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Presidential powers, missile strikes and sanctions: Toward a diplomatic solution

Part 2

In April 2018,  the U.S. Ambassador to the UN, Nikki Haley, met with President Trump to get a reading on U.S. policy toward Syria, and especially toward Russia, given Putin’s invasion and occupation of Crimea and Eastern Ukraine. That evening, Ambassador Haley held a news briefing, saying that the president would be announcing the next day the details of new, stricter U.S. sanctions against Russia. The world held its breath. Twelve hours later, Trump made the anticipated announcement. Overnight, Trump had decided NOT to adopt any new or stricter sanctions against Russia. Expressing new-found disgust with Haley for jumping the gun, Trump boarded Air Force One for another weekend playing golf at his Mar-a-Lago Club in Florida. 

Meanwhile, word passed throughout the West Wing of the White House and executive offices and agencies in Washington, even when discussing Russian malfeasance, never to criticize Russian president, Vladimir Putin, whether in public or private communication or conversation. No reason has ever been given for this preferential treatment of the head of a foreign enemy state. Why so? It’s yours to guess.

By now you still may not have a clear understanding of the Trump World view of U.S. law, policies and practices concerning presidential powers, use of chemical weapons, missile strikes and imposition of sanctions. You are not alone in this. The binary choices appear to be to strike or not to strike, or to sanction or not to sanction. Unless there is a third option. There is one,  the one championed by Connecticut’s U.S. Sen. Chris Murphy: “Give diplomacy a chance.” How? Here’s a proposed strategy.

We could convene leaders and diplomats of all concerned parties to review and reaffirm commitment to the 1997 Chemical Weapons Convention, which prohibits the development, production, acquisition, stockpiling, transfer or use of chemical weapons. Each head of state, be it Assad, Putin or Trump, must sign this renewed commitment, and certify that this international ban is codified into and enforceable under national law. It is a promise never to use chemical weapons under any circumstance and for any purpose whatsoever. While we are at it, we may include commitment to the 1987 Convention against Torture.  

Both conventions, by their express terms, require criminal prosecution of any person, particularly a head of state, who “engages in” or “authorizes” the use of chemical weapons or torture. In both cases, there can be no immunity and no pardon for any person, including a head of state, who is in violation of either convention. Under the proposed supplementary multilateral agreement, the United Nations is to have unfettered freedom to investigate any allegation of violation of one of the conventions. The charges are then to be brought before the International Court of Justice for final decision.

If an individual state or regime is found to have violated either of the conventions, then all states are bound to act in concert to impose sanctions on the offending state or regime, in accordance with uniform standards previously agreed upon by the parties, and only as a last resort to combine action in applying military force, not as a punishment for past actions, but as a means of ensuring absolute compliance with the conventions in the future.

In this way, we can use diplomacy and international law to win the war for basic human decency. Boots, bombs and missiles can win pitched battles, and sometimes win a war, but only smart diplomacy can win the peace.

 

Anthony Piel is a former director and general legal counsel of the World Health Organization.