In the wake of Canada's decision to shamelessly imitate American foreign policy on Syria sanctions, I will post here what I said on PressTV, which is apparently as true about Canada as it is of the United States:

"It's absolutely astounding the United States would support those ['rebel'] groups. If the American public knew that those groups fighting the Syrian government, and I refer in particular to Fateh al-Sham, were actually in fact a re-branded al-Qaeda in Syria, namely people who voluntarily associated themselves with the terrorist organization that blew up the World Trade Centre in 2001, they'd be appalled and American foreign policy would fall apart as a result. The American media refusing to draw the links between al-Qaeda and Fateh al-Sham or al-Nusra or whatever they rebrand themselves as is absolutely shameful."

So my segment on the news is my blog post for this week, I'm afraid. I had to complete a mountain of grading at my day job (law professor) this week.

 
 
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Shortly after the air strike against the Shayrat Air Base, the New York Times published an article asking “Was Trump’s Syria Strike Illegal?” As is the case with most American media outlets, the writers declined to answer the question, focusing on what they presented as the intractable complexity of the issue. 

But it’s not complicated. It only appears to be that way when American newspapers ask American experts, who are close to the American government. As soon as one steps outside that frame, the picture becomes considerably clearer. No foreign language skills are needed to read Anne Orford’s article in the London Review of Books, entitled “No Legal Justification”. If one speaks German, one can easily find many articles like Daniele Ganser’s “The Illegal War of President Trump.” [Author’s translation]. In just that one essay, there are numerous references to unreserved assertions of the war’s illegality.

By contrast, the American reporting muddies the waters to attempt to give poor analysis the appearance of depth. These authors point to irrelevancies, including motions from the United Nations Security Council that lack the all-important authorization of “all necessary means” to enforce them. (It was the failure to secure the 'second resolution' before the invasion of Iraq that destroyed any legitimacy of that action under international law, as repeatedly confirmed by multiple government commissions --most explicitly in the report of the Davids Commission, which was commissioned by the Parliament of the Netherlands).

Another frequently mentioned irrelevancy is the fact that the United States has done this before, as if escaping punishment for a crime is a precedent that it isn’t illegal at all. Special attention is normally devoted to Nato’s bombing of Serbia, since the United States managed to secure the formal support of its alliance (and then acting as if that alliance’s military decisions had legal force). Nevertheless, that bombing campaign is stressed because Nato is a more impressive partner in crime than the ragtag members of whatever “coalition of the willing” that the United States is able to patch together into each ad hoc military pact. (This tactic is much older than most people imagine –Lyndon Johnson pressured America’s client states into sending troops to Vietnam as part of the “many flags” program; countries such as the Philippines sent token contributions of military engineers in exchange for increased foreign aid.)

Lastly, the American media almost always invoke the failure of the United Nations to act as the United States would have it behave. Purportedly, the international “system” is broken because the Security Council refuses to authorize an American attack every time the Ambassador of the United States to the United Nations makes an allegation about chemical weapons, as if the world’s representatives have amnesia and cannot remember Colin Powell (a considerably more credible figure than Nikki Haley) holding up a vial of anthrax in 2003, shortly before launching an illegal war than cost hundreds of thousands of lives --and which produced precisely zero evidence that Iraq possessed any weapons of mass destruction.

Articles discussing UN authorization for military force frequently invoke a doctrine known as “responsibility to protect”, or “R2P”. What most commentators fail to mention is that R2P is purportedly a doctrine that allows the Security Council to authorize the use of force. There is no support for the assertion that it allows individual states to avoid the UN Charter, which authorizes military action in only two situations. First, when authorized by a unanimous vote of the Security Council, and second, in self-defence (but not “pre-emptive” self defence, as when Bush sought to “get them before they get us”). Nowhere in R2P is there a basis for unilateral intervention because “something must be done”, because there is a long history of this principle being abused to justify aggression.

Before the Second World War, aggression was frequently justified by reference to fictional abuses of minority populations. Germany claimed that Czechs were slaughtering Sudentenland Germans before annexing parts of Czechoslovakia in 1938, while fifteen years earlier Italy had used similar excuses to occupy Corfu. Allegations that Germany and Italy had fabricated atrocities against minority ethic groups abounded. Today, the United States demands that “something needs to be done” about the result of bitter fighting between the Syrian Government and (the rebranded) al-Qaeda in Syria, without recognizing the possibility that the easiest way to halt the violence would be to stop supplying weapons to terrorists groups. (If the Romans created a desert and called it peace, Americans have perfected its modern prologue: create a civil war and declare a failed state.)

Why do the American experts ignore this? Largely because their path to success in the field of international law (in America) runs through the executive branch. Harold Koh followed a cursus honorum similar to the war criminals now taking seats on the federal bench in the Trump Administration: he worked in Reagan’s Office of Legal Counsel, then joined the faculty of Yale Law School, then took up a position as the Legal Advisor to the State Department at the outset of the Obama Administration. He then defended targeted killing as legal under international law, despite the consistent criticism of a string of United Nations Special Rapporteurs on Extrajudicial, Summary, or Arbitrary Executions. 

Koh has been “supportive of the Trump administration’s penchant for unilateral military action . . [he] said that the airstrikes were ‘not illegal’, and that an ‘important moment of lawmaking’ is ‘now upon us’”, arguing that the Syria attacks, much like the bombing of Serbia, could change international law. This is best characterized as engaging in “lawfare”, the justification of war crimes by weaponizing a twisted misrepresentation of international law. Koh was the keynote speaker at the conference of the American Society for International Law’s discussion of “Missile Strikes on Syria”, where he received the fawning admiration of his peers.

When the media and these ‘experts’ present the legality of American aggression as complex, one should understand that this serves a similar function to the statements of climate change deniers (and, previously, tobacco company shills), who argue there “is no consensus” because they themselves dispute the obvious. Their goal is to convince people that there is a legitimate debate merely to confuse, distract, and disengage the public. 

It is essential that the deniers fail: the public needs to be warned, not distracted --because when aggressive war is tolerated, every possible war crime follows.  One of the Chief Prosecutors of the Nuremberg Tribunal noted fifty years later that the United States was guilty of waging aggressive war for invading Iraq. Quoting that Tribunal, he noted that “essentially an evil thing...to initiate a war of aggression...is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” In other words, aggressive war is unacceptable because it leads inevitably to genocide, the killing of children and the destruction of societies. There is no debate; it is unacceptable.

 
 
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On Friday, April 7, 2017, President Trump ordered an air strike against the Syrian Government's Shayrat Air Base. 

The Trump Administration claims that the attack was to punish the Syrian Government for using chemical weapons against civilians in Khan Shaykhun governate during the preceding week. However, it has not been established that the Syrian Government was responsible for the release of the cloud of toxic gas; the Organization for the Prohibition of Chemical Weapons had asked the international community to avoid taking actions that would prejudice its ongoing investigation.

Before the air strike, heads of government such as Canadian Prime Minister Trudeau spoke of the need for an investigation before any action. In his words: “There are continuing questions ... about who is responsible for these horrible attacks against civilians, and that's why I'm impressing on the UN Security Council to pass a strong resolution that allows the international community to determine first of all who was responsible for these attacks and how we will move forward.”

Trump was not inclined to wait for the facts to become clear.  Shortly before the U.S.’s attack, Trump criticized President Obama for not bombing Syria without UN approval after the 2013 chemical weapons attack in Ghouta.  Serious doubts remain about whether the Government was responsible, or whether this was an act of the so-called 'rebels', who are largely comprised of and led by members of al-Qaeda in Syria (which renamed itself Jabhat Fateh al-Sham in 2016), which have been armed quasi-covertly by the United States, and more openly by Saudi Arabia and the gulf states, with Turkish assistance.

Some of those who pointed the finger of blame towards these 'rebels' could not be brushed aside. Carla Del Ponte was serving at the time as a member of the Independent International Commission of Inquiry on the Syrian Arab Republic, having been appointed by the United Nations High Commissioner for Human Rights.  Shortly after the Ghouta attack, she asserted that the 'rebels' had used chemical weapons.  (Del Ponte is also an experienced war crimes investigator, having previously served as the Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia). 

Western governments pushing for war on the basis of this flimsy pretext ran into resistance.  When the Intelligence Services of the United Kingdom presented the case in 2013 that the Syrian Government was responsible, Parliament rejected it.  As Peter Flatters noted, “[w]ith the Prime Minister claiming that intelligence findings were compelling enough to warrant action, the remarkable thing was Parliament’s response — namely that it did not believe him, or rather that it insisted on seeing the evidence for itself.”   

It was evident in 2013 that Parliament learned its lesson after being presented with fraudulent evidence before the Iraq War.  The “intelligence and the facts were fixed around the policy,” to use the words quoted in the Chilcot Commission's Report.  (The Report concluded that Prime Minister Tony Blair had lied about Iraq possessing chemical weapons in order to justify the Iraq War to Parliament, just as Secretary of State Colin Powell & Ambassadors Samantha Power and Nikki Haley lied to the United Nations about Iraq and Syria's possession of  chemical weapons.) Ultimately, President Obama recognized that the evidence about the Ghouta chemical attacks was insufficient for him to proceed against Syria without the cover a new ‘coalition’ after the Parliament of the United Kingdom declined to join it, as his Director of National Intelligence told him that the evidence wasn’t a “slam dunk”, a coded allusion to the fact that the evidence was even flimsier than that given to President Bush by his Director of Central Intelligence, George Tenet. 

Trump is not one to fear damage to his reputation after being later proven wrong.  His gamble appears to have paid off: despite proceeding without any evidence of the Syrian Government's responsibility, Trump is now basking in the adulation of the American foreign policy establishment. He has wiped all discussion of his alleged links to Russia from the headlines; today the country’s five most read newspapers have published eighteen opinion pieces –all in favour of Trump’s attack. The entire spectrum of political opinion is united in its praise: even Elizabeth Warren approved, arguing that the “Syrian regime must be held accountable” and agreeing that Trump had the power to conduct air strikes for sixty days before seeking authority from Congress. This was three days after she criticized Trump for “show[ing] contempt for our Constitution” by cooperating with Republican Senator’s amendments to the rules for calling a vote on a judicial nomination.

Warren was wrong on both counts. The Rules Clause of Article I of the Constitution states that: “Each House may determine the Rules of its Proceedings”, which allows the Senate to amend its voting rules. However, the War Powers Clause states that “The Congress shall have power . . . To declare War”.  The International Committee of the Red Cross concluded that the air strike created a state of war between the United States and Syria: “Any military operation by a state on the territory of another without the consent of the other amounts to an international armed conflict.” According to Professor Amal Saad of the Université Libanaise, this means that under the Law of Armed Conflict, proportional attacks on the United States by Syria (or its ally, Russia) are authorized under the Article 51 of the UN Charter, while the United States is liable for any war crimes it commits, as its forces are unlawful combatants.

In short, Trump violated both domestic and international law in an incredibly reckless escalation of a serious and intractable conflict. What is even more shocking is that in launching the war (that Hilary Clinton and her foreign policy establishment wanted desperately), he has rehabilitated himself: politically connected pundits like Nicholas Christof and Fareed Zakaria all agree. When asked about this significance of the attack, Zakaria said that “I think Donald Trump became president of the United States. I think this was actually a big moment.” Peaceful coexistence with Russia was treason –-but when an undeclared state of war launched by an unlawful attack that exposes America to lawful counterattacks, well, that is patriotism.

Trump has demonstrated a remarkable capacity to learn how to manipulate the political establishment. They have just taught him that he has a get-out-of-jail-free card: he need only launch an attack against another small country and all will be forgiven.  (Prime Minister Justin Trudeau fell into line immediately, with an embarrassing volte-face).   However, this is a dangerous lesson to teach a political strongman with no respect for the existing political conventions. He might take it further than President Reagan or the Bushes and use the state of war as an opportunity to crush his political opponents and destroy any remaining limitations on his authority. Trump is just the man to do it; only time will tell whether he will seize the opportunity.  Trump has the world's largest military and the largest nuclear arsenal at his disposal.  It is terrifying to think that he is learning that the more he uses it, the more popular and powerful he becomes.