Use of force and legal reasoning: selectivity unbound?

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In this post, Professor Alexander Orakhelashvili comments on contributions relating to the legal regime of the use of force by professors Ingrid (Wuerth) Brunk and Monica Hakimi, co-editors in chief of the American Journal of International Law.

Photo of Dr Alexander Orakhelashvili

In an earlier post about a year and a half ago (also containing most of the relevant references), I have discussed the relationship between legal reasoning about the use of force by States and the actual legality or rationality of such use of force, as well as political consequences generated by the manipulation of legal reasoning in the political interest. A further reflection on these issues is prompted owing to a relatively recent debate on Russia’s invasion of Ukraine, particularly in view of an editorial and the follow-up blogpost co-authored by professors Ingrid (Wuerth) Brunk and Monica Hakimi, co-editors in chief of the American Journal of International Law.

The co-authors go substantially beyond stating the obvious that Russia’s invasion of Ukraine is an instance of the unlawful use of force. A key of their claim is that the invasion of Ukraine is unlike the other instances of the use of force because it “is a clear repudiation of the norm at the core of the UN Charter system on the use of force: the prohibition of forcible annexations of foreign territory”. They further state that “Russia’s invasion of Ukraine is—and is meant to be—an attack on that core norm” (Editorial, 689, 692). The authors go on to state that the prohibition of the use of force “does not have, baked within it, a limiting condition to explain why the use of force might be justifiable here but not in other locations where people continue to harbor historical grievances about the internationally recognized borders that they have inherited” (689).

Indeed, various situations involving the use of force could be diverse on factual and empirical terms. The empirical aspect as to the scale and duration of Russia’s use of force against Ukraine cannot be understated. Nevertheless, it is not clear at all what normative feature or element distinguishes this particular type of the use of force from other claims advanced by States over decades with regard to various crises and situations, to the effect that the use of force in question is lawful on certain grounds (whether owing to an expanded reading of the right to self-defence, protection of nationals, or “humanitarian intervention”) that are not mentioned in the United Nations Charter or in multilateral declarations that are generally accepted to state the customary international law position on this matter – in other words claims which similarly presuppose that the prohibition of the use of force has certain exceptions “baked within it”. What unites all instances of the illegal use of force – whether they are aimed at territorial expansion of a State or not – is that they are all based on a unilateral assessment of whether the scope of the prohibition of the use of force mandates the use of force pursuant to the relevant “exception” from the general prohibition.

The co-authors then suggest that several instances of the use of force such as wars directed against the political independence of States, rather than against their territorial integrity, or other instances of the use of force with a view to acquiring territory “do not directly engage our claim”. They say that “crux of [their] claim is that conflicts over territory are different from other kinds of conflicts”. Again, that might be true empirically, but the legal – conventional, customary, peremptory – prohibition of the use of force does not rely on any such classification of situations or conflicts. Instead, that prohibition outlaws all uses of force for whatever purpose that is not expressly mandated by the Charter.

Another issue is that, despite the position taken by the two co-authors, the prohibition of forcible annexations of foreign territory is not “the norm at the core of the UN Charter system” as they put it. The norm of that quality is, instead, the one that prohibits the use of force, whatever the driving motive behind or the outcome intended by it. Guesses, inferences, or deductions as to which aspect of the prohibition of the use of force is more important than its other aspects would have no recognisable normative foundation. As for the prohibition of forcible annexations of foreign territory specifically, such annexations are unlawful for the sole and consequential reason that they involve means prohibited through the norm of the prohibition of the use of force in the first place.

It is clear, after all, that the co-authors’ legal claims are selective and counter-factual and cannot be accommodated by the letter of the Charter or by customary international law as reproduced in relevant General Assembly resolutions. Such selectivity mirrors and is in line with more established policy trends over the past decades. A contempt towards the comprehensive prohibition of the use of force has got intensified from the 1990s onwards when the US and their allies have persevered in using force without the required authorisation by the UN Security Council (Iraq 1998 and 2003, FRY 1999) or in excess of the authorisation that the Council has at times granted (Libya 2011). Quite compatibly with the pattern of normative landscape that the two co-authors depict in their contributions, successive US administrations, and their policy and legal advisers, have found it suitable to adhere to such version of the prohibition of the use of force as would fit both with the status claimed by the US as a global hegemon which could re-interpret the scope and content of that prohibition, and with the more traditional principle of the US foreign policy that disclaims the intention of the US to seek the increase of the American territory at the expense of the territory of other States. Much as the co-authors claim to be critical of American forcible interventions carried out in the past, their core thesis is inevitably premised on the accommodation (if not approval) of the above hegemonic foreign policy agenda and aspiration, and the translation thereof into the legal reasoning according to which some US(-led) uses of force are not or less illegal than uses of force by others.

This much becomes even clearer when the co-authors move on to focus on specific examples such as Iraq. They suggest that “Resolution 1441, and all the baggage that pre-dated it, gave the United States the room to offer a justification for invading Iraq” (690). But the real question is: did the US offer a genuine legal (as opposed to plausible, detailed or politically acceptable) justification? To give an impression that the legality of the use of force against a State has to do anything with the fact that that State is subject to the sanctions regime as Iraq was by 2003 (as the two co-authors do at page 690 of their Editorial claiming, in a rather stark replication of the US and UK justification of the invasion of Iraq in 2003, that Security Council resolutions adopted on Iraq have “altered the legal and political landscape for what would follow”), is essentially to endorse the view that the prohibition of the use of force becomes softer and more amenable to adverse political interest in such cases, and it becomes so on no other basis than a hegemonial determination made to that effect by a coalition led by the United States (while the agency entitled to make such determinations in law is the only the Security Council).

More importantly, whether a use of force is lawful does not turn on whether a reason or justification (however plausible or acceptable to certain audiences) is offered by a State that proposes to or embarks on use force. Otherwise, a desirable argument communicated to the welcoming audience – which is all that US-led coalitions produced about both 1999 FRY and 2003 Iraq invasions, or use of force against Syria in 2017 – would be all it takes to make the relevant use of force lawful. We would then have to view illegal uses of force by the Western “hegemon” more leniently than other uses of force, and simply think away any possible reaction from great powers (i.e. States with enhanced political, economic and military strength the way that this concept is understood across various disciplines) not belonging to the West. It is, therefore, precisely the discursive (as opposed to the normative) view of the prohibition of the use of force that has decreased the inclination of great powers to respect that prohibition in practice. The world has repeatedly seen over decades that a twisted or manipulated legal argument is all that the US-led coalitions need for carrying out forcible interventions for which they have political will. Hence, if some great powers can suggest a justification by manipulating the legal content of the underlying rules, so too can other great powers who would moreover struggle to find any reason for not doing so when their political interests require them to act otherwise. After all, has not the content of the prohibition of the use of force under the Charter, or any specific authorisation of the use of force under Chapter VII, been the product of the consensus as between all relevant great powers? A misstatement of law can bring about unforeseen and adverse strategic and political consequences – ones that were or would be highly undesired by the liberal “hegemon” that has resorted to illegal uses of force in the first instance.

In this context, the two co-authors do acknowledge the by now altered (geo)political landscape in which hegemonic policies to interpret and apply international law is less viable and has much less chance of success. They also “underscore … that the stability of the international order is distinct from the justice or desirability of that order”, presumably meaning the order informed by positive international law operating on the basis of State consent. But were not the US-led policies to reinterpret the jus ad bellum from 1990s onwards themselves premised on the rather peculiar perception of liberal international order stewarded by a unilateral global hegemon, under which order a relatively higher degree of justice at least could be accorded to Western hegemonic uses of force than to its other instances? And in truth, the selective claim of the co-authors could not be an accurate statement of the law unless it were to be the law produced within such liberal hegemonic order. It is certainly true, as the co-authors suggest, that “conflicts over territory are especially likely to escalate into broader regional and global conflicts” (emphasis added). It is no less true, however, that conflicts other than those over territory have in fact led to the current situation in which the motivation of great powers to adhere to legal requirements has significantly decreased; they have made a “better world” the two co-authors desire even less real. The outcome all that has generated has also attested to the unreality of a liberal hegemonic order in any possible shape or form.

The debate addressed here is not the first instance where academics give the impression that one is meant, expected, or inclined to be tougher on some instances of the use of force (typically ones that empirically happen to rely on political decisions made at home and not in the political opponents’ camp) and more lenient on other instances of it. The problem lies precisely with the academic perseverance in selective legal reasoning over decades. Moreover, and because the co-authors are co-editors of the American Journal of International Law, the above impression could lead some at the very least to wondering whether the “mainline” or “frontline” legal academia is genuinely independent from the political mainline, or whether it sees the legal packaging of political agenda at the service of hegemonic foreign policy agenda as one of its tasks. Policymakers could then find the relevant circles of academia as their reliable allies to help them pursue policies that are not accommodated by relevant requirements under positive international law, provided that the domestic or regional audience or political class is happy with those policies. In cases when the rest of the world finds the legal reasoning in question unacceptable, there would be (and sadly is by now) very little left to show that legal academia is about exposing the content of the law, rather than taking sides with the relevant political establishment and marching on loyally with them, in order to provide a legal cover or comfort for policies that continually increase divisions in the world and make the multiplication of political crises unavoidable or irreversible, indeed producing a series of unpredictable or unprecedented escalation and deterioration, the avoidance of which the two co-authors consider to be a priority.

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