Victor Kattan : Opinion How Obama's Lawyers Gave John Bolton the Keys to Armageddon
There has been too little discussion in the U.S. about the legality, under international law, of President Donald Trump’s decision to fire Tomahawk and 19 JASSM cruise missiles at suspected Syrian chemical weapons facilities last weekend.
Only the UK offered a clear and explicit legal justification for its actions - even if most international lawyers think it is "significantly flawed." The
U.S. and France appeared to argue that Syria’s violations of
international law, through the repeated use of chemical weapons, were so
self-evidently wrong that it ipso factogave these countries a right to use force against Syria.
In the opinion
of U.S. Ambassador to the UN Nikki Haley, the U.S. had to hold "the
Syrian regime responsible for its atrocities against humanity."
Lawyers
will search in vain for references to the UN Charter in the arguments
advanced by the US, the UK, and France in justifying their strikes in
Syria.
As expected, the UK invoked the doctrine of "humanitarian intervention" under customary international law, as it did in 2013,
before Parliament blocked military action. Customary international law
is habitually invoked by international lawyers when they know that they
do not have a legal argument to make under the UN Charter.
Although one of the purposes of the UN is to
promote and encourage respect for human rights and fundamental freedoms,
the Charter does not give states a right to use force to ensure respect
for these rights without authorisation from the UN Security Council.
The lack of reference to the UN Charter is not
that surprising. Government lawyers in the U.S., the UK, and France,
have been repeatedly side-lining the Charter to justify their military
interventions since the end of the Cold War.
The danger this time around is that these states may have corroded the UN Charter beyond repair. Only Russia and China referred to the UN Charter in their categorical condemnations of the strikes.
Russian President Vladimir Putin told
Russia Today that the strikes were not only carried out “in violation
of the UN Charter and principles of international law.” He also warned
that the current escalation of the Syrian crisis was having "a
devastating impact on the whole system of international relations.”
For
international lawyers this is a very sorry state of affairs. It is as
though references to the UN Charter have become the refuge of tyrants.
The
view that the UN Charter and whole system of international relations is
under threat from repeated unlawful uses of force is not new. Thomas
Franck made the argument over 40 years ago. He repeated it after the Iraq fiasco. But I think his argument may have been precipitate.
For example, lawyers argued ad nauseamabout the legality of the invasion of Iraq, as the hundreds of pages of the UK’s Chilcot Inquiry
attest. Then government lawyers acted as handmaidens to power when they
fixed law around policy and made grandiose claims in the National Security Strategy of the United States of America (2002) in the lead up to the invasion.
But they did not try to rewrite the rules. That came later.
After
the invasion of Iraq, and in view of all of the criticisms levelled at
the U.S. and the UK, in respect of the legal advicethat was advanced
justifying the invasion, it was felt that a more concerted effort was
needed to make international law more relevant for the modern world.
Three
events had contributed to the view that international law needed
reform. The first was the Rwandan genocide. The second was Srebrenica.
The third was 9/11.
With
regard to the massive human rights violations in Rwanda and Bosnia it
was felt that the UN had done too little to stop these atrocities. After
the 9/11 attacks, it was thought that politicians were not taking
international lawyers seriously when they insisted that a proper reading
of the UN Charter required states to take a hit before they could take
action in self-defense.
The
UN Charter had been drafted for a very different world, when the
domestic jurisdiction clause in Article 2 (7) of the Charter was added
to prevent criticisms of colonialism and the racial policies of South
Africa and the U.S.
But
times have changed, and today the UN Charter is being used as a shield
by authoritarian regimes to commit massive human rights violations
against their own citizens, and by those states that provide sanctuary
to violent nonstate actors committed to carrying out terrorist attacks
against the West.
Things
got out of hand in Iraq when dubious claims were advanced in order to
justify regime change in that country – a flagrant violation of
international law.
Ironically, the lesson from Iraq was not "never
again." Rather, government lawyers set about establishing new rules that
would allow states to take into account the threats from weapons of
mass destruction in their assessments of when they could take measures
in self-defense.
The
International Commission on Intervention and State Sovereignty (2001)
had also made new arguments about when states could take measures in
response to massive human rights violations when the states responsible
for these violations were unable or unwilling to put a stop to them –
although the Commission did not go as far as British lawyers in calling
for action without authorisation from the Security Council when they
justified the NATO intervention in Kosovo.
"Flexibility" became the buzz word. The aim was to make law "policy relevant."
But
the danger was that by making law policy relevant, the lawyers may have
inadvertently made themselves irrelevant, as politicians - many of whom
are also lawyers - began replacing legal advisers as the ultimate
arbiters of what is lawful, and not only what is wise or just or
strategic.
Consider President Trump’s pick for National Security Advisor: uber-hawk John Bolton
– who is also an attorney who has written widely on international law
and international affairs. Bolton has repeatedly argued that Iran and
North Korea pose imminent threats to global security that necessitate
the preventive use of military force.
In
the case of Iran, Bolton’s argument is based on the same rationale that
led the U.S. to strike Syria’s chemical weapons facilities. In his
article in The New York Times, "To Stop Iran's Bomb, Bomb Iran,"
published in 2015, Bolton called on the U.S. to render inoperable the
Natanz and Fordow uranium-enrichment installations, the Arak heavy-water
production facility, and the uranium-conversion facility at Isfahan in a
preemptive strike. He wrote that an attack need not destroy all of
Iran’s nuclear infrastructure, just set it back a few years
He did not mention the UN Charter or offer a
legal rationale to support his argument, but he did cite as
"precedents," Israel’s preventive strike on Saddam Hussein’s nuclear
reactor in 1981, and Israel’s preventive strike on Bashar Assad’s "top-secret" nuclear reactor in 2007.
All
the U.S. has done in Trump’s recent missile strike is to replace the
target. Instead of striking Iran’s nuclear facilities, it struck Syria’s
chemical weapons facilities.
The message to the Ayatollahs could not be clearer: the strikes on Syria are a dress rehearsal for future strikes on Iran.
In
other words, the latest strikes on Syria were not about the appalling
human rights violations in that country, whatever British Prime Minister
Teresa May said in Parliament:
it was a rap on the knuckles that sent a warning to Iran and North
Korea (and also in May’s case to Russia in response to the attempt to
kill former KGB agent Sergei Skripal with a deadly nerve agent in
Salisbury).
Even more concerning, perhaps, was Bolton’s justification for an imminent strike on North Korea’s nuclear weapons program, when he cited the same legal authority
that Bush administration lawyers had cited to justify the invasion of
Iraq. In an article he wrote earlier this year for The Wall Street
Journal, Bolton cited the nineteenth century Caroline "case" that most people will have never heard of (outside the community of international lawyers).
Again, Bolton made no reference to the UN Charter.
The
failure of Bolton to mention the UN Charter and his decision to cite
the same legal authority that justified the invasion of Iraq, one of the
most disastrous foreign policy blunders of the twenty-first century,
should be a cause of concern. How did it come to this?
During the Obama administration lawyers came up with increasingly strained readings of the UN Charter by drafting their own rules
to provide "authoritative" guidance for when states could employ force
in preemptive self-defence. The development of new technologies such as
weaponised UAVs or ‘drones’ was one reason they felt new rules were
necessary.
It was thought new rules developed by those
states that were leading the development of these advanced weapons
systems, including unmanned fighter aircraft, would give them a head start over their rivals and, in time, provide a global legal standard.
Controversially, the lawyers that drafted these rules decided to revisit and resurrect the Bush doctrine even though it had been widely criticized in the UN Report of the High-level Panel on Threats, Challenges and Change in 2004.
Although
they admitted that mistakes had been made in Iraq, they did not take
the UN’s criticisms seriously. They still believed that the legal
rationale behind the Bush doctrine was solid.
And
this was a view that was held by both Bush and Obama administration
lawyers. As John Bellinger III, the Legal Adviser to the National
Security Council at the White House (2001-2005), and the Legal Adviser
to the State Department (2005-2009), wrote in The New York Times in 2010, there was going to be "more continuity than change" in the Obama administration.
Government
lawyers in both the Bush and Obama administration continued to press
for employing new language that would redefine the meaning of an
imminent threat in a way that did not focus on the temporality of an
incipient or incoming attack but reflected the wider circumstances of
the threat.
The
threats were never defined, but were understood to include threats from
nonstate actors, from states with weapons of mass destruction, and from
cyber-attacks. It was argued that an imminent threat of these sorts
would provide a plausible legal argument for states to take military
action without authorization from the Security Council and without
having to suffer an armed attack – as the language of Article 51 of the Charter appeared to suggest.
In other words, never mind the UN Charter. Come what may the U.S. and the UK could strike first so long as the threat of an attack was "imminent."
The authors of these "rules" did not consult
lawyers who disagreed with them. They did not, heaven forbid, consult
Russia or China. Nor did they consult the nations of Africa or Asia that
almost always oppose the claims of the U.S., the UK, and France to act
as the moral wardens of the international liberal order.
In 2017, the U.S. and the UK were joined by Australia in calling for a new definition of an imminent threat, when George Brandis, the Attorney General, announced that Australia would take action in self-defense in response to imminent threats of attack.
While
Australia and the UK have been careful to condition their definition of
an imminent threat to credible and concrete information of an
imminent attack, it is not clear whether this view is shared by Bolton
who, judging from his writings, would appear to be willing to employ
force against threatsthat are more remote.
The
intention to draft new guidelines was noble. Greater clarity about
rules is a good thing. But the strategy may have backfired, as the
proliferation of guidelines and rules has sowed confusion.
We
now have a situation where the permanent members of the Security
Council can no longer agree on the basic rules of international
law within the Council’s core field of activity concerning the
maintenance of international peace and security.
The
danger is not when lawyers argue about law or even when the lawyers are
ignored by politicians; at least there is a standard by which these
politicians can be judged, and perhaps even held to account, when the
dust has settled. The danger is when nobody can agree on what the law
is.
Perhaps
the lawyers back in the Obama days did not want to be left out of the
decision-making process. They may have thought it would be safer to have
a lawyer present in the Situation Room with the President, the National
Security Advisor, and the Chiefs of Staff. Perhaps they thought they
were just doing what good lawyers always do, which is to please their
clients.
Of
course they could never have imagined in the "halcyon days" of
President Obama that one day Donald Trump would become their client and
their commander in chief. Nor could they have imagined that John Bolton
would be ensconced in the West Wing whispering in his ear.
Victor
Kattan is Senior Research Fellow at the Middle East Institute of the
National University of Singapore (NUS) and an Associate Fellow at NUS
Law. Twitter: @VictorKattan
Victor Kattan
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