ASIL 2017 Recap: International Law and the Trump Administration: National and International Security

By: Loren Turner

During these first 100 days of a Donald Trump presidency, the American Society of International Law (ASIL) has led efforts to bring together experts from both sides of the political spectrum to talk about international law under the Trump administration. ASIL has produced a series of freely-available webinars that analyze the Trump administration and (1) the future of international agreements; (2) U.S. engagement with the United Nations; (3) U.S. participation in global trade agreements; and (4) the future of environmental agreements.

On Thursday, April 13, 2017, during ASIL’s annual meeting, experts assembled once again to discuss international law under the Trump administration, but this time through the lens of national and international security.  The program was certainly timely, as it occurred the same day we learned the United States had dropped the “Mother of All Bombs” on Afghanistan and accidentally bombed allies in Syria.

Benjamin Wittes of the Brookings Institution served as moderator to a panel of three experts on international law and politics: Shireen Hunter of Georgetown University’s School of Foreign Service; John Bellinger, legal adviser for the U.S. Department of State and the National Security Council during the George W. Bush administration; and Elisa Massimino, the President and Chief Executive Officer of Human Rights First.

In her opening remarks, Shireen Hunter identified herself as the voice of “political realism.”  She said laws are the outcomes of social and political processes.  Law is important but it is politics that change things and the laws change when society and politics change.  International law succeeds when there are common interests.  For example, even during conflict, the mail still gets delivered.  Maritime trade continues because those common interests remain.  But international relations and the rule of law are based on power.  Those nations with power, use that power to get what they want and there is no enforcement mechanism that stops them.  Saddam Hussein bombed Saudi Arabia with impunity.  Russia annexed Crimea and the international community did nothing to stop it.  No one abides U.N. Security Council resolutions, which are supposed to be binding.  The ideal is to implement the rule of law but the reality is that international relations is based on power and is skewed. We need a balance of power before international law is respected. We need creative ways of encouraging international cooperation and hence strengthening international law.

On the topic of human rights and Syria, Ms. Hunter said that she witnessed the abuse of human rights rhetoric when she served on the United Nations Human Rights Committee.  The United States would claim to honor human rights, but then sell bombs to nations that routinely violate human rights.  We had waterboarding under the Bush administration.  Trump doesn’t really care about the Syrian people.  Syria is a test case of which nation is going to be the next hegemon in that part of the world. Humanitarian intervention is a new phenomenon and it causes a lot of deaths.  Look at Libya, at Iraq.  Bombing Syria for humanitarian reasons is a smokescreen.  If the Trump administration wanted to follow international law, it would conduct an investigation to make sure Assad really did employ those chemical weapons.

John Bellinger first identified Trump as a danger to national security in a blog post he wrote for Lawfare in 2015.  In August 2016, he joined a group of 50 other former G.O.P. national security advisers to publicly state that “Trump lacks the character, values, and experience to be President.”  Mr. Bellinger said there is significant cause for alarm, but there may also be rays of hope.  According to Mr. Bellinger, there are some serious lawyers that could be joining the Trump administration and, if they do so, the administration may begin to settle down.  Mr. Bellinger noted, however, that Trump is dividing the country and that it is extremely destabilizing when Trump says he doesn’t support the international obligations of the United States.

As to the topic of Syria, Mr. Bellinger said that Trump might have recklessly gotten to the right place.  We all know the Syria strike is not legal under international law.  Is it justified though? One of the most troubling images associated with the Syria strike is the photo of Trump getting briefed about the strikeThere were no lawyers in the room.  Did international law inform the decision at all?  Mr. Bellinger would not have wanted to wait for the results of a full investigation to confirm Assad released the chemical weapons, but international lawyers need to be consulted before a reaction like this.

Elisa Massimino began her remarks with the question: we haven’t reached 100 days yet, right?  Feels like 100 years.  According to Ms. Massimino, the Trump administration’s budget proposal for the United Nations speaks volumes as to what the administration thinks of human rights and norms. The administration’s focus is on hard security.  Yet, the foundation of human rights is the best way to achieve peace and security in the world.

Ms. Massimino argued that the refugee policy is a huge threat to the national security of the United States and also our allies in Europe.  Additionally, the administration’s rhetoric on refugees, torture, and increased prosecutions for illegal entry, all pose real concerns to those who want adherence to international law and national security.  Trump’s tweets are a big deal and “we are really concerned.”  It is not a coincidence that Assad attacked civilians with chemical weapons right after the administration said that removing Assad was no longer a priority.

According to Ms. Massimino, the Trump administration’s slogan of “America First” is code for isolationism.  The America First campaign might mean America, alone.  Launching missiles is not a strategy.  When the United States withdraws, others scramble to fill the void, and these others (Russia, China, etc.) are putting forth alternative views of how the world should work and these views are not based on rules and norms that promote international law and human rights.

So, what can we do, as international law practitioners and academics?   Both Mr. Bellinger and Ms. Massimino urged audience members to get out and educate the American public – at local, regional, and national levels.  Explain the value of international law, especially how it helps people in their daily lives (airline travel, receiving mail, buying goods at reasonable prices, etc.).  According to Ms. Massimino, “this is our moment as international lawyers and it is up to us whether we can rise to the occasion.”

[Visit ASIL’s YouTube channel to access the full video of this program and others from ASIL’s 2017 annual meeting. For another recap of this program, visit ASIL Cables].