Legality, Justice and Syria part 2

I have already set out, as briefly and simply as I can, the positive claim of why I consider the military action against Syrian targets on 13/14 April to have been contrary to international law, but also why I do not consider that to be determinative of the moral question of whether it was the right thing to do. This post is negative in form. I shall consider a number of arguments against the position I have already set out in order to knock them down.

LAW

General Assembly Override?

In his in many ways excellent and clear advice to the Deputy Leader of the Labour Party, Professor Dapo Akande suggests that the collective action route is, and was, not closed off by deadlock in the Security Council.

 

In 1950 a deadlock had arisen because of the withdrawal of the Soviet Union from the Security Council over the refusal to recognise the People’s Republic of China as the legitimate representatives of the Chinese State. This prevented any UN military action over the Korean War. UN Resolution 377A, also known as the “Acheson Plan”, was a resolution of the General Assembly whereby if the permanent members of the Security Council were deadlocked, the General Assembly could in an emergency special session authorise the use of force. Although this route to authorise military force has never been used, could it be as Akande suggests?

 

No. That resolution did nothing to alter the terms of the Charter, which contains the rules which the signatory states have agreed to. Article 108 of the Charter allows for its own amendment where this is done by two thirds of the members of the General Assembly, and ratified by two thirds of the members of the United Nations, including all the permanent members of the Security Council. Resolution 377A did not meet this threshold (because it could not without Soviet agreement which it withheld). Resolution 377A does nothing at all therefore to the Charter. The Charter is what it purports to be: an exhaustive code of when military force is permitted. The power to block military action given to permanent members of the security council by the Charter has not been bypassed, and Article 108 is a form of double entrenchment of that power as those members can each block any change to the rules.

 

If an analogy is thought helpful, a resolution of the US Congress does not have precedence over the terms of the US Constitution with which it is inconsistent. The terms of the Charter take precedence over resolutions of the Assembly that are inconsistent with it, as those are the rules all parties agreed to.

 

Those who wish to rely upon strict legality should place no reliance at all upon Resolution 377A. If it had amended the Charter it would lower the bar for collective action. It has not.

 

Chemical Weapons

What of the Chemical Weapons Convention? Does Syria’s breach of that Convention justify military intervention?

 

As a matter of law, the answer is no.  One state breaking international law does not, alone, permit another state, or group of states, using military force against it.

 

Defence of the bright line rule against chemical weapon use may provide a moral argument as to why intervention is justified here, when it is not on other occasions, but it forms no part of the UK’s ‘humanitarian intervention’ legal justification for action. Theresa May in the Commons today understandably sought to conflate the two reasons, but they are quite separate.

 

Responsibility to Protect

What of the new international responsibility to protect doctrine (“R2P”), has that altered the position? The short answer is given by Professor Akande: it in no way altered the UN Charter rules on the use of force. This is clear from para 139 of the World Summit Document agreed by the Heads of State of the General Assembly. The responsibility to protect only arises within the confines already established by the Charter, it creates no new liberty to use force,

 

Article 2(4)

It has been argued that the wording of Article 2(4) of the Charter is not as restrictive in setting out a limit on the use of force as I have suggested. It provides:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

So, it has been argued by Professor Anthony D’Amato (here at pp 4/5) that where the use of force does not threaten the territorial integrity of a state (as dropping a bomb on an airport does not) or its political independence it is not prohibited.

 

On this view, if the UK government decided to drop a bomb on Paris for a laugh that would not be prohibited. That is not a plausible reading of the provision. Dropping bombs on other states is the use of force against their political independence (states claiming a monopoly on when force is lawful within their territories).

 

[It may be noted in passing how badly drafted art 2(4) is. Something has gone wrong with the grammar. Should the last clause be read as “in any other manner [use force] inconsistent with the Purposes of….”?]

 

Customary International Law

The origin of the UK’s case for a right of humanitarian intervention is this article by Christopher Greenwood, pp 161- 171 of which should be read alongside Akande’s as the case for the government (pending the release of the advice that forms the basis of its published opinion.) The argument is that such a right has arisen by custom, through interventions in Western Africa, Kosovo, Iraq and elsewhere.

 

Akande has the better of the argument, but he obscures this with the order of his presentation.

 

Let it be assumed, arguendo, that a custom of humanitarian intervention has been established. Assume that countries like the UK, Russia, China and France have routinely, over a long period of time, used it as a ground for the use of force. Let us assume that there is widespread agreement amongst commentators that this has happened, and lots of reports and statements from a large majority of countries accepting that this has occurred. Does that suffice?

 

In the absence of the UN Charter, it would. Absent agreement, we must infer the positive law from customary usage. (And where that too is missing from natural law reasoning: It is just wrong to invade other countries just as it is wrong to murder people regardless of the absence of any custom or  positive law on the point.) Once however there has been an agreement entered into, this replaces the need to look to Convention. As in other areas, such as UK domestic law, Conventional rules are subordinate to, and rendered otiose by, posited legal norms. The rules applicable to Syria are determined by the agreement (the Charter) it has entered into. Conventions established by other states are neither here nor there.

 

It is possible to vary an agreement. This variation may be inferred from conduct, and not just express provision. However, the hurdle for proof of this is very high where the parties have, under their agreement, specified how variation is to occur (as they have in Article 108). Syria would also have to be a party to any such variation. Nobody seriously entertains that this could be established in this case.

 

So, before we get to the question of whether any such Convention can be established as a matter of fact (and I consider this doubtful) the preliminary question is would it matter if we could? The correct answer is that it would not.

 

Romanticism

Lawyers are prone to two kinds of romanticism, both of which are false and need to be resisted.

 

The first is that the law answers definitively the moral question of how to act and no further difficult and contentious moral enquiry needs to be entered into. Rules are important, and things will usually go better if we guide ourselves according to good rules set down in advance rather than using our own individual notions of what justice requires. Rules are not however the only things that matter. Trying to prevent the murder of innocents through chemical weapons, for example, may be an important consideration on the other side. The reasons for the ability of Permanent Members of the Security Council to block collective action through force are found in the political interests of Britain, the USA and the Soviet Union as negotiated at Yalta in 1945. It has little or nothing to do with considerations of what justice might require. We cannot assume that the rules are not abhorent, let alone that they are good.

 

The second is that we must assume that the positive law is just, and where it appears not to be interpret it, or add to it, or ignore it, in such a way that it is. It is this trap that those who argue that there is a right to humanitarian intervention are falling into. It seems wrong, as a matter of justice, that the rules should prioritise the sovereignty of nation states (which are legal constructs) over the interests of human beings. Surely there should be a rule permitting unilateral intervention in the case of genocide, therefore, (so the reasoning goes) there is. However, if we think like that, why bother with the positive law at all? Why not just cut to the chase and ask, in each case, what does justice require? The central point of the positive law is to give us guidance independent of what justice requires.

 

We should not be romantic. We should have the courage to look at the positive law and accept that it is unjust, as in some respects international law is.

 

Morality

The number of bad moral arguments that can be made is infinite, but here are two prominent ones.

 

What about Myanmar?

There is a large amount of injustice in the world. If it is morally required to intervene in this case, why not in all cases? Why no intervention to stop or deter the killing of Rohingya people in Myanmar?

 

This kind of “what about” argument is never very persuasive, but first it must be conceded that if intervention is morally justified in the case of Syria, it is morally justified in all morally identical cases. Like cases should be treated alike.

 

However, three further points may be made.

 

First the use of chemical weapons morally differentiates this case. The use of chemical weapons in World War I led to the 1925 Geneva Protocol banning the use of chemical weapons. This bright line rule has been respected for purposes of combat for nearly a century (chemicals have of course been used against human beings by states). Although someone left to die in agony by a cluster bomb may suffer as much as someone poisoned by chlorine gas, the absolute prohibition was an advance that is worth defending.

 

Second, ought implies can. The states intervening in Syria lack the practical ability to end or deter many injustices in the world. Without the capacity to act there is no duty to do so.

 

Third the moral argument in favour of intervention may only establish a liberty to intervene, not a duty to do so. Exercise of the liberty in one case does not require it in all others. We should not refrain from trying to stop one injustice on the basis that we cannot stop all others.

 

The Bad Motives of Leaders

What if, for the sake of argument, the leaders of the intervening powers had bad motives? Say President Trump’s motive was to distract attention from the Stormy Daniels affair, or Theresa May’s was to improve the local government election results. Does that make it immoral to follow them?

 

No. If our reason for approving of the bombing were the unthinking following of leaders, rather than preventing the murder of civilians by chemical weapons, then their bad motives may be imputed to us. The true justification for the state’s action (or lack of it) is independent of the subjective motives of the leaders of the country carrying out the act. We cannot assume that because it is carried out by Trump that it is, therefore, wrong.

 

A better argument might be the fear of escalation, that bad leaders with bad motives cannot be trusted not to go too far. That maybe so, but their bad motives alone cannot be a determining factor. The evil man may be prudent, whilst the good recklessly ambitious.

Legality, Justice and Syria

Law

The law is the easy part.

Absent agreement between them, the law between states can be found in Conventions and, where even they are absent, reasons of justice. Since 1945 however we have had the United Nations Charter, that was created by agreement. In areas it covers, it provides us with the positive law, replacing what was there before. The central point of the positive law is that it gives us guidance independent of reasons of justice. It closes off appeals to them. If it didn’t, the positive law would have little point.

 

Article 2(4) of the UN Charter has a prohibition on the use of force. This allows of two exceptions. The first is in Chapter VII, where the Security Council has been given power in order to fulfill its responsibility for the maintenance of international peace and security. The second is the right to self defence in article 51. (I argued back in 2015 that the drone strikes against ISIS targets were justified on the basis of the defence of the state of Iraq.)

 

Humanitarian Intervention

Take an extreme example. Say a government of a nation state led by a brutal dictator was carrying out a campaign of genocide against a minority group. Let it be assumed that it can be proven beyond peradventure that dropping a bomb on an airfield, hurting nobody, could prevent this. One permanent member of the security council opposes this action. Can other countries, individually or collectively, drop the bomb saving millions of lives?

 

As a matter of the positive law, the answer is clearly no. There is no ‘humanitarian intervention’ exception in the text of the Charter. Maybe such a rule could have been justified absent the Charter, but it now covers the field. There is no way of interpreting the words as meaning anything other than what they say.

 

That the Charter allows for no such exception is apparently astonishing given the context of its drafting. However, in 1945 it was envisaged that such action would be taken collectively. There is no get out where one permanent member of the security council opposes intervention.

 

Kosovo

It follows from the two propositions that international law on the use of force is found in the Charter, and that the Charter by its words only permits the use of force in the two situations described, that I consider that the bombing in 1999 by Nato forces in order to (successfully) prevent the ethnic cleansing of thousands of Albanians as contrary to the positive law.

 

That does not, however, answer the moral question of whether it was wrong.

 

Justice

Governments have good reasons for complying with international law.

 

First, that is what they have agreed to do. Pacta sunt sevanda: agreements are to be kept. This is principle of justice that applies to states as much as to people. States agreed to the UN Charter, and if they do not like certain features of it then the correct course is to vary it through further agreement.

 

Second, breaking international law undermines respect for it. Why should other states comply with international law if we do not? Unlike domestic law, international law is (largely) free of any sanctions for breach.Without an enforcement mechanism, the only way the United Kingdom has of encouraging others to comply with their treaty obligations is for us to comply with ours. The absence of a strong regime of sanctions for breach means that the United Kingdom has a stronger, not weaker, moral reason for compliance.

 

Third the moral question of whether to intervene in cases such as Syria is often extremely fraught and difficult. Dropping bombs may deter the illegal use of chemical weapons, but such illegality by the Syrian state does not alone provide other states a legal privilege to drop bombs upon it.  On the other side, dropping bombs kills people, many innocent. There is a danger of escalation. It would be better if the question of when action is permitted and required were settled by rules drawn up dispassionately in advance, and that is what the UN Charter tries to do.

 

But

But although the positive law has great weight in our moral reasoning, it does not have infinite weight. Sometimes breaking the law is the right thing (morally) to do. Two facts lessen the weight international law has.

 

First, it is obviously deficient, as my extreme example of the single bomb to prevent genocide illustrates. The bar to collective action is set too high. One permanent member of the UN Security Council having power to block any collective action entails in practice and not just in theory that no legal force will be used in some cases to prevent even the most grotesque crimes committed within nation states.

 

The explanation, but not justification, for the high bar is realpolitik, not justice, Members of the security council wanted, and want, the power to block the lawful exercise of force against themselves or allied countries. There is no practical prospect of this being changed. In this respect, international law is in a worse state than it was before 1945 as a matter of justice.

 

Second, the question of whether to comply or not with international law is an example of the prisoners’ dilemma, All states will be better off if there is universal compliance, but if some states follow the rules, whilst others do not (by for example annexing part of a neighbouring state) that may place those who comply with the rules in a worse position than they otherwise would be.

 

UK Government’s Legal Position

 

The UK government sets out its legal position as follows

 

The legal basis for the use of force is humanitarian intervention, which requires three conditions to be met:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian suffering and must be strictly limited in time and in scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).

 

There is no textual support for this within the UN Charter at all. It is implausible as a statement of the positive law.

 

It is however a good statement of what the law ought, as a matter of justice, to be. There is a danger of judging these things in hindsight. The bombing of the former Yugoslavia “worked” (whereas other interventions have not) but my judgement, for what that is worth, is that it was right but unlawful, regardless of the outcome.

 

The UK government has an interest in respect for the rule of law, both nationally and internationally. It cannot say “this action is right, albeit unlawful.” So, it portrays what is in fact an argument of justice as one of legality.

 

Whether the decision to bomb is, morally, the correct one cannot be definitively answered for us by the positive law, Each of us, in this regard, is on our own.