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Can the United States Violently Punish the Assad Regime? Competing Visions (Including That of Anthony D’Amato) of the Applicable International Law

Published online by Cambridge University Press:  20 January 2017

Tom Farer
Tom Farer*
Affiliation:
Of the Board of Editors
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Extract

A regime’s pitiless slaughter of civilians, particularly in an urbanized middle-class country close to Europe, drives segments of the public on both sides of the left-right divide to demand that something be done to quell the killing. When, as in the case of Syria, the regime cannot be shamed, has financial and materiel reserves and backup funding and troops from powerful allies, and has no higher ideal than self-preservation—when, in other words, it is immune to diplomatic and economic pressure—demands for responsive action quickly translate into demands for the use of force, whether direct or by proxy. and because in these enlightened times the projection of force across national borders is widely felt to be legally problematic, determining an appropriate reaction to the slaughter becomes a task for lawyers, no less than strategists.

Type
Agora: Reflections on Anthony D’Amato’s “Groundwork for International Law”
Information
American Journal of International Law , Volume 108 , Issue 4 , October 2014 , pp. 701 - 715
Copyright
Copyright © American Society of International Law 2014

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References

1 D’Amato, Anthony, Groundwork for International Law, 108 AJIL 650 (2014)Google Scholar.

2 Cole, David, Syria: the New Turn, N.Y. Rev. Books, Oct. 24, 2013, at 16 Google Scholar.

3 Howse, Robert & Teitel, Ruti, Why Attack Syria?, Project Syndicate (Sept. 4, 2013), at http://www.project-syndicate.org/commentary/humanitarian-versus-punitive-purposes-in-military-interventions-by-robert-howse-and-ruti-teitel Google Scholar.

4 Id.

5 See, e.g., Falk, Richard A., Kosovo, World Order and the Future of International Law, 93 AJIL 847, 852 (1999)CrossRefGoogle Scholar (“There is no ultraliteralistic reading of the Charter provisions that does not strain credulity as to the intentions of the founders of the United Nations. The basic undertaking of the Charter was to assign exclusive control over non defensive uses of force to the Security Council, and to accept the limits on response that this entailed. .. .”); Hathaway, Oona & Shapiro, Scott, On Syria, a U.N. Vote Isn’t Optional, N.Y. Times, Sept. 3, 2013, at A23 Google Scholar; Bethlehem, Daniel, Stepping Back a Moment—The Legal Basis in Favour of a Principle of Humanitarian Intervention, Ejil: Talk! (Sept. 12, 2013), at http://www.ejiltalk.org/stepping-back-a-moment-the-legal-basis-in-favour-of-a-principle-of-humanitarian-intervention Google Scholar.

6 See Anderson, Kenneth, Legality of Intervention in Syria in Response to Chemical Weapons Attacks, Asil Insights (Aug. 30, 2013), at http://www.asil.org/insights/volume/17/issue/21/legality-intervention-syria-response-chemical-weapon-attacks Google Scholar.

7 Id.

8 Vienna Convention on the Law of Treaties, Art. 32, opened for signature May 23, 1969, 1155 UNTS 331.

9 That overlap, however, is also true of scholars of the Yale School, like W. Michael Reisman, who reside happily beyond the frontiers of formalism. See infra part III.

10 McDougal, Myres, The Soviet-Cuban Quarantine and Self-Defense, 57 AJIL 597 (1963)CrossRefGoogle Scholar. Despite the Cuban regime regarding Soviet missiles in Cuba as the only way to guarantee its survival in the face of a demonstrated U.S. desire to effect its replacement and the Soviet regime feeling itself vulnerable to a disarming first strike by the overwhelmingly superior U.S. intercontinental missile force, McDougal argued that in threatening the use of force the United States was plainly acting in self-defense within the terms of the Charter. Id. at 603.

11 Hans Kelsen, the Law of the United Nations: A Critical Analysis of Its Fundamental Problems 797 (1951).

12 UN Charter, Art. 51.

13 Scholarly dispute about the U.S. invasion of Iraq in 2003 and more generally about the Bush doctrine of preemptive war against terrorism centered around Bush’s elastic use of the word preemptive, not on whether preemption was ever lawful.

14 Anderson, supra note 6 (emphasis added).

15 “Both approaches are contested but plausible understandings of international law, each with long pedigrees and no easy way of reconciling their fundamentally different approaches.” Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Henkin, Louis, Kosovo and the Law of “Humanitarian Intervention, “ 93 AJIL 824, 826 –28 (1999)CrossRefGoogle Scholar.

21 Id. at 828.

22 Independent International Commission on Kosovo, the Kosovo Report: Conflict, International Response, Lessons Learned (Oct. 19, 2000), available at http://reliefweb.int/sites/reliefweb.int/files/resources/F62789D9FCC56FB3C1256C1700303E3B-thekosovoreport.htm.

23 Anderson, supra note 6.

24 See id.

25 See, e.g., Oscar Schachter, International Law in Theory and Practice 126 (1991) (“I believe it is highly undesirable to have a new rule allowing humanitarian intervention, for that could provide a pretext for abusive intervention. It would be better to acquiesce in a violation that is considered necessary and desirable in the particular circumstances than to adopt a principle that would open a wide gap in the barrier against unilateral use of force.”).

26 See UN Charter, Art. 27(3).

27 Anderson, supra note 6.

28 Id.

29 Id.

30 Id.

31 D’Amato, supra note 1, at 651–52 (“It resembles a biological system that has evolved over time.”).

32 Id. at 650

33 Id. (“[I]ts rules, in turn, affect diplomatic strategy.”). In this formulation, he presumably uses “rules” as shorthand for rules, principles, duties, etc.

34 Id. at 652 (formatting adjusted).

35 Id. at 653.

36 Id. at 654.

37 Id. at 653 (footnote omitted).

38 Id. at 652.

39 See, e.g., Slaughter, Anne-Marie, International Relations, Principal Theories, in Maxplanck Encyclopedia of Public International Law 129 (Wolfrum, Ródiger ed., 2012), available at http://www.princeton.edu/~slaughtr/articles.html Google Scholar; Mearsheimer, John, Realism, the Real World and the Academy, in Realism and Institutionalism in International Studies 23 (Brecher, Michael & Harvey, Frank P. eds., 2002), available at http://mearsheimer.uchicago.edu/all-pubs.html Google Scholar; Grieco, Joseph, Anarchy and the Limits of Cooperation: A Realist Critique of the Newest Liberal Institutionalism, 42 Int’l Org. 485 (1988)CrossRefGoogle Scholar.

40 D’Amato, supra note 1, at 658

41 Id. at 653.

42 Surely, the condemnation and the suspension of technical assistance embody a “sanction.” See Military Attack on Iraqi Nuclear Research Centre and Its Implications for the Agency, paras.1, 4, IAEA Doc. GC(XXV)/643(June 30, 1981), available at http://www.iaea.org/About/Policy/GC/GC25/GC25Documents/English/gc25-643_en.pdf (text of a resolution adopted by the Board of Governors on June 12, 1981).

43 Steele, Jonathan, The Bush Doctrine Makes Nonsense of the UN Charter, Guardian, June 6, 2002, at 18, available at http://www.theguardian.com/politics/2002/jun/07/britainand911.usa Google Scholar.

44 D’Amato, supra note 1, at 662–63.

45 Id. at 670

46 Id. at 669 (footnote omitted).

47 Id.

48 For a more detailed discussion, see Farer, Tom, Syria: the Case for Staggered Decapitation, in The Syria Dilemma 131 (Hashemi, Nader & Postel, Danny eds., 2013)Google Scholar.

49 D’Amato, supra note 1, at 669.

50 See, e.g., Harold D. Lasswell & Myress. Mcdougal, Jurisprudence for A Free Society (1992); Myres S. Mcdougal, Studies in World Public Order (1960).

51 Wiessner, Siegfried & Willard, Andrew, Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, in The Methods of International Law 47, 53 (Ratner, Steven & Slaughter, Anne-Marie eds., 2004)Google Scholar.

52 Reisman, W. Michael, Unilateral Action and the Transformations of the World Constitutive Process: the Special Problem of Humanitarian Intervention, 11 Eur. J. Int’l L. 3, 9 (2000)CrossRefGoogle Scholar; Falk, Richard A., The Beirut Raid and the International Law of Retaliation, 63 AJIL 415, 429–30 (1969)CrossRefGoogle Scholar.

53 Reisman, supra note 52, at 13.

54 National NGOs dedicated to the protection of human rights within their respective countries also have proliferated with the spread of education and the growth of the middle classes. Although, like their U.S. counterpart the American Civil Liberties Union (ACLU), they are primarily concerned with protecting human rights at the national level, they help to focus the concern of and provide essential evidence to Western-based NGOs with trans national mandates.

55 Reisman, however, attributes the leap to prominence of human rights discourse primarily to “the agitation and growing influence of non-governmental participants in the expanded international decision process.” Reisman, supra note 52, at 14.

56 Reisman, W. Michael, NATO’s Kosovo Intervention: Kosovo’s Antinomies, 93 AJIL 860, 862 (1999)CrossRefGoogle Scholar.

57 Id. at 861. UN Charter Article 2(4) provides: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

58 Reisman, supra note 56, at 861. According to D’Amato, no alteration was needed in order to shrink the phrase’s constraint on unilateral intervention.

59 Reisman, supra note 52, at 14.

60 Reisman, supra note 56, at 862.

61 Falk, supra note 52, at 429–30 (footnotes omitted).

62 Falk, supra note 5, at 856. But see id. at 853 (“It is correct that normal textual readings [preclude humanitarian intervention]. Yet it is equally true that to regard the textual barriers to humanitarian intervention as decisive in the face of genocidal behavior is politically and morally unacceptable, especially in view of the qualifications imposed on unconditional claims of sovereignty by the expanded conception of international human rights.”).

63 Falk, supra note 52, at 422.

64 Id. at 430, 443.

65 Id. at 441– 42.

66 Reisman, supra note 56, at 862.

67 The parameters were (1) extreme gravity of the human rights situation, (2) collective humanitarian action, (3) prior security Council unavailability, and (4) subsequent Council monitoring. Henkin, supra note 20, at 826.

68 But See Falk, supra note 52, at 442 (“Given the present character of international legal order, the essence of law consists of an interactive process of communication among governments and between governments and international institutions as to the character of acceptable behavior. The more this communication is premised upon a consensus as to relevant considerations and the more it reflects the dominance of objective over subjective factors, the more plausible it becomes to say that international law is playing a significant role.”).

69 Koh, Harold Hongju, Syria and the Law of Humanitarian Intervention: Part II: International Law and the Way Forward, EJIL: TALK! (Oct. 4, 2013), at http://www.ejiltalk.org/syria-and-the-law-of-humanitarian-intervention-part-ii-international-law-and-the-way-forward.Google Scholar

70 Id.