SYRIA MISSILE STRIKE

By Kendall Coffey

Legal analyst Kendall Coffey is a former U.S. Attorney and founder of Coffey Burlington Law in Miami, Florida.

Syrian President Bashar al-Assad’s use of chemical weapons against his own citizens turned most of the whole world against him. Photographs of infants killed during the violence led to a missile attack ordered by President Donald Trump. With a few exceptions, worldwide responses to Trump’s actions were positive. Within the United States, support was overwhelming. Morally and even politically, it was the right thing to do. The President’s decision was informed and decisive as the missiles were accurate, striking only the military airfield which launched the gas attack. By all accounts, as long as Assad stops gassing his own people, the White House will stand down.

Ironically, the President’s strong response that generated so much international support may have violated international law. While America’s actions stand on the moral high ground, the legal grounds are far less certain.

The United Nations Charter prohibits any nation from using force against another country except in two situations. Based on Chapter VII of the U.N. Charter, force can be used if authorized by the U.N. Security Council to “maintain or restore international peace and security.” Force can also be used if it is required in self-defense against an imminent threat. Plainly, the action against Assad was not endorsed by a resolution of the U.N. Security Council, which Russia among others can veto. And it was not an act of U.S. self-defense. From a legal standpoint, even as the U.S. continues to champion the rule of law throughout the world, it took an arguably illegal act with worldwide repercussions.

Legal experts have argued strenuously over whether international law permits unilateral military action to punish crimes against humanity. The world’s leading nations should address this, but the effort will drive a larger debate: which horrors justify unilateral use of force, and who decides?

Would setting those standards mean hunting down the Boko Haram terrorists who kidnapped more than 2000 women and girls since 2014? Should distant countries be allowed to attack the ISIS fighters who fed 250 children into an industrial dough making machine in the Syrian town of Douma? We’ve punished Assad for his chemical attack – what about his barrel bombs, which could possibly kill far more children?

The language in existing treaties does not authorize one nation to take unilateral action in a foreign country and punish a crime against humanity except for the right of self-defense. But several principles might provide a legal rationale for the recent missile strikes. The United Nations Charter recognizes a right of “collective self-defense.” Perhaps the principle of collective self-defense would acknowledge that the use of chemical or germ warfare in one country is a crime against us all. Such weapons, especially against civilians, have an inherent transnational impact.

Along with the right to “collective self-defense,” there is universal recognition that using chemical warfare against civilians is a crime against humanity. It is important to condemn crimes against humanity in order to constitute a legal principle that, in war or peace, transcends other rules of international law. This principle of “jus cogens,” Latin for “compelling law,” further establishes that the prohibition of crimes against humanity requires violators who commit such crimes may not do so with impunity. Whatever language appears in treaties or charters, this overarching principle imposes obligations upon civilized nations to take meaningful measures, if feasible, to oppose crimes against humanity. When no realistic alternatives exist to unilateral action, a forceful but focused retaliation may be the only means to overcome the impunity that otherwise covers Assad.

Realistically, the U.S. might continue to take unilateral action because of its military, political and economic power. Still, our traditions command us to rely on more than American might as we continue to embrace democracy and the rule of law. The magnitude of this violation is undeniable, but some cases are not as clear when it comes to crimes against humanity. Criteria for police action are needed in these situations.

The U.S. cannot advocate a standard of international law that only the U.S. can lawfully invoke. If we are to advocate for a legal right to strike against such brutalities on foreign soil, we should take into consideration that other countries might take similar action. It is hard to contend that we can be, as a matter of principle, the world’s only police officer.

Atrocities that continue with seeming impunity cannot be ignored. As the recent horrors in Syria demonstrate, it is time to structure a principled framework for more effective action against crimes against humanity.

 

Justice Gorsuch

Judge Gorsuch will be a brilliant and consistently conservative addition to the Court that will largely restore the voting equation that prevailed before Justice Scalia’s untimely death.

One area of comparison to Justice Scalia is less apparent.  Perhaps to the surprise of liberal observers, Justice Scalia was the driving force in expanding the right to trial by jury in criminal cases, and made profoundly important contributions in the area of sentencing guidelines where he led the Court to an expanded role for judicial discretion in sentencing.

Justice Scalia also believed strongly in the privacy of the home with respect to police searches. While Gorsuch is expected to be a consistent conservative voice on issues generally, it will be interesting to see if he follows Justice Scalia’s independent- minded approach to these other issues.