Separation of Powers in the White House: Obama works to block vote on war crimes and sanctions in Syria in House of Representatives

Barack Obama sought and succeeded last week to block a vote in the House of Representatives addressing the issue of responsibility for war crimes and crimes against humanity in Syria.

See Josh Rogin, “White House worked secretly to delay Syria sanctions bill,” Wasington Post, September 20, 2016 (12:03 PM).

“The bill would impose new sanctions on the Assad regime and its supporters, spur investigations meant to fuel the prosecution of war crimes in Syria, and encourage a process to find a negotiated solution to the crisis. Specifically, it would require the president to impose new sanctions on any entity that does business with or finances the Syrian government or its military or intelligence services, which includes Russia and Iran. It would also require sanctions on any entity that does business with several Syrian government-controlled industries, including the airline, telecommunications and energy sectors.”

The bill, entitled the “Ceasar Syria Civilian Protection Act,”  points toward an alternative approach to Syria, one not based on “working through the Russians”.  But even if approved it could not become law without the approval of the Senate and President Obama’s signature.

One might imagine that the long-term foreign policy interests of the United States would be served by respecting the Separation of Powers both in spirit and letter.

Recently, Germany’s Chancellor Angela Merkel was able to smooth over a rift with Turkey following the Bundestag’s adoption of a resolution condemning the Turkish “genocide” of Armenians in 1915, by insisting that the parliament was a separate branch of government over which she had no control.  Now, President Obama would be hard pressed to make a similar argument.

Blocking the vote, in the long view, was one more craven act of appeasement with Vladimir Putin and the Russians, who have been committing war crimes and incurring complicity for Bashar Al-Assad’s war crimes for some years.

The thinking was apparently that the resolution could upset Putin and Al-Assad at a delicate moment when the U.S.-Russian ceasefire was tenuous, and its success was necessary for the U.S. and Russia to move to the next stage, in which close military cooperation between the two countries would begin.

This is always the flaw in appeasement:  fear of upsetting the aggressor.

U.S. defense and military officials are reportedly reluctant to enter into such cooperation, fearing both that it would tell the Russians (and Syrians) where their people are on the ground, and that the Russians would gain valuable intelligence about the methods and sources used to target enemy positions and individuals.

The agreement required a long telephone call on which Obama came down on the side of Secretary of State John Kerry, who negotiated the deal with the Russians, and against Defense Department officials including Secretary of Defense Ashton Carter who opposed it.

Barack Obama’s legacy, in part, will be that you should work together with war criminals if you think that will help you achieve another objective, and you shouldn’t push these criminals on the war crimes and crimes against humanity they have committed, and are still committing–e.g., in the bombing of the UN Red Crescent humanitarian aid convoy in Syria on Monday.

In the waning days of the Obama administration, human rights, international humanitarian law (the law of armed conflict), and accountability for war crimes and crimes against humanity have not only taken a back-seat role, but also seem at times not even to have a representative at the decision making table.

One can perhaps understand why Samantha Power, the U.S. ambassador to the U.N., has let her hair grow long, to the point of looking like an old woman who can hardly bare the emotional and psychological stress which she must endure each day.

President Tayyib Erdogan has been tearing down democratic institutions and the rule of law in Turkey.  No problem.  Now Turkish forces are working with U.S. forces within Syria.

Russia has invaded the Crimea and the eastern Ukraine, where its forces remain. Obama wants to engage military cooperation with them in attacking ISIS in Syria, and doesn’t want Congress to call for accountability for the war crimes and crimes against humanity they have committed.  No problem.

President Rodrigo Duterte threatens the U.S. president by calling hiim a “son of a whore” to keep Obama from loudly insisting that he stop his campaign of extrajudicial executions, vigilante justice and impunity in his battle against drug dealers.  After canceling a meeting at the regional meeting of ASEAN in Vientiane, Obama meets with him anyway, and does not loudly denounce the assassinations underway.  No problem. The U.S. has important strategy interests in the Philippines, and Obama doesn’t want to upset the President Duterte, no matter what he is doing.

So, that’s Obama’s legacy.

Human rights, and accountability for war crimes and crimes against humanity are not important. It is better to work with war criminals when that suits your immediate purpose.

Obama’s mind seems to have been completely captured by the imperatives of the war against the jihadists. To this day, he personally approves (and probably directs) all drone strikes against those on the kill list. That means he is personally involved in killing people every day or every few days. This he learned when John Brennan was in the White House, and used to call him out of meetings to go to the basement.

Obama has been too close to and too personally involved in this killing.

In the broader context of international politics, Obama will stand in the history books as an American president who moved the United States away from its 75 years of support for a “principled international order”–which Secretary of Defense Ashton Carter defended only weeks ago in a major foreign policy speech in England–to the paradigm of “power politics” or “Machtpolitik” which ruled the day in the first half of the 20th century.

The great challenge of our generation, and every generation, is whether the world will operate under a state system based on international law and institutions, or one based on power politics, including military power and its use.

Historians will judge Obama on his record of actions, not his words. Blocking the House vote on war crimes and crimes against humanity last week is only a small piece of the story, but a revealing one.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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