The Bizarre Proposal for "Humanitarian" Military Intervention in Syria

Post the Second World War international relations have been governed in accordance with the formal notion of equality of states based on inviolability of sovereignty. Any exception to it would only be in accordance with the international law consented to voluntarily by independent states. This was brought in by way of the United Nations Charter and the United Nations as an institutional framework. If there is any single aspect that is of significant value that the United Nations system brought to the community of states, it is the prohibition of use of force against other states. This prohibition is articulated in the form of legal dictum which ideally would entail responsibility in the event of its violation. Thus there have been efforts by states every occasion they indulge in use of force against another state to justify their action in accordance with the existing normative structure.  This normative structure as embodied in the UN Charter remains a comprehensive scheme regulating the use of force between states. In the concrete sense, the use of force is prohibited under article 2(4) of the United Nations Charter. However this prohibition is subjected to two exceptions. One exception is that the use of force is permitted as individual or collective self-defence. The other is the use of force with the authorisation of the UN Security Council.

A situation can invite use of force under individual or collective self defence only “if an armed attack occurs against a member of the United Nations”.  If there is no actual armed attack there is no possibility to resort to use of force under the individual or collective self defence. Similarly if there is a threat to international peace and security, the UN Security Council can authorise the use of force under Chapter VII of the UN Charter. Thus the legality or the illegality of the wars that took place in the past were sought to be justified in reference to these provisions in the UN Charter. However, there have been situations where US led coalitions sought to justify military interventions beyond these UN Charter provisions which constitute clear violations of international law. This justification of military interventions in violation of UN Charter provisions were contrived in the name of humanitarian intervention. Humanitarian intervention is understood as use of military force to prevent humanitarian crisis particularly in the form of human rights violations of people in a territory. In the recent past similar situations are argued as falling under the category of the Responsibility to Protect (R2P) framework. The debate around the present Syrian situation is centered on the issue of the justification of proposed use of force and reliance on the language of humanitarian intervention.

The Syrian Situation

The allegations of use of chemical weapons by the Syrian government against its civilians have created the momentum for military intervention by the United States. The US and its allies seem to set the ground for use of force against the Syrian government on this pretext. It is argued that the use of chemical weapons changed the circumstances inviting military intervention as they fall under the category of weapons of mass destruction (WMD). However, any form of military force against Syria would be illegal if it does not meet the requirements set in well-established international law. Thus it is necessary that any form of use of force in Syria should fall either under the right of individual or collective self defence or it should be authorised by the Security Council. Firstly it cannot be justified under the right of self-defence because the Syrian situation is purely internal and no act of attack has been alleged to have been committed by Syria against any of the UN member states, therefore use of force under self-defence is not justified.

The other possibility is the authorisation by the Security Council which can happen through the adoption of a resolution under enforcement measures under chapter VII of the UN Charter.  The expected opposition and use of veto by Russia and China has been anticipated by the United States and its allies to create a case for military intervention without the authorisation of the Security Council.  For this purpose the UK government came up with a legal justification for intervention under the doctrine of humanitarian intervention. Though the UK parliament voted against the authorisation of use of force by UK, its legal position on the doctrine of humanitarian intervention is expected to govern the military intervention by the western countries in general.

The UK government’s legal position argues that the use of chemical weapons created the humanitarian crisis warranting use of force. It maintains that “[t]he use of chemical weapons by the Syrian regime is a serious crime of international concern, as a breach of the customary international law prohibition on use of chemical weapons, and amounts to a war crime and a crime against humanity”. Syria is not a party to the Chemical Weapons Convention of 1993; however, it is a party to the Geneva Gas Protocol of 1925. Prohibition on the use of chemical weapons may be (and should be) argued as has become customary international law keeping in view the large number of states that are parties to the 1993 Convention.

However, it is legally incorrect to argue that the use of chemical weapons amounts to a war crime or a crime against humanity. Going by the Rome Statute which establishes the International Criminal Court, use of chemical weapons is neither a war crime nor a crime against humanity. The consequences of the use of these weapons may amount to war crime and crime against humanity but their use per se is not criminalised by the Rome Statute so far. Therefore the use of chemical weapons has not changed the character of the conflict in Syria as the civilian casualties were happening prior to that also on equally large scale in the bloody conflict.

Further the UK government unilaterally formulated the test of three conditions as the doctrine of humanitarian intervention, which it developed on its own. The first condition is that “there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief”. Factually at best this condition is partially met in the case of Syria. It cannot be denied based on reports that there is a humanitarian distress involving killing of civilians and displacement of people.  However, what needs to be underlined is that the international community as a whole so far has not accepted the same as being precipitated by the Syrian government alone and has not spelt out what kind of relief needs to be extended. In the absence of clearly worded relief measures, military intervention cannot be permitted as the only alternative.

The second condition is that “it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved”. The Syrian government has been denying the use of chemical weapons and the UN team is yet to conclusively establish the use and the users (including the rebels) of chemical weapons and the UN Secretary General appealed for the diplomacy to be given a chance. In this scenario it is nothing but hawkish to argue for the use of force as the only option. Even for the use of force, the Security Council has the primary responsibility for the authorisation of use of force. If it fails to do so because of lack of unanimity, the involvement of the UN General Assembly can also be explored as an exceptional measure under the “Uniting for Peace” resolution.

The third condition adduced by the UK government resolution is that “the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose)”. At best this condition can remain as a general guideline for military operations as the gravity and longevity of the use of force will primarily depend on that of the military resistance from the other side. This condition largely remains vague as a priori it is not possible to provide the maximum threshold of the use of force except that it can be understood as stopping short of the regime change.  However, the experience of Libya shows that intervention continued to the extent of deposing Muammar Qaddafi’s regime. Because of the impossibility of limiting intervention in time and scope it is feared that the intervention, instead of preventing them, might lead to more civilian casualties.

Legality of Humanitarian Intervention

Is there a basis for the use of force under the humanitarian intervention doctrine in international law which is parallel to the regulatory mechanism provided under the UN Charter? The answer to this question is an unequivocal ‘no’ as neither the UN Charter nor any other international treaty provides for use of force for humanitarian reasons. However, a conceivable explanation can be provided for the existence of humanitarian intervention in the customary international law. What needs to be investigated is whether such right exists in customary international law or not. For customary international law to come into existence two conditions are to be met i.e., state practice and the opinio juris or the psychological element of the existence of legal obligation. The crux of the existence of customary international law principle is that there has been an overwhelming practice by states in respect of a principle, in this case humanitarian intervention, and that practice should be accompanied by the psychological conviction that that principle is a legal obligation. The reality is that there has been a continuous opposition to the doctrine of humanitarian intervention adopted by a few western states and never has there been an overwhelming practice in favour of this doctrine. On the other hand there has been continuous insistence on the sovereign equality of States and that “every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State”[1]. Another authoritative evidence for the non-acceptance or non-existence of the doctrine of humanitarian intervention in international law is the coming into vogue of the concept of Responsibility to Protect (R2P), which would not have been possible had there been acceptance to the former.

The major development in the last decade with regard to the use of force is the concept of Responsibility to Protect (R2P). The essence of the R2P is that the duty to protect civilians primarily lies with the state in whose territory the violation of human rights takes place and when that state is unable or unwilling to protect or the state itself is a perpetrator then the international community has the responsibility to protect (See para 2.29 in link here). However, even in such situations the power of authorising use of force is left to the UN Security Council only ( Part 139 of World Summit Outcome 2005). Therefore R2P cannot bypass the UN Charter mechanism so far as the use of force is concerned. The Libyan situation is seen as the authoritative case for the use of the R2P concept. However, there was some form of authorisation by the Security Council in the case of Libya, though the western allies went far beyond the given mandate of the Security Council Resolution.

Use of Force and the UN General Assembly

A less explored possibility is the role of the UN General Assembly in the authorisation of the use of force. Though the primary responsibility for the maintenance of international peace and security lies with the Security Council, there does not exist a complete exclusion of a role for the General Assembly. The role of the General Assembly in the use of force was recognised as far back as in 1950 when the "United for Peace resolution” was adopted by the General Assembly. This resolution was adopted at the initiative of the United States to prevent the use of veto by the erstwhile Soviet Union in the context of the Korean situation in the 1950s. This resolution provides that when the Security Council fails to take appropriate action because of the lack of unanimity among permanent members, the General Assembly shall consider the matter and make necessary recommendations.[2] This resolution was used in the cases of the Korean War, the Suez Canal crisis and on several other occasions. In the context of Syria if there is a possibility of Russia and China exercising veto against any action, and if the US is keen to go for an action to prevent humanitarian crisis, the option of initiating such action under the Uniting for Peace resolution may possibly garner support if the presence of such a crisis can be established with convincing evidence. However, this legal position is not being resorted to by the US and its allies, probably due to the reason that it requires convincing many states in the General Assembly for the authorisation of the use of force. Any such action would also amount to bypassing the veto power of the permanent five members of the Security Council, for which this method was developed in the 1950s. The US and its allies do not seem to be ready to send across such a message of inability on the part of the Security Council and the possibility of rendering the power of veto ineffective. Therefore they are carefully ignoring this option.

It is reported that the US is contemplating limited and narrow use of force to prevent the Syrian government from future use of chemical weapons and that president Barack Obama wants to get congressional authorisation for the same. It is ironical that an action involving serious international ramifications is not being subjected to any international regulation. This may serve the purpose of garnering internal support from the people of the US by way of conflating the domestic approval with international law requirements. It is another matter that opinion polls have pointed out to overwhelming opposition to intervention in Syria.

In the absence of justification under either of the UN Charter provisions or Security Council or General Assembly authorisations, a US military intervention in Syria would amount to an illegal war involving state responsibility under international law.

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