There has been too little discussion in the U.S. about the legality, under international law, of President Donald Trump’s decision to fire Tomahawk and 19 JASSM cruise missiles at suspected Syrian chemical weapons facilities last weekend.
Only the UK offered a clear and explicit legal justification for its actions - even if most international lawyers think it is "significantly flawed." The U.S. and France appeared to argue that Syria’s violations of international law, through the repeated use of chemical weapons, were so self-evidently wrong that it ipso factogave these countries a right to use force against Syria.
In the opinion of U.S. Ambassador to the UN Nikki Haley, the U.S. had to hold "the Syrian regime responsible for its atrocities against humanity."
Lawyers will search in vain for references to the UN Charter in the arguments advanced by the US, the UK, and France in justifying their strikes in Syria.
As expected, the UK invoked the doctrine of "humanitarian intervention" under customary international law, as it did in 2013, before Parliament blocked military action. Customary international law is habitually invoked by international lawyers when they know that they do not have a legal argument to make under the UN Charter.
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Although one of the purposes of the UN is to promote and encourage respect for human rights and fundamental freedoms, the Charter does not give states a right to use force to ensure respect for these rights without authorisation from the UN Security Council.
The lack of reference to the UN Charter is not that surprising. Government lawyers in the U.S., the UK, and France, have been repeatedly side-lining the Charter to justify their military interventions since the end of the Cold War.
Russian President Vladimir Putin told Russia Today that the strikes were not only carried out “in violation of the UN Charter and principles of international law.” He also warned that the current escalation of the Syrian crisis was having "a devastating impact on the whole system of international relations.”
For international lawyers this is a very sorry state of affairs. It is as though references to the UN Charter have become the refuge of tyrants.
The view that the UN Charter and whole system of international relations is under threat from repeated unlawful uses of force is not new. Thomas Franck made the argument over 40 years ago. He repeated it after the Iraq fiasco. But I think his argument may have been precipitate.
For example, lawyers argued ad nauseamabout the legality of the invasion of Iraq, as the hundreds of pages of the UK’s Chilcot Inquiry attest. Then government lawyers acted as handmaidens to power when they fixed law around policy and made grandiose claims in the National Security Strategy of the United States of America (2002) in the lead up to the invasion.
But they did not try to rewrite the rules. That came later.
After the invasion of Iraq, and in view of all of the criticisms levelled at the U.S. and the UK, in respect of the legal advicethat was advanced justifying the invasion, it was felt that a more concerted effort was needed to make international law more relevant for the modern world.
Three events had contributed to the view that international law needed reform. The first was the Rwandan genocide. The second was Srebrenica. The third was 9/11.
With regard to the massive human rights violations in Rwanda and Bosnia it was felt that the UN had done too little to stop these atrocities. After the 9/11 attacks, it was thought that politicians were not taking international lawyers seriously when they insisted that a proper reading of the UN Charter required states to take a hit before they could take action in self-defense.
The UN Charter had been drafted for a very different world, when the domestic jurisdiction clause in Article 2 (7) of the Charter was added to prevent criticisms of colonialism and the racial policies of South Africa and the U.S.
But times have changed, and today the UN Charter is being used as a shield by authoritarian regimes to commit massive human rights violations against their own citizens, and by those states that provide sanctuary to violent nonstate actors committed to carrying out terrorist attacks against the West.
Things got out of hand in Iraq when dubious claims were advanced in order to justify regime change in that country – a flagrant violation of international law.
Ironically, the lesson from Iraq was not "never again." Rather, government lawyers set about establishing new rules that would allow states to take into account the threats from weapons of mass destruction in their assessments of when they could take measures in self-defense.
The International Commission on Intervention and State Sovereignty (2001) had also made new arguments about when states could take measures in response to massive human rights violations when the states responsible for these violations were unable or unwilling to put a stop to them – although the Commission did not go as far as British lawyers in calling for action without authorisation from the Security Council when they justified the NATO intervention in Kosovo.
"Flexibility" became the buzz word. The aim was to make law "policy relevant."
But the danger was that by making law policy relevant, the lawyers may have inadvertently made themselves irrelevant, as politicians - many of whom are also lawyers - began replacing legal advisers as the ultimate arbiters of what is lawful, and not only what is wise or just or strategic.
Consider President Trump’s pick for National Security Advisor: uber-hawk John Bolton – who is also an attorney who has written widely on international law and international affairs. Bolton has repeatedly argued that Iran and North Korea pose imminent threats to global security that necessitate the preventive use of military force.
In the case of Iran, Bolton’s argument is based on the same rationale that led the U.S. to strike Syria’s chemical weapons facilities. In his article in The New York Times, "To Stop Iran's Bomb, Bomb Iran," published in 2015, Bolton called on the U.S. to render inoperable the Natanz and Fordow uranium-enrichment installations, the Arak heavy-water production facility, and the uranium-conversion facility at Isfahan in a preemptive strike. He wrote that an attack need not destroy all of Iran’s nuclear infrastructure, just set it back a few years.
He did not mention the UN Charter or offer a legal rationale to support his argument, but he did cite as "precedents," Israel’s preventive strike on Saddam Hussein’s nuclear reactor in 1981, and Israel’s preventive strike on Bashar Assad’s "top-secret" nuclear reactor in 2007.
All the U.S. has done in Trump’s recent missile strike is to replace the target. Instead of striking Iran’s nuclear facilities, it struck Syria’s chemical weapons facilities.
The message to the Ayatollahs could not be clearer: the strikes on Syria are a dress rehearsal for future strikes on Iran.
In other words, the latest strikes on Syria were not about the appalling human rights violations in that country, whatever British Prime Minister Teresa May said in Parliament: it was a rap on the knuckles that sent a warning to Iran and North Korea (and also in May’s case to Russia in response to the attempt to kill former KGB agent Sergei Skripal with a deadly nerve agent in Salisbury).
Even more concerning, perhaps, was Bolton’s justification for an imminent strike on North Korea’s nuclear weapons program, when he cited the same legal authority that Bush administration lawyers had cited to justify the invasion of Iraq. In an article he wrote earlier this year for The Wall Street Journal, Bolton cited the nineteenth century Caroline "case" that most people will have never heard of (outside the community of international lawyers).
Again, Bolton made no reference to the UN Charter.
The failure of Bolton to mention the UN Charter and his decision to cite the same legal authority that justified the invasion of Iraq, one of the most disastrous foreign policy blunders of the twenty-first century, should be a cause of concern. How did it come to this?
During the Obama administration lawyers came up with increasingly strained readings of the UN Charter by drafting their own rules to provide "authoritative" guidance for when states could employ force in preemptive self-defence. The development of new technologies such as weaponised UAVs or ‘drones’ was one reason they felt new rules were necessary.
It was thought new rules developed by those states that were leading the development of these advanced weapons systems, including unmanned fighter aircraft, would give them a head start over their rivals and, in time, provide a global legal standard.
Controversially, the lawyers that drafted these rules decided to revisit and resurrect the Bush doctrine even though it had been widely criticized in the UN Report of the High-level Panel on Threats, Challenges and Change in 2004.
Although they admitted that mistakes had been made in Iraq, they did not take the UN’s criticisms seriously. They still believed that the legal rationale behind the Bush doctrine was solid.
And this was a view that was held by both Bush and Obama administration lawyers. As John Bellinger III, the Legal Adviser to the National Security Council at the White House (2001-2005), and the Legal Adviser to the State Department (2005-2009), wrote in The New York Times in 2010, there was going to be "more continuity than change" in the Obama administration.
Government lawyers in both the Bush and Obama administration continued to press for employing new language that would redefine the meaning of an imminent threat in a way that did not focus on the temporality of an incipient or incoming attack but reflected the wider circumstances of the threat.
The threats were never defined, but were understood to include threats from nonstate actors, from states with weapons of mass destruction, and from cyber-attacks. It was argued that an imminent threat of these sorts would provide a plausible legal argument for states to take military action without authorization from the Security Council and without having to suffer an armed attack – as the language of Article 51 of the Charter appeared to suggest.
In other words, never mind the UN Charter. Come what may the U.S. and the UK could strike first so long as the threat of an attack was "imminent."
The authors of these "rules" did not consult lawyers who disagreed with them. They did not, heaven forbid, consult Russia or China. Nor did they consult the nations of Africa or Asia that almost always oppose the claims of the U.S., the UK, and France to act as the moral wardens of the international liberal order.
In 2017, the U.S. and the UK were joined by Australia in calling for a new definition of an imminent threat, when George Brandis, the Attorney General, announced that Australia would take action in self-defense in response to imminent threats of attack.
While Australia and the UK have been careful to condition their definition of an imminent threat to credible and concrete information of an imminent attack, it is not clear whether this view is shared by Bolton who, judging from his writings, would appear to be willing to employ force against threatsthat are more remote.
The intention to draft new guidelines was noble. Greater clarity about rules is a good thing. But the strategy may have backfired, as the proliferation of guidelines and rules has sowed confusion.
We now have a situation where the permanent members of the Security Council can no longer agree on the basic rules of international law within the Council’s core field of activity concerning the maintenance of international peace and security.
The danger is not when lawyers argue about law or even when the lawyers are ignored by politicians; at least there is a standard by which these politicians can be judged, and perhaps even held to account, when the dust has settled. The danger is when nobody can agree on what the law is.
Perhaps the lawyers back in the Obama days did not want to be left out of the decision-making process. They may have thought it would be safer to have a lawyer present in the Situation Room with the President, the National Security Advisor, and the Chiefs of Staff. Perhaps they thought they were just doing what good lawyers always do, which is to please their clients.
Of course they could never have imagined in the "halcyon days" of President Obama that one day Donald Trump would become their client and their commander in chief. Nor could they have imagined that John Bolton would be ensconced in the West Wing whispering in his ear.
Victor Kattan is Senior Research Fellow at the Middle East Institute of the National University of Singapore (NUS) and an Associate Fellow at NUS Law. Twitter: @VictorKattan