Saturday, August 31, 2013

Three (Problematic) Justifications for Bombing Syria in Violation of International Law

By Mike Dorf

Suppose that President Obama and Secretary Kerry agree with my recent post arguing that the planned missile strike on Syria without an invitation for protection from a country that has been attacked (such as, perhaps, Turkey or Israel) or UN Security Council Authorization, would plainly violate international law.  On what grounds might they justify doing it anyway?  I can think of three possible sets of reasons, each problematic in its own way.

(1) They don't give a damn about international law.  That's a fair description of at least some people who worked in the Bush Administration--although even most of them went through the motions of trying to argue that their policies complied with international law.  In any event, I don't think it's a fair account of Obama, Kerry and their underlings.

(2) They realize that there is not now a customary international law norm permitting individual sovereigns to use military force on humanitarian grounds, but they think there ought to be such a norm and that by acting as if there is one, their actions will have normative effect.  Columbia Law Professor Matt Waxman made an argument of this sort last week: The illegal actions in Kosovo and now Syria will eventually establish precedents, he says.  I think this may well be what some (e.g., Samantha Power) in the Obama Administration may be attempting, but I also think that, if so, they're kidding themselves. As I explained in my recent post, a norm does not rise to the level of customary international law unless and until there is a strong consensus in the normative practice of nations in favor of that norm.  But in the case of Kosovo there was substantial dissent from the NATO action and there is now even more substantial dissent from the proposed action in Syria.  In order to build a norm permitting non-Security Council-authorized armed force on humanitarian grounds, the interventions need to not only occur, but to occur with the approval of the international community.  And acquiescence in the sense of lack of military resistance to an armed action by the world's most powerful military does not count as approval.

(3) They care about international law in general but they think that there are circumstances so extreme as to warrant violating it.  In domestic law, the illegality of a course of conduct should raise only a strong presumption against engaging in that conduct.  If there are compelling moral (or other reasons) for breaking the law, then one breaks the law. There is a substantial body of literature on when civil disobedience is and is not justified.  That work mostly addresses justified violations of domestic law applicable to individuals, but perhaps it can be adapted to international law applicable to sovereigns.

However, there is a major obstacle to adapting the civil disobedience justification to the present circumstances.  The leading theorists and practitioners of civil disobedience--Thoreau, Gandhi, MLK Jr., Rawls--have all emphasized that morally justified civil disobedience must be civil, i.e., nonviolent.  So if there were some proposition of international law requiring the use of force, it would be relatively straightforward to translate the individual-focused history and literature of civil disobedience into a justification for some sovereign refusing to use force, but here we have a norm forbidding force and the U.S. proposing to act in violation of that norm by using force.  That is, at the very least, a substantial departure from the usual way in which civil disobedience is understood.

Well, so what?  Perhaps the Administration's view is somewhat broader.  Perhaps the Administration position is not so much based in the conventional account of civil disobedience but in a simpler calculation.  Under this simpler view, regulated actors have a prima facie duty to obey a legal norm, but other duties may create a stronger duty to violate the legal norm.  Cashing this out in practice in the current context would mean something like this: Force may only be used in the service of humanitarian aims notwithstanding its illegality where the moral justification for the use of force is very strong.  The rule would need to take something like that form because a just-barely convincing moral justification would not overcome the presumption in favor of compliance with the legal prohibition; if it did, then one might as well say that the legal norm has no real force.

So, does the argument work?  I continue to be extremely skeptical.  Secretary Kerry's speech outlining the case for force persusasively argued that the Assad regime used chemical weapons against civilians and that this was a gross violation of human rights under international law and any decent moral view.  But that does not make the case for bombing Syrian military assets--whether those connected to chemical weapons or unconnected--persuasive, much less very strong.

Why not?  Well, for one thing, a big chunk of the justification for force offered by the Administration and its hawkish cheerleaders is the need to maintain U.S. credibility in light of President Obama's earlier statement that the use of chemical weapons would be a "red line."  But maintaining credibility is not a moral principle.  It is at best a tactical one.

If I tell one of my daughters that unless she cleans up her room before suppertime she will get no supper, and she then fails to clean up her room, I may feel obligated to deny her supper, or else lose credibility going forward, but the obligation is not a moral obligation.  To extend the analogy, if, in a thoughtless moment, I tell my daughter to clean up her room before suppertime or I shall not feed her for a month, then my subsequent felt need to maintain my credibility when she again fails to do so would not and should not provide any sort of defense if I carry through on the threat and am subsequently prosecuted for child neglect or endangerment.  My fellow citizens would rightly judge me not only a lawbreaker but a monster.

Likewise here, one has the very strong sense that were it not for the president's earlier loose talk about red lines, he would not now even be considering missile strikes.  That leaves the impression that the Administration believes that the humanitarian objectives of the missile strike are not by themselves strong enough to justify it.

Whether or not that is actually what the Administration is thinking, it is what they ought to be thinking.  If one wants to justify the use of military force on humanitarian grounds, then one should at least make the case that the use of force is likely to improve the humanitarian situation.  The Administration has not done so and I doubt it could.  The basic argument in favor of the limited missile strikes appears to be that these will cause enough damage to the Assad regime that it will be deterred from further use of chemical weapons.  I suppose that's possible.  It's also possible that the regime will be emboldened by the limited nature of the strikes to use chemical weapons again, daring President Obama to strike again, and--in light of the Administration's having wisely ruled out putting boots on the ground--essentially calling the president's bluff.  Or, as threatened, Syria, Iran or Hezbollah could retaliate by attacking civilians in Israel, or could increase sponsorhsip of terrorism against Americans worldwide.  The frightening possibilities are endless, and it appears that people with much more intimiate knowledge of Syria and the Middle East than I have are quite worried about them.  When the use of military force is at least as likely to widen suffering as it is to curtail it, the moral justification for that use of force can hardly be said to be strong.

A pacifist friend of mine has a t-shirt that says "I'm already against the next war."  One does not need to be a complete pacifist to sympathize with the sentiment.  One only needs to share the view expressed in George Washington's Farewell Address: that entanglement in foreign disputes rarely does us or anybody else much good.  He wrote that "Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities."  Substitute the Middle East of today for Europe of the late 18th Century and the observation hardly becomes less true.  The American People appear to understand that. Unfortunately, our leaders appear not to.


The Dismal Political Economist said...

There are no good options here, and no perfect arguments. Mr. Dorf makes a strong and passionate case that the United States cannot intervene in Syria as a matter of international law, and also as a matter of foreign policy given the uncertain responses by parties in the Middle East. But passion does not always lead to the correct policy.,

I think Mr. Dorf places too little emphasis on the moral justification for limited intervention in the form of bombing and destroying Syrian military resources, that justification being the only credible rationale for action. The world communities have almost totally agreed that no, the use of chemical warfare, particularly the use of that warfare on civilians and children is morally indefensible and is outside of any legitimate government’s rights. A refusal of the United Nation to sanction such action does not change the moral situation, particularly since if the Security Council fails to provide unanimous approval that is a political statement not a military statement or a position on policy.

We do not know the outcome taking action. It may well be negative, resulting in a much larger conflict in the Middle East. It may be positive in that it prevents a future gas attack, but that is something we will never know because we cannot know what would have happened but for.

But what if the evidence is overwhelming that Syria did gas its people, and what if the United States has the capability of inflicting military damage on the Syrian government and possibly preventing a future attack, and what if the United States does not act and if future attacks do take place? This nation would then have to answer, to ourselves, why didn't we do something to prevent the mass murder of innocent men, women and children by chemical warefare when we may have had the capability to have prevented that.

Mr. Dorf may well be correct in his position, but he is not justified to the certainty with which he takes that position, the case is also strong for taking action. And he leaves unanswered the so far unasked question, which I will ask now. “If using chemical weapons on its own people does not justify unilateral U. S. action, is there any atrocity that the Syrian government could perpetrate on its people that would justify unilateral action by the United States?” Well, is there?

Michael C. Dorf said...

TDPE's comment takes me to task along the one dimension I conceded to the White House argument--that the grave moral outrage of using chemical weapons may in fact rise to the level that would justify humanitarian use of force notwithstanding its illegality. But I said that the White House itself does not even appear to believe this, as evidenced by the fact that so much of the argument has been couched in terms of maintaining U.S. credibility.

My main substantive point (within the "civil disobedience" hypothesis) was that part of what tips the balance in favor of action is the probablistic assessment that the use of force will do more good than harm. Given what we know, there is no reason to think that condition is satisfied, and I do not read TDPE to say otherwise. So his challenge concerns a completely hypothetical case: In a world in which we had substantial confidence that missile strikes would do more harm than good, would I support them? I'm not sure, but I agree that in that hypotethical world, I would be unjustified in strongly taking one position or the other. Back here in the real world, I remain strongly committed to my view. If Congress and the President decide to bomb anyway, I hope that the bombing will do more good than harm, but if it does, that won't prove that it was the right decision ex ante.

The Dismal Political Economist said...

Mr. Dorf’s position as I understand it is that (1) the United States should not unilaterally act in Syria in violation of international law and (2) even if the U. S. is authorized to act the probability is that the action will do more harm than good. With respect to this second position Mr. Dorf is indeed entitled to his informed opinion, but it is only opinion, and reasonable people can disagree as to whether or not it is a correct opinion. My objection to this opinion is (1) the case is not as strong as Mr. Dorf makes it out to be and (2) because one will never know what would have happened in the absence of action it is impossible to know ex ante (or even ex post) if a military strike was the better option. Not taking action has a risk of making things worse, and whether or not this risk is greater or less than the risk of taking action is unknown and unquantifiable. Mr. Dorf is correct, I do not say that taking action will do more good than harm, because neither I nor anyone else know that to be the case.

But with respect to the first point and the real world in which Mr. Dorf wishes to frame the argument (and I agree, it should be in the real world) the real geo-political world is that the United Nations Security Council will almost certainly not approve a military response to the situation Syria. This is because Syria is a client of Russia and Russia, like all of the other permanent members of the Council has veto power. So in the real world it is not reasonable to expect that action can be taken in Syria that is not in violation of what Mr. Dorf would regard as International Law. And the concept of non-violent civil disobedience is not relevant here. By definition the action here would be violent civil disobedience.

And this leads back to my previous question, which was not a hypothetical case at all. It is not a question like “what if you could go back in time and kill Hitler in 1910? My interest here relates to the original issue in these posts, U. S. adherence to International Law and the resulting foreign/military policy. It is a question of what should be U. S. policy, (independent of the fact that the President has made a terrific mess of this and that the war mongers who drove U. S. involvement in Iraq are also supporting a policy of intervention here), with respect to atrocities visited upon its people by a government. If it will never be possible for the United Nations Security Council to approve a military response to a Syrian atrocity, is there any Syrian atrocity that would justify unilateral action, and hence a violation of International Law by the United States in response to such an atrocity?

My strict reading of what Mr. Dorf has posted is that the answer is no, and this would lead to a foreign/milatary policy principle that in the absence of U. N. approval any government is free to visit any horror upon its people that it so desires, because outside intervention would be in violation of International Law. But I may be wrong in this interpretation. If that is Mr. Dorf’s position, I am simply asking that he affirm it. If it is not, then I would ask again what level of atrocity, what level of massacre upon a people by its government would justify unilateral action by the United States in violation of International Law?

Michael C. Dorf said...

Those are legitimately difficult questions. I don't have a formula but it does seem to me that there are a number of moving pieces. As the likelihood increases that military action will succeed in reducing suffgering, the argument for using force becomes stronger. So too, as the horrificness of the conduct one is punishing, the case for acting becomes stronger. Thus, something on the order of the Holocaust, the genocide of the Armenians, or the Rwandan genocide clearly crosses the line. I'm also prepared to say that the crimes committed against humanity by the Assad regime cross the line. It's just that the proposed action seems to me (and to a lot of well-informed people) very unlikely to do more good than harm.

I also agree that if one views the entire UN system for authorizing the use of force as dysfunctional, then the fact that an action of this sort is "illegal" carries less weight. I think the system is flawed but, given its role in keeping peace, not to that level of dysfunctionality.

So our apparent disagreements (if that's what they are) are matters of degree.

The Dismal Political Economist said...

Mr. Dorf is largely correct here, and I don’t think there is a major disagreement. In fact, I felt badly when Mr. Dorf characterized my initial response as “taking him to task”. That was not the intention at all, it was instead a request for clarification from a highly respected legal scholar on a critical legal issue of international law and the extent to which America was bound to that law.

There are two arguments here, effectiveness and authority. There is total agreement that intervention should only be taken when there is a strong probability that it will do more good than harm, and that it will not result in a protracted U. S. engagement or serious unintended consequences. Mr. Dorf and those who think like him make a compelling and possibly convincing argument that U. S. action in Syria would result in more harm than good. But others, one of the best being the lead story in the current issue of The Economist make a compelling and possibly convincing argument that U. S. action in Syria would be beneficial. The case is not decisive for either side, hence the debate and the dilemma.

On the issue of authority there is also agreement that unilateral action should be undertaken if the effectiveness can be demonstrated and opposition to a U. N. Security Council approval is political rather than factual. In this case the likely Russian veto would not be the result of Russia’s belief that intervention would cause more harm than good, but because they support a client state and quite frankly, really do not care whether massive numbers of men, women and children are gassed. So the argument for intervention in this situation defaults to one of effectiveness.

If forced to decide I would probably be of the same position as Mr. Dorf, that based on current knowledge it is not highly likely that the benefits of action would be greater than the costs, but differ from him in that I would neither feel comfortable with that position nor have significant confidence that it was the right one. And maybe the deciding factor in favor of non-intervention is that given the likely ineptitude and incompetence of the administration and the military command in this situation even if intervention were called for and could be net beneficial it is entirely possible that it would be so poorly done that it would result in the outcome Mr. Dorf expects, more harm than good.

Michael said...

Likewise here, one has the very strong sense that were it not for the president's earlier loose talk about red lines, he would not now even be considering missile strikes. That leaves the impression that the Administration believes that the humanitarian objectives of the missile strike are not by themselves strong enough to justify it.

But doesn;t this just assue that the president was speaking with no moral conviction of his own? Obviously, that's possible, but i don;t see a very strong indication that his words didn't indicate a convicted view on the prospect of CW use and an intent to bring consequences to bear (notwithstanding illegality) should it occur, rather than just a loose, empty threat. IOW, I don't see any real reason to believe that the president wouldn't be considering these strikes in the face of these actions regardless of having set forth his red line, which inclination is simply reflected in the issuance of the red line, rather than the red line having created the inclination to strike.

The more troubling question to me is whether the red line comments ended up precipitating the CWs actions themselves.

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