2 September 2013

Intervention in Syria and International Law: Inside or Out?

Cross posted on Opinio Juris

States that have decided to potentially engage in military strikes against Syria, or to support such strikes, face a difficult choice between two options: do they operate outside the international legal framework when they act, or do they use the strikes as part of an attempt to reconstruct the law on the use of force?

There is no doubt that in the present situation, military strikes against Syria would be in violation of international law as it has been understood since 1945. In situations as we face now, in the absence of a Security Council mandate, international law allows no unilateral use of force. Building a coalition outside the United Nations does not help. Qualifying strikes as punishment does not help either. International law does not provide a right of states to respond with force to serious violations of international law – even when that law prohibits the use of chemical weapons. Other than what was suggested in the UK legal position, reliance on the doctrine of humanitarian intervention does not change this. The positions of states on humanitarian intervention simply are too diverse. This was made quite clear in the UN debates on R2P, which did not recognize any right to use force outside the existing Charter system.

In this situation, states that move forward with strikes have two options: to act outside the system or to stay inside, but present the strikes as part of a process to change the system.

The first option is simply to ignore the international legal framework – and just bombard, without attempt to justify the bombardment in legal terms. An alternative way to frame this, which boils down to the same approach, would be to deny that international law as it is prohibits unilateral strikes. At the time of writing, this first option appears to be the US approach. The line then would be that in extreme cases, strong military responses are required to protect interests of states or of the international community – no matter what international law has to say on the matter. Politically, and/or morally, stakes are too high to be limited by the law. The law may have to pass in situations as this.

The second option is to present the strikes as part of a process of reconstruction of the law on the use of force, and more in particular as a revival of the right to humanitarian intervention. The argument would be that the Charter (and for that matter the R2P doctrine) gives the Security Council the responsibility to act when states use chemical weapons, and that if they fail to do so, individual states should be able to act to protect civilians. Present international law may prohibit it, but international law is not static and can change by being breached. The unlawful act may contain the seeds of a new rule allowing for humanitarian intervention.

On the assumption that strikes deter and influence future behavior, both options may help to protect civilians. Moreover, both options may put the Security Council and its member states on notice that the next time, they should better take their responsibility more seriously, otherwise they will be left behind again.

It may be said that the difference between the two categories is thin or even artificial, since also an act that ignores the law may later be invoked as a precedent for the process that leads to change. Nonetheless the positions can be distinguished. There is a difference in terms of the opinio juris that is relevant for the formation of customary law. Another difference is that states in the former category can continue to rely on the system as it is, to critique future uses of force that rely on an alleged humanitarian exception if they consider these uses politically undesirable, whereas the second group will have a little more to explain.

For those supporting air strikes, the choice between the options is not easy. The benefit of the first option is that the Charter system stays in place. The states embarking on this route will hope that such incidental transgressions do not affect the system as a whole. Next time a similar situation arises, they can simply rely again on the traditional law. This hope is not entirely baseless. Somehow the many transgressions of article 2(4) of the UN Charter in the past decade have not changed anything in the fact that states and legal scholars generally continue to use article 2(4) as a first baseline for justifying or critiquing action or inaction.

A drawback of the first option is that it does not offer anything to make the international legal system more capable of responding to violations of its most fundamental norms. As long as the Security Council does not take its responsibilities more seriously, the system will have to pass when it really matters. There is no ambition of development towards a system that can protect the persons for whose purpose international law in the final analysis exists.

The second option is from this angle more attractive. It could allow participating states to ride the moral high ground, and to seek protection of civilians from within the international legal order. At the end of the tunnel it projects a body of international law that allows for decisive action when needed to protect fundamental values when the Council once more fails to act.

The difficulty of the second option is that it is rather uncertain where this process will lead. Some states (e.g., the UK, the Netherlands) have articulated conditions for humanitarian intervention, such as the requirement that negotiations have been exhausted, that there is a likelihood that the strikes will achieve the aim of protection of civilians, and that there is support of other states – notably states in the region.

However, it is very uncertain whether these conditions will be acceptable to the majority of other states. It also is likely that opinions on the interpretation and application of such conditions in specific cases will differ. If so, a serious risk exists that engaging in this process will lead us to a situation where the old system is abandoned and no longer provides protection, yet no new agreed new rule will be established. States then may justify the use of force on different criteria. They may use the pretext of humanitarian intervention to justify, for example, a strike on Israel because there too the Security Council fails to effectively respond to the illegal occupation, and there too humanitarian costs are high. Engaging in air strikes as part of an attempt to reconstruct the law on the use of force in a humanitarian direction then may come back like a boomerang. The agony is that article 2(4) then will have lost some of its power to protect us.

The failure of the Security Council to take its responsibilities and to act therefore is for more than one reason deplorable. Not only does it leave the people in Syria without protection, but it also induces unilateral action that, whichever it proceeds inside or out, leaves the international legal system worse off.

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