The Burn Bag Newsletter: March 2nd
Strikes in Syria, Ethnic Cleansing in Ethiopia, Environmental Justice in Africa, and Biden and Trudeau Meet.
Welcome to The Burn Bag Newsletter. This week, our writers review (some of) the debate over the 2001 AUMF, war crimes in Ethiopia, friendship in North America, and a potential future for lawsuits related to climate change.
Defense
Strikes in Syria and the Legal Rationale for a Forever War
Last Thursday, in keeping with modern American presidential tradition, President Biden ordered airstrikes in the Middle East. The airstrikes targeted Iran-backed militia groups in Syria in retaliation for rocket attacks against U.S. personnel in northern Iraq, including one that killed a civilian contractor earlier last month. Biden’s decision to strike targets in Syria raises the question: when did Congress vote to go to war in Syria?
If you ask Presidents Obama and Trump, the answer is “in 2001.” Before Biden, the last three presidents engaged in offensive military action around the world under the authority of the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 to allow the president to defeat “those nations, organizations, or persons” determined to be involved in any way, no matter how loosely, with the 9/11 terrorist attacks. Over time, and with the support of the American judicial system, the 2001 AUMF increasingly came to be used to justify military action against terrorism at large, and provided the legal basis for strikes in Syria throughout the last decade.
The Biden administration, to its credit, invoked the United States’ right to self-defense, guaranteed by the U.N. Charter, as a justification for the strike, rather than the 2001 AUMF. Nevertheless, the specter of questionably legal military offensives raised questions from both Republicans and Democrats in Congress and reignited calls to repeal the longstanding authorization.
Some argue that, while congressional authority to prosecute war remains, the nature of war has changed: in 2019, also to justify conducting airstrikes in Syria, the Trump administration argued that such targeted action “did not rise to the level of ‘war’ for constitutional purposes.”
As a practical argument, proponents of vigorous U.S. military action may find this argument compelling: with warfighting conducted in seemingly finite strikes, it would be both strategically disadvantageous and politically inept to resort to requesting authority from an increasingly polarized, incapable Congress every time the military seeks to engage. Such a proponent would have to look no further than 2013, when Obama petitioned Congress for the authority to strike Syria in response to the use of chemical weapons by the Assad regime, and Congress balked at the proposal.
Opponents of extensive U.S. military engagement argue that congressional approval is a necessary barrier to such action, particularly when considering the costs, human and otherwise, of the amorphous wars the United States has been fighting since 9/11. Opponents of unlawful warmaking, in both hawk and dovish camps, ignore politics altogether and point to the clear constitutional responsibilities granted Congress to reject what are, in their eyes, specious justifications for illegal actions.
Biden may have authorized a legally justified strike last week, but nevertheless, his decision resurfaced a simmering debate about presidential authority to make war in countries far away, twenty years after Congress first allowed it. As his administration looks to follow through on the United States’ commitment to pare down its military involvement in Afghanistan, Biden will increasingly be under pressure to extend that drawback of protracted U.S. involvement around the world, including by acquiescing to relinquishing war powers claimed by his predecessors. But, as history has shown, presidents are not wont to give up power. Will Congress finally act instead?
The Regional Readout
Africa
Ethiopia’s War Leads to Ethnic Cleansing in Tigray Region
In November, Ethiopian Prime Minster Abiy Ahmed launched a military operation in the northern Ethiopian Tigray region against the region’s ruling faction, the Tigray People’s Liberation Front (TPLF). An internal U.S. government report found that Ethiopian officials, with assistance from Eritrean military forces, are leading a systemic campaign of ethnic cleansing in the region. The report described whole villages being severely damaged or “completely erased.” Other reports suggest that hundreds of Tigrayan civilians have been systematically executed. On top of this violence, the conflict has caused at least 4.5 million people to urgently require food aid.
The Ethiopian Government has continued to dismissed critiques of its involvement in the conflict while the Eritrean government has denied any participation. In response, the European Union has withheld $110 million in aid to Ethiopia. As Ethiopia is a key ally to the U.S. in East Africa, the humanitarian crisis in Tigray will prove to be the Biden administration’s first diplomatic test in Africa.
To learn more, check out:
https://www.nytimes.com/2021/02/26/world/middleeast/ethiopia-tigray-ethnic-cleansing.html
https://www.cnn.com/2021/03/01/africa/ethiopia-mfa-us-tigray-troops-intl/index.html
The Americas
Biden-Trudeau Talks Trumpet Reconciliation
On February 23rd, President Biden held the first bilateral meeting of his presidency with Canadian Prime Minister Justin Trudeau, from which a roadmap of areas for cooperation between the two countries, including climate change and COVID-19, was rolled out. In remarks, Biden publicly condemned for the first time the detention of two Canadian citizens imprisoned in China. They were detained following the arrest of Meng Wanzhou, Huawei CFO and daughter of the company’s founder, in Canada. The U.S. has requested her extradition to face charges of fraud and violation of U.S. sanctions on Iran. Although the event touted the reinvigoration of relations between the U.S. and Canada, diplomatic resolution on several areas of contention was notably absent. Post-meeting comments lacked (1) mention of the cancelled Keystone XL pipeline, (2) any commitment from Biden on waivers for Canadian companies from the newly restrictive Buy America provisions, and (3) Canadian procurement of COVID-19 vaccines manufactured in the U.S.
To learn more, check out:
Europe
U.K. to Allow Nigerian Oil Spill Case to Proceed Against Shell
The Supreme Court of the United Kingdom has ruled that a London court may proceed to hear a case brought by Nigerian farmers against Royal Dutch Shell. The recent judgment in Okpabi v. Shell finds Shell answerable for years of leaks and spills from oil infrastructure operated by its subsidiary, Shell Petroleum Development Company (SPDC) of Nigeria. Communities in the Niger Delta, including the Ogale and Bille peoples, have documented the spills’ widespread environmental damage, including contamination of water sources vital for drinking, fishing, and agriculture. At trial, Shell is expected to contend that SPDC’s pipelines are regularly sabotaged and damaged by oil theft; plaintiffs will argue the pipelines are also negligently maintained, and cleanup efforts have not taken place.
Holding large multinational enterprises, such as Shell, to account for the activities of their subsidiaries in developing countries has long proven highly challenging. Indeed, plaintiffs have long struggled to “pierce the corporate veil” to hold parent companies liable under their domestic justice systems, and have lacked standing or resources to pursue drawn-out legal fights in parent companies’ host jurisdictions. Developments to follow from the Okpabi v. Shell decision should be closely monitored, as the case opens the door for a new class of litigation defining parent companies’ broad human rights and environmental obligations. The ruling has particular relevance for forthcoming international cases on climate change.
To learn more, check out:
https://www.nytimes.com/2021/02/12/business/shell-oil-spills-nigeria-lawsuit-britain.html
https://www.jdsupra.com/legalnews/okpabi-v-shell-uk-supreme-court-4335558/
The world is a big place and we can’t cover it all. What did we miss? Let us know what you’re interested in reading more about at burnbagpodcast@gmail.com or in the comments below.
Finally, make sure to check out this week’s episode of The Burn Bag Podcast with Admiral (Ret.) James Stavridis.
Listen here or wherever you get your podcasts.
On this week’s episode of the Burn Bag, co-hosts A’ndre and Ryan speak with retired 4-Star Admiral James Stavridis, about his new book 2034. Admiral Stavridis, who served as former Supreme Allied Commander of NATO, and former Commander of U.S. European and Southern Command, discusses the importance of cyber warfare and why we must rethink the idea of the typical U.S. soldier. During the episode, he delves into topics such as the SolarWinds hack and the question of cyber espionage, along with Naval Warfare—specifically the influence of maritime powers. Admiral Stavridis ends with discussing the U.S.’s position regarding the South China Sea and the mission of NATO.