On the [il]legality of a military intervention in Syria

Since reports started coming out that the Syrian army was using chemical weapons, it’s becoming increasingly likely that there will be some kind of military intervention in Syria by the US, with support from the UK and France, maybe as soon as tomorrow (Thursday). For some background on the alleged chemical attacks and the on-going situation, the BBC has a good overview here. There is also a very useful article outlining military options.

I won’t reiterate what is being said very eloquently elsewhere, so instead, here’s a round-up of various analyses of the legality (or illegality) of a potential military/humanitarian intervention in Syria by the US, the UK and/or France, without UN Security Council approval.

The Legality of a Syrian Military Intervention: Russia, France, and the UK Weigh In” – post by Julian Ku on Opinio Juris

It sounds like the UK and France are both going to need to come up with some international law theory to justify their support for an attack, and the UK seems interested in the “humanitarian intervention” justification.  If the U.S. goes along with this, it would be interesting to see if the “invisible college of international lawyers” will endorse this legal theory.

“The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect” – post by Dapo Akande on EJIL: Talk!

The main argument for the legality of the use of force in Syria would be humanitarian intervention. This is the argument that says that States may use force abroad to prevent a humanitarian catastrophe or to stop widespread human rights abuses. It seems to me quite clear that this not an accurate reflection of international law as it currently stands.

Syria: War is looming, but is justice possible?” – commentary by Mark Kersten (of Justice in Conflict) in the Globe and Mail

Evoking belligerent rhetoric on the use of force without UN approval while ignoring justice and accountability will meet virtually no one’s expectations, least of all those of Syria’s victims.

Military Intervention in Syria: The International Law Framework” – post by Milena Sterio on IntLawGrrls

While military action may be needed and necessary in Syria, it is uncertain whether international law in its present state truly authorizes countries to engage in unilateral military action against Assad’s regime.  If the United States, Great Britain and France decide to launch a military offensive, their actions may constitute the first instance of humanitarian intervention and may lead toward the development of new customary norms of international law.

What’s So Terrible About Chemical Weapons?” – post by Kevin Jon Heller on Opinio Juris

The bottom line, it seems to me, is this: either the US believes in unilateral humanitarian intervention or it doesn’t. If it does, it should have been willing to use militarily force in Syria long ago, when tens of thousands of civilians were being indiscriminately slaughtered by the Syrian government. If it doesn’t, the fact that civilians are now being indiscriminately slaughtered by the Syrian government through the use of chemical weapons should be irrelevant.

Is Intervention in Syria Legal? Does Obama Care?” – post by Ian Hurd in the Boston Review

The British, French, and Russian statements illustrate three distinct positions on humanitarian intervention. They also suggest three different philosophies of international law. The Russian position is that international law is defined by the black-letter law of international treaties—in this case the U.N. Charter. This is the legal formalist’s take on international affairs, and according to Lavrov, it makes intervention illegal. The British position is that the text of the Charter should be read in light of subsequent state practice and today’s needs and challenges. As governments and others have increasingly claimed that humanitarian war is permitted, it is gradually becoming so. This suggests that the content of law changes as it is used, such that the ban on war in the U.N. Charter has been amended by an emerging consensus on the desirability of humanitarian intervention. The French agree with the Russian view of the law, but reach the opposite policy conclusion. The law may oppose it, but in this view intervention is morally and politically right.

Intervention in Syria – who decides what would be legal or legitimate?” – blog by Philip Johnston in The Telegraph

Where international law is concerned, intervention on humanitarian grounds without Security Council backing is a violation but provided it is proportionate and necessary – two words we will hear a lot in the next few days – it can be considered legitimate. However, the question then arises as to whether the proposed strikes are being carried out on humanitarian grounds. [...] It will be hard for Washington and London to argue that surgical strikes designed to teach Assad a lesson because he overstepped the mark with the use of chemical weapons are either legal or legitimate if they fail to alleviate the misery of the Syrian people.

Bomb Syria, Even if It Is Illegal” – op-ed by Ian Hurd in the New York Times

Since Russia and China won’t help, Mr. Obama and allied leaders should declare that international law has evolved and that they don’t need Security Council approval to intervene in Syria. This would be popular in many quarters, and I believe it’s the right thing to do. But if the American government accepts that the rule of law is the foundation of civilized society, it must be clear that this represents a new legal path.

Intervention Against Syria Would Be Illegal (Though Not Necessarily Unjustified)” – by Mark Leon Goldberg on UN Dispatch

If President Obama leads the charge to intervene in Syria without Security Council approval, he would grievously harm a basic tenant of international law.  If he does, might other countries feel less constrained by the Security Council? Might President Ted Cruz cite Obama’s circumvention of the council as justification for a similarly illegal military campaign? Strikes against Syria may be morally justified, but they will be illegal. Diluting the authority of the Security Council comes with a cost. We must be cognizant that there will be a price to pay down the line for undermining international prohibitions on who gets to decide when to go to war.

Hans Blix: Whether Obama in Syria or Bush in Iraq, The US Is Not the World Police” – interview by Nathan Gardels with former UN arms inspector Hans Blix on the Huffington Post

He [Obama] was the only one, some time ago now, who talked about international legality. I was heartened by that. But now I’m afraid the politics of the moment are pushing him in a direction we’ve seen before in the United States. British Prime Minister David Cameron also doesn’t seem to care much about international legality. And this time, neither do the French. As far as they are all concerned, a criminal act has been committed so now they must engage in what they call “retaliation.” I don’t see what they are retaliating about. The weapons weren’t used against them. It should be the rebels who want retaliation. If the aim is to stop the breach of international law and to keep the lid on others with chemical weapons, military action without first waiting for the UN inspector report is not the way to go about it. This is about world police, not world law. [...] If military action is all about “punishing” Assad to satisfy public and media opinion without even hearing the UN inspectors report, it will be a sad day for international legality.

Lawfare has a few relevant posts, including Jack Goldsmith’s “The Kosovo Precedent for Syria Isn’t Much of a Precedent,” Ashley Deeks’ response “The Value of Kosovo as a Non-Legal Precedent,” Goldsmith’s rebuttal “More on The Impact of Kosovo + Syria,” Wells Bennett’s “Two Thoughts on Syria and Kosovo,” and Rick Pildes’ “Kosovo, Syria: When it Comes to Military Force, What’s the Proper Relationship Between Law and Political Judgment?“. From the Pildes post:

But when dealing with issues like whether to use military force in Kosovo, or Libya, or Syria, each specific set of circumstances is simply too singular, too contextual, and the situations do not recur repeatedly in the same or closely related form. Moreover, the stakes – security stakes, political stakes, international relations stakes – could not be higher. The issue then becomes about the appropriate role of law — the “rule of law” — in highly unique settings where the costs of politico-legal systems getting the answer “wrong” are momentous and not easily reversible.

Inexplicably, The Guardian, in an article published yesterday, stated that “International law experts say intervention could be legally justified without a security council resolution under the UN’s “responsibility to protect”.” I haven’t come across many so-called “international law experts” arguing this point, and the only thing I’ve been able to find that may be what the Guardian is referring to is a 2012 report by the Public International Law & Policy Group (PILPG) – who by the way disclose in the report that they provide pro bono legal consulting services to the Syrian opposition – which argues that the R2P doctrine, in Pillar 3, can allow for “low intensity military options, such as no-fly zone and humanitarian safe havens.” Not only are those “options” quite different than what is currently being considered, but the premise of the PILPG’s argument is inherently flawed, as it is argued by Joseph William Davids in a post on The {New} International Law:

The memorandum attempts to justify unauthorized military intervention in Syria by relying on an outdated version of R2P. The doctrine could have potentially allowed such an intervention as it was originally developed in the ICISS Report, but that prong of the doctrine was not adopted by the international community in the Outcome Document of 2005, nor was it adopted by the Security Council when it authorized intervention in Libya in 2011. The harsh truth is that R2P as it currently stands does not permit individual States (or groups thereof) to intervene militarily in other States to put an end to ongoing mass atrocity crimes. The memorandum reaches the opposite conclusion based on a false premise of the validity of R2P in its original form. If intervention outside of Security Council authorization is to be legal, it will have to find its justification somewhere else.

To conclude …

Most of these analyses come to a relatively similar conclusion: that the US, UK and France will have to come with some pretty innovative way to argue that intervention is legal under international law. The question remains, would intervention be legitimate and, thinking more in the long-term, would it set problematic legal precedents for intervention?

In closing, as Kenneth Roth, Executive Director of Human Rights Watch, notes:

Military action carried out in the name of upholding a basic humanitarian norm – you don’t gas children in their sleep – will be judged by its effect in protecting all Syrian civilians from further unlawful attacks, whether chemical or conventional.

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3 thoughts on “On the [il]legality of a military intervention in Syria

  1. Pingback: Cameron May Go to War Without UN Approval- Just Because He Can | Ace News Services

  2. Pingback: “Humanitarian intervention” – Edward Spalton |

  3. Pingback: Libya – Concepts of International Law | EuroDale

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