But it’s not complicated. It only appears to be that way when American newspapers ask American experts, who are close to the American government. As soon as one steps outside that frame, the picture becomes considerably clearer. No foreign language skills are needed to read Anne Orford’s article in the London Review of Books, entitled “No Legal Justification”. If one speaks German, one can easily find many articles like Daniele Ganser’s “The Illegal War of President Trump.” [Author’s translation]. In just that one essay, there are numerous references to unreserved assertions of the war’s illegality.
By contrast, the American reporting muddies the waters to attempt to give poor analysis the appearance of depth. These authors point to irrelevancies, including motions from the United Nations Security Council that lack the all-important authorization of “all necessary means” to enforce them. (It was the failure to secure the 'second resolution' before the invasion of Iraq that destroyed any legitimacy of that action under international law, as repeatedly confirmed by multiple government commissions --most explicitly in the report of the Davids Commission, which was commissioned by the Parliament of the Netherlands).
Another frequently mentioned irrelevancy is the fact that the United States has done this before, as if escaping punishment for a crime is a precedent that it isn’t illegal at all. Special attention is normally devoted to Nato’s bombing of Serbia, since the United States managed to secure the formal support of its alliance (and then acting as if that alliance’s military decisions had legal force). Nevertheless, that bombing campaign is stressed because Nato is a more impressive partner in crime than the ragtag members of whatever “coalition of the willing” that the United States is able to patch together into each ad hoc military pact. (This tactic is much older than most people imagine –Lyndon Johnson pressured America’s client states into sending troops to Vietnam as part of the “many flags” program; countries such as the Philippines sent token contributions of military engineers in exchange for increased foreign aid.)
Lastly, the American media almost always invoke the failure of the United Nations to act as the United States would have it behave. Purportedly, the international “system” is broken because the Security Council refuses to authorize an American attack every time the Ambassador of the United States to the United Nations makes an allegation about chemical weapons, as if the world’s representatives have amnesia and cannot remember Colin Powell (a considerably more credible figure than Nikki Haley) holding up a vial of anthrax in 2003, shortly before launching an illegal war than cost hundreds of thousands of lives --and which produced precisely zero evidence that Iraq possessed any weapons of mass destruction.
Articles discussing UN authorization for military force frequently invoke a doctrine known as “responsibility to protect”, or “R2P”. What most commentators fail to mention is that R2P is purportedly a doctrine that allows the Security Council to authorize the use of force. There is no support for the assertion that it allows individual states to avoid the UN Charter, which authorizes military action in only two situations. First, when authorized by a unanimous vote of the Security Council, and second, in self-defence (but not “pre-emptive” self defence, as when Bush sought to “get them before they get us”). Nowhere in R2P is there a basis for unilateral intervention because “something must be done”, because there is a long history of this principle being abused to justify aggression.
Before the Second World War, aggression was frequently justified by reference to fictional abuses of minority populations. Germany claimed that Czechs were slaughtering Sudentenland Germans before annexing parts of Czechoslovakia in 1938, while fifteen years earlier Italy had used similar excuses to occupy Corfu. Allegations that Germany and Italy had fabricated atrocities against minority ethic groups abounded. Today, the United States demands that “something needs to be done” about the result of bitter fighting between the Syrian Government and (the rebranded) al-Qaeda in Syria, without recognizing the possibility that the easiest way to halt the violence would be to stop supplying weapons to terrorists groups. (If the Romans created a desert and called it peace, Americans have perfected its modern prologue: create a civil war and declare a failed state.)
Why do the American experts ignore this? Largely because their path to success in the field of international law (in America) runs through the executive branch. Harold Koh followed a cursus honorum similar to the war criminals now taking seats on the federal bench in the Trump Administration: he worked in Reagan’s Office of Legal Counsel, then joined the faculty of Yale Law School, then took up a position as the Legal Advisor to the State Department at the outset of the Obama Administration. He then defended targeted killing as legal under international law, despite the consistent criticism of a string of United Nations Special Rapporteurs on Extrajudicial, Summary, or Arbitrary Executions.
Koh has been “supportive of the Trump administration’s penchant for unilateral military action . . [he] said that the airstrikes were ‘not illegal’, and that an ‘important moment of lawmaking’ is ‘now upon us’”, arguing that the Syria attacks, much like the bombing of Serbia, could change international law. This is best characterized as engaging in “lawfare”, the justification of war crimes by weaponizing a twisted misrepresentation of international law. Koh was the keynote speaker at the conference of the American Society for International Law’s discussion of “Missile Strikes on Syria”, where he received the fawning admiration of his peers.
When the media and these ‘experts’ present the legality of American aggression as complex, one should understand that this serves a similar function to the statements of climate change deniers (and, previously, tobacco company shills), who argue there “is no consensus” because they themselves dispute the obvious. Their goal is to convince people that there is a legitimate debate merely to confuse, distract, and disengage the public.
It is essential that the deniers fail: the public needs to be warned, not distracted --because when aggressive war is tolerated, every possible war crime follows. One of the Chief Prosecutors of the Nuremberg Tribunal noted fifty years later that the United States was guilty of waging aggressive war for invading Iraq. Quoting that Tribunal, he noted that “essentially an evil thing...to initiate a war of aggression...is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” In other words, aggressive war is unacceptable because it leads inevitably to genocide, the killing of children and the destruction of societies. There is no debate; it is unacceptable.