Trump’s Syria Air Strikes: A Perverse Advance in International Law?

Trump’s Syria Air Strikes: A Perverse Advance in International Law?

With no knowledge or desire of doing so, Trump may have created a precedent that will encourage allies alarmed by his raving incompetence to fill the gap between Security Council action and complete inaction.

Are we now at war in Syria? We already were. Since 2011, the United States has trained and equipped various factions opposed to Bashar al-Assad and deployed massive force against ISIS. In 2016 alone, as Juan Cole points out, the Obama administration dropped more than 12,000 bombs on Syria. That these targeted ISIS positions is beside the point: the United States has long played a role in the Syrian conflict. A confused actor in a confusing theatre is still an actor in a theatre.

Some might argue that President Obama’s actions were counter-terrorism measures justified by the 2001 Authorization of the Use of Military Force (AUMF). But the April 6 attack was permissible under domestic law, as well: presidents have largely unfettered discretion under the War Powers Resolution (1973), which allows a president to engage in military action of limited scope and duration without congressional approval. Presidents need only report to Congress within forty-eight hours and end the action in less than sixty days. (The WPR was the legal basis for President Obama’s intervention in Libya.) The constitutional principle described in United States v. Curtiss-Wright (1936) thus tends still to hold: that the limited and enumerated powers of the Constitution apply only to domestic matters; “in international relations, the President is the sole organ of the Federal Government.” That these airstrikes were launched on a presidential whim—quite literally ordered on the way to a dinner party—is not a Trump problem, nor a lingering Obama problem, nor even a war on terror problem. It is an America problem: the direct consequence of building an enormous military machine and then casually tossing the keys to the president so that he can take it out for a joy ride whenever the mood strikes him.

Alarming and reckless as it is for a nation to deposit this kind of power in its executive, and especially this particular executive, I am not especially troubled by the April 6 airstrikes either in themselves or as a precedent. If there is one day an International Criminal Tribunal of Syria, and I hope there is, it would likely evaluate them as action taken by a state that was already a party to the conflict. The post-1949 tendency of the laws of armed conflict is to engage in factual analysis of whether an armed conflict exists, and whether a state actor is involved, rather than to focus on a state’s declared intentions. That analysis would likely find that the airstrikes of April 6 are not a new entry into the war, nor even a major escalation of an existing engagement.

This means that the natural questions arising from Trump’s airstrikes are not jus ad bellum ones, about the legality of launching a new war, but rather jus in bello ones, of proportionality, distinction, military necessity, and humanity in the context of an ongoing war. By these measures it clearly passes: it is an attack on an airfield that, to our knowledge, has claimed no civilian casualties, that has not as of yet widened into a larger assault, and that might damage Assad’s ability to launch future chemical weapons attacks.

But let’s say we were to evaluate this as a new intervention, rather than part of an ongoing engagement. Here it would run afoul of current international law, but not because that law is especially just. Under the Right to Protect principles agreed upon at the 2005 World Summit, such intervention must pass through the UN Security Council. But of course Russia has a permanent seat on the Security Council, and has used its veto eight times on resolutions pertaining to Syria, including this Wednesday’s veto of a resolution seeking to bolster investigation of chemical weapons attacks. Should this cripple international efforts to curb Assad? Harold Koh’s analysis is helpful: humanitarian intervention is justified when “a Security Council resolution were not available because of persistent veto.” The “nations that had persistently sought Security Council action . . . would not violate U.N. Charter Article 2(4) if they used (3) limited force for genuinely humanitarian purposes that was necessary and proportionate to address the imminent threat, would demonstrably improve the humanitarian situation, and would terminate as soon as the threat abated.”

Had the Trump administration taken the time to gather some allies behind this action, and even sought Security Council action that Russia was forced to veto, then few would dispute the legality of these airstrikes. Mechanisms of diplomacy and multilateralism were far from exhausted before force was unilaterally deployed. By all appearances, the president seems much more invested in contrasting his swift deployment of force against his predecessor’s professorial second-guessing.

Even so, and with no knowledge or desire of doing so, Trump may have created a precedent that will encourage allies alarmed by his raving incompetence to fill the gap between Security Council action and complete inaction. One might even hope that the equal alarm raised by Putin’s consistently outlandish behavior could lead to reform of the veto power granted to the Security Council’s permanent members.

Using chemical weapons is a violation of a fundamental principle of international law, or jus cogens norm: it is illegal always and everywhere, regardless of whether a nation is a party to the Chemical Weapons Convention (nearly all nations are anyway, including Syria, which ratified in 2013). If jus cogens norms are to mean anything, then they must supersede sovereign interests. Allowing Russia persistently to use its veto power on the Security Council to block international action against the Assad regime certainly does not answer that demand. The kind of presidential gun-blazing that is perfectly legal under American law also does not answer that demand. But the April 6 airstrikes in Syria will be a good thing if they lead in the long run toward an embrace of the following principles (on which I differ from Koh slightly in emphasizing that any crime against humanity should trigger international response, and that such a response need not entail the use of force):

• If a state or non-state actor is guilty of widespread or systematic attack against a civilian population, and
• if that actor is unwilling or unable to reverse and remedy its actions, and
• if a member of the United Nations Security Council persistently vetoes humanitarian response,
• then it is not a violation of the UN Charter for the member states that sought a resolution before the Security Council to engage in intervention, including but not necessarily entailing the use of force, of limited scope and duration to protect threatened civilian populations.

The April 6 airstrikes fall short of these principles. But if they move nations closer to them, then President Trump may have had a positive effect on international humanitarian law. Wouldn’t that be something?

Feisal G. Mohamed is a professor of English at the Graduate Center, CUNY. His latest book is Milton and the Post-Secular Present: Ethics, Politics, Terrorism. Follow him on Twitter @FGMohamed.