Do the Syria strikes herald a new norm of international law?
Yesterday military forces of the U.S., France, and Great Britain struck targets involved in Syria’s chemical weapons program. As I’ve often said, any use of force carries serious risks of unintended consequences, but this military action may yet prove to be a positive step for ensuring the efficacy of international law.
In announcing last night that “the nations of Britain, France and the United States of America have marshaled their righteous power against barbarism and brutality,” the President explained that:
“The purpose of our actions tonight is to establish a strong deterrent against the production, spread and use of chemical weapons. Establishing this deterrent is a vital national security interest of the United States. The combined American, British, and French response to these atrocities will integrate all instruments of our national power — military, economic and diplomatic. We are prepared to sustain this response until the Syrian regime stops its use of prohibited chemical agents.”
The strike, which reportedly involved a mixture of aircraft and missiles, appeared to be narrowly and proportionally confined to Syria’s chemical weapons capability and no more. Chairman of the Joint Chiefs of Staff Joseph Dunford described the targeting this way:
“The targets that were struck and destroyed were specifically associated with the Syrian regime’s chemical weapons program. We also selected targets that would minimize the risk to innocent civilians. The first target was a scientific research center located in the greater Damascus area. This military facility was a Syrian center for the research, development, production and testing of chemical and biological warfare technology.
The second target was a chemical weapons storage facility west of Homs. We assessed that this was the primary location of Syrian sarin and precursor production equipment.
The third target, which was in the vicinity of the second target, contained both a chemical weapons equipment storage facility and an important command post.”
Domestically, there seems to be some real bipartisan support. Even Democratic Senator and Minority Leader Chuck Schumer approved. The Washington Examiner quotes him as saying:
“A pinpointed, limited action to punish and hopefully deter Assad from doing this again is appropriate, but the administration has to be careful about not getting us into a greater and more involved war in Syria,” Schumer said in a statement Friday night.
His caution is a good one, but as of this writing the Washington Post says that a “major worry” about a “direct confrontation with Syria’s most powerful military partner, Russia,” is appearing “to ease.”
What about international law? In my recent post (“We must also consider the downsides of not bombing Syria: A Response to Professors Goldsmith and Hathaway ”) I suggested legal rationales for a strike, and expressed concern about the negative impact on the rule of law if a flagrant violation of one of international law’s most central principles is met with inaction. In his critique of that post over on Opinio Juris, my friend Kevin Jon Heller forthrightly laid out the conventional objections to the use of force under these conditions, and I have to say that his analysis is one with which many (most?) scholars would agree.
But I think we may be at something of an inflection point where, fueled by state practice like we’ve just witnessed, a norm could be evolving to permit a limited use of force in an effort to stop repeated violations of a jus cogens standard like that prohibiting the use of chemical weapons.
Key states acknowledge the appropriateness of the strikes. In describing the “broad support” among European Union countries for the strikes, Politico reported:
German Chancellor Angela Merkel said the military intervention was “necessary and appropriate, to ensure the effectiveness of the international ban of chemical weapons use and to warn the Syrian regime of further violations.”
Politico also said:
“Merkel’s comments were echoed by Spain, with Foreign Minister Alfonso Dastis who tweeted Saturday that, “The use of #chemicalweapons is a crime against humanity, nothing can justify it. The strikes carried out in #Syria by the US, France and the UK are legitimate and proportionate.”
These leaders join those in other countries supportive of the strikes. Interestingly, their pronouncements, along with those of President Trump, seem to sound in what is called “reprisal” in international law. The International Committee of the Red Cross describes reprisals as:
“State practice establishes this rule as a norm of customary international law applicable in international armed conflicts. A belligerent reprisal consists of an action that would otherwise be unlawful but that in exceptional cases is considered lawful under international law when used as an enforcement measure in reaction to unlawful acts of an adversary.”
In the classic international law sense, “belligerent reprisal” does not apply here, because – among other things – the “unlawful acts” did not arise in an international armed conflict between the offending state and the state(s) acting to stop the illegality.
(Consider, however, Mike Newton’s interesting argument about the application of reprisal to transnational terrorists: “Reasonable reprisals grounded on an empirical assessment of their deterrent value or framed as appropriate punishment for prior acts of terror may be the most morally acceptable and humane strategy for serving a strategic imperative of civilized society.”)
It may be that the norm I’m suggesting that might be developing is one that combines the model of belligerent reprisal with the existing international law concepts of jus cogens, as well hostis humani generis.
“Jus cogens” “refers to certain fundamental, overriding principles of international law, from which no derogation is ever permitted.” In my view, the prohibition on the use of chemical weapons is – today – one such principle (but see Ken Anderson’s discussion here). Still, how can nations not directly victimized by the breach of prohibition against chemical weapons nevertheless act? Maybe this is where the concept of hostis humani generis could come into play.
Some background: In the landmark 1980 case of Filártiga v. Peña-Irala the 2nd Circuit established civil liability for a tortious act that occurred overseas where both the perpetrator and victim were not Americans. In that case the court reasoned that the perpetrator, who tortured his victim to death in Paraguay, had become “like the pirate and slave trader before him —hostis humani generis, an enemy of all mankind.” In finding jurisdiction, the court said it was “a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.”
The court also cited the Supreme Court case of The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900), saying:
Habana is particularly instructive for present purposes, for it held that the traditional prohibition against seizure of an enemy’s coastal fishing vessels during wartime, a standard that began as one of comity only, had ripened over the preceding century into “a settled rule of international law” by “the general assent of civilized nations…Thus it is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” (Bolding added.)
Obviously, decisions in civil cases adjudicating jurisdiction to impose financial liability are rather different from the issues in international law about the use of force. Still, elements of the logic appear relevant, that is, can we not say that today the user of chemical weapons has, like the pirate, slave trader, and torturer, become hostis humani generis – an enemy of all mankind?
As I explained in my earlier post, I continue to believe a colorable case for a more traditional self-defense rationale exists under these particular circumstances. Nevertheless, can we now say that the state practice in this instance – along with the generally (albeit not universally) supportive reaction of what might be termed (admittedly controversially) “specially affected” states – may be signaling that a new norm is evolving? A norm that concludes that the use of chemical weapons violates a jus cogens principle and, therefore, would characterize such violators as hostis humani generis?
Furthermore, does this confluence of legal principles permit a reprisal-like proportional use of force aimed strictly at halting and deterring a horrific violation of a fundamental tenet of international law?
We may not be “there” yet with respect to a new norm – and I would not extrapolate it to anything beyond cases involving the most egregious breaches of international law – but we might nevertheless be heading that way. This is particularity so given that we live in a world where the hoped-for mechanism to address these situations – the UN Security Council – is frozen into impotence by the ability of its members (and, notably, Russia in this instance) to veto any action
Or should we to be left without any legal recourse allowing the use of force? Let’s recall that the Nuremberg Tribunal concluded that the “law is not static, but by continual adaptation follows the needs of a changing world.” Is there not a need in today’s “changing world” to demonstrate that international law means something, and that there are serious consequences when it is violated in such a terrible way?
But as we like to say at Lawfire, check the facts, assess the law and the arguments, and then decide for yourself!
(This post has been updated.)
Also, check out my new (April 19th) post over on Lawfare (“Yes, There Are Plausible Legal Rationales for the Syria Strikes”).