Barack Obama favours decisive action, but which legal framework or norm supports a strike against Assad?
The conflict in Syria has been in a state of constant escalation for two and a half years, with civilian displacement and casualties increasing ever further with no peaceful end in sight. Yet, it was the use of chemical weapons, a tool of war with a uniquely abhorrent reputation, which has finally brought this humanitarian crisis to the top of international policy makers’ priorities. While global leaders debate over which option would be the most effective, or least burdensome, it is important that any intervention used has not just maximum legitimacy, but also the maximum legality possible behind it in order to avoid damaging international laws which have taken decades to build. This essay will look at possible legal options within the United Nations before examining the viability of using other frameworks and international treaties as the basis for intervening in Syria, concluding that if the UNSC remains in deadlock, the best alternative with legal footing is the Responsibility to Protect doctrine.
There is no question that maximum legality for the intervention of the US and its allies in Syria would be provided through a UNSC resolution, as the Security Council stands as the supreme arbiter on international law. Yet after two and a half years of civil war, a death toll documented as at least 94,000 by the Syrian Observatory for Human Rights, and millions displaced in hostile conditions or – if they are lucky – seeking shelter in the bulging refugee camps in Turkey and Jordan, the UNSC remains in deadlock. China is refusing to condemn Assad, not out of allegiance, but because of its foreign policy principle of ‘non-interference’. Russia, however, has long been a strong ally of the Syrian government, and refuses to enforce the international norm against the use of chemical weapons for fear of losing a strategic advantage in a region where the United States has 45 military bases; chilly US-Russian relations seem less a relic of the Cold War and more a reality of contemporary international politics. Since 2011, Russia and China have vetoed three proposed UNSC resolutions condemning Assad and calling for punitive steps against his government. As the crises deepens and the humanitarian burden begins to spread across the region, it is relevant for world governments to explore any additional legal options available in order to protect the young, the old and the unarmed increasingly being put on the frontline.
There are several options available through the UN that would bolster legality claims for intervention. One possibility worth exploring is the Uniting for Peace resolution of 1950, which allowed for the United Nations General Assembly to call an emergency session when facing UNSC deadlock, enabling the US and its allies to stop the USSRs attempts to use its veto to cut off support for UN-mandated forces in Korea. Although this would not carry the same weight of a UNSC mandate, it would demonstrate that most of the world’s governments support retaliation against the use of chemical weapons, and as all General Assembly votes so far have had a majority opposing Assad, it would be a safe bet that this is achievable and would lend greater strength for the legal position of the US and its allies. Furthermore, Article 51 of the UN Charter gives states the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN. Theoretically this could be invoked if Turkey or Israel asked the US for self-defence because of cross-border violence the two have faced during Syrian civil war, yet this would be difficult to defend as the basis for an attack which did not directly affect Syria’s neighbours or the US, and thus its legal standpoint would likewise prove weak. Significantly though, the Geneva Conventions would apply in this situation as it is a civil war, and so upholding these could be used as legal justification for intervention as the use of chemical weapons on civilians would amount to a war crime, possibly even a crime against humanity.
There are other frameworks outside of the UN which could be claimed as providing at least some legal basis. The concept of reprisal has deep roots in international law that might offer – certainly for the United States – a more viable path for action, as it does not imply a commitment to the defeat of the Assad government. The International Committee of the Red Cross has strict conditions for the use of a reprisal: it must be done for the purposes of inducing compliance with international law; it must be used as a last resort; it must be proportionate; and it must be approved at the highest levels of government. There are a number of problems with applying these criteria to the question of intervening in Syria. First, despite the fact that Syria is a party to the 1925 Geneva Protocol banning the use of chemical weapons, the Treaty itself does not authorize the use of force upon countries which breach this agreement. Furthermore, Syria is one of just five countries which have not signed the 1993 Chemical Weapons Convention against the use of chemical weapons, and thus a precise legal justification is less easy to pinpoint. This can be countered by arguing that the ban on using chemical weapons is an established and respected international norm ever since the use of mustard gas in the First World War, a norm which has been compounded upon after the use of Zyklon B in the killing of 1.2 million human beings in the Second World War. It is also debatable as to whether a reprisal would constitute as a last resort, as all conceivable diplomatic means have not yet been brought to bear upon Russia and Assad and been subsequently totally exhausted, yet it is hard to justify spending time doing this, which could amount to months, as it could play into Russian hands by damaging the international resolve to punish the use of chemical weapons, all the while doing nothing while civilians are indiscriminately massacred. What’s more, the concept of reprisal does not perfectly lend itself to the situation in Syria. The right of reprisal is normally seen as residing with those party to a conflict, not outsiders to it, and if outside states did so it would be very difficult not to then themselves violate international law, for example by causing substantial loss of life of pro-Assad civilians. For these reasons, despite its attractions as a short, sharp punishment, using the cover of a reprisal would be dangerous both practically and legally.
The “Responsibility to Protect” (RtoP), albeit not a law, is based on international law and provides the strongest framework to justify intervention if the UNSC stays in deadlock, as is highly likely it will. In the aftermath of the NATO-led intervention in Kosovo which side lined the UNSC in fear of the Russian veto, then-UN Secretary-General Kofi Annan created an international commission to recommend ways that intervention could be reconciled with Article 2.7 of the UN Charter which upholds member states’ domestic jurisdiction, out of which the Responsibility to Protect (R2P) doctrine was born. There are three pillars to this doctrine: one, the state carries primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing; two, the international community has the responsibility to encourage and assist states in fulfilling this responsibility; third, the international community has the responsibility to use diplomatic, humanitarian and other means to protect populations from these crimes, and if a state is manifestly failing to protect its population, the international community must be prepared to take collective action to protect these populations in accordance with the UN Charter.
Advocates of R2P claim to have a legal basis that carries more weight than an international norm is present in its unanimous adoption at the UN 2005 World Summit, as well as its extensive thresholds, of which there are six, which specify precisely when it can be enacted and inhibit the potential for its misuse. First, there must be just cause to intervene, with a serious threat causing irreparable harm to human beings. Second, there must be a right intention, with the intervention being used to prevent suffering as the overriding objective. Intervention must be a last resort, with every other measure either exhausted or deemed useless. There must be legitimate authority for an intervention, and it must use proportional means with the minimum necessary means applied to secure human protection. Finally, there must be reasonable prospect that any intervention will succeed in protecting the population and the consequences of such action can be deemed as better than no action at all. These thresholds are comprehensive enough to ensure that protecting civilians is the overriding priority, minimising non-combatant casualties and limiting the scope in which any country intervening on humanitarian grounds can use the opportunity to achieve wider geo-strategic goals.
Although a UNSC resolution would provide the strongest legality to any intervention in Syria, for there to be no other legal options would be to allow the very war crimes the United Nations was founded to prevent. With this in mind, the second strongest alternative would be to use the framework of the Responsibility to Protect doctrine, which prioritises civilian protection and narrows the parameters that intervening states would be allowed to work within.
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