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The Iraqi air strikes on Syria are legal and do not endanger Syria. Here’s why.

Iraq has a strong case in international law that its air strikes on ISIS in Syria are legal even if it did not obtain the prior permission of the Syrian government for them, and there is sufficient commonality of interest between Iraq and Syria at the moment given their respective wars against ISIS for the Syrian authorities to take a sanguine view of the Iraqi air strikes.

Alexander Mercouris

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The Iraqi air strikes in Syria on Friday have inevitably brought up the question of their legality.  The highly probable answer is that the air strikes were legal under international law.

If the air strikes were carried out with the prior permission of the Syrian government, then the question of their legality does not exist: the Iraqi air strikes would be legal, just as Russian air strikes which happen in Syria are.

There is no confirmation as yet of whether or not Iraq had Syria’s permission to carry out the air strikes.  However it is likely that it did.  Importantly, as of the time of writing, neither Syria nor its allies – Iran and Russia – have publicly objected to the air strikes.

However even if the Iraqi air strikes were carried out without the permission of the Syrian government, there is a strong arguable case that they were legal.

Iraq is in a completely different position from the US led ‘anti ISIS’ coalition, Turkey and Israel, which regularly carry out air strikes on Syrian territory without the permission of the Syrian government.  Unlike those states Iraq not only borders Syria but like Syria is at war with ISIS (‘the Islamic State’) which controls large areas of its territory.

ISIS does not recognise the international border between Iraq and Syria since it denies the right to existence of those states, and its ‘Islamic State’ straddles that border, occupying large areas of territory on either side.  Moreover ISIS regularly moves men and supplies across the border – which it does not recognise – to attack either the Syrian or the Iraqi army in their respective territories.

The legal framework for taking military action in this context is set out in Article 51 of the UN Charter

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Article 51 is interpreted by reference to the so-called Caroline Test, which was adopted by the Nuremberg Tribunal and which is recognised in international law.  It requires that a state when taking  military action on the territory of another state in order to prevent an attack upon it, must show that

necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment of deliberation ….. and that …..[the force used] did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.

In other words the test requires

(1) The use of force must be necessary because the threat is imminent and thus pursuing peaceful alternatives is not an option (necessity); and

(2) The response must be proportionate to the threat (proportionality).

In my opinion Iraq has at least a good arguable case that the air strikes fulfil the criteria of Article 51 and of the Caroline Test.

The Iraqi army is fighting a bitter war against ISIS on Iraqi territory.  Iraq regularly carries out horrendous terrorist attacks on Iraqi territory.  ISIS regularly transfers men and supplies from the territory it controls in Syria to carry out these attacks against Iraq on Iraqi territory, and in the present fighting in Iraq it is doing so on an ongoing and continuous basis.  There is no doubt therefore that there is a threat to Iraq from ISIS in Syria which is both imminent and real.  Moreover since the Syrian government does not control the area which Iraq has bombed, Iraq has a reasonable case in international law that it had no peaceful alternatives other than to carry out the air strikes, since it could not call on the Syrian government to prevent ISIS from moving men and supplies from this territory within Syria to Iraq in order to carry out its attacks on the Iraqi army and Iraqi civilians there.  I do not know whether Iraq has reported the air strikes to the UN Security Council, but I presume it has, and on the face of it the extent of the force used, which seems to have targeted only ISIS facilities and not Syrian government facilities, looks proportionate.

The Caroline Test has been grossly abused by the US and the Western powers in recent years to manufacture a whole bogus doctrine of ‘anticipatory self-defence”, which allegedly permits the Western powers to take military action anywhere in the world that they want without the prior permission of foreign governments or of the UN Security Council in order supposedly to ‘anticipate’ threats to themselves however ephemeral or frankly fictitious they might be.   The military action the Western powers are conducting in Syria, supposedly against ISIS, is justified in this way.  In reality the Caroline Test cannot be used to justify Western bombing in Syria since the attacks the Western powers are ‘anticipating’ from Syrian territory are not ongoing and imminent, and the force they use is completely disproportionate.  Moreover – as everyone knows – their actions are ultimately targeted not at ISIS but at the Syrian government, which – unlike the Iraqi government – they want to overthrow, so they cannot claim to be making their argument in good faith.

The fact that the Caroline Test has in recent years been so grossly abused in order to justify Western aggression around the world does not however mean that it no longer exists and does not apply in proper and appropriate circumstances.  It both does exist and on the face of it Iraq’s air strikes in Syria are covered by it.

As to the political implications of these strikes, that is in the nature of things a more problematic question.  Whilst it is true that the US is an ally of Iraq and an enemy of Syria, it does not in my opinion follow that Iraq is the enemy or the potential enemy of Syria.  Unlike the US Iraq has never sought to overthrow the Syrian government, and Iraq has very good relations with Iran and Russia, which are Syria’s allies.  Russian aircraft which fly to Syria from Russia – including TU22M3 bombers that carry out air strikes on ISIS in eastern Syria – regularly do so by flying through Iraqi air space with the permission of the Iraqi government.  Moreover Shia militia from Iraq participated with at least the tacit permission of the Iraqi government in the Syrian army’s recent campaign to liberate eastern Aleppo from Al-Qaeda.

On balance I would say that Iraq and Syria have a sufficient commonality of interest at the moment in their respective fights against ISIS – the mortal enemy of both – for the Syrian government to take a sanguine view of the Iraqi air strikes.

Longer term, I doubt that Iraq threatens Syria in the way that Turkey does and the Western powers do, and I suspect that once the wars on their respective territories have ended there will be at least an attempt to make these two neighbouring Arab countries friends.

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The Magnitsky affair: the confession of a hustled hack

A Cypriot journalist’s confession of how he too fell for the wrong account of the Magnitsky Affair

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Before getting down to brass tacks, let me say that I loathe penning articles like this; loathe writing about myself or in the first person, because a reporter should report the news, not be the news. Yet I grudgingly make this exception because, ironically, it happens to be newsworthy. To cut to the chase, it concerns Anglo-American financier Bill Browder and the Sergei Magnitsky affair. I, like others in the news business I’d venture to guess, feel led astray by Browder.

This is no excuse. I didn’t do my due diligence, and take full responsibility for erroneous information printed under my name. For that, I apologize to readers. I refer to two articles of mine published in a Cypriot publication, dated December 25, 2015 and January 6, 2016.

Browder’s basic story, as he has told it time and again, goes like this: in June 2007, Russian police officers raided the Moscow offices of Browder’s firm Hermitage, confiscating company seals, certificates of incorporation, and computers.

Browder says the owners and directors of Hermitage-owned companies were subsequently changed, using these seized documents. Corrupt courts were used to create fake debts for these companies, which allowed for the taxes they had previously paid to the Russian Treasury to be refunded to what were now re-registered companies. The funds stolen from the Russian state were then laundered through banks and shell companies.

The scheme is said to have been planned earlier in Cyprus by Russian law enforcement and tax officials in cahoots with criminal elements. All this was supposedly discovered by Magnitsky, whom Browder had tasked with investigating what happened. When Magnitsky reported the fraud, some of the nefarious characters involved had him arrested and jailed. He refused to retract, and died while in pre-trial detention.

In my first article, I wrote: “Magnitsky, a 37-year-old Russian accountant, died in jail in 2009 after he exposed huge tax embezzlement…”

False. Contrary to the above story that has been rehashed countless times, Magnitsky did not expose any tax fraud, did not blow the whistle.

The interrogation reports show that Magnitsky had in fact been summoned by Russian authorities as a witness to an already ongoing investigation into Hermitage. Nor he did he accuse Russian investigators Karpov and/or Kuznetsov of committing the $230 million treasury fraud, as Browder claims.

Magnitsky did not disclose the theft. He first mentioned it in testimony in October 2008. But it had already been reported in the New York Times on July 24, 2008.

In reality, the whistleblower was a certain Rimma Starova. She worked for one of the implicated shell companies and, having read in the papers that authorities were investigating, went to police to give testimony in April 2008 – six months before Magnitsky spoke of the scam for the first time (see here and here).

Why, then, did I report that about Magnitsky? Because at the time my sole source for the story was Team Browder, who had reached out to the Cyprus Mail and with whom I communicated via email. I was provided with ‘information’, flow charts and so on. All looking very professional and compelling.

At the time of the first article, I knew next to nothing about the Magnitsky/Browder affair. I had to go through media reports to get the gist, and then get up to speed with Browder’s latest claims that a Cypriot law firm, which counted the Hermitage Fund among its clients, had just been ‘raided’ by Cypriot police.

The article had to be written and delivered on the same day. In retrospect I should have asked for more time – a lot more time – and Devil take the deadlines.

For the second article, I conversed briefly on the phone with the soft-spoken Browder himself, who handed down the gospel on the Magnitsky affair. Under the time constraints, and trusting that my sources could at least be relied upon for basic information which they presented as facts, I went along with it.

I was played. But let’s be clear: I let myself down too.

In the ensuing weeks and months, I didn’t follow up on the story as my gut told me something was wrong: villains and malign actors operating in a Wild West Russia, and at the centre of it all, a heroic Magnitsky who paid with his life – the kind of script that Hollywood execs would kill for.

Subsequently I mentally filed away the Browder story, while being aware it was in the news.

But the real red pill was a documentary by Russian filmmaker Andrei Nekrasov, which came to my attention a few weeks ago.

Titled ‘The Magnitsky Act – Behind The Scenes’, it does a magisterial job of depicting how the director initially took Browder’s story on faith, only to end up questioning everything.

The docudrama dissects, disassembles and dismantles Browder’s narrative, as Nekrasov – by no means a Putin apologist – delves deeper down into the rabbit hole.

The director had set out to make a poignant film about Magnitsky’s tragedy, but became increasingly troubled as the facts he uncovered didn’t stack up with Browder’s account, he claims.

The ‘aha’ moment arrives when Nekrasov appears to show solid proof that Magnitsky blew no whistle.

Not only that, but in his depositions – the first one dating to 2006, well before Hermitage’s offices were raided – Magnitsky did not accuse any police officers of being part of the ‘theft’ of Browder’s companies and the subsequent alleged $230m tax rebate fraud.

The point can’t be stressed enough, as this very claim is the lynchpin of Browder’s account. In his bestseller Red Notice, Browder alleges that Magnitsky was arrested because he exposed two corrupt police officers, and that he was jailed and tortured because he wouldn’t retract.

We are meant to take Browder’s word for it.

It gets worse for Nekrasov, as he goes on to discover that Magnitsky was no lawyer. He did not have a lawyer’s license. Rather, he was an accountant/auditor who worked for Moscow law firm Firestone Duncan.

Yet every chance he gets, Browder still refers to Magnitsky as ‘a lawyer’ or ‘my lawyer’.

The clincher comes late in the film, with footage from Browder’s April 15, 2015 deposition in a US federal court, in the Prevezon case. The case, brought by the US Justice Department at Browder’s instigation, targeted a Russian national who Browder said had received $1.9m of the $230m tax fraud.

In the deposition, Browder is asked if Magnitsky had a law degree in Russia. “I’m not aware that he did,” he replies.

The full deposition, some six hours long, is (still) available on Youtube. As penance for past transgressions, I watched it in its entirety. While refraining from using adjectives to describe it, I shall simply cite some examples and let readers decide on Browder’s credibility.

Browder seems to suffer an almost total memory blackout as a lawyer begins firing questions at him. He cannot recall, or does not know, where he or his team got the information concerning the alleged illicit transfer of funds from Hermitage-owned companies.

This is despite the fact that the now-famous Powerpoint presentations – hosted on so many ‘anti-corruption’ websites and recited by ‘human rights’ NGOs – were prepared by Browder’s own team.

Nor does he recall where, or how, he and his team obtained information on the amounts of the ‘stolen’ funds funnelled into companies. When it’s pointed out that in any case this information would be privileged – banking secrecy and so forth – Browder appears to be at a loss.

According to Team Browder, in 2007 the ‘Klyuev gang’ together with Russian interior ministry officials travelled to Cyprus, ostensibly to set up the tax rebate scam using shell companies.

But in his deposition, the Anglo-American businessman cannot remember, or does not know, how his team obtained the travel information of the conspirators.

He can’t explain how they acquired the flight records and dates, doesn’t have any documentation at hand, and isn’t aware if any such documentation exists.

Browder claims his ‘Justice for Magnitsky’ campaign, which among other things has led to US sanctions on Russian persons, is all about vindicating the young man. Were that true, one would have expected Browder to go out of his way to aid Magnitsky in his hour of need.

The deposition does not bear that out.

Lawyer: “Did anyone coordinate on your behalf with Firestone Duncan about the defence of Mr Magnitsky?”

Browder: “I don’t know. I don’t remember.”

Going back to Nekrasov’s film, a standout segment is where the filmmaker looks at a briefing document prepared by Team Browder concerning the June 2007 raid by Russian police officers. In it, Browder claims the cops beat up Victor Poryugin, a lawyer with the firm.

The lawyer was then “hospitalized for two weeks,” according to Browder’s presentation, which includes a photo of the beaten-up lawyer. Except, it turns out the man pictured is not Poryugin at all. Rather, the photo is actually of Jim Zwerg, an American human rights activist beaten up during a street protest in 1961 (see here and here).

Nekrasov sits down with German politician Marieluise Beck. She was a member of the Parliamentary Assembly of the Council of Europe (Pace), which compiled a report that made Magnitsky a cause celebre.

You can see Beck’s jaw drop when Nekrasov informs her that Magnitsky did not report the fraud, that he was in fact under investigation.

It transpires that Pace, as well as human rights activists, were getting their information from one source – Browder. Later, the Council of Europe’s Andreas Gross admits on camera that their entire investigation into the Magnitsky affair was based on Browder’s info and that they relied on translations of Russian documents provided by Browder’s team because, as Gross puts it, “I don’t speak Russian myself.”

That hit home – I, too, had been fed information from a single source, not bothering to verify it. I, too, initially went with the assumption that because Russia is said to be a land of endemic corruption, then Browder’s story sounded plausible if not entirely credible.

For me, the takeaway is this gem from Nekrasov’s narration: “I was regularly overcome by deep unease. Was I defending a system that killed Magnitsky, even if I’d found no proof that he’d been murdered?”

Bull’s-eye. Nekrasov has arrived at a crossroads, the moment where one’s mettle is tested: do I pursue the facts wherever they may lead, even if they take me out of my comfort zone? What is more important: the truth, or the narrative? Nekrasov chose the former. As do I.

Like with everything else, specific allegations must be assessed independently of one’s general opinion of the Russian state. They are two distinct issues. Say Browder never existed; does that make Russia a paradise?

I suspect Team Browder may scrub me from their mailing list; one can live with that.

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Rod Rosenstein resigns from his post before President Trump can fire him

Rosenstein’s comments about secretly recording the President backfire, and resignation may throw the Mueller Russiagate probe into question.

Seraphim Hanisch

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The Washington Times broke the story that Deputy Attorney General Rod Rosenstein resigned from his post. He submitted his resignation to Chief of Staff John Kelly.  At present the breaking story says the following:

Deputy Attorney General Rod Rosenstein is out at the Department of Justice.

Axios reported that Mr. Rosenstein verbally resigned to White House Chief Of Staff John Kelly, but CNN said that he is expecting to be fired.

Sarah Isgur Flores, a Department of Justice spokeswoman, declined to comment on the reports.

Mr. Rosenstein’s departure immediately throws Special Counsel Robert Mueller’s Russian collusion probe into chaos.

Attorney General Jeff Sessions recused himself from the investigation, leaving Mr. Rosenstein in charge.

President Trump mulled firing the No. 2 at the Department of Justice over the weekend.

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This report came after Fox News reported that the Deputy AG was summoned to the White House. Fox reported a little more detail:

Deputy Attorney General Rod Rosenstein is heading to the White House expecting to be fired, sources tell Fox News, in the wake of a report that he suggested wearing a wire against President Trump and invoking the 25th Amendment to remove him from office last year.

This is a developing story, however one major factor that comes under consideration is the fate of Robert Mueller and his Russiagate investigation, which was authorized by Rosenstein. CNBC had this to say in their piece:

Deputy Attorney General Rod Rosenstein is resigning Monday, according to Axios, which cited a source familiar with the matter.

NBC News’ Pete Williams, however, reported that Rosenstein would not resign of his own accord, and that he will only depart if the White House fired him. He will refuse to resign if asked to do so, Williams added.

Rosenstein was at the White House when Williams reported this on the air. However, President Donald Trump is in New York for the United Nations General Assembly.

Bloomberg later reported that the White House accepted Rosenstein’s resignation, citing a person familiar with the matter.

Rosenstein’s expected resignation will immediately raise questions about the fate of the ongoing investigation by special counsel Robert Mueller, who is probing Russian interference in the 2016 presidential election, and possible obstruction of justice by President Donald Trump.

Rosenstein’s job security was called into question after The New York Times reported last week that the No. 2 DOJ official had discussed invoking the 25th amendment to remove Trump, and had also talked about surreptitiously recording the president.

Rosenstein oversees the special counsel investigation, and has appointed Mueller to run the Russia probe last year, after Attorney General Jeff Sessions recused himself from the case.

The special counsel’s office declined to comment on the report.

The White House did not immediately respond to CNBC’s request for comment on Axios’ report. The Justice Department did not immediately respond to CNBC’s inquiry.

Trump has repeatedly blasted Mueller’s inquiry, which also is focused on possible collusion with Russia by members of the Trump campaign.

He has called the investigation a “witch hunt,” and has repeatedly vented frustration about Sessions’ recusal, which directly led to Mueller’s appointment by Rosenstein.

Rosenstein’s expected departure comes on the heels of a guilty plea by Trump’s former campaign manager Paul Manafort to conspiracy charges related to his consulting work in Ukraine, which predates his role on the campaign.

As part of the investigation, Mueller’s team has been locked in an ongoing back-and-forth with Trump’s legal team over an in-person interview with the president.

Trump’s lawyers, including former New York Mayor Rudy Giuliani, have signaled that Trump is unwilling to sit for an interview, calling it a “perjury trap” and setting up a potential challenge for Mueller to subpoena the president.

This story is developing. Please check back for updates.

 

 

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European Council crushes Theresa May’s soft Brexit dream (Video)

The Duran – News in Review – Episode 116.

Alex Christoforou

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UK Prime Minister Theresa May hoped that the European Council was ready to see things her way, in terms of proceeding with a soft Brexit, which was essentially no Brexit at all…at least not the hard Brexit that was voted on in a democratic referendum approximately two years ago.

Much to May’s surprise, European Council President Donald Tusk delivered a death blow verdict for May’s Brexit, noting that EU leaders are in full agreement that Chequers plan for Brexit “will not work” because “it risks undermining the single market.”

Without a miracle compromise springing up come during the October summit, the UK will drift into the March 29, 2019 deadline without a deal and out of the European Union…which was initially what was voted for way back in 2016, leaving everyone asking, what the hell was May doing wasting Britain’s time and resources for two years, so as to return back to the hard Brexit terms she was charged with carrying forward after the 2016 referendum?

The Duran’s Alex Christoforou and Editor-in-Chief Alexander Mercouris discuss what was a disastrous EU summit in Salzburg for UK PM Theresa May, in what looks to be the final nail in May’s tenure as UK Prime Minister, as a hard Brexit now seems all but certain.

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Via Zerohedge

Tusk was speaking at the end of an EU summit in Salzburg, where the leaders of the 27 remaining states in the bloc were discussing Brexit. He said that while there were “positive elements” in May’s Chequers plan, a deal that puts the single market at risk cannot be accepted.

“Everybody shared the view that while there are positive elements in the Chequers proposal, the suggested framework for economic co-operation will not work, not least because it is undermining the single market,” Tusk said. He also said that he could not “exclude” the possibility that the UK could exit the EU in March with no deal.

May has been urging her European counterparts to accept her controversial Chequers plan which has split both the Conservative party and the broader UK population after it was thrashed out back in July. However, despite the painfully-slow negotiation process, which appears to have made little headway with just a few months left, the UK is set to leave the EU on March 29 2019 – with or without an exit deal.

The main sticking point that has emerged, and left May and the EU at loggerheads, has been how to avoid new checks on the Irish border. May has claimed that her proposals were the “only serious, credible” way to avoid a hard border in Northern Ireland. She said during a press conference after the Salzburg meeting that she would not accept the EU’s “backstop” plan to avoid a Northern Ireland hard border. She said the UK would shortly be bringing forward its own proposals.

May also said that there was “a lot of hard work to be done,” adding that the UK was also preparing for the eventuality of having to leave the EU without a deal. Tusk, meanwhile, said that the upcoming October summit would be the “moment of truth” for reaching a deal, and that “if the conditions are there” another summit would be held in November to “formalize” it.

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