Syria Insta-Symposium: Jennifer Trahan-The Legality of a U.S. Strike on Syria

Syria Insta-Symposium: Jennifer Trahan-The Legality of a U.S. Strike on Syria

[Jennifer Trahan is an Associate Clinical Professor, NYU Center for Global Affairs, chair of the American Branch of the International Law Association International Criminal Court Committee, and member of the American Bar Association 2010 ICC Task Force]

As the U.S. prepares, with or without coalition partners, for a potential military strike against the Bashar al-Assad regime in Syria , it is important to consider the legality of such a strike as a matter of domestic and international law.  At the international level, with a U.N. Security Council resolution, such action would be clearly legal.  Without such a resolution, the law is in somewhat of a grey area, but the legality is supportable.

The “responsibility to protect” doctrine, developed in recent years, makes clear that the international communitydoes have a responsibility to protect a people in peril from grave atrocity crimes.  Recent formulations of the “responsibility to protect” doctrine suggest that large scale war crimes and/or crimes against humanity — acknowledge to have occurred in Syria — are such atrocity crimes.

While the clearest path to utilizing forceful intervention under the “responsibility to protect” framework is through Security Council authorization (as happened in the case of Libya ), tragedies such as genocides in Rwandan and Darfur dramatically pose the question:  what should the world do when the votes are not there at the Security Council level?  Should one simply allow massive humanitarian tragedies to be inflicted by a regime on its own people absent a Security Council resolution?  Does one really need to wait for recalcitrant China and Russia (permanent members of the Security Council possessing veto power) to do the right thing?

A legitimate argument exists that even when the Security Council does not authorize humanitarian intervention, it is arguably still permissible.  As formulated by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, while the decision to intervene should be made by the Security Council, if the Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation.”

Clearly, intervention through a coalition of partners, such as a NATO coalition (as occurred with Kosovo) lends greater legitimacy (although even that is technically not sufficient under a strict reading of the U.N. Charter).  But when a broad coalition or regional actor is unavailable, does that mean that countries must stand by and let mass atrocities, such as the use of chemical weapons (a necessarily indiscriminate weapon), occur?  The answer is arguably no.

While the U.N. Charter only clearly permits intervention in two scenarios:  U.N. Security Council authorized action and article 51 individual or collective self-defense, the Charter also contains a clear commitment to human rights.  Committing mass atrocity crimes is about the clearest violation of human rights that one can get.  Thus, while humanitarian intervention is not clearly legal under the U.N. Charter, it is not clearly illegal either.  We are in a grey area where the demands of morality and those of international law are not yet fully harmonized in a clear manner.  Should thousands more die while we wait for international law (which can take decades to form) to catch up to where it should be?

We might have not reached this point had Assad regime members (as well as others actors in Syria ) felt much sooner that the international community was scrutinizing their actions.  This could have happened through a Security Council referral of the situation to the International Criminal Court.  Unfortunately, that has not happened, and any chance to deter crimes through a referral has been squandered.

While the U.S. contemplates a strike, important criteria for consideration include those formulated by the Secretary-General’s High-Level Panel on Threats, Challenges and Change.  Namely, last resort:  “Has every non-military option for meeting the threat in question been explored . . . ?”  Proportional means:  “Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question”? Balance of consequences:  “Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?”

The Administration is facing a difficult choice as the U.S. contemplates moving ahead, hopefully along with coalition partners such as France .  Yet, a flexible reading of international law does not demand that countries stand impotent in the face of over 100,000 fatalities and the use of chemical weapons.

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Jordan
Jordan

Jennifer: the R2P argument is mostly a humanitarian intervention argument, which Deborah (post below) and others do not accept.  States were unable to agree on unilateral use of force in response to a state’s violation of R2P (at the time of the 2005 G.A. Res.). A textually sound and policy-serving claim would be that Article 2(4) facially only prohibits three types of armed force and that in the special circumstance of an ongoing belligerency in Syria and substantial outside recognition of the opposition as the legitimate representative of the Syrian people a use of force in response to chemical weapon attacks on civilians is not “against” the terrritorial “integrity” of Syria, “against” the “political independence” of the Syrian people, or in any other manner, on balance and in view of relevant purposes ofthe Charter (e.g., peace, security, self-determination of peoples, and human rights — and R2P) that is inconsistent with the purposes of the Charter.  The text of a treaty is quite relevant to its interpretation and nothing in Article 2(4) prohibits all uses of armed force. Additionally, the opposition, as the legitimate representative of the Syrian people, could publicly consent to a responsive use of force by the U.S. and… Read more »

Guillermo
Guillermo

You cannot cite the High Level Panel report in support of an unauthorized intervention. Paragraph 203 of that Report says:
“We endorse the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other largescale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.”

Benjamin Davis
Benjamin Davis

just up at saltlaw.org/blog – http://www.saltlaw.org/blog/2013/08/31/an-obscene-american-leadership-double-standard/
Best
Ben

Guy
Guy

As usual in international law, the US might maybe legitimately argue that the intervention in this case is legal if it accepted that other countries would have the right to do the same in similar circumstances, mutatis mutandis. So for instance: Cuba could intervene to stop massive violations of HR in Guantanamo, Mexico could intervene in Texas to prevent discriminatory policies against Mexican nationals, China could intervene in Malaysia to stop massive discrimination of Chinese nationals there, Russia could intervene in Georgia to stop Georgia’s attempts to ‘invade’ border regions inhabited by Russians or other nationalities that would prefer not to remain ‘within’ Georgia and so on (these are just hypothetical examples, of course). If the US do not need the approval of the UNSC to intervene for what they consider ‘good’ reasons, why shouldn’t others be able to do the same? Doesn’t the law work like this? If it is the law for the US, it should be for everybody else! What is baffling is that US administrations frequently consider themselves above the standards they assume for others, although they would much better work on a real international legal system binding everybody now that they have the authority to do… Read more »

Jordan
Jordan

Jennifer: footnote 44 of the 34 U. Pa. J. Int’l L. 431 (2013) article notes that Turkey, France, Saudi Arabia, Bahrain, the United Arab Emirates, Oman, Qatar, Kuwait, the U.K., and the U.S. had recognized the opposiiton as the legitimate leader of the Syrian people by the end of 2012.

Kevin Jon Heller

Jennifer,

The only source you cite in defense of unilateral humanitarian intervention is the report issued by ICISS. But I fail to see how that report is relevant: ICISS was an ad hoc committee of 12 individuals acting in a private capacity, not as representative of states. So it is not state practice and does not contribute to opinio juris. Where, then, is the state practice and opinio juris in defense of your position that, notwithstanding the UN Charter, unilateral humanitarian intervention is permissible? 

Kevin Jon Heller

I am also curious about your assumptions concerning the interpretation of the UN Charter. Where do you find a “clear commitment to human rights” that is capable of trumping Art. 2(4)?

Jordan
Jordan

Kevin: there are many actors other than the “state” with formal status in the international legal process (e.g., nations, peoples, tribes, belligerents) and there are those with informal participatory roles.  Opinio juris is not controlled by “states” formally or realistically.  Even private reports and writings have been used as “evidence” of customary law or opinio juris. Keven: why would article 2(4) necessarily trump article 56 (which is tied to article 55(c) and the preamble of the Charter as well as the purposes set forth in article 1)?  The purposes of the Charter are varied.  One purpose expressly relates to universal respect for an observance of human rights and U.N. organ obligations with respect threto (in article 55(c)) and state obligations (in article 56). And, moreover, why would application of article 2(4) not involve attention to human rights purposes and obligations of U.N. organs and states when article 2(4) expressly proscribes use of force inconsistent with the purposes of the Charter?  Why would Jennifer’s and my read of article 2(4) be textually or in a policy-serving way be completely unacceptable given the fact that per the text of article 2(4) only three types of use of force are proscribed? Why would… Read more »

Tamás Hoffmann

Dear Jennifer,
 
“I concede that if one is going to utilize a strict constructionist reading of the UN Charter and R2P, then one must allow a million people to perish if faced with a Rwandan genocide, as the world did.  This is why I suggest that it is also possible not to take such a strict constructionist reading.”
This is a compelling moral argument for intervention but definitely not a legal one. You cannot adduce evidence about the existence of R2P without Security Concil authorization. Wouldn’t it be more intellectually honest to simply say that as a moral being you want it to be lawful de lege ferenda and would even support the breach of international law if that would save human lives? Why do you have to couch moral arguments as legal ones?
 

Charlie Martel
Charlie Martel

Thanks Jennifer to you and your colleagues for the insightful discussion of this excruciating decision.  I hope the Congressional debate and accompanying public discussion is as illuminating as the OJ symposium and discussion on Lawfare. I’m relieved that the President is involving Congress, and note that he’s preserved room for himself and his successors to use force without Congressional authority, so it seems that claims of Constitutional surrender of executive authority are not warranted.   I am very skeptical that as a policy matter force is the right option, and hope the debate will include careful examination of whether force will save lives or risk causing even greater loss of life. My substantive reason for posting is to gently contest the idea that there is not a basis for humanitarian intervention without SC approval under international law.  Caveats first–I agree this is a very disfavored position, that it is opposed by the Charter’s express limits on the use of force, and that HI as a right is undefined and subject to abuse that could swallow the rules against use of force. Having said those things, the preamble to the Charter states that the purpose for the Charter and the UN itself is to “protect… Read more »

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[…] בסוריה בעקבות השימוש שביצע המשטר הסורי בנשק כימי. ג'ניפר טרהאן (NYU Center for Global Affairs) מציעה כי למרות העובדה שבהיעדר אישור […]

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[…] The legality of a US strike on Syria […]

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[…] Jennifer Trahan, 8-31, 13,  is an Associate Clinical Professor, NYU Center for Global Affairs, chair of the American Branch of the International Law Association International Criminal Court Committee, and member of the American Bar Association 2010 ICC Task Force, “The Legality of a US Strike on Syria,” http://opiniojuris.org/2013/08/31/syria-insta-symposium-jennifer-trahan-legality-u-s-strike-syria/ […]

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[…] a host of provocative and timely posts on the subject, including great pieces by Stephanie Carvin, Jennifer Trahan and Peter Spiro, amongst others. Below is my contribution on the state and future of R2P in which […]

Jordan
Jordan

see the post by another Jennifer at Oxford Univ. Press blog and a response by Tony D’Amato re: diplomatic history of art. 2(4)

http://blog.oup.com/2013/09/syria-us-military-strikes-international-law-pil/