Non-expert Thoughts On The Syria Attack

The consensus view on the legality of the American attack on Syria among experts seems clear: the attacks, most experts have said, was illegal under international law. The basic reason is this. Article 2(4) of the United Nations Charter provides: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The consensus view is that the only uses of force that are consistent with Article 2(4) are those mentioned in the Charter: uses of force authorized by the Security Council, and use of force in self-defense. There was no Security Council authorization here, and the United States cannot make a very plausible claim that it acted in self-defense. So the use of force was contrary to the Charter and thus illegal. Q.E.D. Marko Milanovic’s post is maybe representative:

This is the first time that the US has directly used force against the Syrian regime. It is also the first time that its use of force in Syria is clearly illegal. Clearly, in the sense that I can’t imagine even a remotely plausible argument (let alone a persuasive one) as to why this act is not a breach of Article 2(4) of the Charter.

But Julian Ku has pointed out that while “almost everyone (except for Harold Koh) thinks the strikes violate the U.N. Charter,” with the exception of Russia (and Iran), “very few states have come out to criticize the U.S. strikes as a violation of international law.” And it’s not just states: move than three-quarters of the Senate expressed support for the attack, and many seem to want to say that the attack was legitimate in light of the Syrian government’s use of chemical weapons in Khan Sheikhoun even if illegal, just as the U.S. and NATO claimed when justifying their use of force Kosovo.

John Rawls
John Rawls. Credit: Harvard Gazette

But why do people feel the need to say things like, “the attack was legitimate even if illegal?” It seems to me that the answer lies in the idea of reflective equilibrium, which at least as I learned it (from John Rawls’s A Theory of Justice) comes from the world of ethics and political theory, not the world of law. The idea, roughly, is that we start with theories about right and wrong, and then when faced with cases that don’t seem to fit with the theories, we either revise the general theories to better fit the case we’re considering or else we revise our intuitions about the particular case in order to fit better with the theory. Cases like the use of force against a government that uses chemical weapons on its own people force us to make this kind of examination. If our theory is that the use of force is only justified by immediate self-defense or if authorized by the Security Council, and we’re then faced with a case that raises the most serious humanitarian considerations (the use of chemical weapons, for instance, or genocides), we may have an intuition that the use of force is right. So do we seek to qualify the general rule forbidding the use of force? Or do we come to think instead that the general rule is so plainly right that even such serious cases can’t justify overriding it? This, by the way, is pretty much like what lawyers and judges do all the time when we distinguish cases from each other and make arguments about why differences in the facts should lead to the conclusion that a rule of law that seems applicable should not apply in the case at hand.

I think a non-expert view on the legality of the attacks under international law is especially valuable because non-experts (like me) are not too committed to accepted doctrine of the jus ad bellum to engage in this kind of back-and-forth. On the level of doctrine, no doubt the experts are right. I mean, they’re the experts. But most people I know seem to think that if a government uses chemical weapons to attack its own citizens, then it’s justifiable to inflict punishment on that government, or to take actions to deter it from future use, or to take actions to make future use impossible. These may require the use of force, and so someone not strongly committed to the existing doctrine may well say that the general rule should be revised to account for the force of our moral intuitions.

This sort of thing is particularly possible in the context of the UN Charter because the Charter does not expressly say that force is permitted only for self-defense or as authorized by the Security Council (though that is how it has been construed). It says that states must refrain from “use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Now, maybe the expert view is the best view, in the abstract, of what Article 2 should mean. Probably it is, otherwise it wouldn’t be the expert view. But it’s not the only possible view, and our reality puts pressure on it. Hence Samantha Power.

All of this is just by way of explaining why I’m not persuaded that the attack was illegal as a matter of international law. That doesn’t mean it was a smart thing to do—it’s hard to know what the smart thing to do is, and I don’t claim to know whether the attack was a good idea or a bad idea once you weigh the moral, practical, and strategic factors. And it doesn’t mean I approve of President Trump’s decision-making process, his very quick about-face on the topic of Syria, or his lack of consultation with the Security Council in advance of the attack. It just means that I’m not persuaded the attack was forbidden, or rather, if the law did forbid it, that I think maybe the law has another think coming.

One other caveat: I do think there is a very serious domestic legal question about the attack. Again, I am not an expert, but I don’t see how the existing AUMF could possibly apply to this attack. Presidents have long taken advantage of Congressional unwillingness to stick out their necks and vote to authorize an attack. Why should Congress take the chance that something will go wrong and they will be blamed, when presidents are happy to go it alone? In a case like this where there is no immediate self-defense rationale, I think we need the pendulum to swing back towards Congress, which after all has the sole power to declare war, and which has, in the War Powers Resolution, provided:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

As when, to warn proud cities, war appears
Waged in the troubled sky, and armies rush
To battle in the clouds; before each van
Prick forth the airy knights, and couch their spears,
Till thickest legions close; with feats of arms
From either end of heaven the welkin burns.
Credit: US Navy

And one last caveat: the power to rain death and destruction down from the sky on enemies around the world is so terrible that we need to be more concerned than ever about the character of the President. What does it say about the President’s character that he is worried enough about innocent Syrian civilians to fire missiles at their country but not worried enough about them to admit them to this country when they are fleeing the war? What does it say about our character that the main response—not the only response—to the awful news of the chemical attack was to applaud the President’s military response rather than to also demand a change in our refugee policy?

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