Transcript: The Laws of War
STEPHANIE OLSZEWSKI: Welcome to "That's Illegal!" a podcast about international law in the age of nationalism. This podcast is produced by the Global Justice Center or GJC. The Global Justice Center is a legal, human rights non-profit based in New York City. Our work focuses on moving international humanitarian laws from paper to practice. Our staff consists of lawyers with international law expertise who work regularly with partners at the EU and the UN.
Given the recent development of countries turning increasingly nationalistic and the rise in global tensions, we thought it would be a good idea to sit down and talk about the importance of international law, why we have it, and why we should implement it. So every week we're going to take a look at the latest news and break down the legality of what happened, using the framework of international law.
STEPHANIE OLSZEWSKI: Today we are joined by GJC staff attorney Grant Shubin and GJC Vice-President and Legal Director Akila Radhakrishnan.
There has been a lot of debate about the legality of the US bombing in Syria and Afghanistan. We’re going to talk about laws governing wars and laws about getting into wars. Could you give us a brief overview of those two concepts?
GRANT SHUBIN: In the international legal realm, there are two broad bodies of law that talk about armed conflict. One is about going into war and the use of force—what lawyers call jus ad bellum. That’s largely enshrined in the US charter and says under which circumstances it is lawful to use military force. Traditionally, that is with the UN Security Council authorization. In addition to the use of force when you’re allowed to start a war, there is a separate set of law that kicks in, talking about what type of force you’re allowed to use once you’re authorized. (Whom you can attack, how you can attack, how large that attack can be.)
AKILA RADHAKRISHNAN: The point of it is to minimize the suffering of war. The legal conduct of war minimizes the suffering of civilians, and it enshrines certain types of protections—everything from minimized destruction on land to the types of weapons you can use. All of that is regulated by that body.
GRANT SHUBIN: Both have become relevant. The US bombed a foreign country Syria, which it was not in a conflict with prior to the bombing. It also bombed Afghanistan, a country it was in an armed conflict with, but it used the largest non-nuclear bomb in its arsenal. Whether or not we’re allowed to bomb Syria is a question. Whether the use of the “mother of all bombs” in Afghanistan is allowed is also a question.
STEPHANIE OLSZEWSKI: Let’s start with Syria. Can you tell us the legal rationale behind the bombing?
AKILA RADHAKRISHNAN: Well, it’s unclear. If you look at different statements and the language that the president himself used, what is interesting is that the statement itself uses a lot of the terms of the laws of war (in terms of is jus ad bellum). They are not addressing their real rationale for getting in. They’ve cited a couple of different things: we’re trying to stop the use of chemical weapons, which is not really a factor that is permissible under the UN Charter (to act unless you think it’s an issue of acting in your own self-defense); Trump has talked about protecting America’s national security but hasn’t really drawn a link between what this instance of chemical bombing has to do with the US national security.
STEPHANIE OLSZEWSKI: There has been a lot of talk on crossing the red line. There are a lot of questions about why is the US the one taking action.
AKILA RADHAKRISHNAN: That red line isn’t one that is connected to the laws of getting into war.
GRANT SHUBIN: That’s what the controversy is about. In order to use force, the threshold for using jus ad bellum and starting a war required the Security Council to authorize a limited use of force for a specific objective. There are exceptions to that, such as acting in self-defense or collective self-defense—which has its own set of determinations. There might be an additional exception to using force for humanitarian purposes. I haven’t seen anything from Trump or the State Department that specifically invokes that. But lawyers have invoked it for them, saying that it was a humanitarian intervention to stop further chemical weapons. It could plausibly be internationally legal.
AKILA RADHAKRISHNAN: That’s something that comes out of the doctrine of the Responsibility to Protect, an emerging norm of law. It has three basic premises: first, states have a responsibility to protect its civilians; second, you’re entitled for assistance from the international community; third, when a state is failing to protect its civilians from mass atrocity, then collectively states can get together and act to intervene for humanitarian purposes. Technically, that still requires the Security Council’s authorization. You can engage in humanitarian intervention, which is not necessarily military but can be diplomatic and other means. It could be assisting with food drops. You can engage in ways to create pipelines to food.
STEPHANIE OLSZEWSKI: Is that what Obama did the first time Assad used chemical weapons?
AKILA RADHAKRISHNAN: That was an entirely different issue. When something like this happens, the UN Security Council is the venue that you’re supposed to go to. You can say, “This is happening, and this could be a threat to international peace and security. Authorize action around what can be done to solve this issue.” He didn’t ask for military means. He asked for diplomatic means. That’s outside of humanitarian intervention. Humanitarian intervention is a norm that exists outside of the UN Charter. Kosovo was the first place we was this put into effect. Sometimes when you have roadblocks and some things are so unacceptable that states have to have a way to respond to these things.
GRANT SHUBIN: There is a lot of geopolitics going on. I want to underscore that whether or not you are lawfully using force is something that states take seriously.
AKILA RADHAKRISHNAN: It is the fundamental premise of the UN Charter. The founding of the UN was based on wanting to stop resorting to war when other countries do things that we don’t like.
GRANT SHUBIN: It is hugely important. Countries like Syria, North Korea, and Iran in certain context, or states that have sanctions against them. The global perception of how you act as a state is something that states take very seriously—even if they don’t always act in that way.
STEPHANIE OLSZEWSKI: Trump should’ve gone to the Security Council first and said, “We should act collectively against Assad.”
GRANT SHUBIN: In order to act lawfully in the use of force, you need Security Council authorization. One way for him to act lawfully is to go to the Security Council and say that chemical weapons were used, which is unlawful for a variety of reasons, and we should act together. The Security Council would high five and stop it. Obviously, this was not going to happen because Russia would veto.
AKILA RADHAKRISHNAN: Russia already vetoed another resolution a day before this particular missile act was launched.
GRANT SHUBIN: In terms of the right to humanitarian intervention, you have to factor in whether or not humanitarian intervention is legal if there’s a deadlock in the Security Council.
AKILA RADHAKRISHNAN: He calls it an affirmative defense. This is also in the UN Charter and the Prohibition on the Use of Force. The person who was putting some of this out was Obama’s Chief Lawyer at the State Department. He’s arguing that once deadlocks in the Security Council happen and there are certain sets of norms, in fact, there might be an affirmative defense to the general principle that countries cannot resort to the use of force. He has laid out a couple of other factors that are relevant to the scenario. For example, he says that the action has to be collective. This was definitely unilateral US action. From what I’ve seen, there hasn’t been any specific endorsement of the US action or support for saying that this was the right thing for the US to do from other states.
GRANT SHUBIN: There are two other examples. This is a third example of humanitarian intervention that I can think of. Like Akila mentioned, there is Kosovo where there was a Security Council deadlock. NATO, led by the US, conducted strategic bombings to end the ethnic cleansing. After that happened, the Security Council got together and said that it was legal.
AKILA RADHAKRISHNAN: Also, the US Congress only authorized it, I think, eight weeks after Clinton took that action in the first place.
GRANT SHUBIN: We all thought this needed a UN authorization before the bombing. Now you’re giving it after. There was no understanding of what was going on there. That confused us all. You had Libya and Gaddafi. It’s a similar situation but you got a UN Security Council authorization to conduct strategic bombings to prevent Gaddafi from killing civilians. It went too far. Russia and China began to see this humanitarian intervention as an excuse for regime change. They just clamped right down on humanitarian intervention. Now you’re not going to see it—I don’t think—authorized by the Security Council.
STEPHANIE OLSZEWSKI: Putin said that this was an illegal act of aggression. Are there legal arguments that he was right?
GRANT SHUBIN: It’s not less illegal than invading Ukraine.
AKILA RADHAKRISHNAN: If you look at the idea of what aggression constitutes under international law, it is breaching the sovereignty of another country by taking forceful action against them. In that context, it can be an act of aggression. But where is it legally permissible for you to take those actions? There are still a lot of factors that we don’t know the answers to. Is this a pretext for the Trump administration to engage in a longer scale war? Is it truly something done for humanitarian purposes? Is this a single act? Is there going to be endorsement? These are the things we’re looking for. Putin’s political rhetoric can be correct in one sense but I don’t think we necessarily know the answer to that question.
GRANT SHUBIN: An analogy would be that if you killed somebody, then you committed the crime of murder. But if you killed somebody trying to defend yourself or someone else, then the court would call it an affirmative defense. The language is imprecise. Initially, it might have been an illegal act that the US did, but the US could potentially have an affirmative defense of humanitarian intervention.
STEPHANIE OLSZEWSKI: Since Assad is using chemical weapons, which is illegal, is there anything that happened at the UN to put a stop to what he’s doing?
AKILA RADHAKRISHNAN: I would actually take a step back. A lot of the focus has been on chemical weapons. From a human rights perspective, you have five years of persistent human rights violations by a government against its own people. Chemical weapons have been the red line that Obama has drawn. You have mass killings. You have torture and a rampant use of sexual violence as a weapon of war by Assad’s forces. What you’re seeing is a broader set of mass atrocities that are happening in Syria. The use of chemical weapons is one thing but we keep switching from one to another. Look at what was happening Aleppo back in November. Everyone was horrified by it but we didn’t really take any action.
It’s interesting in some sense that the use of chemical weapons is one thing that, for whatever reason, seems to spur action. All of these things, aside from the chemical weapons, are prohibited under the other set of laws. The International Humanitarian Law, the Geneva Conventions, and jus ad bellum are interchangeable terms. They say what you can and cannot do. Chemical weapons are illegal weapons under the International Humanitarian Law. But so is terrorizing your own population and committing mass killings.
In that context, there has been a variety of measures that the UN is pursuing. There is the Commission of Inquiry on Syria, which was set up by the Human Rights Council. It has been meticulously documenting the crimes. There is a new investigative mechanism that’s trying to get ready for accountability proceedings and build cases to draw together some of these things. There have been the Geneva Peace Talks that have mostly broken down every time they try to happen. That’s another internationally supported process that’s trying to bring a diplomatic end to the conflict. Yes, there are issues with the Security Council. But there are ways that other UN institutions are trying to do what they can to set up for peace, justice, and accountability once the conflict ends.
GRANT SHUBIN: I totally agree that there is a persistent issue with the human rights violations carrying throughout the conflict. Speaking strictly to the use of chemical weapons, ideally, the Security Council would evaluate the situation and collectively decide to take whatever action is appropriate to sanction or prevent Assad from ever doing that again. Obviously, that’s not going to happen because Russia is there.
Parallel to the UN Security Council, the Chemical Weapons Convention was created a body called the Office for Prevention of Chemical Weapons. They are the administrative body of the convention and are charged with two things: overseeing the destruction of chemical weapon stockpiles after the convention took effect; and issuing reports when chemical weapons are used. They are doing it right now with the most recent attack. They’ve concluded two days ago that sarin was definitively used. They’re going to issue a final report on that. In theory, those reports would then be issued to the Security Council. The international community would be appalled and take some sort of collective action to prevent it.
AKILA RADHAKRISHNAN: Including, potentially, the Security Council issuing sanctions.
GRANT SHUBIN: Including, potentially, the Security Council authorizing the use of force. That is totally theoretically and legally possible. Practically, it’s an entirely different question.
STEPHANIE OLSZEWSKI: Moving to Afghanistan and the dropping of the “mother of all bombs,” can you talk about the laws of war that allowed that to happen?
AKILA RADHAKRISHNAN: In terms of the laws that govern war, they come from various places that started to be written in 1906 to 1945. The laws themselves are written in vague terms. They talk about certain types of guiding principles that define how it is that you’re supposed to analyze something. In 1945, when they sat down and wrote conventions, the “mother of all bombs” wasn’t even something that was conceptualized. The language around the laws of war is things like proportionality. If you are taking military action against somebody, is that in proportion to the act that was taken against you? If someone comes in to a military base and sends a battalion of ten soldiers and shoot directly at military targets, that can’t justify you bombing a city (just dropping a bomb and killing civilians).
In addition to proportionality, another major factor is the idea of distinction. The two major guiding principles are proportionality and distinction. Distinction is when you’re only allowed to target military objects, which is important when we think about dropping the “mother of all bombs.” In terms of what is a military object, you try to minimize civilian casualties. You can’t bomb schools and population centers. You can’t just send cluster munitions. What happened in Gaza is that you can’t send white phosphorus bullets into large, densely-populated cities. Even if there are military targets there, the impact on civilians makes it something that’s not permissible.
GRANT SHUBIN: The basic principle of jus ad bellum or International Humanitarian Law is proportionality. In addition to your attack being proportional to your adversary’s, it is proportional to the military advantage that you’re seeking to derive. If the military advantage is taking control of a hill or trying to neutralize a certain military base, then you are not permitted to bomb the entire city. When the US did its shock and awe campaigns in Baghdad, their bombs were specifically intended on the palaces or military objectives within Baghdad. They didn’t just bomb Baghdad. We failed at some of that, ending up killing civilians. There is a little bit of leeway allowed in jus ad bellum. Your attack has to be proportional with the military objective you seek to achieve. In distinction, you have to distinguish between military objectives and civilian objectives. The things you go after have to be of military necessity and proportionate to military necessity.
The classic example would be Nagasaki or Niroshima. In terms of necessity, that’s severe; you needed to win the war, so you destroy an entire city. Was that too much? Was it not? Those are the three questions that you generally ask. Which use of force is permissible in conflict? Looking at the “mother of all bombs,” it doesn’t strike me as all that sexy of a question. It was a very remote part of Afghanistan that appears to be populated only by insurgents or ISIS fighters.
AKILA RADHAKRISHNAN: Who were the specific target of the action that was being taken.
GRANT SHUBIN: The purpose of using this particular bomb was destroying their network of tunnels, so they couldn’t get to them otherwise. Looking at proportionality, distinction, and necessity, I don’t see a striking problem.
STEPHANIE OLSZEWSKI: So, the answer is yes, it was legal.
AKILA RADHAKRISHNAN: Well, not legal.
GRANT SHUBIN: It’s internationally permissible. But it’s an interesting question related to whether or not it’s legal under the US law. Anything continuing in Afghanistan is all pursuant to the 2001 authorization of military force, which has predicated all of our military actions in the Middle East since September 11. That’s something that plagued the Obama administration as well.
AKILA RADHAKRISHNAN: It’s the inherent discomfort with the idea that there is even a legal way to conduct war. When we see giant bombs, massive munitions, and new types of warfare being developed, there is the idea that you step back from the law itself. It’s horrifying that we’re developing these things and have the capacity to cause mass destruction. It is a tension between the ideas that there are laws—which are in place with an understanding that war is going happen, we want to create constraints on what is permissible, and hold people accountable—and general notions around the ideas of wanting to live in a peaceful world. That comes up against the development of the “mother of all bombs.”
GRANT SHUBIN: Prior to the UN Charter creating this prohibition on the automatic use of force, about twenty years ago, there was the Kellogg-Briand Pact. It sent the message that we, as an international community, abhor the default use of war and armed conflict to achieve our international objectives. Before, that’s just what you did; you just went to war. That was how you achieved your international foreign policy. In 1928, the international community decided that this isn’t the best thing for us to be doing. That matured into the UN Charter. It’s been almost a 100 years, but it’s been extraordinarily successful. These are very controversial questions: whether or not force is used properly, whether or not it’s illegal, and whether or not we were able to use certain munitions. In 1950, that was not a question. That’s a good thing that the world has done.
AKILA RADHAKRISHNAN: There is also the evolution around the responsibility for civilians elsewhere. It is horrifying that Assad dropped chemical weapons on its own population, and the international community has a responsibility to do something. We don’t just sit by and watch horrible things happen in the world. You don’t just go out there if someone makes you mad, and you take their land or engage in warfare. We’ve had wars since the UN Charter. But you can see some differences of what war looks like. Even the resort to war is a question that’s raised before people engage in war. There are also growing notions of human rights and a joint identity. Just because it’s not happening to me, it doesn’t mean I shouldn’t care about it.
STEPHANIE OLSZEWSKI: What’s interesting is that the most nationalistic supporters are opposed to this, since it’s not about the US.
GRANT SHUBIN: If we’re going to be cynical about it and take into consideration human rights violations in motivating use of force, I struggle adding ourselves in the bag of using the humanitarian intervention justification in this particular context—where we have tons of geopolitical capital invested, and we want to have a presence in the Middle East. In the Congo, they discovered additional forty mass graves, and that’s been the pattern. They knew of eighteen before; they found additional forty today. But that will not be a part of our national and international conversation because it doesn’t have the same geopolitical weight. It’s good that we’re using these justifications. But if we’re using them because we want oil, that’s problematic.
AKILA RADHAKRISHNAN: In terms of more general notions of norms around this is important. The politicization of these issues is problematic. The creation of global norms and the idea that it is abhorrent to do these things, and we have a duty to do something about it is something that’s emerging. It’s not been deployed properly or without specific political interests. It’s good for us to be looking at another place and saying that it’s not okay that there are civilians who are starving, and that their country is taking action against them. I am no supporter of US unilateral action at all. But it is positive for us to be having these conversations.
STEPHANIE OLSZEWSKI: Do you have any final thoughts?
GRANT SHUBIN: I can summarize what we have talked about. First, you asked if the bombing of Syria was lawful. Broadly speaking, that’s kind of a big question mark. Ordinarily, in order to use military force, you need the Security Council authorization. That wasn’t going to happen in this case. That makes the act, arguably, illegal internationally. There might be an emerging norm about humanitarian intervention that is going to be an affirmative defense for the United States. This question is discussed by international lawyers right now. Without getting into the details, that’s a very difficult question for the US to answer. The affirmative defense excuse is not one we can rely on. Secondly, you asked about dropping the “mother of all bombs” in Afghanistan. Other than being a visual spectacle, I don’t see there being any international or legal issue with the choice of that weapon and the way it was deployed—in light of proportionality, distinction, and military necessity.
STEPHANIE OLSZEWSKI: Thank you for joining us. We’ll be back next time to talk about international law.