Legal Analysis and Commentary from Justia

What Does Opposition to War in Syria Tell Us About the State of International Law?

Syria and US ConceptThe roller coaster of international debate over Syria in the past three weeks seems to have come to a stop as the framework of an agreement has been reached to destroy Syria’s chemical weapons program and the United States has moved back from the brink of war.  For those who celebrate the rule of international law, this may be a welcome turn, but it is too soon to breathe easy because, like any roller coaster, the ride might be gearing up for another go-around; it is still not clear that a unilateral military intervention is off the table.  Beyond that, for much of the American public, anyway, the prospect of a U.S. strike is unappealing not necessarily because of its illegality, but rather because of its punitive and open-ended nature.  Nonetheless, proponents of international law may find some hope in the prevailing American attitude toward war.  The last ten years may not have convinced the United States of the validity of the international rules on the use of force, but they have made much of the world warier of using military force for political aims.

Is Military Intervention Still on the Table?

The weapons deal reached last week calls for Syria to accede to the Chemical Weapons Convention and demands the removal and destruction of Syria’s chemical weapons materials in the first half of 2014.  The agreement is to be backed by a U.N. Security Council resolution that, according to reports, will threaten sanctions under Chapter VII of the U.N. Charter if Syria fails to comply.  Does this mean that a violation by Syria will result in military intervention?  Not necessarily.  Chapter VII covers the Security Council’s powers with respect to a “threat to the peace, breach of the peace, or act of aggression.”

Colloquially, “Chapter VII” is used to denote that the Security Council means business, and many contrast this with Chapter VI, which covers “pacific settlement of disputes.”  But it is important to note that the coercive measures contemplated under Chapter VII include not only the use of armed force, but also economic sanctions and severance of diplomatic relations—coercive measures, yes, but far from martial in nature.  Thus, in its 2011 resolution imposing an arms embargo against Libya and ordering an assets freeze and travel ban against Libyan officials, along with a referral of the situation in Libya to the International Criminal Court, the Security Council was likewise acting under Chapter VII—but military intervention was not addressed until a separate resolution weeks later.

With these other Chapter VII options on the table, U.N. authorization of military intervention in Syria appears even less likely.  And Russia’s clear stance against the use of force, combined with their permanent member status and veto, might all but seal the case against Security Council action to intervene militarily.  Accordingly, there is a distinct possibility that Syria will end up in violation of the recent agreement, but at the center of a new stalemate regarding the consequences.  While some have likened the current situation to that in Iraq ten years ago, it is at this point that the similarities would become much more concrete.

Should Military Force Still Be on the Table?

If a Security Council-authorized intervention is unlikely, then the question remains: Will the United States act without Security Council authorization?  As a matter of international law, it shouldn’t.

Before the vote in the British Parliament strongly rejecting the possibility of using military force, the UK government attempted to frame unilateral military action as consistent with international law based on the theory that international law permits “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe . . . under the doctrine of humanitarian intervention.”  The Obama Administration, meanwhile, has asserted that even though a unilateral strike by the United States “may not fit under a traditionally recognized legal basis under international law,” it still would be “justified and legitimate under international law.”  Neither of these positions is tenable as a matter of international law.

Article 2(4) of the U.N. Charter prohibits the use of armed force by a state against another state with just two exceptions:  states may use military force in self-defense, or they may use military force when authorized by the U.N. Security Council.  Thus, in the event that Russia vetoes a resolution authorizing military force in Syria, or in the more likely event that a resolution never reaches a vote, military intervention by the United States would be a violation of international law.  Some may argue that international law on the use of force is outdated, or damaging to human rights, or simply ridiculous.  These arguments fail to recognize the benefits of the Charter regime.

The U.N. Charter established a system in which peace is the default state in international relations and war is an exceptional occurrence that requires affirmative justification.  The U.N. Charter is a deeply flawed instrument, but the world in which war may not be used by any state as a substitute for diplomacy is far preferable to the world in which war was a legitimate instrument of international relations.

Sending a Message with War

While the Obama Administration has voiced its willingness to use military force in contravention of actual international law—and has remarked explicitly on the power of threats to sway both the Syrian and Russian governments—whether it will follow through on these threats is a separate question.  Aside from deep reluctance from much of the world, the strong opposition of the American public to a military intervention may ultimately dissuade the U.S. government from unleashing the dogs of war.  Those who hope for the survival of Article 2(4) should not, however, rejoice too soon: the war-weary public appears to not care much about the status of an American military campaign under international law.  More important, it seems, is a general sense that the United States has little reason to get involved and little to gain from a military strike.

But this, too, should be of some interest to those who believe there is a good reason for international law to prohibit the use of war as an instrument of diplomacy.  President Obama has repeatedly justified military action in Syria not as a way of protecting innocent human lives or ending the war there, but rather as a means to “send a very clear, strong message” about the strength of the norm against the use of chemical weapons, and as a way of securing “accountability” for President Assad for his violation of this norm.  Ultimately, the war, as framed by the Obama Administration, would be all about punishing Assad for breaking the rules.

There is a long history, both in the United States and outside of it, of using military force as punishment, to send a message.  After initiating air strikes against Libya in 1986 following the bombing of the La Belle disco in West Berlin, which had been frequented by American service members, President Reagan explained in an address to the American public the need to hold President Qaddafi accountable for the terrorist attack.  When in 1998 President Clinton bombed suspected Al-Qaeda camps in Afghanistan and the Al-Shifa pharmaceutical factory in Sudan, he justified the attack not only by reference to the “imminent threat” posed by the facilities to American national security, but also as a means, in light of the East African embassy bombings weeks prior, to “send the message” that terrorists will be held accountable.  And following the September 11 attacks, President George W. Bush recalls colorfully, “My blood was boiling. We were going to find out who did this, and kick their ass.”  In contrast, in the 2011 intervention in Libya, which many believed was as much about a particular animosity toward Qaddafi as it was about protecting human lives, President Obama focused on humanitarian and strategic goals:  stopping the killing of civilians, stemming destabilizing refugee flows into neighboring countries, and protecting the credibility of the United Nations.

Punishment is a powerful justification for war—for anything—when it is undertaken in response to terror or unjustifiable and unspeakable violence.  The moral language of punishment can rally masses to agreement; we all know that attacking innocent people with chemical-weapons is simply wrong, and we can all feel similarly outraged by the horror of that act.  But the difficulty with the moral language of punishment is that it is unclear where we go from here.  When force is used for self-defense, the goal is self-protection.  Even when force is used for humanitarian intervention, the goal is protecting the lives of civilians.  But when force is used to punish, what does that mean?

Secretary Kerry has said it might mean “boots on the ground,” or it might mean an “unbelievably small” intervention.  With a conceptual rather than military goal, it is impossible to feel any confidence that a military intervention can or will be defined and limited.  And after Iraq, the American public no longer has any appetite for undefined and unlimited wars.  Contemporary international law reflects this distaste for war as punishment.  Whereas in traditional just war theory, punishment was a legitimate and indispensable dynamic of war, today, in contrast, punishment is the realm of international criminal law.  We punish through courts, not bombs.

So if we are hurtling toward yet another debate on war in Syria, where does this leave international law?  The same place it was a few weeks ago:  still prohibiting military interventions without the authorization of the Security Council, even if American and British leaders would prefer to pretend otherwise.  And the gaping holes in international law continue to be an embarrassment: Syria has been ravaged by violence for years, but it is only now, after the “red line” has been crossed, that world leaders are thinking seriously about what it means to “flout fundamental international rules.”  Nonetheless, there is reason for hope.  While the distaste in the American public for war might not be about the sanctity of Article 2(4), it does reflect a sense that the spirit behind the Charter rules on the use of force—the idea that military force should not substitute for diplomacy, and that war is not a legitimate tool of international relations—has been again tested, and, at least for now, has survived.

Saira MohamedSaira Mohamed is an assistant professor of law at the University of California, Berkeley School of Law. Her research and teaching focus on human rights and criminal law. She is a graduate of Columbia Law School and the Columbia School of International and Public Affairs. Before joining the faculty of Berkeley Law, she was an attorney-adviser in the State Department’s Office of the Legal Adviser and senior adviser to the U.S. Special Envoy for Sudan. Her most recent article, “Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law,” is forthcoming in the Yale Law Journal.
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