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).

Almost Everyone Agrees that the U.S. Strikes Against Syria are Illegal, Except for Most Governments

by Julian Ku

The blogosphere is now so fast that we can get an enormous sampling of expert opinion in a very short time. So within 24 hours of President Trump’s military strikes on Syria, we have already heard from former Bush State Department Legal Advisor John Bellinger, former Obama State Department Legal Advisors Harold Koh and Brian Egan, former DOJ officials and law profs Jack Goldsmith and Ryan Goodman, as well as numerous law profs and other experts including our very own Deborah Pearlstein and Edward Swaine. The bottom line: Almost everyone (except for Harold Koh) thinks the strikes violate the U.N. Charter and many think it also violates the U.S. Constitution.

Most of what I have to say I said in 2012-13 on this issue, but I am struck by one group of important actors who seem relatively untroubled by the “illegality” of the U.S. strikes under the UN Charter: states.  With the notable exception of the Russian government, very few states have come out to criticize the U.S. strikes as a violation of international law. No one is saying it is illegal, but it is striking how few are willing to say it is illegal.  I’ve gathered a few statements and links below.

China’s Ministry of Foreign Affairs:

Q: Does China consider the missile strike on the Syrian airbase to be within the scope of international law? Or do you think it violates existing rules about intervention in other country’s sovereign territory?

A: The Chinese side has always stood for a political settlement of the Syrian issue. Under the current circumstances, we hope all parties can keep calm, exercise restraint and avoid escalating the tension.

The latest developments in Syria highlight once again the urgency of resolving the Syrian issue through political means. We call on all parties not to walk away from the process of political settlement.

 

France and Germany (President and Chancellor):

The joint statement by Mr Hollande and the German chancellor Angela Merkel said that “President Assad alone carries responsibility for these developments” with his “repeated use of chemical weapons and his crimes against his own people.”

United Kingdom Defence Minister:

The UK says it “fully supports” the US missile strike in Syria and has urged Russia to put more pressure on the Assad regime to end the civil war.

The US targeted an air base it says was responsible for a chemical attack which killed dozens of civilians.

Defence Secretary Michael Fallon said the UK was not asked to take part but backed the “wholly appropriate” strike.

European Union, President of European Council:

“US strikes show needed resolve against barbaric chemical attacks. EU will work with the US to end brutality in Syria.

Turkey, Deputy Foreign Minister:

TURKEY: NATO ally Turkey, which is a key player in the Syria conflict and has endured choppy relations with Washington recently, welcomed the strikes as “positive.” The deputy foreign minister added: “We believe that the Assad regime must be punished completely in the international arena.”

Turkey called for a no-fly zone in Syria in the wake of the US strike.

Japan, Prime Minister

JAPAN: Prime Minister Shinzo Abe said that Japan “supports the US government’s resolve that it will never tolerate the spread and use of chemical weapons.”

This survey is not comprehensive and some large players, like India, have yet to weigh in.  But it seems only Russia and Iran have condemned the strikes vigorously.  The general support for the attacks in Europe, the Middle East, along withChina’s acquiescence, seems to show that many states are not very troubled by the violation of Article 2(4) most scholars think has occurred here.  Is this because it is a one-off attack? Or does it suggest Article 2(4) has very little pull with many foreign governments these days?

On the domestic US law front, FiveThirtyEight has counted 69 senators have already issued statements supporting the Syria Strikes and while there are critics on constitutional grounds, it doesn’t seem like close to a majority in Congress.

Of course, none of this means that the experts are wrong on the law. But it is at least worth noting the limited impact of the law so far on governmental actors, as the debate on the legality of the Syria Strikes continues.

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).

U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)

by Julian Ku

Yesterday, the Wall Street Journal reported that President Obama has authorized U.S. military forces to use air power to defend  U.S.-trained Syrian rebels if those rebels are attacked by the Syrian government forces.

President Barack Obama has authorized using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups, raising the risk of the American military coming into direct conflict with the regime of President Bashar al-Assad.

“For offensive operations, it’s ISIS only. But if attacked, we’ll defend them against anyone who’s attacking them,” said a senior military official. “We’re not looking to engage the regime, but we’ve made a commitment to help defend these people.”

I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks.  But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against.  And its legality under international law is pretty tenuous as well.

Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war.  So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization.  That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007.  Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack?  It seems so long ago.

Under international law, the Russians are already pointing out that using military force in a foreign country against that country’s recognized government is a violation of the U.N. Charter since there is no Security Council authorization here.  There isn’t even a clear “humanitarian intervention” theory here, at least not if the air strikes are only defensive.

And yet, I have little doubt that the U.S. will carry out the strikes if needed and that there will be almost no fuss in the U.S. about its constitutionality.  Article II is alive and well in the Obama era.  There may be little bit more fuss overseas about its legality under international law, since that seems a tough case to make. But it is hard to imagine that international law will act as much of constraint here either.

Does the Collective Self-Defense Justification Extend to Khorasan? If Not, Then Is There One?

by Julian Ku

I agree with Jens’ excellent post on the importance of the “unwilling or unable” standard to the US justification for legal strikes on non-state actors in Syria.  I agree this action may reveal state practice supporting (or rejecting) this legal justification.  I am curious whether the UK, France, or other states that may be participating in Syria strikes will embrace this theory. (I already know the Russians have roundly rejected this US justification). I also wonder whether this legal justification will weaken, as a policy matter, the ability of the US to effectively attack ISIS.

I do have one additional observation. Tacked on, almost as an afterthought, Ambassador Power’s letter notes that:

In addition, the United States has initiated military actions against al-Qaida elements in Syria known as the Khorasan Group to address terrorist threats that they pose to the United States and our partners and allies.”

The vague wording of the letter about Khorasan (threats to “the United States and our partners and allies”) as compared to the pretty specific language about ISIS’s attacks on Iraq  (“ to end the continuing attacks on Iraq, to protect Iraqi citizens, “) suggests that Khorasan is not currently engaged in armed attacks on Iraq.  This means that the U.S. is making a much broader international law claim than for its attacks on ISIS.  The U.S. is attacking Khorasan because, like Al Qaeda, it is a terrorist threat to the U.S. itself.  But no actual armed attacks have yet occurred (as far as I know).

It is therefore worth noting whether more  states object to the attacks on Khorasan than on ISIS, because the Khorasan attacks have a weaker international legal justification. My guess is that objecting states like Russia will not bother distinguishing between the two. But it will be interesting to see whether US allies will refuse to join strikes on Khorasan, even if they are willing to strike ISIS in Syria.

Guest Post: Pesky Questions of International Law: What’s the basis for air strikes in Syria?

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor of Global Affairs at NYU-SPS.]

President Obama’s speech on September 10th raised many legal issues, including, whether there needs to be added Congressional authorization for the use of force, or one can utilize the pre-existing Authorization for the Use of Military Force (“AUMF”) that Congress granted after 9/11 (see Deborah Pearlstein’s post and Peter Spiro’s).  But his speech also raised profound questions at a second level – that of public international law (touched upon by Kevin Jon Heller).

This may not seize the attention of the American public, but surely coalition partners would ask these questions:  what was Obama’s basis for the legality of air strikes in Syria?

It is somewhat troubling that President Obama took the step of supporting air strikes in Syria, without articulating any clear legal foundation at the international level.  Just to be clear, the issue of air strikes in Iraq against the Islamic State in Iraq and Syria (“ISIS”) does not raise similar questions, as Iraq had earlier consented to the use of force.

There are a number of possible legal rationales for air strikes in Syria, but the U.S. needs to make the case under one of these grounds.  Such a legal foundation was not well-articulated in President Obama’s speech.  (more…)

White House Counsel Announces Syria Strike Would Not Violate International Law, But Doesn’t Explain How

by Julian Ku

In the UK, the government released a brief note which described the legal theory justifying a strike on Syria.  The note may have had flaws, but it certainly offered a basis to evaluate the UK government’s view of international law.  In the United States, the equivalent appears to be conversations between the White House Counsel and Charlie Savage of the NYT

Ms. Ruemmler said that while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited.

Come on, Charlie, you have got to push her to elaborate!  Why would it be “justified and legitimate”? Is it illegal but legitimate, or is it actually legal under a theory yet to be revealed by the administration? Has the State Department been asked for an opinion?

I don’t fault the reporter here since the constitutional issue is plainly more important than the international one, as a practical matter.   But I am curious that the President, who has publicly cited international law as a factor in his decisionmaking, has not bothered to offer anything more than a quote in a NYT article to explain its international legality.  To be sure, Congress is not exactly pushing him to do so, but I am surprised the bureaucracy hasn’t generated anything yet. Leak, please!

Can the General Assembly Provide a Way Around the Security Council on Syria?

by Julian Ku

As Samantha Power (the new U.S. Ambassador to the U.N.) demands unilateral action and rages against the deadlocked Security Council, it is worth thinking again about the odd structure of the UNSC and its veto power for P-5 members.  In this light, I would point our readers to an interesting piece by Andrew Carswell forthcoming in the Journal of Conflict and Security Law entitled “Unblocking the Security Council: The Uniting for Peace Resolution.”  Essentially, there is some (very thin in my view) precedent from the Korean War era for the General Assembly to provide authority for the use of military force.  This might allow the U.S. to seek GA endorsement of a strike against Syria due to the deadlock in the Security Council.  As a practical matter, it is far from clear that a majority of the current GA would actually support the U.S. but even if it did, the legal significance of a GA act is uncertain to say the least.  Still, something worth discussing.

Unfortunately, the full article is not quite done but it will be out shortly. This link may provide (for a limited time) access to his almost complete draft. His abstract is below the jump.

RIP, The Doctrine of Humanitarian Intervention?

by Julian Ku

It might be premature to declare the death of the doctrine of humanitarian intervention under international law, but there is no doubt that doctrine suffered a massive blow when the British Parliament voted against a preliminary motion in favor of military strikes on Syria.  To be sure, humanitarian intervention was not directly before the Parliament, but the UK government’s international law justification for the Syria strikes without UN Security Council authorization was almost wholly based on a version of the humanitarian intervention doctrine.  And since the UK government’s motion would have only supported strikes after a report from UN inspectors confirming the use of chemical weapons by the Syrian government, I don’t think doubts about the use of the weapons were the top reason the motion failed.

More likely, the MPs voted against the motion on the theory that even if the Syrian government’s responsibility for the use of chemical weapons was established, the UK should not launch strikes.  To be sure, I doubt many MPs voted no just because they didn’t accept the government’s legal justification, but it obviously didn’t gain a majority support.

Since the UK is one of the few states to openly adhere to the doctrine of humanitarian intervention, and this vote casts doubt on the UK’s future commitment to this doctrine, I would not be optimistic about the future acceptance of this doctrine by other states.  Of course, there is one state out there that might jump on the humanitarian intervention bandwagon, even at this late hour.  But it has not done so yet.

The Legality of a Syrian Military Intervention: Russia, France, and the UK Weigh In

by Julian Ku

It looks like the tragic events surrounding a likely chemical weapons attack in Syria will spark a military intervention by the United States, France, and Britain without the authorization of the U.N. Security Council.  We have already heard President Obama publicly state that international law is a factor in the decisionmaking process in the U.S. and the NYT suggests U.S. officials are looking at Kosovo as a precedent for an intervention.  Now other leading powers are weighing in.  First to the plate, Russia:

“Using force without the approval of the UN Security Council is a very grave violation of international law,” Foreign Minister Sergei Lavrov told reporters.

Speaking at a news conference urgently convened just a few hours before, he added that the West was currently moving towards “a very dangerous path, a very slippery path”.

Next into the fray, France, whose foreign minister seems to concede Russia’s point about legality, but then makes a mysterious reference to bypassing the UNSC.

France’s foreign minister said on Monday no decision had been made yet on whether to take military action against Syria, but doing so outside the auspices of the U.N. Security Council would be problematic.

“It is a problem that will be difficult,” Laurent Fabius told Europe 1 radio.

“International law is defined by the United Nations, but at same time there are countries (on the council) that are blocking (military action)- China and Russia have blocked and would probably block again so it would be a problem…

“In certain circumstances we can bypass it, but international law does exist,” he said without elaborating.

I have no idea what he is talking about in terms of “international law is defined by the United Nations.” I am also wondering what circumstances would allow France to bypass the UN Charter, given that it is defined by the U.N. itself.

It may be that France is following the UK’s lead, as the UK’s foreign minister is also hinting that an attack without UNSC authorization is going to happen.

Mr Hague said diplomatic methods to resolve the civil war in Syria had “failed so far”.

He said the UN Security Council, split over Syria, had not “shouldered its responsibilities”.

The council is made up of 15 members including permanent members China, Russia, France, the US and the UK which have the power to veto any resolution.

But any action could be taken “without complete unity on the UN Security Council”, he said.

He said a response could be “based on great humanitarian need and distress” and “in accordance with international law”.

It sounds like the UK and France are both going to need to come up with some international law theory to justify their support for an attack, and the UK seems interested in the “humanitarian intervention” justification.  If the U.S. goes along with this, it would be interesting to see if the “invisible college of international lawyers” will endorse this legal theory.

Guest Post: The Politics of Responsibility to Protect

by Neomi Rao

In my last post, I introduced my recent article rethinking the concept of responsibility to protect. Today, I consider how the discussion of R2P often obscures the reality of how states go about choosing to intervene by speaking of duties and responsibilities. Some commentators have expressed concern about the selective nature of R2P or about the disappointment of R2P in Syria. But this disappointment simply glosses over the real problem, which is that states simply have no responsibility or duty in these circumstances—rather, they have a choice, which they exercise selectively based on myriad factors.

R2P lumps together two distinct responsibilities that actually have very different foundations. First, the responsibility of a state to its own people; and second, the responsibility of all states to people victimized in other states.

The responsibility of a state for its own people reflects well-established understandings about the nation state—it is an essential aspect of the social contract that the state provides basic human security to the people within its borders. Although state practice often violates these principles (creating the asserted need for intervention), states have widely accepted the basic responsibility to their own people. For instance, no state contested this responsibility in the 2005 United Nations World Summit that affirmed certain principles of R2P.

A responsibility to protect between a state and its people primarily begins with the negative right to be left alone, the right to enjoy life without interference from the state. The social contract, however, includes more than this because within a political society individuals have a claim to be kept safe—for the state to ensure certain conditions of safety to individuals and their property. All governments provide some form of protection from private actors through their criminal justice systems. This demand, however, is inherently a political one within the state. It concerns the type of public resources that should be allocated to crime prevention, law enforcement, incarceration, and rehabilitation.

Importantly, even within the most liberal, rights-respecting countries, there are not enforceable rights to safety or protection from private actors. The United States Supreme Court has repeatedly affirmed that the government does not have an affirmative obligation to protect individuals, even though it may have an obligation to refrain from harmful activities. Instead, the political process determines what the state provides with respect to protection—increased security is balanced against civil liberties, not to mention costs.

The second responsibility between a state and people in other states lacks this political foundation. The claim of victims in other states to protection is essentially a positive claim for rescue from the harms inflicted by their government or by private actors while their government stands by. Consider that victims in Syria have no particular political claim to the assistance of France, England, or the United States. Their plight may present a moral demand for assistance and political pressure may mount through interest groups, the media, international organizations, and former Presidents. Yet the claims of foreigners will invariably present a different calculus than domestic claims and rightly so.

The responsibility to protect people in other states is a positive claim and positive claims require resources (diplomatic, humanitarian, and military). Although proponents of R2P often prefer to shift the language away from “rights,” at its foundation R2P depends on having some conception of the “rights” of people to protection from other states. It is not about leaving the Syrians alone, but rather protecting them from harm. Yet what precisely this right to assistance includes in Syria or elsewhere, no one is able to say.

Even accepting a basic moral responsibility, there remain difficult questions about what action best respects rights and what will serve to promote human rights and security overall. The responsibility will always be contingent on political, military, and other calculations and will be uncertain in any particular instance. Calling this choice a responsibility dilutes the meaning of rights and duties and obscures the actual mechanisms for promoting intervention.

Guest Post: The Choice to Protect (or Not) in Syria

by Neomi Rao

The White House’s recent statement that it would begin supplying Syrian rebels with arms demonstrates how military assistance and intervention remain a choice of states rather than an obligation. Recent events confirm the arguments I make in a recent article The Choice to Protect: Rethinking Responsibility for Humanitarian Intervention. I am pleased to be guest blogging about this topic over the next few days and thank the editors at Opinio Juris for the opportunity.

The comparison between the intervention in Libya and the foot dragging with respect to Syria should cause some rethinking about the doctrine of responsibility to protect (R2P). As readers here are aware, R2P posits that states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. When states fail in this responsibility, the international community and individual states have a responsibility to protect people from serious human rights violations. In the context of Libya, President Obama appeared to invoke this doctrine when he said the United States had a “responsibility to act” to prevent the slaughter of civilians by Gaddafi’s forces. In the latest statement on Syria, “responsibility” is notably absent. There is no mention of the 93,000 people killed in the conflict. Rather, the Administration’s statement focuses on the fuzzy “red line” of chemical weapons, not the humanitarian nightmare of the ongoing fighting.

Action in Syria will depend, the statement made clear, on the Administration’s assessment of the threat and its appropriate response: “[W]e will make decisions on our own timeline. Any future action we take will be consistent with our national interest, and must advance our objectives….” Commentators have considered the legality for intervention in Syria. While these may be important questions of international law, whether the United States chooses to intervene invariably will depend less on considerations of international law as on whether Administration chooses to intervene.

The pragmatism of the Administration’s statement should come as little surprise—powerful states will make their own choices in light of their own interests, regardless of the humanitarian credentials of the foreign policy team. Yet international law scholars and proponents of intervention often ignore these realities and continue to speak of an emerging norm of intervention or of the responsibility of states to people outside their borders. While emerging norms may tolerate intervention, state practice hardly suggests that an emerging norm requires intervention.

Focusing on the choice of intervention and the domestic processes of choosing intervention should be relevant both for proponents of intervention and its critics. In subsequent posts, I will discuss why the responsibility to protect people in other states is theoretically problematic and also explain why the scope of any such obligation rests entirely with the states considering assistance.