The Book

 

 

 

 

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Friday
Apr072017

Use of Force against Syria: The law is an ass so what to do about Pandora's Box?

In this entry, I follow the thread on some points made in my oped in the Globe this morning.  Readers may wish to consult that first.

The Hard Facts of this Case

The United States has bombed Syria. In it itself, there is nothing remarkable about this statement. After all, the United States and its allies have been using force in Syria against Daesh for years. The difference last night was, however, one of target and also, therefore, one of law. The sum consequence is: one more explosion for a smart bomb, and potentially one giant leap into the unknown for international law and relations.

The missile strikes last night targeted the Syrian military, not non-state insurgencies or terror groups in Syria. The use of armed force against Daesh is (controversially) justified as an exercise of collective self-defence, undertaken on the territory of a state (Syria) unwilling or unable to suppress armed attacks done by Daesh.

Whatever the disputed status of this “unwilling and unable” concept, self-defence is a legitimate exception to the legally-robust prohibition on one state’s use of force against the “territorial integrity or political independence” of another state (codified as Art. 2(4) of the UN Charter).  The other exception is authorization on use of force from the UN Security Council.

Largely because of Russian obstruction, there is no Security Council resolution authorizing force against the Syrian state or military.  Nor is there any plausible self-defence argument for use of force against the Syrian state itself (as opposed to against non-state actors mounting threats from its territories).  Syria has not attacked the US, or its allies. 

But Syria is massacring its own people, horrifically, in violation of most international law of any relevance.  Most recently, it is alleged to have (again) used chemical weapons.  (An obvious fear is that the US missile attack was provoked by bad intelligence – and the attribution of chemical weapon use to Assad’s government will prove incorrect.  Then we have an Iraq War redux. But Assad has used chemical weapons in the past.)

 

The Law is an Ass

Still, even with these Syrian atrocities: there just is no persuasive legal argument that these Syrian breaches justify use of force in response.  There is no other exception to the prohibition on use of force adding to those discussed above.  This is true whether one wants to call any additional exceptions “humanitarian intervention” or the “responsibility to protect”.  See also other discussions: here and here

People do, of course, urge the existence of these other carve-outs.  See most notably Harold Koh, here.  But unpack those discussions, and they turn on normative justifications – the should of international law, not the is. The is comes from basically two things: treaties and customary international law.  There is no treaty basis for either humanitarian intervention or R2P.  All that is left, then, is customary international law. And one would need to give supreme primacy to the state conduct (with opinio juris) of a handful of the world’s states to conclude an R2P or humanitarian exception exists.  And along the way, you’d need to ignore a lot of state expressions of dissent, not least dissent generated by the justifications offered by the United States in the 2003 Iraq War (where at least one line of justification focused on humanitarian impulses).

Nor is there any international law norm that permits use of force by one state against another to punish use of weapons of mass destruction.

And so we are left with a “wicked problem”: surely, we could prosecute the Syrian leadership for war crimes and crimes against humanity, if we had them.  But we don’t.  And so Syria acts with impunity, shielded by the well-meaning, international strictures on use of force.  And these well-meaning limitations on the use of force were intended by the framers of the UN Charter to operate in a world in which the Security Council worked – and where it would exercise collective defence.

Those framers were not pacifists.  But having lived through the Second World War, they wished to shackle as much as possible aggressive war – war undertaken for reasons other than self-defence.  The Security Council was supposed to deal with the circumstances (other than a state’s own immediate right to collective or individual self-defence) where threats to international peace and security obliged a forcible response.  And it was supposed balance great power rivalry.  But balance has meant, for most of its history, Security Council gridlock.

And so we are still left with the impasse: the law appears to be an ass, confronted with Assad’s atrocities.  And so perhaps the law should not speak in times of humanitarian crisis.

 

Pandora’s Box

The risk of that, of course, is both immediate and long-term.  The immediate risk is that a recycling of the “illegal but legitimate” claim from the Kosovo conflict in the Syrian context brings us a lot closer to a large inter-state war between the US and Russia than it ever did in Kosovo.

And the bigger problem: what is good for today’s hegemonic great power will be equally good for tomorrow’s, or indeed for today’s aspirants to great power status.  Whatever else can be said about the Article 2(4) framework: it has stabilized international relations between states.  Not perfectly, but nevertheless, to the point where use of force between states without lawful justification is anathema.  That is the explanation for the international community’s response to Iraq’s conduct in the Gulf War 1990.  And it is the reason why much of the world has sanctioned Russia for its Ukraine adventure.  (Both of those two instances involved a use of force culminating in de facto conquest.  But the illegality of the conquest is a by-product of the underlying prohibition on use of force.)

All of this is to say: Unravelling limitations on use of force in today’s uncertain political environment opens Pandora’s Box.

 

Making the Best of an Impossible Impasse

And so the question is: can we net whatever comes out of that box?

Or more concretely, if we are now committed to a path where force can be used for a noble cause outside traditional rules, can we confine it to those noble causes? Harold Koh proposes a list of sensible indicators designed to do just that.  And although I quibble with the any claim that they are currently part of international law, they certainly could be.  Better they than the alternative: expedient uses of force ungoverned by classic rules, used as much by the goose as the gander and for the wrong reasons.

So what policy prescription does this present. Many.  But one that comes immediately to mind this morning: No state should blankly endorse the US action. That is too much indefinite state practice that opens the door to competing and overboard narratives about “emerging customary international law”. 

Rather, any support should confine claims of legitimacy to the narrowest of facts: here, the need to act in the face of war crimes involving, not just the targeting of civilians, but the (so far, unfortunately, only alleged) use of an inherently illegal weapon of mass destruction by a state.  And we should borrow from self-defence rules and graft in some very strict proportionality rules. But stricter. (Many uses of force seem now to gravitate to regime change, which is the kind of thing that precipitates bigger wars and violations of the "Pottery Barn" credo: you break a country, you pay for it. Usually, we just walk away.)

In sum: if the use of force rules are to be sliced and diced, then the slices should be most minute and thinnest possible. Because a thick slice of baloney today is the kind of thing that can be used to justify the crassest form of aggression tomorrow.