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

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.

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.

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Filed under: EJIL Analysis, Syria, Use of Force
 

9 Responses

  1. Veronika Bilkova Veronika Bilkova

    Very well written, dear Anthea, thanks for this useful post.
    The non-precedent argument would only make sense if it were accepted that there are some States (and only them) which can “decide on the exception”, whereas anyone else has to stick to the rule. The NATO tried to make a sort of this argument in 1999, though it was hidden under the “special circumstances” veil.
    Yet, this argument has clearly not persuaded everyone. And, as you write, in an increasingly multipolar world, it is less and less likely that it will do so.

  2. Monica Hakimi

    Hi Anthea,

    Thanks for engaging with my argument. Let me say at the outset that I am not defending the U.S. action. The question that I aimed to address is this: given that the United States acted, with fairly broad support from other states and very little condemnation, what’s the best way to maintain the integrity of the Article 2(4) prohibition? The best way is unlikely to be an affirmatively good way; it might well be deeply imperfect. It just has to be better than the available alternatives.

    We agree (and I myself underscored) that, when singular violations repeat themselves, they form a pattern and become harder to treat as one-off incidents. We also agree that any incident is, in some sense, a precedent. But in my view, it’s premature to claim that the United States (and other states) have a consistent practice of using and condoning forcible reprisals. It’s been almost 25 years since the Baghdad incident. And although the United States has violated the jus ad bellum in other ways, it has also repeatedly acted to support this regime. Its relationship with the jus ad bellum is complicated. (For more on this point, see my blog post here: https://www.ejiltalk.org/international-law-in-the-age-of-trump/)

    As it turns out, the 1993 Baghdad strikes have been treated as a one-off incident. As Jacob Katz Cogan and I explained in our recent EJIL paper (See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2711899), they have been treated that way largely because the United States and other states refrained from trying to justify them with a generalizable legal rule that would be transferable to other cases. The alternative was for the United States to advance an aggressive legal claim in a case in which the claim’s invocation and application (if not its precise articulation) had general support. In my view, that alternative would have done more to deteriorate Article 2(4) — and raise uncertainty about states’ continued commitment to it — than did the path actually taken.

    Monica Hakimi

  3. Terry Washington

    To argue that the recent airstrikes against Syria were de facto illegal and presumably unjustified simply because they were unauthorized by the UN Security Council ignores the cold fact that Assad’s protectors(Russia and China) would most likely have vetoed any Security Council resolution that would have approved or authorized the use of force- just as BOTH nations have vetoed attempts by Britain and the US to ask the ICC(International Criminal Court) to investigate allegations of war crimes committed(by both the rebels and Assad’s forces alike) during the conflict. As with the NATO intervention in Kosovo in April 1999 (and before it L’affaire Pinochet), if I have to choose between human rights and state sovereignty, human rights trumps(no pun intended) sovereignty every day of the week and twice on Sunday!

  4. […] hence fully agree with Anthea that breaking the law on the basis that it conflicts with higher-order considerations of justice […]

  5. Oleksandr Merezhko

    If we take the UN Charter literally, and I believe that we should take it this way, then, first of all, Russia is not the UN member-state. Only the USSR is mentioned in the UN Charter, which had stopped its existence as a subject of international law in 1991. Russia had absolutely no right to usurp the USSR’s seat on the Security Council (neither under the UN Charter, nor under general international law). The point is that the US, to solve the Syrian crises, should have asked Russia to leave the Security Council and to adopt the corresponding resolution without Russia. It would completely in line with the UN Charter and general international law. And it would be consistent.

  6. Jordan Paust

    Terry: a related point is that Article 2(4) expressly does not prohibit all uses of force. The false first premise is that it does.

  7. Ignatius Okenwa

    I think it’s proper to observe with respect to the point being addressed by this article, that, the United States have over the years shown itself as being above the fundamental principles of customary international law, and thus has a history or what the writer referred to as “pattern” of repeated violation of same.This pattern seems to suggest that the United States have one way or the other established the discretion whether rightly or wrongly exercised by the authorities in Washington as the applicable law at any given point in time irrespective of what the UN Charter and the established practice of the UN on such issue or matter is. In many of those instances of sheer violation of the applicable norms of international law, there are usually several nations particularly those from the West and its allies elsewhere who are usually ready and willing to support the seemingly illegality as the writer subtly noted in the article also, either owing to any special relationship that may exist between them and the United States at the time (as is usually case with most NATO members) or because some of the countries felt that their interest are not affected by the illegal action and as such it would serve their interest better if they remained silent or neutral without taking sides in the ensuing reaction thereto so as not to incur the wrath of the mighty United States. Another important reason why this seems to be the case in recent time is that the UN as envisaged under 1945 Charter in San Francisco has clearly ceased to exist either because it is usually bullied into doing the bidding of the United States most times, or that the United States always feel comfortable knowing that it will secure the support of UK and France the two other members of the Security Council outside China and Russia as have been the case in recent time with respect to the several seemingly illegal or unauthorized military interventions the world over. The law it must be noted, appears more effective and commands more respect when its principles are somewhat clear and respected by all and sundry without any state however formidable within the international system, trying to foist the Orwellian double standard principle or cliche that, “all animals are equal, but some are more equal than the others”. Again, it may be the unexpressed rule that the lofty ideals behind the establishment of ICC and effort in that regard should not apply to the leaders of the West ( and by West, I mean the United States and the countries of western Europe) but only apply to developing countries, particularly in Africa, Eastern Europe, South America and some others in Asia, etc. For instance, the Chilcot Report in the UK indicted the former Prime minister of UK and by extension the former US president, George W. Bush with respect to their roles in the clearly illegal and authorized invasion of Iraq in 2003 which set the ground for the emergence of ISIS/ISIL chiefly responsible for the current wave of terrorism in MENA and other parts of the world.There is also the military intervention in Libya that actually exercabeted the situation in the MENA region which former president Obama has acknowledged as one of his greatest mistake and regret as a president. None of these seemingly war criminals from the West have ever been invited by the ICC talk much of being formally declared war criminals by the court, which as noted earlier appear to be effective when it comes to the alleged atrocities of some leaders of less powerful states.
    The impression being created is that might remain right, and that if a state wishes to lay claim to the now seemingly non existent but famed equality of states under customary international law, it must go the extra length to maintain that status by acquiring or possessing the fundamental deterrent capabilities (nuclear weapons and other WMDs) as North Korea is currently resolved or have a formidable ally with such capabilities as Assad’s Syrian government seems to have achieved in it’s relationship with Russia. It must be noted in this regard that the recent military action by the United States under Trump leadership against Syria is not lost on Kim, yhe North Korean leader given his observations after the Syrian strike by the United States and can be said to have been emboldened to get his desired weapon so as to be capable of inflicting a monumental damage of any would be aggressor that may venture into its domain or on some of their important allies. The world urgently need to return to such era where the basic principles of international law are respected by all and sundry without exception and where most crucial international issues are resolved through diplomacy rather than through unilateral and or regionally approved military actions short of express or implied UN authorization. Take it or leave it, the era when Russia and China overlooked certain or most international issues or matters affecting their respective national interests be it geopolitical or economic is well behind. There must be returned to the international political arena some measure of responsibility by all, particularly the present major powers or the world as we know it will soon evaporate in our very eyes before we know it, given the seemingly hardline posture of some if not all of these major powers, such as the United States, Russia and China. No amount of semantics would render legal or justifiable in my view under the principles of international law as we know it the recent military action by the United States against Syria, and seeking to justify same as a one of or exception is dangerous to the entire international system given the pattern such seemingly one of or exception has assumed in recent time and most of which involves the United States and usually supported either actively or passively by its hoardes of allies in most cases.

  8. Jordan Paust

    What does widespread silence mean? One should not jump to a conclusion that silence is approval or an expectation of legal validity. Silence is not opinio juris or generally shared objective meaning. So how can silence be “precedent”?

  9. Mary Ellen O'Connell Mary Ellen O'Connell

    I wish to underscore and add to Veronika’s important comment on the problem of excusing ad hoc exceptions to the prohibition on the use of force. Those defending such cases likely have particular States in mind as being worthy to call the exception.

    This sort of argumentation is a problem for any legal system if the exception is called too often, regardless of the virtue of the caller. With respect to international law on the use of force, not only will we not reach consensus on the “worthy”, the prohibition on force already has exceptions that do reflect consensus.

    In all other cases, the legal and moral answer is to look to non-lethal alternatives to “send a message” of outrage over law violations.