The Legality of a Syrian Military Intervention: Russia, France, and the UK Weigh In

by Julian Ku

It looks like the tragic events surrounding a likely chemical weapons attack in Syria will spark a military intervention by the United States, France, and Britain without the authorization of the U.N. Security Council.  We have already heard President Obama publicly state that international law is a factor in the decisionmaking process in the U.S. and the NYT suggests U.S. officials are looking at Kosovo as a precedent for an intervention.  Now other leading powers are weighing in.  First to the plate, Russia:

“Using force without the approval of the UN Security Council is a very grave violation of international law,” Foreign Minister Sergei Lavrov told reporters.

Speaking at a news conference urgently convened just a few hours before, he added that the West was currently moving towards “a very dangerous path, a very slippery path”.

Next into the fray, France, whose foreign minister seems to concede Russia’s point about legality, but then makes a mysterious reference to bypassing the UNSC.

France’s foreign minister said on Monday no decision had been made yet on whether to take military action against Syria, but doing so outside the auspices of the U.N. Security Council would be problematic.

“It is a problem that will be difficult,” Laurent Fabius told Europe 1 radio.

“International law is defined by the United Nations, but at same time there are countries (on the council) that are blocking (military action)- China and Russia have blocked and would probably block again so it would be a problem…

“In certain circumstances we can bypass it, but international law does exist,” he said without elaborating.

I have no idea what he is talking about in terms of “international law is defined by the United Nations.” I am also wondering what circumstances would allow France to bypass the UN Charter, given that it is defined by the U.N. itself.

It may be that France is following the UK’s lead, as the UK’s foreign minister is also hinting that an attack without UNSC authorization is going to happen.

Mr Hague said diplomatic methods to resolve the civil war in Syria had “failed so far”.

He said the UN Security Council, split over Syria, had not “shouldered its responsibilities”.

The council is made up of 15 members including permanent members China, Russia, France, the US and the UK which have the power to veto any resolution.

But any action could be taken “without complete unity on the UN Security Council”, he said.

He said a response could be “based on great humanitarian need and distress” and “in accordance with international law”.

It sounds like the UK and France are both going to need to come up with some international law theory to justify their support for an attack, and the UK seems interested in the “humanitarian intervention” justification.  If the U.S. goes along with this, it would be interesting to see if the “invisible college of international lawyers” will endorse this legal theory.

http://opiniojuris.org/2013/08/26/syrian-military-intervention-international-law-russia-france-weigh/

23 Responses

  1. Assuming we intervene militarily one wonders how we will greet the Russian forces already on the ground over there? Or the DPRK military (serving in a “consulting capacity only” of course), or the Iranians who’ve also showed an interest?
    Will it be something like Pristina airport where we all just had a socially awkward moment and then nervously pretended we were all happy to see each other?

  2. What if Saudi Arabia intervenes before the rest and puts a wahabist government in power. How legal would that be?

  3. If Syria was removed from the United Nations, (because it is not abiding by United Nations Charter conditions) then Syria would no longer be a legitimate state, therefore United Nations member states would no longer consider Syria a state in the sense that it was to be protected by the United Nations rules and regulations. If this is at all possible then it would not be a question of intervention or attack in relation to the United Nations rules and mechanisms (in regards to the Security Council) but a matter outside of the influence of normal non intervention. This is one possible way to circumvent the Security Council and the United Nations. This theory as it is is not without criticism, however it is a possibility not usually considered. I put this forward in my thesis ‘Where is R2P grounded in International law’ Judson, Otago 2012. 

  4. @ Anne Marie Judson. First of all, it’s quite a big “if”; expulsion requires a recommendation from the UNSC (subject to veto from P5). Practicalities aside, is it not true that the ICJ made it pretty clear in its first case on the Corfu Channel incidents that Albania (who was not a UN member state at that time) was bound and protected by the rules of international law, including the norms in the UN Charter that had attained customary character, such as the prohibition on the use of force and the principle of non-intervention?

  5. Is it not also true (Remy) that the International Covenant on Civil and Political Rights was signed to protect citizens from harm? Also true is the fact that states can derogate from the ICCPR when in a state of emergency and therefore can overide all rights during this specific time?So long as they follow the procedural methods prescribed? Is it not also true that the purpose of the Security Council is to intervene when there is a threat to international peace and security? Is it not also true that we do not have a positive duty to act? BUT A moral duty to act and therefore we must find a way to intervene at the least cost possible to all others?  The truth in the matter of law is the people that are dying and we refuse through fear of war to not interfere when it is possible although not necessarily procedurally correct. If it was not procedurally correct to intervene in Germany in WWII would we have (now) stood by and watched as Hitler fumigated millions right in front of our eyes. What is necessarily a rule of law in times of peace is not necessarily a rule of law that will continue in times of war. What is just and fair are jurisprudential  questions? Children are dying there is no fair and just answer to that. No amount of legal, political, economical, philosophical bargaining can over ride the mere facts that innocents are suffering while we discuss the checks and points of arguments. 

  6. No amount of policy arguments can overcome the fact that your argument is completely flawed from a legal perspective. Obviously it is a shame that the UNSC is unable to act due to the vetoes of the P2. Yet, to argue that expulsion solves all the problems of non-intervention not only demonstrates a misunderstanding of international law, it is also an act of reasoning towards the outcome no matter what the established law says at this point. Arguing the legality of humanitarian intervention without UNSC approval probably would have served your cause better, at least with some credibility, rather than arguing that non-UN Member States are not bound and protected by international law.

  7. There is no positive duty to act. Once again only a moral duty to act. R2P is a positive duty to act backed by a moral duty, but not a legal one. There is no escape from arguing that any member of the Security Council can veto an intervention. Kosovo was flawed. Libya with approval was still flawed. Is this the reason why we should not intervene because we can not find a legal argument to intervene? The United Nations was set up to ensure ‘never again’ can you (Remy) give an international legal argument for intervention? It is easy to disprove anyone argument in international law as there are many theories. However it is more difficult to come up with solutions. 

  8. Anne-Marie, with all due respect, but first you make a legal argument to the effect that expulsion solves the problem here, which is not the case. All I was saying is that this argument is not very credible from a legal point of view, a point that you seem to accept after all. I am certainly not saying that there is no moral duty to act, please don’t get me wrong. However, it’s impossible to cherry-pick the rules of international law without completely undoing the stability that is the primary achievement of its existence, as much as it is impossible to argue that “never again” was the only reason to set up the UN. If something is “legitimate, yet illegal”, it is still unlawful no matter the altruistic motives. Humanitarian intervention or recognizing the rebels as new government have their own factual and legal problems, but in any case the concepts are not so much contested as the expulsion-argument.

  9. In his interview with Europe 1 radio, French foreign minister Fabius didn’t actually say that international law is defined by the United Nations nor that France would bypass the UN Charter.
    When asked about the refusal of the UN to intervene in Syria, he said that the international legality (legalité internationale”) is defined by the UN, apparently referring to the fact that under international law the legality of such an intervention depends on a decision by the UNSC.
    It is also evident that he was referring to the UNSC when he said that in certain circumstances it can be bypassed, adding that “it is necessary to be careful because the international legality does exist”.
    What he did acknowledge is that there is a responsibility to react to the chemical weapons attack (without specifying whether this is a moral or legal duty).

  10.  

    The Additional Protocol to the Geneva Convention of the 12th August 1949 and relating to the Protection of victims of International Armed Conflicts, 8th June 1977

    This Convention is the last of the five customary laws of the Geneva Convention series. It starts with a reaffirmation of the Charter of the United Nations.
    “Every state has the duty to refrain from the threat or use of force against another sovereignty, territorial integrity or political independence of any state or in any other manner consistent with the United Nations Charter”.
    These prevention policies are to ensure protection of civilians; protected by international law and the principles of humanity derived from established customs and the dictates of public conscience. Article 85 considers a grave breach to be any indiscriminate attack on civilians causing severe harm.
    There is no doubt that Syria under this convention has breached and committed war crimes against its own citizens.
    If the purpose of refraining from intervention is to ensure the  protection of civilians and the principles of humanity then in the example of the Syria it is the opposite. If we do not intervene then we are going against the purpose of non-interference. 
    If we intervene then we are serving the principles of humanity and the dictates of public conscience. 

  11. I have a few problems with this theory Anne – Marie.
    As I understand it a member state of the United Nations can be expelled from the organisation in accordance with article 6 of the UN Charter. This would perhaps be a course of action in and of itself to be considered in relation to Syria. However, should such an expulsion take place I would doubt whether one could then draw the conclusion that Syria had ceased to be a state.
    Furthermore the prohibition on the threat or use of force does not flow soley from the UN Charter. It is a principle of customary international law and would therefore not cease to apply within the Syrian context just because Syria had been suspended from the UN. Obviously this prohibiton is not absolute and there are circumstances in which the use of force may indeed be legal under international law. The point is that I believe this would remain the case absent of the applicability of the UN charter to Syria.
    Perhaps I have misunderstood your argument and I will be the first to concede that I am no expert in this area. I just have some difficulty in seeing how Syria could somehow be stripped of its status as a state simply by being suspended from the UN and that this in turn would pave the way for intervention

  12. Anne-Marie, first of all, AP1 is not the fifth customary instrument of IHL. Although a large part of it may be seen as reflecting customary law, this certainly not goes for the whole instrument (see e.g. Art. 1(4) and the workings of Art. 44(3) and (4) regarding the minimal distinction rule; besides, all the rules dealing with combatants are not applicable in a non-international armed like Syria conflict anyway).
    In addition, have a look at the rest of the Preamble while you are at it. In particular the expression that nothing in AP can be construed as allowing actions that would not be in conformity with the jus ad bellum. The obligation in Art. 1 to “ensure respect” – even if it is applicable at all to NIACs, see earlier discussion on OJ – is to be exercised in accordance with the rules of IL, incl. the rules of jus ad bellum (see Commentary to AP1, para 46). The primary purpose of the principle of non-intervention is not to ensure the protection of the civilian population, it is to preserve the sovereign equality of states (which is, after all, still the bedrock foundation of IL). 
     

  13. Maybe we are asking the wrong questions?
    Maybe the question should be;
    Do the prevention policies that are put in place to ensure protection of civilians (protected by international law and the principles of humanity derived from established customs and the dictates of public conscience) trump the policies of non-intervention or does non-intervention trump the protection of civilians, protected also by international law? 
    In other words; 
    In international law does the rule of law protect states or people first? If it is states then there is no argument against protecting a state for namesake. Or if the answer is the people then there should be no problem intervening for the benefit of the people. 
    Either way there is an obvious conflict of law that needs to be addressed. 

  14. Arguing that states have a unilateral right to decide which value trumps the other is essentially arguing that international law can be disregarded if one wishes to do so. Such balancing exercise is expressly left to a collective determination in the UNSC, or through the actions, omissions and reactions of the international community in the process of forming a potentially new rule of customary international law (or, rather, modifying the jus cogens rule on the prohibition of force, an exercise that seems to be more demanding than “simply” creating new rules of IL).
    That said, your reformulated question starts with the wrong premise: namely, that the principle of non-intervention exist to ensure protection of civilians. This can hardly be maintained, especially for the fact that the rules in article 2 UN Charter were formulated long before modern human rights treaty law started to regulate in a binding manner the way that states must deal with citizens subject to their jurisdiction. Even the law of human rights acknowledges the primacy of states in the international legal order (e.g. through margins of appreciation, rules on restrictions and derogations, and the requirement of separate declarations to give citizens the right to complain to supervisory bodies).

  15. Darren, Remy.
    1. It is only a theory no doubt in need of further research and at 12.30am in New Zealand a little late. 
    2. From memory (from an earlier study 2012) I proposed that a) a state is recognized by the United Nations, as a state by all other members upon the undertaking of becoming a United Nations member. All the other states have to recognize it as a state. Such as is the case for Palestine. It must be recognized as a state. 
    Therefore in theory a state is not a legal state unless it is recognized by all other member states. 
    Then if it is not a legal state neither then at that time can be considered sovereign. 
    If it cannot prove sovereignty nor legal status or political status (because it is in conflict) it cannot also claim territorial integrity because it is not recognized as such. 
    Because it is neither a state, nor sovereign, nor does it have territorial authority/integrity, it could not be argued that if a state (a member of thie united nations) intervened (on behalf of humanity for people not state) that it could come within the rule of law that Protects “states, sovereignty, territorial integrity or political status if it has none. 
    Although far fetched (I admit) it would not fit within the definition of non-intervention. 
     

  16. Anne-Marie, 
    A lot of what you’re saying is legally unsound, regardless of your motivations. We all agree that what is happening in Syria is tragic, and I suspect most of us agree that there is at least a moral duty, on the part of our purportedly enlightened international community, to act. But a moral duty, even if it is conceded, does not translate into a legal duty. 
    The flaws with your UN expulsion theory have already been pointed out. Membership in the United Nations is not a prerequisite for Statehood. The existence of a state is a question of fact under customary international law. The question is whether an entity meets the criteria laid out in the Montevideo convention. Recognition by other states is irrelevant. Even if we accept so-called “constitutive theory”, expulsion from the United Nations does not amount to withdrawal of recognition. Conversely, admission to the United Nations does not impose an obligation on all Members to recognise a State, so you’re point about Palestine is wrong too (e.g. Israel remains unrecognised by most Arab and Islamic Member States). Syria is a state and therefore, irrespective of its membership in this or that international organization, it is both bound and protected by the rules of international law. That means that the threat or use of force against it is illegal under customary international law. In any case, it is apparent that humanitarian crises like these, and our reactions to them, are becoming more frequent, and expulsion from the UN every time we want to take some action seems like a very cumbersome solution to a pressing legal problem.
    If you’re looking for a legal leg to stand on in supporting military action against Syria, your best bet remains, at this stage, the “humanitarian intervention” doctrine, articulated by the UK in this blog entry. It’s not particularly persuasive either, but sadly, it’s the best there is right now.

  17. Bottom line… UNSC authorization is not possible since at least Russia has well known interests in maintaining al-Assad in Syria. Therefore, the military intervention is going to be carried out in express violation of international law.
    However, USA, UK, France, Germany, etc. can and should make a big effort to show before the Council and/or before the world that indeed the chemical weapons were used by the al-Assad regime. If they do so and the intervention further confirms such information, let’s be honest, who is going to remember that the intervention was illegal under international law?
    The real problem emerges when the intervention is carried out and then the accusations which served as justification for such intervention are not true (as with the case of Iraq in 2003).

  18. “If Syria was removed from the United Nations, (because it is not abiding by United Nations Charter conditions)…”
    Were these the same charter conditions that Nationalist China and the Soviet Union signed on to?

  19. It is easy to see why Intervention is difficult. All the above I could of argued but they are common legal arguments. It is more difficult to argue something  different. I am sure there are thousands of lawyers out there trying to come up with perplexing ideas that stimulate some other argument. However what has been shown here is that it is all too often people will give the standard answers. I see it again and again, while the fate of children is put to the test of some academic and politically inclined argument that underlies international legal theory and practice. At some point the frustrations of the morally good will get to the tipping point and then they will intervene. This is the tipping point and now we will see what their arguments are (moral or legal) I am sure they will find a way. In the end the result is that those who are in charge must make a decision based on rationales. Watch as Syria continues to manipulate international law into genocide and war crimes or say stop this is beyond paperwork this is beyond following the rules it is ultra vires illegitimate from anyone’s point of view, let’s do something about it. 

  20. Last but not least, there are no right or wrong answers, only critical reasoning. If we were to take Feinberg’s “veil of ignorance” theory and  apply it here. We would say it would never happen because under the veil of ignorance we would of ensured a way to protect ourselves from (no matter who we were) from arbitrary attacks from our own governments, and we would of ensured that other countries could intervene in a “supererogatory” way in extreme circumstances. Of course we would have also ensured that it was of choice to intervene (once all other mechanisms had been exhausted) . 

  21. Another possibility that we may see brought up is loss of control over Chem/Bio weapons.  This news suggests that something like this may be the case: http://thecable.foreignpolicy.com/posts/2013/08/27/exclusive_us_spies_say_intercepted_calls_prove_syrias_army_used_nerve_gas
    Couple a loss of control over chemical and biological weapons with the various anti-U.S. factions that are well-known to be operating in Syria, the potential threat to NATO member Turkey, and I believe that we could see a Bush doctrine derivative, pre-emptive self defense rationalization.
    It also seems, however, that such a justification would carry with it a limitation to securing and/or destroying such weapon stocks. A question then arises what the the non-civilian collateral to doing so—e.g. disabling/destroying air defense systems etc.—might be, and how much that might be stretched in order to satisfy a regime change objective.

Trackbacks and Pingbacks

  1. […] El secretario de Estado de EE.UU., John Kerry, con apoyo del Reino Unido y Francia, ha declarado que una intervención (aún no es claro si directa o indirecta) en ese país es inminente.  No obstante, se reconoce que cualquier intervención militar sin el apoyo del Consejo de Seguridad de las Naciones Unidas sería una violación al derecho internacional, y es clara la oposición de Rusia y China (miembros con poder de veto en el Consejo), por lo cuál EE.UU. se enfrentaría a un dilema sobre cómo proceder. […]

  2. […] “The Legality of a Syrian Military Intervention: Russia, France, and the UK Weigh In” – post by Julian Ku on Opinio Juris […]