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Saturday, April 22, 2017

Trump attack on Syrian airbase violated international law

(April 9) Very few commentators seem concerned about whether the actions of Trump in attacking an Assad regime air base in Syria were against international law. Most consideration of the legality of the action has to do with its constitutionality under U.S. law.

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The main debate in the U.S. appears to be about whether Trump needed authorization from the Congress for his actions. Almost all discussions simply assume that there is no question of Assad being guilty as in this article. The whole framing of discourse has been altered. The question of Assad's guilt has long been settled. The question now is how to punish him and what would be justified. I discussed this issue in a recent article.
Of course the bad guys such as the Assad regime, Russia and Iran deny that Assad is guilty and they see the missile attacks as obviously against international law:A Kremlin spokesperson said Russian President Vladimir Putin sees the missile strikes as an act of "aggression against a sovereign state in violation of international law." Iran issued a similar statement. A Kremlin spokesperson said Russian President Vladimir Putin sees the missile strikes as an act of "aggression against a sovereign state in violation of international law." Iran issued a similar statement.This may be mentioned in mainstream press reports but that is all. It can be safely assumed that this will automatically be rejected by the reader as what Iran and the Russians would be expected to say. One would expect that Trump would blame Assad but of course that is not to be used as a reason to reject what is said since Trump is a good guy, even though a few days ago many called him a liar, moron, clown, Putin puppet etc. He is punishing that ogre Assad for killing beautiful babies as he saw on TV. A recent article headline shows the situation: 'Five Top Papers Run 18 Opinion Pieces Praising Syria Strikes —
Zero Are Critical'.
However, not everyone believes the issue of guilt is settled. In a recent article, Colonel Patrick Lang argues that there is plenty of evidence that the chemical attack did not involve sarin gas but chemical agents dispersed by an attack on a chemical warehouse in an area held by rebels, apparently rebranded Al-Nusra front rebels. The account can be found here. I found the account more persuasive than the Russian ministry statement. Lang argues that there was no sarin gas and this fits in with the testimony of technical experts that an attack on the warehouse would not likely produce any sarin gas. It also fits in with the fact that both sides admit that there was an attack by Syrian planes. It seems that the mainstream press have absolutely zero interest in talking about this issue. Lang's article no doubt could not be covered in one of the mainstream media just as has happened with articles from Seymour Hersh. Lang is not some wild conspiracy theorist. He is a retired senior officer who served in U.S. Military Intelligence and the U.S. Army Special Forces (The Green Berets). He is highly decorated and a veteran of several U.S. overseas battles. Lang concludes:This attack was violation of international law. Donald Trump authorized an unjustified attack on a sovereign country. What is even more disturbing is that people like Secretary of Defense Jim Mattis, CIA Director Mike Pompeo and NSA Director General McMaster went along with this charade. He committed an act of war without justification. But the fault is not his alone.
Harold Koh, Sterling Professor of International Law at Yale Law School, has long argued that international law should protect human rights not just sovereignty. Trump could argue that he is simply protecting Syrian's right not to be subject to a chemical attack. However, there are numerous issues involved aside from the fact that the whole idea of humanitarian intervention in international law has its problems. If one were to use this principle then surely one would need an international investigation and finding of Assad's guilt. Nothing of the sort happened. Secondly if it is to be a humanitarian justification surely it must be justified by a UN resolution but no such resolution has been passed.
A Newsweek article argues:The U.S. strike may be legal under Article 51 of the UN charter, which says, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”But there was no armed attack against a member of the UN. Syria has not attacked the U.S. The section simply does not apply.
Self-defence in international law is discussed in this Wikipedia article. The original Caroline case was very restrictive but it did go beyond the UN provision that required an armed attack: "The imminent threat is a standard criterion in international law, developed by Daniel Webster as he litigated the Caroline affair, described as being 'instant, overwhelming, and leaving no choice of means, and no moment for deliberation.'" There was no such threat to the U.S. even if Assad did carry out the gas attack. President Obama decided that the U.S. would redefine "imminent threat":President of the United States of America Barack Obama and his administration has defined "imminent" to mean that (they) have 60 days to find and kill an individual human being. Under this theory of law "imminent" therefore means that a threat over, at least, up to 60 days (two months) in the future is considered "imminent".
Trump accepted Hillary Clinton's advice to bomb Assad's airbase. Given the Obama administration's definition of "imminent" he would likely take the advice too — although there is no evidence that Assad intended to attack the U.S. within 60 days. The evidence is overwhelming that the U.S. act is against international law but no one is overwhelmed except the bad guys.


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