John Bellinger Endorses a Not-Legal Military Intervention in Syria
Former Bush State Department Legal Adviser John Bellinger has a complicated op-ed arguing that the U.S. should be prepared to intervene militarily in Syria, even if its intervention is not strictly legal. His argument is complicated because he rejects the idea that any intervention in Syria now, even with the agreement of the Syrian Opposition, would violate existing international law.
The escalating death toll in Syria, which exceeds 60,000, has increased pressure on President Barack Obama to do more to help the Syrian opposition. But traditional legal rules that protect international peace and security constrain the president’s options. Although the administration recognized the Syrian Opposition Council last month as the “legitimate representative of the Syrian people,” that announcement created no new legal basis for Washington to give weapons to Syrian rebels or to intervene with military force against the Assad government.
The U.N. Charter prohibits member states from using force against or intervening in the internal affairs of other states unless authorized by the U.N. Security Council or justified by self-defense. These rules make it unlawful for any country to use direct military force against the Assad regime, including establishing “no-fly zones” or providing arms to the Syrian opposition without Security Council approval. Russia and China, of course, have continued to block such approval.
So any Syrian intervention would be illegal, under international law. This doesn’t seem that controversial. But then Bellinger goes on to argue that the humanitarian crisis in Syria might still justify an intervention, even if such an intervention is not legal.
Humanitarian crises challenge international legal rules as well as our consciences. But when the Security Council is blocked from protecting civilians against the most egregious atrocities, the United States should be prepared to intervene when other avenues have been exhausted and there is sufficient international consensus to support intervention.
If Assad’s attacks on Syrian civilians continue, the United States and other governments may soon conclude that intervention is morally, if not legally, justified.
This conclusion surprises me, not because I disagree, but because Bellinger has spent quite a bit of ink lately arguing that U.S. military interventions abroad should have an international legal basis (albeit for mostly practical political reasons). I am also surprised Bellinger does not embrace the various legal theories of humanitarian intervention or “responsibility to protect” that might justify an intervention. What this essay seems to argue is that, as a last resort, military intervention can be justified even if it violates the U.N. Charter, as long as there is sufficient international consensus.