(Published in the HuffPost, May 1, 2017.)
In the immediate aftermath of the American missile strike against Syria, Prime Minister Trudeau announced that Canada “fully supports” the U.S. in its “limited and focused action to degrade” the Syrian government’s chemical weapons capability. Many Canadians appear to think that this was the right call, given the heinous nature of the chemical weapons attacks in Syria. But the U.S. missile strikes violated international law, and weakened the international rule of law. Canada’s swift and strong support for those unlawful acts will in turn do further harm to the international law system. That is not at all consistent with Canada’s traditional support for international law. It was not necessary, and the Canadian government should re-consider such support for future American unilateral attacks.
Let us begin with the question of legality. Article 2(4) of The United Nations Charter and customary international law provide for a strict prohibition against the use of force against other states. There are only two exceptions to that prohibition, permitting states to use force either in individual or collective self-defense (Article 51), or when authorized to do so by the UN Security Council for purposes of maintaining or restoring international peace and security (Articles 39 and 42).
There is an amazingly strong consensus among international law scholars, even within the United States, that the U.S. missile strikes constituted a clear violation of the prohibition against the use of force. These views have been articulated in such renowned national security and international law blog sites as Lawfare, Just Security, EJILTalk!, and Opinio Juris. Such a consensus is remarkable given how divided opinion has been on the invasion of Iraq, drone strikes in Yemen and Pakistan, or even the American strikes within Syria against ISIS. There is so little disagreement on these recent strikes, however, because there is virtually no plausible argument that they satisfy either of the established exceptions.
The only slender reed to be grasped by those trying to justify the strikes, is to argue that it was a valid exercise of humanitarian intervention. This argument depends, first, on a claim that there is an emerging norm in international law that would create a third exception to the prohibition on the use of force, in order to address humanitarian crises in other states. Canada actually played an important role in developing a doctrine called “The Responsibility to Protect” (or “R2P”), which provides a theoretical foundation for this putative exception.
But while the principle may be “emerging”, the doctrine has not yet been established as a recognized and accepted principle of customary international law. To become custom there must be a widespread practice of states engaging in the conduct, explicitly for the purpose of preventing humanitarian crises, and invoking the doctrine as justification. There has been no such widespread state practice. But in any event, the American strikes did not even satisfy the basic conditions for a humanitarian intervention.
First and foremost, the principle requires that the force have been legitimately for the purpose of preventing an extreme humanitarian crisis, such as the commission of widespread war crimes, genocide, or crimes against humanity; and second, the intervention must have been the only way to do so. While the use of chemical weapons certainly was a war crime, and even assuming that it is proven that the Assad regime deployed them, the primary cause of the carnage in Syria has not been chemical weapons. And there is no evidence that the American strikes were intended to, or would, prevent the ongoing humanitarian crisis in Syria. The U.S. government refused to even provide a legal justification for its actions, far less appeal to the doctrine of humanitarian intervention specifically.
Indeed, the strikes were interpreted by many, Prime Minister Trudeau among them, as a limited strike intended to deter Assad from further chemical weapons use. The absence of any follow-up action undermines any argument that it was intended to prevent further atrocities in Syria more generally. The strikes increasingly look like an isolated attack intended to send a signal that the Trump administration will not shy away from using force – a signal likely intended for Russia, North Korea, and even domestic political constituencies, rather then the Assad regime.
But while the strikes did not help crystallize the principle of humanitarian intervention, the unlawful strikes did further weaken the prohibition on the use of force. This prohibition is the grundnorm of the United Nations system, upon which international peace and security depends. The integrity of that system is arguably more important than any one conflict. Some have suggested that while the strikes may have been unlawful, they could still be justified as enforcing the norm against chemical weapons – but as I have argued elsewhere, violating a fundamental principle of international law in order to enforce a lesser rule cannot be so justified. While the humanitarian disaster in Syria represents a serious failure of international law, the deliberate and flagrant violation of the most fundamental rules by the putative leaders of the international community is even worse for the system.
An important aspect of the rule of law is a shared understanding that the law is binding and that it applies equally to all. Repeated violations, particularly by the more powerful states and with apparent impunity, serve to erode that shared understanding, and thus weaken not only the normative power of the particular laws violated, but over time the integrity of the entire system of law.
This violence to the rule of law is exacerbated when other states voice their endorsement and acceptance of serious violations – particularly in cases such as this, where the violator itself does not even try to offer a legal justification for its actions. When a vigilante shoots a thief, it is a violation of the law that is not justified by the thief’s own criminal acts. When the shooting goes unpunished, and not even explained, the rule of law is weakened. But when the community and institutions of power appear to applaud the vigilante for his lawless acts, then the rule of law is at risk of completely unraveling, the shared understanding of the law’s binding nature dissolving, and isolated acts of theft will be the least of our worries. A Hobbesian reality of war by all against all beckons.
Canada has traditionally been a champion of the international rule of law. It should not support vigilante violence against criminal regimes. The Trudeau government was not faced with a binary choice between supporting either the United States or the Assad regime. It had options for responding to the chemical attacks without supporting America’s illegal strikes. Canada’s voice matters, and should be directed more carefully in the defense of law, not in support of lawlessness.