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Challenges to the Rule of Law in Times of Crisis Series: America strikes again - Thoughts on Biden’s first military airstrike in Syria

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A U.S. Air Force B-1B Lancer flies over northern Iraq after conducting air strikes in Syria against ISIL targets. Photo Credit: US Department of Defense, Public Domain.

This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.

America is back in business, and a significant part of its stock in trade is the use of military force. Syria knows as much after being hit by two consecutive administrations in the past four years. Whatever differences Donald Trump and Joe Biden may have in style, demeanour, rhetoric, and politics, when it comes to the use of force their international record so far looks very similar.

Although the US is not formally engaged in an international armed conflict with the state of Syria, over the last years it has deployed military personnel on Syrian territory to stave off the threat of ISIS, and reportedly also to provide a geopolitical counterweight against Russian presence in the region. Moreover, the US has carried out military airstrikes on Syrian territory, most notably in 2017, again in 2018 alongside European allies, and recently on 25 February 2021. Ironically, Trump’s strikes against the Syrian government in 2017 and 2018 were prompted by an ostensible humanitarian rhetoric that is absent in Biden’s justification for his recent decision to strike Iran-backed non-governmental militias operating in Syria.

Indeed, among other grounds such as self-defence and an alleged mandate by the international community, four years ago Trump famously invoked humanitarian concerns in light of the shock produced by the Syrian government’s use of chemical weapons against its own population. Conversely, no chemical weapons were involved this time, and Biden steered clear of such humanitarian rhetoric and stuck to the traditional right of self-defence under the UN Charter to address attacks against US and its allies in Iraq.

This recent strike has been met with immediate condemnation by international law experts, mainly on the grounds that the right of self-defence must be exercised – always in a necessary and proportionate manner – against an armed attack that has occurred, or that is imminent. Since Biden’s strike was carried out ten days after the events motivating it, this US extraterritorial response seems to be too late to qualify as self-defence against an ongoing or imminent threat. Rather, it has been decried as an act of armed reprisal, which is illegal under international law.

Many questions remain to be answered or at least discussed from an international law perspective, bearing on the proverbial who, when and what. These include the legality of the use of force by one single state with no mandate in lieu of the collective security system represented by the UN Security Council; the deterrence of future threats instead of responding to current or past attacks; and the possibility of considering a series of discrete but coherent actions, in this case by non-governmental actors, as a single armed attack under the ‘accumulation of events’ doctrine.

Alongside international law, legal experts have also reflected on the justification for this recent attack under US domestic law, especially considering that this time the battered Authorization for the Use of Military Force or ‘AUMF’ – passed by the US Congress in 2002, its use spanning over two decades of strikes against Iraq, ISIS, and Iranian official Qasem Soleimani – was left on the shelf. Instead, Biden claimed to have direct authority under the US Constitution to conduct the attack.

Thus, the picture legal experts have painted when analysing Biden’s debutant strike is one of plausible justification under domestic law, and of highly dubious lawfulness under international law.

But even if all lawyers agreed that the attack was illegal under both domestic and international law, is the legal rationale the only one we need to take into account to assess Biden’s first use of military force? Is there something else we might say from a moral perspective? Even notorious legal positivists admit there is always room for moral scrutiny beyond the law. This becomes particularly relevant when legal discourse is quickly exhausted, as it is often the case with the scant provisions of international law bearing on the use of force. What will we do when we label an act as illegal, and yet global powers continue to commit it? Will we surrender to the cynicism of realpolitik, or will we fall back to a broader normative language to keep our moral judgments on the ball?

In the case of the use of force between nations, the articulation of such moral enquiries has taken over the centuries the form of the ‘Just War’ tradition, which unfolds into two separate lines of inquiry: when is it justified to resort to armed force (jus ad bellum)? And, what is permitted and prohibited in the conduction of hostilities once the war has begun (jus in bello)? In recent years the discussion has branched out into new avenues, including jus post bellum and jus ad vim (from the Latin vim or ‘force’). The latter was first suggested by Michael Walzer in the preface to the 2006 fourth edition of his canonical Just and Unjust Wars. Reflecting on the controversial invasion of Iraq a few years before, Walzer wrote:

“the Iraqi case invites us to think about the use of force-short-of-war; the containment regime of 1991-2003 that the UN endorsed and the United States enforced is only one possible example of this use. (…) force-short-of-war obviously comes before war itself. The argument about jus ad bellum needs to be extended, therefore, to jus ad vim. We urgently need a theory of just and unjust uses of force. This shouldn’t be an overly tolerant or permissive theory, but it will certainly be more permissive than the theory of just and unjust war.” (p. xv)

And we may add, certainly more permissive than international law, which clearly prohibits any ‘use of force’ by states under article 2(4) of the UN Charter, with very few exceptions (i.e. self-defence and Security Council authorization). But as we saw, the law is not the only framework to analyse instances of the use of force, and some scholars have taken up Walzer’s challenge, laying the groundwork for a new theory of jus ad vim. Among such theorists we find Daniel Brunstetter and Megan Braun, who in 2013 published their influential article titled “From Jus ad Bellum to Jus ad Vim: Recalibrating Our Understanding of the Moral Use of Force.”

According to these authors under jus ad vim a just cause for using force is aggression, whether by states or non-state actors, warranting recourse to the right of self-defence. The use of force must be also proportional, a last resort, authorized by a legitimate authority, and carried out with the right intent (all traditional jus ad bellum criteria). The thrust of their argument is that the use of force must always reduce the probability of escalation. In other words, vim resulting in bellum evidences a failure in the application of the characteristically de-escalatory rationale underlying jus ad vim. As to international law, Brunstetter and Braun argue that jus ad vim should ideally be anchored in that normative regime, but if international law proves to be too narrow to respond to the needs of states, then it will have to evolve through customary law to mirror the evolution of our shared ethical judgments.

Based on the foregoing, can we say that the recent US airstrike in Syria satisfies jus ad vim? There might be some room to argue that US forces and allies were attacked in Iraq and, therefore, that the use of force-short-of-war in self-defence was warranted. And even if we were extremely generous as to concede that the other criteria of last resort, legitimate authority, and right intent were met, a considerable problem from the perspective of jus ad vim remains: however localized and discriminate, such attacks risked escalating hostilities in an already hot and unstable environment. And considering the heavy involvement of Russia in the Syrian quandary, the risk of escalation of the armed conflict to turn into a Cold War-style proxy war between the US (and its allies) and Russia (and its allies) must be an ever-present consideration in every policy decision made by the US, regardless of who sits in the Oval Office.

America is back in business, but for many it just feels like business as usual. Yet, this does not mean that the use of force can continue simply unchecked or that we should surrender to pure realism, for there is a full normative framework in place to assess the legality and morality of such acts under the principles of international law, jus ad bellum and jus ad vim. By using the legal view as a departure point for further moral discussion, the interplay between all these standards offers the potential to strengthen our convictions and hone our judgments about the use of force and war.

Challenges to the Rule of Law in Times of Crisis Series: Australia and the quest for accountability after the Brereton Report

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Trooper Douglas Birchall (Mornington, Victoria) looks back to his section commander while approaching an obstacle during a reconnaissance patrol with 2CAV in the Shoalwater Bay as part of Exercise Predator’s Strike in 2011. Photo Credit: Photo by Andrew Dakin, US Department of Defense, Public Domain

This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.

With the impending retreat of U.S. forces from Afghanistan after two decades of armed conflict, it is time to take stock of the legacy of this seemingly never-ending war. The conflict drove not just U.S. forces into the fray, but also an international coalition of forces under the mandate of the United Nations Security Council, which in 2001 established the International Security Assistance Force to combat global terrorism. Among these forces were Australian troops.

For the past years, the alarming rumours of alleged war crimes committed by Australian Special Forces deployed in Afghanistan, documented originally by Samantha Crompvoets, have been under investigation. The findings of this inquiry resulted in the Brereton Report, an official document released by Australian authorities on 19 December 2020. It was a day of reckoning for Australians, who were confronted with the terrible deeds of some of their most trusted and admired professionals – 39 unlawful killings and instances of cruel treatment between 2005 and 2016. In the words of Major General Brereton, Assistant Inspector-General of the Australian Defence Force and author of the Report: “We embarked on this inquiry with the hope that we would be able to report that the rumours of war crimes were without substance. None of us desired the outcome to which we have come. We are all diminished by it.” (Ch. 1.01, par. 83)

Yet, there are at least two ways in which the findings of the Brereton Report have actually diminished us all as humankind. In a moral sense, each of us will be moved by the compelling words written by the English poet John Donne in 1623: “Any man’s death diminishes me, because I am involved in Mankind.” In a political sense, as already pointed out, Australian and other foreign forces have been deployed in Afghanistan for the past two decades on behalf of the international community, complying with the United Nations mandate to stave off global terrorism. Therefore, the findings of the Brereton Report are arguably not solely the business of Australia, but of the international community as a whole.

As for its contents, the Report raises several significant normative issues, not least from a military professional ethics perspective, as well as from the standpoint of criminal law.

Concerning military professional ethics, the Report is rife with references to adequate standards that are deemed becoming of a member of a Special Forces unit and that were shamefully breached in Afghanistan. Moreover, the Report is unique as an official document in that it attaches an Annex specifically dealing with professional ethics. Indeed, Annex A to Chapter 3.03, titled “Special Operations Command: Leadership and Ethics Review,” was drafted by Prof. David Whetham, Director of the Centre for Military Ethics. King’s College London. Whetham’s conclusions are endorsed in the main body of the Report. In his judgment evidence strongly suggests that war crimes have been committed, and that soldiers who receive effective ethics education and training are less likely to commit such atrocities (par. 5). But training and educating are not enough, just as it is not enough to know the Law of Armed Conflict; according to Whetham: “Military ethics should be considered as a core competency that needs to be updated and refreshed if it is to be maintained” (par. 9).

He also points to a worrisome sense of exceptionalism among Special Forces (par. 22), as well as the development of a deleterious “warrior mentality,” as opposed to military professionalism (par. 29). Staggering behaviour was ultimately normalised as a result of this gradual erosion of professional standards (par. 65). An analogous sustained decline of professionalism has led to other dark passages in military history, such as the My Lai massacre, as pointed out by Philip McCormack.

Whetham’s final recommendations include more ethics education, espousing dissenting narratives among Special Forces that lead to healthy ethics discussions, and accountability for wrongdoing (pars. 68-73). Admittedly, much more research is needed in this area, and specialized literature on ethical standards tailored for Special Forces might ground further critical studies inspired by the findings of the Brereton Report.

As to legal accountability, it is worth mentioning that the released version of the Report is heavily redacted precisely because of potential criminal prosecutions that might ensue in the following years. In that sense, it is certainly salutary that a week before the Report was released, the Australian Prime Minister appointed a special investigator to look into possible criminal prosecutions under Australian law. Admittedly, the ‘culture of silence’ decried throughout the Report promises to pose a formidable challenge to such internal inquiries.

Still, since the misconduct of Australian forces are also the concern of the international community, the applicability of international criminal law is also worth considering. Some preliminary ideas in this regard have already been noted by Prof. Douglass Guilfoyle from the University of New South Wales. In his analysis, Guilfoyle raises a few interesting legal issues, such as the conceptual gap in command responsibility between Australian criminal law and the Rome Statute of the International Criminal Court (ICC). In a word, the standard of conviction for command responsibility is much lower in the Rome Statute than under Australian criminal law. Guilfoyle also flags the problem of the alleged complicity of military lawyers in the covering up of misconduct, a phenomenon that is gaining increasing interest.

There is another issue specifically concerning Australia-ICC relations that is not touched upon by Guilfoyle’s analysis: complementarity. Pursuant to the Rome Statute, the ICC is to operate in a complementary capacity whenever the domestic jurisdiction of states fails to prosecute international crimes (preamble, arts. 1, 17). It is in this subsidiary nature where lies the ultimate strength of the ICC to take root and flourish amidst the dense vegetation of the Westphalian system of sovereign states.

Now, complementarity can be either positive or negative. We talk of positive complementarity when the ICC renders assistance to a state for it to exercise its own criminal jurisdiction. Negative or ‘classical’ complementarity kicks in whenever the state is unwilling or unable to exercise its ius puniendi, under the conditions spelled out in art. 17 of the Rome Statute (for instance, if there is a failed state or mock trials are conducted).

It is worth noting that the Office of the Prosecutor (OTP) of the ICC is already conducting an investigation on possible war crimes and crimes against humanity perpetrated in Afghanistan, albeit at this stage the investigation refers only to actions by US personnel and Afghan nationals, and the Brereton Report styles itself a ‘significant obstacle’ to an ICC inquiry, precisely on complementarity grounds (Ch. 1.12, par. 51). Yet, there is no legal impediment for the OTP to expand the scope of its survey to include conducts detailed in the Brereton Report, as both Afghanistan and Australia are parties to the Rome Statute since 2003 and 2002, respectively.

Indeed, the spectre of international involvement looms large across the text of the Brereton Report, which is adamant in that there will be no need for the ICC to intervene at all since the Australian judiciary will mete out criminal punishment where it is deserved. Although the Report claims to be fulfilling Australia’s obligations as a party to the Rome Statute (Ch. 1.01, par. 80), it confidently states that the ICC “lacks jurisdiction” (Ch. 1.10, par. 43), and that there will be no extradition unless Australia’s Attorney-General deems the state has been unwilling or unable to prosecute (Ch. 1.10, par. 51). It further reads that “the only courts current or former Australian Defence Force members may face are those established by the laws of Australia” (Ch. 1.01, par. 81). One sentence therein strikes as particularly defensive: “The conduct of this Inquiry, and a domestic prosecution, or a considered and bona fide decision by Australian prosecutors not to prosecute, denies the International Criminal Court jurisdiction” (Ch. 1.10, Executive Summary, p. 264, emphasis added). Still, the Report concedes that ‘contested complementarity’ between the ICC and Australia remains a possibility (Ch. 1.10, par. 52), and it concludes on a more conciliatory note that: “so long as Australia can satisfy the ICC Office of the Prosecutor that it is making the requisite inquiries and taking appropriate consequential action, the jurisdiction of the ICC is not enlivened” (Ch. 1.10, par. 53).

To be sure, Australia is a country with a strong tradition in the rule of law, and Major General Brereton, who is a Justice of the New South Wales Court of Appeals, is a towering exemplar of such a laudable legacy. Yet, if Australians have discovered that even their most elite and professional state agents could engage in appalling acts, the logical possibility that its judiciary could also fail must at least be entertained. The ultimate test of negative complementarity should rest with the ICC, an institution envisaged to address injustice not only in Africa, but wherever it is committed.

It remains to be seen how the relationship between Australia and the ICC will unfold hereafter. Given that there is a functional and credible judicial system in place in the Oceanic country, it is conceivable that an ambiguous love-hate relation might develop whereby positive complementarity will be fostered under the threat of the Damocles sword of negative complementarity, as has been the case in Colombia. It is also certainly possible for the OTP to decide not to conduct a full investigation if the Australian legal system is working as expected for a state party to the Rome Statute, just as in the case of the UK regarding alleged crimes committed in Iraq.

Australia finally met its Abu Ghraib, its Baha Mousa, its Airborne Regiment, like the US, the UK, and Canada before it. The disgraceful events recounted in the Brereton Report will arguably damage Australia’s international reputation to an extent that remains to be seen in coming years. They may also deter Australia and other countries from engaging in international peace operations in the future.

This does not mean that war is hell and that there is nothing for it. There are rules that govern even the most brutal and trying of human experiences. This is what Just War thinkers mean by ‘war convention’. The important thing is that, whenever such rules are breached, institutional arrangements need to be in place to mete out justice, including penal measures, as appropriate. And among those arrangements, Australian authorities must not forget, there is a permanent International Criminal Court standing at the ready.

Storming the US Capitol: Time to Take Violence Seriously

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by Francisco Lobo

An explosion caused by a police munition at the Capitol Building, January 6. (SourceL REUTERS/Leah Millis)

On 6 January 2021 the unthinkable happened: for the first time since 1812, a violent mob stormed the US Capitol, seat of one of the oldest constitutional democracies in the world. It seems the first days of the new decade have carried on the same tumultuous spirit of previous years. Indeed, the 2010s will likely be remembered as one of the most politically agitated decades on record, encompassing the Arab Spring, the ‘Indignados’ in Spain , ‘Occupy Wall Street’ in the US, the ‘Gilet Jaunes’ in France, followed by pro-democracy protests in Hong Kong, and the street occupations in Lebanon, and Chile during the penultimate year of the decade. Now the dreaded backlash of the fraught US presidential elections, and arguably the legacy of four years of corrosive politics, has materialised. In light of all this, we should ask ourselves: will the 2020s become the new 1930s, notorious for its economic distress, social agitation and political violence?

There is always a risk of political protests turning violent, and, as a result, of meeting reciprocal, often greater, violence by governments. Many protest movements have held that, if it comes to it, they can and should wield violence to advance their agenda, because they are convinced that their cause is just. And this may very well be true, but do we really understand violence? And are we mindful of all of its potential consequences? Indeed, we need to take the problem of violence seriously if we are to avoid two perils that contribute to its perpetuation. Namely, a lack of understanding of the phenomenon of political violence, especially when compared to similar concepts, particularly injustice. And, a tendency to underestimate its potential consequences.

In her book On Violence, Arendt differentiates several concepts that are interconnected, including power, force and violence. For Arendt, ‘power’ means the human ability to act in political concert, whereas ‘force’ is the release of natural or physical energy. ‘Violence’, according to Arendt, is essentially an instrumental phenomenon aimed at accomplishing a given goal through the multiplication of human strength. To illustrate this, we can apply these categories to what happened at the US Capitol: whilst the legitimate representatives of the American people were in session exercising power to confirm the election of the new President, a mob of protesters assaulted the Capitol, the sheer force of their numbers being sufficient to overrun security and physically break into the building. But such force was an instrument put in the service of a political goal, that is, violence to challenge the results of the presidential elections with the aim of keeping Donald Trump in office.

This instrumental definition of violence is somewhat reminiscent of Clausewitz’s doctrine. In his canonical On War, Clausewitz describes war as merely the continuation of political intercourse. Thus, political violence – up to and including war – is not a sport, nor an end in itself, but an instrument to achieve specific purposes. The Prussian general also wrote on the ability of polemic violence to escalate: “war is an act of force, and there is no logical limit to the application of that force. Each side, therefore, compels its opponent to follow suit; a reciprocal action is started which must lead, in theory, to extremes.”

Armed with this conceptual framework, we can move now to the two main perils enclosed within political violence – its mischaracterisation and its capacity to escalate.

Understanding political violence

As to the first peril, it can be argued that the tendency to resort to violence (in the form of riots, rebellion, coups, etc.) in political protests is, in fact, a reaction to an economic, social, and political model that itself discriminates against the underprivileged. Feeling left out, the social status (or the lack thereof) of such groups can enrage those amongst the population who feel downtrodden and neglected by society, especially the young. In the words of Ted R. Gurr, reflecting on the Arab Spring movement: “the primal cause of virtually all protests has been the cumulation of economic and political grievances, especially among the rapidly growing population of city-dwelling youth, against corrupt and repressive regimes and their sclerotic leaders.” Such harsh and inequitable social conditions are sometimes labelled as ‘violent’. But can violence equal social injustice?

As already noted, Arendt understands violence as the instrumental use of force. Several other prominent thinkers link violence to force, including, Georges Sorel, who in 1908 advocated for the use of trade union violence to transform the bourgeois industrial society of his day; Simone Weil,, who during the Second World War wrote that violence is impossible to master, as it objectifies both the one who suffers it and the one who exerts it; and Michel Foucault, who suggested that war or social struggle is a permanent relationship throughout history. Admittedly, psychological violence understood as any intentional conduct that seriously impairs a person’s psychological integrity through coercion or threats may also be included within the extension of the concept of violence.

Still, the question remains: does injustice equal violence? The use of force can be characterised as either legal (e,g, an arrest by the police) or illegal (e.g. a murder); and as just (e.g. legitimate self-defence) or unjust (e.g. aggression against another country). It is usually legislative authorities that draw the line between what is legal and what is not. In the case of justice, it has been defined by John Rawls as the fair institutional distribution of freedoms and equal opportunities, which can be projected into the realm of international relations and be enforced through the use of legitimate political violence.

But there are injustices that may be done with or without violence, just as there is violence that can be just or unjust. Thus, the realms of injustice and violence do not always overlap. Not every injustice is violent, for it can also be veiled and operate quietly, such as happens with subtle forms of racism or sexism amounting to arbitrary discrimination. Conversely, not all violence is unjust, as argued in the Just War tradition in inter-state conflicts,[1] or whenever violence is used legitimately within a community, such as self-defence against violent assault. Although there is admittedly infinite room for debate on these topics, the fact remains that injustice and violence do not always overlap.

The consequences of political violence

As for the second peril, we must never underestimate political violence and its ability to self-reproduce, escalate, and perpetuate itself, as Clausewitz warned us.

But how can we address this second peril? The formula that human communities have come up with to curtail the escalatory nature of violence has been, for the past five hundred years, the political construct known as the modern nation-state. One of its main features is, regardless of geographic location or historic development, is what Max Weber called “the monopoly of the legitimate use of physical force.”

What the collective construct of the public order often makes us forget is that, at the end of the day, said monopoly rests on only a few individuals vested with law enforcement powers, who in a modern society are vastly outnumbered, as we were graphically reminded by the events at the US Capitol on last 6 January. It is important to highlight here that the monopoly of violence in a state where the ‘rule of law’ exists looks very different to the same monopoly in a state that merely has ‘rule by law’, such as China. The rule of law guarantees the legal restraint of power to secure the rights and freedoms of people, while the rule by law only ensures state control to advance public policy regardless of rights.

The lesson to be drawn from a very tumultuous past decade is that violence remains a critical phenomenon in modern societies, one that is too readily applied whenever deemed necessary to advance a political agenda. But before resorting too hastily to violence it is of the utmost importance to understand its differences with other concepts, such as injustice; and to be aware of the unpredictability of its escalation. If we want to partake in a civilised society governed by the rule of law, we must abide by the standards that we have all agreed upon, including accepting defeat after submitting to the rules of an electoral procedure. What we witnessed on Capitol Hill in early January was not just the reaction of a group of sore losers, instigated by their disgruntled leader in the White House. It was a regrettable display of illegitimate violence to advance a lost cause.

The time has come to take violence seriously, lest it become our master instead of merely a tool of the legitimate rule of law. Let us hope that, despite recent events in the US Capitol, during the next decade a responsible understanding of the phenomenon of violence, without distorting its contours or idealising it, and mindful of the risks of its escalation, will lead us to preserve the legitimate institutions that we, as citizens of modern societies, have created to keep violence at bay in benefit of our own freedom.

 

[1] Michael Walzer, Just and Unjust Wars, 4th ed. (New York: Basic Books, 2006); Alex Bellamy, Just Wars (Cambridge: Polity, 2012).

Francisco Lobo (Doctoral Researcher, Department of War Studies, King’s College London. Member of the Society, Culture and Law Research Theme and the International Relations and Ethics Research Theme at KCL’s School of Security Studies. LLM in International Legal Studies, New York University. LLM and LLB, University of Chile. International Law and Legal Theory Lecturer)