My first reaction to the news that the US, along with the UK and France, had attacked Syrian chemical weapons facilities following the chemical attack the Syrian government apparently carried out against its own civilians was: I’m glad I’m not an expert in the law of war. If I were, I probably would be in the position of having to say that the attack broke the law, basically because it could not be seen as an exercise of the right of self-defense. If that is so, it seems to me there is something broken about the law of war that explains why even many people who know what they’re talking about (not to mention many US and allied public officials) find themselves arguing that the attack was legitimate, or justified, or even illegal but justified. How can it be that a really awful and tyrannical government deploys a weapon against which there is or should be a universal and absolute prohibition, against civilians no less; that that government and its main backer on the world stage, Russia, essentially block efforts to take collective action to stop the problem; and that the great powers (at least, the western great powers) that have been responsible in part for maintaining the world order violate the law when they act to punish Syria and to deter future outrages? It seems to me that there is something morally wrong with international law in this area if it is as the experts say it is.
But I understand something of the experts’ motivations, too, I think. Here at Letters Blogatory we don’t deal with war and peace or life and death, but even in the world of international judicial assistance similar arguments can come up. I will give you an example. Russia has unilaterally ceased cooperating with US requests for assistance under the Hague Service Convention, which as you know is exclusive. Most everyone except the Russians themselves thinks their position is unjustified. Russia has also objected to the use of Article 10 to effect service in Russia. So in some cases there may be no way to effect service on a Russian defendant. Suppose a US court authorizes service by email. Now ask me whether that is legal. I will say no‐the Convention does not permit service by email in states that have made Article 10(a) objections. But it seems there must be something wrong with the law here, as the plaintiff is denied its day in court only because of Russia’s intransigence. The orthodox answer is that the problem is to be solved by diplomatic means, but that is no help to the plaintiff! Compare Russia’s acts here to its exercise of its veto in the Security Council on Syria’s behalf.
My second reaction: there is a real and serious domestic legal problem with what the Trump Administration has done. There seem to have been no consultations with Congress, let alone Congressional approval of the action. For a long time now there has been a tacit agreement between the two political branches that Congress will simply abdicate its responsibilities. One would think that after so many years of war, and particularly with this President, the spirit that animated the War Powers Resolution would be active in Congress, but so far Congress has showed no appetite to take up its responsibilities.
Finally, I have to wonder whether this President, personally, has the moral authority that a president should have before undertaking an act of war. I guess that’s not really a question. Is he a decent person, a reflective person, a good father and husband, the kind of person who commands respect? President Trump has tried to surround himself with generals partly, in my view, to have the benefit of what he sees as their moral authority. But you can’t cover up a lack of moral authority so easily. Electing a president is serious business, and when I remember that presidents sometimes have to consider whether to commit the nation to war or hostilities, I have to hope that next time we will take the task more seriously.