Canada’s Support of U.S. Strikes on Syria Harms International Law

(Published in the HuffPost, May 1, 2017.)

Tomahawk-Missile

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.

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When Should We Violate International Law in Order to Enforce It?

(Published in The Huffington Post, September 10, 2013)

Lady Justice Bronze_full

The looming military strikes on Syria are being justified as necessary to enforce and maintain a fundamental international law norm, namely the prohibition on the use of chemical weapons. It is quite clear that in the current situation, and in the absence of U.N. Security Council authorization, such strikes will also themselves violate a fundamental norm of international law, namely the prohibition on the use of force against sovereign states (see here for my own discussion of the legality issues).

At first blush the argument that one should violate the law in order to enforce it seems absurd, encouraging a counterproductive form of vigilante justice at best. But it does raise the question — are there times when we should violate international law in order to enforce it? Or more explicitly in the Syrian context: under what conditions and according to what criteria would it be justifiable to violate the fundamental rule prohibiting the use of force against sovereign states, in order to enforce the fundamental rule prohibiting the use of chemical weapons? Are there some practical responses that might provide some guidance for policy makers?

It must be acknowledged that there are some situations in which we accept that it would be justifiable to violate the law, or at the very least in which the circumstances would mitigate against our full condemnation of a violation. Such justification, in the form of exceptions, defenses, and reduced punishment, is indeed built into most domestic legal systems, and is part of most conceptions of justice. … Read more…

International Law and U.S. Military Strikes on Syria

(Published in the Huffington Post, Aug. 31, 2013).

Cruise missile launchThere has been insufficient analysis, by both policy makers and the media, of the legality of the looming use of military force against Syria. As usual, the law seems to be beside the point. But this not only ignores a key factor, but is rather paradoxical given that one of the primary justifications for the strikes is that they are to punish the Syrian government for its violations of international law. Legality should be an important factor in the decision-making process, because if the use of force is itself not lawful, then it represents nothing more than vigilante justice, likely doing far more harm than good to the international legal order.

There is little doubt that the Syrian regime has committed war crimes and crimes against humanity against its own people over the last two years. If it is proven that the Assad regime used chemical weapons in the attack last week, that would constitute a separate and grave violation of international law. All of this screams out for a response by the international community.

The reality, however, is that these crimes do not justify a unilateral use of force, and the contemplated American military strikes would not be lawful. Indeed, the Obama administration, while tossing out platitudes about complying with international norms, has not even tried to make the legal case justifying the use of force. … Read more…

The Law and Congressional Red-Lines on Iranian Nuclear Talks

(Published in the Truman Doctrine blog, July 11, 2012)

The Moscow round in the talks with Iran over its nuclear program, in which the world powers are ultimately trying to prevent Iran from developing nuclear weapons, collapsed last month. The next round of talks are scheduled to begin soon. This has renewed claims that further talk is futile and harsher measures are required, and counter-arguments that diplomacy is failing precisely because the U.S. refuses to make reasonable and necessary concessions in the negotiations.

One of the central issues in this debate is whether the U.S. should “permit” Iran to enrich uranium for non-military purposes. Israel and its supporters in Congress have pressed for a categorical “red-line” in the negotiations, according to which Iran should be prohibited permanently from any enrichment whatsoever. Others have responded with powerful policy and strategic reasonswhy, on the contrary, a “concession” to acknowledge Iran’s right to develop a peaceful nuclear program, is necessary for there to be any meaningful chance of success in the negotiations. Past U.S. policy has, of course, been that Iran has the right to peaceful nuclear energy development, and the proposed red-line would be a departure from past policy.

The claims against Iran are, of course, framed largely in legal terms — and there should, therefore, be a careful consideration of the legal principles that relate to this central issue of Iranian enrichment. And an analysis of the law suggests that a U.S. failure to acknowledge Iran’s right to peaceful enrichment would not only be unprincipled and perhaps unwise, but it would be fundamentally inconsistent with the governing legal regime – the legal regime that is the foundation for our objection to Iran’s program to in the first place. … Read more…