Illegal But Legitimate?

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:

The film is faithful to what had actually happened at the sedition trial. As one observer put it, the three speeches at the trial were ‘models of moderation, mutual respect, and felicity of expression.’ Here is a part of Gandhi’s:

It is a painful duty with me but I have to discharge that duty knowing the responsibility that rests upon my shoulders, and I wish to endorse all the blame that the learned Advocate-General has thrown on my shoulders in connection with the [violent] occurrences. Thinking over these things deeply and sleeping over them night after night, it is impossible for me to dissociate myself from the diabolical crimes of Chauri Chaura or the mad outrages of Bombay. He is quite right when he says, that as a man of responsibility, a man having received a fair share of education, having had a fair share of experience of this world, I should have known the consequences of every one of my acts. I know them. I knew that I was playing with fire. I ran the risk and if I was set free I would still do the same. I have felt it this morning that I would have failed in my duty, if I did not say what I said here just now.

I wanted to avoid violence. Non-violence is the first article of my faith. It is also the last article of my creed. But I had to make my choice. I had either to submit to a system which I considered had done an irreparable harm to my country, or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips. I know that my people have sometimes gone mad. I am deeply sorry for it and I am, therefore, here to submit not to a light penalty but to the highest penalty. I do not ask for mercy. I do not plead any [extenuating] act. I am here, therefore, to invite and cheerfully submit to the highest penalty that can be inflicted upon me for what in law is a deliberate crime, and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge, is, as I am going to say in my statement, either to resign your post, or inflict on me the severest penalty if you believe that the system and law you are assisting to administer are good for the people. I do not except that kind of conversion. But by the time I have finished with my statement you will have a glimpse of what is raging within my breast to run this maddest risk which a sane man can run.

Gandhi thus accepted responsibility for breaking the law, while exposing that law as unjust. He did not try to carve out exceptions from the law that would apply to his situation – he admitted he broke it. While he told the Judge that the injustice a conviction would inflict should make him consider resigning his post, Gandhi did not argue that the law was non-law because it was unjust (although he maybe would have done a naturalist lex injusta non est lex if the law in question was, say, Nazi law or some other lex extrema). Crucially, he also accepted responsibility for the immoral acts of others that were a predictable consequence of his own conduct. He ran the risk of evil, and accepted that risk because he felt that the consequence of doing nothing would be even more evil. And the Judge convicted him for breaking the law, while essentially accepting that in applying the law an injustice was being done, at least partially.

So we come back to humanitarian intervention. If I was the US President in 1994, and I had the ability to use force to prevent the genocide in Rwanda which took 800,000 lives, and the UN Security Council would not give me the mandate to do so because of an intransigent permanent member, would I have broken Article 2(4) of the UN Charter to stop that great evil? Yes, and happily so. Indeed, we know from contemporary accounts of Rwanda (e.g. Romeo Dallaire’s) that even a very limited military intervention would almost certainly have stopped the genocide – this is what makes the international community’s failure to do anything so positively atrocious.

Syria, on the other hand, is much more difficult. An intervention capable of ending the Syrian catastrophe would need to be massive, definitely involving large-scale troop deployments on the ground. It carries with it a host of unpredictable risks, including most importantly that of a direct conflict with Russia and the non-trivial possibility of a nuclear escalation. There is no reliable way of estimating the full human and material costs of intervention, but we know for a fact that many people would die as its direct consequence, civilians and combatants alike. And there is no way to be even remotely certain that the intervention would actually work. The past record of intervention in the region does not inspire confidence, to say the least, be it Afghanistan with the ever-resurgent Taliban, the complete shit-show that was Libya (to use President Obama’s own description), or the Iraq disaster, which is directly causally related to much of the current suffering in Syria. It is no wonder therefore that Obama ultimately chose to do nothing, or next to nothing, or that most people in the West can continue to sleep at night even while we’re all collectively doing nothing, or next to nothing. We are, after all, strongly intuitively inclined to believe that inaction is less evil than action that produces the same consequence (e.g. failing to feed a starving child on the street is less evil (yet still evil!) than stealing the child’s food, thereby causing them to starve). And so, while doing nothing was the greater evil for Gandhi, as it was in Rwanda, doing a (military) something may well be the greater evil in Syria as things stand today. The balance of evil is at the very least non-obvious.

What also differentiates humanitarian intervention from Gandhi’s example of civil disobedience is that the underlying norm – the prohibition on the use of force in Article 2(4) of the Charter – is a good norm, not an evil one. It is not only good, but fundamental. If we are to break it because compliance would in these specific circumstances be a greater evil, the moral balance must take into account the significant negative impact that undermining the norm generally would have, as any deliberate act of  non-compliance inherently does. And this norm can inevitably only be broken by states powerful enough to do so, which only further exacerbates the corrosion of Article 2(4), so that we regress to a world in which the strong do what they will, and the weak suffer what they must. It is of course easy to wish for a better world in which the P-5 would not use their veto in the Security Council to block collective decisions on military intervention, but we do not live in that world, nor are the states visiting unilateral interventions upon others – for good motives or bad – willing to relinquish that veto when their own selfish interests are affected.

I hence fully agree with Anthea that breaking the law on the basis that it conflicts with higher-order considerations of justice undermines the authority of the law. I also believe that this should not be done lightly – indeed, the circumstances would need to be truly exceptional. But I still think that ‘illegal but legitimate’ is a coherent position – far more so than the attempts of those who seek to justify humanitarian intervention within the confines of already existing law, by instrumentally poking smaller or bigger holes through that law. Not only are these arguments lacking in formal validity (remember how the number of states openly endorsing a rule permitting humanitarian intervention is in the single digits, while at least 130 have openly rejected it, and the US in particular has until now expressly refused to espouse it), they also open up significant potential for further norm-erosion and abuse. Consider, for example, the position of my friend Jens Ohlin, agreeing with Harold Koh in the result but not in argument, basing his own view on what I can only say is a strained reading of the word ‘inherent’ in Article 51 of the Charter, and concluding that ‘we should interpret the law to make sense.’

Whose sense, exactly, must the law make? Doesn’t it already make sense? Doesn’t it already make sense that a single state should not legally have the right to determine unilaterally whether force should be used against some other state? Yes, the Charter collective security system is not always working as designed – but that doesn’t mean it makes no sense. After all, don’t most domestic legal systems not always work as designed? Would we expressly allow, in any domestic legal system, a Batman, caped crusader-type vigilante to enforce the law because the state’s enforcement machinery is not working in any given instance?

Finally, what I find genuinely astonishing about the humanitarian intervention-type justifications of last week’s US strike in Syria is how these arguments are made even when the facts on the ground manifestly disfavour them. First, what did the strike actually accomplish? We have no way of knowing now what the long-term consequences, good or bad, of the strike will be. But we do know in the short-term that the Syrian airbase which was targeted is apparently still operational and that planes from that very base dropped conventional bombs on the same rebel-held city which was previously attacked chemically. The Assad regime knows very well how to carry its terrorizing message across. Second, the Trump administration appears to have no discernible follow-up strategy to deal with the humanitarian disaster in Syria – from what was both said and done, the purpose of the strike was to deter Assad from using chemical weapons again, not to actually stop the Syrian catastrophe. Third, that leads us to the morally utterly intolerable position that we can intervene at our discretion when children are killed by chemical weapons, but that we can choose not to intervene, and will not intervene, when many more children are killed by bullets or explosives. If this is humanitarian intervention, I at least want nothing to do with it.

And last, but by no means the least, there are the intentions and character of the head of the interventionist government, the single individual making this decision to act, now affectionately known to some as Abu Ivanka al-Amriki. Does anyone actually believe that, with his established record of malevolence tempered only by incompetence, Trump genuinely wants to alleviate the humanitarian plight of the Syrians? That his is a genuinely humanitarian purpose? Have we already forgotten in that regard that his administration recently tried (twice!) to enact a categorical ban on the admission of refugees from Syria? Isn’t his motive for intervention an obviously selfish and pedestrian one, i.e. that he for internal political reasons does not wish to project the same image of inaction that he publicly and repeatedly castigated Obama for (sad!) and will thus now demonstrate his manly decisiveness with some bigly boom-booms and warships on TV?

In sum, whether you believe that the law can be broken for higher causes, or that the law should or already does accommodate humanitarian intervention, this is not where you fight the good fight. This is not Rwanda in 1994. This is not even Serbia and Kosovo in 1999, where – although it was my city being bombed, while I was in it – I can still accept an arguable interventionist case could perhaps have been made. This is as far from a humanitarian intervention on the legal spectrum as Trump is from Gandhi on the human spectrum. This is a clearly, unambiguously illegal use of force. And it may yet become a complete shit-show.