A Brief Reply on the Legal Bases for Intervention in Syria

by Daniel Bethlehem

In response to Julian Ku’s post here on the potential legal justifications for the U.S. to use force against Syria in the event Assad turns to chemical weapons, Daniel Bethlehem sent along the following. Daniel Bethlehem practices in London and served as Principal Legal Advisor to the UK Foreign and Commonwealth Office from 2006-2011.

Julian Ku suggests that “[a]ssuming no Security Council approval, I think the U.S. would be in technical violation of the UN Charter [were it to intervene in response to an apparent Syrian chemical weapons threat]. Although this may be correct as a matter of international law, it seems like a silly result.”

I agree that this would be a silly result and, with the caveat that a legal assessment would ultimately be fact specific, suggest that the analysis might be broadened to include an examination of the following possible legal bases.

First, the recent request by Turkey under the framework of NATO, now agreed, to be provided with Patriot missile batteries to protect against the risk of a Syrian use of chemical weapons, suggests the possibility of a collective self-defence rationale for military intervention to address such a threat.

Second, with many thousands of deaths and injuries in Syria already, as well as some millions of refugees and internally displaced persons, and the realistic prospect of a significant increase in these numbers if chemical weapons are used, there would seem to be a strong basis for a reasonable assertion of a humanitarian intervention rationale for any action.

Third, there is a line of commentary that suggests that the provision of aid and assistance to one side in a civil war in response to a request is legally defensible – akin to intervention pursuant to request by a government.

A focused Chapter VII authorisation by the UN Security Council would no doubt be the preferable way in which to proceed. But it is not the only available legal framework for action to address a real and substantial threat of the use of chemical weapons.

http://opiniojuris.org/2012/12/08/a-brief-reply-on-the-legal-bases-for-intervention-in-syria/

6 Responses

  1. “Second, with many thousands of deaths and injuries in Syria already, as well as some millions of refugees and internally displaced persons, and the realistic prospect of a significant increase in these numbers if chemical weapons are used, there would seem to be a strong basis for a reasonable assertion of a humanitarian intervention rationale for any action.
    Third, there is a line of commentary that suggests that the provision of aid and assistance to one side in a civil war in response to a request is legally defensible – akin to intervention pursuant to request by a government.”

    These two appear to be politics not law – meaning things that are seen as politically necessary and legitimate but are not strictly legal.
    Best,
    Ben

  2. Whilst the call for analysis to be broadened is to be welcomed, there are significant hurdles in the way of any of the suggested bases being considered legal as a matter of international law (legitimacy aside). 
    As to collective self defence, the Art 51 condition requires an armed attack before the right is engaged (modified in custom to allow anticipatory action). The problem then is that we are considering a wholly internal situation. Syria is unlikely to launch such an attack on Turkey using chemical weapons, and responses to crossborder incidents of the kind that have already occurred would be constrained by the Caroline/Webster requirements. As a result, even the firing of shells into Turkish territory would probably be insufficient to trigger collective self defence targeting chemical weapons stocks, let alone intervention in any more expansive sense. 
    As to humanitarian intervention, the consensus remains that such action is illegal, and that the R2P doctrine, excercised through the SC, is the only legal way to pursue such action. This of course then falls foul of the veto problem.
    The aid and assistance in a civil war point is perhaps the most arguable of the points highlighted here. Dapo Akande’s recent article over at EJIL Talk (http://www.ejiltalk.org/self-determination-and-the-syrian-conflict-recognition-of-syrian-opposition-as-sole-legitimate-representative-of-the-syrian-people-what-does-this-mean-and-what-implications-does-it-have/) gives a good in depth analysis of how this might work. As I did over there, I’d also recommend that readers have a look at Christopher Le Mon’s excellent article on very similar issues ‘Unilateral intervention in Civil Wars: The Effective Control Test Tested’ (2003) International Law and Politics 741.
     

  3. Turkey has already engaged in limited self-defense targetings inside Syria in response to Syrian armed attacks — and to my mind, that triggers a de facto and de jure international armed conflict and the law of war paradigm as well as the self-defense paradigm.  During an international armed conflict, at least, the chemical and biological weapons are a legitimate military target. Points made in my essay forthcoming in the U. Pa. J. Int’l L. in January — see also my prior response to Julian’s post earlier here and my response to Dapo over at EJIL Talk.

  4. That’s an interesting point, and I look forward to reading the article in due course. In the meantime, however, I have two comments.
    Firstly, it may be that the Turkey-Syria exchange so far amounts to the ‘frontier incident’ scenario (in the Nicaragua language) and thus does not engage the right to self defence. That could lead us to the conclusion that either Turkey had no right to respond militarily (fairly unpalatable, and one of the reasons for criticising the distinction) or better, that Judge Simma’s separate opinion in Oil Platforms is correct, and that self defence to something below an armed attack is permissible but subject to heightened scrutiny as to proportionality etc. 
    Secondly, following on from this, whether under heightened scrutiny or the standard Caroline/Webster approach, I find your analysis slightly alarming. It is of course possible that a state can be Art 51 compliant but IHL non compliant based on the response selected. Surely it is also the case that the reverse is true? If Syria fires a shell at Turkey, and Turkey (+NATO) responds by say, not firing a shell back, but destroying Syria’s entire weapons stockpile, whilst I agree that as a matter of targeting, that is IHL legitimate, surely that does not constitute a proportionate response for self defence purposes, and therefore cannot be permitted?

  5. Well, as article 2 (4) of the UN charter prohibits “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” we must conclude that protecting civilians against the use of chemical weapons is inconsistent with the purpose of the UN. Is it? I doubt. Such an interpretation speaks volumes on the radical law Professors that have adopted it, but says nothing about the legality of such interventions.

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