Three (Problematic) Justifications for Bombing Syria in Violation of International Law
By Mike Dorf
Suppose that President Obama and Secretary Kerry agree with my recent post arguing that the planned missile strike on Syria without an invitation for protection from a country that has been attacked (such as, perhaps, Turkey or Israel) or UN Security Council Authorization, would plainly violate international law. On what grounds might they justify doing it anyway? I can think of three possible sets of reasons, each problematic in its own way.
(1) They don't give a damn about international law. That's a fair description of at least some people who worked in the Bush Administration--although even most of them went through the motions of trying to argue that their policies complied with international law. In any event, I don't think it's a fair account of Obama, Kerry and their underlings.
(2) They realize that there is not now a customary international law norm permitting individual sovereigns to use military force on humanitarian grounds, but they think there ought to be such a norm and that by acting as if there is one, their actions will have normative effect. Columbia Law Professor Matt Waxman made an argument of this sort last week: The illegal actions in Kosovo and now Syria will eventually establish precedents, he says. I think this may well be what some (e.g., Samantha Power) in the Obama Administration may be attempting, but I also think that, if so, they're kidding themselves. As I explained in my recent post, a norm does not rise to the level of customary international law unless and until there is a strong consensus in the normative practice of nations in favor of that norm. But in the case of Kosovo there was substantial dissent from the NATO action and there is now even more substantial dissent from the proposed action in Syria. In order to build a norm permitting non-Security Council-authorized armed force on humanitarian grounds, the interventions need to not only occur, but to occur with the approval of the international community. And acquiescence in the sense of lack of military resistance to an armed action by the world's most powerful military does not count as approval.
(3) They care about international law in general but they think that there are circumstances so extreme as to warrant violating it. In domestic law, the illegality of a course of conduct should raise only a strong presumption against engaging in that conduct. If there are compelling moral (or other reasons) for breaking the law, then one breaks the law. There is a substantial body of literature on when civil disobedience is and is not justified. That work mostly addresses justified violations of domestic law applicable to individuals, but perhaps it can be adapted to international law applicable to sovereigns.
However, there is a major obstacle to adapting the civil disobedience justification to the present circumstances. The leading theorists and practitioners of civil disobedience--Thoreau, Gandhi, MLK Jr., Rawls--have all emphasized that morally justified civil disobedience must be civil, i.e., nonviolent. So if there were some proposition of international law requiring the use of force, it would be relatively straightforward to translate the individual-focused history and literature of civil disobedience into a justification for some sovereign refusing to use force, but here we have a norm forbidding force and the U.S. proposing to act in violation of that norm by using force. That is, at the very least, a substantial departure from the usual way in which civil disobedience is understood.
Well, so what? Perhaps the Administration's view is somewhat broader. Perhaps the Administration position is not so much based in the conventional account of civil disobedience but in a simpler calculation. Under this simpler view, regulated actors have a prima facie duty to obey a legal norm, but other duties may create a stronger duty to violate the legal norm. Cashing this out in practice in the current context would mean something like this: Force may only be used in the service of humanitarian aims notwithstanding its illegality where the moral justification for the use of force is very strong. The rule would need to take something like that form because a just-barely convincing moral justification would not overcome the presumption in favor of compliance with the legal prohibition; if it did, then one might as well say that the legal norm has no real force.
So, does the argument work? I continue to be extremely skeptical. Secretary Kerry's speech outlining the case for force persusasively argued that the Assad regime used chemical weapons against civilians and that this was a gross violation of human rights under international law and any decent moral view. But that does not make the case for bombing Syrian military assets--whether those connected to chemical weapons or unconnected--persuasive, much less very strong.
Why not? Well, for one thing, a big chunk of the justification for force offered by the Administration and its hawkish cheerleaders is the need to maintain U.S. credibility in light of President Obama's earlier statement that the use of chemical weapons would be a "red line." But maintaining credibility is not a moral principle. It is at best a tactical one.
If I tell one of my daughters that unless she cleans up her room before suppertime she will get no supper, and she then fails to clean up her room, I may feel obligated to deny her supper, or else lose credibility going forward, but the obligation is not a moral obligation. To extend the analogy, if, in a thoughtless moment, I tell my daughter to clean up her room before suppertime or I shall not feed her for a month, then my subsequent felt need to maintain my credibility when she again fails to do so would not and should not provide any sort of defense if I carry through on the threat and am subsequently prosecuted for child neglect or endangerment. My fellow citizens would rightly judge me not only a lawbreaker but a monster.
Likewise here, one has the very strong sense that were it not for the president's earlier loose talk about red lines, he would not now even be considering missile strikes. That leaves the impression that the Administration believes that the humanitarian objectives of the missile strike are not by themselves strong enough to justify it.
Whether or not that is actually what the Administration is thinking, it is what they ought to be thinking. If one wants to justify the use of military force on humanitarian grounds, then one should at least make the case that the use of force is likely to improve the humanitarian situation. The Administration has not done so and I doubt it could. The basic argument in favor of the limited missile strikes appears to be that these will cause enough damage to the Assad regime that it will be deterred from further use of chemical weapons. I suppose that's possible. It's also possible that the regime will be emboldened by the limited nature of the strikes to use chemical weapons again, daring President Obama to strike again, and--in light of the Administration's having wisely ruled out putting boots on the ground--essentially calling the president's bluff. Or, as threatened, Syria, Iran or Hezbollah could retaliate by attacking civilians in Israel, or could increase sponsorhsip of terrorism against Americans worldwide. The frightening possibilities are endless, and it appears that people with much more intimiate knowledge of Syria and the Middle East than I have are quite worried about them. When the use of military force is at least as likely to widen suffering as it is to curtail it, the moral justification for that use of force can hardly be said to be strong.
A pacifist friend of mine has a t-shirt that says "I'm already against the next war." One does not need to be a complete pacifist to sympathize with the sentiment. One only needs to share the view expressed in George Washington's Farewell Address: that entanglement in foreign disputes rarely does us or anybody else much good. He wrote that "Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities." Substitute the Middle East of today for Europe of the late 18th Century and the observation hardly becomes less true. The American People appear to understand that. Unfortunately, our leaders appear not to.
Suppose that President Obama and Secretary Kerry agree with my recent post arguing that the planned missile strike on Syria without an invitation for protection from a country that has been attacked (such as, perhaps, Turkey or Israel) or UN Security Council Authorization, would plainly violate international law. On what grounds might they justify doing it anyway? I can think of three possible sets of reasons, each problematic in its own way.
(1) They don't give a damn about international law. That's a fair description of at least some people who worked in the Bush Administration--although even most of them went through the motions of trying to argue that their policies complied with international law. In any event, I don't think it's a fair account of Obama, Kerry and their underlings.
(2) They realize that there is not now a customary international law norm permitting individual sovereigns to use military force on humanitarian grounds, but they think there ought to be such a norm and that by acting as if there is one, their actions will have normative effect. Columbia Law Professor Matt Waxman made an argument of this sort last week: The illegal actions in Kosovo and now Syria will eventually establish precedents, he says. I think this may well be what some (e.g., Samantha Power) in the Obama Administration may be attempting, but I also think that, if so, they're kidding themselves. As I explained in my recent post, a norm does not rise to the level of customary international law unless and until there is a strong consensus in the normative practice of nations in favor of that norm. But in the case of Kosovo there was substantial dissent from the NATO action and there is now even more substantial dissent from the proposed action in Syria. In order to build a norm permitting non-Security Council-authorized armed force on humanitarian grounds, the interventions need to not only occur, but to occur with the approval of the international community. And acquiescence in the sense of lack of military resistance to an armed action by the world's most powerful military does not count as approval.
(3) They care about international law in general but they think that there are circumstances so extreme as to warrant violating it. In domestic law, the illegality of a course of conduct should raise only a strong presumption against engaging in that conduct. If there are compelling moral (or other reasons) for breaking the law, then one breaks the law. There is a substantial body of literature on when civil disobedience is and is not justified. That work mostly addresses justified violations of domestic law applicable to individuals, but perhaps it can be adapted to international law applicable to sovereigns.
However, there is a major obstacle to adapting the civil disobedience justification to the present circumstances. The leading theorists and practitioners of civil disobedience--Thoreau, Gandhi, MLK Jr., Rawls--have all emphasized that morally justified civil disobedience must be civil, i.e., nonviolent. So if there were some proposition of international law requiring the use of force, it would be relatively straightforward to translate the individual-focused history and literature of civil disobedience into a justification for some sovereign refusing to use force, but here we have a norm forbidding force and the U.S. proposing to act in violation of that norm by using force. That is, at the very least, a substantial departure from the usual way in which civil disobedience is understood.
Well, so what? Perhaps the Administration's view is somewhat broader. Perhaps the Administration position is not so much based in the conventional account of civil disobedience but in a simpler calculation. Under this simpler view, regulated actors have a prima facie duty to obey a legal norm, but other duties may create a stronger duty to violate the legal norm. Cashing this out in practice in the current context would mean something like this: Force may only be used in the service of humanitarian aims notwithstanding its illegality where the moral justification for the use of force is very strong. The rule would need to take something like that form because a just-barely convincing moral justification would not overcome the presumption in favor of compliance with the legal prohibition; if it did, then one might as well say that the legal norm has no real force.
So, does the argument work? I continue to be extremely skeptical. Secretary Kerry's speech outlining the case for force persusasively argued that the Assad regime used chemical weapons against civilians and that this was a gross violation of human rights under international law and any decent moral view. But that does not make the case for bombing Syrian military assets--whether those connected to chemical weapons or unconnected--persuasive, much less very strong.
Why not? Well, for one thing, a big chunk of the justification for force offered by the Administration and its hawkish cheerleaders is the need to maintain U.S. credibility in light of President Obama's earlier statement that the use of chemical weapons would be a "red line." But maintaining credibility is not a moral principle. It is at best a tactical one.
If I tell one of my daughters that unless she cleans up her room before suppertime she will get no supper, and she then fails to clean up her room, I may feel obligated to deny her supper, or else lose credibility going forward, but the obligation is not a moral obligation. To extend the analogy, if, in a thoughtless moment, I tell my daughter to clean up her room before suppertime or I shall not feed her for a month, then my subsequent felt need to maintain my credibility when she again fails to do so would not and should not provide any sort of defense if I carry through on the threat and am subsequently prosecuted for child neglect or endangerment. My fellow citizens would rightly judge me not only a lawbreaker but a monster.
Likewise here, one has the very strong sense that were it not for the president's earlier loose talk about red lines, he would not now even be considering missile strikes. That leaves the impression that the Administration believes that the humanitarian objectives of the missile strike are not by themselves strong enough to justify it.
Whether or not that is actually what the Administration is thinking, it is what they ought to be thinking. If one wants to justify the use of military force on humanitarian grounds, then one should at least make the case that the use of force is likely to improve the humanitarian situation. The Administration has not done so and I doubt it could. The basic argument in favor of the limited missile strikes appears to be that these will cause enough damage to the Assad regime that it will be deterred from further use of chemical weapons. I suppose that's possible. It's also possible that the regime will be emboldened by the limited nature of the strikes to use chemical weapons again, daring President Obama to strike again, and--in light of the Administration's having wisely ruled out putting boots on the ground--essentially calling the president's bluff. Or, as threatened, Syria, Iran or Hezbollah could retaliate by attacking civilians in Israel, or could increase sponsorhsip of terrorism against Americans worldwide. The frightening possibilities are endless, and it appears that people with much more intimiate knowledge of Syria and the Middle East than I have are quite worried about them. When the use of military force is at least as likely to widen suffering as it is to curtail it, the moral justification for that use of force can hardly be said to be strong.
A pacifist friend of mine has a t-shirt that says "I'm already against the next war." One does not need to be a complete pacifist to sympathize with the sentiment. One only needs to share the view expressed in George Washington's Farewell Address: that entanglement in foreign disputes rarely does us or anybody else much good. He wrote that "Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities." Substitute the Middle East of today for Europe of the late 18th Century and the observation hardly becomes less true. The American People appear to understand that. Unfortunately, our leaders appear not to.