by Sam Bright
Estimates vary, but it is possible that as many as 14,000 people have been killed by the fighting that has cursed Syria for over a year. The fighting shows no signs of abating. There have been reports of rape being used as a tool for interrogation. Children are being used as human shields, and there have been massacres of groups of children under the age of 10. The country is being torn apart in a spiralling frenzy of attack and counter-attack.
In light of this, the UK Foreign Minister William Hague (amongst others) has suggested that the tactics being used by government forces are “horrifyingly reminiscent of the Balkans in the 1990s” – and that as a consequence, “all options should be on the table”. This view, shared by other prominent Western actors, is a none-too-veiled reference to the possible use of military force to intervene in the situation. This article intends to outline the legal framework within which any such forceful intervention would have to operate.
The starting point: a prohibition on the use of force
Historically, one State was restricted from using force against another only by questions of politics, resources and morality. Thus when considering, for example, William the Conqueror’s invasion of the British Isles in 1066, the Crusades, or Napoleon’s imperial expansion in the early 1800s, the question of whether the aggressive use of force was legal could not even arise.
The reason for this is that international law is structurally very different to the municipal law that regulates our daily lives. Within any single State, laws are passed by the Government (be it democratic or autocratic) and are binding on the population of that State, regardless of whether any particular individuals – or even a majority of individuals – consent to being bound by that law. This represents the necessary hierarchy of any nation-state: there is a functional distinction between law-makers and law-followers (though we do of course hope our law-makers also follow the law themselves!).
The opposite is true in international law. The starting point at the international level is that no State is bound by any law that it has not consented to. The basic framework of international law is therefore consent: at the most basic level, States are free to pick and choose which rules they are content to be bound by.
This is exemplified by the consensual basis of treaties, which are comparable to a contract made between two individuals. States can decide whether or not to enter into any treaty in the first place: and on having decided to do so, cannot be legally compelled to accept any particular obligations. Some treaties (known as ‘multilateral treaties’) have many dozens or even hundreds of States-parties who have consented to be bound by them: the Charter of the United Nations is perhaps the best known example. It is from the consent to be bound by the UN Charter that the obligation to comply with the diktats of the UN Security Council.
It was not until after WW1 that there first arose meaningful legal prohibitions on the use of force. First agreed in the ‘Kellogg-Briand Pact’ of 1928 in Paris, these prohibitions were most emphatically spelt out in the UN Charter in 1945. Article 2(4) of the Charter states:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
This is, in effect, an absolute prohibition on the use of force by one State against another State – subject to two exceptions, found elsewhere in the Charter.
The right to use force in self-defence
It has always been recognised that when one State is attacked by another, the victim-State must have a right to defend itself. This inherent right is recognised in Article 51 of the Charter. The right is engaged whenever a State is subjected to an ‘armed attack’ by another. Importantly, the right to use force in self-defence is subject to two limiting principles of necessity and proportionality. These principles derive from an incident in 1837, when British special forces set fire to an American steamboat being used by Canadian rebels and sent it over Niagara Falls, and require that the “…necessity of self–defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation”; and that even where force was necessary, the State must do “nothing unreasonable or excessive; since the act, justified by the necessity of self–defense, must be limited by that necessity, and kept clearly within it.”
This exception to the prohibition on the use of force is therefore very much limited in scope. It was on this basis that the US and UK Governments originally attempted to justify the invasion of Iraq, by way of the infamous ’45 minute claim’ and the suggestions that Iraq posed a direct military threat to Western powers and Iraq’s own neighbours (claims that later appeared to stretch the truth well beyond breaking point).
It is clear that in the case of Syria, there can be no justification of military intervention on the basis of self-defence. Assad’s regime, as controversial as it may be, certainly poses no threat whatsoever to those Western States contemplating the use of force. An alternative justification would have to be found.
Security Council Authorisation
Built into the UN Charter is the recognition that there may be some occasions where the international community deems military intervention to be necessary, so as to maintain and restore international peace and security. Such intervention can be authorised only by way of a resolution by the UN Security Council under Chapter VII of the UN Charter. It was originally envisaged that UN Member States would contribute forces to what would in effect have been a ‘world police force’, operating under the authority of the UN – one with more integrity than Team America.
Lack of resources, political apathy and the Cold War (amongst other factors) meant that this UN world police force never came into existence. The early decades of the UN thus saw a massive failure of the international system of collective security. Only in the post-Cold War period has the Security Council really explored ways of getting round the lack of a standing UN army.
The solution identified has been that instead of the Security Council authorising the UN to use forces placed at its disposal by Member States, it has authorised Member States to use ‘all necessary measures’ to restore international peace and security. This was the formula used in UNSC Resolution 678 (1990) to authorise intervention in the Gulf War. It was first used in a context of civil war/humanitarian catastrophe in Somalia in 1992, and has subsequently been used on a number of occasions: most recently, in Resolution 1973 the Security Council authorised Member States to use ‘all necessary measures’ to protect citizens in Libya.
The Security Council is free to determine the scope of its own powers under the UN Charter. However, its near limitless capacity to authorise the use of force is subject to one very powerful restriction: the veto of the permanent members. In 1945, when the UN Charter was signed, it was deemed necessary to allow the five strongest military powers, all victors in WW2, to have a veto over military (and other) action authorised by the Security Council. This was, in principle, to ensure that the Council could not be used as a tool by some of the great powers to injure the interests of other great powers: and so to avoid the risk of global warfare between States with the capacity to nuke the world into oblivion. (Additionally, there was the obvious self-interest of WW2 victors in giving themselves a large measure of control over the new global institution).
Naturally, during the Cold War the veto paralysed all action by the Security Council – with intervention in Korea achieved only because the Soviet Union boycotted the Council, and was left unable to exercise its veto. In the post-Cold War period, greater cooperation between the USA and Russia has allowed the Council to authorise intervention in many more situations. Yet the threat (or reality) of a veto is still a significant and important limiting factor. Its correct use must strike a balance, between allowing Western powers to ogreat a freedom intervene where they should not, and ensuring that intervention is permitted in the situations of greatest need. By way of example, the Council’s greatest failure was its lack of meaningful intervention in Rwanda: almost 1 million people were butchered in 100 days by the interahamwe (and others), yet as they were only armed with machetes, it is thought that only 3,000 foreign soldiers would have been required to prevent the ensuing genocide.
The situation in Syria is frequently compared to that of Libya. I am not in a position of sufficient knowledge to comment on precise factual similarities and distinctions. From a legal perspective, however, there is a major difference. In Libya, it was possible to convince Russia that intervention was justified and, politically importantly, in the best interest not only of Libyans and the region as a whole, but of Russia itself. In Syria, the opposite appears to be the case. Russia has a substantial political and financial interest in the continued rule of the Assad regime; and there appears to be a significant risk of greater regional unrest should their be Western intervention under the guise of the UN.
As things stand, it appears unlikely that the Security Council will authorise another Libya-style intervention. Absent such authorisation, there is no possibility of intervention under the conventional rules of international law.
Humanitarian intervention and the responsibility to protect
There is one final possibility: namely, invocation of the doctrine of the responsibility to protect. In the early 2000s, there was a move amongst many at the UN – encouraged by Kofi Annan, then Secretary-General – to recognise the principle that States have a responsibility to protect the rights and the lives of their own populations: and that when they fail to do so, other States might have a right to military intervene on humanitarian grounds.
It is highly unlikely that this principle represents international law – though it is argued by some that it constitutes customary law. As with treaty-law, custom is based on State consent – but here, rather than asking whether States have signed an agreement, we consider how they behave. Where they behave in a consistently uniform manner over a sufficient period of time, and where they say that they consider themselves bound or permitted by law to behave in that manner, we are able to identify the existence of customary law.
There are very few examples of states intervening militarily to prevent a humanitarian crisis (absent Security Council authority) and stating that they believed themselves permitted to do so by law. One oft-quoted example is that of NATO action in Kosovo: George Robertson, then the UK Defence Minister, stated: “We believe that military action is clearly justified in the circumstances of Kosovo given the undisputed humanitarian emergency and the rejection by Milosevic of all diplomatic efforts”. But apart from that one controversial example, instances of such humanitarian intervention are hard to identify.
Were the responsibility to protect/humanitarian intervention principle to represent a customary law principle, Syria might well fall within its scope. However, even ignoring the political and human implications of military intervention on this basis, great thought would have to be given about the legal precedent that this establishes. Just how failed does a state have to be, or how cruel a government, before we give a carte blanche to foreign states to forcefully intervene to compel regime change? And this without requiring the authority of the Security Council or any other international body. A dangerous route to go down, I would suggest.
No legal basis for intervention in Syria
As things stand, the US, UK, and other interested parties have at most tenuous legal authority (via the responsibility to protect doctrine) to intervene in Syria. For those seeking such authority, the best hope is to persuade Russia of the worth of such action in the Security Council, which could then authorise force by way of a Chapter VII Resolution, as in Libya.
From a legal perspective, such action raises few difficulties. However, from a political, economic and, most importantly, human perspective, military intervention is fraught with danger. One need only look to Iraq, where a Lancet survey suggests that from 2003-2007, over 600,000 Iraqis died due to the US-led invasion. Perhaps then, rather than falsely accusing them of shipping attack helicopters to prop up Assad’s regime, we should welcome Russia’s restraining hand and the limit that places on war-hungry Western politicians.