On January 2, 2019, the United States carried out a drone strike at Baghdad airport in Iraq in which Qassem Soleimani, a high-level Iranian military leader, was murdered. This post will analyze the legality of this particular United States’ use of force under international law as well as under U.S. domestic law. Moreover, this post will discuss (negative) policy implications of this strike.
By launching an air strike on the territory of a sovereign nation (Iraq), which targeted a top-level military official of another sovereign nation (Iran), the United States used force against two other sovereign nations. Such use of force is prohibited under Article 2(4) of the United Nations Charter, and the United States thus violated its international law obligations under the Charter, unless the United States can demonstrate that the military strike was conducted pursuant to a Security Council authorization or in self-defense. In this case, the United States acted alone, without seeking Security Council approval. Thus, under international law, the only way that the United States could justify the drone strike and the resulting killing of Qassem Soleimani is through self-defense.
The traditional law of self-defense, as reflected in Article 51 of the United Nations Charter, allows a state to use force in self-defense if it has been subjected to an armed attack. Moreover, the use of force in self-defense must respect the requirements of necessity and proportionality. In this instance, even assuming that Soleimani was planning activities which would have been harmful to the United States’ national security interests, the United States had not suffered an armed attack by Soleimani/Iran and cannot rely on the traditional law of self-defense. More recently, scholars (for a good recap of the law of anticipatory and pre-emptive self-defense, see here and here) and some states (United States in particular) have advanced more aggressive variants of self-defense, including preventive self-defense, pre-emptive self-defense, and the “unable or unwilling” standard. The George W. Bush administration argued that force could be used in self-defense in a pre-emptive manner, against both terrorists as well as countries which harbor terrorists. The strike against Soleimani could potentially be justified under pre-emptive self-defense, especially if evidence demonstrated that Soleimani was engaged in activities which posed a threat toward the United States. However, pre-emptive self-defense is not a widely accepted interpretation of the international law of self-defense; it is not part of treaty or customary international law; even subsequent United States’ administrations have adopted different views on self-defense. Thus, pre-emptive self-defense remains a controversial interpretation of the international law of self-defense. The Obama Administration adopted a different approach by arguing that the United States could use force in compliance with the international law of self-defense against a state which was unable or unwilling to control non-state actors operating from within its territory, if such actors posed an imminent threat to the United States. Under the Obama Administration view of the right of self-defense, the United States’ strike against Soleimani cannot be easily justified because, even if Soleimani posed an imminent threat to the United States (it remains to be seen whether Soleimani was presently engaged in activities which would have posed an imminent threat against the United States), he was not a non-state actor, but rather an Iranian military official. It is thus questionable that the strike was lawful under the Obama Administration paradigm of self-defense paradigm. Finally, the United States could possibly claim that it was acting in collective self-defense pursuant to Iraq’s request for help- that Iraq had requested assistance from the United States in acting against Soleimani/Iran. As of now, there is no evidence that this was the case. The U.S. troops were in Iraq to lend support in the fight against ISIS, and it appears that the United States launched this attack without Iraq’s knowledge or approval. In fact, in response to the Soleimani strike, the Iraqi Parliament has voted a resolution which would expel U.S. troops from Iraq. Thus, the collective self-defense argument has no merit for now. The only way in which the Soleimani strike can be possibly justified under self-defense would be through the Bush Doctrine/preemptive self-defense. As argued above, pre-emptive self-defense is not part of well-accepted international law as of today, and the Soleimani strike is illegal under international law.
Under United States’ law, the President can use force against another sovereign nation pursuant to his constitutional authority as Commander-in Chief, or pursuant to specific congressional authorization to use force. Congress has not authorized the president to use force against Iran. Congress did authorize the president to use force against those who planned the September 11 attacks in 2001 (2001 AUMF), as well as to use force against Iraq in 2002 (2002 AUMF). It is very difficult to link Soleimani to Al Qaeda/Taliban terrorists who planned the 9/11 attacks. It is equally difficult to claim that Soleimani was operating in Iraq, and that the strike against him would somehow support the U.S. troops present in Iraq pursuant to the 2002 AUMF. Thus, the 2001 and 2002 AUMFs did not authorize the president to use military force in this particular instance. The relevant question therefore becomes whether the president had inherent constitutional authority to act. Although considerable debate exists about the scope of presidential power regarding the use of military force without congressional authorization, the executive branch, through several Office of Legal Counsel memoranda, has argued that the president has the authority to use force when: 1) there is an important national security interest in doing so; and 2) the use of force falls short of “war” in the traditional sense. The executive branch has thus advanced the view that “military operations will likely rise to the level of a war only when characterized by ‘prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’” Pursuant to this view, the executive branch has opined that the U.S. military activities in Haiti in the 1990s, the military strikes in Libya in 2011, as well as in Syria in 2018, did not cross the “war” threshold.
Moreover, the War Powers Resolution of 1973 imposes an additional limitation on the president’s authority to conduct military operations without explicit congressional approval. The War Powers Resolution specifies that the president may introduce U.S. armed forces into hostilities only if there is a 1) declaration of war; 2) specific statutory authorization; or 3) a national emergency created by an attack against the United States. The War Powers Resolution also requires that relevant military operations be terminated after a defined period of time (60 days), unless Congress specifically authorizes further military action, as well as that the president report to Congress within 48 hours of engaging in hostilities. In this instance, the Trump Administration has actually provided a classified report to Congress under the War Powers Resolution, two days after the drone strike which killed Soleimani. As of now, the report is classified and it is impossible to know what type of rationale the administration has provided to Congress. Presumably, the Trump Administration believes that the strike falls within the War Powers Resolution limitations on presidential authority to conduct military attacks as the Administration has provided a post-strike report to Congress.
In light of the above, the strike against Soleimani would be legal under U.S. domestic law only if the strike was in the U.S. national security interest, if the strike did not constitute “war,” and if the strike did not lead U.S. troops into “hostilities” under the War Power Resolution. It is debatable whether the strike was in the U.S. national security interest now – although many experts agree that Soleimani had been a threat to the United States, it is unclear if he was presently involved in planning attacks against the United States. Moreover, it is uncertain whether the strike falls short of “war.” In addition to the executive branch test mentioned above (“prolonged and sustained military operations”), Office of Legal Counsel memoranda have suggested that the use of force may constitute “war” if such force is used against another sovereign nation without such nation’s consent, and if there is a high likelihood of escalation. In this instance, the relevant question to ask is whether the strike is likely to lead U.S. troops to enter prolonged and sustained military operations with a high likelihood of escalation (the strike was clearly conduct4ed without Iraq’s consent). If the answer to this inquiry is positive, then the president’s action would be illegal under U.S. law. Finally, it is unclear whether the military strike against Soleimani constitutes a “hostility” under the War Powers Resolution. The Obama and the Trump administrations have taken the position that providing aerial refueling and intelligence support to the Saudi-led coalition in Yemen falls short of introducing U.S. troops into “hostilities.” It may be argued that the killing of another nation’s military leader is an action much more likely to lead U.S. troops to enter “hostilities” than an action conducted to provide aerial refueling or intelligence support. In sum, it is debatable whether the military strike which killed Soleimani is legal under domestic law. In order to reach this determination, one would have to conclude that the strike was in the U.S. national security interest, that it did not amount to war, and that it would not lead U.S. troops to enter into hostilities. In light of the ongoing crisis with Iran, and the fact that Iran is state with a strong military, as well as with developing nuclear technology, it is likely that the strike will lead to an escalating military conflict. Thus, it is more than reasonable to conclude that the strike was not conducted pursuant to domestic legal authority, because the president did not seek requisite congressional authorization and did not have inherent constitutional authority to act.
Finally, even assuming that the strike was lawful under international and domestic law, the strike did not amount to good policy. First, the strike may portray the United States as a rogue actor in the Middle East, willing to carry out assassinations against those whom its perceives as enemies. This image of the United States may limit its ability to build strategic alliances with other countries in the Middle East as well as with other global partners. Second, the strike may provoke revenge and retaliation by Iran. Iran could attack Americans in the Middle East, could pursue attacks or other aggressive actions against Israel, an important U.S. ally, and could act through various proxies to destabilize the Middle East. Iran will likely re-initiate its nuclear weapons development programs, as it has already announced that it is abandoning the Nuclear Agreement which it had signed with the United States and several European countries; this will pose an additional threat in the region. Third, the strike has already caused a backlash from other countries and non-state/terrorist actors. As mentioned above, the Iraqi Parliament has voted to expel U.S. troops from Iraq. United Nations Secretary-General Antonio Guterres has expressed “deep concern” over the U.S. strike against Soleimani; Russia has condemned the strike, and several Americans were killed in a terrorist attack in Kenya. Fourth, it is unclear how the strike furthers United States’ national security and foreign policy. As mentioned above, there is no credible information to suggest that Soleimani was engaged in present-day terrorist activity against the United States, and his elimination does not protect the United States any further, nor does it advance any particular foreign policy in the Middle East. In fact, the strike is likely to cause conflict in this already volatile region and to potentially drag the United States into another war. In sum, the strike is illegal under international law, very likely illegal under domestic law, and definitely bad policy.
Liechtenstein hosted a panel this morning at the Assembly of States Parties (ASP) titled “The ICC’s Jurisdiction Over the Crime of Aggression”. This panel sought to discuss the significance and broader context of the crime of aggression. Panelists included IntLawGrrl Jennifer Trahan, Professor at the Center for Global Affairs at New York University, David Donat Cattin, Secretary-General of Parliamentarians for Global Action, and Donald Ferencz, the Convenor of the Global Institute on the Prevention of Aggression. This panel complemented many of the comments that States made at the General Debate session held yesterday that continued after this panel on the activation of the crime of aggression.
Many States Parties made supportive statements on the activation of the crime of aggression during the General Debate on Day 1 that continued after Liechtenstein’s panel today on Day 2. Austria spoke on behalf of the European Union (EU) in support of the activation of the crime of aggression, and all EU member states commented that they supported Austria’s statement. Most notably, however, France was quite critical of the Kampala Amendments as promoting division amongst States Parties when the focus should be universality. China as well was critical of the Amendments, stating that the International Criminal Court (ICC) should not undermine the Security Council, as it is this body that is responsible for upholding international peace and security. Given that China is a permanent member of the Security Council and is not a party to the ICC, this comment is not surprising. Many states commented that they are in the process of ratifying the Amendments, which was a welcome announcement, including Paraguay and Greece.
During the panel, Jennifer Trahan began the discussion with an analysis of the text of Article 8bis of the Rome Statute which enumerates the crime of aggression. As discussed in my previous post, Trahan stated that the language in Article 8bis derives from the London Statute of the Nuremberg Tribunal and that the crime of aggression is not meant to encompass all violations of Article 2(4) of the UN Charter, but manifest violations. Manifest violations, she clarified, are those that are super clear and not in a grey zone. She also discussed the novel jurisdictional regime that exists within the crime of aggression with regard to state and proprio motu referrals compared to the other three international crimes: non-States Parties to the Rome Statute are completely excluded from the Court’s jurisdiction over the crime of aggression; not all States Parties are automatically covered by 15bis jurisdiction; and there is an opt-out method for States to opt out of the Court’s jurisdiction over the crime.
Photo credit: coalitionfortheicc.org
David Donat Cattin held a very positive view on the activation of the crime of aggression and discussed some of the progress being made for further ratifications. He referenced the Austrian delegate’s support for the activation of the crime of aggression on behalf of the EU and hoped that this statement would have an impact on other EU member states to encourage their ratification. He also mentioned that the Dominican Republic will be voting on whether to ratify the amendment in the next year. He added that the Central African Republic is likely to join because they are subjected to foreign interference on all sides. He also mentioned that South Africa highlighted the historic significance of the Kampala Amendments at the General Debate, so this may indicate its ratification in the next year.
Donald Ferencz completed the panel with some very engaging comments that started with this statement: “the rule of law is for the little people”. He commented that a state like Liechtenstein, who has ratified the Amendments, is likely not about to commit the crime of aggression, but two permanent members of the Security Council who are also States Parties to the Rome Statute (referencing the UK and France) have not ratified the Amendments. This sends the message that this law/crime is not for bigger states like the UK and France, but is for the smaller states, who are unlikely to be the ones committing the crime in the first place. This was quite an interesting comment in light of France’s statement regarding the Kampala Amendments promoting division at the General Debate yesterday.
One quite interesting debate that evolved out of the panel concerned how to hold state officials liable for the crime of aggression when the state is not a party to the Rome Statute, with specific reference to the Russian invasion of Ukraine. This question was first brought up by Sabine Nolke, Canadian Ambassador to the Netherlands. A few intervenors were of the view that, in the case of Russia, war crimes committed in Ukraine (because Ukraine is a party to the Rome Statute) can be prosecuted and the Court could consider the fact that Russia committed an act of aggression as an aggravating factor in the prosecution of war crimes and in sentencing. Nolke and members of the panel, however, cautioned against this view because it suggests that war crimes committed in non-aggressive wars are less grave or less prosecutable. She and the panelists stressed that war crimes are war crimes no matter the context, and they should not be treated differently based on whether or not there is an aggressive war.
States’ comments during the General Debate and the discussion during this panel indicate that, although there seems to be a large degree of support for the activation of the crime, ratification is still a live issue and questions of jurisdiction are far from settled.
This blogpost and the author’s attendance to the 17thAssembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.
Photo credit: BBC: https://www.bbc.com/news/world-africa-29548753
This year’s Assembly of States Parties (ASP) marks the first time the Court and States Parties will discuss the crime of aggression since its activation last year, and it will be interesting to hear what States Parties have to say about it. One issue that may be addressed includes the relationship between the Court and the Security Council given that the Security Council must first determine that an act of aggression has occurred before the Court can prosecute the crime of aggression (there is, however, an exception to this if 6 months have passed since the Security Council was made aware that an alleged act of aggression has occurred and has not made a determination). The implementation of the Kampala Amendments is another potential issue because there has been debate surrounding whether the amendments should be universally implemented for all States Parties to the Rome Statute or only for those that ratify the amendment. A third potential issue of discussion is how the Court will fund the addition of this crime to its jurisdiction given the already constrained budget.
The crime of aggression is the fourth crime enumerated under the Rome Statute of the International Criminal Court. Twenty years ago, States could not agree upon the definition of the crime of aggression when the text of the Rome Statute was negotiated, thereby excluding crimes of aggression from the Court’s jurisdiction.
The definition was finally agreed upon in 2010 through the Kampala Amendments, but negotiating States decided that the Court would still not have jurisdiction over the crime of aggression until one year after 30 member states had ratified the Amendments and it was promulgated by the Assembly of States Parties (ASP).
As Palestine was the 30th State to ratify the Amendments in June 2016, the ASP agreed to activate the Court’s jurisdiction over the crime of aggression during their meetings in December of 2017. The Court’s jurisdiction officially became active on July 17, 2018.
The key issue and reason for the delay in agreeing to the text of the crime was the lack of agreement on whether the Court could exercise jurisdiction for the crime of aggression over the nationals of States Parties to the Rome Statute who had not ratified the Amendments. The wide view on this issue is that the Court has jurisdiction when the crime occurs on the territory of a State which has ratified the Amendment. Still, there are those, including Canada, that believe that the Court would not have jurisdiction over state referrals or proprio motu investigations when the alleged crime is committed by nationals of non-ratifying States or on their territory.
The crime of aggression essentially allows for individual criminal responsibility for violations of Article 2(4) of the Charter of the United Nations. Article 2(4) prohibits “the threat or use of force against the territorial integrity or political independence of any state”. However, not all violations of the prohibition on the use of force will constitute a crime of aggression: only the most serious and dangerous forms.
The Rome Statute is the first modern criminal tribunal to include the crime of aggression, but the International Military Tribunals (IMT) in Nuremberg and Tokyo included prosecutions and convictions for crimes against peace, which criminalized those involved in waging wars of aggression or wars in violation of international treaties. The language of the crime of aggression was borne out of and based on the Charter of the IMT.
The crime of aggression has not been prosecuted yet and there is no precedent for the Court to follow. It will be interesting to see how the Court interprets the crime once the first charges are made, and if it takes any guidance from the IMTs or develops its own interpretation.
Stay tuned for updates!
This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.
What, you may wonder, is a blog about a super hero film doing on IntLawGrrls? Well beyond my own personal excitement about the newly released Wonder Woman film, I think there’s an important symbolism that anyone committed to the Women, Peace and Security agenda of UN SC Resolution 1325 will appreciate. And a narrative that anyone committed to raising the profile of women’s voices in international law and international security will value. The film did a superb job of presenting the 75 year old comic book character the way she was intended by her creator William Moulton Marston, as a champion for peace, truth and equality at a time of conflict. He invented her during the Second World War, based on his belief that we need heroes in times of instability and conflict, and the retelling in the DC movie released just this weekend not only stays true to her origins, but reminds us that we all have capacity for war and for love within us.
In the height of the Second World War, Marvel Comics had just created a new character to raise the spirit of a fighting nation, Captain Marvel. He was dressed in the American flag and was a super soldier, and his comics were an immediate hit. Desperate to compete, DC Comics approached Marston, a psychologist who had been writing about why we need heroes in times of war;
as symbols to galvanise our beliefs. They asked him to create a character that would sell as well as Captain America, and he answered that what they needed was a female superhero. Marston was a staunch feminist, and believed that if women were in positions of leadership there would be more diplomacy and less war. Though many of us today would question this essentialism, there is no doubt that having more women at the decision-making table makes a difference to pre- and post-conflict negotiations, and that women are disproportionately affected by armed conflict.
Marston wove the story of Wonder Woman around his classical education, drawing from Greek mythology stories of the Amazon warriors, who in his origin story were entrusted by the gods to protect Pandora’s Box and keep peace in the world. When “the world of men” finds itself caught up in a world war, Wonder Woman is sent as their champion to teach men the ways of peace and justice. She is incredibly strong, but she fights only to defend, never to attack, and she carries the Lasso of Truth, which forces anyone she ensnares to tell the truth. Marston is credited with also having invented the lie detector, so Wonder Woman was a multi-layered creation of his commitments. He even created an alter-ego for her as a military intelligence officer, granting her a status higher than the inevitable title of “secretary”.
In the film, director Patty Jenkins (who may just have broken the Hollywood glass ceiling for female directors with the sweeping box office success of Wonder Woman’s opening weekend) presents the origin story true to Marston’s values, with one small difference that it is set during the First World War, the War to End All Wars. This allowed for interesting commentary about women being completely politically disempowered at the time, still fighting for the vote, and being hustled out of any room where political negotiations were taking place. Placed in a period of history when we knew women were politically disenfranchised, it’s easier to understand, but it’s a mirror of the way women are still absent and underrepresented at the most powerful tables in the world today. The impact of the mass weaponry of the First World War was also the perfectly devastating background for depicting how civilians are targeted and affected by war. Women and children are highlighted as the innocent victims, and an entire village is decimated by a deadly gas. One is reminded painfully of Syria today. As she begins to understand how power relations play out, Wonder Woman becomes the voice of the civilians, and fights for what she believes in: the possibility of peace. She is the representation of women in leadership positions, and the importance of women’s participation in decision-making.
The complexity of her character is beautifully portrayed. She is shocked at the corruptibility of humans, at our capacity to destroy each other, but she learns that it is not a simple question good versus bad people. Instead she sees that we are all just as capable of warring (as we know from non-state armed groups, from civilian participation in conflict, and from horrific war crimes and crimes of torture perpetrated by highly trained members of the military) as we are of love. She comes to the conclusion that she cannot save the world, but she can continue to bring love, peace, justice and equality to everything she does. That is her mission as Wonder Woman.
Although I was a fan of the 1970s series with Lynda Carter, which was fun and campy, it was a hyper-sexualised representation, and a long way off the character Marston intended her to be.
In the film she is played by Gal Gadot, an Israeli woman who has trained in the armed forces and understands the warrior mentality just as well as she understands the feminine mother energy of the character she plays. (Stunningly, Gadot was 5 months pregnant during final shooting of the film, and they used digital effects to edit out her rounded belly. I have to admit I was moved to even greater excitement to learn that Wonder Woman was carrying life while fighting the god of war!)
The film also does a great job of referencing the classical education which informed her creation, and the feminist role she was created to play. Gadot’s Wonder Woman speaks hundreds of languages, ancient and modern, and when confronting the German General Ludendorff, she cites Thucydides – in such a way that reminds us of today’s competing powers. She refuses to have men of high rank tell her what to do, even her love interest Steve Trevor, and when she questions the assumptions about obedience in marriage, she cites Sappho, reversing the wartime assumption that women’s bodies are for men’s pleasure: rather, men are necessary for reproduction, but when it comes to pleasure, unnecessary. (Let’s not debate the truth of that statement! The point was her challenge to the mainstream assumption.) Marston himself was polyamorous, living with two women, who stayed together as partners after his death. He believed marriage was a patriarchal institution which subordinated women and treated them as property. His comic book character defied men’s superiority but still sought partnership between the sexes, which is a subtlety maintained in her film portrayal.
Wonder Woman is unafraid to use force when that is necessary, but she believes in the possibility of all of us being released from “the grip of Ares, god of war“. In the comics she used to go to great efforts to turn Nazi characters – particularly, but not only, the women – back towards good, and would release them rather than kill them if she saw a possibility of remorse. Marston reminded us that women also play the role of perpetrator in many conflicts, and one of his female villains, Dr Poison, has a key role in the film, inventing the chemical weapons used against civilians. Yet even when Wonder Woman has the chance to kill her, she sees the humanity of Isabel Moru behind the mask of Dr Poison, and decides to let her go, rather than be corrupted herself by the desire to destroy. At the same time, Wonder Woman is not naive: there are times when force is called for, as long as it is proportionate and there is a distinction between lawful and unlawful targets.
Which is why Marston was so committed to us understanding the importance of super heroes. It’s not that we should look to these non-existent fantasy figures who have indestructible (and highly sexualised) bodies as models, it’s that we need something to believe in when the world becomes politically unstable, unpredictable and violent. And given his commitment to women’s political participation, and his understanding of the complexity of human nature regardless of gender, anno 2017, Wonder Woman is a hero for our times.
On April 6, the United States unilaterally used force in Syria, against President Assad’s regime, in response to Assad’s alleged use of chemical weapons against a Syrian town and region. Despite a humanitarian crisis that has been ongoing in Syria for several years, the United Nations Security Council has remained deadlocked, in light of the Russian and Chinese veto regarding any resolution that would have authorized a multilateral use of force. The United States thus acted alone – potentially breaching both international and domestic law. This post will examine the legality of United States’ actions under international and domestic law.
Article 2(4) of the United Nations Charter prohibits states from using force against the territorial integrity or political independence of another state. The only two exceptions to this general ban on the use of force involve Security Council authorization and self-defense. The United States’ use of force in Syria had not been authorized by the Security Council, because, as mentioned above, Russia and China have persistently threatened or used their veto power to block resolutions regarding Syria. Moreover, the United States’ use of force in Syria was not an instance of self-defense. States can use force in self-defense if they are under an armed attack, or if they are about to be attacked; Syria has not threatened any other nations, and certainly not the United States, and the latter was not in danger of an imminent attack by Damascus. Thus, under a traditional interpretation of international law, the United States has used force illegally in Syria, in breach of treaty and customary international law.
It should be noted that the United Nations Charter is a treaty, to which the United States is a party. The obligation in Article 2(4), mentioned above, is a treaty provision which binds the United States. Thus, this treaty provision would be considered as “supreme Law” of the land under Article VI of the U.S. Constitution. As such, this provision becomes part of United States’ domestic law and binds the United States on the domestic level as well. Congress can, under the so-called later-in-time rule, pass a federal statute which trumps an otherwise binding treaty provision. However, Congress has very rarely done so regarding existing treaties (doing so would put the United States in breach of its international law obligation), and Congress has certainly not done so in this instance, regarding the use of force in Syria.
Moreover, under domestic law, a United States President is supposed to ask authorization from Congress before using military force in another country. As Marty Lederman has explained recently, there are three major theories as to when the President can use force unilaterally against another sovereign nation and without Congressional authorization:
“(i) almost never (i.e., only to repel actual attacks, and then only as long as Congress is unavailable to deliberate)–what one might call the “classical” position;
(ii) virtually always, up to and including full-scale, extended war–that was John Yoo’s position, adopted by OLC in the Bush Administration, at least in theory; and
(iii) only under a set of complex conditions that do not amount to “war in the constitutional sense,” and only in conformity with legal restrictions Congress has imposed (including the War Powers Resolution)–a middle-ground position that I denominated the Clinton/Obama “third way,” and which in effect has, rightly or wrongly, governed U.S. practice for the past several decades.”
Marty Lederman had, in a 2013 post, elaborated as follows on the middle ground view:
“Between these two categorical views is what I like to call the Clinton/Obama “third way”—a theory that has in effect governed, or at least described, U.S. practice for the past several decades. It is best articulated in Walter Dellinger’s OLC opinions on Haiti and Bosnia, and in Caroline Krass’s 2011 OLC opinion on Libya. The gist of this middle-ground view (this is my characterization of it) is that the President can act unilaterally if two conditions are met: (i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the Libya opinion).”
Assuming that the middle ground view is correct- that the President can decide to use force without Congressional approval in limited circumstances – the current use force against Assad cannot be easily justified. As others have pointed out, the closest precedent for the unilateral use of force in Syria may be the United States’ and NATO use of force in Kosovo in 1999, under the Clinton Administration. The United States never advanced a legal rationale for its use of force in Kosovo, relying instead on a policy argument that Kosovo was sui generis. Kosovo was arguably a better case than Syria, because the military intervention in Kosovo had been staged by NATO, not by the United States acting alone, and because the United Nations had already been involved in Kosovo, unlike in Syria. Thus, Kosovo may not provide the best precedent for Syria. In addition, adopting the above-mentioned middle ground view on the President’s ability to use force unilaterally, it is difficult to argue that the use of force in Syria will serve significant national security interests, such as self-defense or the protection of American nationals. It remains to be seen whether the United States’ use of force in Syria will entail an extensive and prolonged military engagement, requiring Congressional approval, or if it will instead be comprised of a time-limited and precise series of strikes not involving exposure of United States’ military personnel. As of today, however, it is difficult to argue that President Trump should not have sought Congressional approval for the use of force in Syria.
Can the United States’ military actions in Syria be justified on either the international or domestic planes? First, regarding international law, Harold Koh has argued that the unilateral use of force against a sovereign state can at times be justified under the developing norm of humanitarian intervention. According to Koh, the following conditions must be met in order for a state to be able to invoke the humanitarian intervention exception to international law’s general ban on the use of force:
“(1) If a humanitarian crisis creates consequences significantly disruptive of international order—including proliferation of chemical weapons, massive refugee outflows, and events destabilizing to regional peace and security—that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51);
(2) a Security Council resolution were not available because of persistent veto; and the group of nations that had persistently sought Security Council action had exhausted all other remedies reasonably available under the circumstances, they would not violate U.N. Charter Article 2(4) if they used
(3) limited force for genuinely humanitarian purposes that was necessary and proportionate to address the imminent threat, would demonstrably improve the humanitarian situation, and would terminate as soon as the threat is abated.
In particular, these nations’ claim that their actions were not wrongful would be strengthened if they could demonstrate:
(4) that the action was collective, e.g., involving the General Assembly’s Uniting for Peace Resolution or regional arrangements under U.N. Charter Chapter VIII;
(5) that collective action would prevent the use of a per se illegal means by the territorial state, e.g., deployment of banned chemical weapons; or
(6) would help to avoid a per se illegal end, e.g., genocide, war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians, for example, another Halabja or Srebrenica. To be credible, the legal analysis of any particular situation would need to substantiate each of these factors with persuasive factual evidence of: (1) Disruptive Consequences likely to lead to Imminent Threat; (2) Exhaustion; (3) Limited, Necessary, Proportionate, and Humanitarian Use of Force; (4) Collective Action; (5) Illegal Means; and (6) Avoidance of Illegal Ends.”
It is unclear whether these conditions have been met in Syria – for example, it is unclear that the Trump Administration is acting consistently with condition 3, and it is unquestionable that the American unilateral action does not satisfy condition 4. Moreover, Koh’s proposed framework is doctrinal in nature and does not reflect the current status of international law – unless one assumes that Syria is a law-breaking moment and that the evolution of international law requires the breaking of existing international law norms (a point of view which many scholars would disagree with). Finally, it is also unclear that the use of chemical weapons is prohibited in non-international armed conflict; chemical weapons are banned in international armed conflict and their use is certainly morally abhorrent, but it is not legally clear that chemical weapons are always prohibited in internal and non-international warfare (the use of chemical weapons in international armed conflict is not prohibited by treaty law although it may be argued that it is prohibited under customary law). And, even if chemical weapons were prohibited in non-international armed conflict, a violation of jus in bello does not provide justification for the use of force against a sovereign state – a point which Koh’s framework ignores (arguably because Koh’s framework focuses on the protection of human rights, which justifies the conflation of jus in bello and jus ad bellum norms).
On the domestic level, the United States’ use of force in Syria could be justified if one adopts the Yoo/Bybee view, that President can always act alone, without Congressional approval, or if one adopts the middle ground view and concludes that the action in Syria advances national security interests and is so limited in time and scope that it falls outside of a traditional “war.” As mentioned above, it is unclear as of today what the Syrian military action will entail and it is uncertain whether the strikes will remain limited in duration and scope and whether United States’ military personnel will not be exposed.
Thus, it is difficult to construct the legal argument that the United States’ use of force in Syria is legal under both international and domestic law. While military action may be the morally correct response to Assad’s slaughtering of civilians, it appears that the United States’ actions lack a solid legal basis.
The attempt to highlight and combat the phenomenon of the all male panel, or “manel”, as this now very popular tumblr feed does with humour, is to be applauded. But the compound effect of male experts selecting and inviting other male experts to take part in academic projects cannot be denied. If there are no – or few – senior women experts visible on panels and speaking or writing authoritatively in projects, then there are also very few pathways for younger women scholars to emerge. In one recent positive experience it became clear to me that many of the men who are culpable for creating and taking part in these “manels”, are in fact blind to this fact, and that once it is pointed out to them, they cannot help but see it all around them. These men have become great allies, a fact that gives me courage to continue to speak out rather than just complain.
A couple of years ago I made the move from international criminal law (ICL) and IHL to space law, with a particular interest in military activities in space. I assumed that because it’s a dynamic area of international law, I would escape the dominance of “manels” in ICL, and that there would be ample opportunities for me as an equal player. I was sorely disappointed in my first few months attending all sorts of events, from university, government and military events in Washington DC, to academic and space sector conferences in Canada, to truly international events where everyone interested in space gets together. Not only have the authoritative voices been nearly exclusively male, they are also generally very much of an older generation. There is little room for emerging voices of any kind, and among the few younger voices present, the majority are also men’s, endorsed by the “old masters”, who tend intuitively to mentor those who they recognise as similar to themselves.
The upside has been that among the women I have met who work in space law, there is a very strong camaraderie and an immediate welcoming into the network. Particularly among the senior women who, for a couple of decades, were few and far between, I have been welcomed and encouraged and supported.
So when it came to my involvement in a recent timely international project, to develop a Manual on International Law Applicable to Military Activities in Outer Space (MILAMOS), I decided to speak up where I would hope others would dare to as well. In September 2015, I had a key role in facilitating an Expert Roundtable, hosted at the McGill Institute of Air and Space Law in Montreal as a precursor to establishing the MILAMOS project. There were a few women around the table when we discussed substantive issues, but when it came to a smaller meeting on the third day, to discuss logistics and how we would move ahead, I was the only female “at the table” (there were two female graduate students taking notes). The management board of the MILAMOS were rightly focusing on how to enlist a team of experts sufficiently international to represent different views, and I hesitated a moment, wondering whether my junior status would work against me if I were to says something about gender representation as well. I decided to speak up anyway, and said in as clear a voice as I could, that it was imperative that the team also consist of women experts, if it were to be truly representative. I remember two of the members of the Management Board, one senior academic and one senior lawyer of the armed forces, looking me right in the eye and nodding with respect. They both took it very seriously and at our inaugural plenary last week, Editor in Chief Dale Stephens proudly stated that 31% of the participants committed to this three year project are women. While not as significant as gender parity would be, this is a huge leap forward.
The MILAMOS follows in the footsteps of previous manuals developed by independent international experts, as a way of clarifying the way in which IHL applies in times of armed conflicts, where technology has taken us beyond the context of the 1949 Geneva Conventions. In 1995 the San Remo Manual on International Law Applicable to Armed Conflict at Sea was developed by the San Remo Institute of International Law; in 2009 the Harvard Manual on International Law Applicable to Air and Missile Warfare was produced under the auspices of the Harvard Program on Humanitarian Policy and Conflict Research; and in 2013 the Tallinn Manual on International Law Applicable to Cyber Warfare was published, with the Tallinn 2.0 expected to be published towards the end of this year, both under the auspices of the NATO Cooperative Cyber Defence Centre of Excellence. These manuals are important in clarifying the law where technology challenges traditional applications, and have been incorporated into some national military manuals, directly impacting the ways in which States engage in armed conflict.
For every single one of those previous manuals, women were in an absolute minority among the core experts, government and military representatives. As with any developing area of the law, ensuring women experts are included is simply a matter of addressing the covert (and sometimes inadvertent) sexism prolific in these fields. It is also true that including women’s voices in these projects can impact the content, by bringing different perspectives.
I am therefore honoured and excited to be working with the superstars who have been rallied together for this project, including IntLawGrrls’ own Beth van Schaak; as well as Setsuko Aoki; Laurie Blank; Emily Crawford; Heather Harrison Dinniss; Deborah Housen-Couriel; Major Susan Trepczynski; and Melissa de Zwart. We also have the benefit of the wealth of experience that Liis Vihul brings with her as one of the group editors, from her work as project manager of the Tallinn Manual; and the super smart Laura Grego, from the Union of Concerned Scientists, leading the team of technical experts.
I suspect that the 31% female participation includes graduate students who are taking part as research assistants, and while this is often a way of hiding how few women are in senior or leadership positions, for the purposes of this Manual, diversity is to be encouraged at all levels. And though we are not yet at parity, I acknowledge the Management Board of the MILAMOS for actively seeking out women experts to contribute to this important project, knowing that it will add to the credibility of the final product.
Oliver Corten has a post on EJIL Talk!: (http://www.ejiltalk.org/a-plea-against-the-abusive-invocation-of-self-defence-as-a-response-to-terrorism/) in which he presents a plea against abusive invocation of self-defense within the context of counterterrorism operations. I wrote about an emerging Responsibility to Prevent Terrorism doctrine after Colombia’s raid in Ecuador in which it targeted Raul Reyes (second in command of the FARC) in 2008. Both the OAS and the Rio Group reaffirmed the principles of sovereignty, abstention from the use of force, respect for the right of territorial integrity, and the duty of non-intervention. Yet, they also agreed that there is a duty to act in a preventive and responsive manner to terrorism but highlighted that alternatives should be pursued within multilateral or bilateral frameworks.(See “The ‘Unrule of Law’: Unintended Consequences of Applying the Responsibility to Prevent to Counterterrorism, A Case Study of Colombia’s Raid in Ecuador” in C. Bailliet, Security: A Multidisciplinary Normative Approach Brill 2009).
Since then, there has been a steady trend towards supporting recognition of an exception to the prohibition of the use of force as the new rule. Please read Corten’s plea and consider signing: (http://cdi.ulb.ac.be/contre-invocation-abusive-de-legitime-defense-faire-face-defi-terrorisme/)