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April 11, 2018


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Law that is not enforceable, or which is never enforced, is not law. When despicable acts occur in our world, the "international community" repeatedly does nothing. The international community does nothing because of the insurmountable structural impediments to action. The recent photo of the UN Security Council vote demonstrates this point nicely.

In the case of atrocities like those in Syria, if the choice is between doing nothing and doing 'something,' but doing 'something' violates "law that isn't law," the choice is obvious.

I know these points aren't novel, but I simply don't understand how the niceties of fictional international law should deter action against states using chemical weapons against children.

Patrick S. O'Donnell

Tony (if I may),

Many thanks for this informative post (I've yet to read all the links, but I look forward to that!). I hope you won't mind if I share this with your readers:

I have several lists germane to the central topics of this post. First, here is short list of titles on the notion of "humanitarian intervention" in international law and politics (some of the titles also deal with the moral dimension, which of course cannot be severed from attempts at legal and political justification):

• Abiew, Francis Kofi. The Evolution of the Doctrine and Practice of Humanitarian Intervention. The Hague: Kluwer Law International, 1999.
• Arend, Anthony Clark and Robert J. Beck. International Law and the Use of Force: Beyond the UN Charter Paradigm. New York: Routledge, 1993.
• Buchanan, Allen. Justice, Legitimacy and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
• Chatterjee, Deen K. and Don E. Scheid, eds. Ethics and Foreign Intervention. Cambridge, UK: Cambridge University Press, 2003.
• Chesterman, Simon. Just War or Just Peace? Humanitarian Intervention and International Law. New York: Oxford University Press, 2001.
• Fletcher, George P. and Jens David Ohlin. Defending Humanity: When Force is Justified and Why. New York: Oxford University Press, 2008.
• Fox, Gregory H. Humanitarian Occupation. Cambridge, UK: Cambridge University Press, 2008.
• Glennon, Michael J. Limits of Law, Prerogatives and Power: Intervention after Kosovo. New York: Palgrave Macmillan, 2001.
• Greenwood, Christopher. Humanitarian Intervention: Law and Policy. Oxford, UK: Oxford University Press, 2001.
• Harriss, John, ed. The Politics of Humanitarian Intervention. London: Pinter, 1995.
• Hoffman, Stanley. The Ethics and Politics of Humanitarian Intervention. Notre Dame, IN: University of Notre Dame Press, 1996.
• Holzgrefe, J.L. and Robert O. Keohane, eds. Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge, UK: Cambridge University Press, 2003.
• Jokic, Aleksander, ed. Humanitarian Intervention: Moral and Philosophical Issues. Orchard Park, NY: Broadview Press, 2003.
• Kennedy, David. The Dark Side of Virtue: Reassessing International Humanitarianism. Princeton, NJ: Princeton University Press, 2004.
• Orford, Anne. Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law. Cambridge, UK: Cambridge University Press, 2003.
• Tesón, Fernando R. Humanitarian Intervention: An Inquiry into Law and Morality. Ardsley, NY: Transnational, 3rd ed., 2005.
• Welsh, Jennifer M., ed. Humanitarian Intervention and International Relations. New York: Oxford University Press, 2004.
• Wheeler, Nicholas J. Saving Strangers: Humanitarian Intervention in International Society. Oxford, UK: Oxford University Press, 2000.

On my Academia page I have a bibliography on Violent Conflict & The Laws of War, as well as compilations for terrorism, international criminal law, and (public) international law (these thus overlap a bit, but the last is the most comprehensive).

Eric Posner's writings on international law (one book co-authored with Jack Goldsmith) unfortunately well represent, in the academic legal world, the kind of willful ignorance and skepticism about international law and transnational legal norms that have become fashionable in this country (among both policy makers and the hoi polloi), especially but not only in conservative circles. Of course the makeup and governing rules of the UN Security Council make it that much easier for the "doctrine of humanitarian intervention [to serve as an] extremely convenient cover for the use of force by superpowers." Robert Hockett of Cornell Law Schools has authored two excellent critiques of Posner's work in this area, one as part of a review of Mary Ellen O'Connell's Power and Purpose in International Law (OUP, 2008).

Now there may be a case for a principled (in both a moral and legal sense) doctrine of humanitarian intervention in certain cases, for example, genocide, famine, or widespread, systematic violation of basic human rights, but for that to happen we need, as Allen Buchanan has well argued, fundamental reform of the international legal system. It's hard but not impossible to imagine cases where armed intervention, let alone aerial bombing, would be necessary (consider Vietnam's war against the genocidal regime of Pol Pot in Cambodia or Tanzania's overthrow of Idi Amin). As for how that might occur, Buchanan has argued that it may be in part necessary for something like (i.e., analogous to) the international law equivalent of the municipal application of civil disobedience: "[U]nder certain conditions a willingness to violate existing international law for the sake of reforming it can be not only consistent with a sincere commitment to the rule of law, but even required by it." To date, I'm confident that most (a few might) superpower invocations of "humanitarian intervention" would not meet the criteria set forth by Buchanan.

Anthony Gaughan

Thank you, Patrick, for this great bibliography on humanitarian intervention and international law.

Anthony Gaughan

Thank you for your comments, XYZProf.

I share your outrage at the horrors perpetrated by the Assad regime (and by ISIS) against children and other non-combatants in Syria. But I think our military interventions in Afghanistan, Iraq, Somalia, and Libya have made clear that humanitarian rescue missions don't fix the underlying political, social, and economic problems that plague the countries we seek to rescue. They don't even reduce the levels of violence in the long run. Making matters worse, our invention of ad hoc legal justifications for our military interventions only serves to undermine the integrity and legitimacy of international law.

But I am the first to admit that I don't have a solution for the Syrian Civil War, or the chaos in Yemen, Libya, and so many other countries around the world. Neither military nor legal solutions have provided relief to the non-combatants caught in the violence in those countries.

Thanks again for your comments.

Patrick S. O'Donnell

At one of the foremost international law blogs, Opinio Juris, Kevin Jon Heller has an excellent legal analysis of the (presumably) forthcoming bombing of Syria that agrees with and reinforces Professor Gaughan's conclusion that "no matter how compelling the humanitarian case, the United States would clearly violate traditional understandings of international law by attacking the Syrian government."

[....] The following is the core of Professor Heller’s jus ad bellum analysis, sans the embedded links. I recommend one visit Opinio Juris and read his entire post which is, as his posts routinely are, spot-on:

“Syria is a sovereign state. Russia is using force on Syrian territory with the consent of the Syrian government. The US is not. To justify its use of force in Syria, therefore, the US would have to be acting in self-defence. If it was not acting in self-defence, it would be violating the jus cogens prohibition of the use of force that is enshrined in Art. 2(4) of the UN Charter.

With regard to its use of force in Syria against ISIS and other terrorist groups, the US at least has a plausible claim to individual and collective self-defence: the ‘unwilling or unable’ doctrine. Readers know that I do not believe that ‘unwilling or unable’ reflects customary international law. But the argument is not a frivolous one.

An attack directed at Syria itself, however, would be patently unlawful. Syria has never attacked US forces or interests. By contrast, the US has attacked Syria: in 2017, when it fired 59 cruise missiles at a government airfield in Shayrat; and in 2018, when it killed approximately 100 members of a pro-Assad militia who attacked a Syrian Democratic Forces headquarters. The US offered no legal justification whatsoever for the 2017 attack, and it claimed that the attack on the militia was ‘self-defence’ — as if collective self-defence somehow permitted the US to come to the aid of a rebel group.

But that is the past. More importantly, there is no evidence — literally none — that Syria has any intention of attacking US forces. Not in the near future or in any future. If the US attacks Syria, therefore, it would not be acting in self-defence. Its attack would violate the jus cogens prohibition of the use of force. It would be, to use the accurate but loaded term, the aggressor.

And that would, of course, have two very important consequences — consequences you will not see discussed in the American media if and when the US attack begins. To begin with, Syria would have every right to use force to defend itself. It could shoot down American fighter planes. It could kill American soldiers. The only limitations on Syria’s right of self-defence would be the usual ones: necessity and proportionality.

Even more importantly, Russia would also be legally entitled to use force against the US. The right of collective self-defence is guaranteed by Art. 51 of the UN Charter and by customary international law. Just as the US invoked collective self-defence to justify attacking North Vietnam at South Vietnam’s request, Russia could invoke collective self-defence to justify attacking the US at Syria’s request. What is sauce for the American goose is sauce for the Russian gander. This is the most frightening aspect of Trump’s madness: although the Syrian military is capable of doing far more damage to American forces than Iraq’s or Libya’s militaries ever were, Russia’s military is one of the most powerful and technologically-sophisticated in the world. A hot war between Russia and the US could be literally catastrophic.” [....]

Patrick S. O'Donnell

At EJIL: Talk!, the blog of the European Journal of International Law, Mary Ellen O’Connell has just posted another important international law legal analysis that interested readers (at the very least, that class should include all U.S. citizens) should read: “Unlawful Reprisals to the Rescue against Chemical Attacks?”

Anthony Gaughan

Thanks so much, Patrick, for pointing out today's pieces by Prof. Kevin Jon Heller on Opinio Juris and Prof. Mary Ellen O'Connell on EJIL. They are two of the foremost scholars in the field of international law, and I highly recommend their posts to TFL readers.


Ahhh, the sweet smell of the defenders of any power in the Middle East that seeks to bury Israel, and ultimately, the US. Any enemy of Israel can do no wrong.

Where is the outrage about the victims in Syria? The death and destruction, the refugees, all the rest?

In the view of these "foremost scholars" is one to suppose that the US is responsible for all this suffering?

I don't necessarily advocate US intervention, especially based on the idiotic "doctrine" propounded by Samantha Powers (did these "foremost scholars" excoriate the risible "duty to protect" rationale for Libya)? It is just unbearable, however, to hear these blowhards pontificating about "use of force" when defending the right of the government of Syria to continue its violations of human rights and international law.

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