The Syria Strikes: Still Clearly Illegal

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The strikes conducted this week against Syrian government targets by the US, UK and France are as manifestly illegal as the strikes conducted by the US alone last year. With one exception, the strikes are identical in the arguments made by the intervenors, in the reactions to those arguments by other states, in the deliberate use of silence and ambiguity, and in the consequent inability of this breach of international law to actually cause a shift in international law.

Like last year, the US (and France) failed to put forward any legal argument as to the source of their authority to act under the UN Charter system of the prohibition on the use of force. Their leaders spoke of the imperative need to avoid normalizing the use of chemical weapons; President Trump stated that the purpose of the strikes ‘is to establish a strong deterrent against the production, spread, and use of chemical weapons;’ Prime Minister May said that there was ‘no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian Regime;’ President Macron spoke of the operation being directed solely against the clandestine chemical arsenal of the Syrian regime.

The language of deterrence used has the flavour of armed reprisals. Not only are such reprisals widely regarded as unlawful, but none of these governments actually clearly sets out an argument on the basis of reprisals. As the ICJ has explained in Nicaragua, para. 207, it is for states to articulate their own legal views, and it is on the basis of these views that other states can react, perhaps towards the creation of a novel rule or exception to an existing rule. In the absence of such a position, however, the approval of the strikes or lack of condemnation by third states has no bearing on the formation of customary international law, or on the evolving interpretation of the Charter. This is the barest minimum of formality required in a legal system, even a flexible one. This is not, as Monica argues in her post, a ‘simplistic’ position lacking in nuance – even if it is conceptually simple, and should be conceptually simple. This is the only dividing line we can have between law and politics, between legal and political arguments.

States have to be taken at their word. It is not for international lawyers to invent justifications for state behaviour that these states do not themselves make. The fact that both the intervenors and their supporters studiously avoid the language of legality confirms that they do not regard the Charter as now encompassing an exception to the prohibition of armed reprisals against states using weapons of mass destruction (see e.g. here for a summary of the debate in the Security Council – note in particular the justifications for the vote against (or abstaining from) the Russian draft resolution condemning the strikes; here for the statement of the German chancellor; here for a statement of the NATO Council). Rather, what we have here are states willing to engage in, or tolerate, a one-off (or two-off) exceptional breach of Article 2(4) of the Charter for the sake of some other political and moral considerations, but unwilling to modify the law for the future as a general matter. Whether this is a good thing or bad (it’s bad) is a different question, but there is nothing unfathomable about this phenomenon – individuals and states frequently break the law (any law) if they think they can get away with it or the penalty for breaking it is light, and/or if some higher-order interests justify doing so.

This brings us to the one really exceptional state in this whole affair – the UK – which, unlike its allies, did now articulate a clear legal basis for its use of force: the doctrine of humanitarian intervention. Here is the summary of the UK’s official position, based in the advice of the Attorney-General, Jeremy Wright.  It is divided into two parts – first, the elements of the rule that the UK thinks governs/permits humanitarian intervention, and second, how these elements are satisfied on these specific facts. Note how the UK’s explicit reliance on humanitarian intervention – not repeated by its allies – by implication further supports the conclusion that the UK is not relying on any theory of permissible armed reprisals.

The first part is based on the UK’s official position after Kosovo, reiterated in 2013 regarding Syria:

3.The UK is permitted under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering. The legal basis for the use of force is humanitarian intervention, which requires three conditions to be met:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian suffering and must be strictly limited in time and in scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).

The obvious problem with prong (i) is what does it mean for the ‘international community as a whole’ to generally accept evidence of extreme humanitarian distress on a large scale – presumably that would have to include Russia and China. But the general validity of the UK’s position aside, it is its application to the facts that is completely untenable:

(i) The Syrian regime has been using chemical weapons since 2013. The attack in Eastern Damascus on 21 August 2013 left over 800 people dead. The Syrian regime failed to implement its commitment in 2013 to ensure the destruction of its chemical weapons capability. The chemical weapons attack in Khan Sheikhoun in April 2017 killed approximately 80 people and left hundreds more injured. The recent attack in Douma has killed up to 75 people, and injured over 500 people. Over 400,000 people have now died over the course of the conflict in Syria, the vast majority civilians. Over half of the Syrian population has been displaced, with over 13 million people in need of humanitarian assistance. The repeated, lethal use of chemical weapons by the Syrian regime constitutes a war crime and a crime against humanity. On the basis of what we know about the Syrian regime’s pattern of use of chemical weapons to date, it was highly likely that the regime would seek to use chemical weapons again, leading to further suffering and loss of civilian life as well as the continued displacement of the civilian population.

(ii) Actions by the UK and its international partners to alleviate the humanitarian suffering caused by the use of chemical weapons by the Syrian regime at the UN Security Council have been repeatedly blocked by the regime’s and its allies’ disregard for international norms, including the international law prohibition on the use of chemical weapons. This last week, Russia vetoed yet another resolution in the Security Council, thwarting the establishment of an impartial investigative mechanism. Since 2013, neither diplomatic action, tough sanctions, nor the US strikes against the Shayrat airbase in April 2017 have sufficiently degraded Syrian chemical weapons capability or deterred the Syrian regime from causing extreme humanitarian distress on a large scale through its persistent use of chemical weapons. There was no practicable alternative to the truly exceptional use of force to degrade the Syrian regime’s chemical weapons capability and deter their further use by the Syrian regime in order to alleviate humanitarian suffering.

(iii) In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention to strike carefully considered, specifically identified targets in order effectively to alleviate humanitarian distress by degrading the Syrian regime’s chemical weapons capability and deterring further chemical weapons attacks was necessary and proportionate and therefore legally justifiable. Such an intervention was directed exclusively to averting a humanitarian catastrophe caused by the Syrian regime’s use of chemical weapons, and the action was the minimum judged necessary for that purpose.

The fundamental issue here is what exactly is the humanitarian catastrophe that requires a unilateral armed response, i.e. how the scope of that disaster is to be defined, because it is only then that we could do a necessity/proportionality analysis. One option is that the humanitarian catastrophe is the Syrian war as a whole; the hundreds of thousands dead and millions displaced mean that answering this question in the affirmative is relatively easy, and this is exactly what the UK government does in (i). But a different option is that the deaths resulting from the use of chemical weapons constitute a humanitarian catastrophe, which is the option the UK government uses in (iii). Note the inconsistency between these two positions, and the obvious reason for that inconsistency – the UK government knows well that only a military intervention on a truly massive scale could (potentially!) alleviate the suffering caused by the Syrian war as a whole; what it wants to do instead is a very limited intervention focused specifically on chemical weapons, but that does almost nothing for the wider humanitarian catastrophe – only a minuscule proportion of all human casualties in the war, probably less than 1%, were caused by chemical weapons.

In other words, the necessity/proportionality analysis under the third prong of the UK test would be meaningless if the Syrian war as a whole constituted the relevant humanitarian catastrophe, because the allied response is manifestly unsuited to stopping that catastrophe – it just can’t work. Which is why the UK redefines the scope of the catastrophe, ending up with the entirely morally arbitrary conclusion that killing a thousand people with chemical weapons requires a unilateral military intervention without Security Council approval, whereas killing hundreds of thousands with conventional weapons does not. As I explained before, this is not a morally or legally coherent concept of humanitarian intervention. Even if the US/UK/France strikes are perfectly successful and Assad never uses chemical weapons again – and this is a big if, in light at least of the apparent failure of last year’s strikes to achieve that purpose – the war and the atrocities will still go on. In short, Donald Trump’s  indescribably inane tweeting of ‘mission accomplished’ is exactly what’s wrong about this whole operation if it is seen from the lens of humanitarian intervention. What is accomplished is so, so very little, at a potentially very high cost.

To conclude, the UK’s humanitarian intervention argument is so bad even on its own terms that it is clear why the US and France chose to stay silent – no legal argument is in their view a better option than a palpably bad one. And every legal argument that could be put forward here is a palpably bad one – morally right or wrong, wise or stupid, the strikes are simply, unconditionally, unambiguously illegal.

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    Alessandra Asteriti says

    April 15, 2018

    0.25 of the deaths are caused by chemical weapons (approximately, as precise numbers on Syrian casualties are not available. Never has the word proportionality been so meaningless.

    Sean Shun Ming Yau says

    April 15, 2018

    This is a great perspective to look at the issue. I would like to perhaps raise two more points. First, by analysing the UK's application of the elements for HI they enumerated, perhaps we have presumed that there is such a customary rule for HI existing under positive international law. I am not entirely sure. The fact that France and the US did not reference HI (as you used to support the no emerging exception for armed reprisal argument), would mean that the existence of the HI rule may not even be clear-cut.

    Second, although I agree with your observation that element (iii) was limited to the aspect of chemical weapons, I am not sure if this was impermissible. Could one not assess element (i) on the entire atrocity scale which was the starting point of a HI justification, but only selectively intervene in the most necessary and effective manner according to what was the most "extreme humanitarian distress"? Since customary international law on HI does not explicitly say that the forcible response (element (iii)) must mirror the catastrophe scale (element (i)) and strategically speaking rightfully so, perhaps the selective attack at the chemical weapons facilities was the result of this necessity/proportionality test based on the entire atrocity?

    Chris Henderson says

    April 15, 2018

    Thanks Marko for an interesting post.

    Just a couple of questions and a general comment.

    I accept the Nicaragua method for discerning changes to customary international law, but I also do wonder how far we can plausibly go with it. For example, you mention in your piece that ‘what we have here are states willing to engage in, or tolerate, a one-off (or two-off) exceptional breach of Article 2(4) of the Charter for the sake of some other political and moral considerations, but unwilling to modify the law for the future as a general matter’. But how about if we witness something more than a one or two-off exceptional breach, and see a pattern emerge involving a broad range of states regularly engaging in behaviour which is inconsistent with what we perceive to the be the accepted understanding of the law, which is not justified legally or condemned in legal terms, and is broadly accepted by other states? At what point, if at all, do we accept that such practice has normative relevance?

    In addition, while we may (correctly) insist on opinio juris before discerning a change in the law in the context of CIL, is this the same in the context of the Charter source of the prohibition? In other words, and on the basis of Arts 31-33 of the VCLT, is it possible for agreement regarding the interpretation of a treaty to be established through the subsequent practice alone of the parties, or is an express reference to the particular treaty provision in question required?

    Finally, it was interesting to see the UK essentially publish an almost identical legal argument for its action in 2018 as that it produced for its proposed action in 2013. This consistency is interesting and unique amongst states. I did, however, find it a little concerning that after the Prime Minister’s speech on Saturday morning during which it was claimed that the military action was ‘legal’ none of the questions from journalists appeared to pick up on this and probe her further on it. I'm no doubt biased, but surely this was one of, if not the, most important issue, particularly given all the talk regarding Syria's breach of the CWC…

    Mykola Gnatovskyy says

    April 15, 2018

    Thanks a lot for your analysis, Marko!
    Just two remarks:
    1) I find it anyway very good that the UK government did publish their legal argument. Now one has less things to guess about and can easily address the points they have made.
    2) I am personally very much waiting to see when and whether Common Article 1 to the Geneva Conventions could be invoked in a similar context. The richness of the expression "faire respecter" vis-à-vis third States has yet to be explored in full (despite several attempts in the past)...

    James Nolan, J.D. says

    April 15, 2018

    I agree with Marko Milanovic. However, I see a further violation of international law each time a series of armed attacks renders it increasingly unlikely that "practicable alternatives to the use of force" can ever be found in future similar conflicts. Here, the OPCW could have investigated and determined whether prohibited weapons were present but its role in bringing about that alternative to the use of force was pre-empted and precluded in a way seemingly calculated to convey the message that law is powerless and force is the only "practicable alternative".

    Laurence Lustgarten says

    April 15, 2018

    I share many of Marko's reservations, but disagree with his final point. It is not 'morally arbitrary' to single out use of chemical weapons from the normal horrors caused by conventional weapons, because use of chemical weapons is prohibited by an international Convention (the CWC--to which Syria acceded in 2013). The fact that the CWC has had virtually universal adherence (192 States Parties as of January 2018) suggests a globally-shared view that there IS something particularly abhorrent about the use of chemical weapons. If the Convention is to have real meaning, that may go some way towards justifying a military response from some other State(s). However, to make that argument credible, those States would have to show persuasively that their attack effectively disabled the violating State from carrying out future CW attacks for the foreseeable future--as opposed to just being a minor hindrance, which would suggest that the bombing was no more than a PR-inspired gesture. This sort of evidence has so far been notably absent.

    Sho says

    April 15, 2018

    It’s interesting that world powers ONLY want to DETER a mad dictator from using chemical weapons to kill his own people (while he can kill them with normal weapons no problem!!)

    A dictator that has killed far more than the ISIS nut cases, yet these governments are happy with just giving a slap on the wrist!!!

    Just see the statistics:

    https://youtu.be/zs-xin7j5RE

    Marc Weller says

    April 15, 2018

    This contribution proclaims a gospel truth that is self evident and crystal clear, determining that the use of force in relation to Syrian chemical weapons use is utterly and manifestly unlawful. It designates the UK's legal position--presumably arrived at after some considerable expert discussion and consultation--as simply so 'bad even on its own terms', concluding again, seeming without leaving any room for debate, that 'the strikes are simply, unconditionally, unambiguously illegal.'

    This piece, like its similarly charging predecessor, is billed as an EJIL Talk Analysis, rather than an opinion or comment. My own experience as an author in that section would be that the editors will generally wisely insist on a fair reflection of alternative views in addressing an issue--a sense of balance, rather than a rant. One might wonder whether the same sense of quality control applies to the editors' own purported analysis.

    For one thing, the UK position is not an undergraduate essay that can simply be dismissed as being 'bad'. It is evidence of state practice. It is a claim to the existence and content of the legal principle or doctrine of forcible humanitarian action. It has to be assessed as either a reflection of the law, or as a legislative proposal put forward in the expectation that practice and opinio juris will over time aggregate around it. Whatever its merits, the sense of the author that this line of argument is 'bad' may not be an entirely adequate way of addressing such a legislative proposal.

    Such an assertion of law would rather need to be evaluated against the views put forward by other actors. While not always expressed formally in the shape of a fully developed doctrine of forcible humanitarian action, the other two states involved in the operation have in fact invoked humanitarian motivations.

    President Trump's address focused very much on the slaughter of innocent civilians and the horrible suffering in Douma. His Permanent Representative in the Security Council opened her justification of the action with reference to the need to deter a further 'atrocity against humanity' in Syria.

    Similarly, the French government asserted when addressing the legal aspects of the case: 'Cette action est légitime. Elle vise à mettre un terme à une atteinte grave au droit. Elle est circonscrite à des objectifs précis : la destruction des capacités chimiques du régime syrien afin de l’empêcher de commettre de nouveaux massacres chimiques, de poursuivre sa stratégie de terreur à l’encontre de sa propre population.' The aim of the operation was to prevent further massacres committed through the use of chemical massacres in pursuit of a strategy of terror against its own population. Hence it seems difficult to argue that the humanitarian element of the UK justification stands alone.

    Moreover, the treatment of the issue in the Council is instructive. A significant number of states expressed their support for the motivation of the three states just outlined. Only three states voted in favour of the Russian draft resolution seeking to condemn the attack as an act of aggression and a violation of the prohibition of the use of force. Rather than simply letting the text fail on account of the limited support it had garnered, eight states positively voted against--a rare occurrence. Similarly, in the debate, few states asserted that a violation of the prohibition of the use of force had occurred. This is not the pattern of practice that one would expect in response to a violation of a core rule of international system--or at least a violation that is clear, manifest, and unconditionally and unambiguously illegal.

    Similarly, it is no longer so easy to brush off the principle of forcible humanitarian action in terms of practice and opinio juris in other instances. While it is true that Kosovo revealed a diversity of views, the episode also led a significant number of states to express themselves in favour of the doctrine. In other instances, forcible humanitarian operations were in fact endorsed by the Security Council retroactively. Moreover, the African Union has in fact formally committed itself to the doctrine in its own constitutive treaties--an act that destroys the presumption that the use of force for humanitarian purposes would necessarily violate the prohibition of the use of force. As the prohibition is a jus cogens rule, the illegality of the doctrine would render these instruments endorsing it null and void. Nobody has suggested that this is the case.

    Of course, there is much more than can be noted in a brief comment. There are also competing assessments of this practice. The same applies to the academic discussion, which has considerably shifted in favour of the doctrine over the past two decades. True, there is still debate and disagreement, but support for forcible humanitarian action as an existing or a developing rule has certainly become a respectable view.

    While it is of course possible to join those who oppose the doctrine, it seems inappropriate and in fact legally indefensible simply to declare it unarguable.

    The more specific views of the author on the doctrine as expressed in the UK government statement might also merit further thought. The statement sets out the triggers for the doctrine, safeguards against abuse, and a fair list of limiting factors that govern its application. Again, criteria of this kind have been accepted in the humanitarian intervention literature for decades and it is difficult to see how they can simply be laughed away. Rather, it seems that their limiting character has had a decisive and most beneficial influence on the way that this attack was calibrated.

    It is true that circumstances other than chemical atrocities might merit the application of the doctrine. Syria is indeed a case in point. However, absence of action where there is no will to act in once circumstance does not mean that action where there does exist a will to act is unlawful.

    In this instance, additional considerations apply. In view of the necessarily devastating effect of an attack against a concentrated and unprotected civilian population due to the indiscriminate und uncontainable effect of chemical weapons, such attacks serve as a particularly clear trigger for the application of the doctrine of forcible humanitarian action, although by no means the only possible trigger.

    In short, there is much to debate. Claiming an absolute and unshakable truth for one particular view forecloses debate.

    John R Morss says

    April 15, 2018

    Thanks to both lead contributors on this topic for focusing and sharpening the issues.
    Eg, the distinction between reprisal and humanitarian intervention seems to be a vanishingly thin one. That is shocking and important. ((Customary IL is (as so often) I think a red herring in this debate...))

    Marko Milanovic says

    April 16, 2018

    Thanks to everyone for the comments.

    Sean, I agree that the premise of the UK argument - that there exists in principle a unilateral humanitarian intervention exception to Art 2(4) - is itself mistaken. See e.g. my illegal but legitimate post and the post by Dapo cited there. Here however I wanted to engage with the UK argument on its own merits, i.e. assuming that the premise was correct. As for your second point, as I explained an act of humanitarian intervention would (assuming the general legality of UHI) be admissible only if it was reasonably suitable to resolving the humanitarian catastrophe. The problem here is that the air strikes are manifestly not so suitable if the catastrophe is defined as the war as a whole - they will do nothing to stop it. On the other hand, killing a comparatively small number of people using a specific weapon cannot, by itself, be a humanitarian catastrophe which would merit an intervention.

    Chris, I think you raise a question of fundamental importance for any legal system. My response would be this - within the overarching formal framework of customary international law, an existing legal rule cannot be change simply through non-compliance, without the assertion of opinio juris. Even if the non-compliance rate was 99%, which here it is not. Such a high non-compliance rate would, however, undermine the authority of the legal system.

    Again, as I said, this point is valid for domestic law as well. Even in well developed systems there are rules that are routinely not complied with, or non-compliance is rarely enforced for various reasons (think e.g. rape). Or think narco killings in some parts of Mexico. Obviously this undermines the authority of the legal system. At some point of total breakdown the legal system might lose any real-world relevance, which has ever been our fear with international law. But no legal system could permit change simply through breach, absent other considerations - no matter how many murders are committed by drug cartels in Mexico, the law of Mexico will still be prohibiting murder.

    Marko Milanovic says

    April 16, 2018

    Laurence, I'm not sure I agree. We have the Geneva Conventions as well, universally accepted, plus war crimes and crimes against humanity as parts of jus cogens etc - there's nothing unique about chemical weapons here. If the argument was armed reprisals, then focus on a specific norm would make perfect sense - a reprisal is something engaged in precisely in order to address the prior breach of a specific rule. But if the argument is humanitarian intervention, then what matters is alleviating human suffering on a mass scale, regardless of the method by which that suffering is inflicted - especially when, like in Syria, the vast majority (99%+) of atrocity crimes do not involve the use of chemical weapons.

    Terry Washington says

    April 16, 2018

    Somehow I doubt if either Assad or his patron Putin will go crying to the ICC(International Criminal Court) at The Hague with claims of "Western aggression"!

    Alessandra Asteriti says

    April 16, 2018

    Can I just express solidarity both to Marko and to the editors. Nobody needs to be accused of being ranting or of being unprofessional simply for expressing his opinion on the basis of recognised legal scholarship or for providing a platform to do so. As I am the least ambitious academic around, expressing this feeling is not going to hurt my already zero chances of getting any prestigious post anywhere.

    Avigael Cassel says

    April 16, 2018

    The next question must be: Why has the ICC failed to prosecute this illegal behaviour?

    Davit Jaiani says

    April 16, 2018

    Thank you for your blogpost, Marco.

    Two more questions for discussion table -

    1) Does not 2017 and 2018 attacks lead to new customary rule pemitting use of force against chemical weapons ban, the jus cogens norm, violations?

    2) Can we avoid talking and applying use of force law, under UN Charter, regulating interstate realtions, as the todays Syria is a failed state with no effective government, stabile territory and population?

    Luis Viveros says

    April 16, 2018

    Dear Marko,

    Thanks for this thoughtful analysis. Although your post deals mainly with the UK’s legal justification of their use of force against Syria, it is important to note that the US has done something of sorts. I mention this because you argue that ‘like last year, the US (and France) failed to put forward any legal argument as to the source of their authority to act under the UN Charter system…’.

    I submit that Mr Trump’s remarks of 13 April should be read in articulation with previous statements regarding April 2017’s military attack (the one he ordered while eating a ‘beautiful chocolate cake’). In his recent statements Trump recalled last year’s use of force, which is why I think statements made in that context are relevant for the present analysis.

    President Trump stated a couple or so days ago that ‘[t]he purpose of our actions tonight is to establish a strong deterrent against the production, spread and use of chemical weapons’. This language is consistent with statements following last year’s actions. However, last year then Secretary Tillerson maintained – endorsed by then National Security Advisor McMaster – that military ‘response’ was justified in Syria’s violation of their obligations under the Chemical Weapons Convention and UNSC Res 2118 (2013). https://ua.usembassy.gov/remarks-secretary-state-rex-tillerson-national-security-advisor-h-r-mcmaster/

    In sum, besides the national interest argument (not an international law argument), the Trump administration has tried to articulate a legal argument where use of force would be justified in the violation of the cited instruments.

    Now, it is clear that use of force is not a valid form of implementation and enforcement of the CWC. It is also clear that UNSC Res 2118 (2013) does not authorise the use of force–it speaks merely of ‘measures’, language which is inconsistent with that organ’s practice on use of force authorisation under Chapter VII.

    Just thought it would be useful to throw this into the blender of reasons that states have offered on this matter.

    Omar Naqib says

    April 16, 2018

    Earlier today the Labour Party's Tom Watson released a legal opinion by another of EJILtalk!'s editors on the legality of the airstrikes. This is Dapo's summary of his opinion as published in the Guardian today:

    "In the opinion I reach the following conclusions:

    1. Contrary to the position of the government, neither the UN charter nor customary international law permits military action on the basis of the doctrine of humanitarian intervention. There is very little support by states for such an exception to the prohibition of the use of force. The UK is one of very few states that advocates for such a legal principle but the vast majority of states have explicitly rejected it.

    2. The legal position advanced by the government ignores the structure of the international law rules relating to the use of force, in particular, because a customary international law rule does not prevail over the rule in the United Nations charter prohibiting the use of force. To accept the position advocated by the government would be to undermine the supremacy of the UN charter.

    3. Even if there was a doctrine of humanitarian intervention in international law, the strikes against Syria would not appear to meet the tests set out by the government. The action taken by the government was not directed at bringing “immediate and urgent relief” with regard to the specific evil it sought to prevent, and was taken before the inspectors from the Organisation for the Prohibition of Chemical Weapons were able to reach the affected area.

    4. If the position taken by the government were to be accepted by states globally, it would allow for individual assessments of when force was necessary to achieve humanitarian ends, with the risk of abuse. It is because of the humanitarian suffering that will ensue from such abusive uses of force, that other states and many scholars have been reluctant to endorse the doctrine of humanitarian action."

    Prof. Kevin Heller says

    April 16, 2018

    Marco can defend himself, but I want to briefly address this aspect of Marc Weller's comment: "Moreover, the African Union has in fact formally committed itself to the doctrine in its own constitutive treaties-–an act that destroys the presumption that the use of force for humanitarian purposes would necessarily violate the prohibition of the use of force."

    I fail to see how Art. 4(h) of the Constitutive Act of the African Union (AU Act) provides any support for the customary legality of unilateral humanitarian intervention. The Article empowers only the AU to engage in humanitarian intervention -- not individual AU states -- and the AU has that power only over states that have joined it. The AU Act thus stands in the very same relationship to AU members as the UN Charter does to UN members -- the use of humanitarian force is entrusted to an international organisation on the basis of consent. There is thus nothing in the AU scheme that supports the idea that a state should be allowed to use nonconsensual force against another state for "humanitarian" purposes.

    (Whether Art. 4(h) is consistent with the UN Charter is a question for another day. The point is that the AU Act provides neither state practice nor opinio juris in favour of a customary right of humanitarian intervention.)

    Marko Milanovic says

    April 17, 2018

    Dear Marc,

    That was, I have to say, a remarkably ungracious comment. Apparently my post was an unbalanced rant that would ordinarily not have passed editorial control – and why? Because I said position X is clearly wrong, and you happen to be a proponent of that position. Well, too bad. That position is still clearly wrong, whatever your own personal policy preferences might be, and whether you like to hear that or not. As a general matter, humanitarian intervention is not supported by any binding legal instrument, it is expressly rejected by numerous states, espoused openly only by a very few, and is also rejected by the vast majority of international lawyers. There is no coherent positivist theory of international law under which it could be lawful (although there are non-positivist ones). But even if a right of humanitarian intervention existed in principle, it is, as I explained, even worse to regard this specific duo of strikes against Syria as a lawful exercise of that right.

    I am certainly not stopping any debate by saying that the UK’s argument is clearly wrong – you are free to say that it is clearly right (even if you’re not). Nor am I, in saying so, disrespecting our colleagues who work as lawyers for the UK government or any outside experts they may have consulted – otherwise one could never criticize the position of any state as clearly wrong. Nor am I somehow neglecting the UK’s authority as a state to make a legislative proposal – it’s just that this proposal, which the UK has made more or less consistently since 1999, has also more or less consistently not been taken up by other states, even its closest allies, and even those allies which are jointly undertaking military action together with the UK. (Although this raises a further question of principle as to whether the provisions of the Charter, especially those enshrining peremptory norms, could be changed simply through favourable subsequent practice). What I did say in the post, however, and now reiterate, is that even if the UK government’s ‘legislative proposal’ is taken at face value, the strikes the US, UK and France have engaged in do not satisfy the UK government’s own criteria, because they are manifestly incapable of remedying in any meaningful way the humanitarian catastrophe of the Syrian war and have arbitrarily focuses on the chemical weapons issue only.

    Finally, I find it quite shocking that you insist that the US and France have actually endorsed a theory of humanitarian intervention. The language that you cite never does so. These states have deliberately not done so; their use of the concept of legitimacy is further indication that they are not putting forward a legal rationale. Maybe these states have acted – in part – out of humanitarian motives, but unlike the UK they have not articulated a legal theory to that effect. Maybe they will endorse humanitarian intervention at some point in the future, but they have not done so today. If you don’t want to take my word for it, here are two posts by two former legal advisors of the US State Department, John Bellinger and Harold Koh, both of whom say that the US has not endorsed humanitarian intervention and has failed to provide any international legal rationale for the strikes against Syria, even now (and even if Harold would want the US government to do so): https://www.lawfareblog.com/trump-administration-should-do-more-explain-legal-basis-syrian-airstrikes and https://www.justsecurity.org/54952/real-red-linebehind-trumps-april-2018-syria-strikes/ . If we cannot agree as a purely factual matter that the US government has not espoused a theory of humanitarian intervention, and has deliberately chosen not to do so (a choice which it is perfectly entitled to make), we cannot agree on anything – you may as well argue that the sky is not blue or that Trump is not orange.

    J says

    April 17, 2018

    Dear Marko,
    Doesn't Dapo also believe that the UK was already in a state of international armed conflict with Syria on the basis of its intervention there, without host nation consent, against ISIS? Given that that particular use of force "against Syria" (albeit targeting ISIS) is ongoing, should we therefore analyse the distinct CW strikes as prima facie permissible under IHL (as it would apply to that extant international armed conflict) but amounting to a violation of the earlier jus ad bellum (to the extent what is deemed necessary/proportionate in the collective self-defence of Iraq must be confined to targeting ISIS)? Or does this expose the difficulty of that approach?

    On your point about the strikes being inconsistent even with the UK's stated criteria for humanitarian intervention, could this have consequences for the application of the (non-justiciability) doctrine of Crown Act of State under UK domestic law? That doctrine, which is not dependent on the international lawfulness of the Crown Act in question, has nonetheless been substantially curtailed by Leggatt J's stipulation that the executive must act compatibly with any relevant policy for the purpose of triggering its domestic immunity (Iraqi Civilian Litigation). Or is this an example of why Leggatt J might be wrong?

    Jens Iverson says

    April 17, 2018

    Two conversations I wish would happen but I haven't seen anywhere: 1. Building on "J" above - does earlier US conduct change the magnitude of the jus ad bellum violation even if it doesn't change the basic illegality? Is there a legitimate argument to be made along the lines of "yes, it's illegal, but the nth violation of Syrian sovereignty doesn't have the same calibre of wrongfulness as the 1st?" Not the best defence-I don't actually agree with it-but in trying to think how I would defend the US/UK/France, I keep drifting towards mitigation rather than precluding wrongfulness. I'm surprised no one is at least trying the argument.
    2. What strategies would actually be effective in responding to Syrian/Russian/Iranian conduct in Syria? Is Europe capable of massive investments to wean itself from oil and natural gas that enrich bad actors? Would that have any impact? What other steps, aside from the use of force, could be taken?

    Marko Milanovic says

    April 17, 2018

    J - even if there was a preexisting IAC (and there probably was) between Syria and some of the intervening states, that has no bearing on the ad bellum analysis, in my view. As for the Crown act of state doctrine to be perfectly honest I don't feel I know enough to be able comment on this point confidently.

    Jens - I'm not sure how that argument would work, especially because this violation of the jus ad bellum is qualitatively different as it involves attacks on Syrian government installations and forces. This is especially so because the US et al have an arguable case to act on Syrian territory to prevent non-state actors like ISIS from attacking Iraq. That argument may or may not ultimately be correct, but it is at least colourable.

    As for your second point to be honest this is above my pay grade. I don't know what a workable strategy for Syria would be, even if I can tell what doesn't work. I would add, however, that even if use of force was appropriate, there's still the issue of process and collective decision-making. Dapo's opinion raises the possibility of going through the General Assembly under Uniting for Peace. See also in that regard this article by Andrew Carswell from a couple of years ago: https://academic.oup.com/jcsl/article/18/3/453/864898.

    Jens Iverson says

    April 18, 2018

    Thanks Marko! Useful references.
    I guess how the argument would work might be illustrated by taking it out of this context - say you're analyzing Bolivian conduct in the Chaco war, and you think Bolivia was the aggressor. Do you judge the second or third offensive into Paraguay as less significant than the first in terms of wrongfulness, as regardless of whether later offensives occur, aggression has occurred? I think that's a misunderstanding of jus ad bellum, but I don't think its incomprehensible. Perhaps it's useless playing devil's advocate, but it seems like a teachable moment in terms of the applicability of jus ad bellum throughout an IAC, not just at the outset.