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Forcible Humanitarian Action in International Law- part II

Published on May 18, 2017        Author: 

Part II of a Two-Part Post

Interpreting Article 2 (4) of the UN Charter

According to the concept of representation noted in Part I, forcible humanitarian action is not intervention or a prima facie unlawful use of force, given the actual or implied consent of the true sovereign. However, even if forcible humanitarian action is considered an instance of the use of force that requires justification, it is still lawful.

Article 2(4) of the UN Charter precludes the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations. The reach of that obligation has been debated since the inception of the Charter. Some argue that Article 2(4) did not affect pre-existing customary law, which permitted forcible humanitarian action, much like Article 51 of Charter on self-defence has not overturned the conditions for the exercise of that right expressed in the Caroline formula of 1841/2.

Others claim that Article 2(4) was meant to impose a blanket prohibition of the use of force, save for self-defence and action mandated by the UN Security Council under Chapter VII of the Charter. This is countered, however, with reference to the fact that Chapter VII never came into full operation, at least during the Cold War years.

Even after the termination of the Cold War, collective action has often been precluded by the particular interest of the one or other permanent member of the Council holding a veto. This would leave populations without the protection of international action which was assumed to be available when Article 2(4) was drafted. It would be manifestly unreasonable to leave them exposed to destruction merely due to the peculiar interest of the one or other powerful state exercising a capricious veto. Read the rest of this entry…

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Forcible Humanitarian Action in International Law- part I

Published on May 17, 2017        Author: 

Part I of a Two-Part Post

There is a widespread myth amongst international lawyers. This is the apparently unshakeable proposition that forcible humanitarian action is clearly unlawful. Any changes to that proposition would be impossible, given:

  • The preponderance of the doctrine of sovereignty over countervailing considerations, such as human rights;
  • The requirements for the formation of a new rule of customary international law in favour of forcible humanitarian action;
  • The additional requirements involved in any change to the prohibition of the use of force, which unquestionably enjoys jus cogens status; and
  • The supposedly inevitable abuse of the doctrine.

The recent blog debate about the cruise missile strike in connection with the use of chemical weapons in Syria offers an example of this, starting with a presumption against forcible humanitarian action that can hardly be overcome ( see herehere, here, here and here).

That default proposition may have been persuasive to some during the Cold War years. However, it can no longer be maintained. For it is not in accordance with an unbroken understanding of the relationship between the state and its population since the emergence of states and the doctrine of sovereignty in the renaissance, it disregards very clear evidence of international practice, and it ignores very fundamental shifts in legal doctrine and scholarly opinion. Read the rest of this entry…

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The Precedent Set by the US Reprisal Against the Use of Chemical Weapons in Syria

Published on May 1, 2017        Author: 

In his recent post on the United States’ missile strike against a Syrian airbase, on 6 April 2017, Marko Milanovic focused primarily on the unlawfulness of that action (here). While I agree with that view, in this post, I wish to focus on the nature of the precedent which the US reprisal has set. Moreover, I argue that this instance of use of a forcible countermeasure by a permanent member of the UN Security Council (UNSC) should serve to refocus attention on a dysfunctional UNSC.

Three remarks at the outset: (a) This post concerns only “forcible countermeasures” or “reprisals”; (b) I characterise the US missile strikes as a reprisal against Syria’s use of chemical weapons. Although other characterisations have been proffered (for instance, humanitarian intervention or providing assistance in a counter-insurgency), the US administration has framed its actions primarily in terms of a forcible response to the use of chemical weapons (see below); and (c) I rely on the assumption, tendered by the US but disputed by Russia, that Syria was responsible for the chemical attack.

The Legal Framework

A useful starting point for this discussion are the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001, which have been said to present “a combination of codification and progressive development” (Harris, Cases and Materials on International Law, p. 422). Article 49(1) of the Draft Articles states that “An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations…” Thus, while the Draft Articles envisage the lawfulness of countermeasures in certain circumstances, it is important to clarify briefly: (1) which countermeasures are envisaged; and (2) which party may undertake them. Read the rest of this entry…

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Excusing Humanitarian Intervention – A Reply to Jure Vidmar

Published on April 27, 2017        Author: 

The US strikes in Syria, for which the US offered no legal justification, have once again ignited the debate on the qualification of such acts as illegal but legitimate – a label that had been used, in its day, to describe NATO’s use of force in Kosovo. Legally speaking, what does this sentence mean? Jure Vidmar, in his post on this blog, attempted to explain it by means of the distinction between justification and excuse. As Vidmar explains, excuses usually (but by no means always) cover situations in which conduct, while illegal, is nevertheless the morally right thing to do in the circumstances. He sees this type of reasoning behind the reactions of other States to the US action – expressing support for the action as the right thing to do, but unwilling to go as far as to say that the conduct was permitted or lawful.

The argument is certainly plausible (although note that no State has used the language of excuse in these circumstances which is, in my view, somewhat problematic for the argument). However, it raises a number of important issues which may, ultimately, undermine the very purpose of excusing an actor engaged in humanitarian intervention. I want to consider three of these here: (i) the current recognition of excuses in international law; (ii) the availability of excuses in respect of the breach of peremptory rules; and, (iii) the potential effects of excusing states for humanitarian intervention. I will address each of these in turn.

Excuses in International Law

Excuses are defences that arise from properties or characteristics of actors which, while having no effect on the illegality of the act, shield that actor from responsibility for its (illegal) actions. By contrast, justifications are defences that arise from properties or characteristics of acts and have the effect of rendering those acts lawful, despite apparently breaching a rule of the legal order. Read the rest of this entry…

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United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

Published on April 18, 2017        Author: 

A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?

The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? Read the rest of this entry…

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Excusing Illegal Use of Force: From Illegal but Legitimate to Legal Because it is Legitimate?

Published on April 14, 2017        Author: 

The US missile strikes on Syria have, inter alia, revived the debates on humanitarian intervention, the argument of ‘illegal but legitimate’ and more generally on the exceptions to the prohibition of the use of force. For some examples see here, here and here. Some contributors have pointed out that the US did not even try to bring this action within the ambit of the Charter rules on the use of force, and that the absence of Charter-based arguments may even be a good thing as it preserves the strength of Article 2(4). Others have cautioned that the strength of the rules on the use of force might nevertheless be undermined, as singular ‘exceptional’ cases result in a pattern.

This post argues that, analogous to the concept of defences in municipal legal systems, international law on the use of force should adopt a systematic distinction between justifications and excuses. As responses to the US missile attack in Syria demonstrate, the two concepts are conflated. The result is that legality is often assessed on the basis of excuses. If the trend of conflation continues, the controversial doctrine of ‘illegal but legitimate’ will move toward an even more controversial doctrine of ‘legal because it is legitimate’.

Justifications are legally-warranted exceptions to the general prohibition. As such, they are a way out of illegality. Excuses, on the other hand, are not a way out of illegality, but act as mitigating circumstances that preclude responsibility for an otherwise illegal conduct. Under some circumstances, breaching the law may indeed be the choice of a lesser evil. As noted by Vaughan Lowe in his 1999 EJIL article, a legal system may wish to provide a defence for emergency drivers who breach the speed limit on the way to hospital. There are two ways of achieving this goal. One way is to give them an explicit authorization to breach the speed limit. The other one, however, does not authorize speeding, but rather ensures that emergency drivers are not prosecuted upon such a breach of traffic rules. The first (justification) relaxes the norm itself and may well result in wider disobeying of the speed limit than the second, which merely provides for a carefully weighed excuse of culpability where the norm was doubtlessly breached. In other words, it is better if the general norm is strong and ‘catches’ more violators whose excuses are then considered on a case-by-case basis. I elaborate on these issues in more details in this 2015 concept paper. In the present context, might the ‘emergency driver logic’ apply to the US strike in Syria? Even if it did, it would not make this action legal. Possibly, the US could only escape responsibility for this internationally wrongful act.  Read the rest of this entry…

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Illegal But Legitimate?

Published on April 10, 2017        Author: 

I have always thought that proponents of humanitarian intervention simply cannot make a persuasive case that it is already an existing rule of international law (even if they can make a case that it should be a rule of international law). I have similarly always thought, on the other hand, that the position that an intervention is legally prohibited but that it can nonetheless be politically legitimate or morally justified in exceptional circumstances is conceptually perfectly coherent. (Maybe – well, certainly – my views on this are coloured by my shamelessly comprehensive adoration of Bruno Simma, but there you go.) If we are operating in a positivist framework, even the mildest forms of positivism by definition mean that something that is lawful is not necessarily just. And since we are endowed with free will, we can choose to break the law for higher-order considerations, morality and justice, if we are willing to pay the price of non-compliance.

Whenever people talk about an act being illegal but legitimate I also always remember this scene from Richard Attenborough’s film Gandhi – in the scene Gandhi is tried, in 1922, for fostering disaffection against the British government of India, thereby causing several major outbreaks of violence. And here is what happens:

Read the rest of this entry…

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Syrian Strikes: A Singular Exception or a Pattern and a Precedent?

Published on April 10, 2017        Author: 

In a recent post, Monica Hakimi argued that, rather than crafting a legal justification for the United States’ use of force in Syria, we should instead treat it as a “one-off incident for addressing conduct that, if not deterred, could be destabilizing,” much like occurred in the United States’ Baghdad strikes in 1993. In order not to further undermine the Article 2(4) prohibition on the use of force, the United States should at the same time “underscore its overall commitment to and investment in” the law governing the use of force so as to avoid the impression that “the United States does not view the jus ad bellum, and maybe international law more generally, as normatively relevant in the global order.”

I do not want to take issue with whether or not the United States should have taken action in this case, or whether or not this use of force supports an existing or emerging doctrine of unilateral humanitarian intervention. Others are addressing these points (see, for example, Koh). Rather, as I set out previously in a paper on Legality vs. Legitimacy: Can Uses of Force be Illegal but Justified?, I want to register concerns about the argument that states can violate international law and yet simultaneously seek to preserve the Charter prohibition by reaffirming Article 2(4) while characterizing their own conduct as a singular exception.

First of all, this kind of violation of Article 2(4) is not a one-off incident. There is something ironic about arguing that we should treat this violation as a singular use of force much like we treated another violation of Article 2(4) by the United States. In one sense, every violation is singular because every violation has its own unique facts. But, in another sense, when singular violations occur again and again, they no longer look like singular violations … they look like a pattern. Whether something appears to be singular or a pattern often depends on the level of generality one employs in making the assessment. Read the rest of this entry…

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Filed under: EJIL Analysis, Syria, Use of Force
 

US Strikes against Syria and the Implications for the Jus ad Bellum

Published on April 7, 2017        Author: 

The blogosphere is abuzz with reactions to the U.S. strikes against Syria. My guess is that most international lawyers will agree with Marko Milanovic that the strikes were unlawful. Article 2(4) of the Charter prohibits the use of force by one state against another, except in self-defense or with the UN Security Council’s authorization. Neither exception seems to apply here. Moreover, although some have argued that international law also recognizes (or is in the process of recognizing) an exception for humanitarian interventions, that view is not widely endorsed. In any event, it would not obviously apply in Syria. Even Harold Koh — who has articulated one of the best justifications for unilateral humanitarian interventions — has recognized that “[i]t is too early to judge” whether the Syria strikes are lawful. In particular, it is not clear that the strikes “would demonstrably improve the humanitarian situation” in Syria.

My goal in this post is not to advance a different position on the law. It is instead to examine the implications of the U.S. action for the broader legal order.

A. Supporting the Prohibition of Chemical Weapons

Chemical weapons are not the only means with which the Assad government has committed atrocities, but they are a particularly barbaric and indiscriminate means. Assad’s repeat use of them, with apparent impunity, has weakened the absolute prohibition of chemical weapons — and with it, international humanitarian law (IHL) more generally. Those who are not steeped in international law inevitably interpret this fact pattern to mean that, IHL notwithstanding, anything goes in wartime, at least for those who have the right allies.

The U.S. strikes were intended to convey a different message – to show that the world is willing to enforce, however imperfectly and inconsistently, the prohibition of chemical weapons. To be sure, the humanitarian crisis in Syria will almost certainly continue. The point was not to address that crisis as a whole but rather to say that some things are never permissible, even in wartime. Indeed, most states that have expressly commented on the incident have suggested that they, too, view the strikes as appropriate. As such, the strikes are likely to have the effect of bolstering a prohibition that had been deteriorating. Read the rest of this entry…

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Filed under: EJIL Analysis, Syria, Use of Force
 

The Clearly Illegal US Missile Strike in Syria

Published on April 7, 2017        Author: 

Yesterday, the United States launched a missile strike against an airbase of the Syrian armed forces, in response to the recent chemical attack that the US claims was launched from this airbase. This is the first time that the US has directly used force against the Syrian regime. It is also the first time that its use of force in Syria is clearly illegal. Clearly, in the sense that I can’t imagine even a remotely plausible argument (let alone a persuasive one) as to why this act is not a breach of Article 2(4) of the Charter. (And arguably of US constitutional rules on the use of force – for which see Marty Lederman’s post on Just Security).

While the US use of force against ISIS on Syrian territory also implicates Article 2(4) of the Charter, the US at least has a reasonably plausible claim to collective and/or individual self-defense in that respect, even if this issue is hugely controversial. In this case, however, no self-defense claim can be made, since the Assad regime targeted its own population (assuming that the facts as alleged by the US are correct). Nor is the US publicly making such a claim. The official statement of the Pentagon quoted in Marty’s post states that ‘[t]he strike was intended to deter the regime from using chemical weapons again.’ Its purpose was therefore clearly retaliatory or deterrent, rather than defensive.

International law does not permit forcible reprisals that would breach Article 2(4), even if the purpose of the reprisal is to induce the other party to comply with its legal obligations. The US also has no Security Council authorization to do this act. Nor is the US claiming, or has ever espoused, a doctrine of humanitarian intervention (like the UK government does, for instance). And even if there was a customary humanitarian intervention exception from the prohibition on the use of force (and there isn’t), its requirements would clearly not be met in this instance. Hundreds of thousands of people have died in Syria even without the use of chemical weapons, and thousands of people will continue to die even if the Assad regime never uses such weapons again. There is, in other words, nothing legally or morally unique about the use of chemical weapons as opposed to other war crimes and crimes against humanity in Syria which did not (and will not) provoke an interventionist response.

In short, this is a situation in which the US government doesn’t have even a colourable argument that its conduct is lawful. It may, of course, decide to break the law (as it did), by thinking that the breach of the law is justified by higher moral considerations (‘illegal but legitimate,’ etc), and by thinking that under the circumstances it is unlikely to pay a high political cost for its breach. At a moral or political plane, this argument rests on an (at this time untestable) assumption that the strike will do more good than harm. But the Charter has nonetheless been broken, and at that with a rare clarity.

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Filed under: EJIL Analysis, Syria, Use of Force