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Bemba, et al. Sentencing Decision: A Victory with a Bitter Taste

by Ekaterina Kopylova

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor.]

On March 22, 2017, Trial Chamber VII of the International Criminal Court handed down a sentencing decision (.pdf) in the case of The Prosecutor v. Bemba, et al. – a five-accused case of first impression before the Court of the offences against the administration of justice under article 70 of the Rome Statute. On October 19, 2016, the judges found all five accused guilty (.pdf) to a different extent of causing fourteen Defense witnesses to falsely testify in the ICC war crimes trial against a former DRC vice-president Jean-Pierre Bemba Gombo (the “Main Case”).

Judges found that the co-conspirators used fake testimony in order to have Bemba acquitted in the Main Case.. They consciously retained as witnesses people who had no knowledge of the facts relevant to Bemba’s trial and then scripted their evidence, including after they had been sworn in.

Narcisse Arido, Defense intermediary in the Main Case, who was convicted as perpetrator of corruptly influencing four Defense witnesses, received an 11-month prison sentence, fully subsumed in the time spent in pre-trial detention.

Fidèle Babala, Bemba’s long-time political companion and confidant, who was convicted of aiding and abetting the corrupt influence on two Defense witnesses, received a 6-months prison sentence. This sentence was fully-served by the time spent in pre-trial detention.

Jean-Jacques Mangenda, the Main Case case-manager was sentenced to 2 years of imprisonment for the corrupt influencing of fourteen Defense witnesses and presenting their false evidence to the Court, as well as for aiding the false testimony of two Defense witnesses and abetting the false testimony of nine Defense witnesses. The Chamber ordered the time spent in pre-trial detention deducted from his prison term and the enforcement of the remaining term postponed for a 3-year probationary period, as long as Mangenda refrains from committing another offence bearing a prison sentence.

Aimé Kilolo, Bemba’s lead counsel in the Main Case, was sentenced to 2 years and 6 months of imprisonment for the corrupt influencing of fourteen Defense witnesses and presenting their false evidence to the Court, as well as for inducing their false testimony. The Chamber ordered the time spent in pre-trial detention deducted from his prison term and the enforcement of the remaining term postponed for a 3-year probationary period, as long as Kilolo pays a EUR 30,000 fine within 3 months of the decision and refrains from committing another offence bearing a prison sentence.

Finally, Jean-Pierre Bemba, who was convicted as co-perpetrator of corruptly influencing 14 Defense witnesses and presenting their false evidence, and as solicitor of their falsely testifying was sentenced to a term of confinement of 12 months, to be served consecutively to the 18-years sentence imposed (.pdf)  in the Main Case, and to a EUR 300,000 fine, destined eventually to the Trust Fund for Victims.

These sentences are unprecedented in contempt cases before international criminal tribunals. At the same time, a scheme of this scale to defraud an international court – according to the trial judgment, the Defense in the Main Case knowingly put nearly half of their witnesses (fourteen out of thirty four) on the stand to lie – has never before been attempted or, at least, uncovered.

Notwithstanding, the sentencing decision does not reflect the seriousness of the situation. Although it is clearly repugnant to the basic standards of the legal profession to permit those convicted for having deliberately and persistently deceived the Court to remain a member of the profession and to reappear before the judicial institution, the two convicted lawyers – Kilolo and Mangenda – received no disciplinary sanction.

After having found Kilolo guilty of conduct that is ostensibly incompatible with the letter and the spirit of the Rome Statute, the Chamber took no action to prevent him from officiating as counsel before the institution towards which he showed disregard. Should the judges have doubted their power to order his striking off the list of counsel, they could have at least seized the Disciplinary Board with a complaint for misconduct, as per article 34 of the Code of Professional Conduct for Counsel (.pdf).

Even the language denouncing the conduct unworthy of an officer of the court is notably absent from the decision. Instead, in determining the appropriate sentence for Kilolo, the Chamber praised his efforts towards promoting legal profession in Belgium and DRC.

Kilolo and Mangenda are admitted to the Kinshasa Bar; as a member of the Brussels Bar, Kilolo can also practice law in Belgium. The ICC is part of these States’ legal system. At the very least, the Chamber could have ordered the judgment and sentencing decision notified to these bars for information to show that the Court is conscious that Kilolo’s and Mangenda’s conduct brings discredit upon the legal profession and defers to the bodies that this conduct discredits in the first place.

I think Alex Whiting is too harsh on the judges who, in his opinion, missed an opportunity to protect the Court’s authority when they imposed sentences that were disproportionately lenient to the extent and gravity of the scheme that they themselves readily acknowledge. The judges indisputably did miss this opportunity, but not (only) regarding the sentences. Their entire handling of the case from the very beginning is one big missed opportunity, starting with the decision to allow the Main Case and the Article 70 case proceed in parallel. Although the Main Case trial judgment did not rely on the fourteen at that time presumably false witnesses, there is no certainty that the co-conspirators machinery produced only fourteen. The Prosecution itself repeatedly underscored that its choice to charge only fourteen incidents was not necessarily coextensive with the real scope of the scheme. Justice for victims has a bitter taste…

The Bemba, et al. case had all the earmarks of a textbook contempt case. The perjurous witnesses repented; the accused’s conspiring was caught on tape. Moreover, the case involved a lot of absolutely fascinating and unsettled complex legal issues, such as defense counsel immunity, counsel-client privilege, to name only few of them. Yet, the case did not generate much interest among scholars and practitioners. This lack of interest may be in part due to the successive Chambers’ reluctance to issue audacious decisions – the only ones that catch attention.

States Are Failing Us in Syria — Not International Law

by Kevin Jon Heller

Last month, Just Security published a long and thoughtful post by Rebecca Ingber with the provocative title “International Law is Failing Us in Syria.” The international law she is talking about is the jus ad bellum — the illegality of unilateral humanitarian intervention (UHI) in particular. In her view, the failure of the international community to use force to end the humanitarian crisis in Syria indicates that an exception to Art. 2(4) for UHI is “the only means of preserving international law’s credibility in the use of force realm”:

The reality is that there will be times that states use force out of a sense of moral imperative and long-term strategic importance, and not out of a specific self-defense rationale. International law – and we international lawyers – can try to stand in the way, at times constraining morally imperative action, at times getting bulldozed; or we can look the other way and be sidelined, perhaps even tell policymakers and our clients to move forward without us. Or, we can engage and work with them to help craft the most sound, narrow, acceptable grounds possible, together with our allies. This view is not an acceptance that international law does not matter. It is an acceptance that international law – like so much public law – operates in a dynamic space that is inevitably interwoven with the reality of how states act and the widespread acceptance of its legitimacy.

I don’t want to focus here on the legal aspects of Ingber’s post, other than to note that when she claims “our allies… have become comfortable stretching the outer bounds of what international law has historically been thought to permit” with regard to the use of force, she links almost exclusively to UK practice. (The one exception is “unwilling or unable,” where she refers to the flawed Chachko/Deeks post that tries to categorise state positions on the doctrine.)

The legal questions are, of course, interesting. But what I find most problematic about Ingber’s post is its most basic assumption: namely, that the international community has failed to do more in Syria because UHI is not legal. That assumption, I think, is categorically false. If the King of International Law announced tomorrow that UHI was consistent with Art. 2(4) of the UN Charter, it would have no effect on the international response to the Syrian crisis. Literally none.

And that is because international law is not failing us in Syria. States are.

Or, more precisely, the self-interest of states is failing us. States have not intervened in Syria to end the humanitarian crisis because doing so would be immensely costly in terms of both blood and treasure, not because Art. 2(4) doesn’t permit UHI. There is no easy solution for states concerned about Syria, such as a Kosovo- or Libya-style airpower campaign. If they want to end the crisis, they will have to invade Syria and destroy the large and generally well-equipped Syrian army — a task that would make the invasion of Iraq look positively economical by comparison. And the sad truth is that the US is not going to spend billions of dollars and accept thousands of dead American soldiers to save a bunch of defenceless Syrian civilians. Nor is the UK. Or France. Or Germany. Or any other state.

Do intervention-minded scholars disagree? Does anyone really believe that there is a head of state out there — actual or even potential — who at this very moment is saying to herself “I could end the Syria crisis tomorrow if that damn Art. 2(4) didn’t prohibit unilateral humanitarian intervention”? The idea beggars belief. I am on record with my insistence that UHI is not only unlawful but criminal, but I’m not stupid. A successful UHI in Syria would result in a Nobel Peace Prize, not a confirmation of charges hearing.

What is most striking about Ingber’s post is that she barely attempts to defend her claim that international law is preventing the kind of UHI she believes is necessary in Syria. All she says is that “with respect to Syria alone, the fact that international law may have played a role in taking intervention off the table during the Obama presidency (and there are subtle indications that it did) should weigh heavily on us now.” I’ve read both of the documents to which she links, and the indications are subtle indeed. In the press conference, Obama openly acknowledges the real reason why the US did not intervene in Syria while he was President — it wasn’t worth the cost:

So with respect to Syria, what I have consistently done is taken the best course that I can to try to end the civil war while having also to take into account the long-term national security interests of the United States.

And throughout this process, based on hours of meetings, if you tallied it up, days or weeks of meetings where we went through every option in painful detail, with maps, and we had our military, and we had our aid agencies, and we had our diplomatic teams, and sometimes we’d bring in outsiders who were critics of ours — whenever we went through it, the challenge was that, short of putting large numbers of U.S. troops on the ground, uninvited, without any international law mandate, without sufficient support from Congress, at a time when we still had troops in Afghanistan and we still had troops in Iraq, and we had just gone through over a decade of war and spent trillions of dollars, and when the opposition on the ground was not cohesive enough to necessarily govern a country, and you had a military superpower in Russia prepared to do whatever it took to keeps its client-state involved, and you had a regional military power in Iran that saw their own vital strategic interests at stake and were willing to send in as many of their people or proxies to support the regime — that in that circumstance, unless we were all in and willing to take over Syria, we were going to have problems, and that everything else was tempting because we wanted to do something and it sounded like the right thing to do, but it was going to be impossible to do this on the cheap.

Obama takes the same position in the interview with Jeffrey Goldberg. Nothing in the interview suggests that the illegality of UHI had anything to do with Obama’s unwillingness to intervene more dramatically in Syria. On the contrary, as Goldberg explains by means of contrasting Obama with Samantha Power, he simply doesn’t believe in UHI:

Power is a partisan of the doctrine known as “responsibility to protect,” which holds that sovereignty should not be considered inviolate when a country is slaughtering its own citizens. She lobbied him to endorse this doctrine in the speech he delivered when he accepted the Nobel Peace Prize in 2009, but he declined. Obama generally does not believe a president should place American soldiers at great risk in order to prevent humanitarian disasters, unless those disasters pose a direct security threat to the United States.

Goldberg recounts many of the factors underlying Obama’s realist view of American military power. The key one, though, is pragmatic, not legal — the disaster of NATO’s supposedly humanitarian intervention in Libya:

But what sealed Obama’s fatalistic view was the failure of his administration’s intervention in Libya, in 2011. That intervention was meant to prevent the country’s then-dictator, Muammar Qaddafi, from slaughtering the people of Benghazi, as he was threatening to do. Obama did not want to join the fight; he was counseled by Joe Biden and his first-term secretary of defense Robert Gates, among others, to steer clear. But a strong faction within the national-security team—Secretary of State Hillary Clinton and Susan Rice, who was then the ambassador to the United Nations, along with Samantha Power, Ben Rhodes, and Antony Blinken, who was then Biden’s national-security adviser—lobbied hard to protect Benghazi, and prevailed. (Biden, who is acerbic about Clinton’s foreign-policy judgment, has said privately, “Hillary just wants to be Golda Meir.”) American bombs fell, the people of Benghazi were spared from what may or may not have been a massacre, and Qaddafi was captured and executed.

But Obama says today of the intervention, “It didn’t work.” The U.S., he believes, planned the Libya operation carefully—and yet the country is still a disaster.

The Libya fiasco is particularly important, because it is tempting to believe that collective UHI in Syria might be more successful than individual UHI. It probably would — except that the benefits of collective action would still not outweigh the reluctance of powerful states to spend blood and treasure for merely humanitarian concerns. Libya is a case in point: NATO countries were willing to drop bombs on the Libyan army, but they would never have committed soldiers to a ground invasion. They are not willing to put them in Libya now, when the risks are minimal. So even if Ingber is right that states have shown “widespread support for military action in response to humanitarian crises” (and I don’t think she is), she is still missing the fundamental point: they support military action by others, not by them. It’s not an accident, for example, that interventionists like John McCain and Lindsey Graham expect Arab soldiers to do the fighting for them in Syria.

And, of course, Syria is not Libya. Or even Kosovo. On the contrary: unlike in those situations, UHI in Syria, whether individual or collective, risks a shooting war with Russia, the second most powerful military in the world, and perhaps with Iran. That unpleasant possibility provides a far more effective deterrent to military action against Assad than the text of Art. 2(4) ever will.

What, then, is to be gained by “divining” or “crafting” an exception to Art. 2(4) for UHI, as Ingber suggests? The legality of UHI would not lead to humanitarian interventions in Syria or in any other comparable situation. But it would give powerful states like the US yet another pretext for using force to promote their national interests. Why invoke an inherently selfish rationale such as self-defence as a pretext for aggression when you could invoke humanitarian intervention instead? Who is opposed to helping innocent civilians? And if we take your land and oil and other resources along the way, well, we have to pay for our selflessness somehow, don’t we?

Legalising UHI, in short, will not lead to more humanitarian uses of force. It will lead to more aggression. And that is because international law is not the problem in Syria and elsewhere. States are.

Charlie Dunlap’s Defence of Israel’s Attacks on Hezbollah in Syria

by Kevin Jon Heller

Last week, Asaf Lubin offered a compelling post at Just Security wondering why Israel’s repeated attacks on Hezbollah arms shipments in Syria have not received the same kind of jus ad bellum scrutiny as the US’s recent attack on a Syrian airfield. Today, Charles Dunlap provides his answer on the same blog: the Israeli attacks are clearly legal, so why would anyone scrutinise them? Here are the relevant paragraphs:

[I]t appears to me that the Israeli strike sought to destroy weapons in transit before Hezbollah can burrow them into densely-populated areas.  Of course, some JAB scholar might argue about the imminence of the threat as justifying anticipatory self-defense, but if one carefully reads the Obama administration’s “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations” on that point (p. 9), it would be hard not to conclude that the strike would fit the criteria.

It is especially telling that the Obama administration concluded – correctly in my view – that it is “now increasingly recognized by the international community, the traditional conception of what constitutes an ‘imminent’ attack must be understood in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”

Along that line, this past January UK Attorney General Jeremy Wright gave a speech which echoed much of the Obama Administration’s approach.  Wright does caution that “remote threats or threats that have not yet materialized” would not fit the necessary criteria, but I don’t think in the case of Hezbollah those exclusions would apply.  Additionally, Wright endorsed – as does the Obama framework – Sir Daniel Bethlehem’s principles laid out in 2012 that included assessing whether there will be another “clear opportunity to act” defensively.

In other words, the analysis of “imminence” in this instance could properly take into account Hezbollah’s history of hostile actions against Israel, as well as its adaption of a “technique” which is “designed to exacerbate civilian risk.”  A strike on the Damascus warehouses makes sense as it could well be the last “clear opportunity to act” before the weapons could be embedded into civilian areas in easy range of Israel where they could be countered only at great risk to noncombatants.

Thus, the lack of JAB discussion about the reported Israeli bombings in Syria may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.  We can’t ignore the fact that few nations other than Russia or Syria evinced much concern about the legality of the strike.

I don’t find Charlie’s argument convincing. The first problem concerns his claim that the lack of attention to Israel’s attacks “may simply reflect that the bulk of the international community finds that the use of force under these circumstances is an acceptable act in anticipatory self-defense.” He cites only two states in defence of the idea that the “international community” accepts this type of anticipatory self-defence: the US and the UK. Needless to say, two Global North states known for their aggressive interpretation of the jus ad bellum do not an “international community” make. Moreover, Charlie fails to acknowledge the repeated denunciations of anticipatory self-defence by the Non-Aligned Movement (NAM), which represents 120 states. 120>2.

To be fair, Charlie seemingly tries to address this problem by implying that the failure of states (other than Russia and Syria) to specifically condemn the Israeli attacks indicates that they accept the US and UK understanding of imminence. But that clearly isn’t the case. As he acknowledges, Israel itself has not claimed that the attacks are legitimate anticipatory self-defence. Nor has any other state on Israel’s behalf — the US and UK included. The “silence” of the international community can thus hardly be interpreted as acquiescence — particularly in light of NAM’s repeated denunciation of anticipatory self-defence. States are not required to respond to scholarly interpretations of the use of force. When Israel claims its actions are legal because they represent anticipatory self-defence and NAM remains silent, we’ll talk.

It’s also worth noting that Charlie’s account of Israel’s attacks in Syria does not even bring them within the ambit of anticipatory self-defence — or at least not easily. According to him, “the Israeli strike sought to destroy weapons in transit before Hezbollah [could] burrow them into densely-populated areas.” Charlie finds such “burrowing” problematic — justifiably! — because it makes it more difficult for Israel to destroy the weapons caches without causing disproportionate civilian harm. But that is a jus in bello problem, not a jus ad bellum one. The fact that Hezbollah weapons are in a difficult to attack location does not mean that those weapons will be immediately used against Israel. And that is true even in light of Hezbollah’s “history of hostile actions,” which hardly indicates that Hezbollah attacks Israel whenever it has the material means to do so. The mere presence of the weapons in a location near to Israel thus seems to represent precisely the kind of “remote threat[] or threat[] that [has] not yet materialized” that Jeremy Wright, the UK Attorney General whom Charlie cites in defence of his position, says does not give rise to the right of self-defence.

I will say, though, that Charlie’s explanation of the Israeli attacks raises an interesting issue concerning the relationship between the  jus in bello and the jus ad bellum. We are accustomed to the idea that the two legal regimes are independent, and it is beyond doubt that failing to comply with the jus ad bellum does not affect the equal application of the jus in bello. But the converse is not true, as the ICJ specifically affirmed in the Nuclear Weapons case (para. 42):

[A] use of force that is proportionate under the law of self- defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law.

The jus ad bellum requirement that self-defence comply with IHL does, in fact, suggest that the imminence of an attack should be assessed in light of the victim state’s ability to defend itself in a way that complies with IHL. So I don’t think we can reject the “last clear opportunity to act” understanding of imminence out of hand. On the contrary, if an attack will only become imminent under the traditional conception at a time when the victim state cannot defend itself in an IHL-compliant way, I think the victim state should be entitled to defend itself at a temporally earlier moment, when IHL compliance is still possible.

Even that “relaxed” idea of imminence, however, presupposes that the defended-against attack is more than merely hypothetical. So it’s difficult to see how Israel’s strikes on Hezbollah’s arms shipments could qualify as legitimate acts of self-defence. On the contrary: they are precisely the kind of anticipatory self-defence that international law prohibits.

My UN Presentation on the Aggression Amendments

by Kevin Jon Heller

I had the great honour last week of giving a presentation to ICC member-states about Art. 15bis and Art. 15ter of the aggression amendments — the conditions for the exercise of jurisdiction. The presentation was sponsored by the Assembly of States Parties (ASP) and organised by Austria, part of a series of presentations designed to prepare delegations to participate in the December meeting of the ASP, where the amendments are likely to be adopted (again).

I had a great time at the UN — the first time I had ever set foot in the building! The presentation itself went very well, but it was the subsequent discussion that was the standout. I found the delegations impressively knowledgeable about the aggression amendments, although it’s clear that they remain deeply divided over a number of critical issues concerning their interpretation. My presentation focused on what is perhaps the most controversial issue of all: which acts of aggression will be within the ICC’s jurisdiction once the crime of aggression is activated. Many delegations believe that member-states have to formally opt-out of the aggression amendments to be completely insulated from the Court’s jurisdiction, while others insist that states need only decline to accept the amendments. I did not take a position on that issue in my presentation — although I did during the discussion afterward. Instead, I simply laid out the stakes in the debate as clearly as possible, following up on two blog posts (here and here) I wrote on the issue a few years ago.

I am posting all of my UN materials here, in case readers are interested. They include the text of my presentation, the accompanying Powerpoint slides, and two tables that lay out the jurisdictional consequences of the so-called “negative” and “positive” understandings of Art. 121(5) of the Rome Statute, the key provision in the dispute.

Thoughts most welcome!

Taking Complementarity Seriously: Why is the International Criminal Court Not Investigating Government Crimes in Congo?

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights. He is currently on exchange at Harvard Law School.]

The International Criminal Court (ICC) faces many problems. Some of them are well known, for instance its inadequate budget, accusations of anti-African bias, and withdrawals from the Rome Statute. But there is a far more insidious cancer that is eating away at the Court’s legitimacy: complementarity. As with so many other developments at the ICC, it is the situation in the Democratic Republic of Congo (DRC) that foreshadows some of the Court’s long-term dilemmas, many of which received too little attention in Rome. This post explores how the Prosecutor’s confused approach to complementarity undermines the Court’s mission in the DRC and, potentially, in other situation countries going forward.

The ICC and Congo

To hear Fatou Bensouda tell it, the ICC’s intervention in the DRC is something of a success story. The Court’s track record there seems positive, especially when contrasted with other ICC situations: Thomas Lubanga and Germain Katanga have been tried and convicted, and Bosco Ntaganda is currently on trial. Another Congolese, Jean-Pierre Bemba, is the Court’s only high-profile convict to date, even if his conviction formally stems from the situation in the Central African Republic. Thus, with the possible exception of Mathieu Ngudjolo’s acquittal in 2012, Congo is usually portrayed as a beacon of hope for an otherwise beleaguered institution struggling to gain legitimacy in Africa. But is this narrative of success compelling?

A cloud of suspicion has hung over the ICC’s activities in the DRC ever since Joseph Kabila ‘invited’ the first Prosecutor, Luis Moreno Ocampo, to launch an investigation in 2004. Kabila’s ‘self-referral’ succeeded beyond his wildest dreams: lacking a strategy for a country the size of Western Europe, the Office of the Prosecutor (OTP) initiated sporadic prosecutions which targeted only Kabila’s rivals, including Bemba who had almost defeated him in the 2006 presidential election. In stark contrast, the Congolese government’s crimes received no scrutiny in The Hague.

Thirteen years after Kabila’s invitation, the ICC’s neglect of government crimes is coming home to roost. The DRC is in the news for all the wrong reasons. Kabila’s refusal to relinquish power, despite being constitutionally required to do so, has stoked mass violence on several occasions, leaving dozens dead in the streets of Kinshasa and other cities. After a series of damning reports (see here and here), last month the UN High Commissioner for Human Rights formally requested a commission of inquiry to examine ‘recurrent reports of grave violations’. Most importantly from the ICC’s perspective, these reports show beyond a shadow of a doubt that the violence is part of a governmental strategy to keep Kabila in power at all costs. The pattern is familiar: each time the political opposition organizes protests, state agents – police and military – resort to deadly force. Yet despite thousands of cumulative deaths, reports of dozens of mass graves, and even graphic videos of summary executions by government troops, the ICC has been virtually absent from the debate about accountability.

Why, despite such overwhelming evidence of state criminality, has the ICC not investigated Kabila and his supporters? (more…)

The Legality Surrounding the US Strikes in Syria

by Nancy Simons

[Nancy Simons is a Belgian lawyer and serves on the International Bar Association’s Drones Task Force. Her professional background lies in international law generally. She has worked at a number of international non-governmental organisations and the International Criminal Tribunal for the former Yugoslavia.]

It has been almost two weeks since the United States (US) initiated several missile strikes on a Syrian airfield. From the US perspective, the justification for this use of force was that it was in response to the use of chemical weapons allegedly by the Assad regime. The use of these prohibited weapons on the Syrian population resulted in the death of dozens of civilians and left many more injured. There has been much discussion surrounding this attack (see, for example, here, here, here and here). There are also many different legal and political factors attached to this situation, some of which have yet to come to fruition. These include, inter alia, the absence of US Congress approval, the outcome of the investigation into the use of chemical weapons, and how to justify and reconcile the US strikes with the United Nations (UN) Charter and the general prohibition on the use of force under international law. This post will focus on this last matter. Before delving into some of the key legal issues, it should be noted that the US strikes contrast with the position previously adopted by the US, whereby it directed its military force towards the fight against the so-called Islamic State of Iraq and the Levant (ISIL) under its umbrella of ‘the war on terror’ on the basis of self-defence, as opposed to directing such attacks toward the Syrian regime. The question here is what is the legal basis for these attacks against a sovereign state? The US strikes have been supported by numerous states, such as the United Kingdom (UK), Australia, Israel, and Turkey. However, the US has yet to come up with a clear legal foundation justifying this attack.

Legal justifications?

International law, through the lens of the UN Charter, only allows for two exceptions to the prohibition on the use of force, as expressed in Article 2(4) of the United Nations Charter. The first exception is the system of collective security under Chapter VII of the Charter, whereby the UN Security Council (UNSC), after having made a determination of the existence of a threat to international peace and security, authorises states to take military action. However, although several UNSC resolutions condemn the use of chemical weapons (see here, here and here), the UNSC has not used any language in these resolutions that could legally justify the US strikes. UNSC resolution 2209 (2015), para.7 decides that in the event of further violations to the prohibition of the use of force, the UNSC would be ready to undertake further actions under Chapter VII, thus potentially opening the door to the use of force. A further resolution is thus necessary to authorise the use of force under chapter VII, which has not been adopted so far.

The second exception is self-defence, as materialised in Article 51 of the Charter, which provides that states have the right to use military force in response to an armed attack. With respect to the current situation, the US Strikes targeted Syrian territory with no impact on US territory or sovereignty, thereby excluding self-defence as a possible justification.

It is possible (but unlikely in my view) that a third exception exists, which has been argued stems from customary international law: humanitarian intervention, which would allow States to intervene in the event of ‘gross and systematic violations of human rights’ as a last resort. The Charter only allows for two exceptions (as discussed above), and searching for an exception outside the Charter is a challenging path considering the importance of the prohibition enshrined in Article 2(4). However, as States are reluctant to use this exception as a justification for their military actions, it is heretofore difficult to argue that the principle is a legal one. As a matter of law, humanitarian intervention is not part of customary international, but depending on the reactions of States to situations such as the US strikes against Syria, this principle could one day become an exception to article 2(4). It is true that the use of chemical weapons certainly qualifies as a gross violation of human rights, which arguably triggers the right to invoke humanitarian intervention in response to such an act, assuming of course such a principle is a rule of international law. However, unless part of a broader strategy aimed at protecting the civilians from further atrocities, it is difficult to understand how the attack of 7 April 2017 satisfies such a purpose, rather than just being a punitive and deterrent act in reaction to the use of chemical weapons. The statement made by Trump (‘It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons’), further highlights that humanitarian intervention would be a questionable basis for the use of force exercised in this case. On the other hand, the United States has also shown its readiness to use force in the event of further attacks on civilians, not just through chemical weapons, but also regarding barrel bombs, perhaps denoting humanitarian concern.

One must also acknowledge that states have increasingly construed the exceptions to the prohibition on the use of force in innovative ways, such as the self-defence against non-state actors – a position adopted by many states in the fight against ISIL. However, there is no similar argument to be made in this case. This begs the question as to whether some states consider the prohibition on the use of chemical weapons, which now forms part of the rules of customary international law, to be so imperative that it warrants a breach of the prohibition on the use of force, which is a cornerstone of the UN Charter. The fact that the use of chemical weapons is prohibited does not provide a legal avenue for states to resort to force as a basis for intervention, unless an exception was established, which is currently not the case.

The only conclusion from an international law standpoint is that the missile attack that occurred on the Syrian airfield is illegal. Does this mean that it is acceptable (not legal) to act outside the framework of the UN Charter when deemed necessary or when pursuing a ‘legitimate aim’? States’ reactions supporting the attack are formulated in non-legal terms, which denote a political understanding for this course of action chosen by the US in the face of the crimes committed, rather than legal approval. It is not the first time that the prohibition on the use of force has been violated and not sanctioned by the international community. However, this should not necessarily mean that the legitimacy of the UN Charter is diminished. This case does perhaps highlight the limits of international law and its inexorable tie to international relations, a clear reason why the UNSC is blocked and thus unable to take legal action, as the deadlock stems from the political nature of this organ and the UN system as a whole. The risk that such action creates is that although the attack may be seen as morally or ethically legitimate, acting outside the purview of the law means that legal requirements are not to be respected. This dangerously opens the door to using force under possible false pretences. Of course, the same false pretences could be pursued within the boundaries of the legal framework, but at least the law acts as a barrier in limiting the recourse to force in such situations.

Potential legal consequences?

Despite the current absence of sanction (and quite the opposite, the support of the attack), the strike may not come without legal consequences. The first consequence is hypothetical and unlikely to occur at this time. Having suffered an armed attack, Syria is entitled to exercise its inherent right to self-defence (along with allies if asks for help). This hypothetical would be an unlikely (but possible) outcome for two key reasons. Firstly, the political picture with the powers at force is not in favour of such a response. Secondly, the lapse of time between the attack and the response along with the limited impact of the attack would prove difficult to ascertain that the actions taken pursuant to the right of self-defence are necessary and proportionate. The second potential consequence relates to the law applicable to the conflict that is affecting Syria. Until today, there was a conflict between ISIL and the Assad regime together with a conflict between the US (and the international coalition) and ISIL, which both, it is generally accepted, qualify as non-international armed conflicts (NIAC). This first attack from the US could change this picture. The ICRC has not hesitated to advance that there is now an international armed conflict (IAC) between the US and Syria, meaning that a different and more extensive set of rules apply. Depending on the position adopted, this could lead to either the internationalization of the conflict in Syria, meaning that there would be an IAC between all the actors (including ISIL) or that there would be a situation of mixed conflicts, IAC between the US and Syria and a NIAC for all the other actors, which in turn would lead to different applicable rules.  It remains to be seen how this will materialize.

Why Unilateral Humanitarian Intervention Is Illegal and Potentially Criminal

by Kevin Jon Heller

I read Jennifer Trahan’s post yesterday with great interest — but not surprisingly I disagree with it. Before I get to my disagreements, though, I think it’s bizarre that we are all debating the legality of unilateral humanitarian intervention in the context of the recent US missile attack on Syria. It simply beggars belief to think that the attack was in any way motivated by humanitarian concerns. Chemical weapons, which have killed perhaps 2,000 civilians, are not the problem in Syria; conventional weapons, which have killed hundreds of thousands, are the real threat. And the US has done absolutely nothing to protect Syrians from conventional weapons — it has simply funnelled even more into the country to support various rebel groups (including some that are allied with al-Qaeda) in their struggle against Assad. The US cares about protecting its own interests in Syria, such as preventing chemical weapons from being used against Americans. (The real message of the completely ineffectual attack.) It does not care about the lives of ordinary Syrians, as the ever mounting death-toll indicates.

But let’s put aside the context of the missile attack and focus on Trahan’s legal claims. The first is that unilateral humanitarian intervention (UHI) — the qualifier, of course, is critical — can be legal in the right circumstances. The post, however, doesn’t even come close to establishing that claim. Just consider what Trahan cites in defence of it:

[1] NATO’s intervention in Kosovo, in which “all NATO members supported the intervention designed to stave off ethnic cleansing.” Trahan openly acknowledges that “many did not defend it as ‘humanitarian intervention’ per se, except Belgium” — but that gives away the ballgame. If the 26 other NATO states did not invoke UHI, the attack does not help establish UHI’s legality. As the ICJ pointed out in the Nicaragua case (para. 207), not even the Court itself has the “authority to ascribe to States legal views which they do not themselves advance.” So it doesn’t matter whether Trahan and other scholars would like to describe Kosovo as an example of UHI. All that matters is that NATO states could have invoked UHI but chose not to.

It is also telling that Trahan fails to point out that the Kosovo intervention met with significant international criticism. Here are Vaughan Lowe and Antonios Tzanakopoulos in the Max Planck Encyclopedia:

33  The response of other, non-NATO, States to arguments that there was a legal basis for the Kosovo bombing campaign and for a right of humanitarian intervention was overwhelmingly negative. The Non-Aligned Movement (NAM), numbering well over half of the Member States of the UN, unequivocally condemned the use of force against the (then) FRY, as did many other States, some of which are nuclear powers. In these circumstances, no right of unilateral forcible humanitarian intervention can be said to have emerged as a rule of customary international law.

[2] UK and US no-fly zones in Iraq. Once again opinio juris is lacking: the coalition initially provided no legal justification for the no-fly zones, and the US later justified them as self-defence (against threats to coalition aircraft, a wonderfully circular argument).

[3] ECOWAS’s interventions in Liberia in 1990 and Sierra Leone in 1998. Same problem: as Adam Roberts has pointed out, ECOWAS never invoked UHI to justify its actions. It relied instead on provisions in its own founding treaty.

[4] The UK’s endorsement of UHI in Syria, particularly in the context of the 2013 sarin gas attack that killed hundreds if not thousands. Unlike the other examples, this endorsement does, in fact, contribute opinio juris in favour of UHI.

So, there we have it: one state that explicitly and regularly endorses a right of UHI.  And against that, we have the unequivocal rejection of UHI by the 120 states that are part of the Non-Aligned Movement and the 134 states that are part of the Group of 77, which includes major powers like China, India, and South Africa. (The two groups obviously overlap.) How any scholar could conclude that customary international law nevertheless recognises a right of UHI, however limited, is simply beyond me.

For similar reasons, I also reject Trahan’s confident claim that UHI could never be criminal. Here is what she says:

Humanitarian intervention, narrowly construed, then clearly also would not constitute the crime of aggression, which is poised to activate this December 2017 before the International Criminal Court. (Anything in a legal “grey area” is excluded from that definition—and, at minimum, humanitarian intervention (sometimes supported and sometimes invoked) is within that legal grey area. The U.S., a non-State Party to the ICC’s Rome Statute, would be exempt from the crime’s jurisdictional reach, even if it does activate.)

I disagree. To begin with, during the Kampala Review Conference in 2010, states soundly rejected the US’s attempt to specifically exclude UHI from the crime of aggression. Here is the text of the US’s failed Understanding:

It is understood that, for purposes of the Statute, an act cannot be considered to be a manifest violation of the United Nations Charter unless it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith, and thus an act undertaken in connection with an effort to prevent the commission of any of the crimes contained in Articles 6, 7 or 8 of the Statute would not constitute an act of aggression.

More importantly, the fact that scholars insist UHI can be legal does not make the legality of UHI fall into a “grey area.” On the contrary, it is difficult to imagine any issue that is more black and white given state practice. Article 2(4) of the UN Charter is clear: force is legal only when authorised by the Security Council or in self-defence. UHI does not involve the former by its very definition, and there is no argument de lege lata that UHI can be justified as a form of self-defence, because it does not involve an armed attack on the intervening state. Adil Haque made that point in response to Jens’s recent post, and here are Lowe and Tzanakopoulos again:

23  Humanitarian intervention in order to alleviate the suffering of a local population cannot, without more, be justified as self-defence. Self-defence under Art. 51 UN Charter requires that an armed attack occur against a State. In most cases, widespread violations of human rights will not reach the gravity threshold of an armed attack. Even if the oppression does reach the threshold of an armed attack, however, there will be no armed attack against a State, but at most an armed attack against the population of the State by or with the support or inaction of State authorities. The right to self-defence under international law vests in States and not in sub-State entities such as the local population. Moreover, the oppression will, ex hypothesi, not emanate from another State, but will be by the government upon its own people.

The illegality of UHI under Art. 2(4) is, of course, not set in stone. As Lowe and Tzanakopoulos rightly note, UHI could become legal through subsequent state practice that results in a new interpretation of the provision or (possibly) through the emergence of a supervening customary rule. But that has clearly not happened, given G77 and NAM’s ongoing and unwavering opposition to UHI.

It is unlikely, of course, that the ICC will ever prosecute a government official who is responsible for preparing, planning, initiating, or executing a UHI — and not simply because of the new crime of aggression’s crimped jurisdictional regime. But that does not mean UHI does not manifestly violate the UN Charter. It most certainly does.

Why It Doesn’t Seem to Matter that the Syria Strikes Violated International Law

by Julian Ku

Over at Vox, I have published an essay fleshing out the thoughts I first published here on the legality of the recent U.S. cruise missile attacks on Syria and the international reaction to it.

President Donald Trump’s surprising decision to launch a cruise missile strike on Syria was sharply criticized by Russia as a “flagrant violation of international law.” While it might be tempting to dismiss this claim as mere Putinesque propaganda, on this question at least, Russia is almost certainly correct. In the view of most international lawyers, the US strike on Syria is a crystal-clear violation of the UN Charter. So why doesn’t anybody, except Russia and some international lawyers, seem to care?

The uncomfortable answer seems to be that, at least with respect to this question — can a state use military force against a regime that uses banned weaponry against citizens? — international law simply doesn’t matter very much. And this suits the United States and the Trump administration just fine.

Please read the whole thing. I am especially pleased with this line, drafted with the assistance of one of the very smart editors they have over there:

So the UN will not become an irrelevant bystander, but neither will it operate as the final authority on the US decision to use force. This may not be ideal, but one important lesson of the reaction to the Syria strikes is that we should all start getting used to this reduced role for the UN, and stop the unrealistic fetishization of Article 2(4).

In Defense of Humanitarian Intervention

by Jennifer Trahan

[Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.]

Postings on Opinio Juris seem fairly squarely against the legality of the U.S. missile strike last week into Syria. Let me join Jens David Ohlin (blogging on Opinio Juris) and Harold Koh (blogging on Just Security) in making the contrary case.

When NATO intervened in Kosovo in 1999, member states did not have UN Security Council approval; yet all NATO members supported the intervention designed to stave off ethnic cleansing. True, many did not defend it as “humanitarian intervention” per se, except Belgium, which made the case for the legality of humanitarian interventions in briefing to the International Court of Justice. Still, all NATO members endorsed the military action.

Humanitarian intervention has also been cited as the legal justification for UK and US no fly zones in Iraq, and to justify ECOWAS’s interventions in Liberia in 1990 and Sierra Leone in 1998, prior to UN Security Council approval, which was later forthcoming.

And, after the Assad regime used sarin gas in August 2013, resulting in an estimated 1,400 victims, the UK was prepared to act under the doctrine of humanitarian intervention, arguing that the 3 criteria for intervention were met:

  • There is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;
  • it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and
  • the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (ie the minimum necessary to achieve that end and for no other purpose).

So, despite many who would argue there is no such thing as “humanitarian intervention” or it is dead subsequent to the development of the responsibility to protect (R2P), humanitarian intervention keeps being invoked.

Why? Because there are times that UN Security Council dysfunctionality in voting, serves to shield the commission of atrocity crimes. China shielded President Bashir of Sudan while his armed forces coordinated with the Janjaweed militias to commit genocide in Darfur, and Russia has been shielding the Assad regime while it uses sarin and chlorine gas, not to mention other indiscriminate weapons and targeting of civilians. (We should not be outraged only at the regime’s chemical weapons use.)

Therefore, when R2P tells us that “pillar 3” forceful intervention requires UN Security Council approval, as it does, it is failing to do what it set out to achieve—to protect a people in peril from grave atrocities.

Remember, in 1999, Kofi Annan asked the General Assembly:

If, in those dark days and hours leading up to the [Rwanda] genocide, a coalition of States had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorization, should such a collation have stood aside and allowed the horror to unfold?

The International Commission on Intervention and State Sovereignty gave a helpful response in 2001, not only setting criteria for intervention, but also, noting that if the UN Security Council failed to act, one should not be surprised if others did. The Secretary-General’s 2004 High-Level Panel on Threats, Challenges and Change then went on and also set similar criteria for intervention (as had the Independent International Commission in Kosovo (the “Goldstone Commission” before it).

So for those who claim we don’t know what humanitarian intervention is, these sources and the criteria they articulate suggest that we have a pretty good understanding of it. If we need more clarity as to its parameters to ensure the doctrine is not susceptible to abuse, then, rather than rejecting the doctrine entirely, it should be up to us international lawyers to figure them out.

R2P then backs off its promising start and ultimately concludes that UN Security Council approval is required for any forceful intervention. So, basically in answer to Kofi Annan’s question what to do when there is no UN Security Council approval, it answers: get UN Security Council approval.   This cannot suffice.

Borne out of frustration with this dilemma, the French adopted their initiative “not to veto” in the face of mass atrocity crimes, and 112 states have joined the Accountability, Consistency and Transparency (ACT) Code of Conduct to act in the face of mass atrocity crimes. These were both extremely useful initiatives.

Yet, three of the permanent members of the UN Security Council will agree to neither initiative—Russia, China, and the U.S. I do not lump these countries fully in the same boat, because the US often makes clear the importance of deterring atrocity crimes, while not formally joining the initiatives, which it should.

The day that these hold-out P3’s join the French or ACT initiative, we no longer need to talk about “humanitarian interventions,” because the UN Security Council will be able to function as it was designed under the UN Charter, to both maintain international peace and security and to protect human rights (one of the purposes of the UN).

Another fallacy is that we read the veto as if absolutely anything can be vetoed, when the veto sits within the context of the UN Charter, which imposes obligations; we should explore further what is a legitimate versus an illegitimate veto that should be treated as null and void. The General Assembly could request an advisory opinion from the ICJ on this.

In the meanwhile, the UK has the right approach (as well as the Danish), that we have to leave a small carve out for the legality of humanitarian intervention, when narrowly construed. (The US has previously sometimes invoked what sounds like humanitarian intervention, while not fully formally endorsing the doctrine.)

Humanitarian intervention, narrowly construed, then clearly also would not constitute the crime of aggression, which is poised to activate this December 2017 before the International Criminal Court. (Anything in a legal “grey area” is excluded from that definition—and, at minimum, humanitarian intervention (sometimes supported and sometimes invoked) is within that legal grey area. The U.S., a non-State Party to the ICC’s Rome Statute, would be exempt from the crime’s jurisdictional reach, even if it does activate.)

It is unclear if the US’s missile strike was intended to fall within the doctrine of humanitarian interventions, as we don’t have a statement of the legal basis, which the U.S. should make clear, as well as what if any follow up plan it has. Harold Koh is right when he writes: “Going forward, all of this will require not just bombs, but diplomacy; not just tweets, but thoughtful diplomatic proposals; not just ‘America First,’ but genuine American multilateral leadership.” Just Security, 4/7/17.

One approach would be appointing a special envoy to pursue diplomatic negotiations, including partition of the country, similar to the partitioning of Bosnia under the Dayton Peace Accords. Republika Srpska iwithin Bosnia was given entity status, yet its military and political leaders were later tried by the Yugoslav Tribunal for atrocity crimes. Clearly, diplomacy and war crimes trials are not mutually exclusive.

President Obama’s “red line” in response to which the US and international community did nothing was shameful. Yet, an argument can be made that at that point in time there was an alternative — to require Assad to relinquish his chemical weapons stocks. And, indeed, some, but clearly not all, of those stocks were destroyed pursuant to the legal regime established. So, by now, what could have been a viable alternative has been pursued, and Assad failed to adhere to it.

It is important to also note that humanitarian intervention can take many forms, and need not mean full-scale intervention, which should always be the last resort. Other forms would include limited no fly zones, protection of civilians in refugee camps, and establishing humanitarian corridors.

Furthermore, unilateral intervention is always the least best alternative. Certainly, endorsement by a regional organization (such as NATO or ECOWAS – as was done in the past), or even multilateral action not endorsed by a regional organization would be preferable. And, if there must be unilateral intervention, it should occur under close consultation with key US allies.

It is far too easy to insist on legal perfectionism and a strict readings of the UN Charter as we sit comfortably typing at our computers. We should not utterly shut the door on a doctrine designed to prevent atrocity crimes when all other means are failing, as they have been in Syria. I agree with Jens David Ohlin that we are “too focused on state sovereignty to the exclusion of any other legal categories” including “the right to be free from genocide and crimes against humanity.” The principles of humanity that have been a guiding principle since the time of Hugo Grotius, and the 1899 Martens clause, should still guide us today to seek a more responsible legal approach, one that does not prioritize sovereignty over humanity.

An Important Absence in the Syria War Crimes Accountability Act of 2017

by Kevin Jon Heller

On Monday, my friend Beth van Schaack posted an excellent analysis at Just Security of the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” Beth summarises the most important aspects of the bill; in this post I want to focus on Section 7, which authorises US technical assistance to certain non-US accountability mechanisms. The most important paragraph in Section 7 is this one (emphasis mine):

(a) IN GENERAL.—The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and violent extremist groups in Syria beginning in March 2011—

(1) identify suspected perpetrators of war crimes, crimes against humanity, and genocide; (2) collect, document, and protect evidence of crimes and preserve the chain of custody for such evidence; (3) conduct criminal investigations; (4) build Syria’s investigative and judicial capacities and support prosecutions in the domestic courts of Syria, provided that President Bashar al Assad is no longer in power; (5) support investigations by third-party states, as appropriate; or (6) protect witnesses that may be helpful to prosecutions or other transitional justice mechanisms.

There a very interesting — and potentially very important — absence in Section 7(a). As the bolded text indicates, the paragraph only authorises the US to provide technical assistance to entities that are investigating international crimes committed by pro-Assad forces and “violent extremist groups.” Note what is missing from that construction: Syrian rebel groups. The bill does not permit the US to support any entity investigating war crimes, crimes against humanity, and acts of genocide committed by rebels.

Lest anyone think I am reading Section 7(a) too narrowly, consider the wording of Section 3(1), which summarises acts that the US “strongly condemns” (emphasis mine):

(A) the ongoing violence, use of chemical weapons, targeting of civilian populations with barrel, incendiary, and cluster bombs and SCUD missiles, and systematic gross human rights violations carried out by the Government of Syria and pro-government forces under the direction of President Bashar al-Assad; and (B) all abuses committed by violent extremist groups and other combatants involved in the civil war in Syria.

It is difficult to see who “other combatants involved in the civil war in Syria” might be if they are not rebels. Indeed, Section 5(a), which requires the Secretary of State to submit a report on international crimes to Congress, explicitly distinguishes between “violent extremist groups” and rebel groups (emphasis mine):

(b) ELEMENTS.—The reports required under subsection (a) shall include— (1) a description of alleged war crimes, crimes against humanity, and genocide perpetrated during the civil war in Syria, including— (A) incidents that may constitute war crimes, crimes against humanity, or genocide committed by the regime of President Bashar al-Assad and all forces fighting on its behalf; (B) incidents that may constitute war crimes, crimes against humanity, or genocide committed by violent extremist groups, anti-government forces, and any other combatants in the conflict.

In light of Section 5(a), it is clear that Section 7(a) does not authorise the US to support an entity that is investigating international crimes committed by rebels.

That said, the bill is unclear in one important respect: whether the US can support an entity that investigates international crimes committed by both pro-Assad forces and rebel groups. On a literal reading of Section 7(a), the answer would seem to be no. But the sponsors of the bill might disagree. Journalists?

I agree with Beth that the Syria War Crimes Accountability Act of 2017 is an important step forward for accountability in Syria. Unfortunately, it also reflects the US’s tendency to take international crimes committed by rebel groups much less seriously than those committed by Assad’s forces and by ISIS.

War by Any Other Name? It’s Still War

by Gabor Rona and Jocelyn Getgen Kestenbaum

[Gabor Rona  is a Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School. Jocelyn Getgen Kestenbaum is an Assistant Clinical Professor of Law and Director of the Cardozo Law Institute in Holocaust and Human Rights, Cardozo School of Law.]

“It’s not war. We haven’t gone to war against Syria.”

These are the quoted words of former legal advisor of the U.S. Department of State Harold Koh in a recent New Yorker article addressing the legality of the April 6 U.S. missile strike on Syria. While there are many nuanced aspects to the debate about the strike’s legality, the question of whether the use of force by one sovereign nation against another is war is not one of them. See, for example, the Just Security post by Mike Schmitt and Chris Ford.

Professor Koh may have meant only to suggest that the attack does not rise to a level requiring Congressional consent in advance under the U.S. Constitution. But the question: “Is it war?” also has consequences relevant to at least three aspects of international law: 1) the law of state responsibility, 2) the crime of aggression as defined in the International Criminal Court, and 3) the U.N Charter’s prohibition on the use of force. It is the latter two international law issues that we address here.

But first, is it war? It is well established under U.S. law that unless Congress says otherwise, the U.S. considers itself bound to comply with its obligations under international law. International law to which the U.S. is bound includes the Geneva Conventions. The Geneva Conventions are clear that the use of force by one state against another constitutes an international armed conflict, i.e., a war. Congress has never said otherwise, and so, both domestic and international law dictate the same conclusion: the United States and Syria are at war.

Engaging in war is not necessarily unlawful, but starting a war is. The U.S. government should know because it spearheaded successful efforts to prosecute the Nazi leadership for the crime of waging aggressive war (then called “crimes against peace”) at Nuremberg. If that’s too dusty a precedent, then consider that the 124 states party to the International Criminal Court treaty agree that starting a war constitutes the international crime of “aggression.” (See the treaty’s Article 5.1(d)). Or if your exceptionalist bent leaves you cold when the amorphous notion of “international community” is invoked, consider what the U.S. reaction might be when North Korea drops a missile on a South Korean military base and says “It’s not war.”

Professor Koh also suggests that the U.S. attack, even absent U.N. Security Council authorization, is “not illegal.” He cites to the emerging doctrine of humanitarian intervention, according to which, under certain conditions that he concedes may not have been met here, State A may use force to put an end to atrocities in State B. But the U.N. Charter permits State A to use force against State B only if done in self-defense or with Security Council authorization. There is no free-standing right of humanitarian intervention in international relations under the U.N. Charter, or any other instrument of international law. The 2004 Report of the U.N. Secretary General’s High-level Panel on Threats, Challenges and Change is the primary source document for the notion of humanitarian intervention (following on the 2001 Report of the International Commission on Intervention and State Sovereignty, produced under the auspices of the Canadian government). The Panel’s conclusions about the use of force for humanitarian purposes presume Security Council approval:

We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.

(Para. 203.)

In other words, the Panel does not claim that the use of force for humanitarian purposes is legal in the absence of either Security Council authorization or conditions that trigger the inherent right to strike in self-defense. Rather, the Panel’s evident intention is to suggest that the Security Council should ipso facto consider mass atrocities against civilians to be a threat to international peace and security, thus triggering its power to authorize use of force pursuant to Chapter 7 of the U.N. Charter.

The Panel then, once again, confirms the essential role of the Security Council:

In considering whether to authorize or endorse the use of military force, the Security Council should always address – whatever other considerations it may take into account – at least the following five basic criteria of legitimacy:

(a) Seriousness of threat. Is the threatened harm to State or human security of a kind, and sufficiently clear and serious, to justify prima facie the use of military force? In the case of internal threats, does it involve genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law, actual or imminently apprehended?

(b) Proper purpose. Is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question, whatever other purposes or motives may be involved?

(c) Last resort. Has every non-military option for meeting the threat in question been explored, with reasonable grounds for believing that other measures will not succeed?

(d) Proportional means. Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question?

(e) Balance of consequences. Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?

Professor Koh has suggested similar criteria here, but leaves out the all-important reference to the Security Council.

A year after the Panel delivered its Report, the U.N General Assembly endorsed the notion of a “responsibility to protect” (of which the notion of humanitarian intervention is a part) but also maintained reference to the role of the Security Council:

We (the international community) are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

Whether the U.S. missile strike on Syria meets the criteria established by the international community for humanitarian intervention is questionable. For one, the missile strike was most certainly not an act of “last resort.” For example, while there may be little that the U.S. could do to pressure Assad directly, there is no indication that the Trump administration made any effort to drum up international support to pressure Moscow to lean on Assad after his latest provocation. Second, the propriety of the administration’s purpose is, at best, unclear. With the Trump White House having flip-flopped at lightning speed on whether there is or is not a place for Assad in Syria’s future, the situation is reminiscent of military intervention in Libya, which started as humanitarian intervention and quickly morphed into “regime change.” An additional source of legitimate concern about the administration’s purpose is the heavy cloud of suspicion that the Trump campaign colluded with Moscow to deny a Hillary Clinton victory. What better way to show that Trump is not Putin’s pawn than by attacking a Russian ally? Finally, when considering “the balance of consequences,” one must question whether airstrikes are reasonably calculated to lessen, rather than intensify conflict, and thus, civilian suffering, in Syria.

Our doubts about the legality of the attack are not, however, an end in themselves. Jens Ohlin sees the many opinions objecting to the bombing on either domestic or international legal grounds and concludes that “everyone seems to have lined up against humanitarian intervention.” Not us. We firmly endorse the notion of humanitarian intervention but fault the Security Council for not doing its job. Thus, if anything good comes out of this debate, it should be a stark reminder of the need for Security Council reform concerning use of the veto power in the face of mass atrocities.

Meanwhile, as the former head lawyer for the State Department, Professor Koh’s opinion carries great weight. We hope he was misquoted. If not, we fear a future in which other countries itching to find “permission” from the U.S. to drop bombs on their nemeses might just agree with him that war is not war. We are equally concerned that such countries will misinterpret his end-run around the Security Council as open season for threats and use of force, as long as they’re couched in the language of humanitarian intervention.

The Syria Attacks: Haven’t We Had These Debates Already?

by Julian Ku

Reports of another horrific use of chemical weapons against civilians in Syria seems to have affected President Trump. In comments today, President Trump said the chemical attacks against civilians “crossed a lot of lines for me” and changed the way he views Syria and leader Bashar al-Assad. Although it is always hard to interpret the President’s comments, he did cite his “flexibility” to change his policies. One might interpret this to mean that the U.S. my change course and directly use military force against the Assad government in Syria.

As tragic as this latest attack is, I also feel like I am in a time-warp that has sent me back to 2012-13 when similar chemical weapons attacks led to similar global outrage which led to an American debate about whether to launch military attacks on Syria.  President Obama famously decided to launch such strikes (without Congress or the UN) and then changed his mind and sought congressional consent.  He never got that, but he did work out an agreement with Russia and the Assad government to remove Syria’s chemical weapons capability.  That didn’t work out as well as he hoped (to use a tragic understatement).  But the factual and legal issues are almost identical today.

So as a service to readers, let me just link to some of the legal analysis we posted back then, much of which still applies today. Updates of course will be necessary, but this is the right place to start.

I argued in 2012 that a strict reading of the U.N. Charter prohibited any U.S. strike on the Syrian government without consent from the U.N. Security Council.  This would be the case even if the Syrian government used chemical weapons against civilians during its civil war.  Former top UK legal adviser Daniel Bethlehem took issue with my formalist reading of the U.N. Charter.

Kevin wondered why the use of chemical weapons itself was so significant as opposed to the civilian deaths it caused.  Put another way, he pointed out that the use of chemical weapons, however horrible, was not necessarily any more of a war crime for legal purposes that the use of non-chemical weapons against civilians and non-combatants.  He also points out in a later post that the Rome Statute does not single out chemical weapons use alone as a crime, despite an initial proposal by drafters to do so.

Finally, we held an “insta-symposium” on Syria with many great contributions from scholars, legal and non-legal, on the difficult questions raised by the Syria conflict.  A list of those posts can be found here at the bottom of the first post in that symposium, from Stephanie Carvin.

Hopefully, this will help all of us refresh ourselves for the great Syria intervention debate, Round II (Donald J. Trump edition).