Trump v. the Law
Anne Orford
An enraged President Trump, surrounded by uniformed military leaders, used the same press conference last week to condemn a raid on the office of his personal attorney, Michael Cohen, and announce that he was ‘making a decision as to what we do with respect to the horrible attack that was made near Damascus’. ‘In our world,’ Trump said, ‘we can’t let atrocities like we all witnessed’ happen, and ‘because of the power of our country – we’re able to stop it.’ That is the image, and the language, it will be necessary to keep in mind during the coming months if we are to understand the relationship between domestic crisis, foreign relations, the rule of law, military force, authoritarian populism and visual culture that is poised to reshape the international order.
Most international lawyers agree that the missile strikes against Syria at the weekend were illegal. Few governments other than those of the US, the UK and France have ever seriously proposed that international law allows hegemonic states to use force to police weapons conventions, punish criminals or pursue humanitarian objectives without Security Council authorisation. This is not because the majority of the world’s leaders are evil monsters or the majority of the world’s peoples passive dupes, but because the moral certainties and civilising missions of heavily armed hegemonic states continue to represent a significant global threat to peace, security and humanity.
Yet many of the same liberal establishment figures who decry Trump’s undermining of the rule of law and democratic political institutions in the US have again celebrated his resort to force in Syria. This is a symptom of a broader pattern of dualistic thinking about the relation between domestic and international politics. For decades, liberal internationalists have maintained a commitment to the rule of law domestically, but urged their governments to abandon the UN Charter rules governing the use of force. They have developed novel legal interpretations explaining why new forms of intervention to protect civilians, fight terrorists and secure vital resources are not only necessary but righteous. They are convinced that the means of undermining international law is justified by the ends of a liberal international order, and that it will be possible to quarantine the undermining of law internationally from the undermining of law domestically.
For the people of Syria, and of any state in which foreign intervention has somehow come to seem normal rather than scandalous, the division between a domestic and an international rule of law has long been non-existent. Syria, like Afghanistan, Nicaragua, Vietnam and numerous other states before it, has become the devastated site of proxy wars between great powers. For many newly independent states during the 1960s and 1970s, it was already clear that, while the UN Charter prohibited the resort to force as a tool of foreign relations, it would be far more difficult to restrain major powers from engaging in proxy wars. The consolidation of international legal principles to prevent new forms of intervention in civil wars and to respect sovereign equality was seen as a necessary condition for meaningful self-determination. The consequences of violating those hard-fought principles, and the dangers of the unrestrained militarisation of civilian life, can be seen from the situation in Syria, where an internationalised civil war raging since 2011 has resulted in more than 450,000 killings, 5.4 million Syrians registered as refugees in neighbouring states, and the destabilisation of the entire region.
The illusory nature of a division between the commitment to law domestically and internationally is now also becoming clear in the US, as the tableau of Trump and his military advisers shows. Trump has taken up the language of red lines to threaten not only Bashar al-Assad (‘When our president draws a red line, our president enforces a red line,’ the US ambassador to the UN, Nikki Haley, announced), but also Robert Mueller. Trump described the raid on his lawyer’s office (duly authorised by warrants) as an ‘attack on our country’. He did so while surrounded by the military leaders of, as he put it, ‘the greatest fighting force ever’. He claims for himself the right to decide where and when the rule of law begins and ends. The challenge to democracy that this approach to the law represents is clear domestically. Trump’s presidency is now revealing to liberal audiences why it also matters internationally. Unless that challenge can be resisted, a world in which an authoritarian leader surrounded by military advisers dictates the limits of the law will be the world in which the US, its allies and its enemies will have to exist for years to come.
Comments
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19 April 2018
at
1:24am
Delaide
says:
But there is a difference between domestic law and international law, in circumstances where the latter has a requirement for ratification by the Security Council of the UN. That is the veto power available to the Council’s permanent members, which allows ideology to trump justice. In the case of Assad’s use of chemical weapons, I doubt that it would matter what the evidence was against him, Russia would likely veto any resolution for intervention. I think, given this fundamental flaw in the application of international law, a humanitarian case can, in principle, be used to justify action without UN ratification. NATO’s intervention in Kosovo is a well known instance. It seems to me that the principle can be applied to the recent Western intervention in Syria, notwithstanding that others with more knowledge of the subject may argue against it on the grounds of evidence or effectiveness.
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21 April 2018
at
10:31am
FoolCount
says:
@
Delaide
That is a rather meaningless hypothetical about what Russia would or would not do when presented with proof of Assad's alleged crimes, as we are still waiting on any evidence of even a single use of chemical weapons by his forces. What is not a hypothetical at all, but rather a matter of historical record, is that West would lie and fabricate evidence in order to justify a regime change operation. The idea that the West would do anything out of humanitarian concerns is fanciful at best. It takes an ungodly amount of naiveté to take it seriously.
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26 April 2018
at
8:45am
Coldish
says:
@
Delaide
Delaide (19 April) appears to be suggesting that a UNSC veto can be ignored with impunity if "...a humanitarian case can...be used to justify action without UN ratification." That sounds to me like a recipe for anarchy and the law of the jungle.
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19 April 2018
at
7:20am
Stu Bry
says:
"They are convinced that the means of undermining international law is justified by the ends of a liberal international order, and that it will be possible to quarantine the undermining of law internationally from the undermining of law domestically."
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24 April 2018
at
7:58pm
Steve Slack
says:
@
Stu Bry
This article shows the hypocrisy and lack of principle of the liberals. Attacking Trump for trying to keep Muslims out of the country. But praising him for killing muslims. It's hard to believe that the Democrats were the party that gave America the minimum wage, social security and the civil rights act. Financed by Wall Street, and fully supporting neo con foreign policy they decided their priority in 2016 was preventing Bernie Sanders getting the presidential nomination. They preferred having a billionaire fascist in the White House rather than a socialist.
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25 April 2018
at
12:56pm
Coldish
says:
@
Stu Bry
Stu Bry (19 April): "Does American domestic law have any credibility when the police can kill minorities with impunity and virtually always get away with it?".
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19 April 2018
at
12:50pm
Martha12345
says:
It seems rather off- topic to rattle on about an alleged failure of the Justice Department in the Obama administration to find out why the crash occurred. It certainly was investigated and there have been fines imposed on banks and other financial institutions in a civil context. There was a view taken by the Justice Department that criminal cases would have little hope of guilty verdicts because...well the crap that banks and lenders got up to was not subject to any criminal law. You may disagree with that opinion, if so perhaps you could to cite the authority that would provide a basis for an Indictment.
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19 April 2018
at
4:28pm
Stu Bry
says:
@
Martha12345
They wouldn't go it alone because Israel's nuclear submarines would attack them.
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20 April 2018
at
8:08am
Fred Skolnik
says:
@
Martha12345
I'm aware of the malice in your analogy. I suggest that you stick to daydreaming about Muslims in Great Britain.
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20 April 2018
at
2:58pm
Martha12345
says:
@
Fred Skolnik
Fred, I apologise if this came out wrong. I was going to follow up with the suggestion that the current leadership of the Labour party would likely join an incursion into Israel, but when it comes to Syria and its murderous regime, or even a protest about Iran's grim treatment of its people they sit on their hands. Again, please accept sincerest.
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20 April 2018
at
3:09pm
Martha12345
says:
@
Martha12345
And, to be very clear: I am opposed to BDS, Israel is not an apartheid state, and is not conducting a genocide against arabs anywhere. Nor has it any intention to do so.
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25 April 2018
at
1:01pm
denismollison
says:
@
Martha12345
No two historical situations are ever exactly the same, but there are close parallels between Israel today and apartheid South Africa. The same solution - one secular state - would be best. The two state solution just perpetuates Bantustans. As to the UN, the n-5 countries need to abolish the veto of the 5.
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25 April 2018
at
2:08pm
Fred Skolnik
says:
@
denismollison
No, there aren't close parallels. A military occupation is not a form of apartheid, and as for the Bantustan business, I have the feeling that you have as much understanding of the geography of the West Bank as you do of the far side of the moon.
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26 April 2018
at
1:10am
Violettavalery
says:
@
Fred Skolnik
Why can't someone mention Israel without being accused of malice and be dismissed? Get a grip.
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20 April 2018
at
12:54pm
Graucho
says:
In Anglo Saxon days, the law was nominally there for everyone's benefit. If you flouted it, you became an outlaw and fair game for anyone. It's a principle that deserves revisting. Putin and Assad could give a toss about international law, I don't see why they should benefit from its protection.
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21 April 2018
at
10:22am
FoolCount
says:
@
Graucho
Putin does not need any "benefit of protection" from so-called "international law" - as he has a strong nuclear-armed military at his disposal, which renders his country totally immune of any attempts to designate it "fair game". Neither does Assad - as he has protection from Putin. Two of them have won the Syrian civil war fair and square. That victory is final and irreversible and the West would do well to accept its loss and move on.
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22 April 2018
at
5:51pm
Graucho
says:
@
FoolCount
Poison gas, barrel bombs, destroying aid convoys and hospitals are "fair and square". O.K. Then nerve agent on the Kremlin's door handles and a drone strike on Assad would be perfectly reasonable too.
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24 April 2018
at
6:52am
FoolCount
says:
@
Graucho
Neither repeating the propaganda lies ad nauseum nor continuing to fight for the lost cause will do the anti-Assad desperados any good now. Just give up and move the regime-change circus somewhere else - let Syria be and let Syrians rebuilt their country in peace after what you have already done to it.
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24 April 2018
at
3:45pm
Bert Fels
says:
@
FoolCount
Guess you qualify as a Putin voter?
Read moreThe UNSC veto is a mechanism which can prevent, or at least discourage, an aggressive superpower from pressurising a majority of council members to support a particular course of action such as a military intervention. We have seen what happened in 2011 when the veto was unwisely not applied with reference to the proposed 'no-fly zone' over Libya. The ‘no-fly zone’ turned into a full-scale campaign of military aggression and regime change, resulting in the destruction of what had been a functioning secular state and its replacement by an assortment of warring factions, some of them of an extremely violent islamist character.
There already exists a procedure whereby a UNSC veto (or the threat of one) can be legitimately over-ruled (or by-passed). In the ‘Uniting for Peace’ resolution, passed by the UN general assembly in 1950 “The General Assembly...resolves that that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations...”.
There is nothing to prevent the US and its supporters from resorting to the Uniting for Peace mechanism should they be unable to get a resolution passed by the security council.
Does American domestic law have any credibility when the police can kill minorities with impunity and virtually always get away with it? At the top levels of government we have seen David Petraues and Hillary Clinton receive preferable whilst genuine whistle blowers have been persecuted. Obama and Holder's refusal to investigate the causes of the Great Crash is probably the most egregious example of the lack of justice in the USA.
Something which does not exist cannot be undermined. Any law which cannot be applied equally without fear or favour deserves to be treated with contempt.
Although it is widely held that blacks and hispanics in the US are more likely to be killed by police while resisting arrest than white people, there is evidence to the contrary. The Washington Post has created a data base on police killings.See 3w.washingtonpost.com/graphics/national/police-shootings
Using this database blogger Willis Eschenbach has found that in the USA in the year 2015:
"• For every 10,000 white people arrested for a violent crime, 38 white people were killed by police (± 2).
• For every 10,000 hispanic people arrested for a violent crime, 21 hispanic people were killed by police (± 3).
• For every 10,000 black people arrested for a violent crime, 21 black people were killed by police (± 2)."
Eschenbach concludes that "...the odds of a given arrest going bad and ending up in a death are much greater for white men than for black or hispanic men."
Of course all the figures are higher than one would like them to be, and nobody denies the presence of racism in the police, but it might be less misleading if 'minorities' in Stu Bry's comment was replaced by 'people'.
I can provide a link to Eschenbach's blog post if anyone is ínterested. Or you can search under 'rosebyanyothernameblog' and then look for 'when-arrests-go-bad'
On the question of police killing minorities with impunity, you are quite correct.
On the question raised by the blog post, it is Delaide's response identifying the politics behind all this that is pertinent. I daydreamed the following scenario and the question of humanitarian intervention.
'The Israeli government has (1) outlawed opposition parties (2) shut down trade unions and (3) removed all arab Israeli citizens to concentration camps in Israel, where it proceeds to (4) starve and then murder them. This process takes place over a period of several years.
The facts seep out through photographic evidence and witness testimony. At the UN Security Council the USA vetoes intervention. China and Russia abstain. A majority at the General Assembly votes to intervene on humanitarian grounds. Sweden is prepared to go it alone with an armed force and they are joined by South Africa. Arab nations are divided and squabbling amongst themselves.'
What do you propose?
Now, substitute the word "Israel" for "Syria" or make other name changes necessary to have a ball.
Meanwhile, all along the watchtower, fires are raging.
International law can only be enforced on those who lack the means to fight back. There is no justice in that.