As tensions escalate in the Middle East, US President Donald Trump has threatened to strike targets in Iran should they seek to retaliate over the killing of Qassem Soleimani. According to the president’s tweet, these sites includes those that are ‘important to Iran and Iranian culture’.

Defense Secretary Mark Esper was quick on Monday to rule out any such action and acknowledged that the US would ‘follow the laws of armed conflict’. But Trump has not since commented further on the matter.

Any move to target Iranian cultural heritage could constitute a breach of the international laws protecting cultural property. Attacks on cultural sites are deemed unlawful under two United Nations conventions; the 1954 Hague Convention for the Protection of Cultural Property during Armed Conflict, and the 1972 UNESCO World Heritage Convention for the Protection of the World Cultural and Natural Heritage.

These have established deliberate attacks on cultural heritage (when not militarily necessary) as a war crime under the Rome Statute of the International Criminal Court in recognition of the irreparable damage that the loss of cultural heritage can have locally, regionally and globally.

These conventions were established in the aftermath of the Second World War, in reaction to the legacy of the massive destruction of cultural property that took place, including the intense bombing of cities, and systematic plunder of artworks across Europe. The conventions recognize that damage to the cultural property of any people means ‘damage to the cultural heritage of all mankind’. The intention of these is to establish a new norm whereby protecting culture and history – that includes cultural and historical property – is as important as safeguarding people.

Such historical sites are important not simply as a matter of buildings and statues, but rather for their symbolic significance in a people’s history and identity. Destroying cultural artefacts is a direct attack on the identity of the population that values them, erasing their memories and historical legacy. Following the heavy bombing of Dresden during the Second World War, one resident summed up the psychological impact of such destruction in observing that ‘you expect people to die, but you don’t expect the buildings to die’.

Targeting sites of cultural significance isn’t just an act of intimidation during conflict. It can also have a lasting effect far beyond the cessation of violence, hampering post-conflict reconciliation and reconstruction, where ruins or the absence of previously significant cultural monuments act as a lasting physical reminder of hostilities.

For example, during the Bosnian War in the 1990s, the Old Bridge in Mostar represented a symbol of centuries of shared cultural heritage and peaceful co-existence between the Serbian and Croat communities. The bridge’s destruction in 1993 at the height of the civil war and the temporary cable bridge which took its place acted as a lasting reminder of the bitter hostilities, prompting its reconstruction a decade later as a mark of the reunification of the ethnically divided town.

More recently, the destruction of cultural property has been a feature of terrorist organizations, such as the Taliban’s demolition of the 1,700-year-old Buddhas of Bamiyan in 2001, eliciting international condemnation. Similarly, in Iraq in 2014 following ISIS’s seizure of the city of Mosul, the terrorist group set about systematically destroying a number of cultural sites, including the Great Mosque of al-Nuri with its leaning minaret, which had stood since 1172. And in Syria, the ancient city of Palmyra was destroyed by ISIS in 2015, who attacked its archaeological sites with bulldozers and explosives.

Such violations go beyond destruction: they include the looting of archaeological sites and trafficking of cultural objects, which are used to finance terrorist activities, which are also prohibited under the 1954 Hague Convention.

As a war crime, the destruction of cultural property has been successfully prosecuted in the International Criminal Court, which sentenced Ahmad Al-Faqi Al-Mahdi to nine years in jail in 2016 for his part in the destruction of the Timbuktu mausoleums in Mali. Mahdi led members of Al-Qaeda in the Islamic Maghreb to destroy mausoleums and monuments of cultural and religious importance in Timbuktu, irreversibly erasing what the chief prosecutor described as ‘the embodiment of Malian history captured in tangible form from an era long gone’.

Targeting cultural property is prohibited under customary international humanitarian law, not only by the Hague Convention. But the Convention sets out detailed regulations for protection of such property, and it has taken some states a lot of time to provide for these.

Although the UK was an original signatory to the 1954 Hague Convention, it did not ratify it until 2017, introducing into law the Cultural Property (Armed Conflicts) Act 2017, and setting up the Cultural Protection Fund to safeguard heritage of international importance threatened by conflict in countries across the Middle East and North Africa.

Ostensibly, the UK’s delay in ratifying the convention lay in concerns over the definition of key terms and adequate criminal sanctions, which were addressed in the Second Protocol in 1999. However, changing social attitudes towards the plunder of antiquities, and an alarming increase in the use of cultural destruction as a weapon of war by extremist groups to eliminate cultures that do not align with their own ideology, eventually compelled the UK to act.

In the US, it is notoriously difficult to get the necessary majority for the approval of any treaty in the Senate; for the Hague Convention, approval was achieved in 2008, following which the US ratified the Convention in 2009.

Destroying the buildings and monuments which form the common heritage of humanity is to wipe out the physical record of who we are. People are people within a place, and they draw meaning about who they are from their surroundings. Religious buildings, historical sites, works of art, monuments and historic artefacts all tell the story of who we are and how we got here. We have a responsibility to protect them.

Since assuming office, President Donald Trump’s many encounters with litigation have exposed significant irregularities of the American legal system as it applies to the president.

These encounters – including but not limited to accusations of defamation, obstruction, perjury and non-disclosure agreements – have shown President Trump to hold a particular interpretation of how the rule of law should apply to someone holding the highest elected office in the United States of America.

However, an analysis of Trump’s legal history prior to his assumption of office reveals a tried and tested method of using litigation – or the threat of it – to quieten criticism and opponents. As Trump faces possible impeachment in the House of Representatives, what – if any – influence might his combative approach towards legal battles have on the political proceedings?

Drawing on New York attorney James Zirin’s new book, Plaintiff in Chief, this event examines the relationship between President Trump’s litigation history and his approach to the presidency.

How has the American legal system facilitated Trump’s attitude towards litigation? How can his litigation toolkit be countered?

And what impact has the president’s approach to litigation had on the domestic and global reputation of the American legal system and the office of the president as accountable and credible institutions?

The vote to impeach Donald Trump holds almost no surprises - on both the abuse of power and obstruction of congress articles, the votes were split entirely on party lines with nearly all the majority-led House Democrats but not a single Republican voting to impeach Trump.

However, this ‘pre-ordained’ outcome of the House impeachment inquiry does serve to highlight that the US is in the midst of a hyper-partisan political moment. Policy gridlock has led to two government shutdowns during Donald Trump’s presidency, with one further budgetary fight narrowly avoided.

With a few notable exceptions (such as USMCA), policy areas that lend themselves to bipartisanship - including infrastructure and drug pricing - have seen very little progress under divided congressional chambers. Party identification can now be overlaid with the cable news channel one watches or the newspaper one reads.

Impeachment now moves to the Senate for a trial, requiring a two-thirds majority of the Republican-led senate (or 67 senators) for a conviction. Given the congressional partisanship we are seeing, the baseline scenario continues to be that the senate will not vote to convict Trump and remove him from office - despite much being made of how many senators are likely to vote for a Senate conviction.

Why public opinion could be crucial

There is another story to keep a close eye on. The number to track is 47.2 – the current polling average of public support for Trump’s impeachment. Polling averages from the end of September 2019 (before the hearings began, but after House Speaker Nancy Pelosi announced a formal inquiry) had 49.4% supporting impeachment versus 47.2% this week.

Here’s why this number matters. If those pushing for impeachment and removal are unable to drive popular support across a critical threshold level, then those against impeachment and removal are not going to abandon the president and vote for a senate conviction. With Trump consistently polling in the low 40s on job approval, but in the high 80s/low 90s within the Republican party, this means Republican congress members concerned about re-election are extremely hesitant to distance themselves from him without a clear mandate from the domestic public. 

A tale of the two most recent presidents to face impeachment underscores this point. Gallup polling claimed 58% of adults supported impeaching and removing President Richard Nixon from office in August 1974, whereas only 35% of the public supported impeaching President Bill Clinton in December 1998, the month he was impeached.

Given the respective outcomes of those two impeachments, it suggests public support for impeachment and removal needs to increase well beyond the current 47.2%, to avoid the foregone conclusion of acquittal in the Senate (even if there are signs of the tide moving in the opposite direction with those against impeachment overtaking support for the first time in December).   

What does this mean for Democrats?

In the short term, if the Democrats want to make inroads into the hearts and minds of those across the partisan gulf, it will be critical to secure senate testimony from those in Trump’s inner circle at the time of the Ukrainian affair.

After Trump ordered individuals with first-hand knowledge of the administration’s efforts vis-à-vis Ukraine not to testify, House investigators were unable to call many witnesses with direct evidence (which in fact left the House testimony exposed to Republican claims of hearsay). With Trump impeached, more of the public is likely to tune in to the senate proceedings, and direct evidence by inner circle administration officials required to testify presents an opportunity to move public opinion.

House speaker Nancy Pelosi recognizes how crucial the procedures and participants for the senate trial will be, and has said she could delay sending the articles of impeachment to the senate as leverage for a 'fair trial'.

Democrats also have to consider how an impeachment inquiry that - at least from this vantage point - does not end in a conviction of the president plays out for the 2020 election campaign, especially if this also likely means that public opinion - and certainly Republican-party views - of Trump have not shifted.

On Thursday, the US House of Representatives passed a resolution affirming its authority under the War Powers Resolution Act, and reminding the president, the American people and the world that when it comes to the use of military force, Congress must be taken into account. 

President Donald Trump replied by retweeting John Bolton, his former national security advisor, who tweeted that the War Powers Act was ‘unconstitutional’, effectively dismissing Congressional efforts to rein in the president.

This round of legal Twitter diplomacy came days after the president tweeted that ‘legal notice (to Congress) is not required, but it is given nevertheless’ and that ‘should Iran strike any US person or target, the United States will quickly and fully strike back, and perhaps in a disproportionate manner.’ 

President Trump’s overt attacks on Congressional authority and disregard for the law are not normal for a US president, but legal constraints over the president’s authority to use military force have been eroding for several years.

In 1973, Congress passed the War Powers Act, requiring the president to report to Congress and acquire Congressional approval for continued overseas troop deployments. But Congressional authority over the use of military force has continued to diminish, especially since the 9/11 attacks. 

Now, Congress is pushing back – a resolution similar to that passed by the House is likely to be voted on by the Senate soon. Given the intense frustration of some senators over the president’s handling of the current conflict, this resolution may pass, though the president is still likely to veto. 

The bigger problem, of which this is one part, is the expansion of executive authority, and it predates this presidency. Many argue that executive power is greatest on matters of foreign policy, and that in this domain the US president is unconstrained. As partisanship has increased and the demands on Congress have made it harder for its members to cultivate foreign policy expertise, the power of the president has grown.

So the fact that Congress is taking active steps to check the president’s power not only on the question of impeachment, but also on foreign policy, is significant, even if the law is not likely to restrain President Trump. But Congress is also playing a long game. And its growing determination to assert its authority matters not only for this presidency, but also for the future.

Political constraints

In the short term, other constraints matter more. Even if President Trump rejects legal restraints – and shuns diplomatic pressure that might have mattered to other presidents – he is not impervious to political restraint.

Already there are signs that Trump listens to his key Republican allies in Congress. When Senator Lindsay Graham pushed back against the president’s threat to attack cultural heritage sites in Iran, and the Pentagon failed to shore up the president’s threat, the president changed his position. The threats also provoked an overwhelming response in Europe, and across the Middle East, but the president has shown that he is willing to disregard international admonishment. Not so for domestic allies.

Nor is this the first time that Senator Graham’s views have mattered. When the president announced his decision to pull troops from northeast Syria, effectively abandoning the Kurds, a key partner to the US in its fight against ISIS, Senator Graham and Senator Mitch McConnell pushed back and it mattered. 

Public opinion also matters to the president, especially Republican public opinion, and this is likely to affect the president’s next steps. Recent polls suggest that Americans feel less safe as a result of the killing of General Qassem Soleimani by a considerable margin of 55% to 24%.

But the same survey also shows that a majority of Americans support the decision to kill Soleimani. Already Vice President Mike Pence has spoken at a rally in Ohio designed to bolster support for this Presidential action.  

So what might change public opinion and will this alter the president’s future steps?

Americans are very reluctant to support further deployments of troops overseas. President Trump knows this and he has consistently stated that he seeks to pull US troops out of the Middle East.

In fact, the opposite has happened. And once again, the decision to kill General Soleimani is pulling the US further into the Middle East and putting into stark light the inconsistency of Trump’s foreign policy ambitions. In recent days, the United States has committed to sending thousands of troops to the region.

Continued US troop deployments may not play well with Trump’s base, though they currently support his Iran policy. But absent an obvious justification, this could change, so it is not surprising that this has become a rallying point for Vice President Pence.

An even greater political risk, and one that will matter to the president, is the risk to US military personnel and civilians overseas. Public support for the killing of Soleimani and increased US presence in the region is bound to dissipate if Americans are killed.

But it isn’t clear how the president will respond, and already the death of one American in the militia attack on 27 December seems to have been a critical factor in Trump’s decision to authorize the assassination of General Soleimani.  

So far, Iran’s response appears to be calibrated to avoid this kind of public backlash, and keep the door open to some sort of managed resolution of the current crisis.

But the considerable risk of miscalculation and mistakes has already been born out. A week after the killing of Soleimani, the world is tuning in to the tragic news that a civilian airliner departing Iran for Ukraine appears to have been accidentally shot down by an Iranian missile, resulting in the deaths of all 176 people on board, including 82 Iranians and 63 Canadians.

Whether the US president is constrained is a critical question for Americans, for US democracy and for the rest of the world. Trump is different, but he is not unconstrained. Steps taken by Congress along with diplomatic and political pressure mean he is still operating within boundaries. But it is clear that these boundaries are being redefined.

On 7 November, as governments reconvened in Marrakech for the first major round of climate talks since the momentous Paris summit, they had the wind in their sails. The sense of momentum that had built in the run-up to Paris had continued, with recent global deals to phase out HFCs (potent greenhouse gases used in refrigeration and air conditioning) and tackle emissions from aviation. However, by the morning of 9 November the mood changed to one of unease and trepidation, as news of Donald Trump’s US election victory sunk in. Only days after entering into force, the Paris Agreement was faced with the possibility of the world’s second largest emitter, and a key dealmaker and architect of the regime, withdrawing.

Although details of Trump’s positions on climate and energy policy are scarce, his statements on the campaign trail appear to signal a marked departure from the Obama administration’s approach. The president-elect has said he would ‘cancel’ the Paris Agreement and ‘rescind’ the Climate Action Plan which underpins US action to reduce emissions. On the basis of these statements, it is hard to view the election result as anything other than a major setback for the climate. The new international climate regime now faces a very early and very big test.

Paris’s first test

The response from governments has been swift. Statement after statement emphasized a clear and consistent message: countries remain committed to the Paris Agreement and to delivering their emissions reductions. While there is hope that the US will remain a part, the message was that the process will continue regardless. Importantly, there have as yet been no indications that recusant parties to the agreement might use a US withdrawal as cover to do the same.

This display of unity is arguably Marrakech’s defining success. Progress in talks to flesh out the so-called ‘rulebook’ for how the Paris Agreement will operate come 2020 was modest in some areas and disappointing in others; on finance, the perennial tensions between developed and developing countries were as clear as ever. But when the time came to uphold the nascent regime in the face of a threat, powerful international norms on climate action meant there were no divisions.

Two important questions

The prospect of US disengagement from the international regime, whether de jure or de facto, raises two important questions: one for the US and another for the rest of the world.

For the international community, the question is one of leadership. In the run-up to Paris, the US and China together set expectations for a global agreement, signalling their intent through a series of joint announcements that set the bar for ambition and carried other countries with them. Progressive countries hoped this partnership would re-emerge in 2018, when talks begin on closing the gap between national emission reduction plans and what is needed to achieve the Paris goal of containing warming ‘well below’ 2°C. A wholesale step change in ambition is required if the 2°C goal is to remain within reach, requiring intense climate diplomacy of the kind witnessed before Paris. Will China be prepared to unilaterally set the pace and raise ambition first? Will a new partner come forward, or new coalition emerge, to fill the vacuum left by the US and work alongside China to provide leadership?

The US faces a question of national interest. With the rest of the world apparently united on climate change, what costs might the US incur were it to withdraw from the global regime? To fly in the face of strong international norms on climate action would certainly erode American soft power and concede global status to China, which continues to signal its ambition to decarbonize. And with the US expected to take a more protectionist approach to trade, it is possible that other countries, frustrated at US free-riding on the emissions reductions of others, might impose tariffs on American imports to adjust for the lower emissions costs of US exporters. Nor will American prosperity be served by the US economy remaining shackled to fossil fuels while the rest of the world’s economy transitions away from them. All countries stand to lose if the US backslides on climate change, most of all the US.

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