Use of Force

Russia v. Ukraine: The Limits of International Law

/ Milena Sterio / Leave a comment

Several of my esteemed colleagues and experts have analyzed various international law issues related to the escalating Russia-Ukraine conflict (for example, see here and here and here).  The purpose of this post is not to reiterate some of such excellent analyses already published but rather to focus on the limitations of international law in this type of a conflict situation, implicating a Great Power such as Russia.

First, this conflict clearly implicates use of force issues in international law.  It is abundantly clear that Russia has violated Article 2(4) of the United Nations’ Charter when it used military force against the territorial integrity and political independence of Ukraine.  The international law prohibition on the use of force is also part of customary law and a jus cogens norm; international law is more than unequivocal that this type of behavior by Russia is a flagrant violation of one of international law’s fundamental norms.  Yet, despite this, international law remains limited in its ability to respond to Russian actions because of the fact that collective decision-making regarding authorizations to use force against a sovereign nation is tied to the Security Council, where Great Powers, such as Russia, have veto power.  Thus, although international law provides a clear answer about Russia’s violations of international legal norms, international law lacks appropriate legal mechanisms through which such violations can be adequately addressed.  Scholars have already written about possible limitations to the use of the veto power within the Security Council; such changes and perhaps broader reforms of the Council are desperately needed in situations as this one, where a veto-wielding member is in clear violation of the Charter’s fundamental norms.  For now, the international law system remains blocked when attempting to address violations by a Great Power, which happens to have veto powers within the Security Council. 

It is important to acknowledge that international law does leave open the possibility of a defensive use of force by Ukraine, through self-defense, and of collective self-defense, where Ukraine could request the assistance of another state in order to fend off Russian troops.  It is also important to note that NATO countries could decide to use force against Russia in order to defend Ukraine.  Precedent already exists for this type of use of force by NATO countries, to intervene militarily on the territory of a non-member state.  In fact, in 1999, NATO countries launched a series of air strikes against the Federal Republic of Yugoslavia, in order to force then-President Slobodan Milosevic to halt committing abuses against Kosovar Albanians.  Yet, these potential uses of force remain unlikely and would not be equivalent to a United Nations Security Council-approved collective use of force against Russia.  Most states are unlikely to agree to use their military troops in Ukraine, under the paradigm of collective self-defense, as this would most certainly provoke an attack by Russia against those states and expose those states to serious military and political risks.  Moreover, a NATO-led use of force to defend a non-member state remains illegal under international law, so long as such use of force remains unauthorized by the Security Council.  Although many have defended the 1999 NATO air strikes against the FRY as legitimate or morally authorized, or on humanitarian grounds, these air strikes were illegal under international law.  It is unlikely, as of now, that NATO countries would be willing to launch a military operation, illegal under international law, against a Great Power like Russia.  Thus, the only plausible use of military force against Russia would be through a Security Council-authorized, collective military coalition, both legal under international law and more likely to succeed militarily against a mighty opponent as Russia.  Yet, as explained above, this is not going to happen because Russia has veto power within the Security Council. 

Second, this conflict also underscores the limitations of international law in terms of accountability.  In theory, political and military leaders who order the commission of atrocity crimes ought to be held accountable.  Article 8bis of the ICC Rome Statute defines an act of  aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”  In this instance, it is clear that Russia’s President Putin has committed an act of aggression vis-à-vis Ukraine.  Yet, although the ICC can exercise jurisdiction over genocide, crimes against humanity, and war crimes in situations involving non-state parties (if the crimes are committed by a national of a state party on the territory of a non-state party), the jurisdictional regime over the crime of aggression is significantly more limited.  In fact, the ICC can only exercise jurisdiction over the crime of aggression in situations where both the victim and the aggressor state are members of the ICC; in this instance, because Russia is not a member, the court cannot exercise jurisdiction over the crime of aggression.  Thus, although it is certain that Putin has committed the act of aggression in Ukraine, it is almost equally certain that he will not face accountability at the ICC.  It is relevant to note here that the ICC can potentially exercise jurisdiction over the three other ICC crimes in Ukraine.  In fact, Ukraine accepted ICC jurisdiction over crimes allegedly committed there by Russian forces starting in 2013.  The ICC Office of the Prosecutor launched a preliminary investigation into Ukraine and concluded that reasonable basis existed to conclude that crimes against humanity and war crimes were indeed committed in Ukraine.  Thus, the ICC could continue to investigate and possibly prosecute those responsible for crimes against humanity and war crimes in Ukraine. However, as the current ICC Prosecutor, Karim Khan has confirmed, the ICC remains unable to investigate and prosecute the most important crime committed by Putin against Ukraine, aggression.

Third, the conflict also highlights the limited efficacy of the International Court of Justice (ICJ).  The ICJ is the primary judicial organ of the United Nations and a forum where states can in theory settle their disputes. Because the court’s jurisdiction is voluntary, states must either agree to litigate in the ICJ on an ad hoc basis or through a treaty’s dispute resolution clause.  In this case, Ukraine has sued Russia in the ICJ, basing jurisdiction on the Genocide Convention, to which both states are parties.  However, although the ICJ has jurisdiction over this dispute, the court’s reach is limited to genocidal offenses only (because jurisdiction is based on the Genocide Convention), and, most importantly, the court has no enforcement mechanisms.  Thus, although the ICJ could order Russia to cease using military force in Ukraine, the court has no direct ways to enforce its own judgment.  It is very likely that a Great Power such as Russia would simply ignore the ICJ’s judgment.  Thus, the power of the ICJ to contribute to the actual resolution of this conflict remains limited.

In sum, international law contains clear legal norms which condemn Russia’s invasion of Ukraine and which, on a theoretical level, impute state responsibility onto Russia and individual criminal responsibility on its leader, Vladimir Putin.  However, as this post discusses, international law remains limited in its ability to address the conflict.  Authorization for the use of force against Russia remains deadlocked in the veto-blocked Security Council; the crime of aggression’s restricted jurisdictional regime effectively shields Russian leaders from accountability at the ICC; the ICJ has no prospects of enforcing a judgment which would condemn Russia.  It may be argued that this relative inefficacy of international law is linked to the super-sovereign status of Great Powers, like Russia, which benefit from international law’s institutional design.  To illustrate this point, imagine a scenario where a non-super power, a state with an average size military and without a permanent seat on the Security Council, invaded a neighboring country.  In such a situation, the Security Council could act (assuming that this country was not directly allied with one of the Council’s five permanent members) and order collective force to be used against the aggressor state.  The country’s leaders could possibly face accountability in the ICC (there is a higher likelihood that a smaller, non-super power country would be a member of the ICC).  And a smaller, weaker state would be more likely to abide by an ICJ ruling.  International law, because of its general lack of enforcement mechanisms and because of its institutional design such as the veto power in the Security Council, contributes to an unequal order of states, where those with super-sovereign powers seem able to get away with breaches of fundamental norms with virtually no consequences. Russia, because of its status as a Great Power, has violated fundamental international law norms but may remain insulated from international law’s reach. 

The Legality of the United States’ Strike on Soleimani

/ Milena Sterio / Leave a comment

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.

International Law

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.

Domestic 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.

Policy

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.

The Crime of Aggression: 1 Year Later

/ Ariel Wheway / 3 Comments

ICC

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.

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Syria and the Limits of International Law

/ Milena Sterio / 1 Comment

Earlier this week, the Assad regime most likely used chemical weapons against its own population in Syria. Up to 500 people may have been affected by this chemical attack, and approximately 75 individuals may have died. Western media reported that most western nations attributed the attack to the Assad regime, and although Assad himself has denied responsibility, this allegation appears credible, in light of Assad’s track record of using chemical weapons. Although this incident may have constituted a violation of jus in bello, and although this incident may be morally abhorrent, international law does not actually provide other nations with tools for a direct (military) response. The Syrian situation thus illustrates the limits of international law, which one may either accept as inevitable and necessary in a sovereignty-based system of international legal rules, or, which one may attempt to eliminate by changing rules of international law. This post will briefly discuss these options, in light of the ongoing crisis in Syria.
First, even in a dire situation like Syria, international law does not actually authorize other nations to use force against the offending regime. Our current international legal order is based on state sovereignty, and on the notion that such sovereignty may be breached in exceptional situations only. Using force against a sovereign nation may constitute the most supreme breach of state sovereignty, and under international law, force may be used against sovereign nations in two limited instances: pursuant to Security Council authorization and/or in self-defense. International law does not authorize nations to use force against another sovereign nation in other situations – no matter how devastating and limiting such a rule may be. For example, international law does not authorize the use of force against a sovereign nation if such a sovereign nation is experiencing a humanitarian catastrophe, caused by its own leadership. Thus, in a situation like Syria, where the country’s own regime is killing and wounding its own population, international law does not provide other nations with authorization to use force – unless such other nations can obtain Security Council approval or can demonstrate that they are acting in self-defense. As another example, international law does not authorize the use of force against a sovereign nation, although the latter may have used internationally-prohibited weapons, and may have committed violations of jus in bello. Thus, the alleged use of chemical weapons by the Assad regime against Syrians does not provide justification, under international law, for the use of force by other nations against Assad. Additionally, even in situations where the Security Council is deadlocked and unlikely to authorize the use of force against a sovereign nation which has engaged in brutal tactics internally, international law does not step in to provide alternative legal basis to other nations who may wish to use force against the offending nation. Assad is thus safe from external interference, from the perspective of international law, so long as Russia/China continue to veto Security Council resolutions against Assad, and so long as he does not attack other countries.
The situation in Syria is akin to that in Rwanda in 1994, where the international community did not interfere, and where hundreds of thousands of civilians were slaughtered over a brief period of time. In Rwanda, like today in Syria, international law did not provide justification toward the use of force by any other nation, and Rwandan leadership was able to get away with its genocidal policy for several months. The situation in Syria is similar to that in Kosovo in the late 1990s, when Serbian president Milosevic committed atrocities against ethnic Albanians. In the case of Kosovo, however, the international community acted, through a series of air strikes against Serbia in the spring of 1999, instituted by NATO despite lack of Security Council approval. From the perspective of international law, international community’s response was correct in Rwanda and illegal in Kosovo. From the perspective of international law, international community may not do anything in Syria and may not use force against the offending Assad regime. This conclusion, although morally questionable, is based on state sovereignty, which forms the basis of our current international legal order. State sovereignty thus shields regimes from interference, even if they commit atrocities, violate jus in bello, and engage in the most reprehensible behavior (absent Security Council involvement). And, if not changed, our international legal order will continue to insulate abhorrent state policies and practices, so long as these remain internal and so long as the Security Council remains deadlocked. International law is of extremely limited utility in situations like Rwanda, Kosovo, and Syria, and its limits underlie its own weakness.
Second, if one is dissatisfied with the current international law rules, how could such rules be altered, to provide a better response in situations like Syria, of internal humanitarian crises and Security Council deadlock? Several changes are theoretically possible. First, one could retain the sovereignty-based system of international law but remove veto power for any nation from the Security Council. One could require that all Security Council resolutions be passed by a super-majority of ten or twelve nations, to ensure that authorizations for the use of force against a sovereign nation face strict scrutiny and require super-majority consensus within the United Nations. Second, one could adopt a regional sovereignty-based system, by allowing regional organizations, such as NATO, to use force against their own member states. This system would allow for regional military responses within regional institutional structures; such regional responses could get around Security Council deadlock and could alleviate humanitarian crises in places like Syria. Under this regional sovereignty system, military responses, such as the 1999 NATO-led air strikes against Serbia, would become lawful. Third, one could legalize humanitarian intervention, as a third exception to the general ban on the use of force. Harold Koh has written about this and has proposed a normative framework for humanitarian intervention; I have also written about this and have argued for a similar set of rules. A true humanitarian intervention, organized by a coalition of states, pursuant to a concrete set of humanitarian goals and limited in scope and duration could become part of our international legal order, while offending state sovereignty in the most justified manner. It may be argued that states which offend international legal norms waive their sovereignty and no longer deserve the protection of the same norms; legalizing humanitarian intervention against the most rogue regimes, such a Assad’s, would only minimally offend the general notion of state sovereignty as this concept would continue to apply for all other law-abiding states. A modified system of international legal rules could preserve state sovereignty while allowing for a more robust (military) response in situations of humanitarian catastrophe, like the one ongoing in Syria.
In sum, international law in its current iteration remains powerless to impose true military restrictions on leaders like Assad. Several western nations have already discussed the possibility of staging a military intervention against Assad; such an intervention, absent Security Council authorization, would be illegal under international law. Intervening nations could choose to ignore international law and act in a military manner, in the face of the dire situation in Syria. This could, in turn, weaken our international legal order, by exposing its limitations and by demonstrating that nations are willing to ignore international law, because this law imposes unreasonable restraints. However, international law, if modified, could contain legal tools that would enable nations to lawfully intervene against leaders like Assad. This solution may be preferable in the long-term, as it would allow lawful state action against offending regimes, and as it would allow international law to develop small limitations on state sovereignty, for the sake of protecting populations from harm directed at them by their own leaders. International law’s limits are underscored by the situation in Syria. In the future, however, international law does not have to remain powerless.

Syria: The (Il)legality of the United States’ Use of Force Against Assad

/ Milena Sterio / 5 Comments

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 Legality of ISIS Air Strikes Under International Law

/ Milena Sterio / 4 Comments

President Obama announced in his speech on September 10 that the United States would pursue expanded military (air) strikes against the Islamic State or ISIS terrorist group in both Iraq and Syria.  Many academics have already grappled with the issue of whether the President has authority for this type of military action under domestic law, with most arguing that the President did not have authority under the Authorization to Use Military Force (AUMF) (see Deborah Pearlstein’s post on Opinio Juris and Marty Lederman’s and Jen Daskal’s posts on Just Security).  What I would like to focus on in this post is the issue of legality of the proposed military campaign under international law.

As we all know, Article 2(4) of the United Nations Charter bans states from using force against the territorial integrity and political independence of other states.  The only legally recognized exceptions to this overall ban are instances where the Security Council authorizes the use of force or where the intervenor nation alleges self-defense pursuant to article 51 of the United Nations Charter.  In this instance, if the United States intervened in Iraq and Syria against ISIS, such use of military force would not be authorized by the Security Council, because the latter has been deadlocked over any use of force in the Middle East and because Russia would likely veto any future discussions of authorization to use force in this region.  Can the United States assert self-defense? Maybe.

The United States could argue either individual or collective self-defense.  If it argues individual self-defense, the United States would have to assert that it is fighting ISIS, a terrorist group and non-state actor in an area where the relevant state authority is unable or unwilling to intervene, such as in Syria or in Iraq.  While the United States has squarely adopted the position that the “unable or unwilling” test enables it to assert an individual self-defense rationale against a terrorist non-state actor operating out of another sovereign state, international law scholars have debated the legality of this approach and have been far from reaching a consensus on this issue.  Moreover, it appears that at least Syria asserts that it is willing and able to fight ISIS; the United States’ position vis-a-vis Syria on this issue is thus complex and has been summarized in a recent excellent post by Ryan Goodman on Just Security:

“What is the international law when a host state (Syria) is willing and able to deal with a nonstate group (ISIS) through military cooperation with the threatened state (the United States) but the latter (the United States) doesn’t want to associate itself with the host state for other potentially unrelated reasons?”

Thus, it appears that the United States’ rationale for using force against ISIS in Iraq and Syria is shaky at best under international law, because of lack of consensus in the scholarly community about the “unable or unwilling” test and because of the test’s complex application  to the Syrian context (arguably, Iraq is “unable or unwilling” to fight ISIS).

Another possibility for the United States would be to argue that the recent beheadings of two American journalists by ISIS amount to an “armed attack” against the United States, within the meaning of Article 51 of the United Nations Charter.  This interpretation of Article 51 is possible although it is likely that many in the scholarly community would disagree with it.  While it appears that most scholars and some states have embraced the view that states may assert a self-defense rationale when fighting against non-state (terrorist) actors, there is no consensus on what type of attack by a non-state actor against a sovereign state could trigger the latter’s right of self-defense.  9/11 terrorist attacks against the United States constituted an “armed attack” according to most, if not all scholars, but the beheadings of two American journalists, however gruesome they may have been, may not reach the same threshold.  Thus, the armed attack argument remains subject to debate in this context.

Finally, the United States could claim collective self-defense in order to justify its use of military force against ISIS.  In order to do so, the United States would have to make the argument that the governments of Iraq and Syria invited the American intervention.  This argument is easier to make with respect to Iraq than Syria, because the former may very well agree to the presence of American forces and may thus “invite” air strikes, while it is unlikely that Syria’s President Assad would so agree or make such a request.  The collective self-defense argument works better in the Iraqi context, but is weak when it comes to Syria.

I should also point out here that  although some scholars have argued in favor of a humanitarian intervention in the context of Syria, the latest American-announced air strikes do not fall in this category because they will be directed against a terrorist group and will not be aimed at easing humanitarian suffering.   Overall, it appears that the United States government is asserting an individual self-defense argument based on the “unable or unwilling “test for both its actions in Iraq and Syria.  These actions will hopefully prove useful in the global fight against terrorist groups such as ISIS; they will certainly continue to raise difficult international law issues.

The al-Shabaab Mall Attack and the Right of Self-Defence

/ Kinga Tibori-Szabó / Leave a comment

Flag_of_Kenya.svgOn 21 September 2013, gunmen stormed Nairobi’s Westgate mall, randomly firing at people and taking hostages. The siege lasted four days. At least 67 people are known to have died and more than 200 were injured. Somalia-based Al-Shabaab claimed responsibility for the attack. On 24 September 2013, while declaring the end of the siege, Kenyan President Uhuru Kenyatta promised full accountability for the attack.

After a four-day stand-off, security forces succeeded in ending the siege, killing five gunmen and apprehending several others. The question thus arises whether similar law enforcement action will suffice to ward off future attacks and address the overall threat al-Shabaab poses to Kenya and the region.

Based in Somalia, al-Shabaab is believed to have approximately 5000 fighters, with foreign jihadists reportedly traveling to the country to join the group. Despite having been forced out of most urban areas, al-Shabaab remains in control of most of southern and central Somalia. In February 2012, its leader, Ahmed Godane, pledged obedience to al-Qaeda head Ayman al-Zawahiri. Moreover, the group has been recruiting US and European citizens.

It is thus reasonable to assume that law enforcement alone will not eradicate the danger al-Shabaab poses. The Kenyan government may consider using military force against the group in exercise of its right to self-defence. This would not be the first time Kenya took defensive action against al-Shabaab. In October 2011, the Kenyan military entered Somali territory to fight the militants. In a letter to the Security Council, the Kenyan Permanent Representative reported that “Kenya, (…), has, after the latest direct attacks on Kenyan territory and the accompanying loss of life and kidnappings of Kenyans and foreign nationals by the Al-Shabaab terrorists, decided to undertake remedial and pre-emptive action”. 

After 9/11, the Security Council implicitly recognized that self-defence could be used against terrorist attacks. Since then, it is increasingly accepted that the right of self-defence, as enshrined in Article 51 of the UN Charter, can be invoked against non-state actors, as long as the customary law requirements of necessity and proportionality are met (see Chapter 10 of my book on this topic).

The question then arises whether the mall siege amounts to an armed attack, triggering the exercise of self-defence. The siege lasted four days, resulted in a high death toll, caused widespread injury and considerable property damage. Such attacks are generally accepted as reaching the threshold of armed attacks (see Chapter 3 of Tom Ruys’ book on this topic).

That consideration alone, however, is not enough to invoke the right of self-defence. The principle of necessity also requires that there is a sense of emergency (immediacy), which makes defensive use of force urgent and inevitable. If the threat can be neutralized through other means, the exercise of self-defence cannot be justified. Continue reading →

Draft of Obama’s bid for congressional authorization to use military force in Syria

/ Diane Marie Amann / Leave a comment

map_syriaKudos to President Barack Obama for deciding to put to the test of democratic deliberation his support for using military force against Syria in the wake of the August 21, 2013, chemical weapons attack outside Damascus. (image credit)

The decision is welcome not just because of the Obama Administration’s failure so far to build, within or without the U.N. Security Council, a global coalition – a  failure signified most starkly by Thursday’s “No” vote in the British Parliament. The decision to debate is also welcome because the proposed use of force raises serious questions of international and national law and policy. Deliberation offers opportunities for legitimation and education, not to mention further exploration of nonforcible measures like sanctions or a referral to the International Criminal Court, both of which were deployed in the 2011 Libya crisis. (My prior Syria posts here; IntLawGrrls posts here and here.)

Below, thanks to CNN.com, is the full text of the Administration’s draft Authorization to Use Military Force in Syria. The draft likely will form the basis for ensuing debates in the House of Representatives and Senate.

* * * *

Whereas, on August 21, 2013, the Syrian government carried out a chemical weapons attack in the suburbs of Damascus, Syria, killing more than 1,000 innocent Syrians;
Whereas these flagrant actions were in violation of international norms and the laws of war;
Whereas the United States and 188 other countries comprising 98 percent of the world’s population are parties to the Chemical Weapons Convention, which prohibits the development, production, acquisition, stockpiling or use of chemical weapons;
Whereas, in the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, Congress found that Syria’s acquisition of weapons of mass destruction threatens the security of the Middle East and the national security interests of the United States;
Whereas the United Nations Security Council, in Resolution 1540 (2004), affirmed that the proliferation of nuclear, chemical and biological weapons constitutes a threat to international peace and security;
Whereas, the objective of the United States’ use of military force in connection with this authorization should be to deter, disrupt, prevent, and degrade the potential for, future uses of chemical weapons or other weapons of mass destruction;
Whereas, the conflict in Syria will only be resolved through a negotiated political settlement, and Congress calls on all parties to the conflict in Syria to participate urgently and constructively in the Geneva process; and
Whereas, unified action by the legislative and executive branches will send a clear signal of American resolve.
SEC. ___ AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES
(a) Authorization. — The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in connection with the use of chemical weapons or other weapons of mass destruction in the conflict in Syria in order to —
(1) prevent or deter the use or proliferation (including the transfer to terrorist groups or other state or non-state actors), within, to or from Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; or
(2) protect the United States and its allies and partners against the threat posed by such weapons.
(b) War Powers Resolution Requirements. —
(1) Specific Statutory Authorization. — Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) Applicability of other requirements. — Nothing in this joint resolution supersedes any requirement of the War Powers Resolution.

(Cross-posted from Diane Marie Amann)

Military Intervention in Syria: The International Law Framework

/ Milena Sterio / 3 Comments

Amid reports that Syrian President Bashar al-Assad used chemical weapons against civilians in a recent attack, the United States government has been leaning toward the likelihood of a military intervention in Syria.  Secretary of State John Kerry stated on Monday that there was “undeniable evidence” that Syrian government had used chemical weapons against its own people.  Kerry called for “accountability” in light of this type of attack, which he called a “moral obscenity.”  Secretary of Defense Chuck Hagel told the BBC that U.S. forces were ready to carry out a strike against Syria, and that such a strike could take place within several days.  Senior U.S. officials also stated that strikes could be carried out as early as Thursday (August 29).  Finally, President Obama held telephone talks with the Australian Prime Minister Kevin Rudd and the French President Francois Hollande, in order to potentially lay out the groundwork for a near-future military strike.  In addition to the United States’ government’s recent assertions that a military strike against Syria may be in the works, other countries followed suit and expressed similar sentiments, highlighting the possibility of a joint military action against Syria by the United States and some of its allies, namely Great Britain and France.  David Cameron, the British Prime Minister, recalled members of Parliament from vacation and announced that lawmakers would vote on Thursday on any proposal for action.  Cameron characterized the alleged attacks as “absolutely abhorrent,” called for action from the international community, and stated that Great Britain was considering a proportionate response.  Both the UK Foreign Minister and the French Foreign Minister Laurent Fabius hinted that a military action without United Nations Security Council authorization may occur, because of great humanitarian need.  It is thus possible that the United States, Great Britain, and France would engage in some type of presumably limited military action against Syria without Security Council approval, in what could constitute a true humanitarian intervention (because both Russia and China seem to oppose any type of military intervention against Syria, it is highly likely that these countries would block any proposed Security Council resolution authorizing the use of force in Syria).

Does international law authorize states to use force against other states in instances other than self-defense and Security Council authorization? Some have suggested that the 1999 NATO-led military intervention in Kosovo constitutes a precedent for humanitarian intervention, and that this precedent could apply to the Syrian situation. However, Kosovo was referred to as “sui generis” by the United States’ officials, who were at the time quick to point out that Kosovo could not be used as precedent for the assertion that states may use military force against other states based on humanitarian need and without Security Council approval.  In addition, scholarly opinion is at best mixed on the subject of whether humanitarian intervention has become an international norm authorizing the unilateral use of force.   It is thus doubtful that the case of Kosovo can serve as strong legal precedent for the Syrian situation today.  It will be interesting nonetheless to follow academic debate on this subject, and we hope that more Intlawgrrls will post on the topic in the near future.

Does the fact that Syrian authorities have likely used chemical weapons somehow change the legal analysis about the use of force? In other words, would countries such as the United States, Great Britain, and France have a better legal argument to justify their potential military intervention in Syria without Security Council authorization just because chemical weapons seem to have been used by Assad? Not necessarily.  As Kevin Jon Heller pointed out on Opinio Juris:

Why is the indiscriminate slaughter of civilians with chemical weapons unacceptable, but not the indiscriminate slaughter of civilians with ordinary weapons? Why should the US be willing to intervene if chemical weapons kill 1,000 civilians, but not if ordinary weapons kill tens of thousands?

In other words, the use of chemical weapons, as well as indiscriminate attacks against civilians, are terrible and violate international humanitarian law; however, they do not influence the legal analysis about the unilateral use of force…. unless one can prove that humanitarian intervention has risen to the level of a binding customary norm, constituting thereby an exception to the ban on the use of force absent self defense and Security Council authorization.

Finally, it is interesting to highlight recent commentary on the Syrian situation by Richard Haass, president of the Council of Foreign Relations and former high-level government official.  Haass had been a proponent of the so-called “involuntary sovereignty waiver” theory in the 1990’s – the idea that countries which engage in reprehensible actions, such as harboring weapons of mass destruction, promoting terrorism, or committing atrocities against their own people lose their sovereignty and thereby invite intervention by other countries (such as the United States) (Professor Michael Kelly and yours truly have written about the involuntary sovereignty wavier theory in law review articles as well as a recent book).  While Haass seemed to embrace the idea that law-abiding nations could legally intervene in unilateral military fashion against “rogue” states, his response to the Syrian catastrophe seemed more nuanced. Haass stated that while military action may be needed against Syria to prevent a further use of chemical weapons, any such military action should be carefully calibrated to avoid another prolonged military conflict.

While military action may be needed and necessary in Syria, it is uncertain whether international law in its present state truly authorizes countries to engage in unilateral military action against Assad’s regime.  If the United States, Great Britain and France decide to launch a military offensive, their actions may constitute the first instance of humanitarian intervention and may lead toward the development of new customary norms of international law.