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Friends and Colleagues: Please see my take on whether the U.S. attack on Syria was justified. http://www.politico.com/magazine/story/2017/04/donald-trump-syria-attack-legal-215022

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Why Trump’s Attack on Syria Is Legal
By David M. Tafuri
April 13, 2017
Politico

“No child of God should ever suffer such horror,” argued President Donald Trump during his statement justifying last Thursday’s U.S. missile strikes against Syrian President Bashar al-Assad’s military. Since then, his decision has faced withering scrutiny, particularly on legal grounds. Critics, from Russia to some members of Congress, have argued the military action was an illegal violation of Syria’s sovereignty. “Whatever it is,” tweeted<https://twitter.com/jacklgoldsmith/status/850161736586055680> Harvard Law School Professor Jack Goldsmith in response to a question about what the legal justification for the strike was, “it exceeds all prior precedents under domestic and international law.” Use of chem weapons is horrific,” tweeted<https://twitter.com/HinaShamsi/status/850343790791577600> ACLU national security lawyer Hina Shamsi, “but Trump’s military action violates Constitution & U.N. charter. No legit domestic or international law basis.”

It’s not a surprise that critics are alarmed. Use of force in this case was highly unusual, both because it was neither in defense of the U.S. or our allies nor was it backed by a United Nations Security Council resolution. And Trump’s action is not supported by a Congressional authorization for use of military force. Nonetheless, there is legal justification for his military action. That justification is grounded in the “responsibility to protect” doctrine, also known as R2P. Before Thursday, Trump might have seemed an unlikely proponent of R2P, but now that he’s launched a strike in Syria, he should embrace it.

R2P was developed under U.N. auspices in the early 2000s, and was approved by all member states at the U.N.’s 2005 World Summit. Established as a reaction to the genocides of the 1990s in Rwanda and Bosnia, where international failure to act resulted in loss of millions of lives, R2P provides that states must take action to protect their citizens and prevent crimes against humanity within their borders. If they fail to do so, the international community has a responsibility to intervene.

The duty to intervene places an obligation on all member nations and should normally be reinforced by a U.N. Security Council resolution authorizing use of force. In the case of Syria, however, any attempt by the Security Council to act has been consistently stymied by Russia and China. But R2P requires more than just failed efforts at U.N. approval. The doctrine stipulates that member states have an affirmative duty to prevent crimes against humanity even when the international community fails to satisfy its obligation. In other words, member states are obliged to take action when the Security Council doesn’t.

This is perhaps the most controversial aspect of R2P. Military intervention outside an authorization by the U.N. arguably violates U.N. prohibitions against unauthorized use of force. Supporters of R2P argue, however, that R2P is rooted in other equally important U.N. doctrines, such as the Chapter VII authorization to use force in response to a threat to peace. And there’s a growing sentiment that R2P has emerged, by custom among nations, as an international law norm that forms an exception to the prohibitions against use of force.

There are indeed precedents for acting without U.N. authorization. For instance, in 1999 NATO intervened in Kosovo to end the genocidal campaign by Serbia. That intervention received high praise for its impact in saving lives, even though it was conducted in the absence of a U.N. authorization (also because of Russia’s veto) and before the rise of R2P.

Since R2P was adopted in 2005, it has been only lightly used as a basis for military intervention. The first recognizable case was in Libya in 2011, when NATO launched an air campaign against Libyan leader Muammar Gaddafi, who had slaughtered thousands of unarmed protesters and dispatched columns of tanks that were hours away from entering Benghazi and killing tens of thousands more. The Libya attack was backed by a U.N. Security Council resolution (UNSCR 1973) which authorized the use of force. In spite of the messy circumstances in Libya now, the intervention by NATO was a success in saving lives and is still appreciated by nearly all Libyan citizens as a crucial decision that averted a much more significant humanitarian catastrophe than the country is facing now.

I began to argue<http://www.politico.com/story/2012/03/following-the-libyan-model-074165?o=1> back in 2012 that R2P provided a basis to act unilaterally in Syria. At that time, approximately 8,000 people had been killed, but it was clear then that Assad would not walk back his campaign of violence. The death toll now is 60 times that<http://time.com/4216896/death-toll-syria-war-470000/>, according to the Syrian Center for Policy Research. Assad has also used chemical weapons multiple times since at least 2013, when President Barack Obama did not enforce the redline, and of course he used them again last week, which re-awakened the world to his barbarity. But perhaps the most egregious aspect of the Syrian crisis has been Assad’s all-out air assault on towns and cities, raining hell from above with no regard for civilian lives. There is overwhelming evidence that killing civilians is integral to his strategy to break the back of Syria’s Sunni population. I can think of no better example today of the kind of state-initiated violence and genocide that R2P was explicitly formulated to halt.

According to the principles of international law, when action is taken under R2P, the response should be measured and reasonably calculated to help prevent continued crimes against humanity. By ordering missile strikes of purely military targets, specifically the Syrian regime’s aircraft which provide the means for delivering Assad’s most heinous assaults on Syrian citizens, Trump’s action last Thursday satisfied these criteria as well.

To be sure, little in Trump’s foreign policy pronouncements before last week suggested he might become a champion for a doctrine requiring military action on purely humanitarian grounds. Trump has implied that his “America first” policy means discontinuing efforts overseas unless they are directly tied to U.S. interests. During the campaign, he said, “What we should do is focus on ISIS. We should not be focusing on Syria.” This dramatic about-face deserves scrutiny, but it takes nothing away from the fact that the decision to use force has a legitimate legal basis. His claim on Thursday that we must act in recognition of the horrors suffered by Syria’s children invokes the exact rationale underpinning R2P.

David Tafuri is an international lawyer with Dentons and a former State Department official.


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David M. Tafuri
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