As the drums beat louder for the possibility of Western military intervention in Syria, we have seen discussion of an intervention on moral, strategic and practical grounds. But so far none of the major players has spelled out the international legal situation surrounding intervention.
David Cameron has claimed any action taken would be “lawful”. But there is no contemporary legal ground upon which military action such as that being proposed can be supported.
Prohibition of the use of force
The treaty regime of the UN Charter – which applies to all states – was designed and adopted after World War II with the overarching aim of saving “succeeding generations from the scourge of war” by the general prohibition of the threat or use of force in international relations.
While this norm is seen as fundamental, there are, nonetheless, two established exceptions to it. First, the UN Security Council may determine that force is necessary and use such means through either a standing army placed at its disposal, as was originally envisaged in the Charter, or, as is more commonly the case today, by authorising states or coalitions to use “all necessary means”. A state may also act in self-defence if it is the victim of an armed attack from outside forces, or it may come to the aid of another state in similar circumstances in collective self-defence.
While the UK is to put a draft resolution to the Security Council in which states would be authorised to use all necessary means to protect civilians from the use of chemical weapons, this will be made in vain. Russia and China will certainly use their veto power to ensure that no such resolution is adopted.
The justification of self defence is one that cannot be plausibly be made by any state at the current time in the absence of an armed attack from Syria.
Given these two established exceptions it was surprising to hear French President Francois Holland talking of “punishing” whoever was behind the attack - as any form of “punishment” or “reprisal” using forcible means is unlawful, even if states have in the past somewhat disingenuously characterised retaliatory uses of force as self defence.
A right of humanitarian intervention?
Given the expressed underlying rationale of protecting Syrian civilians it would seem that supporters of the action are claiming that it would be lawful as a form of humanitarian intervention. The protection of human rights is included in the Charter, but in an aspirational and promotional way which contrasts starkly with the obligatory tone of the prohibition of the use of force.
The value that the international community attaches to human rights has undoubtedly increased since the adoption of the Charter, beginning with the Universal Declaration of Human Rights in 1948, but their protection has not at this stage trumped the obligation upon states to refrain from using force in their international relations.
In the absence of a (very unlikely) formal treaty modification of the Charter, for such a change to occur two vital elements are required, albeit not necessarily in equal measure. The first is a general state practice. This could take many forms, but in this context will most likely be physical interventions by states. The second is a firm indication that a general belief exists within the international community that the action is legally required or permitted, and not simply on a moral or political level.
However, neither of these have been witnessed to the present day in the context of a legal right of humanitarian intervention.
For example in the 1970s, during the Cold War years, there were really only a handful of possible precedents for a right of humanitarian intervention. Yet in each case the acting state legally justified its action upon other grounds, notably self defence.
This was one factor, among others, that led the UK Foreign Office to declare in 1986 that “the best case that can be made in support of humanitarian intervention is that it cannot be said to be unambiguously illegal”.
The UK has perhaps been the leading proponent of humanitarian intervention since, particularly in the two most notable examples of actions that were undertaken for humanitarian purposes: the intervention in Iraq from 1991 to protect the Kurds and the Shia from the hands of Saddam Hussein and the NATO intervention in Kosovo in 1999.
What was noticeable, however, is that while the UK (and Belgium in the latter intervention) stated that the action was taken on the basis of a legal right of humanitarian intervention (and even then this argument was often tentatively made), this was not shared by the other acting states or by other states who were not actively involved.
Such limited support is simply not sufficient for one to make the argument that the fundamental norm prohibiting the use of force has changed to permit a right of unilateral humanitarian intervention.
Responsibility to protect
Shortly after the Kosovo intervention, however, the concept of Responsibility to Protect (R2P) emerged. This concept has been relatively successful in shifting the perception of sovereignty from one of control to one of protection, but while some have described it as an “evolving norm” it has not created a right of unilateral humanitarian intervention, in any circumstances.
At no point in R2P’s evolution has such a right been asserted, and even prior to the intervention in Libya in 2011 NATO’s secretary-general, Anders Fogh Rasmussen, was adamant that no action could be taken without the Security Council’s authorisation, despite the atrocities committed at the hands of Colonel Gaddafi.
The UN World Summit in 2005 was a chance for states – who remain the makers and breakers of international law – to put forward a collective position. Yet the Summit Outcome document only noted that states had expressed their preparedness under R2P “to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the [UN] Charter”.
As such, while in Syria the Council has found it hard to even condemn the Assad regime (or the opposition forces, for that matter) let alone authorise the use of force against it, these circumstances do not provide a residual right to states to take unilateral action.
This is not to say, of course, that either a free standing right of humanitarian intervention - or a right to use force if the Security Council does not do so in what is clearly an R2P situation - will not, and should not, develop in the future, But if states were to use force unilaterally in the current circumstances it would be a violation of international law.