Jonathan Bha­gan

Con­tin­u­ing from last week’s theme, “Wars & Ru­mours of Wars,” CNN re­port­ed on Oc­to­ber 23rd that Nico­las Maduro boast­ed of pos­sess­ing 5,000 Igla-S an­ti-air­craft mis­siles from Rus­sia with a range of 6km and de­signed to shoot down low-fly­ing air­craft.

In my opin­ion, these mis­siles do not pose a di­rect threat to T&T’s na­tion­al se­cu­ri­ty, as T&T and Venezuela are 11km apart at their clos­est point, which is rough­ly the dis­tance from Venezuela’s Patos Is­land to T&T’s Cha­cachacare is­land. Our planes land­ing at Pi­ar­co are far out of range of these spe­cif­ic Venezue­lan mis­siles. While Venezuela has Russ­ian Su-30 fight­er/bombers, the Venezue­lan mil­i­tary would not risk giv­ing Pres­i­dent Don­ald Trump a rea­son to at­tack by tar­get­ing T&T.

The rest of this col­umn will ex­plore the law around in­ter­na­tion­al armed con­flict for the ed­i­fi­ca­tion of the read­ing pub­lic.

Af­ter Nazi Ger­many’s WW2 sur­ren­der in May 1945, the UN Char­ter was signed in June 1945. In Au­gust 1945, the Unit­ed States dropped nu­clear bombs on Japan, lead­ing to the sur­ren­der of Japan in Sep­tem­ber 1945.

The UN Char­ter came in­to force on Oc­to­ber 24, 1945, ush­er­ing in the mod­ern era of in­ter­na­tion­al law with the In­ter­na­tion­al Court of Jus­tice be­ing es­tab­lished un­der Ar­ti­cle 92 of the UN Char­ter and com­menc­ing op­er­a­tions in 1946.

Ar­ti­cle 2(4) of the UN Char­ter pro­hibits states from us­ing or threat­en­ing to use force against an­oth­er coun­try’s ter­ri­to­r­i­al in­tegri­ty or po­lit­i­cal in­de­pen­dence.

Chap­ter VII of the UN Char­ter con­tains Ar­ti­cles 39 to 51, which pro­vide a mech­a­nism where­by the UN Se­cu­ri­ty Coun­cil can de­ter­mine the ex­is­tence of a breach of the peace and take mea­sures to re­store peace and se­cu­ri­ty, in­clud­ing the use of armed forces.

When North Ko­rea in­vad­ed South Ko­rea in 1950, the UN Se­cu­ri­ty Coun­cil passed res­o­lu­tions to de­ter­mine that the in­va­sion by North Ko­rea was a breach of the peace and au­tho­rised a unit­ed com­mand un­der the Unit­ed States’ armed forces to as­sist South Ko­rea in re­pelling the at­tack.

Crit­i­cal­ly, the vote for an armed in­ter­ven­tion in Ko­rea on­ly took place be­cause the So­vi­et Union was boy­cotting Se­cu­ri­ty Coun­cil meet­ings and did not ex­er­cise its ve­to pow­er to stop the mil­i­tary in­ter­ven­tion.

The le­gal­i­ty of the US ac­tion in the Ko­re­an War has been an oft-de­bat­ed top­ic amongst not just in­ter­na­tion­al lawyers but al­so schol­ars spe­cial­is­ing in the Unit­ed States Con­sti­tu­tion. Pro­fes­sor Louis Fish­er’s ar­ti­cle, “The Ko­re­an War: On what le­gal ba­sis did the Tru­man act,” states: “Pres­i­dent Har­ry Tru­man’s com­mit­ment of US troops to Ko­rea in June 1950 still stands as the sin­gle most im­por­tant prece­dent for the ex­ec­u­tive use of mil­i­tary force with­out con­gres­sion­al au­thor­i­ty. Pres­i­dent Tru­man’s uni­lat­er­al use of armed force in Ko­rea vi­o­lat­ed the US Con­sti­tu­tion and the UN Par­tic­i­pa­tion Act of 1945. It is not a valid prece­dent for what Pres­i­dent Bush planned to do in 1990-1991 against Iraq; nor is it a valid prece­dent for any mil­i­tary op­er­a­tions launched by Pres­i­dent Clin­ton in Bosnia or Haiti, or for oth­er UN “peace­keep­ing” op­er­a­tions. The de­ci­sion to place the US troops in com­bat and to take the na­tion from a con­di­tion of peace to a state of war re­quired ap­proval by Con­gress in ad­vance. That was the con­sti­tu­tion­al prin­ci­ple in 1787 and has not changed to­day.”

While ar­guably il­le­gal un­der US law, the aca­d­e­m­ic lit­er­a­ture sug­gests a pat­tern of many pres­i­dents us­ing their ex­ec­u­tive pow­er to au­tho­rise mil­i­tary force with­out con­gres­sion­al ap­proval. Even Pres­i­dent Barack Oba­ma was crit­i­cised for con­duct­ing airstrikes in Libya with­out con­gres­sion­al ap­proval in 2011, al­though the Oba­ma ad­min­is­tra­tion gen­er­al­ly ar­gued that the Au­tho­ri­sa­tion for Use of Mil­i­tary Force (AUMF) passed by Con­gress af­ter the Sep­tem­ber 11, 2001, at­tack gave them the ba­sis for most of the mil­i­tary ac­tions in the Mid­dle East against ISIS and oth­er ter­ror­ist groups.

Like Tru­man and Oba­ma, Trump’s “ki­net­ic strikes” on boats in the Caribbean Sea are not sanc­tioned by Con­gress, but are an­oth­er in a long line of un­sanc­tioned us­es of mil­i­tary force. Pro­fes­sor Michael Schmitt, a re­tired US Air Force Judge Ad­vo­cate, pub­lished an ar­ti­cle on Just­se­cu­ri­ty.org crit­i­cis­ing Trump’s bomb­ing of boats in the Caribbean as not com­pli­ant with in­ter­na­tion­al law. Schmitt stat­ed, “This is not legal­ly com­pli­cat­ed; the prop­er ap­proach to the threat posed by transna­tion­al drug traf­fick­ing is con­sent-based co­op­er­a­tive law en­force­ment. The US op­er­a­tions con­duct­ed to date against sus­pect­ed mem­bers of drug car­tels stretch the ap­plic­a­ble in­ter­na­tion­al law rules and their in­ter­pre­ta­tion be­yond recog­ni­tion.”

In the 1986 case of Nicaragua v US, the In­ter­na­tion­al Court of Jus­tice found that the US sup­port of right-wing rebels and the min­ing of Nicaragua’s har­bours by the CIA was a breach of Nicaragua’s sov­er­eign­ty and in­ter­na­tion­al law. The ICJ award­ed Nicaragua repa­ra­tions, which the US nev­er paid.

The Nicaragua case is a foun­da­tion­al case in pub­lic in­ter­na­tion­al law stud­ies and an ex­am­ple of US in­ter­ven­tion in Latin Amer­i­ca. We await the out­come of the CIA’s op­er­a­tions in Venezuela in 2025. Hope­ful­ly, it will not in­volve arm­ing rebels and lay­ing mines as they did in Nicaragua.