Syria Insta-Symposium: John Quigley on Intervention

by John Quigley

[John Quigley is the President’s Club Professor Emeritus of Law at Moritz College of Law, The Ohio State University]

It is hard to find a basis for justifying air strikes against Syria. The British Government has said that humanitarian intervention would be a lawful basis. Prime Minister Cameron’s office says that such a doctrine exists in international law, that it has three elements, and that all are met. Cameron’s three elements: There is convincing evidence of extreme, large scale humanitarian distress; there is no practical alternative to the use of force if lives are to be saved; and the use of force must be proportionate and aimed at relieving a human crisis.

French President Francois Hollande says that “international law must evolve with the times,” so as not to allow mass murder to go unchecked.

Even if Hollande and Cameron are correct that humanitarian intervention has somehow entered into customary law, thereby trumping the UN Charter, the requisites do not seem to be present. One requisite – which Cameron omitted – is that a plan for intervening on humanitarian grounds must be rationally calculated to secure protection for the presumably endangered population. Chemical weapons cannot safely be bombed. Degrading delivery systems, which is the apparent plan, leaves the weapons intact. Whether Syria would or would not be able to deliver them after a 2-day bombing raid is speculative. Or even if the bombing does seriously degrade, it would be a matter of time before a delivery capability were re-constituted.

Air strikes would result in deaths. One would need a very strong case that those deaths are justifiable.

The House of Commons was uncomfortable authorizing action before the evidence was in. The videos that Secretary of State Kerry cites as compelling evidence have been challenged as evidence on the basis that if an agent like sarin were involved, medical personnel would not be able safely to treat victims.

Another argument that some are making is that while the strikes may not be legal, they are legitimate. Call me a positivist, but in my simple-minded view of international law, an action is either legal or it is not.

Some in the Administration are apparently invoking self-defense, on a rationale that chemical weapons in the possession of Syria’s government might “fall into the wrong hands” and be used against the United States or against US-friendly states in the region, naming Jordan, Israel, and Turkey. Apart from this being too distant from the “armed attack” required by UN Charter Article 51, self-defense could apply only to the United States, absent a request from another state for “collective” self-defense, a request that could be valid only if the other state had been attacked. The possibility of weapons falling into unfriendly hands, in any event, provides no justification for missile attacks. The attacks are apparently not aimed at the weapons themselves but at delivery systems. The attacks are not aimed at securing the chemical weapons to keep them from being obtained by others.

Still another assertion apparently emanating from the Administration is that US inaction might be an invitation to others to use chemical or other banned weapons. That assertion is too speculative to constitute an argument under self-defense. The Administration inadvisedly set a “red line” that use of chemical weapons would bring action by it. One now hears, in particular from Mike Rogers, chair of the House intelligence committee,  that the US must attack, lest its credibility suffer. It would be unfortunate if military action were undertaken for that reason. One is reminded of the last few days before NATO’s bombing of Serbia in 1999, when NATO officials said that NATO had been threatening Serbia for so long that if NATO did not attack, NATO’s credibility would be undermined.

UN Secretary-General Ban Ki-moon is right on this one. The Security Council remains the only route whereby strikes could lawfully be conducted.

7 Responses

  1. John: I agree that a mere claim of preemptive self-defense (e.g., what the White House spokesperson has previously offered as a “legal” claim — arguing that a “signifcant threat to national security” of the U.S. has been created by the Assad regime’s use of chemical weapons) would not be legally acceptable (whether or not anticipatory self-defense prior to the initiation of an “armed attack” would be lawful when an armed attack is immient).  I agree also that a mere retaliatory claim (e.g., the Assad regime violated the laws of war in a serious and egregious manner and we will use armed force as a retaliatory, punitive, sanction response) has no traction in international law or, for the President, in constitutional law.
    However, the matter is more complex, given the ongoing belligerency in Syria and significant outside recognition of the opposition as the legitimate representative of the Syrian people, their probable consent to use of force, etc. (see responses to posts below).  Yet, to make a justifiable claim under international law and, therefore, constitutional law, the Obama Administration should shift its main focus from a merely preemptive and/or retaliatory purpose (although mixed motives would not detract from those that comport with international law involving forms of collective self-defense and a textually sound and policy-serving read of article 2(4) in this special circumstance).
    There is much for our students to ponder.

  2. You are looking at it from a legal perspective.  I am looking at it from a humanitarian perspective.  Blowing up innocent people because innocent people were killed is nonsensical.  We need to definitively determine who set off those chemical weapons, and then pursue it diplomatically.

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