Home Syria The Attack on Syria and the Contemporary Jus ad Bellum

The Attack on Syria and the Contemporary Jus ad Bellum

Published on April 15, 2018        Author: 


The April 2017 Incident







A Legal Precedent?






Appraising the 2018 Operation (and the Jus ad Bellum)








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Filed under: Syria, Use of Force

12 Responses

  1. The problem with this post can be encapsulated in this sentence: “And very few states were willing even to say that it was unlawful.” That may be true, but its importance is vastly outweighed by what Monica ignores: no state was willing to say that it was lawful, not even the state that engaged in it. Monica thus completely inverts the rule articulated in Nicaragua, arguing that a state that is trying to modify a customary rule has no duty to articulate the legal rationale behind its act (or even claim that the act was lawful), while states that oppose modification have a duty to condemn that act as unlawful. That is not how customary international law changes, for reasons Marko articulates beautifully above.

    This sentence, concerning the 2017 attack, also completely undermines Monica’s argument: “The reaction was meant to be fact-specific—to condone one operation, without purporting to apply or establish a standard of general applicability.” Differently put: states were not trying to articulate a new rule of customary international law, which is literally by definition “a standard of general applicability.” It is incoherent to argue that the 2017 attack was not designed to establish a legal rule but is still a precedent for the rule that the attack was not designed to establish. So once again the argument that the 2017 attack modified custom necessarily fails.

    The basic flaw with Monica’s argument is that she simply assumes states never use force knowing that neither the UN Charter nor customary international law permits them to do so. In her view, if states condoned the 2017 and 2018 attacks, that means they believed the attacks were lawful. (“In 2017 and today, the United States and other states that have supported it have made claims on the law. They have argued, if only implicitly, against the application of Article 2(4).”) It is that view that is not “how the jus ad bellum actually operates” — as the Kosovo example indicates with remarkable clarity.

  2. Alessandra Asteriti

    Great post, although I disagree both with premises and with conclusions drawn. But my question is whether you really do not envision any role at all for the jus cogens status of the prohibition against the use of force. Is it really a rule like any other, that can be displaced and modified just like any other rule of customary international law, in fact, even more so? Where even the random acts of an irresponsible, supremely ignorant and dangerously authoritarian president, effected without any attempt of legal justification, have the same value as thought-out policy backed by legal argument? I am sorry about going on about this, but the normalisation of the pathological cannot be allowed to stand.

  3. Hi Monica,

    I look forward to reading your article! In the meantime, it might be helpful to distinguish between two claims:

    A. These strikes violate the primary rules of international law. However, the international legal system is not exhausted by its primary rules. Decisions not to enforce the primary rules or “adjudicate” their violation may be politically motivated, but they are legal decisions (of a kind). Any description of international law that ignores these decisions, or dismisses them as merely political, is incomplete and misleading.
    B. Decisions not to enforce the primary rules or “adjudicate” their violation can modify the primary rules even if that is not the intent (stated or unstated) of the relevant decision-makers and even if the secondary rules of international law do not provide for this method of changing the primary rules.

    Claim A seems plausible enough. It’s claim B that gives me trouble. It’s not actually legal for police officers in the U.S. to kill unarmed African-American men who clearly pose no imminent threat to anyone. At the same time, any legal analysis of the use of deadly force by police officers that failed to mention patterns of non-enforcement would be deficient.

    That’s it. Enjoy your Sunday,


  4. […] muss die britische Position ernst genommen werden. In ihr liegt eine Rechtsbehauptung. Sie zielt auf eine Veränderung des […]

  5. Monica Hakimi

    Thanks to all of you for your comments.

    Kevin, Marko, and many of my other critics are mostly arguing past me. I agree with them that the strikes against Syria did not satisfy the formal legal doctrine on the use of force. By this I mean (and I take them to mean) that the operation was inconsistent with Article 2(4) and did not satisfy any of the accepted exceptions to 2(4).

    Likewise, we agree that (with the exception of the UK) the states that conducted or supported this operation do not want to change the doctrine. Even if they do, they almost certainly have not done enough to institute a change. In other words, they haven’t created a new, generally applicable exception to 2(4). Kevin, you seem to misread me on this point. I’m not arguing that the doctrine is or is becoming other than what you say.

    (As an aside, to answer Allessandra’s question: one reason the doctrine is fairly resistant to change — and can withstand operations like this one — is that the jus cogens principle provides a stop-gap. So, that’s part of the work that I think jus cogens is doing.)

    For my critics, all of this means that states are acting outside of and in contempt of the law. In other words, they posit that the doctrine alone defines the law and that any act that is inconsistent with it is unlawful — end stop. Their approach is not necessarily wrong, but it reflects a very cramped vision of what law (and particularly, of what the jus ad bellum) is. So, it doesn’t help us understand how the law, which is not just a set of rules but rather a complicated social phenomenon, is playing out.

    Adil’s Option (A) gets at what I’m saying: when we ask, “what is the law?” we want to know more than just “how would an international court adjudicate whether this conduct is wrongful?” We want to know how the full range of politically relevant actors engage with the law when deciding whether to conduct, support, tolerate, or condemn the conduct. To what extent will they use legal language to legitimize or delegitimize it? In what arenas, if any, will they try to enforce their claims on the law? Will they publicly justify their conduct in terms that purport to reflect only to their own interests but the interests of the broader group? What institutions and processes will they use? And so on.

    The doctrine alone is insufficient answer these questions. Worse, relying entirely on it will often be misleading and obscurant. It will suggest that the answers to those questions should be one thing, when in fact states themselves act like it is something else. And then, having defined the law in such a cramped way, my critics cannot help but to conclude that it is entirely irrelevant — that states are acting in disregard of it. Of course, they sometimes do. I’m not saying (per Kevin) that states never intentionally violate the jus ad bellum. I’m just saying that the claim of “clear illegality” doesn’t fully capture how they are engaging with the law in this case.

  6. This piece and the responses to it seem to me to perfectly illustrate the longstanding divide between American legal realism and European legal formalism. And Monica is right that the sides do often talk past each other. As a formalist myself, this piece makes my bones hurt. That’s no slight on the quality of the piece, it just means that I view international law very differently than Monica, and it’s difficult to get past those very different initial operating assumptions to have a meaningful exchange. Somewhere Anthea Roberts is selling a few more copies of her book because of this exchange.

  7. Dan Joyner Dan Joyner

    Hi Monica,
    You mentioned on Twitter that you “resist” the label of legal realist. I certainly meant it here not as an insult, but as a collegial observation. And labels are dangerous and imprecise, it’s true. They frequently don’t do justice to the nuance of one’s position. But you say in your piece that you are making an “analytic argument about how the jus ad bellum works.” This of course raises the question of what the jus ad bellum is. You write that “The jus ad bellum consists of more than just the doctrinal standards. It consists of a broader set of social institutions, practices, and expectations.” This is, of course, where there is a pretty clean break from formalism in your analysis. To me, what you are examining in this piece is not in fact how the jus ad bellum works, because I do think that the jus ad bellum is essentially circumscribed by the formal doctrines and principles of international law, and I don’t include within that definition “social institutions, practices, and expectations.” So to me, what you are analyzing in this piece is not the question of how the jus ad bellum works, but rather the questions of how and why certain states have acted, and how relevant if at all the jus ad bellum, as an independent variable, was to those actions. To me this is a perfectly plausible IR theory question to ask. But it’s not essentially a legal question. And this is why I thought using the term “realist” might be parsimonious in describing your position, because looking at international law through the lens of international relations theory is a well-established element of American legal realism. Again, none of this is meant as a criticism of your analysis within, as I see it, its proper IR context. It’s simply an observation that to me, as a legal formalist, your analysis is not actually about how the law works internally, but rather about how states act externally relative to the law.
    Best wishes,

  8. Dan, another binary that describes the difference you touch upon is the occupational divide between legal practice and legal scholarship. The practitioner, typically, wants to know how the law works in order to assess risk and offer advice. The scholar, typically, wants to know what the law is. Both deal with legal questions: one from a factual perspective, the other from a normative one.

    Before anyone objects: yes, these are merely stereotypes with all their limitations, but also, I think, their grain of truth.

  9. Monica Hakimi

    Thanks, Dan. That all makes sense. And don’t worry; I didn’t really take the “realist” label as an insult. I just don’t think it captures what I’m up to. I associate realism with the view that law is irrelevant to decisionmaking or a smokescreen for background policy preferences. But I’m one of the few people who’s saying that, in this case, states acted like international law mattered and had independent normative force. Almost everyone else seems to think it was irrelevant.

    Also, for what it’s worth: I think the questions I’m asking are quintessentially legal questions. At least, they’re questions that practicing lawyers (including in national legal systems) have to think about and answer all the time. I get that others define the law and the role of lawyers more narrowly. One has to ask why. The usual answer — that law and politics must be separate enterprises so that law is not infected by politics — does not work for the jus ad bellum. In this area, law and politics have always been, are now, and will for the foreseeable future be interconnected. Pretending that they are separate, even when they are not, does not, in my view, help preserve the law. It relegates it to oblivion.

    Anyway, thanks for clarifying your point and engaging with me!


  10. Marko Milanovic Marko Milanovic

    Hi Monica,

    Just a couple of points:

    (1) I don’t think the divide here is between those of us who think the law is separate from politics, and those who think the two are intertwined. I at least fully agree with the latter position. It is just that law has to be DISTINCT, in some way, from politics, even if it is not entirely separate from it. There has to be something we as international lawyers do that is different from those who practice politics, a value that we add. And that value is arguing out of rules and principles of a general applicability, which are not contingent on the exceptional facts of any given case, and doing so in a particular formalized fashion. Much in the same way as a constitutional lawyer does something distinctive from domestic politics, but not entirely separate from it. One problem with these specific Syrian strikes is precisely in the failure of two of the intervening states to articulate any legal argument, with a minimum level of formality.

    (2) This does not mean, however, that international law was irrelevant for these states. On the contrary – it was very relevant, and it mattered; even their silences were shaped by it. It’s just that they decided to breach the law, for reasons which are understandable or not, and also decided not to try to modify the law for the future, which is why they decided (the UK aside) not to articulate a legal argument. In other words, they thought that the law was good, fit for purpose, but that this was an aberrant situation which justified a departure from it. Again, one can agree with that assessment or not (I don’t), but that doesn’t mean the law did not matter. That the law was breached does not mean that it was not relevant.

  11. […] receiving acceptance. Almost exactly a year ago, the United States engaged in similar action with similar global reactions.  And interestingly, parallels exist between the UK case for the missile strikes […]

  12. Monica Hakimi

    Well hello, Marko! Thanks for coming to “my” comments section 🙂

    I agree that one of the defining features of law is that it purports to speak on behalf of a governed group, by reference to general principles.

    Here’s where we might disagree:

    (1) For me, the principles can be generalizable (and legal), even if they are not articulated as concrete standards that control future cases. They can be varied and competing, such that they require case-specific balancing and the exercise of discretion. Here, law takes the form of a series of fact-specific decisions. Any particular decision is “legal” in part because it purports to represent the interests of the group; it is justified by reference to a mix of principles that are generalizable for the group.

    (2) I think many states that conducted and supported the Syria operation made that kind of decision. They implicitly acknowledged that the decision was contrary to one legal principle (the requirement of SC authorization), but they claimed that it was justifiable in the service of others (e.g., the prohibition of chemical weapons and Charter objectives). So, I think they made legal decisions.

    (3) If I understand you correctly, you’re saying that law was relevant because it affected how states talked about the decisions that they made for external, moral or policy reasons. I think law did more than that. For example, I think it helped them justify and therefore legitimize the decision to use force (e.g., by reference to the prohibition on chems). It also gave them reason to go to the Security Council and build a case for the operation. For me, the way they used law suggests that they weren’t just acting in breach of it. They were doing something a bit more complicated than that.