05 Oct Trump vs. International Law: Unilateral Use of Force
[Dire Tladi is a Professor of International Law at the University of Pretoria.]
I first met Harold Hongju Koh in 2009 at a retreat on the definition of the crime of aggression for the purposes of the Rome Statute just outside New York. From my first engagement with him, I immediately knew two things about the man. First, our approaches to international law were based on very different philosophies. Second, his intellectual grasp of the complexities of international law, and its interaction with policy considerations, was remarkable. It is easy to appreciate the intellect of someone you agree with. To extol the intellectual of abilities of someone you disagree with must be one of the best compliments that can be paid to a thinker – and I am paying that compliment to Harold today.
When Kevin Jon Heller asked me to contribute to this symposium in honour of the launch of Koh’s new book, The Trump Administration and International Law, I agreed without hesitation, both because of my respect for the man and because I knew, there was probably a chapter on which I would have a lot to say. And indeed, Chapter Five, “America’s Wars”, caught my eye.
For most international lawyers, the Trump Administration, and its America First rhetoric, heralded a dangerous time for international law. Yet, I have always believed that American foreign policy does not suffer from same the party-political tensions that shape domestic politics. In a fictional work, a character describes the foreign policy differences between the Republicans and Democrats as follows:
“It was kind of like Obama following GW Bush. Obama said, I will give you respect. He offered a ‘listen and learn kind of leadership’ as opposed to the bullying of Bush… The world loved Obama because he was the antithesis of Bush, yet, at least internationally, he pursued the same objectives.” (Blood in the Sand of Justice)
It is true that Trump’s America First Policy might be construed as irrational Republicanism on steroids, but it still crudely fits into the description offered by the fictional character. Harold Koh disagrees and advances evidences to show that the notion that “the Obama administration’s approach mirrored GW Bush’s” was incorrect. But in many ways, and the book acknowledges this, the shift in Obama’s approach was more nuance and strategy rather than one a policy shift. Moreover, in supporting the right of the United States, even under Donald Trump, to intervene in situations like Syria for humanitarian purposes, he recalls that “in the international order, there remains one United States, which, regardless of who is its president, plays a critical role as a balance wheel of the international system.” It is against this background that I offer a few comments on Harold’s chapter on “America’s Wars”.
The Danger is Unilateralism
The fifth chapter in Harold’s wonderfully written book, which concerns the use of force – both jus ad bellum and jus in bello – is grounded in what supporters might term a healthy mix of law and policy. He cautions, at page 138 that it is a “mistake to isolate international law analysis solely within its own bubble, entirely distinct from policy.”
On the basis of this policy-driven analysis of international law, Koh advances two international law-related themes in his chapter on “America’s War” that I wish to comment on. The first theme is that States have the right, under existing international law (and due to policy considerations), to use force in self-defence, collective or individual, against non-state actors in the territory of third states without the third states’ consent. For example, he notes that as “a matter of international law” the US use force against ISIS in Syria was not based on Syria’s consent “but rather in collective self-defence”. The second theme is that states can unilaterally use force in response to a humanitarian catastrophe in another state. This second theme is discussed in greater detail than the first.
These themes, in my view, have in common, the idea that the unilateral use of force in a State which is not guilty of an armed attack is acceptable under certain (exceptional) circumstances. These themes are also, in a sense, a critique of what Harold terms the position of the “never-never” group, i.e. those that adhere to a very restrictive approach to the right to use force. As an adherent of the “never-never” school of thought, I fear that a permissive approach risks undermining international law and collective security system established under the Charter. The chapter “America’s Wars” is at pains to emphasise that the permissiveness it advances applies only under certain (exceptional) circumstances and that this must be consistent with international law.
On the right to use force in self-defence against terrorists in third States, it seems clear, based on a consistent line of reasoning by the International Court of Justice that, at least as originally understood, article 51 did not permit extraterritorial force against non-state actors without the consent of the territorial State. The real question, therefore, is whether state practice, whether as a constituent element of customary international law, or as subsequent practice for the purposes of interpreting the UN Charter, could have modified this original state-centric reading of the Charter. This question is at the heart of a forthcoming book, The Trialogue on the Use of Force against Non-State Actors (Mary Ellen O’Connell, Christian Tams, Dire Tladi). In my view, an objective assessment of state practice will reveal that the UN Charter still requires an armed attack by the territorial state in order to justify the use force in self-defence on the territory of another.
As to the second theme, Harold states that the “‘never-never rule’ cannot be squared with the object and purpose of the UN Charter, whose broad purposes include ‘promoting and encouraging respect for human rights’”. The problem, as Harold describes it, is that the absolutist approach implied by the “never-never rule” means that action against extreme cases of humanitarian catastrophes will be prevented where one of the Permanent Five exercises a veto. Any right-thinking human being should share this concern. The question is whether the doctrine of unilateral humanitarian intervention is the legal answer to this policy conundrum. The problem with humanitarian intervention can be summed up in one word: unilateralism. Humanitarian intervention permits a state to
(a) unilaterally determine that there is a humanitarian crisis;
(b) unilaterally determine that the response to the humanitarian crisis must be military intervention;
(c) unilaterally determine where the fault for the humanitarian crisis lies; and
(d) unilaterally determine against who, where and when military force will be used.
The chapter proposes that adherents to the absolutist approach “offer no alternative to the notion that intervention is always illegal”. This is an important point, and perhaps that is where the discussion ought to be. Is it possible for the Permanent Five to reach an agreement interpreting the requirement for concurrence in article 27(3) as not extending to any situations involving the commission of serious crimes, or for that matter in, any case involving the application of a peremptory norm of general international law (jus cogens)? If such an interpretative agreement were arrived at by the Permanent Five and endorsed by the general membership of the United Nations, it may well constitute subsequent agreement within the meaning of article 31(3) of the Vienna Convention which, particularly in light of the object and purpose of the UN Charter, might lend support to an authoritative interpretation precluding the use of the veto in such cases. A second possibility concerns the reliance on the General Assembly. The Uniting for Peace resolution of the General Assembly (A/Res/377(V)) provides the Assembly the mandate to act in cases where the UN Security Council fails to act because of the veto. Could the extent of General Assembly’s power be tested by applying it to the authorisation of military intervention for humanitarian purposes in response to vetoes exercised by the Permanent Five? Both of these possibilities – and there may be others – are not without their legal difficulties. The point is, however, that these approaches achieve the policy objective of permitting the international community to act in the face of humanitarian catastrophes while not falling into the trap of unilateralism implied by humanitarian intervention.
Now Harold is, of course, well aware of the dangers of establishing an unfettered right to intervene for humanitarian purposes. To this end the chapter calls for the determination of rules and standards which “when applied to agreed facts … would distinguish exceptional situations from pretextual justifications.” I see at least two problems. First, as we ought to have learnt from the Russian invasion of Ukraine, a case for exceptionalism can be made in many cases for “pretextual justifications.” This is particularly the case since international law does not know a system of compulsory judicial settlement where an objective determination of the facts can be made. Therefore, all a state needs to do is to claim exceptionalism, no matter how absurd the claim may be, to justify an intervention. There is more fundamental problem with Harold’s call for clearer standards to determine instances in which humanitarian intervention would be permissible under international law. The call seems to be aimed at the “US government, and its NATO allies”. But what about the rest of the world? Is international law not made by all states?
This last-mentioned point brings us back to the lex lata of jus ad bellum. The establishment of a new exception permitting the use of force for humanitarian purposes would need to be recognised in the practice of, not some states, but states in general and accepted as law. There has been some practice and the chapter refers to this practice. But in truth there has also been much objection. The Non-Aligned Movement, a grouping of 120 States, has consistently and categorically rejected humanitarian intervention. At its 17th Summit it “reiterated the rejection by the Movement of the so-called ‘right’ of humanitarian intervention, which has no basis either in the UN Charter or in international law.” Moreover, while the recent intervention in Syria by the United States, the United Kingdom and France in response to the use of chemical weapons attracted some (even wide) support, the consistency of the attacks with international law was questioned by many states. The verbatim records of the UN Security Council meeting of 14 April 2018 reveal that it was not just the likes of Russia, China and Syria that questioned the legality of the strikes. States like Kazakhstan, Kuwait, Equatorial Guinea, Bolivia and Peru questioned the legality of the strikes. Other states, like Ethiopia and Côte d’Ivoire, while not explicitly denouncing, as illegal, the airstrikes emphasised that it was role of the UN Security Council to authorise military intervention for humanitarian purposes. It is therefore hard to sustain the argument that there is an accepted practice, either for the purposes of the formation of customary international law or interpretation of the UN Charter, permitting unilateral intervention in the response to a humanitarian crisis.
I am inspired by Harold’s call that, for the United States – and I would say for the world at large – peace must be the norm and war should be the exception. Permitting unilateral military action, however righteous the cause may be, in my view risks the attainment of the noble ideal.
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