John Bellinger Endorses a Not-Legal Military Intervention in Syria

by Julian Ku

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.

This formulation cries out for more elaboration (and he is welcome anytime to do so here).  I am certain that Legal Adviser Bellinger would not have advised his client in quite this way.  If one really thought international legality was so crucial, wouldn’t it be better to seek out a plausible legal theory, rather than simply rely on muddy political formulations?  For instance, wouldn’t it be easier just to recognize the Syrian opposition as the government of Syria, and get their consent?  Or is Bellinger conceding that the international laws here are effectively optional in certain situations?
http://opiniojuris.org/2013/01/22/john-bellinger-endorses-a-not-legal-military-intervention-in-syria/

9 Responses

  1. Although the opposition does appear to be growing in strength and to control some areas inside Syria, recognition of the Syrian opposition would still be premature and therefore an unlawful intervention in Syria’s internal affairs in violation of UN Charter Art 2(7) and UNGA Res 2625 (which is binding custom per Nicaragua).

  2. Very few would argue that humanitarian intervention or R2P provide a legal basis for intervention outside of the Security Council framework. As regards humanitarian intervention, only one of the States involved in the NATO intervention in Kosovo even attempted to articulate a general right to humanitarian intervention–it can hardly be the “settled practice accompanied by opinio juris” that is required for the emergence of a customary exception to the Charter/customary rule. As for R2P, the 2005 World Summit Outcome Document made clear that it was conceived within the bounds of existing law.
    //The prevailing framework for such interventions is that they are illegal, but, given the right circumstances, legitimate. Legality is not morality. In any case, Bellinger isn’t outside the norm at all here. And if the US could articulate an intervention into Syria in convincing moral (i.e., altruistic) terms, many of the political concerns that Bellinger raises in regards to illegal interventions would not be a problem in the case.
    //Of course, recognizing the Syrian opposition as the government of Syria and getting their consent might also be a violation of Syria’s sovereignty. Who knows what Bellinger the Legal Adviser would have said. Probably that positive international law considers such acts to be illegal, but that many publicists have said that, under circumstances, they could nevertheless be legitimate and it would be up to the political leaders to make a determination.

  3. A similar discussion is occurring over at ejiltalk.com.  Note that he was Legal Adviser with two types of hats for Condi — who felt equally unrestrained by international law with respect to secret detention and illegal treatment of other human beings!
    In any event, he is wrong.  The recognition of the legitimate representative of the Syrian people by three members of the UN SC, by Turkey, by the Arab League, by many other countries, is a significant development.  The legitimate govt. is no longer that of Assad, the rebels are now those under Assad’s power, the new legitimate govt. and rep. of the Syrian people can request outside assistance — which can be termed self-determination assistance and/or collective self-defense.
    He is absolutely wrong that what is happening in Syria is the internal affair “of” Syria.  Crimes against humanity, war crimes, human rights violations, and self-determination are not simplistically the internal affair of a single state!
    He is absolutely wrong that only the SC can authorize the use of force of any sort absent SC approval or self-defense under UN 51.  Art. 52 allows “regional action,” esp. when the SC is veto-deadlocked. The US engaged in regional action under the OAS, etc. re: the interdiction of Soviet missiles to Cuba, and re: NATO in Kosovo.  He apparently cannot even see the self-defense claim that the legitimate govt. and rep. of the Syrian people have and can use with respect to non-state actor armed attacks by the Assad rebels.
    Too many are unprepared to think “out of the box” with respect to states and governments, even though there have been several types of actors in the international legal process with formal roles other than “the state” for several hundred years and international law has never been merely state-to-state.  In any event, self-determination is enschrined in arts. 1(2) and 55 of the UN Charter. Trends in decision have recog. the propriety of some forms of self-determination assistance, etc.

  4. Jordan, a couple of points.  Art 52 is not an exception to the Charter prohibition – I refer you to Art 53(1): “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority.  But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council…“.  NATO’s intervention in Kosovo was unlawful under the Charter framework – you could maybe make an argument about an emerging norm re humanitarian intervention, but I think that’s a long bow to draw, at least before R2P and the UNSC’s limited endorsement of it in relation to Libya.  In any case, that still requires UNSC authorisation.
     
    Second, recognition as ‘the lawful representative of the Syrian people’ is a political, not a legal, action.  It doesn’t mean that the opposition is the government of the state, just that we would like it to be.  The core criterion for statehood (per Crawford) is effective control of the territory and the governmental apparatus.  Capable as the rebels are, and as much territory as they might hold, Assad is still unquestionably in charge.  His army is not a “non-state actor”.
     
    A question: could Russia, China, Pakistan etc recognise the Taliban as the legitimate representative of the Afghan people and then, having been invited by the Taliban to intervene in Afghanistan, implement a no-fly zone?  The hypothetical is flippant, but it is illustrative of the dangers of an overly-cavalier attitude towards recognition of rebel groups as the legitimate government of the state.
     
    There’s a reason we don’t like to “think outside the box” when it comes to the rules on the use of force – the justifications we use in Kosovo could just as easily be used against us in South Ossetia.  The rules on the use of force and non-intervention are strict for exactly this reason – once you allow too many exceptions, the prohibitions are essentially worthless.
     
    That said, I understand the instinctive moral impulse to intervene in Syria, and I agree with Daniel that an intervention can be illegal but legitimate (again, see Kosovo). However, I suspect that in this case doing so would be unwise.

  5. AGW: Art. 52 recognizes the propriety of “regional action,” which is different from “enforcement action” controlled by the S.C. in Art. 53.  These are magic phrases in that respect.  With respect to the Cuban Missile Crisis and U.S. action, the S.C. did not authorize enforcement action and the U.S. did not claim Art. 51 self-defense, but regional action authorized in connection with the Rio Treaty and the OAS as a regional organization was a basis for legality.
    Regarding self-determination assistance outside of regional action or enforcement action, recall the 1984 GA Res. concerning the illegality of the Apartheid Regime and the right of the people of S.Af. to outside assistance.
    If recognition of a govt. is “political” (as is de-recognition), it does not follow that there are no direct and indirect legal consequences from recognition or de-recognition.  We have various actors in this scenario — the state (which continues to be recognized as such), the govt. (perhaps two), the people (with one legitimate rep.) — and in a context of armed conflict and self-determination if not also self-defense of the Syrian people.  Does Assad and his “govt.” really have “effective control of the territory”? as of today, even of Damascus? 

  6. Jordan, Art 52 has never been accepted in that fashion precisely because 53(1) is so clear.  Certainly in the Cuban Missile Crisis the US proffered that as an explanation, but it was never tested (and I don’t think anyone was particularly keen to object and take a step towards armageddon on the basis of a legal technicality).  I note that the ICJ in the Legality of the Use of Force case practically turned itself inside out to avoid pronouncing on the legality of NATO’s Kosovo intervention – for good reason.  None of the major works (Shaw, Dinstein, Cassese etc) accept that Art 52 works in that fashion.
     
    Second, calling someone ‘the legitimate representative of the Syrian people’ is not the same as recognising them as the government of the state.  It’s a rhetorical exercise that demonstrates our support for their cause.
     
    Further, my understanding of the situation (admittedly limited) is that Assad still controls substantial portions of the territory and all of the levers of government.  In any case, (again citing Crawford), the question is not one of who controls 51% of the territory; the presumption in cases of state failure/civil war is that the current government remains legitimate until another entity effectively supersedes it – thus the Somali government survived, even though at one stage it controlled only a few blocks of Mogadishu, and even that only with foreign help.

  7. AGW: you have posited some interesting thoughts, such as seemingly conflating govt. with state (as if they have the same criteria), assuming that there can only be one govt. (“until another entity effectively spersedes it”), that a govt. must control territory.  These are good examples of state-oriented thinking and/or inattention to the fact that there have been a number of formal actors in the international legal process other than the state for a few hundred years.  With respect to control of territory, what about govts. in exile during WWII?  With respect to actors other than the state, consider the fact that a nation need not have statehood status but can enter into int’l agreements and have a govt. (such as the Navajo nation, nations in Africa and New Zealand, etc.), that the U.S. and other states have had int’l ags. with tribes (some of which have had govts.), that a belligerent under the laws of war has a formal status and a govt. (like the CAS during the US civil War, and it was recog. by England, other states in Europe, and the US as a belligerent and not a state), peoples (such as the Palestinian people), and even some insurgents (without outside recog. as a belligerent, nation, or state).  The U.S. has also had treaties with free cities and other entities, some of which had govts.
    Under the laws of war, it would be appropriate to recognize that there are two govts. presently in Syria, that a belligerncy occurs (which is also an international armed conflict to which all of the customary laws of war apply).
    Also, you seem to assume the every state that has recognized the entity that is the legitimate representative of the Syrian people has in no way, directly or impliedly, recognized that that entity has a govt.  One of my points is that that entity can consent to outside assistance in the form of self-determination assistance and/or collective self-defense.  As a belligerent, it can also consent ot outside assistance, whcih could trigger a war (depending on the type of assistance) with the Assadis if the Assadis are also a belligerent at this time.  The entity could consent to the destruction of chemical and biologival weapons in Syria.  NATO could also declare that such weapons (or when they fall into “the wrong” hands) consitute a threat to regional peace and security within Art. 52 of the UN Charter.
    With respect to the fact that there have been many non-state actors with formal status under international law for at least the last two hundred years, please see http://ssrn.com/abstract=1701992
    That some state-oreinted writers cannot read Art. 52 of the Charter in a way that captures its ordinary meaning and also the history of its drafting in view of claims in the Americas with respect to regional peace and security is not unusual.

  8. Jordan, I agree that many non-state entities, including belligerents, insurgents, peoples etc. can possess qualified international legal personality.  However, sovereignty belongs to states alone (though they may delegate certain aspects – eg the right of indigenous groups to conclude treaties), and only states can invite foreign intervention in their affairs (with the possible exception of national liberation movements in the colonial context).  Put simply, the Navajo nations can’t invite China to invade the United States.
     
    One should also remember that recognition of belligerency does not entitle a state to intervene – doing so would violate the Charter framework.  Belligerency is merely a functional status for when states need to recognise an armed group for practical reasons (traditionally for reasons relating to maritime commerce), and in any case has largely fallen into disuse.
     
    Further, belligerents have never been accorded the right to invite foreign intervention (again, with the possible exception of national liberation movements).  States justifiably recognise that doing so would open an overly-broad exception to the Charter framework that would be readily abused.
     
    Also, NATO can declare something a ‘threat to regional peace and security’ as much as it likes, but cannot use forceful measures unless the UNSC authorises them under Article 42.
     
    Finally, on your article 52 point, I refer you to http://www.un.org/en/sc/repertoire/regional_arrangements.shtml: ‘Article 52 provides for the involvement of regional arrangements or agencies in the peaceful settlement of disputes; Article 53 allows such arrangements to take enforcement action, but only with explicit authorization by the Security Council. Article 53, therefore, creates a mechanism that allows the Council to utilize regional arrangements to implement its enforcement measures.’  The page then provides a number of examples when the UNSC has authorised such measures.

  9. “sovereignty” only with states?  state-oriented thinking.  In the U.S., we have long expected that sovereignty lies with the people.  It would not be unusual to recognize that a nation or people can have relative sovereignty (like the US S.Ct.).
    Regarding Art. 52 and the OAS authorization, one can cite Abram Chayes, Leonard Meeker (57 AJIL 515, 523-24 (1963)), Charter Commentary at 845 (Simma ed. 2 ed. 2002), Whiteman, Dig. of IL at 523-24 (1965), Gray, Int’l L. and the Use of Force 113 (2000), see also O’Connell, Int’l L. and the Use of Force 397-405 (2 ed. 2009). Sure, there are also but see cites.
    Yes, the SC has used regional orgs. in the past when they can agree to vote for a resolution — but that is not determinative.
    By the way, there have been many non-state actors that have had and there are many that still have international agreements with states did not have an authority to do so from a state. 

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