30 Aug Not Even the Brits Can Make the Case Bombing Syria Is Lawful
Good thing nothing much happened while I was away on summer vacation… So as I wrote here last spring, there’s no clear basis under international law for a U.S. use of force in Syria – no UN Security Council resolution, and no apparent claim at this stage that the United States is acting in self-defense. The only theory of legality in play seems to be the one put forward by the British government, right before Parliament voted to reject the use of force in Syria. Namely, that force may be justified as part of an emergent customary norm permitting humanitarian intervention (see, e.g., NATO intervention in Kosovo).
The statement from the UK Prime Minister’s Office says a state may take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”
But it just can’t support U.S. action here. Here’s why.
1. It’s not the law. With great respect to my friends and colleagues who hold a different view, there is no “doctrine of humanitarian intervention.” I admittedly grew up in the school of customary international law that defined CIL as a “general practice of states” followed out of a sense of legal obligation. Set aside for a moment the reality that the use of force without Security Council authorization is far, far from a general practice of states. The primary example relied on here – NATO intervention in Kosovo – was taken in broad recognition of the view that NATO was violating the law in order to undertake it. That is, NATO didn’t intervene because it thought it had a legal obligation to intervene. It intervened despite its understanding that it had a legal obligation not to. Even if one embraces the more modern approach to CIL – that one can (and should) glean the state of customary law from what states say rather than what they do, I have been struck by how weak regularly cited statements of “support” for such a doctrine really are (excepting the UK’s vigorous statement this week). As ever, readers are invited to reopen that debate here.
2. The UK’s requirement – that the purpose of intervention be to “alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons” – doesn’t seem to be a particularly apt description of the U.S. purpose in intervention. Few could doubt the existence of an overwhelming humanitarian catastrophe in Syria today; few could doubt its existence last year either. The U.S. failure to act earlier does make one somewhat skeptical humanitarian purposes are newly dispositive now. Indeed, in his remarkable interview with PBS a few nights ago, President Obama was fairly explicit in discounting the humanitarian rationale: “[A]lthough what’s happened there is tragic, and although I have called for Assad to leave and make sure that we got a transitional government that could be inclusive in Syria, what I’ve also concluded is that direct military engagement, involvement in the civil war in Syria, would not help the situation on the ground. And so we’ve been very restrained…. But what I also said was that if the Assad regime used chemical weapons on his own people, that that would change some of our calculations. And the reason has to do with not only international norms but also America’s core self-interest.” The President’ defense of potential action thus instead focused largely on other concerns. He expressed concern, for instance, that “a breach of the nonproliferation norm [would] allow, potentially, chemical weapons to fall into the hands of all kinds of folks.” I guess I would’ve thought he thought the weapons were already in the “wrong hands.” What the President may mean is that they might fall into the hands of groups who are actively trying to do the United States or U.S. allies in the region harm – an inclination the current Syrian regime has mostly not shown in this conflict. In this sense, the purpose seems better understood as a modified and stunningly broad theory of anticipatory self-defense. But it stretches anticipatory self-defense to absurd proportions to suggest that State A can use force against State B because there’s a chance State B’s weapons might someday be acquired by Actor C, which might then use weapons formerly owned by State B against State A. In any case, as a policy matter, a military strike that has the effect of weakening the current Syrian government would seem to make it more likely that the weapons will fall into the hands of a group unfriendly to the United States, particularly in the period following any collapse of the current regime. Perhaps then the President meant to reassert his other statement of U.S. interest – the need to ensure that the “international norm against the use of chemical weapons … be kept in place.” This theory – the need to ensure there are consequences for the violation of international law, in particular the international law prohibiting the use of chemical weapons – is likewise understandable. But it is also unrelated to humanitarian purposes. And it is as suspect as the previous rationale as a policy matter as well; to protect the international law prohibiting the use of chemical weapons, the United States would violate international law prohibiting the use of force without Security Council authority. The net benefit to the international legal system, in which the United States surely has an interest, seems rather a wash.
3. Because the U.S. purpose in intervention isn’t primarily about “the relief of humanitarian need,” the United States’ use of force seems unlikely to comply with – or, perhaps better put, be measured by – the conditions the UK statement sets forth. Why would the U.S. use of force be “necessary and proportionate to the aim of relief of humanitarian need” if that is not in fact the principle aim? Indeed, the President’s repeated emphasis on U.S. “core self-interest” is not purely political. Under the legal theory of domestic executive power his administration advocated to justify the use of force without congressional authorization in Libya, the criterion the Office of Legal Counsel used to cabin the executive power it was asserting was that there must be a kind of “national interest” present that has traditionally justified such unilateral executive action without prior congressional approval. What might such an interest be? Classically – individual or collective self-defense. Purely humanitarian purposes? I’m not sure that’s ever been the sole presidential pitch. With Haiti, there was the danger of an influx of refugees; with Kosovo, it was the flouting of UN resolutions and the “tinderbox” bordering our allies in Europe. The President may well be genuinely concerned for the plight of the Syrian people. But he’s caught between a constitutional rock and an international law hard place. And it leaves little room for complying even with the Brits’ generous (and novel) read of the law.