On Asking for Forgiveness Instead of Permission

I agree completely with this new post by Peter Spiro over at Opinio Juris, in which he argues:

The key mistake Obama made was going to Congress for approval. The disaster that has followed shows why presidents have (or now, perhaps, “used to have”) the power unilaterally to initiate limited uses of force.

If Obama had last Saturday gone ahead and announced that a limited strike was underway against select chemical-weapons sites in Syria — the sort of announcement everyone in the Administration thought he was going to make –, and that it would be over in 48 hours, he would have accomplished everything that he’s still looking to accomplish.

Yes, there would have been political backlash — there would have been, just as there has always been, Monday-morning quarterbacking on limited uses of force. But presidents always weathered that kind of backlash. Op-eds are written, a Dennis Kucinich lawsuit is dismissed (who will play his role in future episodes?), calls are made for reining in the imperial presidency. Then everything subsides back to the constitutional mean, in which Presidents are expected to make these decisions without putting them through the hall of mirrors that is Congress. (Real wars are different — the stakes are high but the objectives tend to be clearer, much clearer, in a way that focuses the legislative mind and incentivizes approval.)

In fact I wrote much the same thing in a comment to one of my posts here on ACL last week:

As for whether Assad is behind the CW attacks, I have no more information than anyone else does. But a number of compelling factors in this case to me are the following. First, it does seem that there are some pretty damning intercepts showing Syrian army involvement. Second, while this may have been an elaborate hoax, my read of Obama over the past year has been a real reluctance to get involved in Syria. If the intelligence is good enough to bring him grudgingly to the conclusion that Assad or at least the Syrian army is responsible, that is persuasive contextual evidence to me. Third, and this is what exasperates me at the moment, all we’re talking about here is one or two days of cruise missile strikes. This is not even in the ballpark of being analogous to the invasion of Iraq in 2003. No one, and I mean no one, questions that the Syrian government has long possessed chemical weapons. They have now been used and there appears to be compelling evidence that the Syrian military is responsible. Sending a message that this is unacceptable through a limited use of force seems appropriate to me.

That being said, I almost wish now that Obama would drop the idea, because its now become such a huge talkshop issue. I think its been blown way out of proportion in terms of its implications and the whys and wherefores of it, and that now Congress is involved its just going to be an excruciatingly annoying political football.

If Obama was going to do it, he should have just done it a week ago. The domestic wrangling that’s now going to happen will have no bearing on the international legality of the strike. Its almost farcical now to be debating this in Congress as if it were a decision comparable to the Iraq 2003 decision. And all the old Iraq demons are being brought out in the process. To be clear, as I’ve said before, no one opposed the 2003 Iraq intervention more vehemently and consistently than me. But the current Syria issue shouldn’t even be mentioned in the same breath with it. And now that it is being so mentioned, I do almost wish it would be abandoned.

I’ve also noticed, since the administration has started trying to sell the idea to Congress, that there has been substantial “mission creep” in how the scope of the action is being described. When I was voicing my support for it early on, I understood it, and I think everyone understood it, to be a proposal for perhaps 48 hours of cruise missile strikes and perhaps some limited bombing, on Syrian military targets for the express and exclusive purpose of responding to the regime’s use of chemical weapons.

Now I hear administration officials talking about the strikes as not only sending a message about chemical weapons use, but also shifting the strategic balance in the Syrian civil war towards the rebels. And the timeframe and scope of the strikes themselves seems now to be a lot more open ended and indeterminate, with the only assurance of agreed limits appearing to be the “no boots on the ground” pledge.  I definitely don’t support a US military strike in Syria that is purposed in getting the US substantively involved in Syria’s civil war and shifting the strategic balance towards the rebels. And as I argued in a comment to one of David Fidler’s posts last week, the scope of a military action is itself material, in my view, to the analysis of its legality under international law.  As I said there:

This is a great post, David, and represents well the legal difficulties of this situation. I wrote a piece about Kosovo in 2001, and have dramatically changed my view of the humanitarian intervention issue since that time. I still doubt that there is a formally established right of humanitarian intervention in customary law. But at the same time, I have a hard time condemning small scale uses of international force when circumstances seem to warrant them, as in the present case. For me, its the limited nature of the use of force that makes the legal problems seem manageable. I think that as the nature of a military intervention expands and becomes more serious and sustained, so the legal problems do and should multiply. As you know, in the pre-Charter era, a distinction was often made in custom between “war” and “uses of force short of war.” The UN Charter is often said to have done away with that distinction, but it is sometimes argued, and I have alot of sympathy for this argument, that there are times when justifiable military force falling below a certain threshold of intensity and duration, will legally fall below the prohibited standard in Article 2(4). To me, limited and targeted air strikes in answer to a use of chemical weapons by a government against civilians persuasively falls into that category.

I think, unfortunately, that the idea of a US military strike on Syria has morphed substantially from where it began a week ago, and that the version of the idea now being sold to Congress is something that I don’t think is either justifiable under international law, or prudent for the US to undertake. I think, as Peter Spiro says, that if Obama was going to do this thing, he should have done it last weekend unannounced, in a limited, targeted manner, with the express purpose of sending a message to the Assad regime that chemical weapons use would not be tolerated. I think Obama would have weathered any domestic and international criticism that may have been forthcoming, because everyone would at an essential level have understood why he did it, even if they didn’t agree with the specific action he took.  But the situation now is, I think, perfectly described by Shakespeare in Julius Caesar when he says, through Brutus:

There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures.

The tide has now receded.

CNN Report on Threatened Iranian Retaliation for Syria Strike

I call bullshit on this right now.

UPDATE: New Iranian statement denying this report here.

French Government Intelligence Assessment on CWs use in Syria

You may download here the full report (PDF in French) released by the French government on its intelligence assessment on the use of CWs in Syria. I heard this morning on France-Info a French MP labelling it a ‘Wikipedia-style’ report.

On Syria and the Use of Force

The international legal blogosphere is alight with writing about the potential use of force by the U.S., and possibly France, against Syria, in response to the alleged use of chemical weapons by the Assad government, killing more than 1400 civilians.

I have been extremely pleased to have David Fidler’s and Liron Libman’s excellent piecces on this topic here on ACL. I’m particularly pleased because I think that both of them have, in expert fashion, zeroed in on the most persuasive identification of the law applicable to this issue.  I think they have both correctly identified that, notwithstanding the UK government’s formal arguments regarding humanitarian intervention, this potential use of force would not be best understood as a humanitarian intervention, but rather as a direct response to Syria’s violation of international law prohibiting the use of chemical weapons.  The purpose of this use of force, if rendered honestly – and not intentionally obscured by the typical resort to some species of self defense claim – would be to respond forcefully to this violation of the laws and norms governing behavior of states during armed conflict, and send a message of unacceptablility in order to deter similar future actions. And as Fidler and Libman urge, I think we in the international legal community need to deal with it on this basis, and not get off track into other veins of argumentation.

I read this morning a very good post on EJIL:Talk by Shane Darcy which made this same point, and I would recommend his piece to you as a very good review of the law of armed and belligerent reprisals. I think his post is a nice complement to what David and Liron have been writing here.  Darcy does conclude that armed reprisals likely are unlawful under current international law, and I don’t take issue with his assessment. But I think that the kind of thought experiments somewhere at the intersection of the lex lata and the lex ferenda, of the type engaged in here by Fidler and Libman, are important.

As I said before, I have long been concerned that the absolutist interpretive approach to Article 2(4) of the UN Charter, which essentially says that, absent a compelling case for unilateral self-defense, international law never allows any international uses of force not approved by the Security Council, makes international law and international lawyers seem seriously and dangerously removed from the reality of international relations, and the need at times to use force in international relations for justified causes. And that, to the extent international law is seen to be simply impractical in the area of international uses of force, it is likely to be ignored, to the harm of international law’s credibility in this and potentially other areas as well.

I wonder if we can understand what the drafters of the UN Charter did in structuring the UN Charter system, in light of when they did it – i.e. after the experience of two horrific world wars. Its easy to see how, at that moment in 1945, there was an understandable eagerness to forbid anything that might even possibly lead to such a catastrophy of full-on great power warfare ever happening again. But I wonder if, with the passage of almost 70 years, the attending changes in international mores, and political and technological circumstances, we can with credibility say that that regime, which made emotive and intellectual sense to the drafters of the Charter, should still govern international relations today?  Again, I have made these arguments more fully elsewhere.

I think that the arguments of theory and practicality, and particularly those of the slippery slope, made against the dilution of the bright line rule in Article 2(4), and the recognition, for example, of discrete rules allowing for humanitarian intervention, armed reprisals, counterproliferation-oriented preemptive self-defense, are well made and are persuasive. For example, if we were genuinely to pursue the legitimation of a rule permitting armed reprisals, could not that same argument be used by Israel’s neighbors to justify attacks on Israel in response to alleged violations of international humanitarian law committed by Israel in Gaza and the West Bank? Or for that matter by any number of states to justify attacks on US targets in response to alleged violations of international humanitarian law committed at Guantanamo Bay or by US drone strikes? You can imagine how this list could go on and on, potentialy eroding any clear prohibition on international uses of force.

Personally, I would say that I am dissatisfied with the absolutist approach to Article 2(4), and am open to and encouraging of the kind of thought experiments in which David and Liron have been engaged here. I think that the challenge of restructuring international law to allow for lawful uses of force in “just” situations – like humanitarian interventions, pre-emptive counterproliferation strikes, and reprisals against violations of international humanitarian law – and yet disallow uses of force in “unjust” situations (e.g. Iraq 2003, Iran 2013), is the holy grail of modern international legal scholarship and international lawmaking. I don’t think we’ve come close to cracking it yet.

Military Action in Syria as a New Form of Belligerent Reprisal

Friend of ACL Colonel Liron Libman has written a really interesting and valuable contribution to the discussions we’ve been having here the past few days regarding a potential use of force against Syria. I’m extremely pleased that he has allowed us to post it here.

Liron was previously the head of the International Law Department of the Israeli Defense Force.

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Military Action in Syria as a New Form of Belligerent Reprisal

By: Liron Libman

The recent chemical attack attributed to the Syrian regime has taken the toll of more than 1,400 civilians, including hundreds of children, according to a US government intelligence report. As the possibility of a military response is discussed worldwide, different opinions are expressed as to the possible legal justification for such a use of force.

Of course, the best justification would be a UN Security Council resolution, under Chapter VII of the UN Charter, authorizing the use of force against Syria for a specific purpose and stipulating the conditions and limitations on such a use of force. However, it is probably unrealistic to expect such a resolution, especially when considering the fact that two years of bloodshed in Syria have not produced even a declaratory Security Council resolution denouncing the regime for International Humanitarian Law (IHL) and Human Rights Law violations.

The question remains, then, can a military response against the Syrian regime be legally justified, without Security Council authorization?

The obvious candidate for such a justification is the doctrine of humanitarian intervention, as illustrated by the UK government communique about its legal position on the justification for a military intervention in Syria (released, of course, before Parliament voted against UK participation in the operation).

However, as Prof. David P. Fidler recently wrote here at Arms Control Law, regardless of the general debate over the existence of a humanitarian intervention exception to the prohibition on the use of force against a state and its limits, it is difficult to fit the current situation into the humanitarian intervention mold. The rhetoric on both the cause for action, and the purpose of the intervention planned, is focused on the use of chemical weapons: the cause is the use of such weapons by the regime, and the purpose is to prevent or to deter the regime from further use of these weapons, prohibited by international law.

More than 100,000 people have died in the Syrian internal conflict to this point, many of them civilians. As many people wonder, is it allowed under international law to target your civilian population, as long as you butcher them with conventional weapons, such as tank shells and napalm bombs? Since the answer is negative, why is a military response deliberated only now? And how will the destruction of the Syrian regime’s chemical weapon stockpiles, or even the deterrence of the Syrian regime from repeating such an attack, protect Syrian civilians from deliberate attacks using conventional weapons in the future?

Indeed, this brought Prof. Fidler to suggest that perhaps we are currently witnessing the emergence of a new and independent exception to the prohibition on the use of force in international law – enforcing a fundamental rule of international law (the prohibition on the use of chemical weapon) by deterrence of violators.

What comes to my mind is the interesting analogy between such a rational in the jus ad bellum and an old rule of jus in bello: Belligerent reprisals.

Reprisals, in the words of the UK Manual of the Law of Armed Conflict (section 16.16), are:

“….extreme measures to enforce compliance with the law of armed conflict by the adverse party. They can involve acts which would normally be illegal, resorted to after the adverse party has itself carried out illegal acts and refused to desist when called upon to do so.”

The similarities between the possibly emerging rule (hereinafter- “the new rule”) and reprisals are:

1. Both are mechanisms designed to enforce IHL.

2. Both are based on the use of force against violators of IHL during hostilities in order to deter them from further violations, and thus may actually save lives, as opposed to enforcement ex post facto by holding perpetrators accountable, which cannot bring back to life even a single victim.

3. Both are based on the use of force in a way that exceeds the usual use of force during an armed conflict: in reprisals the act taken is usually illegal under IHL, and therefore outside of the regular lawful “toolbox” a belligerent possesses. In the “new rule” the act is taken by a third side, not a party to the ongoing armed conflict, therefore tilting the balance of power between belligerents.

Certainly, belligerent reprisals are a very problematic measure, rarely used. The ICRC’s Customary IHL study states (rule 145):

“In the course of the many armed conflicts that have marked the past two decades, belligerent reprisals have not been resorted to as a measure of enforcing international humanitarian law, the main exception being the Iran–Iraq War, where such measures were severely criticized by the UN Security Council and UN Secretary-General… The reticence of States to resort to reprisals can be explained by the fact that they are ineffective as a means of enforcement, in particular because reprisals risk leading to an escalation of violations.”

The ICRC further quotes Kenya’s Laws of Armed Conflict (LOAC) Manual:

“reprisals are an unsatisfactory way of enforcing the law. They tend to be used as an excuse for illegal methods of warfare and carry a danger of escalation through repeated reprisals and counter reprisals.”

However, one can see the advantages of the “new rule” compared to traditional reprisals:

1. It is not by itself a violation of IHL, “just” a violation of the jus ad bellum, thus, arguably, less problematic from a humanitarian perspective.

2. The enforcer is not the adversary, naturally to be suspected of ulterior motives other than preserving IHL, and more susceptible to motives like revenge. Rather, a third party not involved in the armed conflict. It is easier to trust such a third party to act with caution, impartially and proportionally.

If accepted as a new version of reprisals, one may borrow some important conditions from the old rule (all conditions taken, mutatis mutandis, from the UK manual, mentioned above, section 16.17):

1. It must be in response to serious and manifestly unlawful acts for whom the government of that state is responsible.

2. It must be for the purpose of compelling the violating government to observe the law of armed conflict – effectively serving as an ultimate legal sanction or law enforcement mechanism. Thus, if a party to an armed conflict breaches the law but then expresses regret, declares that it will not be repeated, and takes measures to punish those immediately responsible, then any action taken in response to the original unlawful act cannot be justified under this rule.

3. Reasonable advance notice must be given that military force will be used (is President Obama’s “red line” declaration enough?).

4. Other reasonable means of securing compliance must be exhausted before this measure can be justified (means like diplomatic pressure, economic sanctions, UN Security Council’s intervention).

5. The force used must be in proportion to the original violation.

6. It must be publicized. Since this measure is undertaken to induce compliance with the laws of armed conflict, any action taken must be announced as such and publicized so that the relevant government is aware of the reason for the otherwise unlawful use of force against it and of its own obligation to abide by the law.

7. As this measure will entail state responsibility, it must only be authorized at the highest level of government.

8. Action may not be taken or continued after the target government has ceased to commit the conduct complained of. However, when dealing with a pattern of unlawful attacks, it seems reasonable to demand positive evidence of a policy decision to abandon this course of action. The fact that a specific unlawful attack has ended and another one of a similar type has not yet began, is not enough.

As Prof. Fidler carefully notes, this is a preliminary “thought experiment” addressing unfolding events, not a statement of existing law. I hope I have added something to this experiment.

President Obama Will Go to Congress on Military Strikes Against Syria

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.