The United States is once again in a precarious international legal position in considering retaliatory military action against Assad’s use of chemical weapons against his people. The precedents of the Iraq invasion of 2003, the Kosovo bombing, and the unauthorized expansion of the UN Security Council support for action in Libya increase caution against attacking Syria. But yet, for those of us who instinctively feel that some action must be taken, we look to a more nuanced justification, or at least some handhold in international law that might assuage our conscience. The use of WMD may have killed fewer people in the recent attack than previous conventional attacks, but it crosses a threshold into lethal use of the very agents that the international community has spent the last 60 plus years trying to avoid.
The concept of “legitimacy if not legality” applied to the bombing in response to Serb action in Kosovo was never very satisfactory. But the Kosovo action at least enjoyed NATO support, just as the quarantine gained OAS backing during the Cuban Missile Crisis.
1. The proper treaty route, through Chapter 7 of the UN charter is blocked. Railing against its inadequacy and even sensibly developing options for reform of the Security Council has not yet succeeded, although efforts to bring institutions in line with today’s problems remain as important as they are frustrating.
2. Another route provided by the UN Charter, as in customary international law, is Article 51, which permits military action in self-defense against an attack. Although the concept of “imminence” of attack has been stretched to cover situations not contemplated by the language of the Charter, nor during the post-World War II period. While no one argues that Assad is planning an attack on the United States, the UN Charter does justify intervention at the request of an attacked state, with all the limitations of the Nicaragua case about such intervention. The First Gulf War, and the French action in Mali exemplify external interventions requested by a host government. A request by Turkey for US assistance is indeed plausible, but is not yet audible.
3. No one has suggested that the General Assembly route be taken. It was used to create the concept of peacekeeping in the Certain Expenses case, but not to support an attack. The “Uniting for Peace” Resolution of 1950 permitted the General Assembly to act when the Security Council, with primary responsibility for maintaining peace and security, did not function. But it was unique to its moment in the Korean War– never followed, and not likely to be revived
4. Some years, and a good deal of funding have been spent to establish the concept that the international community has a Responsibility to Protect suffering populations under severe attack. (R2P). Some have been trying to invoke it in the Syrian situation in response to the increasing slaughter. But legally, there is little basis for using R2P as a justification for military action, absent Security Council authorization under Chapter 7. Both the High Level Panel and then the World Summit Outcome of 2005 further underscored the importance of following the UN Charter on the use of force.
5. There is, in customary international law the concept of “necessity”, which might be used to justify humanitarian intervention in extreme cases. However, there is confusion as to whether the doctrine of necessity is justification, rendering an unlawful act lawful, or whether it serves as an excuse to mitigate the consequences of an admittedly unlawful act. Even the terms “justify” versus “excuse” are murky. Because such a justification of military intervention could be easily distorted, it is probably best to think of it as a mitigating circumstance for engaging in a prohibited act. The United States is now in need of such forgiveness from the world. And even R2P should set a high bar if undertaken without a Security Council resolution.
6. Some of us have been struggling with a further justification related to R2P that might bridge the gap between the law as it stands and a moral imperative to act against such horrendous acts of “politicide” and generally, genocide, where Security Council approval is blocked. Since even customary law is limited to self-defense, I wonder if some emerging norms could be examined. A state can request assistance for self-defense, but not the people under attack from its leader. But when a state’s leadership attacks its own people, and large numbers of the population request outside assistance, as they have done in Syria, some would argue that this leadership no longer constitutes a state—by its acts, it has become illegitimate. The people could be considered the equivalent of a state, so long as certain criteria of the magnitude and imminence were met. Even the World Bank is attempting to change its concept of its clientele to include populations, not only states. Yes, the risk is subjectivity, but criteria could be established to deepen legitimacy, so the world does not stand by in face of a genocide of the magnitude of Rwanda.
7. Further, for more than a half century, international treaties have attempted to curb the development and use of weapons of mass destruction. Some are strong—the Chemical Weapons Convention, for example. Some are weak—the Biological Weapons Convention. None provide for use of force in case of violation. But they arguably represent an emerging norm against use of WMD. I cannot say yet that there has been a norm established against the use of nuclear, biological and chemical weapons that amounts to customary international law, but these many treaties developed to curb the use of WMD and attempts made to strengthen them suggest a serious attempt to develop such a norm. There has been very limited use of WMD over a long period of time. Unfortunately, the United States was the first user of nuclear weapons in 1945. Nor did the United States respond to Iraq’s Halajba attack against the Kurds in 1988. But America has also pushed for stricter arms controls and has abided by its arms treaties on the whole. While I cannot argue that an attack on Syria is legal, there is a stronger basis than just gut feeling or the broad brush of “legitimacy” to justify such an action.
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