In defending President Donald Trump’s second strikes in a year on targets in Syria associated with the chemical weapons capabilities of Bashar al-Assad, U.S. Ambassador to the United Nations Nikki Haley said that the Trump Administration is “locked and loaded” to target Syria if the “regime is foolish enough to test our will.” When our president draws a red line,” she intoned, “our president enforces a red line.” But precisely what red line did Trump draw?
Clearly, Trump did not draw a red line against Assad’s attacking innocent Syrian civilians or children. For as Ambassador Haley’s subsequent media interview made clear, implicit in the Trump Administration’s actions was its willingness to allow Assad to keep exterminating Syrian innocents by conventional means, so long as he doesn’t use chemical weapons. If Trump is genuinely moved by the plight of innocent Syrian children, why not exempt Syrians from the travel ban, increase humanitarian aid, or admit into our country more than the pathetically small number of Syrian refugees that he has admitted? Nor was Trump’s red line clearly directed against those who would support the use of chemical weapons in Syria. For even while Trump chastised the Russians for their “failure to keep” their “promise[ to] the world that they would guarantee the elimination of Syria’s chemical weapons,” he made clear that his main goal in Syria is one he shares with both Putin and Assad: namely, using America’s “small force [in Syria] … to eliminate what is left of ISIS.” Trump restated America’s objective as no more than “doing what is necessary to protect the American people.” And he went out of his way to underscore that “America does not seek an indefinite presence in Syria, under no circumstances.”
Significantly, both Assad’s chemical attack last April and again this April followed closely on similar Trump statements announcing his disengagement from and disinterest in solving any longer-term problems in Syria. For that reason, Trump’s most recent strikes–standing alone—seem unlikely to achieve his own stated goal: to “establish a strong deterrent against the production, spread, and use of chemical weapons.” Plainly, the strongest deterrent against Assad’s renewed use of chemical weapons would not be sporadic missile strikes, but sustained U.S. participation in a long-term solution to the Syrian crisis. But Trump’s real red line seems to be calibrating a strike that would not trigger retaliation, so as to avoid getting sucked any deeper into the Syrian civil war, keeping U.S. forces in Syria, or offering to catalyze or commit to any kind of serious multilateral diplomatic strategy to end the seven-year Syrian catastrophe.
All of these policy considerations may matter less to those legal commentators who subscribe to what I have called the “never-never” rule: the notion that military intervention taken in the name of humanitarian goals can never be legal under either domestic or international law. My friend Kevin Jon Heller, for example, recently illustrated that approach by categorically asserting– before Trump’s action –that “the coming attack on Syria will be unlawful,” no matter what form it might take, or what its stated purpose might be. But to those international lawyers who take a more nuanced view, context and motivation matter. Whether Trump’s action should be adjudged legal depends on the stated rationale, and its actual likelihood of achieving the broader humanitarian objective of the mission that was supposedly “accomplished.”
In declining to condemn Trump’s first anti-chemical strike last April, I referred to a legal test that I first proposed in 2016 (see pp. 1004-1015 here), for judging the international lawfulness of claimed humanitarian interventions:
(1) If a humanitarian crisis creates consequences significantly disruptive of international order—including proliferation of chemical weapons, massive refugee outflows, and events destabilizing to regional peace and security—that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51);
(2) a Security Council resolution were not available because of persistent veto; and the group of nations that had persistently sought Security Council action had exhausted all other remedies reasonably available under the circumstances, they would not violate U.N. Charter Article 2(4) if they used
(3) limited force for genuinely humanitarian purposes that was necessary and proportionate to address the imminent threat, would demonstrably improve the humanitarian situation, and would terminate as soon as the threat is abated.
In particular, these nations’ claim that their actions were not wrongful would be strengthened if they could demonstrate:
(4) that the action was collective, e.g., involving the General Assembly’s Uniting for Peace Resolution or regional arrangements under U.N. Charter Chapter VIII;
(5) that collective action would prevent the use of a per se illegal means by the territorial state, e.g., deployment of banned chemical weapons; or
(6) would help to avoid a per se illegal end, e.g., genocide, war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians, for example, another Halabja or Srebrenica.
To be credible, the legal analysis of any particular situation would need to substantiate each of these factors with persuasive factual evidence of: (1) Disruptive Consequences likely to lead to Imminent Threat; (2) Exhaustion; (3) Limited, Necessary, Proportionate, and Humanitarian Use of Force; (4) Collective Action; (5) Illegal Means; and (6) Avoidance of Illegal Ends (emphasis).
Significantly, Trump’s statements did not offer sufficient factual evidence to conclude that his recent actions have satisfied Parts 3 through 6 of this proposed standard:
(3) While the latest strikes clearly aimed at destroying much of Assad’s chemical weapons capacity, Assad undeniably continues to possess chemical weapons. What evidence does the Trump Administration have that its strike will not lead Assad to intensify his conventional slaughter of those Syrian civilians still surviving in Douma, Idlib, and elsewhere?
(4) While Trump’s Syrian strikes this year were coordinated with France and the United Kingdom, that joint effort did not approach the kind of concerted collective action that we saw with the 19-nation coalition that conducted the 1999 intervention in Kosovo.
(5) Is the Trump Administration’s real goal deterring the use of nerve agents, like sarin gas, or all chemical weapons, including chlorine, which is equally banned, but less deadly?
(6) Precisely what kind of humanitarian disaster is the Coalition trying to avoid? Here the United States is intentionally threading a needle, to reduce what many thoughtful observers recognize is a real risk of escalation with a nuclear adversary. It is far harder for the United States to claim that its actions will relieve humanitarian suffering, if it intentionally inflames a war that will only end up increasing the level of human suffering.
While uncertainty about these factors makes it premature to judge Trump’s action lawful, what is not premature is the increasingly obvious need for the United States to articulate its long-overdue legal justification for using military intervention for genuinely humanitarian purposes. The United States government missed its chance to state that legal rationale during the Kosovo intervention nearly two decades ago, instead listing amorphous “factors” that it believed made that intervention “illegal but legitimate.” It failed again to state that rationale in 2013, when President Obama did not defend his own announced “red line” in Syria. As additional humanitarian crises have triggered repeated American actions in the years since, the glaring absence of an official U.S. legal justification for humanitarian intervention has plainly reached the crisis point.
Never mind that Congress seems unable to overcome its shameful unwillingness to protect its constitutional prerogatives. And let’s set aside for now the sad disrespect for the rule of law that Trump daily exhibits, both in his personal life and in every aspect of his dismal presidency (which I have discussed in greater detail here.) What should worry Trump’s team about his Syria strikes–like his lawful but dubious pardon of former Bush Vice Presidential aide “Scooter” Libby–is that most observers suspect that they were actually driven by political impulses other than the motivations claimed. In Friday’s Syria remarks, Trump declared, “We are prepared to sustain this response until the Syrian regime stops its use of prohibited chemical agents.” But if the same troika (the United States, France, and the United Kingdom) should strike again at Assad’s renewed use of chemical weapons, the British will certainly proffer a legal opinion to explain why they believe their actions to be lawful. But absent any kind of legal rationale from our Executive Branch, how will our own soldiers—or the world watching them– know if America’s Commander-in-Chief is ordering them to act in violation of their oaths to act lawfully, under both domestic and international law?
To be sure, a legal explanation won’t remove all skepticism about the motivations of a President who has done so much to encourage it. But such an explanation would at least tie the United States’ present actions to a broader set of principles that explain why the United States believes it is acting lawfully here. Such principles would also clarify the future circumstances in which the United States believes it is legally empowered to act, potentially furthering the very deterrent goals that the President claims to want to advance.
Thus, if Trump’s real red line is that he “never want[s] to see that ghastly specter [of chemical weapons] return,” then before any new American attack on chemical weapons, Trump should have his new National Security Advisor John Bolton task his interagency legal group—the White House Counsel, the National Security Council Legal Advisor, the head of the Department of Justice’s Office of Legal Counsel, and the general counsels of the Departments of State, Defense, the Joint Chiefs, the CIA and Director of National Intelligence—to prepare and release the Administration’s considered legal opinion explaining why domestic and international law authorize such an attack. As I cautioned a few days after the election, if the legal silence continues– especially here, when Americans are being sent to battle– “we can and should treat that sign as” more proof that the Trump “administration is not serious about carefully vetting the lawfulness of its national security policies.”
Photo – Russian Ambassador to the United Nations Vasily Nebenzya and Syrian Ambassador to the United Nations Bashar Jaafari speak with each other during a UN Security Council meeting regarding the situation in Syria, April 10, 2018 – Drew Angerer/Getty Images