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President Joe Biden

If America is back, the EU must look forward

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Rock Cohen / NATO EUFOR ceremony 31-MARCH-2003 / Licensed under Creative Commons

The role of military force as a deterrent necessitates a forward-looking strategy that breaks free from the logic of legislating for the last crisis.

‘America is back’.

Joe Biden’s tweet on November 24th was meant to symbolise a return to the multilateral system – with the US in the driving seat – on issues ranging from climate change to defence cooperation. The sentiment was hammered home by his speech at the Munich Security Conference, touting the commitment of the US to the western alliance system. His most recent actions – notably signalling a willingness to enter negotiations with Iran brokered by the EU – support the idea of a normalisation of the transatlantic relationship, not least through a diplomatic charm offensive coinciding with the G7 summit.

However, despite the defeat of Trump, the transatlantic military relationship is beset by the legacy of four years of tense relations and is undermined by scepticism about the usefulness of NATO in the 21st century. Media narratives surrounding the willingness of the USA to go to war over the territorial integrity of far-flung countries like Latvia are symbolic of a loss of trust in the ability of NATO to deter military aggression. This is only amplified by long-standing demands for Europeans to shoulder the burden by spending 2% of GDP on defence and Macron’s comments about NATO’s ‘brain death’.

With a resurgent Russia and ascending China, navigating the current global order requires greater transatlantic cooperation – perhaps more than ever before. Yet, the west’s response to threats ranging from increasing Chinese assertiveness in the South China Sea to Russian aggression in Ukraine and disinformation campaigns throughout Europe risks being stunted by divisions stemming from a security architecture built for the Cold War.

An EU Army?

One way to strengthen European military capacity and potentially rekindle transatlantic cooperation is to create an EU army within NATO structures; a proposal spearheaded by (amongst others) the liberals in the European Parliament and echoed by the Commission’s calls for ‘Strategic Autonomy’.

On the one hand, it would be a way to ensure that the 162 billion euros spent by EU members on defence are invested in a more efficient way. Integrating R&D, procurement and command structures would augment operational capacity whilst lowering the cost per capita. Increased military effectiveness, in turn, enables greater engagement with the USA, lowering the tension surrounding the 2% target.

On the other hand, a European army would encourage the USA to come to the defence of all EU member states, no matter how small, much like other NATO members would come to the defence of an invasion of Alaska. The need for such concrete deterrence vis-à-vis Russia is augmented by the US ‘Pivot to Asia’, formulated by Barack Obama and continued by Biden. The focus on containing an increasingly aggressive China has relegated the European theatre from the US perspective as domestic political attention embraces the narrative of a second Cold War. Importantly, integrating European defence policy would enable greater power projection in contested Asian regions such as the Indo-Pacific.

Despite a broad consensus on the need for a more integrated European defence policy, notably in France and Germany, concrete progress remains a pipe dream held by European federalists in university classrooms. So far, the EU Common Security and Defence Policy (CSDP) has a narrow mandate with a focus on joint humanitarian, peace-keeping and rescue missions. Meanwhile, the activation of Permanent Structured Cooperation (PESCO) in 2017, intended to develop combat-ready European task forces, has been stunted by an inability of Member States to agree on operation parameters due to different risk-appetites and concerns over deployment cost.

So far this may all sound reasonable enough. But why hasn’t it happened until now? What makes cooperation on defence policy so difficult?

Institutional Inertia

One reason for piecemeal EU defence integration is the unanimity requirement for any decision-making in the European Council on related matters. By endowing each of the 27 Member States with an effective veto, policy formulation becomes bogged down in a ‘Joint Decision Trap’ as formulated by Fritz Scharpf. If each decision requires unanimous agreement, the set of outcomes everyone can agree to become small and often non-existent. The result is slow, fractured progress, with many of the benefits of defence integration being watered down by proposals for ‘two-speed’ integration.

Moving away from unanimity by instituting qualified majority voting, whereby at least 55% of Member States representing 66% of the EU’s population can make decisions on behalf of the EU, would be a way to overcome the gridlock. However, such a move would require treaty change which is itself subject to unanimity, enabling fears held by smaller member states about encroachments on national sovereignty to stall reform.

‘Never Waste a Crisis’

Yet despite being beset by institutional inertia, European integration has powered forward in other policy areas, notably monetary and fiscal. One explanation given by scholars highlights the role of crises in forcing decisive action.

An example is the Euro Area sovereign debt crisis, which led to the creation of the European Banking Authority. The role of banks and the European financial system in the Euro crisis necessitated a watchdog that monitored financial institutions on a European level to identify systemic risks before they become critical. The threat of Spanish default forced the German chancellor Merkel to agree to the establishment of such an institution despite long-standing opposition on the grounds of creating moral hazard.

Similarly, the coronavirus pandemic forced previously ‘hawkish’ northern EU Member States to u-turn and agree to the issuance of debt on an EU-level, a huge step towards the creation of a true fiscal union. Fears over a renewed sovereign debt crisis meant that the costs of inaction grew dramatically, shifting veto points and leading to consensus. The increased costs of inaction even led politicians to ignore hostile public opinion, as shown by Germany’s willingness to support Eurobonds despite 65% of the public being opposing the idea.

But is betting on a ‘Europe forged in crisis’, as prophesied by Jean Monnet, a feasible approach for defence integration?

A Defence Crisis

The kind of ‘reactive’ policy-making which may work in economic policy areas – where an already-integrated EU can tweak existing institutions to soothe markets – would not work to react to the type of crisis severe enough to shift veto positions on defence policy.

Firstly, because crises in the defence field are often existential – picture a military invasion of Latvia – waiting for such a crisis to shift positions in favour of an EU army would be ineffective. The role of military force as a deterrent necessitates a forward-looking strategy that breaks free from the logic of legislating for the last crisis.

Even if the nature of military confrontation has changed (as many argue), the type of hybrid warfare pursued by Russia does not shift veto positions sufficiently to inspire substantial reform. Incremental disinformation campaigns, political interference and false flag attacks wrapped up in plausible deniability make any decisive attribution of blame difficult. When compared to the furious reactions to Greek default during the Euro crisis, European responses to Russian activities in Ukraine or Estonia do not even register.

The nature of modern, hybrid military conflicts makes policymaking on the back of a sense of urgency difficult. The fact that the invasion of Ukraine, support of far-right parties throughout Europe and targeted disinformation campaigns seeking to undermine trust in democratic institutions has not led to substantial progress on defence integration speaks for itself.

Member States have an obligation to look beyond the political business cycle to kickstart the long process towards European military integration. A starting point could be developing an ERASMUS scheme for soldiers during training whilst lowering barriers to joint battle group deployment. The French-led operation ‘Barkhani’, aiming to support the government of Mali in fighting Islamist militants, is a promising first step. The time for pre-emptive policymaking is now – by the time the costs of inaction become high enough, it could already be too late.

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.