Neither Humanitarian Intervention Nor Self-Defense in Syria: A New Justification for the Use of Force in International Law?Posted: August 28, 2013
As matters hurtle toward a military strike against Syria, the debate about the prudence and legality of such a strike is in full frenzy–and Arms Control Law has participated in this debate earlier and over the past few days.
Here, I follow-up on a thought I raised in a reply to a comment on my August 23rd post on international and national legal issues associated with possible military action against Syria in response to the chemical weapons attack, namely that the international legal justification for using force against Syria is not really humanitarian intervention.
So, to continue this thought experiment, what might be emerging here is, in essence, a claim that use of chemical weapons on a large-scale provides an independent basis in international law for countries to use force against the government perpetrating such an illegal action.
As we have seen in the debate, including my August 23rd post, commentators have tried to slot a military response to the Syrian chemical weapons incident into existing exceptions to the prohibition on the use of force in international law, including arguments that such a military response:
- Can only be legal if authorized by the Security Council;
- Could, perhaps, fall under a broad concept of self-defense; and
- Can be justified as humanitarian intervention not requiring Security Council authorization.
However, Security Council authorization is unlikely, and arguments from self-defense (even broadly interpreted) and humanitarian intervention encounter serious problems as justifications for the use of military force against Syria as a response to the chemical weapons incident. As between a self-defense argument and the humanitarian intervention argument, the humanitarian intervention argument appears to have more support, with the humanitarian intervention in Kosovo undertaken without Security Council authorization often considered the best precedent. The resolution the U.K. has introduced at the Security Council apparently seeks authorization for “all necessary means to protect civilians,” which links to the humanitarian intervention framing of the problem.
Although I understand the framing of the issue in this manner, especially given existing international law on the use of force, the humanitarian intervention argument does not fit this crisis well. The humanitarian intervention exception to the prohibition on the use of force is very controversial even when used to prevent or stop humanitarian atrocities. Even many supportive of the humanitarian intervention in Kosovo acknowledged it did not, or should not, constitute a strong precedent for a humanitarian intervention exception to the prohibition on the use of force in international law.
The path to the use of force against Syria is hard, however, to pave with humanitarian intentions. From the “red line” laid down by President Obama through the present crisis, the focus has been on the use of chemical weapons by Syria in its civil war. Although we do not know what the anticipated military strike will involve, public statements of the U.S. and other governments indicate that the military response will be limited in scale and duration, designed to deter any further use of chemical weapons, and is not intended to change the course of the Syrian civil war or effect regime change. Put another way, based on what we are being told, this military intervention appears surgically focused on shoring up the international legal prohibition against the use of chemical weapons.
Preventing any more use of chemical weapons would have positive humanitarian consequences in removing one type of weapon from the battlefields of Syria, but, as many have already argued, the currently stated purposes and objectives of the military response will not alleviate the humanitarian disaster the Syrian civil war has become. As has already been asked, is death and suffering from chemical weapons worse, as a humanitarian matter, than death and suffering from conventional weapons?
The anticipated military strikes will not, apparently, degrade the Syrian military’s ability to use heavy conventional weapons against civilians and civilian areas, which have been the source of much human death and suffering in this conflict to date. Nor apparently are the strikes designed to change the Syrian government’s and military’s strategies, tactics, and choice of weapons, except with regard to chemical weapons. Humanitarian protection, as an objective or outcome, is deliberately limited to use of a specific type of weapon. Put differently, but for the use of chemical weapons, we would not be debating humanitarian intervention any differently than we have since the Syria civil war started. More simply, it’s fundamentally about the weapon not the human suffering.
Following this thought, justifying military action against Syria flows most directly, then, from the importance of protecting the “chemical weapons taboo” in international law–the complete prohibition in armed conflict of the use of any chemical weapons. This prohibition contains within it not only the purpose of limiting the suffering war causes but also the core interests of states in eliminating chemical weapons from armed conflict. These core interests have coalesced multilaterally in a manner that makes this prohibition one of the most important rules in international law, an importance developed on the journey from the trenches of World War I, to the Geneva Protocol of 1925, and to the CWC of 1993–as enhanced by actions to prevent chemical terrorism (e.g., Security Council Resolution 1540).
Looking at the way the move to military action against has developed, the anticipated military response appears most deeply rooted in this prohibition and its fundamental importance in international relations. This prohibition is, then, the basis for justifying the legitimacy and legality of a use of force against Syria in the absence of a Security Council resolution.
But. wait, I hear people saying (or perhaps shouting), international law has not recognized such an exception to the prohibition on the use of force–there’s no state practice or opinio juris supporting this notion, nor does any treaty, including the Geneva Protocol or CWC, create any such exception. All correct arguments, but my point is that we are perhaps seeing unfold a rapidly emerging acceptance of a new exception to the prohibition on the use of force grounded in a critical rule of international law, the importance of which depends on its protection or, if you will, its enforcement, including through military means against violators. Otherwise, we are left with the contorting legal gymnastics necessary to make what is about to happen “humanitarian intervention” or “self-defense.”
This thought experiment has not addressed every issue, problem, pitfall, or potential “you can’t be serious” response raised by what it has suggested, but, being a speculative enterprise, pushing this idea farther at the moment might aggravate more than illuminate.
As media are reporting, high-level discussions in Washington, D.C. and elsewhere are focusing on how governments should respond to the incident in Syria involving an alleged chemical weapons attack by the Syrian regime. These discussions include consideration of military strikes against Syria. Earlier, in light of conclusions that the Assad government had used chemical weapons on a small scale, deliberations about arming Syrian rebels raised questions of international law and other sources of law (EU law, US law). See, for example, Pierre-Emmanuel Dupont’s Arms Control Law post on this issue.
At present, the debate about direct military strikes is dominated by non-legal questions, such as (1) clarifying what happened and who is responsible (on which see Jean Pascal Zanders’ posts on Arms Control Law and The Trench), (2) further danger to US credibility given existing controversies about President Obama’s “red line” statements, and (3) whether military intervention would be prudent or effective. However, as suggested by gathering momentum for military action, legal issues are on the agenda internationally and within governments contemplating the use of force. So, here are some preliminary, general thoughts on these legal questions.
In terms of international law, two critical, linked issues are (1) the principles on state responsibility (did a chemical weapons attack occur, and was the Syrian government responsible?), and (2) the rules on the use of force (does a chemical weapons attack attributable to the Syrian government provide a justification for other states to use force against Syria?).
The cleanest scenario would be for the evidence to show that the Syrian government used chemical weapons, and, then, for the Security Council to authorize UN member states to respond with military force to this threat to international peace and security.
For many reasons, this scenario is unlikely to be the one that plays out. At the moment, it appears as if definitive attribution of this attack to the Syrian government will prove time-consuming, difficult, and politically contentious, leaving enough room and time for differences among members of the Security Council to produce opposition to a resolution authorizing the use of force against Syria.
The next strongest basis for using force, the right to use force in self-defense, is not an option because the attack in question was not perpetrated against another state. Nor, at the moment, would an argument of anticipatory or pre-emptive self-defense be persuasive as a justification for using force.
That leaves the more controversial option of justifying a use of force under the “responsibility to protect” (R2P) principle, or (to the extent it is considered distinct from R2P) under the older idea of humanitarian intervention. This option is controversial because, among other things, whether a state can rely on these grounds to use force without Security Council authorization remains hotly debated, indicating that no consensus exists in international law on this question. The Syrian conflict, and the humanitarian debacle associated with it, has revealed the depth of disagreement about, and the difficulties associated with, the R2P principle in international law.
However, even given this controversy, the large-scale use of chemical weapons by a government against civilians in a civil war constitutes an atrocity of sufficient gravity that states can, with some force, argue that international law permits military action against that government without authorization of the Security Council. This argument will agitate the long-standing legal controversy in this area, but the controversy cuts both ways in that its existence means neither position is beyond the legal pale. Potentially effective ways to manage the controversy in order to tip opinion in the direction of using force without Security Council authorization include (1) producing clear and convincing evidence of Syrian government responsibility for a chemical weapons attack, (2) making good faith efforts to try to obtain Security Council authorization for a use of force, and (3) ensuring serious multilateral support for, and participation in, military action against Syria.
In terms of US law, military strikes by US armed forces would bring questions of constitutional war powers into play, as well as the War Powers Resolution (WPR). Most recently, controversies about the application of constitutional war powers and the WPR erupted in connection with the US air campaign against Libya. To much debate, the Obama administration argued that US military activities against Libya did not constitute “war” under the Constitution or “hostilities” under the WPR. Whether the administration would use the same reasoning with respect to military action against Syria depends on many factors, including the scope and seriousness of US military efforts.
However, we know enough to understand that Libya and Syria are not comparable. To date, US reluctance to get involved militarily in Syria flows, in part, from a realization Syria presents a harder target, and a more difficult operational context, than Libya. These differences would probably require more extensive, much riskier military activities than the US was able to undertake against Libya. Legally, it would be harder to sustain the position that such activities do not constitute “war” under the Constitution or “hostilities” under the WPR. Further, very limited military actions designed to permit re-use of the legal positions taken in the Libya incident could undermine the international legal case that military force is justified in responding to a large-scale atrocity committed with chemical weapons.
To avoid constitutional and statutory problems, the President could seek congressional authorization to use force, but the wisdom of US military intervention into the Syrian conflict has been, and currently is, at issue in Washington, D.C., even in light of the alleged chemical weapons atrocity. Given this, and the nasty political climate between the White House and Congress, it is difficult to believe that Congress would declare war on Syria absent some development that would dramatically change the political calculations inside the Beltway.
This past weekend brought more Snowden flakes about NSA spying. However, this time the alleged espionage targeted not American citizens, “foreign nationals reasonably believed to located outside the US,” or China but American allies–European Union (EU) officials, diplomatic facilities, and computer networks. If true (as seems likely from US government responses–see below), these leaks combine with the previous disclosures about NSA surveillance to inform people of the scale, capabilities, and audacity of US intelligence gathering activities.
European leaders expressed shock and took much umbrage, with some dredging up the dark spying days of the Cold War and others issuing threats of adverse consequences for upcoming US-EU negotiations on a transatlantic trade agreement. Responses from President Obama, the Director of National Intelligence, and Secretary of State made the same point–the US engages in espionage as all nations do in order to protect foreign policy and national security interests.
This response was simultaneously true and disingenuous. All countries spy in some form or another, and, European public displays of anger aside, the spying includes keeping an eye on allies. And that includes the intelligence agencies of European countries whose leaders were shocked–so shocked!–at the US gathering intelligence on their possible future actions. The response was disingenuous because the US has an intelligence capability that is unrivaled in the world and the political and economic power to pursue espionage without fear of serious consequences. See, for example, the US-EU transatlantic trade talks will start as scheduled despite lots of frothing Euro mouths.
However, not too long ago, it was American officials and politicians who were frothing about Chinese cyber spying against the US government and US-based companies. Snowden’s apparent disclosure of large-scale US cyber espionage against Chinese government, business, and academic targets and, now, allegations about US spying on European governments, makes the past few months of portraying Chinese cyber espionage as beyond the pale look, well, less impressive. Even the US attempt to distinguish economic espionage against companies from classical state-on-state spying gets lost in the growing perception–now directly re-enforced by the US government–that all countries engage in espionage against allies and rivals whenever and however they see fit. In this light, earnestly repeated assertions by China that it does not engage in cyber espionage against the US and other countries and that it is the innocent victim of American spying appear, strangely, rather unseemly for a rising world power.
Should the protagonists in these events stop whining about espionage and just get on with it? Or, do these revelations suggest that the Internet has turned “everybody does it” espionage into an out-of-control phenomenon that damages individual privacy, alliances, and great power politics and requires some re-thinking? Existing international law is permissive of spying, and the few international legal rules that contain limits do not constrain the practice in any effective way. As already indicated, Snowden’s leaks have derailed the US effort to portray Chinese cyber espionage as outside “norms of responsible behavior in cyberspace,” and the coordinated chorus from top US government officials to the latest leak that “all nations do it” might well have ended the willingness of other countries to consider American ideas about re-thinking international norms about espionage in light of the global importance of the Internet.