Something is Not Always Better than Nothing: Problematizing Emerging Forms of Jus Ad Bellum Argument.

• Author: Hughes, David

TABLE OF CONTENTS I. INTRODUCTION 1586 II. THE EVOLVING JUS AD BELLUM DEBATE 1592 A. A Schism in the Emergent Ad Bellum Regime 1594 B. Internal Coherence Within the Evolving Ad Bellum Discourse 1598 III. THE EMERGING EXPANSIONIST FORM 1601 A. Rules-based Justifications that Appeal to the UN Charter: The Case of Humanitarian Intervention 1602 B. Narrow or Limited Justifications: The Case of a Chemical Weapons Exception 1607 C. Procedural Justifications: The Case of Collective Security 1613 IV. A REVERSION TO FORM: THE BETTER EXPANSIONIST ARGUMENT 1620 A. The Intermittent Relationship Between International Law and Morality 1624 B. The Standard of Justice 1628 C. The Standard of Legal Soundness 1631 V. CONCLUSION 1634 I. INTRODUCTION

In February 2018, Bashir Al-Assad began an offensive to reclaim the Damascus suburb of Eastern Ghouta. Week after week, the Syrian military conducted airstrikes. Barrel bombs and cluster munitions devastated residential neighborhoods that were home to nearly four hundred thousand. (1) By the end of February, human rights monitors reported that well over five hundred people had been killed. At least 120 were children. Thousands more were injured. (2) Hospitals and other medical facilities were targeted. (3) Amnesty International announced that civilians were trapped in a "daily barrage of attacks that [were] deliberately killing and maiming them, and that constitute flagrant war crimes." (4) UN Secretary General Antonio Guterres described Eastern Ghouta as "hell on earth." (5)

As the fighting peaked and the death toll rose, the Security Council adopted a resolution (Council Resolution 2401) demanding that all parties to the conflict allow a "durable humanitarian pause for at least 30 consecutive days." (6) The ceasefire resolution followed years of Security Council paralysis. Since the earliest stages of the Syrian civil war, Russian officials had pledged to veto any attempt by states to seek Security Council authorization to intervene. (7)

The thirty-day humanitarian pause failed to curb the ceaseless violence. In the two weeks that followed the adoption of Council Resolution 2401, more than a thousand were killed. (8) Then, on April 7, 2018, the Syrian Government deployed chemical weapons in Douma. The World Health Organization reported forty-three deaths from symptoms consistent with "exposure to highly toxic chemicals." (9) States rushed to condemn the attack. The Secretary General added that "[a]ny confirmed use of chemical weapons, by any party to the conflict and under any circumstances, is abhorrent and a clear violation of international law." (10)

The United States, France, and the United Kingdom deployed force against Syria. On April 14, British, French, and US forces launched upwards of one hundred missiles at a research center in Damascus and at a weapons storage facility and command post near Horns. (11) As in 2017, when the United States conducted airstrikes against Syrian targets following an earlier chemical weapons attack by Al-Assad, the resulting use of force occurred absent Security Council approval. Nikki Haley, then the US Ambassador to the UN, claimed that "when the United Nations consistently fails in its duty to act collectively, there are times in the life of states that we are compelled to take our own action." (12)

The international legal response followed a familiar pattern. Largely, legal scholars agreed that the US-led airstrikes violated international law. The undertaken military action disregarded the prohibition on the use of force contained within Article 2(4) of the UN Charter. (13) A notable number of states, explicitly or implicitly, condoned the airstrikes as politically necessary and, in select instances, as legally warranted. (14) Legal questions arose, and the events in Syria became a new episode in an ongoing discourse regarding the jus ad bellum regime.

Since the formulation of the modern ad bellum framework in 1945, the accompanying legal discourse has shifted from early doubts questioning the relevancy and durability of the prohibition on the use of force. (15) Though some continue to contend that each controversial use of force further contributes to the prohibition's redundancy, this Article addresses the contemporary manifestations of the ad bellum debate that instead consider how best to promote the legitimacy and efficacy of the Charter-based regime. (16) Within these debates, efforts to ensure against the regime's erosion diverge. Opposing contestations situate between two broadly conceived camps--minimalists and expansionists. (17) Each grouping covers significant ideological and theoretical grounds; they both present responses to the uncontemplated or unaddressed challenges that face the ad bellum regime when the collective security system fails to meet its founding ideals.

The minimalist camp believes that strict doctrinal adherence to the UN Charter's prohibition on the use of force is necessary to ensure validity and to prevent abuse. Advocates resist departures from, or expansive readings of, the narrow exceptions to the use of force; they insist that the four corners of the Charter are fixed. Antithetically, the expansionist camp holds that the ad bellum regime is threatened by a schism between the dictates of reality or moral necessity and a formalist interpretation of the law limiting or prohibiting the use of force. (18) In contrast to minimalists, expansionists may either posit a reformist claim that an action occurring beyond acknowledged ad bellum limits should be permissible or work to bring the proposed action within the boundaries of legal permissibility by advocating for a broad conception of where the four corners of the Charter situate. Issue-specific ad bellum debates that include the use of force against nonstate actors, around the permissibility of preemptive self-defense, and concerning the legality of humanitarian intervention reflect this discursive dichotomy.

This Article is about a contemporary shift in the argumentative form that is assumed by the expansionist camp. Prominent expansionist claims are drifting from the normative foundation that traditionally supports the expansionist appeal. Three types of justifications are identified that are expressive of an emergent "new expansionist" argumentative form. The first invokes rules-based justifications that appeal to the Charter regime. Citing the example of unilateral humanitarian intervention (UHI)--an instance in which a proposed use of force is not contemplated by the relevant Charter provisions--this new expansionist argument attempts to frame a proposed humanitarian action as existing within a traditional use of force exception. The second exhibits arguments that present narrow or limited justifications to permit a particular use of force. This is observed through recent contentions by states and scholars that support military responses to the use of chemical or biological weapons (CBWs). These arguments permit the use of force in response to a specific incident rather than supporting a broad intervention following a general humanitarian catastrophe. The third features procedural justifications. These appeals validate ad bellum claims through expansive invocations of the collective security regime.

This Article suggests that each of the identified forms reflect, and are constructed to respond to, the prominence of minimalist reasoning within the international legal discourse regarding the use of force. These new expansionist arguments attempt to reach broader audiences by prioritizing those features of their legal claims that are designed to address prevalent minimalist objections. Each implies that something--such as a limited right to UHI or the ability to forcefully respond following the use of a particular weapon--is better than nothing. This Article ponders the deficiency of this new argumentative form and suggests that it overemphasizes considerations of effectiveness to the detriment of the expansionist camp's principal appeal--its ability to bridge the gap between the lex lata and the lex ferenda by providing a moral account of how international law can respond to the evolving demands of a contemporary international environment unforeseen upon the establishment of the modern ad bellum regime.

Emerging expansionist claims, by states and scholars alike, increasingly prioritize the nonnormative features of their legal argument. This may facilitate an immediate objective, it may defend the necessity of a particular use of force, but it raises subsequent questions about the argument's ramifications. Throughout, this Article suggests that justifications of expansionist claims that reference particular circumstances or predetermined criteria, and fail to reflect general principles, are imprudent and undermine the legitimacy of the ad bellum regime. This recalls Alan Buchanan's suggestion that

violations of fundamental rules of existing international law, such as the prohibition against preventive war and against any use of force that does not qualify as self-defense and lacks Security Council authorization, are irresponsible, unless they are accompanied by a sincere effort to construct superior international legal structures to replace those they damage or render obsolete. (19) This Article does not suggest that every expansionist claim include a complete reformist account or provide a full theory of international law. (20) Yet good-faith claims that wish to ensure the efficacy and legitimacy of the ad bellum regime are most effectively advanced when they reflect the normative allure that distinguishes expansionist appeals from alternative readings of the jus ad bellum. (21) New expansionist appeals, described throughout the subsequent Parts, become maladaptive to their professed purposes if they fail to ground specific pronouncements in an assessment of how the expansionist claim promotes a more just conception of international law...