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.
Here, the pattern looks like the United States wants to uphold Article 2(4) in general while being prepared to violate it when it judges that the circumstances so require, albeit for a host of different reasons in each specific case. When it does so, the United States often does not offer a legal justification because, by its very nature, a legal justification sets out a general rule and the United States might find that general rule over or under inclusive in the next case. A general rule also has the disadvantage from the United States’ perspective that it can be invoked by other states. Instead, the United States simply breaks the rules and waits for others to acquiesce or provide (somewhat muted) support.
And other states often do just that. Some states will expressly support the United States’ actions, whether on moral, legal or pragmatic grounds. Many others will remain silent, either because they do not object to the action or outcome or they judge that it is not in their self-interest to voice such an objection when the target is neither themselves nor a close ally. Certainly, Assad’s actions in Syria are unlikely to inspire sympathy and support in many other states, and for good reason. A few states will vociferously object to the United States’ actions, but they will often be maligned as unconscionable rule violators themselves with the implication that their complaints will be discounted.
Second, the United States cannot counter the harm done to Article 2(4) by simply underscoring its overall commitment to the prohibition on the use of force. Imagine if someone sought to uphold the sanctity of marriage by reaffirming their wedding vows while at the same time asserting that a repeated pattern of singular cheating did not evidence a lack of commitment. Would that uphold the sanctity of marriage in general or give one faith that the particular person took their marriage vows seriously? I don’t think so.
That leads to one of the other problems with this argument. A state can attempt to define its own precedent but the value of a precedent also depends on how others characterize it. As a state, you don’t own your own precedent. To some extent, a precedent is in the eye of the beholder. This is all the more so when the state that acts refuses to give a justification that seeks to describe and delimit the precedent that it is setting.
Whether the United States likes it or not, this precedent will be used against it at a later date. In doing so, other states could invoke the precedent relatively narrowly. For instance, even though many NATO states failed to invoke unilateral humanitarian intervention as a justification for their use of force in Kosovo, Putin was very happy to invoke that precedent for his intervention in Crimea while at the same time criticizing the West for hypocrisy in complaining about Russia’s use of force.
Or states in an adversarial relationship with the United States could invoke the precedent relatively broadly as showing the United States lacks respect for international law in general. For instance, in response to claims by the United States that China should abide by the award in the South China Sea arbitration in order to uphold the international rule of law, the Chinese state-owned media repeatedly pointed out that the United States was guilty of double standards because it had also flouted a decision by an international court in the Nicaragua case and so could hardly point the finger (see, for example, here and here).
If the United States reaffirms its general commitment to Article 2(4) without trying to legally justify its actions in this case, that will simply play into the arguments made by Russia and China that the United States is guilty of hypocrisy and double standards. As a policy matter, this risk might be one that is worth taking given the gravity of Assad’s actions. But the lesson that other great powers are likely take from this action is that, if the United States doesn’t think international law applies to its own actions, neither should they. In an increasingly multipolar world, that is a lesson that should be of concern to the United States.