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Question/Comment
24 December: 
Are we talking about the same lawyers who sought justice for the Iraqis held and badly mistreated by British troops? They exposed brutality at the heart of our army. The follow up inquiry did not suggest that any of that brutality was manufactured. We should wait to hear what the facts are before jumping on the press bandwagon to criticise those who wish to bring wrongdoing to book, whoever it's by. It it is British soldiers, then they are also accountable.    Briony
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23 December: 
I agree with Pete and Thinners. This throws a lot of doubt on the credibility of all the other allegations these lawyers made against our forces and even the dossier they sent to the international court about Blair and Straw.    Will 
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20 December: 
It's good to see the Board active again. I thought it was an interesting example of bias when the BBC reported the findings of the inquiry as supporting the allegations of abuse by our soldiers and ignoring the strong criticism of the Iraqis as liers by the judge. He said our military witnesses were truthful. It really showed where there loyalties lie. The BBC is so skewed in its reporting and anti military it is scary that people believe what it puts out. It's brainwashing to the leftish viewpoint.    Thinners 
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20 December: 
I would agree that the comments by the inquiry judge about the veracity of the Iraqi witnesses, and the subsequent revelation that important documents had been shredded that could have shortened the hearings is a a bit of a problem for the firms concerned specially when one of them had been having a go at the Mod for non-disclosure in other cases. I read somewhere that PIL has come Whatever else they do they should apologise for the terrible allegations they made against our forces.   Tess  [Link added]
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20 December: 
Agree with Pete. Danny Boy was an incredible battle. Our blokes were outnumbered over and over. It was pure heroism. Ambulance chasers tried to tarnish their reputation supporting a bunch of terrorists dressed up as civpop. Just goes to show how easily suckered they are. Makes you wonder about all the other cases of Iraqis they're pushing through the courts trying to blacken the reputation of our soldiers. I'll bet none of these scumbags have spent a single day in a war zone or faced fanatical killers who don't wear uniform and just blend in with the local population.    Pongo 
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18 December: 
good to see ambulance chasing lawyers kicked where it hurts over the danny boy incident. 30 million quid to find out a interogater banged the table with a tent peg and shouted at the detainee. iraqi witnesses branded liers. lawyers shredding vital documents. you couldn't make it up. polic should prosecute for defrauding the tax payer.    pete 
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13 November: 
There is a UN resolution requiring states to prevent and suppress recruiting, organizing, transporting, and equipping of Foreign Terrorist Fighters (FTF), and the financing of FTF travel and activities. It also requires countries to have laws that permit the prosecution of: Their nationals and others departing their territories who travel or attempt to travel for terrorism purposes; The wilfull provision or collection of funds by their nationals or in their territories with the intent or knowledge that they will be used to finance travel of FTFs; The wilfull organization or facilitation by their nationals or in their territories of such travel.
Clause 10. Requires countries to prevent the entry or transit of individuals believed to be traveling for terrorism-related purposes.
How this is effected domestically must be a matter for local law I guess?    Tuppy 
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UN Resolution 2178 of 2014. One presumes that detention and prosecutions of returning jihadists would be brought under the Terrorism Acts, but I am no specialist in this field. Subject to the decision in Chahal, deportation of those regarded as a threat to national security is permissible under the Immigration Act 1971 where there is insufficient admissible evidence for prosecution.     Aspals 
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13 November (sent on 9th): 
Obviously my question failed to stimulate debate. Sec 36 of Crime and Disorder Act 1998  abolished the death penalty for treason, so I'm not sure what offences could be made out.    Tess  [Link added]
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First, profuse apologies for not posting Pete and Tess's postings earlier, but other commitments intervened. I agree that Treason is a possibility but may be considered too anachronistic. The problem is what else could be used. At first sight, I was not so sure that the Foreign Enlistment Act 1870 would apply as it seems focused on "enlistment" by a British Subject in the service of a "foreign state" (s.4). However, section 30 of the Act defines "Foreign state" as including any foreign prince, colony, province, or part of any province or people, or any person or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province or people. S.5 makes it an offence to for any person, being a British subject, to leave the country without the license of Her Majesty "with intent to accept any commission or engagement in the military or naval service of any foreign state at war with a friendly state". ISIS is at war with Syria and Iraq and other rebel groups. While Iraq is regarded as "friendly", Syria is not. Moreover, the ISIS is not a state, however it describes itself, but it does "exercise or assume to exercise the powers of government in or over any foreign country, colony, province, or part of any province or people", as it controls territory in Iraq and Syria. There seems to me to be an argument therefore that those British Subjects who fight with ISIS are liable to prosecution under this Act. Can anyone else shed any light on the matter?     Aspals 
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13 November (sent on 8th): 
don't let the scumbags back into the country then theres no need to bother with prosecution.    pete 
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5 November: 
Ref the discussion on treason, the decision about who to prosecute and on what charges must depend on the evidence and the public interest. For the life of me I can't think why a prosecutor would pick an antediluvian charge like treason when there are probably better and more recent alternatives which are probably easier to prove.    Roger 
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3 November: 
Ref Tess's point about treason, I think any citizen who goes to fight for an organisation like Al Quaeda or ISIS commits treason. They fight against our interests and therefore against there country. Whether it makes any difference what theyre prosecuted for I don't know, I think treason used to carry the death penalty but I don't think that applies now. They need prosecuting whatever the charge.    Thinners 
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31 October: 
Lst night's Question Time featured a question from someone about using treason to prosecute those who fight with IS or other related terrorist groups. Some of the panel thought this a bad idea and wanted to encourage fighters to come home, but the final position was unclear as the question was hurried as it appeared at the end of the programme. I suppose it is technically possible to prosecute but I have to admit not researching treason. I wondered what others thought about this.    Tess 
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23 October: 
definately better the devil you know    pete 
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21 October: 
I suppose that there just are choices of evil. I find it hard to accept the idea that any organisation that treats people in such a primitive and cruel way can be a force for good. The recent stoning to death of a woman accused of adultery while her husband looked an ignoring her plea for firgiveness is just another example of the cruelty of this part of the world. I know that the same thing goes on in Saudi Arabia and they also chop peoples hands off for stealing. I just wonder if answering violently is the best way to deal with violence.    Briony
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19 October: 
It makes sense to stick with the guy whose fighting the same enemy as we are. I don't think the people fighting Assad are the same ones that protested against him in the early days to get rid of him. They didn't have weapons or go round eating peoples hearts. My guess is that most Syrians want the fighting to end and life to go back to what it used to be in the days when Syria was prosperous and peaceful.    Thinners 
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19 October (posted on 18th): 
To answer what Briony said, I think she is right that there was a lot of hostility to Assad's government in the days of the Arab spring, but the attempt at revolution which took place then was one which aspired to democracy and wanted to keep the secular state. Out of the thousands of rebel groups that exists besides Isis and AQ, I don't know of any that support actually support democracy or secularism. What worries me most is that if the Americans do help Turkey and Saudi and rebels defeat Assad and bring in regime change we will just see a different type of oppression where the Alawites and Shia are wiped off the face of the earth, and probably what's left of the Christians too.    Will 
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19 October (posted on 18th): 
give me assad any day to the isis butchers.    pete 
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17 October: 
Aspals may defend Assad, but if he was OK then his people wouldn't have risen up against him would they. It seems that Iraq had chemical weapons after all, so George Bush may have been justified in invading. It is hard to understand what reason there is or was for not making this information public before now.    Briony
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From what I understand, these are chemical weapons which date back to the war between Iraq and Iran, in the 1980s. So they were not the weapons of mass destruction which we were actually being warned about. So, hardly a major matter. Moreover, why confuse people when the US was engaged in nation building there. My position on President Assad, reinforced by the lies manufactured to demonise him in the eyes of the public, confirm that he is better than the alternative which needs no help in demonisation.     Aspals 
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17 October: 
I came across an interesting item on Twitter, today, which refers to a new book, "The Roads to Damascus" (Les Chemins de Damas), which reveals secret events and details about how the French presidency forced the French diplomatic corps and intelligence services to comply with the politically motivated decision to remove Assad, manipulating reports about chemical weapons and the actual strength of the Syrian regime. Will the lies ever cease? French propaganda was used to demonise Assad for a political end. Surprised? No. Dismayed? Yes.    Anthony    Aspals Consultancy
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15 October: 
in that part of the world its definitely a case of better the devil you know    pete 
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15 October: 
I am surprised that you can call someone who tortured thousand of his own people a friendly dictator. There is a display at the Holocaust Museum in Washington of many thousands of photographs of the Syrian government's victims of torture. They are a horrible lot if you ask me. They sound almost as bad as the Islamic fundamentalists.    Briony
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Yes, I read that too. The trouble is that the true provenance of the photos has not been established. On an internet search to find a reference, it was confirmed that the US believe the photos are genuine, but there is no proof they are what they say they are: (a) Syrian victims (b) of the Assad government. As I wrote in January, we should recall "extraordinary rendition by the US and UK to countries like Syria and Libya, where men were truly tortured and abused. I surmise the Americans have a lot of information and photographs from those times. So, it is possible some of the photos are of Syrians from when they were mistreated with the full knowledge and involvement of the US and/or UK intelligence agencies."
They appear to be the same photos that were being produced on the eve of the Geneva peace talks by Qatari sponsored investigators. They had been regarded as highly suspect then - the US knew of the photos previously but did not take action because they couldn't prove they were genuine - or that they were even all Syrian victims. "The United States did not act on the photos for the past two months, officials said, because it did not have possession of the digital files and could not establish their authenticity."
Briony says the Syrian government is "Almost as bad" - so are they better than the alternative? I would suggest we should act upon evidence rather than supposition (remember WMD in Iraq?). If the case is ever substantiated that the victims were indeed those of this Assad regime, then we still have to judge these acts in the context of the general state of human rights abuses which go on in this part of the world. The Shah's government was accused of torture and the west stood by when his government fell and was replaced by one even more depraved than his. I would recommend reading the Iran Tribunal's findings before we rush to judgment in Syria.
The other question I would ask is this: if the photographs were unequivocally those of Syrian torture victims, why are the US and other governments not making a louder protest about them? Perhaps, the proof is lacking.
Before I am criticised for doing so, I want to make it clear that I do not condone torture. I also do not condone slavery, or the rape, mutilation and murder of children and women, or the depraved killing of male captives, which is something the so-called Islamic State does, as a matter of routine. As bad as some say he is, Assad seems positively benign against that lot of fanatics.
    Aspals 
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14 October: 
I refer to the final part of Anthony's comment written on 10th Oct. Is Assad someone he would regard as a friendly dictator? I thought the west saw him as someone they have for a while wanted to remove from power.   Briony
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These adjectives are relative, Briony. I would define, within this limited context, "friendly" as meaning someone who was not ill-disposed to the west, who had not persecuted religious minorities, or cut their heads off in some public orgy of violence, who wished to live in peace with his neighbours. We must not forget that Syria had a peaceful border with Israel for over 40 years, although this has recently been jeopardised by the rebels who have raided outposts on the Golan heights and potentially de-stabilised the border. The criticism about closer Syrian ties with Hezbollah (Shia) fails to recognise that they have been forced upon them by the Sunni uprising against the government and the huge amount of external support to the rebels from Qatar, Saudi, Kuwait and Turkey to mention a few. And it is this fact that puzzles me regarding Israel's attitude. Israel may be content for its Syrian neighbour, with whom it has lived in peace for many years, to get bogged down in war, but it runs the risk of facing an even more resilient and battle hardened enemy in the form of Hezbollah, once the fighting in Syria ends. An Israeli desire to "keep the pot boiling" in Syria, to deflect its enemies from paying Israel any hostile attention, is likely to store up trouble for the future and present it with a formidable enemy ground force which it, in an indirect way, helped to train. Nor will it be something that Syria will forget quickly.
To return to Briony's comment, I do see Assad as a "friendly dictator" within the above context. He is without question better than the alternative which is currently going around raping and murdering women and children and then mutilating them, in acts of unspeakable savagery. Some may say that this is down to IS and is not the FSA's doing. But, who are the FSA? How close are they to the savage extremists we condemn for their atrocities carried out in the name of a merciful God? What guarantees are there that, even were they capable of defeating IS (who they see as a lower priority than defeating Assad) and forming any sort of government in the aftermath of a rebel victory (whatever that means) they will be able to form a secular government of unity that will restore order and prosperity to the country, or what is left of it? The high hopes for Iraq and Libya show what happens when powerful, albeit unpleasant, individuals who hold a country together and provide stability, are removed. Whatever the tactics of IS to impose its reign of terror, democracy in these countries cannot be imposed down the barrel of a gun. Democracy, by its very nature rests on the consent of the people ("demos"). The rebels, FSA or whoever else, do not have that mandate from the Syrian people, even after three years of war. Far from it, the initial popular uprising has been hijacked by more extremist and violent elements. Once more, Russia has correctly sensed the mood and understands the geopolitics of the region better than the west, which is being played off by Turkey, Saudi, Qatar and others. Defeating IS can be achieved, even without Turkey or Saudi, whose main objective is the removal of Assad rather than the defeat of IS (whom they have bankrolled and supported)  by simply openly reconciling with the Syrian government and joining forces to fight the common enemy on the ground as well as in the air - the success of which is limited when used in isolation. At present, the constipated and pious attitudes of western governments towards Syria is actually introducing a dangerous delay in our necessary responses. Many have died and are dying in Kobani, as we stand by and watch. I do not wish to suggest that forming a coalition of local actors will be easy. There is Syrian/Kurdish suspicion, as well as FSA-type rebel/Kurdish, IS/Kurdish, IS/Syrian, FSA/Syrian, Turkish/Syrian, Turkish/Kurdish etc. It is obviously complex. But to seriously suggest that a solution can be found quickly without involving the Syrian government, is not just politicallyy naive, it is grossly negligent.
    Aspals 
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10 October: 
In reply to Anthony, more a comment really, it isn't idealism gone mad, its propaganda by the press and media gone mad. They are the ones that insist on painting Assad as the villain, and most cannot admit that the rebels are the real threat. The very idea that they will produce a viable alternative government shows they live in cloud cuckoo land along with John McCain and David Cameron.   Will 
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Some very powerful points, Will. John McCain has some seriously dangerous ideas. Thank goodness he failed in his attempt at the presidency. I prefer the more reflective approach of President Obama.    Aspals 
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10 October: 
To follow on from what others have said, with which I generally agree, what we should not be doing is taking part in any military action unless we have a proper objective in place. What is it we want to achieve and how do we propose to do it and who with? Then we need the right level of forces to commit to the task. Air power on its own will not bring victory, nor will arming a motley selection of rebel forces whose underlying loyalty is anybody's guess, to act as our proxy army. This will perpetuate the blood letting and war crimes. We should never say "never" to Assad and his forces. We need them. They are trained, disciplined (to a point) and combat hardened with a proper chain of command. Moreover, in spite of Mr Cameron's denial, they are the legitimate force in Syria – and they are not fundamentalist. It is clear from recent news reports that the so-called FSA is not as interested in a fight with IS but wants the west to help them overcome Assad who is taking military advantage of the situation and is giving the FSA a bit of a bashing. For the rebels to suggest that IS is not the major priority speaks volumes about their sympathies, and what the future holds if we dance to their tune. Their true colours are showing. This has been suspected for some time, as the rebels have become more fundamentalist in nature, regarding Nusra fighters as vital warriors in the battle to topple President Bashar Assad. These are the same Al-Nusra Front attacked recently by US aircraft as they are a prominent terrorist group. So we should be extremely wary of being sucked deeper into a rebel game. There are so many "agendas" and so many different nations and groups, that picking the right one is as difficult as picking a lottery winner.
But, before any of this starts, we need to make sure we have a legal basis for what we do. Any intervention in Syria needs either: (a) the consent of the Syrian government, or (b) a UNSCR under art. 2(4) and Ch VII, or (c) we must be able to invoke self defence in a lawful way, rather than making it an excuse for invading a sovereign nation. Regime change - in spite of the keen wishes of the rebels – is completely illegal and, after the disgrace of Libya, the Russians and Chinese would never again let themselves be suckered into a UNSCR that permitted such a thing. Of course, we must also think about what happens after we defeat ISIL. We have made such a mess in the past by our military interventions that experience tells us this is an area where we must do better. Supporting the dangerous agenda of rebel groups with fundamentalist leanings (as most have), will not produce a better outcome than supporting the present government. To focus, as some in the left of centre press have done, on the atrocities of the SAA, while seldom mentioning the barbarity of the rebels, is idealism gone mad. We need some hard headed thinking here to make sure that there is a lasting resolution to this dreadful crisis so that Syria may return to its secular ways, rather descend into a medieval, anti-western, fundamentalist state implementing Sharia law, promised by the rebels. Why do I say they will be anti-Western? Simply because the resentments have already begun to surface and we have seen in the past in Iran how standing by while a "friendly dictator" has been toppled by people power has later turned sour – the country sank into deeper levels of depraved violence to its citizens under the theocracy which replaced the Shah, and took a vocal anti-western stance. We must stop kidding ourselves that the people of the Middle East want our style of government – or our values.    Anthony    Aspals Consultancy
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7 October: 
"We do not want to sleep-walk into another catastrophic Middle East war." (Aspals) We are being led there by the Saudis and probably the Turkish too. The Americans have really got themselces into a spin over who to arm or train. We all know what they should be doing and who they should be teaming up with, its all pretty obvious. I bet the human rights lobby are telling them not to do a deal with the Syrians government. Funny though because that just means the war goes on for longer and more people get killed or injured. Whose human rights are protected then?    Baz 
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7 October: 
Sounds like a typical American snafu. Arming and training a few thousand friendly rebels -if there is such a thing is like fiddling while Rome burns.    Pongo 
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6 October: 
the rebels have still got cw and thats why our sf boys need protection gear. gulf war 3 here we come.    pete 
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6 October: 
Just heard on the radio that the US is arming and training the rebels in Syria but the rebels are disappointed the US isn't hitting Assad's troops instead of Isis. What a mess this is turning out to be. Syrian rebels more interested in fighting the regime than fighting who is supposed to be our common enemy. Whos side are we supporting, do we know.    Thinners 
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How right you are Thinners! As has been said many times, the "rebels" are really a rat-tag disparate bunch of fighters with radically different agendas - some being hardly distinguishable from the more extreme elements that are on the receiving end of US attacks. Jabhat al-Nusra, for instance, is regarded more favourably by some of the so-called FSA. Many rebels clamouring for US assistance are more bothered about fighting to get rid of Assad than defeating ISIS. So what is it that the US is really getting sucked into? A ground war with Syria? Regime change?
If I were Assad, I would watch carefully what is going on with the so-called moderate rebels. If they are taking the fight to IS, then I would leave them be, for the moment, as they would be killing my enemy and sparing my forces the full brunt of the fighting, thereby reducing casualty rates in my force. However, I would also be keen to ensure that they did not grow so strong that they presented a significant threat to my forces and, therefore, become more of a threat than ISIS. This would then give the Americans a real dilemma: do they deploy ground troops and commit to regime change to assist the ineffectual FSA defeat Assad, or do they try and maintain an FSA focus on IS (which is what they are supposed to be training them for), or do they cut their losses and leave them all to it? The failure of the US - and UK - to really understand that if they help bring about regime change (a) there is no guarantee that what replaces the Assad government will be any better (and could even be worse - vide Iran and Iraq and Libya) and (b) that in so doing, they make the defeat of IS in any meaningful way, almost unachievable as the Middle East (Iraq and Syria) will be in a perpetual state of war. I would suggest that Assad presents the least of all evils by a long chalk.
Many decry Assad as an evil monster: killing and torturing his people. It would not be the first time that, for the sake of victory, we have done deals with monsters. In the second World War, we dealt with Stalin. You need only look at the report of the Iran Tribunal to see that the regime that replaced the Shah was guilty of the most unspeakable atrocities against its own people, yet we are prepared to cooperate with the Iranians in Iraq in the fight against IS. The manifestation of the really idiotic twist in this cooperation is that, in Syria, where we are fighting the same enemy, IS, we are potentially placing ourselves as enemies of Iran (who support Assad).
Today, Russia warned about attempts to overthrow Assad and pointed out that their Mediterranean fleet was based at the Syrian port of Tartus. To paraphrase the old Chinese saying, the US and its allies should be careful what they wish for in their ISIS policy towards the FSA and, importantly, should not dance to the tune of Saudi Arabia, Qatar, Turkey (caught plotting more false flag ops as a pretext for war) or the so-called FSA. We do not want to sleep-walk into another catastrophic Middle East war. But it looks as if we are.
    Aspals 
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3 October: 
The lies that were told about WMD mean its difficult to believe any story from anyone with an interest in a war. The rebels in Syria had chemical agents for some time and this was reported by the Turkish police who arrested some of them. A senior UN woman also independently said the same thing. It just wasn't convenient to US thinking to admit the truth because at the time they came up with the idea of regime change to get rid of Assad so every wrong thing that happened was down to him or his army.    Will 
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3 October: 
none of the countries with troops on the ground in iraq and syria really get that this is a lose lose war. there are so many different factions and so many different agendas that this mess will drag on for years. that probably suits isreal cos it ties up hezbolla while the arabs fight eachother.    pete 
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2 October: 
When a very hysterical media was blaming Syrian army units for using chemical weapons a newspaper report said that there's a worry that our SF on the ground may face a CW attack from Syrian rebels. Does this confirm what a lot of us thought all along that the rebels have had CW, Sarin is easy to make anyway, and may have used them in the passed to dupe the US into an attack on Syria.    Thinners 
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2 October: 
turkey thinking about sending troops into syria. sounds like tmore trouble.   pete 
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And completely illegal without a UN mandate or a host nation request from the lawful Syrian Government of President Assad, which is unlikely as Erdogan turned from friend of Assad to enemy almost overnight. Erdogan has been supporting the Syrian rebels - some with very questionable democratic credentials. Turkey has a bit of a track record for invading other sovereign territory in violation of international law - yet Britain wants it to join the EU!    Aspals 
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29 September: 
It looks like the Americans are coordinating their airstrikes with the Syrians which is a good thing. Boots on the ground looks inevitable although the big worry is what it will lead to if the ISIL mission is a success. Regime change in Syria?   Will 
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28 September: 
There was a good article in today's independent by an ex SAS CO who made the point that there has to be a political strategy and there doesn't seem to be one. This really is stupid and parliament voted for war.    Pongo 
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26 September: 
Too true Baz. Cameron's lack of any real planning is going to get our hostages killed and widen the war to regime change in Syria. Anyone who knows anything about the rebels knows that they are completely unorganised and have no unified chain of command. In the main each group has its own autonomous leader and some are moderate and some are not. Some are quite fundamentalist and hard to distinguish from ISIL.    Pongo 
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25 September (posted 26th): 
What Baz wrote is so true. Mr Cameron is too eager to rush to war being pushed on by the United States. Where will it end.   Briony
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23 September: 
whatever else Cameron might be thinking about he better remember that IS are holding British hostages. We dont want to do anything stupid that might put them in more danger.    Baz 
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23 September: 
It is all very worrying reading about yet more bombing and the likelihood of yet more innocent civilians being victims of colateral damage. I just hope that Mr Cameron and our government has more sense than to involve us in this war. There are enough already involved and they all seem to be doing a great job of bombing.    Briony
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23 September: 
Pete is bang on. Air power is limited. Training the rebels to do the ground fighting in any competent way will take more than 6 months. So what happens in between. Do we keep bombing? Isis is known for using children as human shields. What's to stop them from doing the same with civilian groups such as schools or hospitals in Raqqa. Then public opinion will turn against us and we will have ben out done by a force that is no respecter of war laws.    Thinners 
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Thinners, I can see that this strategy of publicly refusing to deal with Assad may be a ploy to keep the more fundamentalist elements of the fragile and predominantly Sunni "coalition" happy. However, if they have any sense, the US will coordinate with the Assad government. It is understood that this may have happened over the recent air strikes, although it is being denied that they sought permission to enter Syrian airspace. In other words, the "might is right" approach showing a disdain for international law was once more apparent. Bombs alone will not resolve this problem. First, the US and its allies must act in accordance with international law. Bizarre statements that Assad lacks legitimacy and therefore can be ignored in favour of "consent" from a disparate and disorganised group of rebel fighters (with links to some rather unsavoury elements - even to ISIS itself) is just wrong. And foolish. To act in accordance with international law, there must be consent from the host nation ie Syria ie Assad, or there must be a resolution from the UN Security Council, or there must be an immediate threat justifying self defence under art 51 (this will be exceptional in Syria's case as there is a legitimate government that is willing to assist but which is being ignored by the US and others. So anything beyond immediate 'hot pursuit' a short distance across the border of terrorists just having committed violence would be a violation of Syrian sovereignty). Secondly, the bombing campaign will only have limited success for a limited time. Ground troops will be needed to continue the fight. I am not suggesting our ground troops, but capable local troops should do the job. The most obvious local force is the Syrian Arab Army. Arming rebels which is a highly risky strategy, for the reasons outlined, will store up huge problems for the future and may even prolong the fighting, as they continue to swap sides. We know also that weapons provided to so-called moderates have found their way into the hands of extremists. We also know that there are hundreds of rebel groups in Syria, with widely different agendas. Who will we be training - fighters that will make the situation even worse and more sectarian? Thirdly, we must recognise that IS/ISIS does not brook compromise. Its vision is for a world caliphate under their version of Sharia law and their version of Islam. They might invite us to talk to them, through the medium of hostages they hold, but that shows we are making an impact and they need to buy time. However, that does not mean they truly are willing to negotiate. We must be resolute. What we must not do is snatch defeat from the jaws of victory by refusing to coordinate the military task properly. IS must be defeated to stop the cancer of a version of Islam that appeals to every form of extremist or politically disaffected youngster from spreading throughout our societies. We need to get the Syrian government and the Iranians (who control Hezbollah) on side. As I mentioned here and here, we have to understand the folly of being with Iran in the fight against IS in Iraq and, ostensibly, against them in the same fight in Syria, purely because of our self-righteousness over the Assad government - as if the alternative was any better! (updated 27th September)    Aspals 
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21 September: 
as normal the yanks will screw up what wil happen if they ignore the proper goverment. they must know the rebels are a ramshackle lot and there is no real rival to the present government. bombing isis wont help much either, when they fight in built up areas. thats how you kill civilians and thats how you turn supporters away from you.   pete 
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19 September: 
It is really depressing to read about our getting involved in yet another war in the Middle East. If what people write in is true then we could well end up making a bad situation a whole lot worse. Haven't the people of Syria and Iraq suffered enough without yet more bloodshed. Breaking the law to arm rebels and invade foreign airspace is an appalling way for civilised countries to behave. What may have started out as a pro democracy movement against President Assad has changed beyond recognition and has been hijacked by extremists of the most vile type. It is difficult to understand how arming fighters who are no better than Assad in their respect for human rights will actually help bring about peace. We were told that Assad would be removed from power ages ago. He's still there and fighting the ISIS who Mr Cameron says we will fight, but we won't help the Syrians only the Iraqis who are fighting ISIS too. Instead we will help the rebels fighting Syrian troops. Is it just me or does anyone else think this is a bit of an silly approach?    Briony
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19 September: 
Whatever the former attorney general says the quote from Philip Sands shows he's out of line. It's all theorettical anyway because no one can punish us or the Americans if we break the law.    Pongo 
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17 September: 
The debate about whether airstrikes in Syria would be lawful or not without permission from the Syrians took another turn yesterday when the old attorney general said he thought they would be. Between those who argue one way or the other the situation is very confusing. From what I understood of Grieves argument he is saying there is a right to intervene to protect people under a humanitarian intervention right. We have discussed this in the past on the blog but I think we thought that was wrong. Is it a bit odd that he sticks with this?    Tess 
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Tess, if that is the position of the former AG, a man well admired as a lawyer of principle, and very able, I am puzzled. It is not clear from where he would derive his authority for this statement. As I have often said (see, for example, last year) Humanitarian intervention is often confused with R2P. The UK is virtually alone in believing there is any right to intervene on humanitarian grounds. Such a "right" would be a green light for powerful nations to bulldoze their way into less powerful countries under the pretext of humanitarian assistance. Where is the threshold? Isn't this why we condemned Turkey for its invasion of Cyprus and, recently, Russia for invading Crimea? How does this concept compare with R2P, which requires a UN mandate - unless the assistance is at the behest of a member state, when normal principles of nation comity apply. All sorts of inventions have been made to justify avoiding the legitimate government, eg Mr Cameron has said Assad has lost legitimacy, because he has committed crimes against his people (as if this is per se a legal justification. Yet he wants to recognise the so-called moderate opposition, whatever they are. As pointed out in the New York Times, by Ahmad Samih Khalidi, "The genuine 'moderates' won't take up arms, and those who do are not truly moderates.". Trying to invent legal authorities on such tenuous grounds ill-behoves a government that says it is committed to the rule of law. Moreover, it diverts attention away from lawful and sensible solutions which are staring us in the face. Are we really going to risk the lives of our pilots, and the real possibility of escalating this crisis by refusing to join in a common purpose with the Syrian government? If that is the case then we have lost the plot.     Aspals 
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16 September: 
The west is really getting itself into a mess over responding to ISIS. A lot of people, even the House of Commons committee, say that going it alone to bomb inside Syria is illegal without the consent from Assad. Isn't the answer pretty easy, just tell Assad we want to help get rid of ISIS and work with his military intelligence units who can do the targeting. We will not succeed using airpower on its own and run the risk of killing civilians. The best and quickest solution to pursue the terrorists is to join forces against them.    Pongo 
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As a rider to Pongo, Professor Phillipe Sands QC, was reported in The Independent, as he "challenged Mr Cameron to show his legal advice [justifying airstrikes in Syria without Assad's consent] to Parliament. Mr Sands warned that the Prime Minister would struggle to justify UK support for US-led air strikes on Islamist extremists in Syria on three grounds: no authorisation from the United Nations Security Council; no apparent evidence of self-defence; and little precedent for launching any attack on 'humanitarian grounds'." A Commons Library Standard Note makes the same point: "any outside military action in Syria (which is thought to be necessary if ISIS is going to be tackled effectively) would be more difficult to justify. "     Aspals 
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13 September: 
I don't know much about fighting a war but there was an interesting piece in the Mail today by Simon Heffer, which made the point that doing a deal with evil people for the sake of the greater British interest was something we did in the past. He mentioned Stalin. He thinks that should not deter us from doing a deal with Assad.    Tess 
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Thanks for the pointer. I have added a link. It is an interesting article and I happen to agree that we need to look at what is in the long term interests of this country rather than get bogged down by pious principles that will likely lead us to greater tragedy and loss of life. We need to focus on who is the enemy rather than saying we won't deal with people we don't like or who do nasty things - if we truly did that, we would exclude a lot of our better customers!    Aspals 
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12 September: 
Good point about targeting. Ibrahim al-Raqawi, a long time opponent of ISIS said he refused to give Washington information on IS positions because he was afraid of civilian casualties. He is against airstrikes if they did not also hit Assad's forces and stop him from killing civilians. Quite a few other groups opposed to IS feel the same way about airstrikes killing Assad's troops. So if he is not careful Obama will get dragged into a war with Syria. Saudi is an ultra conservative Sunni state which would be delighted to see Assad go. They supplied money and weapons to the rebels some of which joined IS. You could say they did a brown spoon job. The idea the US is being played by the Saudis is bang on. The Americans don't seem to realise.    Thinners 
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12 September: 
Anthony, you didn't mention the catastrophe in Iraq, a Shia country ruled by a Saddam a Sunni. Hardly a success of US foreign policy. The west really messed that one up and now the Americans are planning on going back. Rather they are already there of course. I agree with what Anthony says about replacing Assad but it has to be said that not all Sunni support Isis. After all if you are in an area under their savage and cruel control what choice do you have other than to toe the line. If there is a good chance of getting rid of them, it may well be the case that the moderate Sunnis will be more than happy to do so.    Will 
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12 September: 
Pete makes a very good point. Without reliable intelligence, rather than that supplied by a rival rebel group, ISIS target identification will be a major problem. For example, the "'good rebels" might provide coordinates for an Alawite or Shia controlled village (most rebels are Sunni). To get this right requires government level intel. The Syrians have an air force and an intel gathering capability. Without reliable intel, pilots could very well end up killing civilians. Without proper coordination, this tactic could rebound on the US very severely. As could its possible mission creep (hidden agenda) of regime change by arming the rebels so that they are able to go on to fight Assad in the US' proxy war (vide Libya). Just why it thinks that rebels who have carried out their own atrocities are better to govern than Assad is unclear. It is unfortunate that this perception of the Middle East in black and white is through a complete misunderstanding of Arab/Israeli culture and ethos. The US has been totally manipulated by the likes of Saudi and Israel, for quite different reasons. The binary approach of having a "bad guy" and a good guy, has painted President Assad as the baddy. It is time for governments to realise that Assad is actually the key to (a) the extirpation of ISIS and (b) peace and stability in the region. It would be surprising if Iran, a Shia state, idly stood by while the US installed a Sunni replacement for the Assad government. They might, but it is doubtful. The Iranians have been eager to support President Assad with their proxy force of Hezbollah fighters and their own special forces. It is unlikely that that sort of western solution will see the end of conflict. Had the west (including the UK) looked beyond the end of their noses after being intoxicated with the initial "success" of the Arab Spring, encouraging uprisings across the region which have been catastrophic in virtually every case, things might have been different. There might have been far fewer dead than the more than 200,000 so far. The US should focus on the common enemy and, using the KISS principle, set about an inclusive coalition with Syria and Iran that will swiftly defeat them.     Anthony    Aspals Consultancy
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12 September: 
yank policy is recipy for disaster. if theres a civil war going on how do you know who to bomb or maybe the pilots will shoot first and ask questions later. god help those below. i remember how the a10s shot us up in the first gulf war and our boys wore uniform.    pete 
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12 September: 
While there is a debate over the lawfulness of action in Syria, there is an interesting discussion going on in the states about the president's actual authority under the Authorisation for Use of Military Force which authorised force against Al Qaeda and whether it actually authorises him to conduct operations against IS in Iraq and Syria. Many US lawyers argue that the AUMF does not extend to IS as it is not Al-Qaeda or an associate force. On the contrary, IS does not recognise the authority of Al Qaeda and Al Qaeda has disassociated itself from the acts of IS. So it looks like he has legality problems even at home.   Roger 
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Thank you for the reference to the AUMF, Roger. According to Wikipedia, "The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." The AUMF was signed by President George W. Bush on September 18, 2001. As this is limited to 9/11, IS did not exist in 2001 and, even if it did emanate from AQ, it broke away from that organisation some time ago and, as Roger points out, has been disowned by them.     Aspals 
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12 September: 
Since writing yesterday, there have been further developments which cause me to re-assess some of the comments expressed. In relation to the overflight, it is clear that the US has been warned by the Syrians, Russians and Iranians about the unauthorised intrusion into Syrian airspace. This will be a breach of international law, so the Syrians are absolutely right to say that the US must obtain their cooperation first. Consequently, where I say that the US is "bound to get" permission from the Syrian Government, I would qualify that by saying this only follows if the US does not intend, as now seems possible, to assist Syrian rebels in the overthrow of the Assad government. US intentions in reviving the illegal policy of regime change show that history, and international law, has taught it nothing. Its contempt for norms it seeks to impose on other nations shows an arrogance and disdain which is unbefitting its role as a superpower. Therefore, I would now see the risk for escalation as much higher, in that the lawful shooting down of unauthorised overflying foreign military aircraft may well lead to an expansion of the conflict.
What I also find quite strange is that the US does not see the contradiction in its approaches to Iraq and Syria. In Iraq, the US and Iran are both supporting the government in trying to oust ISIS yet, in Syria, it now looks as if the US will be fighting against the Iranians who, through Hezbollah and Iranian special forces on the ground, are assisting the Syrian Government (something Con Coughlin eloquently wrote about in the Telegraph, yesterday). Mr Obama's "strategy" is confused and confusing. More than anything, it is reckless and dangerous. If the President is a prudent man then, inspite of the rhetoric, he will be speaking and coordinating with the Syrian government. Surely?     Anthony    Aspals Consultancy
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12 September: 
Tess talks about a UN mandate but there wont be one because the Americans have a different outlook to everyone else. They are the might is right brigade. I haven't read anywhere of a convincing argument that they have the lawful right to bomb anyone in Syria without the permission of the Syrian government. To say that the rebels gave permission is just stupid and the Americans are just making it up as they go along. If the US with all its high powered attorneys can think that rebels can give a permission to enter foreign airspace that's lawful then they are way out of line in their thinking. Russia has definitely the better argument here.    Will 
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11 September: 
If Mr Obama wants to put together another coalition of the willing, why hasn't he asked for a UN mandate? I bet even the Russians would support it provided its limits were clear and they were involved to protect Syrian interests. It would be a proper basis in law for any action.    Tess 
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11 September: 
The US doesn't give a toss about anyone's soverignty but their own. So theyre not bothered if attacking Syria is a breach of international law. They think they are the law.    Will 
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I hope they do not break international law by carrying out attacks in Syria, unless they have prior authorisation from Assad. It would, from a practical point of view, recklessly endanger the lives of US pilots on such missions, when there is absolutely no need to expose them to that risk: Assad will help in dealing with ISIS. I surmise, though, he will be less enamoured with US plans to arm rebel groups, bearing in mind the ease with which sophisticated weaponry finds its way into the hands of extremist fighters. Perhaps the US will provide just enough to help the rebels do the job without tipping the balance too much. We shall see. It is, all the same, a short-sighted and risky strategy - and one favoured by the more hawkish of US politicians.    Aspals 
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11 September: 
The americans are bonkers and gung ho enough to go ahead with air strikes in Syria and support the FSA and get their aircraft shot down. After all, it the Syrians couldn't control commanders in charge of poison gas, there will be the odd maverick out there I'm sure manned a missile battery who may decide to bag a US jet. Then what? They have got themselves in a tangle all because they painted themselves into a corner over Assad by saying he was the baddy, when it as clear as the nose on your face that the other lots are no better and are infiltrated with fighters that drift from rebel group to rebel group, taking their US arms and ammo with them.    Baz 
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11 September: 
Great post Anthony. Robert Fisk made a similar point a few days ago about Obama fighting alongside al quaeda if he decides ot attack Assad. http://www.independent.co.uk/voices/comment/does-obama-know-hes-fighting-on-alqaidas-side-8786680.html    Thinners 
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The same seems to have happened in Libya, where in 2011 the Telegraph reported "The West and al-Qaeda on the same side". If it were not so desperately tragic, it would be funny. The idée fix of regime change, to rid the world of a man that had been persuaded to get rid of his WMD and cooperate with the criminal activities of the US in its extraordinary rendition programme, is murdered, his country destroyed and its people left in jeopardy, blinded the west to the realities of what was happening on the ground. Who it was they were actually supporting among the group of "rebels"? Well, we have a better idea now, don't we? Does that situation sound familiar? Does it resonate with what is happening in Syria and the persistent idea of arming the "moderate rebels"?
While I support the principle of joint action against IS, which I believe is lawful under international law, it should not be used as a platform for unauthorised intervention in Syria or the arming of potential enemies. We have seen in Syria how weapons supplied by "friendly governments" to the "moderate rebels" have ended up in the hands of ISIS fighters. It is time to fight the common enemy and to reassess the relationship with the legitimate Syrian government. For all our sakes. The approach the US seems to be taking is, as in Libya, to snatch defeat from the jaws of victory.
    Aspals 
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11 September: 
The dangers inherent in Mr Obama's stated proposal now to hit IS targets inside Syria are exacerbated by his stated refusal to work with the Assad Government and his intention to arm the so-called moderate rebels.
The first problem is that, without coordination with the Syrian government, foreign military aircraft may well be shot out of the sky by Syrian air defence. This immediately raises the threshold for a wider conflict even though, I have to say, any unauthorised intrusion into Syrian airspace would be a breach of international law and, if it were perceived as an attack, would introduce the prospect of lawful self defence on the part of Syria. To avoid that obvious danger to its pilots, the US - if it values their safety - must tell the Syrians about proposed overflight and obtain their consent - something they are bound to get, as the Syrians are eager for western assistance in their fight against IS.
The escalatory consequence is of course what might follow from unannounced overflight and the downing of a US aircraft. On balance, it therefore makes not only common sense, but good military sense to coordinate overflight with the Syrians. All the same, if one were to assess the direct escalatory risk, one would assess it as "low", because the Syrians would not wish to draw in the Americans by any deliberate attack - they have enough on their plate as it is. However, it is a legal requirement under international law to obtain consent from a host nation before entering into its territory, including airspace. A fortiori, conducting military operations there.
The other problematic issue is that of arming the so-called moderate rebels. First, we must ask ourselves, "who are they and what is it they want"? There is no clear indication that they all want the same thing, namely, democratic government. The Islamic non-IS opposition wants an Islamic state, not a democratic state. Indeed, some of their fighters have since joined IS. So, by helping the "good" rebels, are we in fact shooting ourselves in the feet? The Syrian state, under President Assad, is a secular state. Will his removal, and the defeat of the government, ensure the continuity of such a secular way of life or, as seems more likely, bearing in mind the expressed intentions of elements of the opposition rebels, will it lead to a more restrictive and repressive government applying Sharia law? Would that be a promotion of human rights and equality for all before the law? Would it be in the West's interests?
Another question we should ask ourselves is, "If military assistance results in the ultimate overthrow of Assad, are the 'moderate rebels' a viable alternative government in waiting?" All indications are emphatically that they are not. So what is the purpose in prolonging the agony by assisting their resistance? Keeping eyes off Israel? If it is, that, too, is naiive. The fundamental concept of a world caliphate is exposed in its title. "World" includes Israel. Israel has had a peaceful coexistence with both the current and elder Assad and the Golan Heights have been under Israeli control since 1967 (although some small part was returned to Syrian control in 1973). President Assad respected that peace. It is difficult to understand how anything other than an Assad victory will be in Israel's long-term interests.
It is trite that history demonstrates the Islamic Middle East needs strong rulers to ensure stability. Democracy is not an easy concept there, and even in those countries that say they practice it (I can only think of Egypt, Lebanon and Jordan) it is in a form which is a far cry from what we have in North America, UK and the rest of Europe. There is absolutely no guarantee that the brutality which is attributed to the Assad regime will in any significant way reduce if the "moderate rebels" succeed. Indeed, reports of the murders, tortures and barbaric executions conducted by "moderate rebels" are shocking, too (remember the 'organ-eating' video showing an FSA commander)? All we could end up doing is replace one form of oppression with another one, perhaps even more brutal and repressive. No Western government has convincingly laid out a viable alternative secular regime to the government currently in power in Syria. As Pete rightly points out, we have seen what happened in Iran, under the Shah. A progressive western looking government, which afforded freedoms to women which are only dreamed about in places like Saudi Arabia, Bahrain and Qatar, to name a few, was replaced by a theocratic leadership with a mediaeval mindset which continued many of the human rights abuses alleged against the Shah's government. It was - and still to a large extent is - hostile to the US in particular. A similar consequence was evidenced in Libya after the murder of Gaddafi and the overthrow of his government. Torture was continued with the same degree of enthusiasm as before, except the victims had changed. Now the country has imploded and, in the eyes of some nations, is a failed state, with an impotent central government which is unable to control the territory under its purported authority; where there is an inability to provide public services; where it cannot even police the streets of Tripoli without rebel cooperation; where there is widespread corruption and criminality; where there are rival autonomous areas under control of groups that fail to acknowledge the authority of central government; and where there is sharp economic decline. So, what is the end game that the US is looking at if it does widen its strikes against IS? Does it have one?
If we succeed in defeating IS - and there is good reason to think that, with a properly coordinated campaign we will do so - is the intention to facilitate a continued civil war in Syria, this time between a better armed opposition group, probably with former IS fighters joining their ranks? Is the West prepared to countenance a rebel force with such a constituency? If it is, how does it define "enemy" within the context of IS? Who can predict with any certainty the outcome of such a conflict, other than that the West will oversee an increase in death and injury to the people and the complete destruction of the once prosperous country of Syria and its priceless antiquities. There is also no guarantee that countries like Iran, already involved in Syria, will allow this to happen. It would also risk bringing us more directly into conflict with the Iranians who steadfastly support the Syrian government. At a time when there is an opportunity for some, albeit limited, rapprochement with Iran, as there is a confluence of interest in wanting to defeat IS, is it in our interests to shun them? For those who more hawkishly do not want any closer ties with Iran, surely the answer is to ensure IS is defeated and that Assad remains in power. That ensures the withdrawal of Iranian SF and Hezbollah (although the latter will be a greater threat to Israel, especially as they now have 3 years of battlefield experience - something the Israelis could have avoided if they had taken a more constructive approach to the Syrian Government during the earlier stages of the rebellion).
Then - we should not forget - there are the regional interests of Russia to consider. Russia has its Mediterranean fleet based in Tartus in Syria and has been a staunch ally of President Assad from the beginning. It also looks more canny in its reading of the situation in Syria and has, in the process, exposed the West's blinkered approach; something that the UK, in particular, still openly fails to acknowledge in its perpetuation of a pious approach. Self important statements, such as those made by the UK SOS for defence, make for great headlines, but, with respect, show a complete lack of understanding of real politik, –  based on practical and material factors and considerations, rather than explicit ideological notions or moral or ethical premises –  the purpose of which is to ensure peace and stability through a balancing of risks and a compromise of some wider principles. We see examples of the diplomatic "blind eye" in, for example, our failure to condemn strongly the human rights abuses in Saudi Arabia and Bahrain. Current policy statements, while well intentioned, are quite likely to perpetuate (or even produce utter) instability in the Middle East. We risk perpetuating the tragedy of the Syrian people. The law of unintended consequences - or worse? We should be able to see these consequences. [Updated 17 September 2014].     Anthony    Aspals Consultancy
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11 September: 
I agree with Pongo about the Russians. They are much more street wise it these things and outplayed the Brits and Americans. I can't see attacks going ahead in Syria without telling the Syrians about it. It's just plain daft. Why risk getting a missile up your rear if your on your way to take out a common enemy anyway.    Thinners 
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9 September: 
Russia is key to solving this problem I think. The trouble is that with all the threats that the west makes towards him even though he deserves them don't help. Russia could be the go between with Syria.    Pongo 
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9 September: 
the saudis and qataris need to stop suporting the isis scum. the west blames syria for the growth of isis but its the west that failed to understand the middle east mind. there has to be a strong man in charge. look what happened in iran when the west turned is back on the shah. we ended up with the worst possible choice a regime that is openly opposed to the west and supported terrorism. getting rid of the shah didnt stop the torturing. getting rid of assad wont either.    pete 
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8 September: 
Pete, couldnt agree more. The trouble is how do we do it? Cameron says no boots on the ground and Obama says he wants to do it but there will not be another Iraq war, whatever that means. An air war means we need cooperation from the Syrians but Hammond says we wont deal with Assad. What worries me is that going it alone without Syrian cooperation could mean our planes fall foul of Syrian ground to air defence. I haven't seen much discussion of the legalities though. ISIS might call itself a state but it isn't in fact. For one thing nobody has recognised it as a state. But Pete is right that it needs sorting out quickly.    Thinners 
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Thinners makes a good point about the so-called Islamic State. I happen to agree that it is not de jure a state - it has no defined borders, no defined government, no fully functioning organs of government etc, etc. So, it would seem that any combat operations against ISIS members would be governed by common article 3 or, as put by the US SC in Hamden v. Rumsfeld 548 U.S. 557 (2006), an internationalised non-international armed conflict, where anyone detained is to be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." But the areas under their control at present span both Iraq and Syria. So this could mean Iraqi or Syrian justice.
The broader question is authorisation for international action. Is a UNSCR mandate required? While it would unquestionably help - as it would counter any argument that the use of force was contrary to international law - I am not so sure it is actually necessary. I say this because the threat posed by this group of extremists is a serious one and extends beyond its malleable borders. To my mind, the threat is one that easily fulfils the criteria of article 39 of the Charter ("any threat to the peace, breach of the peace, or act of aggression"). It seems to me that this could be a case where the US (or UK, or anyone under threat, eg Israel) could legitimately invoke article 51 of the UN Charter. So, I think that the air strikes against ISIS are justified. However, there are practical difficulties, as pointed out by Thinners that any operations in Syria would have to be coordinated with the Syrian government (a) as a matter of law and (b) as a matter of operational safety. All the same, I would prefer a UNSCR to provide the overall legitimacy to the developing mission to "eradicate" ISIS. The trouble is, after the scandalous abuse of the mandate provided in UNSCR 1973 in respect of Libya (a country that did not pose a threat to international peace or security at the time the mandate was provided), getting the Chinese and Russians formally on board might be difficult. However, I think that the threat posed by ISIS is very real; is an international threat and is one where Western, Russian and Chinese interests coalesce. There is no doubt that the ISIS view of Islam is at serious odds with what I understand (from family members and friends) to be the accepted view of the faith. The idea that there is any chance of compromise with them, when their intent is to develop a world caliphate, is dangerously naiive. The only solution is to defeat them.
I pose another question: if the ISIS is regarded as a threat to the UK and UK interests, do British Muslims who leave to join the fight commit acts of treason? That is, do they "levy war against our [Queen] in [her] realm, or be adherent to the [Queen's] enemies in [her] realm, giving to them aid and comfort in the realm, or elsewhere". (Treason Act 1351) Has "Jihadi John" committed treason as well as murder?
    Aspals 
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7 September: 
isis needs sorting. really sorting. the sooner the better. cameron is limp on this. talks big but he cuts defence spending. cuts to the forces dont make sense. we need to be prepared always.    pete 
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6 September: 
Syria, Iraq, Ukraine anyone got a view?    Pongo 
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I'm sure they have. But what is yours?    Aspals 
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1 September: 
Try this address http://spa.independent.gov.uk/linkedfiles/spa/report2008.pdf should work.    Tess 
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31 August: 
i couldnt find a report.    pete 
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31 August: 
The figures come from the SPA report available on the web.    Tess 
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31 August: 
Anthony's points are more a justification for military lawyers than a defence of the court martial system. I have no reason to doubt that the services need military lawyers, what they don't need is a separate and costly trial system. In FY 2011-2012, this cost £5.5 million for a service that mainly prosecuted absence without leave.    Tess 
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Where do those figures come from, Tess?    Aspals 
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28 August: 
As usual Roger makes a strong argument. But I would say that there is a need for military lawyers. As a case in point, when the army deploys on operations, one of the key elements it seeks within a headquarters is a strong legal component to provide the commander and senior officers with sound advice on IHL and targeting issues. These are complex and difficult matters and, with the eyes of the world watching and scrutinising what we do, we need to make sure we get it right. I do not see this as a tri-service function but one for each service to fulfill individually - although that will not prevent the bean counters in the MoD from changing things. Recent events in the Ukraine and Middle East have shown the absolute folly of cutting defence spending when governments think that there is no immediate threat. Then, suddenly, they are caught out. Would anyone buy - or not buy - house insurance on a similar basis, I wonder? (See our PM's speech on his visit to the Supreme Headquarters Allied Powers Europe on 4 August 2014, where he described NATO as the bedrock for security and peace across Europe. This was spelled out more clearly in Intervention: Why, When and How?: Government Response to the Committee's Fourteenth Report of Session 2013–14, paragraph 4, which said "We remain committed to delivery of the 2010 SDSR with NATO as the bedrock of our defence", emphasis added).     Anthony    Aspals Consultancy
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26 August: 
The justification for a separate court martial system is becoming more remote since the latest round of government reductions and the home basing of our forces. I would guess that transferring cases to civilian jurisdiction would save a lot of money, by removing the need for a separate prosecuting body and judicial cadre. Further reductions in manpower would flow from a reduction in the number of lawyers advising the chain of command on disciplinary matters. That would mean that of the 200 or so lawyers in the services, the only relevant functions left would be advising COs on minor disciplinary (if summary justice survives in its present form) and operational matters. I imagine that may mean only about a third were needed and they could be part of a tri-service advisory unit.    Roger 
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26 August: 
what proof is there that civvie juries are any better than military boards with officers and wos. the court martial system has to be deployable.    pete 
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26 August: 
The points Tess makes are good ones but shouldn't it be for our own courts to decide which system best suits our troops within the nations financial constraints and security needs bearing in mind that the Findlay reforms have led to a system which has met the concerns of the European court in the Findlay clone cases.   Andreas 
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25 August: 
I have to agree that the European Court will find it difficult to impose sanctions on our military courts that make it impossible to function, because so many European countries have military courts and systems of justice, but I also think that they may be unhappy with the present structure of the court martial and question its fairness. It has been several years since the system was last scrutinised and I don't think the present post 2006 system has been challenged in Strasbourg. So the Blackman case will give them the chance to take a look. Who knows what will happen. I would like to see the court martial system abolished, in favour of civilian courts and juries trying cases against soldiers. Juries, as deciders of facts are just as capable as military officers of fulfilling that role. With a home based force, this argument to my mind is overwhelming.    Tess 
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24 August: 
squaddies are always treated like dirt. the country loves them but the govement just doesnt understand them.   pete 
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"O it's Tommy this, an' Tommy that, an' "Tommy, go away"; But it's "Thank you, Mister Atkins", when the band begins to play."    Rudyard Kipling summed it up beautifully all those years ago.    Aspals 
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22 August: 
I'm sure others will also find it is a bit ironic that prisoners get article 6 rights to representation over criminal offences and disciplinary offences that are sever enough to be regarded as criminal, but our servicemen and women defending our nation don't.    Roger 
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An excellent point Roger. It is quite disgraceful. All of this was debated a few years back with a close colleague of mine who went on to become DALS. We devised a military magistrate system, which some in the chain of command supported, but it fell foul of the higher echelons. The sad thing is that these are not new issues.    Aspals 
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22 August: 
I agree with Tess on her point about the vulnerability of summary dealing if, indeed, the court martial process is handed over to civilian jurisdiction. It is demonstrably unfair to hold trials in secret that can dispense sentences depriving a serviceman of his liberty for up to 3 months. The so-called appeal to the SAC is a questionable right and statistics reveal how few servicemen actually avail themselves of this - I have been told by one soldier that there is unit pressure on someone dealt with by the CO to take it on the chin and not challenge the CO's authority. It would be remarkable if Parliament allowed such an unfair system to remain if the ECHR complaint process transferred away, unless they proposed some major reform to how summary justice is dispensed. The MoD concession to Navy demands to up the levels of punishment for COs, articulated during the AFA 2006 bill, were against the wishes of the Army and were also against the modern tide of human rights decisions in analogous prisoner disciplinary cases.
If there is any ECtHR pressure to impose civilian style juries on the military, then it will be interesting to see if the Services can really afford to lose the levels of manpower required to man these courts or if that will be the final straw. If the latter, then the next target will be inevitably the summary system - unless there are practitioners already eyeing up possible challenges.     Anthony   
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22 August: 
Will haven't you figured out that the MOD does understand your point. For all its posturing on the subject, it doesn't care about the court martial system and wouldn't be the slightest bothered if the whole thing disappeared in a cloud of smoke. At a recent talk I heard that even the army wasn't that bothered about keeping court martial trial but was far more keen on hanging on to CO powers even though they were non-compliant. So, once the court martial goes, the CO process will go with it.    Tess 
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21 August: 
Anthony said "It was not on the MoD agenda" to reintroduce PPCMs. They will have to change their agenda I think if they want to hang on to a viable court martial system.    Will 
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20 August: 
Thank you, Roger, for reminding me of the important case of Morris - how could I have failed to mention it!
As you say, that judgment came out roundly in support of the role of the PPCM, regarding him as a guarantee. "[T]he presence of the permanent president did not call into question the independence of the court martial. Rather, his term of office and de facto security of tenure, the fact that he had no apparent concerns as to future army promotion and advancement and was no longer subject to army reports, and his relative separation from the army command structure, meant that he was a significant guarantee of independence on an otherwise ad hoc tribunal." It seems to me,therefore, that lay judges, such as PPCMs, would remove those concerns. Concerns which have never troubled the ECtHR in relation to other jurisdictions. Moreover, if in France conviction by simple majority of an offence as serious as a terrorist offence is acceptable, the omens do not look auspicious for arguing the contrary in a court martial.
Interestingly, during the AFA 2006 discussions, it was the army that argued for the retention of the PPCM. The navy did not know of this appointment, and the RAF said they did not have sufficient trials to justify the expense of employing officers in this role. I remember arguing that a PPCM cadre would work well in a tri-service system and they could be employed in a variety of quasi-judicial roles (Boards of Inquiry, AGAI oral hearings etc). As usual, I lost the argument! It was not on the MoD agenda.     Anthony    Aspals Consultancy
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20 August: 
This is an interesting analysis, Anthony. The ECtHR could very well agree that the best way forward would be to re-introduce the PPCM. After all, wasn't it the Morris case where they found that the PPCM was a guarantee of independence. They never questioned his role as a professional juror and did look upon him more as a lay judge. So, a court made up of a JA and say three to five lay judges would be beyond reproach, if the continental models are anything to go by.    Roger 
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19 August: 
Two recent cases, Twait and Blackman, raised the issue of simple majority decisions in the court martial. The argument is to the effect that this is a breach of article 6, that civilian accused can only be convicted by 10:2 and that as such, the process is non-compliant. A simple majority conviction is said to be inherently unsafe because it demonstrates sufficient doubt to defeat the criminal standard of proof. The Judge Advocate General also opposes simple majority verdicts. The Court of Appeal does not, and has said so in both the cases mentioned. It is therefore interesting to note the position in overseas jurisdictions. I have used Wikipedia, How To Germany, and the Encyclopædia Britannica.

Germany:
There is no such thing as a jury trial in Germany and judges take on a more active role in court proceedings. Court procedures are otherwise similar to a jury trial in the USA. Under German law the accused is presumed innocent until proven guilty. Depending on the specific court, a tribunal can be made up of a single professional judge or a combination of professional judges and "lay judges". In minor cases there may be only a single professional judge presiding. Or, if the charges are severe and the accused faces heavy penalties, there may up to be five persons hearing the case; three professional judges and two lay judges or five professional judges.
Professional judges serving in the various German States (Länder) are trained legal experts and are normally employed as civil servants for life by the Länder. Lay judges are ordinary citizens selected by a committee to serve a pre-determined length of time (reminiscent of the Permanent President of Courts Martial). All judges serving in the federal courts are trained in the legal profession. They have to be professional judges or lawyers.
Local Courts (Amtsgerichte), can have a single professional judge or up to two professional judges and two lay judges. The next level is the Regional Court (Landesgericht) where up to three professional and two lay judges hear cases. After that comes the Higher Regional Courts (Oberlandesgerichte) that seat three to five professional judges. The highest Ordinary Court is the Federal Court of Justice (Bundesgerichtshof). It has five professional judges that hear cases. Criminal cases can be assigned to any of the first three Courts. Civil matters are normally assigned to the first two Courts. Appeals can be made to two higher courts.


Italy:
The Italian Code of Criminal Procedure abandoned the inquisitorial system but did not complete full transition to an adversarial system; the resulting system could be considered to be somewhere in between. When a Pubblico Ministero (Public Prosecutor) or a member of Polizia Giudiziaria (Judicial/Criminal Police) becomes aware of the fact that a crime was committed, he must begin his investigation: in Italy, the public prosecutor has the duty to initiate criminal proceedings. The Judge for the Preliminary Investigations controls the actions of the Pubblico Ministero, when the personal rights of the indagato (suspect) are at stake. No indagato can be wiretapped, unless the Judge for the Preliminary Investigations has authorised it. All measures must be adopted by the Judge with an order, and he must also publish written explanations of his decisions.
Italy does not try anybody by a jury of peers: everyone is judged by professional judges or by a panel of judges (three or five or nine). The only exception to the use of professional judges is in the Corte d'Assise, which is made up of eight judges: two are professional, six are lay (they are called Giudici Popolari or Popular Judges, where 'popular' means 'of the people'). All wear a sash in the national colours. They are not technically jurors, as the term is understood in Anglo-Saxon jurisprudence (cf PPCM). In Italian, Giudice (Judge) refers both to the eight of them together as a collective body and to each of them considered separately as a member of that body. Since Lay Judges are not jurors, they cannot be excused, unless there are grounds that would justify an objection to a Judge. Also, they are not sequestered, because a trial often lasts too long to restrict travel: an Italian trial, including the preliminary investigations, preliminary hearing, trial and appeals, can last several years. To keep a citizen — who continues to work, while serving as a Popular Judge — sequestered for years would be unfeasible.


France:
Under French law, a crime is any criminal act punishable by over 10 years imprisonment, including murder and rape. What we call crime below this severity is termed "infraction" in French legal terminology. A major felony must first go to the chamber of accusation of the Court of Appeal (Cour d'Appel) for the pre–trial hearing. If the Court of Appeal supports the juge d'intruction's recommendation, it will turn the case over to the Assize Court (Cour d'Assise), the only court in France with a jury. Cases in this court are tried by a jury of 6 jurors and a panel of 3 active judges, that is, one judge-in-charge (called "president" of the court) and two associate judges (assesseurs), on first hearing, and a jury of 9 jurors and a panel of 3 active judges on appeal. Lists of eligible jurors are put together at random from the list of registered voters, but both the prosecution and defense have the right to peremptory challenge and can refuse a juror without stating a reason. In order to convict, there must be a majority of two thirds.
Special procedures exist for the following categories of crimes and suspects:
  • Felonies committed by teenagers 16 years or older are tried in a special Juvenile Assize Court (Cour d'Assises des Mineurs)
  • Felonies such as terrorism or major illicit drug trafficking which are tried in a special solemn proceeding by bench trial sitting 7 active justices on first hearing and 9 on appeal, without jurors. In such case a simple majority is needed to convict, instead of two third majority in jury trial.
Since 2001, however, Assize court verdicts may be appealed on point of fact and sentence to another county's Assize court, chosen by the French Supreme Court and to be heard before a larger jury. The case is then fully retried. Appeals to the Supreme Court are still possible on points of law and procedure as the jury trials of an Assize court would not be the proper venue to hear them.


My view:It seems to me that if it is permissible to have lay judges sitting with professional judges, and if the French courts trying felonies such as terrorism or major illicit drug trafficking can convict by simple majority, there is nothing wrong in principle with the procedure of the court martial, with officers sitting with a JA. From the three systems looked at, the court martial system would be made more secure by re-introducing the PPCMS as professional lay judges, as such judges are recognised in other jurisdictions. It will be interesting to see if the ECtHR agrees with the Court of Appeal (and the practice in three major ECHR jurisdictions) or if it decides that all future military cases must only convict by unanimous verdict or some pre-defined majority other than a simple majority. Of course, it could recommend the re-introduction of the PPCM – and suggest that there be more than one sitting on each case.    Anthony     Aspals Consultancy [Updated on 20 August]
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26 May: 
But isn't the point Aspals makes that the prosecutor's office is actually part of the court structure itself. So it isn't separate. The judge s'instruction is not part of the prosecutor's office in France, nor vice versa. They are independent of each other.    Briony
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Precisely the point I wanted to make.    Aspals 
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26 May: 
Theses safeguards are present to make sure that the prosecutor is not acting politically or inappropriately. It is a failsafe and is not the same as supervising the gathering of evidence, which is obviously an investigator's function.    Roger 
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26 May: 
Aspals does raise an interesting point. I checked the ICC website and they describe the Pre-Trial Chamber's functions "In case the Prosecutor intends to initiate an investigation on his or her own motion (proprio motu), he or she must first submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. The Pre-Trial Chamber shall authorize the commencement of the investigation if it considers that there is a reasonable basis to proceed with the investigation and that the case appears to fall within the jurisdiction of the Court, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case." This is found here    Tess  [Link shortened]
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26 May: 
It looks like the structure was influenced by the European systems where judges are investigators or prosecutors.    Thinners 
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25 May: 
I don't see how including the appointment of judges and the appointment of prosecutors in the same legislation is problematic. The two recent Armed Forces acts do that. It is merely overarching legislation setting out the appointments and powers of each. That is what the Rome Statute does too.    Roger 
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Well, it does, but it actually goes further, in my view. The office of the prosecutor is described as a part of the court structure - an "organ of the court". See §34. That is like saying the DPP is part of the court system. He is not. Isn't that the whole point of independent prosecution, not being part of any structure other than one dedicated to prosecution?     Aspals 
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24 May: 
I hesitate to disagree with m'learned friend Aspals, but the office of the prosecutor is independent of the court. It is up to the prosecutor to initiate an investigation, once he or she has evaluated all the information presented or available. The complementarity principles of article 17 mean that the court might declare the case inadmissible if it is "is being investigated or prosecuted by a State which has jurisdiction over it", even if that state's authorities has decided afterwards not to prosecute. It is not the court that orders the investigation. In addition, article 13 provides for the situation where the United Nations Security Council refers a case to the prosecutor acting under Chapter VII of the Charter.    Roger 
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Roger, thank you for your insightful comments. I accept fully what you say about the stated role of the prosecutor. But calling him or her independent is not the same as being actually independent. (S)he may purport to act independently, but if the links are there to the court in the overall structure, then it would seem to offend Findlay. For example, The Rome Statue establishes the Court in Article 1 of Part 1. Part 1 also discusses the legal status of the court. Art 13 says the court "may exercise its jurisdiction" when a crime is referred to the Prosecutor by a State party to the Statute, or is referred by the UNSC, or where the prosecutor has initiated an investigation under art 15. However, Article 15(3) requires the prosecutor to obtain permission from the court for "authorization of an investigation" where he believes he has sufficient information. In other words, the court itself sanctions the investigation, not the prosecutor. Another authorisation is required under §15(8) concerning the crime of aggression (when it comes into force) requiring the Pre-Trial Division to authorise the commencement of the investigation. A court's role is to adjudicate guilt or innocence on the basis of the evidence put before it, not to decide if there is sufficient evidence to investigate. That is why I believe that this is not consonant with independent investigations and criminal process such as we have in the UK. An interesting feature is the Pre-Trial Chamber's power in Article 53 to review a decision not to prosecute. Our courts have a power to judicially review a prosecutorial decision (Kebeline). So, I have no dispute with that.
After the section on the prosecutor's powers and jurisdiction, Part IV sets out the composition and administration of the court, including the qualifications and appointment of judges and their period of tenure. Under that Part, there is reference to the Office of the Prosecutor (Article 42) which "shall act independently as a separate organ of the Court". This is a bit like saying the military prosecutor shall act independently as a separate organ of the headquarters he belongs to. We changed that in Findlay. Both the Court and the Prosecutor should be organs of the United Nations, performing complementary functions.
So, I believe there is an argument that it would, perhaps, have been better if the Statute had included a separate Part dealing with the appointment of the Prosecutor, rather than including it in the Part covering the Court Administration. Part 5., covering Investigation And Prosecution might have been suitable. Better still, a separate Statute entirely, dealing with the Office of Prosecutor, might have put any doubts to rest. I have put on my tin hat and Kevlar vest, and now await the incoming!    Aspals 
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24 May: 
On Thinners point about lawyers taking the UK soldiers to the ICC, the court wont prosecute them if they are OK with the investigations we are doing. A unit called IHAT is doing the investigating. I think they are just checking to make sure that we arent letting anyone off without a proper investigation.    Will 
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Having lived through the Findlay ramifications and the need for the appearance at least of independence, it does strike me as a bit odd that the court might order an investigation into a case which it might later deal with. And we criticise the CO's for not being article 6 compliant! The court structure is divided into the Presidency, Chambers, Office of the Prosecutor, Registry, Outreach, Victims, Protection, Defence and Detention. The Office of the Prosecutor (OTP) is described as "one of the four organs of the Court."     Aspals 
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23 May: 
Perhaps the right course would have been for Danny Nightingale to plead guilty. After all he did say on camera he had broken the Geneva Convention after he shot the prisoner so he knew what he did. There seems to be a tendencey by soldiers who served on operations and who are convicted of serious offences to expect the the public to excuse them of their crimes because they are in the military. The soldier who had the pistol from Iraq is another example I can think of. He even blamed his house mate. The Court of appeal decisions show that no one is above the law not even soldiers. The decisions also show that they got a fair trial before the court martial.    Briony
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Just to correct the confusion, if I may, the case of Sgt Blackman concerned the killing of the Taliban prisoner, while the case of Sgt Nightingale concerned the illegal pistol. You make some good points Briony. Both cases were indeed tried by court martial and in both cases the convictions were upheld, although the sentences were varied. As you say, the tendency for the public to regard all soldiers appearing before the courts as in some way exempt from the normal criminal process is rather charming but misguided. As Thomas Fuller said, "Be ye ever so high, the law is above you".     Aspals 
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23 May: 
Danny Nightingale did quite well all things considered. It was an interesting argument that his counsel raised about the right to trial by jury. The proper course would have been for him to be tried by the Crown Court which had jurisdiction under the OAPA.   Tess  [Link added]
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21 May: 
we should never have joined no criminal court to try our soldiers. why cant our courts do that without exporting the case. why do foreign judges now best.   pete 
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21 May: 
bad news about danny nightingale. sorry to hear the appeal judges didnt overturn his conviction. best of luck mate.   pete 
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18 May: 
It's all interesting stuff about the high court case but I'm not sure I really understand it. What does scare the c**p out of me though is the news that the criminal court is investigating British soldiers. I thought we were protected from that. That's what we were told last time I had a mil lecture. Why are british lawyers taking cases on behalf of people who aren't even living in this country and using taxpayer money to do it. It's about time it was stopped. Many folk can't get legal aid these days and loads of solicitors firms have stopped doing it. So why are these foreigners given prefirential treatment.    Thinners 
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13 May: 
Although AJP 2(5) was not referred to in the Serdar Mohammed judgment, JDP 1-10 was, along with the Copenhagen Process. Neither was particularly persuasive to the court. In fact, the MoD argument was rejected that the Copenhagen Process confirmed a legal power to detain exists as a matter of customary IHL. The court went on to state that no evidence had been adduced of any recognition by states involved in NIAC that IHL provided a legal basis for detention. Nor was there any official statement by any government which suggested that IHL does, or could, provide a legal basis for detention in any non-international armed conflict. [§§256, 257] In relation to JDP 1-10 the court's view was that it "clearly indicates that the only potential sources of a power to detain are considered to be the host state's own domestic law (i.e. in this case the domestic law of Afghanistan) and UNSCRs", as confirmed by the Joint Services Manual, para 15.6.1.

I would add that the preamble to the Charter reaffirms faith in fundamental human rights, "in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small". Art.1(3) refers to "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion". By its very nature, the Charter is a reflection of what members of the UN regard as fundamental principles of international law, set out in its text. Therefore, it matters not one jot if the ECHR applies to any particular member of the UN taking part in a UN authorised operation. The human rights principles enshrined in the Charter are applicable. Moreover, the ICCPR (which we signed on 16 Sep 1968 and ratified on 20 May 1976) was made in accordance with the principles proclaimed in the UN Charter: recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. These obligations are national: "Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms, Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant."

This should make multinational ops less problematic than we have found them to be. So it is unnecessary to try to find ways for the ECHR to override in some way the provisions of any UN mandate, when human rights considerations underpin the Charter and therefore any resolution of the SC. Picking to pieces UN SC resolutions, often made under pressure of an imminent or existing international crisis, to see if they contain specific wording about this power or that authority cannot be for any reason other than to find an excuse to somehow avoid the very protections which the UN mandate is supposed to afford to participating nations, to ensure that the will of the international community is fulfilled in dealing with any international crisis. As an exercise, it conflicts with the wording of article 25 "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter" and article 103 "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." The inclusion in a UN mandate of the phrase "all necessary means" or "all necessary measures" is an expression of the will of the international community, authorised by the Security Council. This point was considered in the Mohammed judgment, as the UNSCR did not specifically refer to detention operations. The view taken by the UK was that arrest and dention were implicitly authorised by the phrase 'all necessary measures'.

The Copenhagen Process was an attempt to introduce Principles and Guidelines that "apply to the detention of persons who are being deprived of their liberty for reasons related to an international military operation", but they are not without difficulty. They are aimed at NIAC and are nothing more than a broad statement of existing principles - eg "4. Detention of persons must be conducted in accordance with applicable international law". They are not legally binding upon states and it is not clear how much they add to what exists already, especially for those nations subject to the ECHR and for whom article 1 jurisdiction is applicable to their detainees. One supposes that the intent was to clarify procedures and principles because, in NIAC, there is little said in common article 3 about how detainees are to be processed. What it does prohibit is violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; no outrages upon personal dignity, in particular humiliating and degrading treatment. It says nothing about how prisoners/detainees are to be processed. Some might argue that the article, succinct as it is, says all there needs to be said and in fact covers all the salient principles enshrined in the ECHR and ICCPR. It does not prevent one nation handing over prisoners to another. APII adds a little flesh to the bones.

The last point I make is to wonder if derogation from the ECHR will make any difference except in the very limited circumstances pointed out relating to the threat to the life of the nation. Even a UN mandate identifying a threat to international peace and security may fall short unless it specifically entails a threat to the "the life of the nation". Taking part in wars of opportunity wouldn't be included in the provision. The government would not have been able to validly derogate in the Libya campaign as there was no threat to UK from Gaddafi. The same applied to Kosovo and, arguably, the 2 Gulf Wars (GW1, an invasion of Kuwait by Iraq; GW2, a false allegation that Iraq had WMD). I am not so sure about Afghanistan because I am no wiser now than I was some 12 years ago about the reasons for entering that war. On balance I tend to believe that the initial rationale was one of a potential threat to us from Al Qaida sponsored terrorism, but the complicating factor was that the "enemy" was not a state, but an organisation of non-state actors. So the conflict did not fit the mould for how we define "war". However, it would probably fall within the wording of art 15(1) of "other public emergency threatening the life of the nation" and our engagement to assist the Afghan authorities amounted to participation in NIAC.

The government has reduced the size of our forces to what essentially amounts to a defence force. This means we are only ever going to participate in multinational ops, hopefully under UN auspices. Not all member states on multinational ops are members of the Council of Europe and parties to the ECHR. Most are parties to the ICCPR. Prisoner/detainee handling is a major issue and is likely to remain so. It is also gravely important to overall mission success. The UN needs to get on and develop SOPs for detention ops in Peace Support Ops (especially NIAC) which can be included by specific reference in any UNSCR authorising "all necessary means" under Ch VII. Rumour has it that they are developing SOPs. Hopefully, such a step will go a long way to ensuring that the Charter is not "trumped" by the ECHR, especially between nations that are not all parties to the Convention. It might also help future cases if the government was more careful in the wording of its own agreements with the host nation about powers of arrest and detention. In this case, there was no agreement that it could hold on to detainees for the purpose of interrogation. Had it contained this provisions in the present case, things might have been quite different. Instead, it actually undertook to hand them over "at the earliest opportunity" [ibid §3.1] to the Afghan authorities. This was in fact a limitation of the authority provided under the UN mandate.    Anthony     Aspals Consultancy
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9 May: 
I think the judge means that in any case where we operate with the consent of the nation where our troops are we have to have a proper legal basis to arrest and detain which has to be authorised by the home government. Our detention regulations are only sufficient to take us to the maximum of 96 hours. Detention beyond that must be lawfully permitted by the host authority. I don't have an issue with human rights applying to conflict. Is anyone arguing that these principles are irrelevant?   Tess 
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8 May: 
Reply to Anthony. As I read it the judge is saying we need to withdraw from the ECHR otherwise whatever we do whether war fighting or peace ops, we are bound by the ECHR and the days of the Geneva Conventions exclusively governing warfighting are over. Tough choices but no UK government will have the stomach to withdraw from the ECHR no matter what they say. I can't see how detention ops can survive.   Scipio 
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6 May: 
The recent judgment of Mr Justice Leggatt, in the case of Serdar Mohammed, is one which perpetuates - and exacerbates - the agony of those engaged in detention operations. It seems that even a UN mandate may not be of much use and the idea of IHL as the lex specialis is yesterday's law.
The situation the court was directly concerned with was that relating to detention ops in NIAC (peace support ops). While the court accepted that Common article 3 was applicable, the absence of any stated NIAC detention regime in the GCs or AP2 meant that force operated under local (Afghan) domestic law and the provisions of art 5 ECHR had to be complied with. Indeed, the court went further, and said that even in an international armed conflict, where a clash of obligations occurs between IHL and art 5 ECHR, the only way in which the European Court or a national court required to apply Convention rights can hold that IHL prevails over Article 5 is by applying the provisions for derogation contained in the Convention itself, and not by invoking the principle of lex specialis. However, as the judge pointed out, article 15 itself is qualified, to the extent that derogation may only occur where the life of the nation is threatened. Hence, derogation for wars of international foreign policy would be invalid. The limitation is in §15(2)
Article 15 – Derogation in time of emergency
  1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
  2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
  3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
The court concluded that the UK government had only itself to blame for adopting a "detention policy and practices which went beyond the legal powers available to the UK. The consequence of those decisions is that the MOD has incurred liabilities to those who have been unlawfully detained. IHL does not provide a legal basis for detention in situations of non-international armed conflict."
This last sentence, found at §287 of the judgment, is worthy of closer examination, as is the view that even in IAC, the General Assembly of the United Nations has affirmed the principle that international human rights law continues to apply alongside IHL in situations of armed conflict (para 276 and footnote 9).
I would only make the point that it is the Security Council, not the General Assembly, that is empowered to give nations the authorisation under Chapter VII needed to maintain international peace and security. Indeed, it is Article 39 which clearly leaves it to the UNSC to determine if there is "any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."
The United Nations represents the will of the majority of the international community. Its decisions are to be implemented and that the authorisation provided by a UNSC resolution is in accordance with ensuring mission success and the restoration of peace and security. Hence, the provision in Article 103 that resolves in favour of Charter obligations any conflicting obligation under any other international agreement. The UN's intent is supreme. It does not say, "unless determined otherwise by any other court". One might argue that the only court competent to adjudicate on this matter of conflicting treaty obligations is the ICJ itself, not domestic or regional courts. If it is the will of the international community, expressed in a UNSC mandate to use "all necessary means", it is not easy to reconcile the views of domestic or regional courts that their parochial obligations override the edicts of the UN.
This is a point that needs resolving, both for NIAC and IAC, especially where forces operate under a UN mandate. While one appreciates that in this particular case, there was Afghan domestic law applicable, and the force would have had to comply with its provisions in terms of arrest and detention, that general rule surely does not apply where the host nation (a) consents to the basing of foreign forces on its territory, (b) with the purpose of assisting it fight an insurgency and (c) where UN resolutions were in place - which it had consented to - which gave the force the authority to use all necessary means.
The impact of this judgment on IHL is immense and one hopes that the ICRC will be studying its implications most carefully. It is certainly high time a proper, international, resolution to the problem of detention ops was found. Lives depend on it.    Anthony     Aspals Consultancy
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20 March: 
Looks like the Mail agrees with Aspals about west's hypocrisy. http://www.dailymail.co.uk/debate/article-2584899/STEPHEN-GLOVER-Yes-Putin-bully-arent-guilty-moral-hypocrisy-Crimea.html    Will 
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19 March: 
I think what Aspals means in his comment is that the west are hypocrites.    Pongo 
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You might think that, but I couldn't possibly comment!     Aspals 
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17 March: 
There's not much comment on the blogs about it (Ukraine? - Ed) in general which is surprising. Just the usual stuff about the evil Ruskies. I would like to know a bit more about the historic ties between Russia and Ukraine. Sounds quite a bit more complicated than the beeb makes out. The 97 pc vote in favour of linking with Russia looks convincing. Is it genuine reflection of what people want or rigged? What is the international legal position?   Thinners 
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One might think that one of the dangers of sanctimonious foreign policy decisions supporting the notion of so-called humanitarian intervention is that it creates precedents. I need hardly remind everyone that back in 1974 Turkey sent 30,000 troops into the tiny island of Cyprus to invade, kill, capture, displace and remove (to Turkey) thousands of Greek Cypriots, many of whom are still missing to this day, and the reaction of the west - US and UK (a guarantor of Cyprus under treaty) acquiesced - which was (and remains) to urge the EU to accept Turkey for membership! It is a most shameful suggestion. In spite of the international community not recognising the occupied northern part of the island, they have no qualms about permitting holiday companies to advertise cheap holidays and properties there - on land and in property illegally occupied and sequestered from the rightful owners. Profiting from the misfortune and suffering of others. If you have powerful/influential friends, crime really does pay.
There then followed the escapade into Kosovo. A completely illegal intervention, without the authority of a UN mandate, which was to support the breakaway region of Yugoslavia on the basis that that reflected the will of the majority residents, who happened to be of Albanian origin. Now, the Russians have moved into Crimea, the home of their Black Sea fleet, where many Russian military were based, and a part of the Ukraine where the majority of people are ethnic Russians, to protect its interests. Follow that with a vote showing over 90% support for re-unification with Russia, as successor to the USSR. Enter the West to shout "foul". I wonder whether the US would have acted any differently if their similar interests had been threatened. I somehow doubt it. A fortiori where the country invaded once was part of its territory until a short while ago.
But, in spite of my cynicism (I am very much anti-interventionist and pro UN Charter) of those nations who don't like their policies being thrown back in their faces, all this is not to be taken as support for invading a sovereign state. I hope we can have a lively and rewarding debate on the legal issues involved.     Aspals 
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15 March: 
Nobody on Aspals has noticed the Russians have invaded Ukraine. Have they exploited the west's battle fatigue made worse by force level reductions? how can NATO react/should Nato react?    Pongo 
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1 February: 
There are two interesting articles on the matter of the Syrian civil conflict and the wisdom of the moderate rebels joining forces with Assad to fight Al Qaeda. The first is from December last year's Independent, and the second is a very honest confession from a rebel fighter, from November last year, that he wants Assad to win. He is worried about the crimes being committed by Al Qaeda (not something Western leaders are really interested in, as they want to focus on government crimes) which will tarnish all rebels. His view is that their "revolution has ended; that a dangerous wave of Islamic extremism has welled up in its place; that they should work to stop the fighting now; and that if they can't, they should hope it's Syrian President Bashar al-Assad who wins." I happen to agree with him. The prospect of a Jihadist state in the Middle East, replacing a secular state, is terrifying and hugely dangerous for us all.    Anthony     Aspals Consultancy
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30 January: 
Will mentions a game plan. You need to see whos pulling the rebels strings. The only workable solution is for them to stop fighting a war they cant win and join with Assad to beat Al Qaida forces. Some cynics think the Israelis are quite happy for them to go on killing each other as it keeps them from thinking about Israel.    Pongo 
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27 January: 
Pete makes a good point, but the rebels were still insisting on Assad's deparrture at todays talks. Assad looks to be on the up at the moment from what I can tell so this is a stupid demand which the rebels must know is a non starter. Makes you wonder what their game plan is.   Will 
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25 January: 
these peace talks need the rebels to drop the assad must go and get on with joining forces to fight the jihadis. they ve got to be driven out before its too late. all this pussyfooting around the yanks and brits are encouraging is wasting valuable time.   pete 
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25 January: 
No one has a clue what to do in Syria. That includes Israel. They don't like Assad links to Hezbollah but they do like the fact that their border with Syria has been peaceful for 40 years. They also realise that the wester backed rebels are weak and lack credibility, they wouldn't last 5 minutes once Assad has gone. That would mean an Al Qaeda threat to Israel. The solution looks pretty obvious, better the devil you know.   Thinners 
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I could not agree more. The problem is that the "west" has backed itself into a corner over the "nice rebels" when everyone knows that the ultimate fight will be with Al Qaeda and its affiliates.     Aspals 
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24 January: 
The question of the photographs continues to be of interest. I was quite near the mark in my last post when I spoke of the access to archives by intelligence officials. What we need to consider is the fact of extraordinary rendition by the US and UK to countries like Syria and Libya, where men were truly tortured and abused. I surmise the Americas have a lot of information and photographs from those times. So, it is possible some of the photos are of Syrians from when they were mistreated with the full knowledge and involvement of the US and/or UK intelligence agencies. One thing we can be sure of: even if governments do not publicly get on with each other, intelligence agencies tend to fare a little better. As one victim, Maher Arar, is quoted as saying, "Successive U.S. administrations may not agree with the politics of Bashar al-Assad, but when you have a common enemy called al Qaeda -- that changes everything." The Foreign Policy article points out, "Despite the wide range of disagreements between the Bush administration and Assad, U.S.-Syrian intelligence cooperation in pursuit of al Qaeda represented a détente of sorts between the two governments."
'"Globalizing Torture," a report published by the Open Society Justice Initiative, provides the names of 136 detainees who were subjected to extraordinary rendition or secret detention. Of those detainees, at least eight were sent by the CIA to Assad's jails.' See the Foreign Policy article of January 22. Maybe that is why, 2 months ago when the administration became aware of the photos in the Qatari report, they decided to check their provenance - in case they were their own photos, perhaps? Still does not stop them slinging mud.
Of course, what is alarming is that respected senior prosecutors may have been deliberately provided with false information to produce a report, in all good faith, to satisfy the sponsor's political objective. If that is the case, it seriously undermines confidence in any international effort to establish the truth. One would have thought that an intelligent, questioning and impartial press would have been somewhat suspicious of the timing of the Qatari report and sought proper answers, instead of swallowing the party line with so much alacrity.    Anthony     Aspals Consultancy
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24 January: 
The poor old Americans caught between a rock and a hard place. They can't stand Assad but probably realise he is the best bet for stability in the region but they cant say that out loud. The rebels who they support aren't capable of forming a goverment or able to defeat Assad and to top it all the AQ is stealing the aid meant for their friendly rebels and if they aren't beaten will give the US and the rest of the world an even bigger headache than Assad government, who didn't actually bother us at all. If people were asked the question about who would be best for Syria and us to bring stability in the region I think most would have to go for Assad. The idea of good old democracy being right for everybody is a bit idealistic. It didn't work in Egypt and it definitely isn't working in the case of Libya. In fact thtings are much worse in Libya now than they ever were under Ghaddafi.   Thinners 
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23 January: 
Why should Assad agree to go now that everyone wants to put him on trial for war crimes? He'd be a fool to put his neck on the block now unless he got an assurance that he would be let live in some quiet place. The do gooders wouldn't like that.    Pongo 
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Perhaps their tactic is to split his government from him, by offering the carrot of a place in the transitional administration if they ditch President Assad. Risky, but that might work. It depends how solid his support is. One concern will be over the fate of the Alawi and other minorities who support Assad and who have suffered at the hands of the rebels (conveniently ignored by the west, and hardly mentioned by human rights organisations). Can their safety be guaranteed in any post Assad administration?     Aspals 
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23 January: 
the yanks want to buy more time as they know the snc arent up to much. the big fight will be with aq.   pete 
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23 January: 
To reply to Toby's comment, I anticipate that the US/UK position is that the Syrian rebels are a pretty disorganised and unrepresentative bunch that cannot really deliver a meaningful peace deal, as they will be opposed by the jihadists. This is, after all, a war on at least three fronts: Syria-SNC/FSA; Syria-Al Qaeda/ISIS/ISIL etc; SNC/FSA-Al Qaeda/ISIS/ISIL. Whereas the SNC say they believe in democracy and want to establish a democratic state (without Bashar Al-Assad), the jihadists do not wish for anything of the sort. Their intent, displayed in the areas under their control, is to apply Sharia law and establish a caliphate (an Islamic empire, led by a religious leader). They reject democracy as being inconsistent with Islam. One can see the immediate point of friction between them and the so-called moderate rebels of the SNC/FSA.
Against that backdrop, the chances of the SNC being able to deliver on agreements in Geneva are pretty slim, unless they are backed up by military might - which will inevitably drag the US into a war its people do not want, and possibly take us along too, with our slimmed-down forces, first to defeat Assad (and cause a political implosion as the institutions will collapse and the SNC has no one to run them) and then to attempt to defeat the ISIS/Al Qaeda jihadists in a protracted and dirty war. The result will be catastrophic for Syria and will make what has happened in Iraq and Libya in the aftermath of western "help" look like a picnic. Pretending to support peace talks while doing whatever possible to ensure they fail and, if possible, lay the blame at the hated Bashar's feet, buys the Americans more time to try to form a cohesive rebel alternative. It is a pretty tall order, because the war is, as I say, three way. The report of atrocities submitted on the eve of the conference, which led Secretary Kerry and Jay Carney to publicly make allegations against the Syrian government which they did not know to be true, as the administration knew about the photographs two months ago and did not act on them because it did not have possession of the digital files and could not establish their authenticity, was deceitful. Yet they are bandied around just prior to the peace conference, supposedly now under the guise of a Qatari report prepared by 3 international prosecutors, accompanied by Kerry's and Carney's statements laying the blame at the door of the Syrian government. If that is not a duplicitous plan designed to stick a spanner in the works of the peace conference, I don't know what is. We have just seen lie after lie, all based upon what "the administration believes". It is not the way we expect powerful countries to conduct their foreign policy, and it humiliates them. Thankfully, the public is very suspicious of it. The problem is that the US still doesn't get it that the WMD lies which started in Iraq (see this video of President Bush's admission there were no WMD) don't work any more. The public wants proof not "belief" of wrongdoing. If the rebels need more time, then a constructive outcome for this conference will be if the parties negotiate some limited objectives, such as prisoner transfer, humanitarian aid, and channels of dialogue, and then come back when they are better able to deliver politically. The US sponsored insistence on Assad's departure is so unacceptable to the Syrian government, which rightly makes the point that this is a decision for the Syrian people, not the Americans or British, that it is yet more evidence that they are not serious about a successful conference. So, if they can paint the Syrian government as being responsible for its failure, by hurling gratuitous allegations around (while conveniently ignoring rebel atrocities) they will have achieved their aim.
Unfortunately, had there been negotiation between these 2 parties to the conflict 18 months ago, before the atrocities really started mounting up, the bitterness and division would not have reached the level at which it is currently. Some of the blame for that delay must lie with the US and UK governments, among others (such as Saudi Arabia, Turkey and Qatar) who were training, supplying and aiding and abetting the rebels to fight on for victory. Had the parties instead worked out a peaceful solution and turned their attention to the growing common problem of jihadis, things might have turned out differently. We shall never know. My own experience of negotiation is never to start by making demands that you know the other side will not accept, yet. Better to get talking and find some common ground to build upon. This may be Brahimi's approach. While the way to peace is still open, provided outside parties stop interfering to provoke one side or the other, and a sense of realism insinuates itself into the process, it will a long and hard road but could lead to a form of settlement acceptable to both sides. For the sake of all the Syrian people, I hope it is a success. Then they will need to think about tackling the real enemy to us all.    Anthony     Aspals Consultancy
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23 January: 
they want the peace talks to fail so they can push on militarily to get rid of Assad. They've got not end plan other than that. If they can afford to rebuild Syria, great. They better not ask us to chip in though    Pongo 
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23 January: 
Why would the us want the Syria peace talks to fail?   Toby 
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22 January: 
Here we go again. After a dodgy dossier in Iraq warning of WMD that never were, and dodgy allegations by opposition forces in Syria of sarin use by the government, which is hotly disputed (with compelling evidence to suggest rebel use of sarin - ignored or dismissed by the west) made to impel the US into crossing its self-imposed "red line", we now have a report of 55,000 photographs of abuse, allegedly committed by Syrian government forces, presented on the eve of the peace talks in Geneva in the form of a report sponsored by Qatar which, you've guessed it, has been providing large sums of money and arming the Syrian rebels to fight the Syrian government. Smell a rat? Has anyone questioned involvement by the usual 'outside intelligence agencies' to ascertain what assistance they have provided? They will have thousands of photographs of victims from Iraq and Afghanistan. Who is the mysterious photographer with access to all this information?
The Photographs: The pomposity of some political statements makes one wonder whether the people making them really are suitable to hold the positions of power they do. They jump in with both feet without asking relevant questions to test the veracity of the accusations. As Goebbels said, the bigger the lie the more likely people will accept it as the truth. 55,000 photos is a huge number. But how does an individual supporting the rebels gain access to so much information, much of which will be in the possession of the alleged abusers? How is the provenance of these photos established? How is it proved that the photographs relate to separate individuals? That they are Syrians? That they are all rebel fighters? That they were were not victims of abuse by other rebels? The ability to alter digital images is a skill every modern schoolboy has. The ability to alter dates of digital files is also pretty straightforward. This morning, on the 'Today programme', Sarah Montague rudely interviewed a Syrian government representative, hardly giving him a chance to reply to her aggressive anti-government stance, and challenged him over the photographs. He pointed out to her the obvious, about provenance, and stated that one of the photos originated in fact from Iraq, not Syria. Was he telling the truth? Who knows. But that is the point, isn't it? Who is telling the truth? Shouldn't it be established to a criminal standard before an allegation as serious as this is made before an event as important as peace talks? One thing we do know is that the truth has been mercilessly abused by many parties, including the US, the UK and, of course, the rebels. And these are supposed to be the 'good guys'.
Timing: The other suspicious factor is timing of the Qatari sponsored report, just before the peace talks are to start. What is Qatar's motive for wanting to thwart peace talks? Is it not persuaded that the time for such talks is right? Or that the conditions for peace are not acceptable to them, so that derailing the talks will delay matters until they are? A dangerous game to play, when people are dying in Syria every day. It has been an extremely difficult process to get the two sides together to the Geneva talks. There have been unrealistic preconditions set by the west, and the rebels, concerning the fate of President Assad. Yet, with cooperation from the Russians, the parties are coming together to talk - although the rebels hardly provide a unified front and are not representative of all the rebel factions. [So, do they actually have any credibility, one might ask, to pull of any agreement?] Consequently, making serious allegations against one of the parties to such a peace process, on the eve of the talks, is a blatant attempt to throw a spanner in the works. As is the cry for war crimes trials (these cries are only ever given air-time in respect of Syrian government officials, not the rebels). This is another "cart before the horse" approach. Why make statements that are going to restrict the room for manoeuvre or, as in the case of Qatar, submit a 'report' which will potentially completely undermine the talks? Isn't the priority to get the peace process moving? Pompously insisting that senior members of the Syrian government will face criminal process (actually, as Syria is not a party to the Statute, it requires a UN Security Council Resolution to enable referral to the ICC - something Russia and China may not be persuaded about) is another disincentive for the government to make the sort of concessions the west is hoping for - the resignation of Mr Assad. Why should he negotiate on that point if his fate is already sealed? In fact, he makes the powerful point that this is a decision for the Syrian people, not for outsiders. People who promote democracy must see the irony in that! But he is right.
Peace Talks: Feelings are running high on both sides of the Syrian divide. Hardly surprising after 3 years of bitter fighting and atrocities on both sides. After the fiasco of the UN first inviting Iran to take part and then, after US pressure, withdrawing that invitation, the talks will go ahead. William Hague is reported today as saying the parties should 'Seize the chance on Syria'. If the west (US and UK), Saudi Arabia and Qatar keep their noses out of the process, the talks may have a chance. But, for so long as outsiders try to lay down pre-conditions and make threats, or produce controversial reports, success – and peace – will be elusive. The western tendency to threaten shows a signal lack of understanding of the Middle Eastern psyche. Leaders there cannot be seen to lose 'face'. While it might satisfy the macho western ego to shake a military fist, it is viewed as highly provocative in the Middle East and a direct challenge to the authority of the person threatened. He has to be seen to respond strongly. If any western leader or organisation thinks that making threats to such a leader will be constructive, they should step down from their job immediately. History has taught them nothing.    Anthony     Aspals Consultancy
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21 January: 
Following Anthony's post, I doubt the ICC is bothered about n these types of case against western leaders and soldiers/generals. The are part of the club that formed the place. It's all a bit masonic. They didn't prosecute Blair and there was a good case against him over Iraq. I read that someone actually tried to arrest him by a citizens arrest but he talked his way out of it. What a surprise.   Will 
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20 January: 
Here is an item from Twitter, refrerring to an article on Opinio Juris:    Anthony     Aspals Consultancy
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15 January: 
Interesting question Anthony. The ICC isn't interested in western leaders. After all it was western leaders that set up the ICC and provide most staff. The organisation is political and isnt going to go after the likes of Blair and others. The US isnt even a member of the court.    Thinners 
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13 January: 
Of recent interest are reports that "Legal experts from around the world are to join calls for an investigation into whether British politicians and senior military figures should be prosecuted for alleged war crimes in Iraq." The reports are in the Independent and Guardian among others. The basis of alleged liability is that leaders knew or ought to have known of abuse of prisoners by our servicemen. This allegation failed in the court martial case about the abuse of Baha Musa and others, although Sir William Gage found otherwise. Putting aside other arguments for the moment, is the ICTY's decision in Perisic, basing liability on specific direction, a further complicating factor which makes any successful prosecution unlikely?    Anthony     Aspals Consultancy
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8 January: 
Yes, agreed with Pete. Does anyone know when its likely to be heard.   Will 
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Joshua Rozenberg says the Attorney General told him he does not intend to refer Alexander Blackman's case to the CMAC as an unduly lenient sentence.     Aspals 
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6 January: 
alex blackman appealing his conviction and sentence. best of luck mate.   pete 
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