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

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

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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…

Debating Canada’s Objectives and Role in Libya

(Published in the Huffington Post (Canada), June 14, 2011 – slightly revised)

width="210"Tomorrow, parliament will debate whether to extend the participation of the Canadian Forces in the NATO operations in Libya. First, it should be said that parliamentary approval of the operation is essential. Legislative oversight of the executive’s decisions to go to war is crucial for both democratic accountability and for reducing the likelihood of involvement in unwise or illegitimate adventures.

Canada is one of the few liberal democracies that does not have a constitutional or legislative requirement for such approval, but tomorrow’s debate is part of an increasingly established practice in Canada of parliamentary involvement in decisions to engage in armed conflict.

In order to make the debate meaningful, however, parliament must take seriously the issues before it. Members have a duty to rigorously interrogate the government’s motives, and to question the rationales advanced for continued involvement in the conflict. It is not enough to accept platitudes and vague assertions about Canada’s duties as an ally. Rather, there must be hard questions asked about the continued legitimacy of the operation, what exactly the objectives are, and how precisely our involvement advances the national interest or is consistent with our national values.

It should be recalled that the initial objective of NATO’s operation was to prevent a pending humanitarian disaster, when Libyan armed forces were poised to take Benghazi. The United Nations Security Council authorized, in Resolution 1973, the use of force to impose a no-fly zone, and to take all necessary measures to protect civilians. It was a classic humanitarian intervention, with the explicit objective of, and authority limited to, protecting civilians. … Read more…

The Legal Implications of Military Intervention in Libya

(Published in The Huffington Post, March 2, 2011)

As the crisis in Libya deepens there is increasing chatter about the possibility of military intervention. At the moment this is suggested most frequently in the form of a no-fly-zone over Libya, in order to prevent Gaddafi from using the air force against civilian protestors.

A debate is developing over the wisdom of any American or Western military involvement, but as usual there is little being said about the international law principles that would be implicated by such operations. And in the context of the growing unrest throughout the region, perceptions of the legality or illegality of any U.S. military action could have a significant impact on the developing narrative in the Arab world regarding America’s role, and how the emerging regimes ought to frame their relations with the U.S. going forward. The law matters in this situation.

The starting point of the legal analysis is the basic prohibition in international law on the use of armed force against the territorial integrity or political independence of any state. The two primary exceptions to the prohibition are self-defense, which is obviously not applicable here, and operations authorized by the United Nations Security Council in response to a threat to international peace and security. There is no question, therefore, that if the U.N. Security Council passed a resolution authorizing the imposition of a no-fly-zone in order to maintain peace and security in and around Libya, as it did in Iraq in the 1990s, the U.S. and its NATO allies could do so with the full imprimatur of international law.

Read more…