The New York Times just reported that President Obama has decided to seek congressional authorization for military strikes against Syria as a response to the chemical weapons attacks his administration attributes to the Syrian government. This unexpected development has significant legal implications not only for US law but also international law.
With the political context rocked by the UK Parliament’s rejection of military action, the Obama administration’s move from “consulting” with members of Congress to seeking authorization for the use of military force changes the legal context domestically in the US–with the question now laid before Congress and its war powers. Not only is this decision significant for the Syrian crisis but it will also factor into war powers debates in the future, as a precedent to rival the Obama administration’s decisions on US law and the use of force against Libya.
But, as we know from Congress’ authorization of the invasion of Iraq, having a constitutionally clean outcome in US law does not resolve international legal issues and controversies. The Obama administration’s legal case for military strikes under international law relies primarily on the need to respond to the violation of the prohibition on the use of chemical weapons, supported by a secondary rationale of collective self-defense. Congressional authorization to use force will not settle the international legal controversies surrounding this crisis. How these controversies might affect congressional debates and votes is not clear, but, with US domestic politics now to become more fully engaged, the Obama administration’s international legal case will factor into the arguments for and against military intervention, even if international legal analysis is not, in the end, decisive in the ultimate decision achieved.
A taste of these international legal debates appeared today in Harvard professor Jack Goldsmith’s New York Times op-ed arguing that military strikes by the Obama administration, under its stated legal rationales, would violate international law.
A colleague recently sent me the attached August 12 IAEA Director General’s report to the Board of Governors entitled “The Conceptualization and Development of Safeguards Implementation at the State Level.” Mark Hibbs has written a very good summary here of the development of safeguards strategy by the IAEA, including the new state level approach, which will give readers useful background. The report starts off with a “Background” section in which it makes a case for the legal authority of the IAEA to investigate and assess safeguards agreement compliance by member states. Here’s the gist of it:
Under comprehensive safeguards agreements (CSAs), the Agency has both the right and the obligation to verify the correctness and completeness of States’ declarations so that there is credible assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities . . . Notwithstanding the above, for many years after the Agency first started implementing safeguards pursuant to CSAs, its safeguards activities were focused primarily on nuclear material and facilities declared by the State concerned . . . Between June 1995 and June 1996, the Secretariat held informal consultations with Member States on the measures to be implemented under complementary legal authority, as well as on a draft model protocol for such complementary legal authority. In June 1996, the Board of Governors acknowledged that such measures would strengthen the Agency’s ability to detect undeclared nuclear material and activities, and decided to establish an open ended committee of the Board of Governors to negotiate a draft model protocol based on the Secretariat’s draft. In May 1997, the Board of Governors approved the Model Additional Protocol and instructed the Director General to use it as the standard for additional protocols (APs) concluded by States with CSAs.
Before proceeding, I just want to reiterate what I’ve said before about this narrative, which is that it just does not make sense. It’s so clearly a strained, revisionist legal argument to show that states like Iran who only have CSA’s in force with the IAEA and not AP’s, nevertheless are subject to the IAEA’s full right to investigate and assess not only the correctness but also the completeness of their declarations, i.e. to verify that there are no undeclared fissile materials in their territory. I mean think about it. What this narrative is saying is that the IAEA has all along had this full authority to investigate and assess correctness and completeness. They just chose not to exercise it for the first, oh, say 30 years or so of the IAEA’s NPT safeguards role. But then Iraq happened and the IAEA decided that it now had to use its full latent authority to detect undeclared fissile materials.
Now, if that were the end of the narrative, it might still make sense. But it doesn’t stop there. After realizing that they have had this legal authority all along, the IAEA did what? They created a new treaty that all member states were supposed to sign, the Additional Protocol, to enable the IAEA to exercise this full authority that it already had. Wait, what?
If they already had the authority, why did they need states to additionally sign on to the Additional Protocol in order for them to exercise it? Notice that the Office of Legal Affairs has tried to use some creative semantics to get around this fairly obvious unpersuasiveness of their narrative. They refer here to the AP as establishing the IAEA’s “complementary legal authority” to investigate and assess both correctness and completeness of the declaration. The word “complementary,” here, is supposed to assure diplomats that the AP didn’t really add anything to the IAEA’s authority, it just complemented (whatever that means) the authority it already had.
This is just ridiculous. If the IAEA already had the authority to investigate and assess both the correctness and completeness of state declarations under the CSA, there would have been no need for the Additional Protocol. You just can’t get around that conclusion.
The true narrative is so much more simple and persuasive. And you can find it in the History of the International Atomic Energy Agency: The First Forty Years, written by David Fischer and published by the IAEA itself, constituting something of an official history of the agency. Here’s how the narrative is presented on Pgs. 296-299:
It will be recalled that in verifying compliance with comprehensive safeguards agreements IAEA inspectors had essentially confined their focus, during routine inspections, to the nuclear material at locations that had been declared by the State (but the agreement required the State to notify all material in peaceful uses). The IAEA’s inspectors would verify the State’s reports on its stocks of nuclear material and changes in those stocks . . . chiefly by access limited to a number of pre-defined strategic points in the plant concerned. The 1971 system was thus largely one of auditing the State’s nuclear material accounts, and it had worked well in regard to locations and nuclear material that had been reported to the IAEA. The IAEA’s experience in Iraq and the DPRK had shown, however, that it was essential that the Agency should go beyond auditing the State’s nuclear accounts. The Agency must be able to assure itself that the State’s declarations were also complete – that the State had reported all its nuclear material. . . In 1995, the Board authorized the Secretariat to put into effect those elements of the ‘Programme 93+2’ that did not require additional legal authority. In May 1997, the Board approved a protocol, to be added to existing comprehensive safeguards agreements, which will provide the legal authority for several safeguards measures that go beyond the existing system, for instance, access by the IAEA to more information about a State’s nuclear activities, more intensive inspections, including access beyond previously agreed ‘strategic points’ in a safeguarded plant, access to any installation within the perimeter of a nuclear site, and access to plants engaged in nuclear related activities such as those manufacturing components of enrichment plants. . . [t]he Board approved the protocol on 15 May 1997.
See? It’s so clear and easy and persuasive. The AP did in fact significantly expand the authority of the IAEA, for those states that signed AP’s, to investigate and assess the completeness of a state’s declaration regarding its nuclear program, and to verify that there are no undeclared nuclear materials within the territory of a state. However, the AP is a voluntary protocol, and not all IAEA member states have adopted it. This poses a problem for the IAEA in applying the full scope of safeguards that it would like to apply to every state. This explains why the sophistry of the IAEA’s lawyers is necessary to try to persuade states that have not signed onto the AP that, notwithstanding this fact, the IAEA has the same authority to investigate and to assess their nuclear program as if they had signed the AP. Again, this is just nonsensical.
I’ve written about this whole issue of the scope of authority of the IAEA to investigate and assess quite extensively before, including here, here, here, and in the BAS Roundtable which I’ll insert in this post as another document, because the BAS has apparently taken the roundtable off their site.
I hope that all this writing has made it clear that the IAEA lawyers are simply incorrect in their recent arguments about the scope of the IAEA’s legal authority under the CSA. Their arguments are a revisionist attempt to increase the authority of the IAEA by fiat of the Director General and Board of Governors. They are trying to convince states, in particular NNWS, that the IAEA has a much more expanded scope of legal authority than it actually is given in the relevant legal documents, in hopes of convincing states to cooperate with the IAEA BOG in whatever intrusive and subjectively defined scheme of investigation and assessment the BOG thinks should be applicable to their individual case.
As I have made clear in my other writing, and as is further clear from the Fischer quote above, the IAEA, particularly under DG Amano, has moved its position regarding its own authority increasingly beyond its actual authority and mandate as provided in NPT Article III and Articles I & II of the CSA.
Looking further into this new state level safeguards approach document, I’m just struck by how it seems to be a proposal for turning the IAEA from being an independent fissile materials monitoring and verification body, as its Statute clearly created it to be, into an FBI-like investigative agency, focused on rooting out any NNWS’s nuclear weapons aspirations, or anything that may even look like nuclear weapons aspirations, and exposing them for the enforcement action of the UN Security Council and through sanctions by powerful states.
Just look at this stuff on page 5 of the report:
In determining how these generic safeguards objectives are to be addressed for a particular State, the Agency first conducts an analysis of all technically plausible paths by which that State could pursue the acquisition of nuclear material for the development of a nuclear weapon or other nuclear explosive device. This process is referred to as ‘acquisition path analysis’. In the course of that analysis, a technical assessment is made of the specific steps a State could potentially undertake (e.g. carrying out undeclared nuclear activities) along each plausible path, taking into consideration the State’s nuclear fuel cycle and related capabilities.24 These paths are prioritised according to an assessment of their safeguards significance. The Agency then establishes technical objectives for each path and prioritises them according to their relative importance in covering that path. Safeguards measures for addressing the technical objectives are then identified.
By way of example, for a State with only a nuclear reactor, a plausible acquisition path would involve the diversion of spent fuel from the reactor and its subsequent processing at an undeclared reprocessing installation to recover plutonium from the spent fuel. One technical objective for this path would be to detect undeclared activities related to reprocessing. Safeguards measures to address this technical objective could include complementary access, the collection of environmental samples at research institutions in the State, and evaluation of information available to the Agency related to the State’s research activities.
I found this passage quite shocking. It seems to essentially reverse any presumption that NNWS members of the IAEA should be free from any suspicion of wrongdoing without evidence to the contrary, and instead adopts a generalized assumptive suspicion that all NNWS members are potentially seeking nuclear weapons, and so should be constantly scrutinized for any sign of illicit behavior. This is quite a paradigm shift.
The state level approach overall seems geared to reduce the attention the IAEA pays to “good states,” i.e. those for whom a broader conclusion has been reached, and instead focus the IAEA’s scrutiny on a list of “suspect states.” The means by which states get added to the “suspect” list would appear to be susceptible to a considerable degree of subjectivity and politicization. But once you’re on the naughty list, the IAEA will essentially assume your wrong intent and then follow up methodically on every possible way in which you might even potentially go about developing a nuclear weapon – even if there is no evidence that you are trying to do so or have ever tried to do so – and monitor those pathways constantly, requiring your complete cooperation with whatever invasive and subjectively determined processes and standards of investigation and assessment the BOG determines to be necessary in your specific case.
Can you imagine any of the NWS/P5 EVER consenting to such discriminatory, intrusive and subjective investigation and assessment standards being applied to them? Neither can I.
UK Government Releases Intelligence Assessment on Chemical Weapons Use in Syria and Legal Position on Use of Military Force against SyriaPosted: August 29, 2013
The UK government has released its intelligence assessment of chemical weapons use in Syria, and its legal position on using military force against Syria in the absence of a Security Council authorization.
Neither Humanitarian Intervention Nor Self-Defense in Syria: A New Justification for the Use of Force in International Law?Posted: August 28, 2013
As matters hurtle toward a military strike against Syria, the debate about the prudence and legality of such a strike is in full frenzy–and Arms Control Law has participated in this debate earlier and over the past few days.
Here, I follow-up on a thought I raised in a reply to a comment on my August 23rd post on international and national legal issues associated with possible military action against Syria in response to the chemical weapons attack, namely that the international legal justification for using force against Syria is not really humanitarian intervention.
So, to continue this thought experiment, what might be emerging here is, in essence, a claim that use of chemical weapons on a large-scale provides an independent basis in international law for countries to use force against the government perpetrating such an illegal action.
As we have seen in the debate, including my August 23rd post, commentators have tried to slot a military response to the Syrian chemical weapons incident into existing exceptions to the prohibition on the use of force in international law, including arguments that such a military response:
- Can only be legal if authorized by the Security Council;
- Could, perhaps, fall under a broad concept of self-defense; and
- Can be justified as humanitarian intervention not requiring Security Council authorization.
However, Security Council authorization is unlikely, and arguments from self-defense (even broadly interpreted) and humanitarian intervention encounter serious problems as justifications for the use of military force against Syria as a response to the chemical weapons incident. As between a self-defense argument and the humanitarian intervention argument, the humanitarian intervention argument appears to have more support, with the humanitarian intervention in Kosovo undertaken without Security Council authorization often considered the best precedent. The resolution the U.K. has introduced at the Security Council apparently seeks authorization for “all necessary means to protect civilians,” which links to the humanitarian intervention framing of the problem.
Although I understand the framing of the issue in this manner, especially given existing international law on the use of force, the humanitarian intervention argument does not fit this crisis well. The humanitarian intervention exception to the prohibition on the use of force is very controversial even when used to prevent or stop humanitarian atrocities. Even many supportive of the humanitarian intervention in Kosovo acknowledged it did not, or should not, constitute a strong precedent for a humanitarian intervention exception to the prohibition on the use of force in international law.
The path to the use of force against Syria is hard, however, to pave with humanitarian intentions. From the “red line” laid down by President Obama through the present crisis, the focus has been on the use of chemical weapons by Syria in its civil war. Although we do not know what the anticipated military strike will involve, public statements of the U.S. and other governments indicate that the military response will be limited in scale and duration, designed to deter any further use of chemical weapons, and is not intended to change the course of the Syrian civil war or effect regime change. Put another way, based on what we are being told, this military intervention appears surgically focused on shoring up the international legal prohibition against the use of chemical weapons.
Preventing any more use of chemical weapons would have positive humanitarian consequences in removing one type of weapon from the battlefields of Syria, but, as many have already argued, the currently stated purposes and objectives of the military response will not alleviate the humanitarian disaster the Syrian civil war has become. As has already been asked, is death and suffering from chemical weapons worse, as a humanitarian matter, than death and suffering from conventional weapons?
The anticipated military strikes will not, apparently, degrade the Syrian military’s ability to use heavy conventional weapons against civilians and civilian areas, which have been the source of much human death and suffering in this conflict to date. Nor apparently are the strikes designed to change the Syrian government’s and military’s strategies, tactics, and choice of weapons, except with regard to chemical weapons. Humanitarian protection, as an objective or outcome, is deliberately limited to use of a specific type of weapon. Put differently, but for the use of chemical weapons, we would not be debating humanitarian intervention any differently than we have since the Syria civil war started. More simply, it’s fundamentally about the weapon not the human suffering.
Following this thought, justifying military action against Syria flows most directly, then, from the importance of protecting the “chemical weapons taboo” in international law–the complete prohibition in armed conflict of the use of any chemical weapons. This prohibition contains within it not only the purpose of limiting the suffering war causes but also the core interests of states in eliminating chemical weapons from armed conflict. These core interests have coalesced multilaterally in a manner that makes this prohibition one of the most important rules in international law, an importance developed on the journey from the trenches of World War I, to the Geneva Protocol of 1925, and to the CWC of 1993–as enhanced by actions to prevent chemical terrorism (e.g., Security Council Resolution 1540).
Looking at the way the move to military action against has developed, the anticipated military response appears most deeply rooted in this prohibition and its fundamental importance in international relations. This prohibition is, then, the basis for justifying the legitimacy and legality of a use of force against Syria in the absence of a Security Council resolution.
But. wait, I hear people saying (or perhaps shouting), international law has not recognized such an exception to the prohibition on the use of force–there’s no state practice or opinio juris supporting this notion, nor does any treaty, including the Geneva Protocol or CWC, create any such exception. All correct arguments, but my point is that we are perhaps seeing unfold a rapidly emerging acceptance of a new exception to the prohibition on the use of force grounded in a critical rule of international law, the importance of which depends on its protection or, if you will, its enforcement, including through military means against violators. Otherwise, we are left with the contorting legal gymnastics necessary to make what is about to happen “humanitarian intervention” or “self-defense.”
This thought experiment has not addressed every issue, problem, pitfall, or potential “you can’t be serious” response raised by what it has suggested, but, being a speculative enterprise, pushing this idea farther at the moment might aggravate more than illuminate.
And now for something completely non-Syrian that still involves chemical weapons. In its October 2013 Term, the US Supreme Court will hear Bond v. United States, a case that involves treaty interpretation and constitutional challenges to the CWC Implementation Act. Briefly, the federal government successfully prosecuted Carol Ann Bond under the criminal provisions of this Act for using toxic chemicals against a woman who had an affair with Bond’s husband. Bond challenged the federal government’s interpretation of the CWC (as implemented in the Act) and asserted that the treaty did not apply to her case. She also argued that the CWC Implementation Act was unconstitutional because it exceeded Congress’ authority to pass legislation to implement a valid treaty, encroached on state authority for local criminal matters, and, thus, violated principles of federalism.
For those interested in learning more about the case, see the Bond v. United States page on SCOTUSblog. This page includes links to the briefs filed by the parties and amicus briefs submitted by various experts. One such amicus brief filed by experts on international arms control agreements (including me) supports the U.S. government’s position in this case and seeks “to explain the CWC’s requirements in light of its text, structure and history and the shared understanding of the 189 states parties to the CWC, to explain the treaty’s importance for the United States and the rest of the world, and to explain the reasons why the terms of the treaty were intentionally made expansive.”
As media are reporting, high-level discussions in Washington, D.C. and elsewhere are focusing on how governments should respond to the incident in Syria involving an alleged chemical weapons attack by the Syrian regime. These discussions include consideration of military strikes against Syria. Earlier, in light of conclusions that the Assad government had used chemical weapons on a small scale, deliberations about arming Syrian rebels raised questions of international law and other sources of law (EU law, US law). See, for example, Pierre-Emmanuel Dupont’s Arms Control Law post on this issue.
At present, the debate about direct military strikes is dominated by non-legal questions, such as (1) clarifying what happened and who is responsible (on which see Jean Pascal Zanders’ posts on Arms Control Law and The Trench), (2) further danger to US credibility given existing controversies about President Obama’s “red line” statements, and (3) whether military intervention would be prudent or effective. However, as suggested by gathering momentum for military action, legal issues are on the agenda internationally and within governments contemplating the use of force. So, here are some preliminary, general thoughts on these legal questions.
In terms of international law, two critical, linked issues are (1) the principles on state responsibility (did a chemical weapons attack occur, and was the Syrian government responsible?), and (2) the rules on the use of force (does a chemical weapons attack attributable to the Syrian government provide a justification for other states to use force against Syria?).
The cleanest scenario would be for the evidence to show that the Syrian government used chemical weapons, and, then, for the Security Council to authorize UN member states to respond with military force to this threat to international peace and security.
For many reasons, this scenario is unlikely to be the one that plays out. At the moment, it appears as if definitive attribution of this attack to the Syrian government will prove time-consuming, difficult, and politically contentious, leaving enough room and time for differences among members of the Security Council to produce opposition to a resolution authorizing the use of force against Syria.
The next strongest basis for using force, the right to use force in self-defense, is not an option because the attack in question was not perpetrated against another state. Nor, at the moment, would an argument of anticipatory or pre-emptive self-defense be persuasive as a justification for using force.
That leaves the more controversial option of justifying a use of force under the “responsibility to protect” (R2P) principle, or (to the extent it is considered distinct from R2P) under the older idea of humanitarian intervention. This option is controversial because, among other things, whether a state can rely on these grounds to use force without Security Council authorization remains hotly debated, indicating that no consensus exists in international law on this question. The Syrian conflict, and the humanitarian debacle associated with it, has revealed the depth of disagreement about, and the difficulties associated with, the R2P principle in international law.
However, even given this controversy, the large-scale use of chemical weapons by a government against civilians in a civil war constitutes an atrocity of sufficient gravity that states can, with some force, argue that international law permits military action against that government without authorization of the Security Council. This argument will agitate the long-standing legal controversy in this area, but the controversy cuts both ways in that its existence means neither position is beyond the legal pale. Potentially effective ways to manage the controversy in order to tip opinion in the direction of using force without Security Council authorization include (1) producing clear and convincing evidence of Syrian government responsibility for a chemical weapons attack, (2) making good faith efforts to try to obtain Security Council authorization for a use of force, and (3) ensuring serious multilateral support for, and participation in, military action against Syria.
In terms of US law, military strikes by US armed forces would bring questions of constitutional war powers into play, as well as the War Powers Resolution (WPR). Most recently, controversies about the application of constitutional war powers and the WPR erupted in connection with the US air campaign against Libya. To much debate, the Obama administration argued that US military activities against Libya did not constitute “war” under the Constitution or “hostilities” under the WPR. Whether the administration would use the same reasoning with respect to military action against Syria depends on many factors, including the scope and seriousness of US military efforts.
However, we know enough to understand that Libya and Syria are not comparable. To date, US reluctance to get involved militarily in Syria flows, in part, from a realization Syria presents a harder target, and a more difficult operational context, than Libya. These differences would probably require more extensive, much riskier military activities than the US was able to undertake against Libya. Legally, it would be harder to sustain the position that such activities do not constitute “war” under the Constitution or “hostilities” under the WPR. Further, very limited military actions designed to permit re-use of the legal positions taken in the Libya incident could undermine the international legal case that military force is justified in responding to a large-scale atrocity committed with chemical weapons.
To avoid constitutional and statutory problems, the President could seek congressional authorization to use force, but the wisdom of US military intervention into the Syrian conflict has been, and currently is, at issue in Washington, D.C., even in light of the alleged chemical weapons atrocity. Given this, and the nasty political climate between the White House and Congress, it is difficult to believe that Congress would declare war on Syria absent some development that would dramatically change the political calculations inside the Beltway.