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Opinio Juris: The Missing Link in Trump’s strike on Syria

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] O [/yt_dropcap]n 7th April, the United States announced the firing of 59 tomahawk missiles each armed with 1000 pounds of explosives at the Al Shayrat airfield in Syria. The firing which was the first direct attack by the Trump administration against the Assad regime was targeted at Syrian radar equipments, jets, bunkers, fuel sites and other military equipment at the airfield.

According to Syrian officials at least seven people were killed and nine were injured in the attack. The purpose of the use of force according to the United States was as follows:

  1. To deter Syria from using chemical weapons against civilians in the ongoing Civil War in the aftermath of the Khan Sheikoun chemical bombing in the rebel held Idlib province that killed around 80 people including 20 women and 30 children.
  2. To provide an appropriate response in the wake of the ‘international community’ failing to act against Syria.

Syria acknowledged the armed attack on its territory while vehemently denying the use of chemical weapons in Khan Sheikoun in North Western Syria. Syria was joined by Russia which claimed that the use of chemical weapons cannot be attributed to the Syrian government. A week since the attack, the official position of the two counties remains unchanged. Interestingly, the attacks took place while the Organization for the Prohibition of Chemical Weapons (OPCW), the implementing body of the Chemical Weapons Convention (CWC) was in the midst of its fact finding mission regarding the alleged State sponsored chemical attack and was yet to reach an objective determination regarding the veracity of the allegations against Syria. A former CIA official Philip Giraldi questioned the official line of Syria employing chemical weapons as a ‘sham’. Congresswomen Tulsi Gabbard also made a pointed reference to the same. Irrespective of who is involved in the Khan Sheikoun chemical attacks, the US use of force against the Syrian government requires deeper analysis.

While it has been argued that Trump’s strike in Syria, irrespective of its legality has created a new norm in international law since it is evidence of a new State Practice it is argued that it is not the case as it is doubtful whether the United States as a country had the sufficient opinio juris necessary to trigger the emergence of new norm.

Customary International Law (CIL) and the Use of Force

The prohibition on the use of force is a well accepted principle in international law. Article 2 (4) of the United Nations Charter codifies this principle in no uncertain terms. Use of force is permitted only with the authorization of the United Nations Security Council unless it is for the purposes of self-defence within the purposes of Article 51 of the Charter. Article VI Clause 2 of the US Constitution, more famously known as the ‘Supremacy Clause’ stipulates that all treaties made under the authority of the Constitution are part of the Supreme law of the land. Self defence as a ground for the use of force can be pressed into operation only when a State has faced an armed attack or risks an imminent threat of an armed attack. There is near unanimity that the Trump’s administration’s use of force did not fall in this category despite some initial half- hearted attempts to classify the use of force under this head (on the ground that Syria’s use of chemical weapons threatens American interests in the Middle East). The final position of the administration was one of deterrence and response to a humanitarian crisis in the wake of the unprecedented use of chemical weapons by the Assad regime.

This compels one to examine whether a new norm pertaining to the unilateral use of force (without necessarily involving the UNSC) for the purposes of deterring a party from violating the Chemical Weapons Convention (CWC) or reprisal against a State Party which has already violated the Convention (by the alleged use of Chemical weapons against its citizens) has emerged in CIL in the wake of Trump’s strike against Syria.

For a customary norm to emerge in CIL, it is essential that two principal criteria should be satisfied for the same: Firstly, there should be evidence of consistent state practice (which is an objective condition) and secondly, there should be evidence of a belief in the necessity and legality of the action (or omission) concerned. This condition is subjective in nature and is referred to as Opinio Juris sive necessitatis or simply opinio juris.

The latter is to be determined from the conduct of the State and its belief in the legality of its actions. In other words, a state must take recourse to a particular course of action accepting it as law guided by a conviction in the legal and necessary requirement of such action.

While State Practice is comparatively easy to establish, it’s not the case with opinio juris. Opinio juris may in cases be intrinsically bound with State Practice but is widely regarded as an independent second requirement for the emergence of a new customary norm. Past conduct amidst internal debates and controversies surrounding a course of action can be used as a determinant of the necessary opinio juris for a particular conduct.

United States and use of Force

The factual veracity of the chemical attacks alleged against the Syrian government assume significance in this context. Given the admissions by former Secretary of State Colin Powell of being mislead by rogue elements in the CIA with respect to his February 2003 UN Speech regarding Iraq possessing weapons of mass destruction and more recently claims by the Trump campaign that CIA’s assessment of Russia breaking into the mails of the Democratic party being incorrect one can draw a safe conclusion that the intelligence gathering framework of the country is not above suspicion. Since the US invasion of Iraq was based on faulty intelligence, a decision to use force in Syria should have been based on independent impartial international evidence. Trump’s refusal to wait till the OPCW investigation into the veracity of the claims points fingers to the administrations indifference to objective fact finding. This assumes significance since the Assad government continues to deny (rightly or otherwise) the use of chemical weapons. Russia’s unconditional support in this regard bolsters Syria’s claim. Bolivian ambassador to the United Nations Sacha Llorenti Soliz brought this fact to the knowledge of the UN Security Council on the day the US attacks took place. The Powell fiasco aided by a murky intelligence apparatus colour the evidentiary framework for the use of force, especially so when use of force is unilateral. Unilateral use of force in the Jus ad bellum framework requires a greater burden of proof on one exercising such a claim which was not discharged in this case.

Significantly enough, this is not the first instance of chemical warfare by the Syrian government. In August 2013, a Sarin gas attack was launched by the Assad government in Ghouta resulting in the deaths of around 1400 people. While the latest chemical attack took less than 100 lives, the previous attack which had many more causalities did not provoke a military response from the US. In fact, attempts to secure the permission of the Congress failed to evoke a positive response compelling the Obama administration to abandon the idea. Instead, the administration found common cause with Putin in goading Syria to join the Chemical Weapons Convention (CWC) and a deal under which the latter would be required to dismantle its arsenals of chemical weapons. Interestingly, the Obama negotiated deal required UNSC sanction before Syria is held accountable for any violation. This was the outcome of a belief that treaty violations should necessarily require independent resolution at the hands of the UN without resorting to the unilateral use of force.

While it could be argued, that the Khan Sheikoun incident is the first major violation of the CWC by Syria, the refusal of the Congress and the Obama administration to use force in Syria in August 2013 is evidence of a belief that armed response is not necessarily the appropriate response to a humanitarian crisis involving the use of suspect means of warfare. This obviates the contention that there exists a common unanimous line of reasoning in the various branches of the US government as regards the country’s approach to Jus in bello violations.

While Trumps strike had no backing from the Congress the latter being formally informed of the bombing two days after the eventuality, subsequent voices from the Congress approved the strike. Senior members of the Congress including the likes of Nancy Pelosi were unequivocal in their assertion that any future escalation of the conflict would require authorization of the legislative body. This settles the contention that “one off” strikes by the President create no acceptable precedent regarding use of force and Congress remains the final arbiter in the use of force. This is consistent with Article1 Section 8 Clause 11 of the US Constitution which grants “War Powers” exclusively to the Congress. Even if the President is authorized to undertake limited “one off” strikes, they should be undertaken under appropriate Congressional authorization. Strangely enough, most instances of Presidential use of force by Presidents Bush and Obama (except Libya) were justified under a 2001 Congressional authorization which permitted military use against those who plotted 9/11. Since the 2001 resolution pertained to Al Qaeda, it cannot aid the Trump administration in Syria given the reality that the Al-Nusra Front (the Syrian affiliate of the Al Qaeda) is engaged in efforts to topple Assad. Conflicts between the Congress and the President over the War Powers Resolution are not unknown with President Nixon staunchly opposing attempts by the Congress to legislate on the issue in the wake of the Vietnam War.

Attempts by the Attorney General’s office to carve out a “national interest” exception to the use of force (and readily employed by Obama in Libya) and used earlier in Bosnia and Haiti were premised on the logic that the credibility of the UN and the UNSC would be jeopardized if US does not resort to the use of force. In addition, geographical proximity to the USA was a ground for US “national interest” deployment in Haiti.

The “national interest” logic was employed by the Trump administration in the Syria bombing without any explanation as to how they correspond to US State practice in Bosnia, Libya or Haiti to ascertain the development of the necessary opinio juris for the creation of a new norm. Neither is the United Nations protected or UNSC resolutions honoured by US force of force against Syria. On the contrary, it is reasonable to conclude that the unilateral US air strikes have further eroded the credibility of the UNSC and the possibility of a Chapter VII resolution pursuant to an objective determination by the OPCW. The argument advanced by the Trump administration that American interests in the Middle East would be jeopardized if Assad resorts to the use of chemical weapons is a convenient ruse given the fact that Assad seems to have no broader interest other than securing the control of his beleaguered country from the clutches of non state actors who control large swathes of the Syrian landmass.

Scholars have argued that US use of force without UNSC approval had a precedent in the Yugoslav bombings carried out during the Clinton Presidency. However, US took care to ensure that the bombings were a ‘sui generis’ case involving a broader coalition of 19 nations. This implied that the precedent would have a limited ambit. NATO unilateralism was criticized by the then Secretary-General of the United Nations, Kofi Annan. Additionally, there was no fixed pattern for humanitarian intervention conducted by the Clinton administration in general as evidenced from Rwanda’s case where 800000 Rwandans Tutsis and moderate Hutus were killed in a brutal genocide. US was unable to agree on a common framework to the use of force in the African country which cast aspersions on its subsequent eagerness to enter the Balkan conflict.

While attempting to justify humanitarianism in the attack against Syria, Trump referred to the plight of “beautiful babies” losing their lives in the protracted conflict especially so in the wake of the Chemical attack. However, the same administration was the brain behind an executive order that prevented the entry of citizens of seven Muslim majority nations including Syria from entering the United States. Here again there is no consistently displayed by the administration towards Syrian victims of the Civil war displaying the absence of opinio juris in creating a uniform norm of humanitarian conduct.

Tracing the history of US use of force one can observe that there exists no consistent pattern that could prove necessary opinio juris necessary for the creation of a new norm. While State practice pertaining to the use of force has existed, the same has been guided by policy considerations based on political expediency lacking uniformity of approach or consistency of objectives. A conviction in the legality and necessity of certain actions though claimed is negated by diverse situational geo-political considerations regarding the use of force. In line with the ICJ ruling in the North Sea Continental Shelf Case, wherein it was held that frequent and habitual performance of an act is in itself not sufficient to establish the creation of a norm unless there existed a belief in the legal necessity of such conduct; a legal conviction on the use of force for a treaty violation like the CRC is not established by Trump’s unilateral bombing of Syria in light of domestic and international norms of use of force.

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International Law

Human Rights Council election: 5 things you need to know about it

MD Staff

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The United Nations General Assembly held secret-ballot elections for the Human Rights Council (HRC) on Friday.  As of 1 January next year, the 18 newly-elected States will serve for three years on the UN’s highest inter-governmental body, mandated to protect and promote human rights worldwide.

While the institution has been the subject of controversy since its creation in 2006 – culminating in the withdrawal of the USA this past June – UN Secretary-General António Guterres reiterated that it plays “a very important role” in the UN’s human rights architecture.

1. First of all… how does it all work?

Elections to the Council happen annually, with countries serving for three years on a rotational basis, as some of the seats expire on 31 December every year. There are 47 seats, equitably distributed according to five regional divisions.

Countries need a minimum of 97 votes to get elected, and everything happens by secret ballot. This year, 18 seats were up for election:  five for Africa, five for Asia-Pacific, two for Eastern Europe, three for Latin America and the Caribbean, and three for Western Europe and other States.

2. So… who’s in and who’s out?

After Friday’s election, here’s how the Council will look from 1 January:

IN, elected this year: Argentina, Austria, Bahamas, Bahrain, Bangladesh, Bulgaria, Burkina Faso, Cameroon, Czech Republic, Denmark, Eritrea, Fiji, India, Italy, Philippines, Somalia, Togo and Uruguay.

IN, continuing their terms: Angola, DRC, Egypt, Nigeria, Rwanda, Senegal, South Africa, Tunisia, Afghanistan, China, Iraq, Japan, Nepal, Pakistan, Qatar, Saudi Arabia, Croatia, Hungary, Slovakia, Ukraine, Brazil, Chile, Cuba, Mexico, Peru, Australia, Iceland, Spain, and United Kingdom of Great Britain and Northern Ireland.

OUT, because they didn’t apply for a second consecutive term: Belgium, Burundi, Ecuador, Georgia, Kyrgyzstan, Mongolia, Panama, Slovenia and Switzerland.

OUT, because after two consecutive terms, they’re not eligible for re-election: Côte d’Ivoire, Ethiopia, Kenya, the Republic of Korea, the United Arab Emirates, Venezuela and Germany.

3. What does the Council actually do?

In a nutshell, the HRC is a multilateral forum to discuss anything relating to human rights issues around the world.

In addition to launching fact-finding missions and establishing commissions of inquiry into specific situations, it meets three times a year to review the human rights records of all UN Member States, in a special process designed to give countries the chance to present the actions they have taken, and what they’ve done, to advance human rights. This is known as the Universal Periodic Review.

This video explains it all in a simple way:

4. How come some countries accused of human rights violations still serve?

The HRC was created in 2006, following a proposal by former Secretary-General Kofi Annan. In a report titled “In Larger Freedom”, he noted that the Commission on Human Rights, created in 1946, was suffering from “declining credibility and professionalism” and was “in need of major reform”. Subsequently, based on his recommendations, the Human Rights Council was established by the General Assembly to replace the Commission and several measures were put in place to try and avoid the same problems that eventually arose with the Commission.

For example, as it is understood that the Council can only be as effective as its Member States, the election process was placed directly in the hands of the General Assembly, the only UN organ where every one of the 193 countries has equal voting weight.

In addition, the geographical group divisions and seat allocations are meant to prevent disproportionate focus on just a handful of regions and countries, and ensure that every country has a chance of fair consideration.

Finally, during the elections for each regional group, the General Assembly allows extra blank slates: this should theoretically ensure there are more candidates than available seats, enabling a competitive process. However, if – as was the case this year with 18 candidacies for 18 available seats – no extra countries apply, then no competition occurs, and whichever Member State applies, is likely to get elected.

5. So does the HRC make a difference for human rights worldwide?

Although human rights have always been a very sensitive matter for Member States, the Human Rights Council remains an essential part of the UN’s human rights architecture.

The Council has the power to adopt resolutions, launch fact-finding missions and investigations, and establish commissions of inquiry. In particular, the HRC can appoint independent experts on specific issues. At the moment, there are 44 thematic experts and 11 country ones appointed to monitor and report on human rights issues as requested.

All these mechanisms allow for grave violations to be highlighted and brought up on the global stage for examination, discussion and, whenever feasible, action.

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International Law

Unilateralism Vs Multilateralism

David Ceasar Wani

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During the 73rd sessions of the general assembly at the UN, the crunch of unilateralism and multilateralism between US and China kicked off, in which Trump’s unilateral visualization of the world likely to hurt the US, but it might undermine his presidency. As the competitions between unilateralism and multilateralism are viewed inversely. According to the international relations scholars, unilateralism has defined an approach in international relations in which states act without regard to the interests of other states or without their support. Unilateralism is usually contrasted with its opposite approach, yet multilateralism is acting cooperatively with other states. Though unilateralism is often used in a negative way, experts agree that there are positive aspects to occasionally acting unilaterally, such as in issues of national self-defense.

Some politicians and international experts support unilateralism, at least for certain issues. An example of a unilateral action is the U.S. President Donald Trump’s decision to withdraw from the Paris Climate Accord in 2017. The Paris Climate Accord was actually negotiated and approved by nearly 200 nations around the world, and the issue of climate change is impossible to be handled significantly without united efforts of all the countries, particular the major ones. Trump withdrew from the Paris Climate Accord, saying that it hurt American jobs and American interests as well. Trump’s decision was opposed by many experts and average people around the world including the United States.

Nevertheless, it is believed that unilateralism is a policy of dealing with affairs that may be violent, regardless of the will of other countries or nationals. Given this, the most prominent feature of multilateralism is the negotiation since it can pay close attention to the shared interests of the majority and take practical and reasonable measures to deal with affairs in international affairs. The U.S. adopts unilateralism as a kind of closed rather than open behavior. Self-interest is the American priority mentality that Trump previously reiterated, and this approach seems to be a good way to safeguard the interests of the United States, but in fact, it is inconvenient for American nationals, and for the United States.  Conversely, politics, diplomacy, and trade all have disadvantages and this disadvantage can be a hindrance to domestic investment, risk from political changes negative influence on exchange rates, higher costs, economic non-viability, expropriation, negative impact on the country’s investment, modern-day economic colonialism and etc.

From this point of view, it can be said unfavorable to Americans. The reason why the United States has become strong from a dispersed federation compared with the confederation is mainly between states. Improvement of politics and other status has enabled the United States to develop and be strong because of a strong government. If the United States 1787 Constitution was originally formulated by the founding fathers’ generation, and then adopted unilateralism and did not negotiate, it is unimaginable that there would be a powerful United States today. So now Trump adopts unilateralism, which is contrary to the spirit and method adopted by the U.S. Constitution. The threat to his presidency is great because unilateralism is difficult to promote the cooperation and development of national economies. The interests generated by the United States are very short-lived, but they pose great threats to their long-term development and the long-term interests of their citizens. Therefore, when dealing with state affairs or international affairs, multilateralism should be adopted and negotiated. The problem is that we can better safeguard the interests of all parties, maximize the benefits, and promote the development of countries and their own economies.

In conclusion, it is important to understand the evolution of China’s concept of multilateralism, because one has to begin with China’s particularly humble experience with multilateral institutions e.g. it’s being kept out of the United Nations (UN) and its institutions during its preliminary decades as also for it is being the target of UN criticism and sanctions (for Korean War) during those years. The things were to begin to change following the Sino-US rapprochement and China’s entry into the UN and other multilateral institutions from the 1970s. Another crunch change to overlap with the late 1970s was the rise of Deng Xiaoping to power in China. Deng’s economic reforms and openness become the driving force behind China’s conclusive shift toward multilateral institutions.

According to Zhang Baijia, expert at the Chinese Communist Party’s (CCP) Central School, numerous internal and external developments during the first half of the 1980s were to expressively influence Deng’s strategic thinking in three major ways: (a) Deng aborted the long-held view that world war is inevitable’ and instead stresses on ‘peace and development’ as central theme for China; (b) Deng acknowledged that the contemporary world is heterogeneous in nature and that conflicts coexist with cooperation and competition with interdependence; and (c) Deng maintained that independence does not equal isolation and self-reliance does not mean rejecting all foreign things as had been the case during Mao’s times. Change in Deng’s worldview was to result in the change in China’s approach towards international institution and towards the whole idea about multilateralism.

As a result, the whole of the 1980s witnessed extraordinary qualitative and quantitative changes as China gradually involved itself in not only international organizations in the political domain but also expanded its participation in economic and security types of multilateral forums. As regards China’s future vision on multilateralism, it has been motivated primarily by China’s felt need (a) for undermining the basis of United States’ unilateralism and its global power profile and (b) for making efforts to become acceptable as the benign rising power amongst its immediate neighbors and amongst the world at large. By far these two remain China’s most important foreign policy challenges through its rise as a major power has already been accepted as a given reality in general. The conditions have also been facilitated by external dynamics, especially following the collapse of former Soviet Union which has shifted the focus of international relations and led to the widening of the whole understanding of security and strategic calculations amongst major players therefore moving the dynamic of international power politics beyond two superpowers to include new actors like China.

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International Law

Strengthen UN, Implement UN Charterer in true spirit

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Humanity is suffering everywhere whether it is Syria or Yemen, Afghanistan or Libya, Iraq or Myanmar, Palestine or Kashmir. The one who are being killed are human beings, irrespective of his or her race, color, religion, nationality, its human lives which are being lost. Last couple of decade, around 2 million people have been killed, 6 million have been made refugees in their own country or forced to migrate to other countries. Threats and tension is felt in Iran, Turkey and North Korea, Ukraine, and many other parts of the world.  If one switches on TV or read or listen to News, it is all about War, Killings, Blasts, hate and suppressions. People are fed-up of bad news all the time. Everyone is suffering with mental torture. Geo-political situation is deteriorating rapidly. The world is less safe than few decades ago. Insecurity feelings are rising exponentially. What is new world order? On the name of World new order, we have made this world more hostile and fragile. Who is suffering, humanity! Who is the beneficiary, end of the day, no one will be winner.

United Nation General Assembly is busy in its 73rd session. Leaders from all over the world are meeting each other and making speeches one after another, but what will be the out-come or result?

United Nation was founded on 24 October 1945, just after the World War II, in replacement of League of Nations. Its head quarter is at New York, USA. The United Nations is an intergovernmental organization tasked to promote international co-operation and to create and maintain international order. The charter of UN was very well drafted and very comprehensive. Its charter was formulated on justice and equality. It was hard work of genius people.

But with the passage of time, it is losing its effectiveness and failed to maintain world order. Some nations became so strong that, they put aside the UN and act unilaterally. Some nations are so stubborn, that they violate UN charter openly and feel no guilt. Some countries are so feeling-less that the whole world condemned them but they keep criminal silence.

Should we stay calm and just became spectators and watch what so-ever will happen? Should we leave all the issues to our next generations to suffer? Should we close our eyes and do not acknowledge the issues? Can we escape? Can we be ignorant? Can be we so cruel to our kids and leave them to be humiliated?

I believe, it is time to think and raise our voice, and struggle for a better tomorrow, better tomorrow for everyone, better tomorrow for my kids, better tomorrow for your kids, better tomorrow for our next generation, better tomorrow for everyone. We should struggle to make our tomorrow better than our yesterday. Think positively, act smartly and be optimistic.

We demand, respect of the UN , we demand for implementation of UN charter, We demand for justice, We demand for equality, We demand for fair-practices, We demand respect for human kind, We demand for a stoppage of killing, we demand stoppage of violence, We demand for protection of weak, We demand for uniformity etc.

It is natural, when we live together, the differences may rise among us. It can be among individuals or nations. It is very much normal and was happening since ages. We quarrel with our kids, brothers and sisters, parents, spouse or friends, boss or subordinates or colleagues. It is understandable. But we live in a civilized world. There are mechanisms to resolve the differences. In our day to day life we are over-coming on many issues and resolve with each other. The same approach may be followed to resolve the differences or misunderstanding among nations. UN is the right platform, UN charter is the proper guidelines for resolving the issues. Diplomacy is the weapon of civilized world. We all must respect UN, and its charter and resolve all issue through peaceful manner and dialogue. No one should have the right to by-pass UN or impose its decisions unilaterally.

I suggest, the International Community may join hands and strengthen UN and implement its charter in true later and spirit. UN may investigate the history of almost 7 decades and point out all the violators and let them declare responsible for their wrong doings. Force them to rectify their mistakes, compensate their wrong doings. UN should strengthen to the extent that any country how strong it might be, should not dare to violate UN charter. Any sanctions without UN approval may be declared null and void. Any military action without UN approval may not be recognized and declared criminal acts. They must be punished for their heinous crimes and war like crimes.

Let us struggle to make this world a place of “Peace, Harmony, Justice, Equality and Prosper” place for our generations to come. We may sacrifice but our next generation may enjoy Peace, Harmony and Prosperity.

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