaten umstellen einen ukrainischen Grenzposten. Die Ereignisse des Tages im Minutenprotokoll.

(2) Julia Smirnova (Sewastopol), “‘Jetzt kämpfe ich auch gegen den Faschismus!’” Die Welt, 28. februar 2014 (17:09 Uhr).

In Sewastopol auf der Krim ist ein gewaltiges russisches Militärpotenzial versammelt. Es kam zu ersten Besetzungen durch ethnische Russen. Sie fühlen sich bedroht. Unsere Reporterin hat sie getroffen. Von Julia Smirnova, Sewastopol

(3) “Konflikt auf Halbinsel Krim: Ukraine protestiert gegen “Verletzung des Luftraums”, Süddeutsche Zeitung, 28. Februar 2014 (21:11). [outstanding overview of latest developments]

+++ Angeblich mehr als 2000 russische Soldaten auf der Krim gelandet +++ Ukraine fordert Russland zur Einhaltung bilateraler Verträge auf +++ Gestürzter Präsident: Russland soll “Chaos und Terror” unterbinden, aber nicht militärisch eingreifen +++ UN-Sicherheitsrat tritt zusammen +++

.
In response to the Russian military intervention in the Crimea, President Obama went on TV at 6:00 p.m. EST to state that if Russia intervenes in Ukraine there will be “costs”. Coming from the weakest foreign policy leader of the U.S. since before World War II, those words are hardly likely to make Putin flinch.

“Costs” and consequences that can be initiated immediately, in the U.S. House and Senate, include drafting legislation that would repeal the most-favord-nation treatment given to Russia in 2012, and the drafting of legislation imposing stiff sanctions on Russia and high Russian officials responsible for the military intervention in the Ukraine.

Secondly, the EU can draft stiff sanctions legislation against Russia and Ruusian leaders.

Third, diplomats representing their countries at the U.N. can begin drafting a General Assembly resolution condemning Russia for its military intervention in Ukraine, and lobbying delegations from different countries for their support. To be sure, a Security Council resolution should be drafted and put to a vote. However, given the certainty that Russia will veto any such resolution (no reason not to put it to public discussion and a vote), it will be useful now to work on generating support for the General Assembly resolution, which should follow as soon ss possible following a Russian veto of the Security Council draft resolution.

The naivete of the Obama administration in dealing with Russia has been underlined in recent days by the inability of any officials as late as yesterday to imagine a Russian military intervention in Ukraine.

Given the weakness and incompetence of Obama and his administration, we can only hope that countries like Poland, Germany and France can help Europe take the lead in resolving the current crisis. Financial support from the U.S. will in any event be required as part of any solution to the conflict.

While Obama shows disdain for international law through his actions and his inability to articulate its norms even in support of vital U.S. objectives abd interests, the situation is different in Europe. There, politicians are not afraid to say the words “international law”. Indeed, the entire EU is built on international law. Moreover, the prohibition against the threat or use of force was born from the horrors which followed the experience of the annexation of the Sudetenland in 1938 and the invasion of Poland in 1939.

What hangs in the balance with the Russian military intervention in the Ukraine, now, is nothing less than the prohibition of the threat or use of force contained in Article 2(4). To seek a resolution to the current crisis without building every argument on that central fact, would be to miss the entire point. To allow the Russian intervention to stand would be to open the doors to countless new conflicts and wars in the future.

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

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

Monday, November 11th, 2013

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, pasquetflowerponderings.blogspot.com, “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 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

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

Friday, November 11th, 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, pasquetflowerponderings.blogspot.com, “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 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

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

Comments are invited.

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World

Sunday, July 17th, 2011

Recently a number of articles have been published that are of particular interest with respect to the development and use of drones.

See

William Wan and Peter Finn, “Global race on to match U.S. drone capabilities, Washington Post, July 4, 2011

Elisabeth Bumiller and Thom Shanker, “War Evolves With Drones, Some Tiny as Bugs,” New York Times, June 19, 2011

Peter Beaumont, “Campaigners seek arrest of former CIA legal chief over Pakistan drone attacks: UK human rights lawyer leads bid to have John Rizzo arrested over claims he approved attacks that killed hundreds of people,” The Guardian, July 15.2010

Michael Tennant, “U.S. Begins Drone Strikes in Somalia,” The New American, July 14, 2011

In previous articles, The Trenchant Observer has pointed to some of the troubling issues in international law raised by the use of unpiloted aircraft or drones in situations removed from the active battlefield in an on-going armed conflict.

Now, with other countries driving to develop comparable military capabilities in the form of drones, some as tiny as bugs, the short-sightedness of U.S. military policy regarding drones has come fully into view.

Moreover, as far as is publicly known, the United States has done nothing to develop in cooperation with other countries new international legal regimes and norms that might help to control what appears to be a headlong rush toward real anarchy among the nations of the world.

President Barack Obama rarely, if ever, speaks of international law. In his Nobel Prize acceptance speech, he spoke not of international law and legal norms, but rather of international “rules” or “norms”. The words “international law” are absent from his discourse.

One consequence has been an approach to international law that can be summed up as “If I can get away with it I can do it,” a formulation that goes back to Justice Oliver Wendell Holmes Jr.’s famous dictum about “the bad man theory of law”.

The system of international law is different from the domestic system in which a “bad man” might focus on the law only in terms of what he might be able to get away with. For the nations that are subject to international law are themselves the creators of the norms of international law. They are at once the legislature, the sheriff and the potential offender. This creates a dual responsibility on the part of nation states and their lawyers: They must not simply interpret international legal norms in a permissive way that allows them to do what they want, but also act to safeguard and strengthen the system of international law, and the way international legal norms wiil be interpreted by other countries. This is sometimes referred to by international lawyers as the “double-function” (or “dédoublement fonctionnel”) of international lawyers and states: in choosing a course of action they must not only seek to pursue their own short-term objectives, but also the critically-important longer-term objectives of building a viable international legal order that will contribute to their own security.

It is precisely in this area, of the obligation to build future international norms and regimes, while not weakening those that exist, that the United States has utterly failed with respect to drones. In past eras, legal regimes to prevent the use of space for military purposes, or the seabed, were developed in order to shape the future environment in which force might be employed. This the Obama administration has failed to do with respect to drones, both as a result of a very short-sighted pursuit of immediate military advantages through their use, and as a result of the fact that President Obama does not seem to understand very deeply the function of international law in safeguarding the nation’s security.

To facilitate reflection on these issues and the legality under international law of the use of drones, a review of the following articles previously published here might be useful.

See

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes, August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council, June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications, February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

As Thomas M. Frank (1931-2009), a distinguished international lawyer and professor of international law at New York University, and Edward Weisband once observed, we should be careful whether to observe and how to interpret international law, because “the law you make may be your own.”

See Thomas M. Franck and Edward Weisband, “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own,” Stanford Law Review, Vol. 22, pp. 979-1014 (1970).

The Trenchant Observer

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UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes

Friday, August 6th, 2010

UPDATE

The Center for Constitutional Rights and the American Civil Liberties Union have filed suit against the Treasury Department for rules that require them to obtain a license before they can challenge the inclusion of Anwar al-Aulaqi on the U.S. list of individiduals who may be targeted for extrajudicial execution.

Spencer S. Hsu, “Civil rights groups sue Treasury over targeting of terror suspects for killing, Washington Post, August 4, 2010

The targeting of Al-Aulaqi raises questions regarding the bases of the international law governing the use of force. Beyond the question of whether the U.S. is or is not violating the most basic norms of iternational law, the Al-Alauqi case raises fundamental questions relating to our international legal strategy and our vision of the future world we hope to shape. On April 7, 2010, we wrote the following:

The United States has gotten itself into a terrible jam, having adopted the legal justification of the Bush administration for targeted killings.

The Washington Post reports today that,

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command…

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity….

–Greg Miller, “Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill,” Washington Post, April 7, 2010

If this death warrant is executed in circumstances that do not justify the use of force in self-defense, either at the international or at the domestic level with the permission of the territorial state, its execution may constitute a war crime.

Some lawyers have won the argument within the Obama administration that it is lawful to kill a member of a terrorist organization, particularly if he has been involved in past acts of terrorism, wherever he can be found.

This argument is based on provisions of humanitarian law or “the law of war” that distinguish between combatants who are lawful targets and non-combatants who are not.

It ignores, however, the fact that provisions of humanitarian law are themselves limited by key provisions of the United Nations Charter, particularly Article 2 paragraph 4 which prohibits the use of force against the territorial integrity or political independence of any state, except in the case of self-defense against an armed attack as provided in Article 51.

It is universally recognized that Article 2 paragraph 4 is a norm of jus cogens, or mandatory law from which there can be no exception. Humanitarian law grants no right to act beyond the limitations of this prohibition.

The use of lethal force to punish past actions, moreover, constitutes an armed reprisal, which is universally recognized as prohibited by international law.

In other cases, where the territorial state grants its permission to a foreign state to carry out a targeted killing, such a killing is legal under international law only if it meets the requirements of international human rights law. For the territorial state can cede to another state no greater rights than it itself possesses, and indeed it is far from clear that it can do even this.

Both Article 2 paragraph 4 of the Charter and international human rights law allow for the use of lethal force as may be required for self-defense or for self-defense and the defense of others by the authorities of the territorial state.

In both cases the requirement is that force be used only as a last resort against an ongoing or imminent use of force by the target, or after judicial proceedings and due process of law.

This element is initially self-judging in character, opening the door to abuse. However, just as police allegations that they have acted in self-defense are subject to judicial review, the self-defense justification of a state conducting targeted killings, and of the individuals executing the state’s orders, are subject to review by the courts of other countries exercising universal jurisdiction and potentially, at least in the future, by the International Criminal Court. Actions taken by a state in exercise of the right of self-defense are, moreover, to be reported to the U.N. Security Council under Article 51 of the Charter.

The use of force against an individual who has laid down his arms or ceased and desisted from active participation in attacks (or, in the language of humanitarian law, has withdrawn from combat or placed himself hors de combat) is an extrajudicial killing or assassination, and would also constitute a war crime.

The problem here is that the U.S. government has become so accustomed to being prosecutor, judge and executioner that it has forgotten that international legal norms are involved, whose content and validity are necessarily determined by others, and that the ultimate validity of the legal justifications for targeted killings are likely one day to be determined by the judges of an international court or a national court exercising universal jurisdiction.

Just as individuals who participated in the “harsh interrogation techniques” program carried out under the Bush administration would be well advised to carefully choose the countries they travel to, now but also particularly in five or ten years, those individuals currently involved in the targeted killings program should also be very confident they are acting in lawful exercise of the right of self-defense when executing their orders.

For if their actions do not satisfy the requirements of self-defense, they constitute the commission of unlawful assassinations, and probably war crimes. As established at Nuremberg, the argument that such actions were carried out under the orders of superiors, or “due obdience”, is not a permissible defense. Nor is the argument that the defendant believed he was acting in accordance with international law likely to be given any weight as a defense.

The United States has now become an official hit squad, which will go out and kill anyone on its list of targetable individuals.

Yet it is hard to see how the United States can kill its way to peace, in Afghanistan or in the struggle against terrorists in different countries throughout the world.

Whatever the short-term gains from the current approach, and it is far from clear that it does not create more terrorists than it kills, President Obama and his international lawyers need to rethink their approach to targeted killings.

They need to reexamine the issue, both in order to avoid extrajudicial executions and assassinations, and to shape the standards which will also guide other states in the future in deciding whether or not to put someone on a hit list and then to go out and kill him.

It is time to back off from the Wild West, and to return to civilization and the task of building out a viable international legal order.

(end of April 7, 2010 article)

See also the following articles by the Observer:

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Other articles by the Observer on targeted killings may be found by entering “Targeted Killings” in the Search box on the lower right side of the home page.

The Trenchant Observer

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E-mail: observer@trenchantobserver.com
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Comments are invited.