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Non-State Actors

Syria Insta-Symposium: Ezequiel Heffes and Brian E. Frenkel–The Decision-Making Process of the R2P Doctrine: Towards New (Old) Paths in the Use of Force in International Law

by Ezequiel Heffes

[Ezequiel Heffes and Brian E. Frenkel are LL.M. candidates at the Geneva Academy of International Humanitarian Law and Human Rights and Teaching Assistants of Public International Law at the University of Buenos Aires, School of Law. This post reflects partial conclusions of our ongoing research at the University of Buenos Aires’s Law School as members of the project “Beyond the Jus In Bello? The Regulation of Armed Conflicts in the History of Jus Gentium and the Limits of IHL as an Autonomous Regime Before other Branches of a ‘Fragmented’ Public International Law.”]

In the last few years the general prohibition on the use of force enshrined in Article 2 (4) of the UN Charter has been approached differently from the classical view. In situations of mass violations of human rights and international humanitarian law, the responsibility to protect (R2P) and humanitarian intervention have begun to emerge as possible exceptions. As Jennifer Trahan correctly points out, from a legalistic point of view the UN Charter only allows intervention in two scenarios: UN Security Council authorized action, and the exercise of the “inherent right of individual or collective self–defence if an armed attack occurs” by one State against another State (Article 51 of the UN Charter).

In consequence both, R2P and humanitarian intervention, would be outside any legal framework. But perhaps, and only perhaps, by analyzing the use of force in international law from a different perspective, new proposals could be taken into account. In an earlier post on this blog, André Nollkaemper has presented the possibility that strikes could be part of a process of reconstruction of the law on the use of force, but what does this mean? An alternative view of the existence of the prohibition of the use of force in international law has to be approached.

Rosalyn Higgins has postulated in the past that international law is a legal decision–making process, i.e., it is a continuing process of authoritative decisions. This idea considers that rights and obligations of entities are created by participants –and not by subjects of international law, a notion that according to her has no functional purpose– and determined not by reference to the trend of past decisions, which she calls ‘rules’, but through a continuous and dynamic process of decisions made by authorized persons or organs. This participation, however, would depend in the end on their factual power to do so in order to be accepted by other established participants of that same system. Higgins affirmed in the same sense that if international law was only a set of rules, then it would be unable to contribute to a changing political world. This rejection means that “those who have to make decisions on the basis of international law –judges, but also legal advisers and others– are not really simply ‘finding the rule’ and then applying it. This is because the determination of what is the relevant rule is part of the decision – makers’ function; and because the accumulated trend of past decisions should never be applied oblivious in the context”. Precisely, Julian Ku raised a similar matter when he posted here that President Obama affirmed that international law is a “factor in the decisionmaking process in the U.S.” since U.S. officials were looking at Kosovo as a precedent for an intervention. The main issue therefore seems to be concerning the prohibition of aggression, is it possible to consider that it is only a set of rules? Could it be changed through the abovementioned process? Higgins answered these questions affirming that even when its prescription is a necessary rule of coexistence, it still must be taken into account the fact that it is “the practice of the vast majority of states that is critical, both in the formation of new norms and in their development and change and possible death”. This means that the foresaid prohibition could change without necessarily loosing its strength, and R2P and humanitarian intervention could be allowed only with the States’ consent. From a theoretical perspective this seems difficult, but not impossible.

Higgins’s theory is certainly susceptible to objections. Roland Portmann for instance affirms that there is a confirmed tendency today that supports the idea of having general rules of international law. Even though this could be taken into account, new paradigms shall be explored including other notions of the above–mentioned use of force regime having in mind that today the law created to maintain international order is not working, or it is working but only in a limited sense since it is not persuading some States to not use the force.

In the context of R2P, by adopting the World Summit Outcome Document, the UN instead of participating in this decision–making process decided to enclose possible new paths within the Charter (Secretary General Report “Implementing the responsibility to protect”; General Assembly Resolution 63/308; SC Resolutions 1674, 1894, among others). It decided then to incorporate all of these legal constructions but nonetheless expressly included the intervention and approval of the Security Council as a requirement. At that time none of the P–5 criticized this. On the contrary, they reaffirmed it (Resolution 1674/2006 unanimously adopted) perhaps as a way of legitimizing their delegitimized position. Nowadays, facing situations where SC action is blocked because of the veto of one or more P–5 members, the others are looking to go back to an alternative view outside Article 2 (4). This would be supported by Higgins’s design, which seems to be the most suitable guideline for the dynamic processes of the international community. It could be said therefore that certain States are continuously contributing in the creation of new international rights and obligations in order to develop new paradigms, either because they understand that the 1945´s does no longer solve current issues, or because it does not serves their interests. In any case, the struggle on the decision-making process cannot be denied. The changes on the UN conception about the R2P doctrine, the division within the Security Council and the veto possibility, the returning to old arguments, they all prove that the Article 2 (4) is no longer considered “sacred” and that there are some intentions to make a change.

Syria Insta-Symposium: Otto Spijkers–Can States Stand Idly By?: Bystander Obligations at the Domestic and International Level Compared

by Otto Spijkers

[Otto Spijkers is an Assistant Professor of Public International Law at Utrecht University]

It is interesting to compare the obligations of States at the international level with the obligations of individuals at the national level. Such a comparison is also interesting when it comes to the obligations of other States to intervene in Syria. In this post I will suggest some lessons we can learn from domestic experience.

Article 450 of the Dutch Penal Code states that any person who sees someone in immediate mortal danger, must provide support, if he can do so without endangering himself or others. If he refuses to do so, and if the death of the victim follows, the bystander will be punished with imprisonment not exceeding three months. In many other States, standing idly by when someone is in immediate mortal danger is equally a criminal offense. Does such a rule exist also at the international level? It seems safe to say that at the moment there is no general obligation of bystander States to intervene in certain predefined types of events, except perhaps in some extreme cases such as genocide. But should it exist?

Article 450 was included in our Penal Code in 1880. Inclusion of this article was defended at the time with the argument that the “popular consciousness” was annoyed by the impunity of people standing by when fellow citizens were dying.  Feldbrugge, who analyzed the theoretical foundations of similar provisions in domestic criminal legislation all over the world (see Feldbrugge, ‘Good and Bad Samaritans,’ in the American Journal of Comparative Law, Vol. 14 (1966)), concluded that “many legislators have come to realize that certain behavior with regard to persons in danger is so offensive to the moral feelings of a community that the interference of criminal law is called for.” Clearly, a similar argument can be made to recognize a legal responsibility to intervene at the international level: doing nothing in extreme cases is offensive to the moral feelings of an international community, and thus intervention should be a legal obligation. As “extreme cases” requiring bystander State intervention, we could think of the commission of serious breaches of obligations owed to the international community as a whole (erga omnes), but this is not the place to explore this issue in great detail.

States that do not have a similar provision in their criminal code – essentially the Anglo-American legal systems – believe that the law should not enforce altruism on people. Similarly, when the Dutch legislator discussed the article in 1880, a minority believed that it was better to leave it to the indignation of the public than to punish the perpetrator as lawbreaker. You cannot legally oblige people to be a hero, so it was said, and put them in prison if they refuse. Another argument against including an article like 450 Dutch Penal Code is that in extreme cases, doing nothing can always be qualified as the commission of a crime by omission, or as providing aid or assistance in the commission of the crime (complicity). Applying this to the international situation, it seems inappropriate to regard all States that “do nothing” as faciliators of the wrongful act in such strong sense. There is thus a need to oblige bystander States to intervene.

Although intervening might be the “right thing to do,” there are good reasons not to intervene.  Rescue operations might end badly, with both the victim and the rescuer seriously harmed. And even if a rescue is successful, nobody is really any better off than before the victim got into trouble. The victim will probably have suffered some harm already, and the rescuer might be traumatized or physically hurt because of the rescue. A rescue attempt can also be very costly. And thus, the bystander is in an unenviable position and it is remarkable that anyone should ever intervene at all. The same reasoning can be applied at the inter-State level: the intervening State is seldom rewarded for its intervention, even if the intervention is entirely successful, which is rarely the case at the international level.

In order to commit the offense of Article 450 Dutch Penal Code, the bystander must have had a certain awareness of the danger the victim was in. Since intervening is not an attractive option, most bystanders will do their best to interpret what appears to be a victim in trouble as, in fact, a normal course of events. The indecisiveness of other bystanders – and bystanders can remain indecisive for a very long time – is often interpreted as a decision not to intervene. If others appear to have decided not to intervene, it is easier to do the same. This phenomenon is referred to as “pluralistic ignorance.”  Clearly, this phenomenon occurs also at the international level. If all other States are hesitant to intervene, then a particular indecisive State will follow what it regards as the majority opinion: do not intervene.

If the event is interpreted as the kind of event which obliges the bystander to intervene, the bystander has to accept that it is his personal responsibility to intervene. Once again, one must keep in mind the unattractiveness of intervention. And thus the bystander will still try to find justifications for not-intervening. One justification for not intervening is to convince oneself that the victim somehow deserved it, or was asking for it.  In general, this justification for not intervening is not accepted. As Feldbrugge concluded, “where the victim himself is to be blamed, entirely or in part, for having placed himself in a dangerous situation, there is no fundamental change in the duty of potential rescuers.”  The argument that the population in Syria does not deserve to be rescued because it brought itself in the position it is now in is thus not a good argument.

Feldbrugge noted that the ability – and thus responsibility – to help depends on the bystander’s nearness to the danger and his ability to effectively intervene. This would make neighboring States (Turkey, Members of the League of Arab States), or particularly powerful States (USA), more responsible than others (e.g. the Netherlands).  An interesting question is whether the perpetrator (Syria), after having wounded the victim (its own population), has a duty to provide assistance to that victim. Although such an obligation seems awkward, it also seems unfair to suggest that the perpetrator can leave his victim to die when innocent bystanders have a legal obligation to assist the victim. Feldbrugge had an interesting solution to this dilemma: “where the danger to the victim has been caused intentionally [as in the case of Syria, presumably], the lesser offense of failure to rescue is “absorbed” by the greater offense of attempted homicide.”

Finally, if the bystander has decided to intervene, he must consider the appropriate type of assistance. Feldbrugge noted, on the consequences of “negligent execution of the duty to rescue,” that “the decisive factor in this respect is the rescuer’s motivation.” In other words, a bystander cannot be blamed for a very clumsy and thus failed rescue attempt, as long as he seriously meant to rescue the victim. Of course, Dutch people immediately think of the role of Dutchbat in Srebrenica in 1995. Indeed, it seems unfair that a failed rescue attempt can traumatize a nation for decades, whilst States that did not even try to rescue the victim (the Bosnian Muslims in Srebrenica) have no such trauma.

True enough, Article 450 of the Dutch Penal Code only asks of the bystander that he makes a serious attempt to rescue the victim. But nobody likes to make a fool of himself in public. In the words of Latané and Darley: “the bystander to an emergency is offered the chance to step up on stage, a chance that should be every actor’s dream. But in this case, it is every actor’s nightmare. He hasn’t rehearsed the part very well and he must play it when the curtain is already up. The greater the number of other people present, the more possibility there is of losing face.” (Source: Latané & Darley, The unresponsive bystander: why doesn’t he help? (1970), p. 40.) When the whole world is watching, the possibility of “losing face” does play a role. I am sure it also plays a role in Obama’s thinking about whether to intervene or not.

Syria Insta-Symposium: Stephanie Carvin–A Legal Debate Devoid of Consequences (or Bringing Practical Judgment Back In)

by Stephanie Carvin

[Stephanie Carvin is an Adjunct Professor at the University of Ottawa Graduate School of Public and International Affairs. She is the author of "Prisoners of America's Wars: From the Early Republic to Guantanamo" (Hurst/Columbia 2010) and co-author of the forthcoming "Between Annihilation and Restraint: Law, Science Liberalism and the American Way of Warfare" (Cambridge University Press) with MJ Williams.]

I have a number of concerns over the Syrian intervention debate as it has played out over the last two weeks. First, there seems to be a very real and frequent conflation over US goals in Syria. The proposed use of military strikes (the plan which seems to be on the table) is not about bringing peace to the war-torn country. Rather, it is about punishment for the use of chemical weapons and to deter their future use. This is a key point to keep in mind as there is a huge and significant difference between the two in terms of politics, law and strategy. While peace may be the overall preferred goal, punitive strikes that may hinder the Assad regime from further use of chemical weapons seems is a far less ambitious and more realistic goal.

This relates to a second concern, related to the constant refrain: why intervention *now* after 100,000 people have already died in over two years of fighting. Quite simply, chemical weapons are a game changer. While no one is disputing the idea that conventional arms are capable of incredible damage, they may be used discriminately if armed forces choose to do so. (And, of course – as is well established, where they have not, individuals may be held accountable for their actions.)

Chemical weapons on the other hand are entirely indiscriminate. It is simply not possible, particularly in an urban environment like the suburbs of Damascus, to use them in a way that is by any standard legal. Further, the risk that the Syrian battlefield may turn into one where chemical weapons in a region that is already incredibly unstable from sectarian rivalries, the fallout of the Arab Spring and, yes, the 2003 intervention in Iraq, raises very real security concerns. Is having open chemical warfare in the Middle East something the world can conceivably tolerate from a security perspective?  For many governments, the thought of a battlefield where chemical warfare becomes a regular occurrence is just too practically awful to ignore.

Both of these points are related to a third over-arching concern, namely that the debate over intervention in Syria, particularly (but not solely) within academic circles, seems to be one focused on enforcing norms for norms sake (“norm enforcement affirmation”) and questions over international law that are rather removed from the situation on the ground.

Indeed, I have a serious concern that some are replacing what should be a political discussion about consequences of intervention with one about legal ‘tick-boxing”. To crudely paraphrase: if 15 men sitting around a table in New York say it is okay to strike, then somehow it is fine. If 15 men do not, then it’s not okay. This seems to be an incredibly poor way to decide how to respond to the attack. Rather than seeing who signed what convention and what “norm” is law, isn’t it better to simply think through the ramifications of an intervention/strikes?

The deeper issue here is why is it that so many of us are willing to answer the question of intervention by seeking a false certainty in law? Why are we willing to let the treaties make our minds up for us, rather than engaging in practical judgment over the issue. Maybe it helps scholars and politicians to lay in their beds at night, happy with their legal-scientific conclusions. But they should, in reality, be seeking the uncertainty of debate.

I firmly believe that discussing and pondering the legal dimensions gives us a framework for thinking about military action. However, my concern is that this is not sufficient. That thinking through whether or not this is case of R2P, reprisals, humanitarian intervention, etc, is not particularly suited to the very practical and real issues resulting from the active and aggressive use of chemical agents. And what the effects of any form of intervention might be on the conflict.

Outside of law, I think a better argument against a US military strike is that it very well may not work – that is the real issue to be wrestled with. International Crisis Group has prepared a very useful brief on the consequences of intervening here. And, as they wisely note in their post:

Debate over a possible strike – its wisdom, preferred scope and legitimacy in the absence of UN Security Council approval – has obscured and distracted from what ought to be the overriding international preoccupation: how to revitalise the search for a political settlement. Discussions about its legality aside, any contemplated military action should be judged based on whether it advances that goal or further postpones it.

Indeed. The stream of legal pontification by individuals far removed from the situation, who do not have any kind of accountability, seems to miss the point of the debate entirely. We are derelict in our discussion.

Those with concern for global governance and the international rule of law need should think about how law can help support a peace agreement, international or national trial and requirements/aid for the no-doubt lengthy and painful rebuilding process that a post-conflict and likely unstable Syria will need for years to come.

So tell me, how many warheads can dance on the tip of a pin?

Syria Insta-Symposium: Charles Kels–At the Intersection of Legal Regimes

by Charles Kels

[Charles Kels is a major in the U.S. Air Force Reserve and an attorney for the Department of Homeland Security. His views do not reflect those of the Department of Homeland Security, Air Force or Defense.]

From a U.S. perspective, the core issue with a Syrian intervention is the interplay between international and constitutional law. Specifically, to what extent does satisfying one lessen the need to comply with the other when it comes to initiating hostilities?

Ever since President Truman bypassed Congress in favor of the UN Security Council (UNSC) to launch the Korean War, there has been a growing body of precedent to suggest that these concurrent paths to the lawful use of force represent an either-or proposition. Cases in which the President acts with the express authorization of both Congress and the UNSC, such as the Persian Gulf War, are an anomaly to say the least.

Recent history indicates that the imprimatur of the UNSC strengthens the President’s hand to act unilaterally in committing U.S. troops abroad. The Office of Legal Counsel (OLC) opinion on the authority to employ force in Libya explicitly cited “the longstanding U.S. commitment to maintaining the credibility” of the UNSC as an important national interest justifying the President’s exercise of his Article II powers.

On the flip side, securing congressional approval seems to obviate the need, at least politically, to wait on the UNSC’s blessing. Presidents can feel relatively secure that the U.S. public will not hold the failure to secure a resolution against them, especially when the overseers in Congress are on the hook by having voted to authorize force.

What if neither hurdle has been definitively cleared in the context of a humanitarian intervention? You get Kosovo, which ostensibly derived some sense of legality from its NATO roots, but has otherwise been deemed “illegal but legitimate.” The historian Michael Ignatieff has poignantly documented how the resulting lack of political will undermined the humanitarian aims of the campaign. NATO’s lofty moral language belied its strategy of minimum risk.

With his announcement that he will seek authorization from Congress for action against Syria, President Obama has thankfully pulled us back from the legal precipice of finding out what happens when there are all the elements of Kosovo, minus the auspices of NATO. He rightfully recognized the importance of making Congress go on the record with its preferences. Although Congress can be a fair-weather fan of military campaigns even when it has authorized them, the accountability of a formal vote makes it infinitely more likely that legislators will engage in partnership rather than recriminations if and when things go awry.

As such, I am inclined to disagree with Professor Spiro that the President’s announcement constitutes a “constitutional surrender.” If President Obama has indeed set a precedent with his decision, I believe it is something much less consequential than requiring future commanders-in-chief to seek congressional authorization for any limited military strike. Rather, it stands for the proposition that when American lives and property are not immediately at stake, and when there is no straight-face self-defense argument under Article 51 of the UN Charter, and when the UNSC has not authorized force, and when there’s no NATO mission to latch onto, the President is on much firmer ground going to Congress. Far from enervating the President and his successors, I tend to agree with Professor Goldsmith that this course of action actually strengthens the administration and the U.S. cause in the event of a military intervention.

One need not be an Article I absolutist to query what actual limits to presidential war-making powers would have been left if the President had gone it alone on Syria. Indeed, to borrow the terminology from Professor Lederman, I think it’s fair to say that unilateral presidential action on Syria would have been much closer to the Bybee/Yoo position, although dressed in the language of the Clinton/Obama “third way.” Seemingly, the only remaining restraint on executive initiation of hostilities would have concerned the expected breadth of the conflict, and whether it counts as “full-scale.” As a stand-alone doctrine, there’s not much there to salvage a meaningful remnant of Congress’s war powers—as I try to flesh out below.

But even in deciding to seek authorization, the President presented intervention in Syria as a fait accompli, reiterating his belief in the “authority to carry out this military action without specific congressional authorization.” The key to understanding what he likely meant is the OLC opinion on Libya, which argued that the limited “nature, scope, and duration” of the anticipated operations fell short of the definition of “war” that necessitates congressional authorization. Central to this analysis was the relative exposure, or lack thereof, of U.S. military personnel to enemy fire. To oversimplify, as long as ground troops are ruled out, and the risk of U.S. casualties is nil, the deployment doesn’t count under the Constitution’s declaration of war clause.

There are two major problems with linking the legal prerequisites for war to the physical impunity of its initiators. First, it implies that war is predictable. But a policy of minimalism can actually whet the enemy’s appetite to widen the conflict. War takes at least two sides, and both get a say as to how it is waged. A “shot across the bow” can quickly become a dogfight. While the President could theoretically go back to Congress for authorization if the scope of the mission proves wider than anticipated, that is an unlikely and daunting scenario once things have started to go bad.

The risk theorist Nassim Taleb has written that professional soldiers embrace uncertainty because it is endemic to war. The mission rarely goes as planned, and the aftermath almost never does. Libya is a case in point. It was bloodless for America until our consulate was overrun the following year. Then it wasn’t.

Second, when political leaders claim that the use of standoff munitions lowers the barriers to waging war, it directly validates the criticisms of those who view these new technologies as an insidious invitation to resort to force unnecessarily. Advanced weapons, and the know-how to use them, exist to help us win our wars. They do not alter the legal requirements for fighting them.

Ultimately, the argument that Congress’s constitutional role is contingent upon the risk to U.S. troops cannot stand on its own. In OLC’s Libya opinion, it was invoked half-heartedly, as a matter of secondary importance to the national interest served by enforcing a UNSC resolution.

With no such resolution available in Syria, and no easily definable national interest to safeguard, justifying unilateral executive action would have been a tall order indeed. As intransigent and divided as Congress may be, asking its permission stands a better chance than courting President Putin.

Of course, a congressional authorization for the use of military force does not satisfy international law. But it would surely enhance the President’s professed comfort level in going forward without a UNSC resolution.

Syria Insta-Symposium: Marty Lederman Part II–Will the U.N. Charter Be Part of the Forthcoming Congressional Debate?

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. This is the second part of a two-part posting.]

In my previous post, I explained that the difficult and unresolved constitutional question has (thankfully) been avoided—at least for now—by virtue of President Obama’s decision to seek congressional authorization for his proposed use of force in Syria.

That decision does not, however, affect the question of whether such an operation would violate Article 2(4) of the U.N. Charter.  To be sure, if Congress approves the operation, the statute in question will supersede the constraints of the Charter for purposes of U.S. domestic law.  But the U.S. remains a party to the Charter for purposes of international law, and international law is indifferent as to whether the U.S. legislature has or has not approved a particular use of force.

I think the vast majority of commentators on OJ and elsewhere—see, e.g., Dapo Akande on EJIL:Talk! –are correct:  The use of force in Syria would violate Article 2(4) of the Charter.  On the merits, I don’t have a great deal to add to what others have said, for there’s not much of an argument on the other side.  (One of my colleagues has suggested to me that perhaps there is a “plain meaning” and purposive reading of Article 2(4) that might be available—namely, that since the Charter prohibits use of force “against the territorial integrity or political independence of any state,” any use of force that is motivated by an aim other than violating the territorial integrity or political independence of a state (such as preventing future uses of chemical weapons) does not violate Article 2.  (Jordan Paust has suggested likewise in comments to several posts here.)  My understanding, however, is that no nation, including the United States, has ever adopted this reading of Article 2(4), which would radically narrow the scope and effect of the prohibition.  I would not expect the U.S. to float such a reading with respect to Syria.)

What about the “humanitarian intervention” rationale advanced by the U.K.?  It almost certainly will not even be the subject of debate in this country.  The U.S. has long been resistant to that theory, not only because it is almost impossible to defend on its merits—even if such a norm of humanitarian intervention had developed as a matter of custom (and it hasn’t), the U.K. offers no basis at all for why such a custom would be a defense under the Charter, a binding treaty—but also for fear that it would be exploited by other nations in a manner that we could not endorse and that would significantly undermine the Charter.  So, for example, after the U.S. agreed to join the operation in Kosovo in 1999, the State Department Acting Legal Adviser, Michael Matheson, was at pains to publicly emphasize that the U.S. “had not accepted the doctrine of humanitarian intervention as an independent legal basis for military action that was not justified by self-defense or the authorization of the Security Council.”

It is therefore not surprising…

Syria Insta-Symposium: Marty Lederman Part I–The Constitution, the Charter, and Their Intersection

by Marty Lederman

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002]

Most of the participants in this Insta-Symposium, and in earlier OJ posts, have understandably focused their attention on the question of whether a U.S. military strike on Syria would violate the U.N. Charter.  I’ll address that question in a subsequent post, in the context of some remarks on the forthcoming congressional debate.  But before I do so, Peter Spiro’s recent post about U.S. constitutional law deserves a response, for he has raised an important and serious charge.

According to Peter, President Obama’s decision to seek congressional authorization for the use of force is a “watershed”—indeed, a “surrender” of constitutional authority—because “[a]t no point in the last half century at least has a president requested advance congressional authorization for anything less than the full-scale use of force.”  Peter thus agrees with David Rothkopf’s accusation that “Obama has reversed decades of precedent regarding the nature of presidential war powers.”

I don’t think that’s a fair characterization.  Or, to be more specific, although Peter is correct that the President’s turn to Congress is in one respect without recent precedent, a unilateral use of force by the President in Syria also would have been unprecedented in important respects, and probably more corrosive to the modern balance of war powers between the political branches.  To understand why this is so, some background is in order.  What follows is a very simplified account of a very complex dynamic:

In the past two generations, there have been three principal schools of thought on the question of the President’s power to initiate the use of force unilaterally, i.e., without congressional authorization:

a.  The traditional view, perhaps best articulated in Chapter One of John Hart Ely’s War and Responsibility, is that except in a small category of cases where the President does not have time to wait for Congress before acting to interdict an attack on the United States, the President must always obtain ex ante congressional authorization, for any use of military force abroad.  That view has numerous adherents, and a rich historical pedigree.  But whatever its merits, it has not carried the day for many decades in terms of U.S. practice.

b.  At the other extreme is the view articulated at pages 7-9 of the October 2003 OLC opinion on war in Iraq, signed by Jay Bybee (which was based upon earlier memos written by his Deputy, John Yoo).  The Bybee/Yoo position is that there are virtually no limits whatsoever:  The President can take the Nation into full-fledged, extended war without congressional approval, as President Truman did in Korea, as long as he does so in order to advance the “national security interests of the United States.”  With the possible exception of Korea itself, this theory has never reflected U.S. practice.  (Indeed, even before that OLC opinion was issued, President Bush sought and obtained congressional authorization for the war in Iraq.)  Notably, it was even rejected by William Rehnquist when he was head of OLC in 1970 (see the opinion beginning at page 321 here).

c.  Between these two categorical views is what I like to call the Clinton/Obama “third way”—a theory that has in effect governed, or at least described, U.S. practice for the past several decades…

Syria Insta-Symposium: André Nollkaemper–Intervention in Syria and International Law: Inside or Out?

by André Nollkaemper

[André Nollkaemper is a Professor of Public International Law and Vice-Dean for Research at the Faculty of Law of the University of Amsterdam as well as the External Advisor to the Ministry of Foreign Affairs of The Netherlands. This contribution is cross-posted at the SHARES Research Project Blog.]

States that have decided to potentially engage in military strikes against Syria, or to support such strikes, face a difficult choice between two options: do they operate outside the international legal framework when they act, or do they use the strikes as part of an attempt to reconstruct the law on the use of force?

There is no doubt that in the present situation, military strikes against Syria would be in violation of international law as it has been understood since 1945. In situations as we face now, in the absence of a Security Council mandate, international law allows no unilateral use of force. Building a coalition outside  the UN does not help. Qualifying strikes as punishment does not help either. International law does not provide a right of states to respond with force to serious violations of international law – even when that law prohibits the use of chemical weapons.  Other than what was suggested in the UK legal  position, reliance on the doctrine of humanitarian intervention does not change this. The positions of states on humanitarian intervention simply are too diverse. This was made quite clear in the UN debates on R2P, which did not recognize any right to use force outside the existing Charter system.

In this situation, states that move forward with strikes have two options: to act outside the system or to stay inside, but present the strikes as part of a process to change the system.

The first option is simply to ignore the international legal framework – and just bombard, without attempt to justify the bombardment in legal terms. An alternative way to frame this, which boils down to the same approach, would be to deny that international law as it is prohibits unilateral strikes. At the time of writing, this first option appears to be the US approach. The line then would be that in extreme cases, strong military responses are required to protect interests of states or of the international community—no matter what international law has to say on the matter. Politically, and/or morally, stakes are too high to be limited by the law. The law may have to pass in situations as this.

The second option is to present the strikes as part of a process of reconstruction of the law on the use of force, and more in particular as a revival of the right to humanitarian intervention. The argument would be that the Charter (and for that matter the R2P doctrine) gives the Security Council the responsibility to act when states use chemical weapons, and that if they fail to do so, individual states should be able to act to protect civilians. Present international law may prohibit it, but international law is not static and can change by being breached. The unlawful act may contain the seeds of a new rule allowing for humanitarian intervention.

On the assumption that strikes deter and influence future behavior, both options may help to protect civilians. Moreover, both options may put the Security Council and its member states on notice that the next time, they should better take their responsibility more seriously, otherwise they will be left behind again.

It may be said that the difference between the two categories is thin or even artificial, since also an act that ignores the law may later be invoked as a precedent for the process that leads to change. Nonetheless the positions can be distinguished. There is a difference in terms of the opinio juris that is relevant for the formation of customary law. Another difference is that states in the former category can continue to rely on the system as it is, to critique future uses of force that rely on an alleged humanitarian exception if they consider these uses politically undesirable, whereas the second group will have a little more to explain.

For those supporting air strikes, the choice between the options is not easy. The benefit of the first option is that the Charter system stays in place. The states embarking on this route will hope that such incidental transgressions do not affect the system as a whole. Next time a similar situation arises, they can simply rely again on the traditional law. This hope is not entirely baseless. Somehow the many transgressions of article 2(4) of the UN Charter in the past decade have not changed anything in the fact that states and legal scholars generally continue to use article 2(4) as a first baseline for justifying or critiquing action or inaction.

A drawback of the first option is that it does not offer anything to make the international legal system more capable of responding to violations of its most fundamental norms. As long as the Security Council does not take its responsibilities more seriously, the system will have to pass when it really matters. There is no ambition of development towards a system that can protect the persons for whose purpose international law in the final analysis exists.

The second option is from this angle more attractive. It could allow participating states to ride the moral high ground, and to seek protection of civilians from within the international legal order. At the end of the tunnel it projects a body of international law that allows for decisive action when needed to protect fundamental values when the Council once more fails to act.

The difficulty of the second option is that it is rather uncertain where this process will lead. Some states (e.g., the UK, the Netherlands) have articulated conditions for humanitarian intervention, such as the requirement that negotiations have been exhausted, that there is a likelihood that the strikes will achieve the aim of protection of civilians, and that there is support of other states—notably states in the region.

However, it is very uncertain whether these conditions will be acceptable to the majority of other states. It also is likely that opinions on the interpretation and application of such conditions in specific cases will differ. If so, a serious risk exists that engaging in this process will lead us to a situation where the old system is abandoned and no longer provides protection, yet no new agreed new rule will be established. States then may justify the use of force on different criteria. They may use the pretext of humanitarian intervention to justify, for example, a strike on Israel because there too the Security Council fails to effectively respond to the illegal occupation, and there too humanitarian costs are high. Engaging in air strikes as part of an attempt to reconstruct the law on the use of force in a humanitarian direction then may come back like a boomerang. The agony is that article 2(4) then will have lost some of its power to protect us.

The failure of the Security Council  to take its  responsibilities and to act therefore  is for more  than one reason deplorable.  Not only does it leave the  people in Syria  without protection, but it also induces unilateral action that, whichever  it proceeds inside or out, leaves the international legal  system worse off.

Syria Insta-Symposium: Ian Hurd–On Law, Policy, and (Not) Bombing Syria

by Ian Hurd

[Ian Hurd is an Associate Professor of Political Science at Northwestern University. This contribution is cross-posted at the Ethics and International Affairs Blog.]

The debate sparked by Syria’s chemical weapons attack last week includes at least three separate controversies: 1) which (if any) international legal instruments govern Syria’s use of chemical weapons; 2) whether outside military action against the Syrian regime violates international law; and 3) whether US military intervention against the Assad regime is advisable in these circumstances. Each of these questions is complex. My recent op-ed in the New York Times contributed to conflating them. The question of whether the US should use its military against Assad is separate from the questions of legal interpretation. The legal question does not address the likely consequences of the use of force.

No-one can know for sure the outcome of military intervention in Syria. But the risks of making the situation worse are substantial. International outrage over Assad’s use of chemical weapons should be channeled into escalating the political, diplomatic, and economic pressure on the regime and those that keep it in power.

It was taken for granted in most discussions after the Ghouta attack that Syria had violated international law. This is probably incorrect, but the answer depends on one’s view of how customary law relates to treaty law. Among treaties, Syria is not a party to the Chemical Weapons Convention and its actions cannot be considered illegal under that treaty. It is a party to the Geneva Gas Protocol of 1925, which prohibits “the use in war of asphyxiating gases, poisonous and other gases.” Whether this covers the Syrian regime’s use of these weapons against its own people depends on whether the word “war” in the treaty includes internal as well as inter-state conflicts. The drafters of the 1245 Protocol most likely had in mind international war. Unless one were to make an argument for the more expansive version of the word, and as horrible as it sounds, one would have to conclude that Syria has accepted no treaty obligation that prohibits the use of chemical weapons domestically.

Customary law however may ban the use of chemical weapons. This has been raised in many arguments over Syria, and can be found in the ICRC’s position and in a recent a post by Charli Carpenter. It also appears in the UK legal brief of August 29th 2013. Customary law involves a ‘general practice of states’ that is accepted by them as legally binding. The almost universal support for the CWC convention (189 state parties) is strong evidence for this. But Syria’s refusal to accept the treaty is presumably evidence that it contests that norm – and its practice certainly contradicts it. The dilemma at the heart of customary law is that it searches for a coherent narrative in a world that is full of contradictions.

This examination of chemical-weapons law does not exonerate Assad’s atrocities, and it does not exempt his regime from legal condemnation under other treaties that he has signed, notably the Geneva Conventions (1949).

But even if Assad has violated it himself, there is nothing in chemical weapons law, including the CWC, to authorize the use of force in response to their use. The relevant treaties do not include enforcement powers, beyond referring matters to the Security Council. It is well known that the Charter forbids the use of force except as self-defense or as sanctioned by the UN Security Council. Everything else amounts to aggression and is illegal.

There is no provision in the Charter that provides for the enforcement of treaty obligations or for humanitarian need. This was vividly on display when Romeo D’Allaire and the UNAMIR mission confronted legal obstacles to protecting people from the Rwandan genocide of 1994. The doctrine of the Responsibility to Protect has developed as a ‘norm’ rather than a ‘law’ (in part as a response to this genocide) precisely because it conflicts with the law of the Charter (at least insofar as R2P is used as justification by individual states rather than the Council itself).

Many countries have sought to differentiate between aggressive war and other kinds of unilateral, cross-border uses of force. India, for instance, justified its invasion of Goa in 1961 on the grounds of anti-colonialism. In the Times I suggested that ‘humanitarian intervention’ without Council approval might sometimes be legally distinct from ‘aggression.’ This is highly contested, but it would not be the first time that the Charter has undergone substantive reinterpretation without a formal amendment. The UN Security Council treats an abstention by a permanent member as something other than a veto. This contradicts the plain language of the Charter, but it has ceased to be controversial.

Regardless of how one interprets international law on the use of force, however, these rules do not answer the question of whether intervention in any particular case is warranted. This is a question that law on its own cannot answer.

The US has earned a reputation as a foreign-policy bully, and for sending its military and its money abroad to promote American economic and political interests at great expense to other states and societies. It imposes on others costs and constraints that it would never accept to have foisted upon it. It is no wonder that so many people protest whenever the US government suggests that is military can be the ‘answer’ to some ‘problem’ in another country — we have heard this, and been horrified by the results, so many times before.

Despite what the title of my op-ed implies, there are numerous ways the US could continue to try to limit Assad’s capacity to harm his people that do not involve bombing Syria. Hathaway and Shapiro suggest some of the possibilities. Richard Falk has outlined clearly the risks, drawbacks, and dangers of a military response against Assad. The more considered response would be to intensify economic and diplomatic pressure on Assad and his supporters abroad.

My piece in the Times has been interpreted as an argument in favor of military action at any cost. This was not its intent. It is irresponsible to fold the question of how the US and others should respond to the tragedy in Syria into legal discussions about which treaties apply to whom, when and where. My intention was to suggest that international law has changed such that it now encompasses the use of force on humanitarian grounds in certain extremely grave circumstances. An understanding of the history and politics of international law contributes to an informed debate over the international response to the Syrian crisis. But understanding the treaties, their limitations, and the politics surrounding their interpretation does not answer the question of how to respond. As Kenneth Anderson says, “It is not clear that any of the legal arguments – on any side – are adequate to address the real world stakes.”

Syria Insta-Symposium: Jennifer Trahan-The Legality of a U.S. Strike on Syria

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor, NYU Center for Global Affairs, chair of the American Branch of the International Law Association International Criminal Court Committee, and member of the American Bar Association 2010 ICC Task Force]

As the U.S. prepares, with or without coalition partners, for a potential military strike against the Bashar al-Assad regime in Syria , it is important to consider the legality of such a strike as a matter of domestic and international law.  At the international level, with a U.N. Security Council resolution, such action would be clearly legal.  Without such a resolution, the law is in somewhat of a grey area, but the legality is supportable.

The “responsibility to protect” doctrine, developed in recent years, makes clear that the international communitydoes have a responsibility to protect a people in peril from grave atrocity crimes.  Recent formulations of the “responsibility to protect” doctrine suggest that large scale war crimes and/or crimes against humanity — acknowledge to have occurred in Syria — are such atrocity crimes.

While the clearest path to utilizing forceful intervention under the “responsibility to protect” framework is through Security Council authorization (as happened in the case of Libya ), tragedies such as genocides in Rwandan and Darfur dramatically pose the question:  what should the world do when the votes are not there at the Security Council level?  Should one simply allow massive humanitarian tragedies to be inflicted by a regime on its own people absent a Security Council resolution?  Does one really need to wait for recalcitrant China and Russia (permanent members of the Security Council possessing veto power) to do the right thing?

A legitimate argument exists that even when the Security Council does not authorize humanitarian intervention, it is arguably still permissible.  As formulated by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, while the decision to intervene should be made by the Security Council, if the Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation.”

Clearly, intervention through a coalition of partners, such as a NATO coalition (as occurred with Kosovo) lends greater legitimacy (although even that is technically not sufficient under a strict reading of the U.N. Charter).  But when a broad coalition or regional actor is unavailable, does that mean that countries must stand by and let mass atrocities, such as the use of chemical weapons (a necessarily indiscriminate weapon), occur?  The answer is arguably no.

While the U.N. Charter only clearly permits intervention in two scenarios:  U.N. Security Council authorized action and article 51 individual or collective self-defense, the Charter also contains a clear commitment to human rights.  Committing mass atrocity crimes is about the clearest violation of human rights that one can get.  Thus, while humanitarian intervention is not clearly legal under the U.N. Charter, it is not clearly illegal either.  We are in a grey area where the demands of morality and those of international law are not yet fully harmonized in a clear manner.  Should thousands more die while we wait for international law (which can take decades to form) to catch up to where it should be?

We might have not reached this point had Assad regime members (as well as others actors in Syria ) felt much sooner that the international community was scrutinizing their actions.  This could have happened through a Security Council referral of the situation to the International Criminal Court.  Unfortunately, that has not happened, and any chance to deter crimes through a referral has been squandered.

While the U.S. contemplates a strike, important criteria for consideration include those formulated by the Secretary-General’s High-Level Panel on Threats, Challenges and Change.  Namely, last resort:  “Has every non-military option for meeting the threat in question been explored . . . ?”  Proportional means:  “Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question”? 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?”

The Administration is facing a difficult choice as the U.S. contemplates moving ahead, hopefully along with coalition partners such as France .  Yet, a flexible reading of international law does not demand that countries stand impotent in the face of over 100,000 fatalities and the use of chemical weapons.

Syria Insta-Symposium

by Jessica Dorsey

We have invited several academic luminaries to post here at Opinio Juris over the next few days about the ongoing situation in Syria. We also are going to follow in our own footsteps from our Kiobel symposium, by inviting young academics and practitioners to submit guests posts for possible publication.

We can’t guarantee we will publish every post submitted, but we would love to broaden the discussion to include new and emerging voices. So if you want to write a guest post for Opinio Juris about Syria of approximately 500 to 1000 words, please do so in the next couple days and send it to me and An Hertogen at opiniojurisblog [at] gmail [dot] com. Our editorial team will review the posts and publish as many as we deem appropriate.

Emerging Voices: Drug Cartels, Bacrim, and Other Militarized Criminal Organizations–A New Role for the Inter-American System?

by David Attanasio

[David L. Attanasio is a professor of international law at the Jorge Tadeo Lozano University in Bogotá, Colombia]

The last few years have seen a rapidly changing landscape for serious human rights violations in the Americas.  Instead of government abuses committed in the alleged fight against left-wing guerilla groups, militarized criminal organizations now perpetrate many, if not most, serious human rights violations (or what would be such violations were they committed by state actors). While the Mexican drug cartels operating throughout Mexico and Central America are well known, Colombia has a serious problem with similar groups, the so-called Bacrim (criminal bands).  Although less known, Bacrim groups are representative of the regional trend, violently seeking control of drug production and trafficking routes—among other activities.  Reflecting their national significance, the Colombian Constitutional Court recently held that Bacrim victims have the right to reparations similar to those for other armed conflict victims.

The contentious case mechanism of the Inter-American Human Rights system has been an important tool to combat serious human rights violations, as individuals can use it to denounce specific state human rights violations.  But, given the new dynamics of human rights violations in the hemisphere, the mechanism must adapt to the sharp increase in violations committed by non-state, criminal actors.  To do so, the system should embrace a role as a secondary guarantor of human rights.   It should leave states with the primary responsibility for stopping violations by these non-state actors but should review state efforts to protect in a broad range of circumstances.  The dynamics of Bacrim indicate that there is a large risk of inadequate state protection against such militarized criminal organizations, a risk the Inter-American system could help to correct.

Adapting the contentious case mechanism to the changing dynamics of serious human rights violations is difficult because it is designed primarily to enforce state compliance with human rights norms: contentious suits can only be brought against states.  This mechanism is not directly useful to combat violations by non-state actors like militarized criminal organizations.  However, the Inter-American Court has recognized a state obligation to protect since its first merits decision in Velasquez Rodriguez v. Honduras, providing a potential way for the system to engage with non-state human rights violations. The system could adapt to become a secondary guarantor of human rights against militarized criminal organizations by ensuring that states adequately protect against the threats they pose.  While the system would not (and cannot) directly enforce human rights norms against these groups, it could require states to aggressively protect against them.

Unfortunately, current Inter-American Court doctrine allows review of state protection efforts only in a small set of cases: state officials must have known of (or should have known of) a particular threat to the non-state actor’s victim (or a small group to which the victim belonged).  But Bacrim and other militarized criminal organizations are by nature clandestine, at least to an extent. States currently can escape international review and responsibility even when their officials knew that a violent group was operating in a given area and failed to act with available resources.  The narrowness of current review prevents the system from adequately ensuring that states protect against these organizations. If the system is to be an effective guarantor of human rights against Bacrim and similar groups, review must be allowed in a broader set of circumstances.  For example, the mere knowledge of group presence and activity in a particular region should be sufficient for reviewing the measures that local state security forces took to reduce group activity, even when the state lacked knowledge of a threat to the specific victim.

It is important for the Inter-American system to take on this role as a secondary guarantor of human rights because of the substantial risk that states will take inadequate measures to protect against militarized criminal organizations.  Action by the Inter-American system could defuse some of this risk.

The nature of these groups and of the human rights violations they commit creates a risk of inadequate state protection for a number of reasons.

Fundamentally, these organizations are not revolutionary or even particularly political in nature, characteristics that might otherwise…

Could the Security Council Refer Only Assad’s Use of Chemical Weapons?

by Kevin Jon Heller

An interesting discussion recently broke out on twitter about whether the Security Council could refer the Syrian government’s use of chemical weapons — and only the Syrian government’s use of chemical weapons — to the ICC. Instead of breaking my thoughts into 60 tweets or so, I thought I’d be old-fashioned and write a blog post instead.

The issue raises a number of difficult and important questions. The first is whether such a narrow referral would qualify as a “situation” under Art. 13(b) of the Rome Statute, which provides in relevant part that “[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if… (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” Interestingly, the answer may depend on the theory of interpretation we adopt — an issue that Dapo Akande and I recently debated herehere, and here. Read literally, Art. 13(b)’s “one or more of such crimes” language would seem to permit the Security Council to refer crimes committed only by Syrian government using chemical weapons – the referral would simply have to include at least one crime within the Court’s jurisdiction.

The literal interpretation of Art. 13(b), however, is completely inconsistent with the provision’s drafting history. All of the major scholarly works on Art. 13(b) agree that the drafters did not intend to permit the Security Council to refer crimes committed solely by one side of a conflict. Typical in this regard is Bill Schabas and Sharon Williams’ entry in the definitive Triffterer article-by-article commentary on the Rome Statute:

Indeed, this is why the concept of referral in the Rome Statute relates to “situations” rather than “cases.” The language was adopted specifically to avoid the danger of one-sided referrals, which could undermine the legitimacy of the institution.

Antonio Marchesi makes a similar point in the Triffterer book with regard to, Art. 14, which includes the same “one or more of such crimes” language with regard to State referrals:

Although the proposal that the object of State complaints should be “situations” rather than specific crimes was well-received by the participants in the preparatory process, concern was expressed that the complainant State should not be able to “limit the referral to include crimes committed by one side to a conflict in a situation… or restrict the nationality of those who can be investigated and prosecuted. In other words, “the prosecutor must be free to investigate all persons who may be responsible for crimes within the Court’s jurisdiction in a situation.”

There are, of course, ways to avoid the debate between literal and intended meaning…