Michael Schmitt and Christopher Ford unpack the Trump Administration’s legal justifications for the April 2017 United States attack on a Syrian airfield in response to its use of chemical weapons against civilians. Schmitt and Ford discuss three possible legal bases for the use of force: self-defense, response to an internationally wrongful act, and humanitarian intervention. The authors conclude that the US’s actions run afoul of limitations in each relevant body of law, and of note, they discuss how this attack is consequential for the validity of humanitarian intervention on another state’s territory without approval from the UN Security Council. They conclude by suggesting that the international community is likely to consider the nature of suffering, in addition to the quantum of suffering, as bearing on the right of States to mount future humanitarian operations.
MAJ Peter Combe argues that the covert action statute prohibits the Central Intelligence Agency from violating self-executing treaties to which the United States is party, as well as non-self-executing treaties and customary international law implemented by statute, but it provides domestic legal authority to violate non-self-executing treaties and customary international law that have not been implemented through legislation by Congress. This application of the covert action statute in practice is illuminated through a case study of the legal issues surrounding the Osama bin Laden raid.
Schmitt and Widmar explore the law of targeting within international humanitarian law (IHL) and its application to international and non-international armed conflict. The article examines the “five elements” of a target operation, including the target, the weapon used, the execution of the attack, possible collateral damage and incidental injury, and location of the strike. The authors suggest that a better understanding of these norms can help international lawyers, policymakers, and operators avoid violations of international law by creating appropriate and well-known boundaries for targeting operations.
Abrams seeks to move the discussion on Guantanamo detainees forward by bringing law-of-war detention and criminal prosecution into closer alignment. The article analyzes the Obama Administration’s current approach of dealing with terrorists captured abroad and its preference for conducting criminal prosecutions whenever feasible. Abrams proposes several changes to the current system, including a decision-making framework for imposing further military detention after completion of the criminal process, which the administration has indicated is a possibility, and taking into account the criminal culpability of the detainee to impose a presumptive limit on indefinite detention, as ways to reform the two-track system and increase equality accordingly.
The provision of lethal aid to the Syrian rebels appears questionable from a purely legal perspective. It would arguably amount to a use of force. Neither of the traditional legal justifications for the use of force—self-defense and authorization by the Security Council—applies in this case. While humanitarian intervention arguably offers a (weak) basis for the use of force, states would be wise to hesitate before embracing a liberal right to humanitarian intervention, because such operations can serve as convenient subterfuges for armed intervention.