An American military assault on Syrian President Bashar al-Assad’s regime appears imminent. President Trump warned on Sunday that Assad will pay a “big price” for using chemical weapons against Syrian civilians and the president followed up this morning with a Tweet in which he declared that missiles "will be coming, nice and new and smart!" Trump reportedly intends to unleash a more aggressive and broad-based bombing campaign than the modest missile strikes he ordered against a Syrian airfield in April 2017.
If history is any guide, the general public will support Trump's decision to attack Assad's regime. 67% of Americans approved last year's missile strikes on Syria, which reflects a pattern of public support for American bombing campaigns. For example, the Obama Administration's air strikes in Libya in 2011 received the support of 68% of Americans according to a March 2011 CBS News Poll. Surveys also consistently find high levels of public support for US drone strikes in Pakistan, Afghanistan, Yemen, Somalia, and Iraq. The relatively low-risk posed to American military personnel by air strikes combined with the "feel-good" nature of bombing foreign adversaries have made drone strikes against terrorist cells, and "humanitarian" bombing campaigns against dictators, quite popular with the public.
Yet, aside from the domestic enthusiasm for bombing raids, it is striking how little concern American presidents give to international law when deciding whether to bomb a country. It's not just the Trump Administration. For the last 25 years, Democratic and Republican presidents alike have repeatedly bombed countries (and, in the case of Iraq in 2003, invaded and occupied a country for nearly a decade) without a basis in international law for doing so. In each case the public displayed complete indifference to the lack of legal authority for the military operations.
Consequently, presidents do not even bother any more to make serious legal arguments for dropping bombs on other countries. Instead, they rely primarily on humanitarian justifications, which have become America's all-purpose rationale for using force against anyone at any time.
The pending bombing campaign against Syria is the latest case in point. On Monday night President Trump emphasized the humanitarian necessity of bombing Syria:
President Trump's words echo the humanitarian rhetoric of his immediate predecessors. In Bosnia in 1995, Kosovo in 1999, Iraq in 2003, and Libya in 2011 the Clinton, Bush, and Obama administrations, respectively, claimed that preventing humanitarian disasters justified the use of American military force.
For example, in 1999 President Clinton declared that NATO's campaign against Serbia was necessary to stop "the unspeakable brutality in Kosovo" and "restore the Kosovars to their homes with security and self-government." In 2003 President Bush declared that by invading Iraq the United States would "tear down the apparatus of terror" and help Iraqis "build a new Iraq that is prosperous and free." In 2011 President Obama defended his bombing campaign in Libya as necessary to prevent a humanitarian disaster. He declared, "Some nations may be able to turn a blind eye to atrocities in other countries. The United States of America is different."
Presidents use the humanitarian rationale for a reason: it resonates with both the general public and Congress. For example, a 2017 article in the Journal of Conflict Resolution by Prof. Sarah Kreps and Sarah Maxey found that “the public is more likely to support the use of force for humanitarian purposes than for defending another country — by margins of up to 27 percent.” Fascinatingly, they found that using a humanitarian justification, rather than a national security argument, is particularly effective for building support among Democrats. As they explained in an excellent Washington Post op-ed last weekend, "if Trump decides to further involve the U.S. military in Syria, emphasizing humanitarian needs can build a sense of moral obligation and support from both Democrats and Republicans. Focusing narrowly on U.S. national interests won’t do the trick."
But there is one important catch when presidents make humanitarian-based arguments for military intervention: humanitarian justifications do not constitute a valid legal basis for military operations.
The Only Two Lawful Uses of Force
Under international law, there are only two internationally agreed-upon scenarios for lawfully using military force against another country. The first is when a nation is engaged in individual or collective self-defense. The second is when an offensive use of force is authorized by a United Nations Security Council Resolution. Neither scenario applies to the proposed attack on Assad's regime.
First of all, no Security Council Resolution authorizes a U.S. bombing raid in Syria. Russia, a close ally of Syria and a permanent member of the UN Security Council, supports Assad’s regime and adamantly opposes any attack, even one to enforce the Chemical Weapons Convention that Syrian forces violated by using chemical weapons.
Russia's opposition is critically important. There are 5 permanent members of the Security Council—the US, the United Kingdom, Russia, China, and France—and each individually possesses a veto over Security Council resolutions. Article 27 of the United Nations Charter states that
- “decisions of the Security Council . . . shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.”
Although the word “veto” does not appear in the United Nations Charter, the term “concurring” has been interpreted by the 5 permanent members of the Security Council as granting each of them a veto power. Accordingly, Russia has the clear legal authority to block any resolution put before the Security Council.
In the absence of a Security Council resolution, the only other internationally-recognized legal basis for the United States to use force in Syria is self-defense. Article 51 of the United Nations Charter expressly acknowledges:
- “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
The problem, of course, is the United States has not been attacked by Assad’s government. Although a theory of self-defense at least arguably provides a plausible justification for U.S. military operations against ISIS terrorist forces in eastern Syria, the self-defense argument cannot be extended to the Assad regime. Assad has ruthlessly murdered tens of thousands of his fellow Syrians, but he has not taken any hostile act with regard to the United States.
Thus, no matter how compelling the humanitarian case, the United States would clearly violate traditional understandings of international law by attacking the Syrian government.
The Doctrine of Humanitarian Intervention
Nevertheless, some argue that it is lawful to bomb a country for humanitarian reasons. For example, President Obama and senior members of his foreign policy team argued that there should be a humanitarian exception under international law that permits foreign intervention to prevent atrocities. In the late 1990s British Prime Minister Tony Blair articulated a similar argument. In 2013 the British government reiterated its position that there exists in international law a "doctrine of humanitarian intervention" that permits the use of military force when three criteria are met:
But there are three major problems with the "doctrine of humanitarian intervention."
The first is that the doctrine is never invoked when there actually is a "general acceptance by the international community" that military force is "necessary" to relieve a humanitarian crisis. If in a given case there actually is general international acceptance of the necessity for military force, then there would be no need for the intervening powers to invoke the doctrine of humanitarian intervention. They would instead go to the UN and get a Security Council Resolution authorizing the use of force, which is the gold standard under international law.
But over the last 25 years, we have repeatedly seen that the US, UK, and France profoundly disagree with Russia and China on the need for humanitarian interventions. Accordingly, the West has developed the humanitarian intervention doctrine as a way to get around the Security Council. The "doctrine of humanitarian intervention" is thus not really a legal doctrine. It's a policy strategy employed by the West to marginalize the influence of Russia and China on the Security Council.
For example, the West did not invoke the "humanitarian intervention" doctrine to stop Saudi Arabia from bombing Yemen, or to prevent the Egyptian military from crushing domestic dissent. The reason is because Saudi Arabia and Egypt are vital allies of the United States. But Syria is not. It's allied with the Russians. Thus, at best, the doctrine of "humanitarian intervention" is only selectively applied. The United States invokes it when atrocities are committed by a regime hostile to the West, and when the atrocities are broadcast on television around the world, creating a domestic political appetite for "feel good" air strikes. In short, although supporters may attach the word "doctrine" to humanitarian interventions, there are no uniformly-enforced and evenly-applied legal principles that undergird the doctrine.
Second, despite the doctrine's reference to "proportionate" uses of force, humanitarian interventions all too often not only fail to reduce violence, but instead add fuel to the fire, making a bad situation worse. For example, citing humanitarian reasons, the United States and its allies intervened in Somalia in 1992 to end a civil war-created famine, in Iraq in 2003 to remove Saddam Hussein's dictatorship, and in Libya in 2011 to prevent Muammar Gaddafi from brutally suppressing a rebellion.
But all three interventions led to anarchy in the countries the West sought to save. In each case, the United States and its allies found themselves engaged in a much broader military campaign than originally envisioned, resulting in even more mass killings and atrocities after the humanitarian intervention than before. Years after the West's "humanitarian" interventions, Somalia, Iraq, and Libya all remain wracked by internecine violence, civil disorder, and political instability. In the Libya case, for example, even President Obama--one of the main proponents of the doctrine of humanitarian intervention--admitted that the humanitarian intervention in Libya "didn't work" and represented his "worst mistake" as president.
Third, the inherently subjective nature of the doctrine of humanitarian intervention means that it could be used by any aggressor as justification for almost any act of aggression. For example, Russian President Vladimir Putin justified his 2014 invasion of eastern Ukraine and Crimea on the grounds that it was necessary to protect Russian ethnic groups from Ukrainian "mobs roaming the streets of Kiev." The discomfiting reality is that, under the doctrine of humanitarian intervention, every civil war becomes fair game for foreign intervention.
The doctrine of humanitarian intervention is thus so subjective, incoherent, inconsistently-applied, and easily-manipulated that it simply does not offer a viable legal standard. The doctrine may serve public relations purposes for invaders, aggressors, and would-be liberators, but it does not represent anything remotely resembling international law.
The Realities of 21st Century War
The legal shortcomings in the doctrine of humanitarian intervention, however, won't stop superpowers from routinely invoking it to justify their military operations.
Indeed, the doctrine is an increasingly useful tool for superpowers. In the last 25 years, 4 of the 5 permanent members of the Security Council have violated the traditional understanding of international law in using military force. For example, in the 1999 Kosovo War, the United States, France, and Great Britain bombed Serbian forces without Security Council authorization and without a valid self-defense argument. In 2003 the United States and Great Britain invaded Iraq without Security Council authorization and once again without a valid self-defense argument. In 2011 the U.S., Great Britain, and France went beyond the U.N. Security Council Resolution that authorized limited strikes to prevent a humanitarian disaster in Libya and dramatically expanded the air campaign to topple the Libyan government itself. And in 2014 Russia invaded Ukraine and annexed Crimea without Security Council authorization and without a legitimate self-defense argument. Ironically, therefore, the Security Council powers are among the worst offenders when it comes to waging war without a sufficient legal justification. In recent years, only China has refrained from invading or bombing countries in violation of international law (although it did invade Vietnam in the late 1970s).
The doctrine of humanitarian intervention has thus become an extremely convenient cover for the use of force by superpowers. This is particularly true of Western powers, like the Americans, the British, and the French, whose domestic populations respond favorably to humanitarian based arguments. Accordingly, despite the profound legal flaws in the doctrine, humanitarian-based justifications for bombing and invading countries are likely here to stay.
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.
Posted by: xyzprof | April 11, 2018 at 01:01 PM
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.
Posted by: Patrick S. O'Donnell | April 11, 2018 at 01:37 PM
Thank you, Patrick, for this great bibliography on humanitarian intervention and international law.
Posted by: Anthony Gaughan | April 11, 2018 at 02:34 PM
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.
Posted by: Anthony Gaughan | April 11, 2018 at 02:45 PM
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.” [....]
Posted by: Patrick S. O'Donnell | April 12, 2018 at 10:45 AM
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?”
Posted by: Patrick S. O'Donnell | April 12, 2018 at 10:53 AM
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.
Posted by: Anthony Gaughan | April 12, 2018 at 11:04 AM
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.
Posted by: anon | April 12, 2018 at 04:32 PM