The Necessity and Challenge of Crafting a Strong Legal Justification for Military Action in Syria
President Barack Obama is learning, however belatedly, that other nations take international law seriously, and that the strength of the justification under international law for military action in Syria will be an important factor in determining who will support this new “Coalition of the Willing”.
Here, the United States needs to listen carefully to the legal arguments its allies may put forth to justify military action. After years of covert action, including the targeted executions program which continues, it is not an exaggeration to say that the administration has not manifested a deep understanding of the nuances of the international law governing the use of force, as understood by other countries.
It is striking that, over two years after the civil strife in Syria began, the U.S. is now casting about for legal justifrications for military action against the government of Bashar al-Assad in Syria.
Unfortunately, it is clear that the president does not have the benefit of, or perhaps is simply not listening to, first-rate advice on how best to craft a legal justification for military intervention in Syria.
For example, the president and his administration talk of “punishing” Bashar al-Assad for his use of chemical weapons last week in Syria. That is how a layman might understand the matter, but a sophisticated international lawyer with expertise on the legality of the use of force would immediately point out to the president that there is no right to “punish” another state for past acts, as it is universally recognized that “armed reprisals” are illegal under international law.
Nor, except as discussed below, is there any special, independent right under international law to attack another country, absent Security Council authorization, to deter that country from using chemical weapons against its own population in the future. There could potentially be a legal justification for exercise of the right of self-defense if an attack with chemical weapons against another state were imminent, leaving no time for deliberation. But that is not the case here.
How, then, can military action against the al-Assad regime be justified?
Generally, the threat or use of force against the territorial integrity or political independence of another state is prohibited by Article 2 paragraph 4 of the U.N. Charter. Three exceptions to this norm exist:
1) when military action is taken in individual or collective self-defense unter the terms of Article 51 of the U.N. Charter, when an armed attack” occurs or is immediately imminent, as pointed out above;
2) when the military action is taken under the rubric of regional enforcement action by a regional collective security organization, under Chapter VIII of the U.N. Charter, with the approval of the Security Council in accordance with Article 53(1); and
3) when the military action is taken directly pursuant to authorization by the Security Council under Chapter VII of the U.N. Charter (Articles 39, 41 and 42).
The first of these justifications does not fit the facts of the current case. Any interpretation justifying such action as self-defense would open the door to a similar justification for a military attack on Iran by the U.S. and/or Israel, since the required element of an armed attack would be expanded so far as to swallow up the prohibition of the use of force contained in Article 2(4).
Were Syria, on the other hand, to engage in a series of armed attacks on one of its neighbors, e.g., Turkey, other countries could legally respond to a request for assistance in exercise of the right of collective self-defense under Article 51, but any action taken in exercise of that right would have to be necessary and proportionate in order to bring the original attacks to a halt.
The second justification of “regional enforcement action” under Article 53 of the Charter requires Security Council authorization. In the past, the United States has taken the position that the failure to disapprove any such action after the fact satisfies the requirements of Article 53(1). This was the position taken by the John F. Kennedy administration to justify the imposition of an OAS blockade against Cuba in October, 1962. However, such an interpretation flies directly in the face of the text of Article 53(1), and represents precedents which are perhaps best left in the history books.
Finally, military action against Syria may be undertaken pursuant to the authorization of the Security Council, as occurred in the case of Libya.
However, in Syria Security Council approval is clearly not in the cards, at least not any time soon, in view of previous vetoes by Russia and China of even the mild draft resolution of February 4, 2012.
What justification might still be advanced, then, under these circumstances?
It is important that the legal justification that is advanced do the least damage possible to the prohibition of the use of force contained in Article 2(4), and be narrowly tailored to the circumstances of the Syrian case.
A preliminary point is that Russia appears to have been complicit in the commission of war crimes and crimes against humanity in Syria by its ongoing support and enabling of the al-Assad regime as it continues its commission of these international crimes.
Russian cries of grave violations of the U.N. Charter need to taken with a grain of salt, bearing this fact in mind.
The ultimate question boils down to whether the international community is to remain helpless whenever a permanent member of the Security Council blocks effective action by that body through use of its veto, in circumstances as extraordinary as those existing in Syria today.
The February 4, 2012 draft resolution, for example, was approved by a vote of 13-2, with only permanent members Russia and China voting against. Moreover, the General Assembly has condemned the atrocities of the al-Assad regime in resolutions adopted by overwhelming majorities.
The narrowest legal justification for military action against the al-Assad regime would be that such action is necessary and undertaken in order to protect the population of Syria against the continuing commission of war crimes and crimes against humanity, including but not limited to the use of chemical weapons, by the al-Assad regime.
Moreover, the United Nations in 2005 and 2006 reached decisions establishing “the responsibility to protect”. The Security Council adopted Resolution 1674 in 2006 on the protection of civilians in armed conflict. That resolution explicitly accepted and reaffirmed the “responsibility to protect” civilian populations as stated in the 2005 World Summit’s conclusions. Those provisions stated the following:
138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
While an absolutely literal reading of Article 2(4) of the U.N. Charter would appear to prohibit military action against Syria, in the special circumstances of the present case where the government of Syria is not only failing to protect its population against war crimes and crimes against humanity but is itself actively carrying out those crimes, perhaps the best legal justification for military action in Syria would be one justifying action aimed at halting the commission of those crimes.
A further provision would leave open the possibility of Russia and China playing a constructive role in resolving the situation in Syria in the future, by establishing that such military actions are being taken only as provisional measures of protection of the population against the continued commission of war crimes and crimes against humanity by the al-Assad regime, or anyone else. Further, such provisional measures would only continue until such time as the Security Council is able to take effective action to protect the people of Syria against the commission of these crimes.
Such a justification, it is submitted, would limit the precedent established by such military action to the narrowest of circumstances, those represented in the current Syrian case.
It would emphasize the goal of prevention of future harm, eschewing any language of “punishment” or reprisal. It would establish a framework that would permit a resolution of the Syrian conflict over time, and indeed offer Russia and others incentives to join in effective action through the Security Council at some point in the future.
Military action against Syria is a matter of grave importance. It should be backed by a strong but narrow legal justification such as that outlined above, both to assist in forming a coalition of supporters and in order to leave open a path for future collaboration by Russia and others in forging a cease-fire and rebuilding the country.
The president needs to pay attention to his legal justification, and get it right, now–before he acts.
The Trenchant Observer
For previous articles on Syria by The Trenchant Observer, see the Articles on Syria Page, or click here.