No Legal Justification
Anne Orford
Most international lawyers have said that the US missile strikes against the Shayrat airfield in Syria on Friday morning were unlawful. The UN Charter prohibits recourse to force except in self-defence or if authorised by the Security Council to maintain international peace and security. The airstrikes, undertaken unilaterally in response to a chemical weapons attack allegedly conducted by the Syrian government against Syrian civilians, do not appear to fall within the limited exceptions of collective security or self-defence. The US government has given no legal justification for its actions. Yet many US politicians, Western allies and liberal commentators have supported the airstrikes, seemingly untroubled by the implications of the Trump administration’s nonchalant disregard for international law.
The prohibitions on the use of force and on intervention in the domestic affairs of other states are seen as foundational to the modern international legal order. Governments have felt obliged to account publicly for the lawfulness of their actions, to distinguish permissible state force from aggression, genocide, war crimes or arbitrary killing. The tendency to engage in ‘lawfare’ has been especially marked on the part of lawyers for such militarily interventionist states as Russia and the US. International law is one of the few modern legal systems that retains the notion of custom or practice as a source of law. Interventionist states and their lawyers often assert that their interventions are justified by a change in the law, rather than representing a breach of it. The US administration’s appeals to the doctrine of pre-emptive self-defence are one example; the expansive interpretations of the legality of intervention by invitation used by all states intervening in Iraq and by Russia and Iran in Syria are another.
The absence of any legal justification in the statements about the airstrikes made by President Trump and his officials is significant. The Trump administration has already shown disdain for domestic judges and courts, and seems not only unconcerned by the possibility that its policies might violate international agreements, but committed to the tearing up of existing treaties. Before Friday’s airstrikes, many liberal internationalists expressed concern about the implications of this for the world order that has been under construction since the 1940s.
Yet many Democrats, including former Obama administration officials, appear supportive of the Trump administration’s penchant for unilateral military action. Harold Koh, a former legal adviser to the State Department, said that the airstrikes were ‘not illegal’, and that an ‘important moment of lawmaking’ is ‘now upon us’, requiring ‘not just bombs, but diplomacy’. Anne-Marie Slaughter, the director of policy planning at the State Department under Hillary Clinton, said: ‘Donald Trump has done the right thing on Syria. Finally!! After years of useless handwringing in the face of hideous atrocities.’ Such responses from establishment liberal lawyers should give us pause.
The international legal order is far from ideal. But it provides at least some means by which the justifications for the use of state violence can be opened to public debate and challenge. The institutional culture of collective security requires states to provide an ongoing interpretation of the actions they take in defence of individual and collective security, while recognising that their interpretations may set precedents for the future.
The US government seems set on moving beyond even this minimally constraining legal order. It offered no doctrine or even coherent policy to explain its resort to force against Syria, other than Trump’s disquieting appeals to the battle between ‘civilised nations’ and barbarism, to ending the suffering of the ‘children of God’, and to the faith that ‘as long as America stands for justice, then peace and harmony will, in the end, prevail.’ A command-and-control model of international law and order was grafted onto a story of good and evil and a hugely mediatised mobilisation of sentimentality.
There is strong evidence that Assad’s regime has engaged in devastating attacks on civilians, but it also seems clear that reporting from Syria is selective and shaped by the Western media’s dependence on rebel groups. The Trump administration has taken on the role of determining when the facts in foreign countries warrant punitive reprisals or military action in the name of ending bloodshed. This has been welcomed by liberal internationalists in the US and allied states, who appear to see in Friday’s airstrike the potential realisation of their dreams for a more muscular humanitarianism. The challenge for international lawyers committed to a pluralist world order is to show how, under such conditions, the articulation of competing values and interests in the public language of law can be preserved.
Comments
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10 April 2017
at
11:23pm
Graucho
says:
1) It is extremely unlikely that Assad will use chemical weapons again.
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11 April 2017
at
5:30am
rupert moloch
says:
@
Graucho
1) Yes, althro' we await confirmation of exactly what transpired, and an attribution of responsibility (with reference to, y'know, actual tangible "proof" 'n stuff)
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12 April 2017
at
11:24am
RobotBoy
says:
@
rupert moloch
Yup.
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18 April 2017
at
4:41pm
ikallicrates
says:
Orford writes "Yet many Democrats, including former Obama administration officials, appear supportive of the Trump administration’s penchant for unilateral military action". It would hypocritical of them not to be, when they blazed the trail that Trump is merely following.
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18 April 2017
at
5:27pm
eric d. meyer
says:
When Bashar Assad first used chemical weapons against innocent Syrian civilians, Cameron and Obama made noises about war crimes and atrocities etc. and did nothing. Instead, they went to Parliament and Congress and asked for permission to stop the atrocities, and Parliament and Congress refused to support military action. Instead, Vladimir Putin promised Obama and Cameron that he would oversee the destruction of Assad's chemical weapons stockpile to avoid US/UK military action. And that was the pretext that allowed Putin to prop up the Assad regime, install Russian weapons systems in Syria, and carry out murderous attacks on the Syrian opposition, thereby also allowing Assad (Iran, Hezbollah etc.) to get away with more war crimes and atrocities. When the US the UK France et al. went to the UN Security Council to get a resolution against Syria Russia and Assad, Russia and China of course vetoed it. Many times. So the only option to stop Assad's war crimes was and is, regrettably, unilateral action. I agree that that's a very bad option. But watching Assad torture and murder Syrian civilians and cleanse the country of the opposition, while Russia installs a puppet regime in Syria, is worse. I sincerely wish there was something like international law, and somebody to enforce it, that would do something to stop crimes against humanity. There isn't. So, by default, I support Trump's action against Assad's war crimes, while condemning virtually everything else Trump has done since taking office, especially the bombing of innocent Syrian and Iraqi civilians in Raqqa and Mosul. Do I contradict myself? Yes, of course I do. But until there is international law and the will to enforce it, we are stuck with these very bad options, like supporting Trump's attack on Assad. Because the only other option is doing nothing while tens of thousands of innocent people suffer and die. And that is not, by my thinking, an acceptable option.
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23 April 2017
at
9:26am
Konstanzhoglo
says:
@
eric d. meyer
Assad's power is not a puppet regime. Puppet regime is in Ukraine. And it actively killed innocent civilians in Donbass in May-July 2014 by bombing and shelling them. Now it can't bomb them thanks Russia, but still threats the civilian Donbass population.
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18 April 2017
at
5:34pm
Blackorpheus7
says:
Trump is pursing his lips and playing monopoly while the rest of the beleaguered globe shudders. Ask Trump where Yemen is, where Syria is, where the Ukraine is, where Somalia is, where Afghanistan and North Korea are precisely, and he won't know or care. But his ignorance does not prevent him from hyper-macho, hair-trigger responses that murder or endanger all of us, even as he makes yet more billions by "selling" his name and metastasizing his absurd properties.
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18 April 2017
at
8:12pm
Chrisdf
says:
The question about gestural policies is, what do you do for an encore? One gunboat was enough for Palmerston, but then was then. Will a billion-dollar armada sit off North Korea while NK pops off one missile a week--no doubt disrupted by superior US cyberpower--for how many weeks? Tricky. And very, very serious.
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18 April 2017
at
9:41pm
rumtytum
says:
The United States has seldom cared whether its actions are lawful or approved by the UN, so the reactions to Trumps flame-throwing are what one would traditionally have expected. The difference, perhaps, in this instance (and the ones bound to follow) is that America now seems to have swapped its white hat for a black one. At some stage people who have been prepared to forgive America a bit of bellicosity on the basis that it "meant well" will have to wonder whether that's still true.
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19 April 2017
at
4:19pm
Chrisdf
says:
And now it seems the armada wasn't there at all, but was fading away in the opposite direction like the Cheshire Cat, leaving only its smile (or threatening frown). Curiouser and curiouser, said Alice. So how do you solve a problem like Korea?
Read more2) U.S. street cred in the middle east has been partially restored.
3) The North Korean regime now has something to think about.
Resolutions, legal condemnations ? 1931, league of nations, Japanese invasion of Manchuria/China. Been there, tried that. Water off any ruthless dictator's back.
2) The reference to "street cred" is perfectly apt. As ever, the global hegemon acts with the enraged instinct of a bellicose hoodlum marking its turf.
3) Yes, this will certainly encourage North Korea to proceed with their policy of developing nuclear weapon delivery as a deterrent strategy
Curious historical analogy you provide. Assad is still the sovereign; it is rather the US & friends who are the uninvited visitors.
Maybe mr. Trump had better bomb his puppet in Kiev?