US President Donald Trump’s decision to launch unilateral missile strikes against the Assad regime following its use of chemical weapons was almost universally welcomed by the US’s allies. This was so, notwithstanding the incontrovertible illegality of these actions. There are excellent posts available here and here on why these missile strikes against the Assad regime were illegal so I do not wish to add further to this discussion; rather, I wish to ask whether legality actually matters?
In this regard, I was struck by just how little coverage of the missile strikes focused on their legality. Similarly, few politicians invoked the idea of ‘legality’ to justify Trump’s decision. Paul Ryan welcomed Trump’s decision to strike Syria without prior congressional approval, describing the attack as ‘appropriate and just’. Notably absent from Ryan’s statement was the word ‘lawful’. He did, however, hint that any future action should be subject to congressional approval. The following day on the BBC Today programme , Deputy Assistant to the US President Sebastian Gorka was questioned about Trump’s authorisation of the use of force against Assad; however, focus was more on whether the actions were consistent with his campaign pledges of isolationism and anti-interventionism. The legality of the action did not arise.
Elsewhere, Canadian Prime Minister Justin Trudeau voiced his approval of the US’s ‘limited, focused attack’. German Chancellor Angela Merkel was more couched in her support, describing the missile strikes as ‘understandable’. In the UK, the Secretary of Defence Michael Fallon stated that the British Government ‘fully supported’ the US actions, arguing that the measures were ‘limited and appropriate’ and that the US had exhausted ‘all possible diplomatic and peaceful ways of dealing with the use by the regime of chemical weapons.’
Meanwhile, Liberal Democrat leader Tim Farron did attempt to outline some legal rationale for his support of Trump’s actions by invoking the doctrine of ‘responsibility to protect’ (R2P). Farron does not, however, elaborate on what he means by this. Nor does he acknowledge that the authority to employ the use of force under R2P framework lies solely with the UN Security Council. Instead, Farron’s musings on the legality of Trump’s decision invokes the illegality of chemical weapons which were ‘banned long before even the UN existed’. This, however, is completely irrelevant when assessing whether the decision was lawful. There is some distorted logic at play when the illegality of chemical weapons is used to justify an illegal use of force. Farron’s argument therefore essentially boils down to ‘two wrongs make a right’— an argument that is as discredited in international law as it is in the playground.
Of course, Russian President Vladimir Putin was quick to condemn the air-strikes as ‘illegal under international law’. Putin’s new-found commitment to only the lawful use of force is, however, almost laughably hypocritical given Russian involvement in Ukraine and, indeed, ignoring or disputing Assad’s use of chemical weapons and their horrific consequences.
The justification therefore of Trump’s missile strikes focuses more on the morality of the act rather than the legality. Legality is reduced either to a non-issue or merely an adjective to describe the actions rather than a legitimacy-conferring, fundamental value of a decision. While this issue of legality may, prima facie, pale in comparison to the horror of the use of chemical weapons, this apparent insignificance, in and of itself, raises the question of whether legality matters.
The value of Legality?
My gut reaction to this question is that of course legality matters. Even the thinnest conception of the rule of law, I contend, has some inherent value. The rule of law embodies concepts such as clarity and certainty which should guide action and allow individuals to plan their actions. Joseph Raz describes the value of the rule of law as like an ‘instrument’. For Raz, this value is like the ‘sharpness of a knife’:
A good knife is, among other things, a sharp knife. Similarly, conformity to the rule of law is an inherent value of laws, indeed it is their most important inherent value…A knife is not a knife unless it has some ability to cut. The law to be law must be capable of guiding behaviour, however inefficiently.
Consequently, even a thin conception of the rule of law emphasises its capacity to shape and guide future action. In relation to the use of armed force, the rule of law has a modicum of value in it: that we have clarity and certainty as to when force will be used against a state and that it guides a state’s actions when deciding whether to use force. In turn, it should also give clarity and certainty to other states as to when force should be used. In the absence of express sanctions on states in the event that they breach the laws regarding the use of force, the main constraining factor is the expectation of reciprocity: committing to being bound by international law in good faith that other states will do likewise. It is only in this way that condemnation of Russian actions as illegal under international law cannot be met by tu quoque accusations of US and British illegality regarding the invasion of Iraq, for example.
Raz’s positivism maintains the separation between law and morality, viewing them as two separate questions with his focus on the possibility of immoral laws. What is at issue here in relation to the US missile strikes on Syria, however, is not that the morality of the actions legalises them; rather, it is that the actions are morally justified and therefore the illegality is either justified or irrelevant. In this regard, the issue is not whether a law can be immoral; rather, it is whether breaching a law can be morally right. We are thus in a zone akin to civil disobedience.
The difficulty, however, with this analogy is that the US is not Rosa Parks defiantly sitting where she wants to in the face of an infinitely more powerful state apparatus. In contrast, what we have here is the key hegemonic power in the world—the US— and its allies breaching the law. This therefore is not the case of a plucky minority standing up to the hegemonic power; it is the hegemony itself deciding that the law which it was pivotal in shaping no longer matters.
Moreover, a key aspect of civil disobedience is that the illegality is not shied away from; rather, it is embraced. It is the very act of illegality that is used to demonstrate and call attention to the unjustness of the law in question. Again, this issue is not being confronted. The debate around the missile strikes is not centred on the impasse in the UN Security Council regarding the use of force in Syria. Instead, the US and its allies are stressing that what they are doing is morally right, shying away from the legality question. In contrast, Tim Farron seems to be willing to stretch the concept of legality to legalise Trump’s actions, avoiding the UN Security Council issue.
Those who contend that Trump’s actions were justified must, nevertheless confront their illegality. To stress their justification and ignore this issue is to side-step either the value of the rule of law in this context, or the problems that exist in the UN Security Council regarding the use of force. To argue, however, that such actions are lawful as intimated by Tim Farron is simply incorrect.
Image Credit: Tom Lohdan. http://bit.ly/2ojkxn5