States Are Failing Us in Syria — Not International Law

by Kevin Jon Heller

Last month, Just Security published a long and thoughtful post by Rebecca Ingber with the provocative title “International Law is Failing Us in Syria.” The international law she is talking about is the jus ad bellum — the illegality of unilateral humanitarian intervention (UHI) in particular. In her view, the failure of the international community to use force to end the humanitarian crisis in Syria indicates that an exception to Art. 2(4) for UHI is “the only means of preserving international law’s credibility in the use of force realm”:

The reality is that there will be times that states use force out of a sense of moral imperative and long-term strategic importance, and not out of a specific self-defense rationale. International law – and we international lawyers – can try to stand in the way, at times constraining morally imperative action, at times getting bulldozed; or we can look the other way and be sidelined, perhaps even tell policymakers and our clients to move forward without us. Or, we can engage and work with them to help craft the most sound, narrow, acceptable grounds possible, together with our allies. This view is not an acceptance that international law does not matter. It is an acceptance that international law – like so much public law – operates in a dynamic space that is inevitably interwoven with the reality of how states act and the widespread acceptance of its legitimacy.

I don’t want to focus here on the legal aspects of Ingber’s post, other than to note that when she claims “our allies… have become comfortable stretching the outer bounds of what international law has historically been thought to permit” with regard to the use of force, she links almost exclusively to UK practice. (The one exception is “unwilling or unable,” where she refers to the flawed Chachko/Deeks post that tries to categorise state positions on the doctrine.)

The legal questions are, of course, interesting. But what I find most problematic about Ingber’s post is its most basic assumption: namely, that the international community has failed to do more in Syria because UHI is not legal. That assumption, I think, is categorically false. If the King of International Law announced tomorrow that UHI was consistent with Art. 2(4) of the UN Charter, it would have no effect on the international response to the Syrian crisis. Literally none.

And that is because international law is not failing us in Syria. States are.

Or, more precisely, the self-interest of states is failing us. States have not intervened in Syria to end the humanitarian crisis because doing so would be immensely costly in terms of both blood and treasure, not because Art. 2(4) doesn’t permit UHI. There is no easy solution for states concerned about Syria, such as a Kosovo- or Libya-style airpower campaign. If they want to end the crisis, they will have to invade Syria and destroy the large and generally well-equipped Syrian army — a task that would make the invasion of Iraq look positively economical by comparison. And the sad truth is that the US is not going to spend billions of dollars and accept thousands of dead American soldiers to save a bunch of defenceless Syrian civilians. Nor is the UK. Or France. Or Germany. Or any other state.

Do intervention-minded scholars disagree? Does anyone really believe that there is a head of state out there — actual or even potential — who at this very moment is saying to herself “I could end the Syria crisis tomorrow if that damn Art. 2(4) didn’t prohibit unilateral humanitarian intervention”? The idea beggars belief. I am on record with my insistence that UHI is not only unlawful but criminal, but I’m not stupid. A successful UHI in Syria would result in a Nobel Peace Prize, not a confirmation of charges hearing.

What is most striking about Ingber’s post is that she barely attempts to defend her claim that international law is preventing the kind of UHI she believes is necessary in Syria. All she says is that “with respect to Syria alone, the fact that international law may have played a role in taking intervention off the table during the Obama presidency (and there are subtle indications that it did) should weigh heavily on us now.” I’ve read both of the documents to which she links, and the indications are subtle indeed. In the press conference, Obama openly acknowledges the real reason why the US did not intervene in Syria while he was President — it wasn’t worth the cost:

So with respect to Syria, what I have consistently done is taken the best course that I can to try to end the civil war while having also to take into account the long-term national security interests of the United States.

And throughout this process, based on hours of meetings, if you tallied it up, days or weeks of meetings where we went through every option in painful detail, with maps, and we had our military, and we had our aid agencies, and we had our diplomatic teams, and sometimes we’d bring in outsiders who were critics of ours — whenever we went through it, the challenge was that, short of putting large numbers of U.S. troops on the ground, uninvited, without any international law mandate, without sufficient support from Congress, at a time when we still had troops in Afghanistan and we still had troops in Iraq, and we had just gone through over a decade of war and spent trillions of dollars, and when the opposition on the ground was not cohesive enough to necessarily govern a country, and you had a military superpower in Russia prepared to do whatever it took to keeps its client-state involved, and you had a regional military power in Iran that saw their own vital strategic interests at stake and were willing to send in as many of their people or proxies to support the regime — that in that circumstance, unless we were all in and willing to take over Syria, we were going to have problems, and that everything else was tempting because we wanted to do something and it sounded like the right thing to do, but it was going to be impossible to do this on the cheap.

Obama takes the same position in the interview with Jeffrey Goldberg. Nothing in the interview suggests that the illegality of UHI had anything to do with Obama’s unwillingness to intervene more dramatically in Syria. On the contrary, as Goldberg explains by means of contrasting Obama with Samantha Power, he simply doesn’t believe in UHI:

Power is a partisan of the doctrine known as “responsibility to protect,” which holds that sovereignty should not be considered inviolate when a country is slaughtering its own citizens. She lobbied him to endorse this doctrine in the speech he delivered when he accepted the Nobel Peace Prize in 2009, but he declined. Obama generally does not believe a president should place American soldiers at great risk in order to prevent humanitarian disasters, unless those disasters pose a direct security threat to the United States.

Goldberg recounts many of the factors underlying Obama’s realist view of American military power. The key one, though, is pragmatic, not legal — the disaster of NATO’s supposedly humanitarian intervention in Libya:

But what sealed Obama’s fatalistic view was the failure of his administration’s intervention in Libya, in 2011. That intervention was meant to prevent the country’s then-dictator, Muammar Qaddafi, from slaughtering the people of Benghazi, as he was threatening to do. Obama did not want to join the fight; he was counseled by Joe Biden and his first-term secretary of defense Robert Gates, among others, to steer clear. But a strong faction within the national-security team—Secretary of State Hillary Clinton and Susan Rice, who was then the ambassador to the United Nations, along with Samantha Power, Ben Rhodes, and Antony Blinken, who was then Biden’s national-security adviser—lobbied hard to protect Benghazi, and prevailed. (Biden, who is acerbic about Clinton’s foreign-policy judgment, has said privately, “Hillary just wants to be Golda Meir.”) American bombs fell, the people of Benghazi were spared from what may or may not have been a massacre, and Qaddafi was captured and executed.

But Obama says today of the intervention, “It didn’t work.” The U.S., he believes, planned the Libya operation carefully—and yet the country is still a disaster.

The Libya fiasco is particularly important, because it is tempting to believe that collective UHI in Syria might be more successful than individual UHI. It probably would — except that the benefits of collective action would still not outweigh the reluctance of powerful states to spend blood and treasure for merely humanitarian concerns. Libya is a case in point: NATO countries were willing to drop bombs on the Libyan army, but they would never have committed soldiers to a ground invasion. They are not willing to put them in Libya now, when the risks are minimal. So even if Ingber is right that states have shown “widespread support for military action in response to humanitarian crises” (and I don’t think she is), she is still missing the fundamental point: they support military action by others, not by them. It’s not an accident, for example, that interventionists like John McCain and Lindsey Graham expect Arab soldiers to do the fighting for them in Syria.

And, of course, Syria is not Libya. Or even Kosovo. On the contrary: unlike in those situations, UHI in Syria, whether individual or collective, risks a shooting war with Russia, the second most powerful military in the world, and perhaps with Iran. That unpleasant possibility provides a far more effective deterrent to military action against Assad than the text of Art. 2(4) ever will.

What, then, is to be gained by “divining” or “crafting” an exception to Art. 2(4) for UHI, as Ingber suggests? The legality of UHI would not lead to humanitarian interventions in Syria or in any other comparable situation. But it would give powerful states like the US yet another pretext for using force to promote their national interests. Why invoke an inherently selfish rationale such as self-defence as a pretext for aggression when you could invoke humanitarian intervention instead? Who is opposed to helping innocent civilians? And if we take your land and oil and other resources along the way, well, we have to pay for our selflessness somehow, don’t we?

Legalising UHI, in short, will not lead to more humanitarian uses of force. It will lead to more aggression. And that is because international law is not the problem in Syria and elsewhere. States are.

4 Responses

  1. Spirited, thoughtful, and persuasive reply, as always. Questions:

    1. I get what you mean by distinguishing between international law as the problem and states as the problem, but how far does that get you? Put aside the fact that states are primary drivers of international law, so of course any of its flaws fall to them, ultimately. If the Charter required consent of all states but one before force could be used, would we say that the fault was not at all with the “international law” rule’s construction, but rather with the state casting its veto? Is the Security Council system messed up, or is it just the fact that permanent members aren’t always noble enough? Here, I think, the claim is that the law puts undue emphasis on self-interested states being able to claim self defense as opposed to claiming HI.

    2. Is your claim that an HI exception would invariably be epiphenomenal in terms of state behavior, or does it depend on such an exception being rigorously/narrowly applied to exclude circumstances in which a legitimate HI argument were present that coincided with an intervening state’s self-interest (including, it must be said, the moral priors of its citizens)? If the latter, query whether it depends on how the exception is crafted and developed; obviously if the “responsibility” and an affirmative obligation to intervene were developed, it could have a greater motivating effect. If the former, that’s a strong claim for the marginality of international law generally. Even if you are right that any criminality of HI would not produce charges re a Syrian intervention, but rather a Nobel Peace Prize, not sure whether you think that’s true universally or dependent on intervention’s success.

    3. Is the evidence about Syria really so one-sided? As you recognize, the comparison between Syria today and the lessons Obama drew from Libya have some complications, and some suggest that intervention in Syria is more of a reach (at least if something with Libya-like objectives was contemplated). But as to Syria itself, he did directly indicate in the passage you quote that the case was more difficult “without any international law mandate”, and one might suppose that other factors (international support, maybe even congressional support) might change *if* there were one. Perhaps that was just aimed at the lack of a Security Council authorization, under the law as Obama understood it, but I think we are asked to contemplate a possibly counterfactual world in which an HI exception is equally uncontroversial.

  2. If memory serves, there were no boots on the ground in Libya in large part because the only way to get the Security Council resolution (UNSCR) adopted was to eliminate that possibility. Therefore, the UNSCR prohibited invasion. For that reason, I am not certain it is fair to assert that the lack of boots on the ground in Libya indicates that NATO “never would have committed soldiers to a ground invasion.” We don’t know. Could be true. Might not be.

  3. Well i dont really know why U.S want to get involve in the whole world problem when they can’t even solved their own debt problem.

    bola tangkas

  4. Kevin, I agree with your position; Assoc Prof Ingber’s opinion troubles me, as do all the comments I hear about how we ‘just need to make new exceptions to the use of armed force but _don’t worry_ we’ll make them _really narrow_. Promise!” As far as I am concerned, the UN Charter regime for the use of force–2(4) and 51–was draft like that for a reason! The Charter’s purpose, of course, is to prevent another World War, or indeed any war between major powers. Nobody can say that the delegates in 1945 were not aware that there will always be ‘flashpoints’ where a moral person might think ‘gee, I have to intervene’; however, the regime was drafted the way it was specifically because world peace and the prevention of a major power war or World War is prized as the ultimate goal which, like it or not, outweighs the admirable intention of intervening to stop smaller conflicts. Intervention in such conflicts, if allowed, could lead to tit-for-tat, escalation, etc, until the situation snowballs into a major war or a world war. This is precisely why the only exception to the lawful use of force is self-defense against ‘an armed attack which occurs’. Note the tense of that excerpt from art 51; it’s why I also believe that anticipatory self-defence does not meet the requirements of art 51. The framers purposefully limited the lawful use of force to the extremely circumscribed context of defence against an armed attack which is already occurring, which is already taking place. If I knew that my neighbour didn’t like me; if I knew he had a plan to kill me in 6 months time; if I knew he had bought a gun, would I be justified in breaking into his house at night and bludgeoning him to death with a hammer? No. A court would convict me of murder in the first degree, because my act would not have been self-defence; it’d just be premeditated murder. In such a situation, I should go to the authorities. States, likewise, should go to the authorities. That’s why Ch VII of the UN Charter allows for the Security Council to authorise force. Can’t get an authorisation because the SC is deadlocked by veto? Well, unfortunately, too bad. Again, the drafters of the Charter must have foreseen such a possibility. And they must have thought the overriding Charter goal of preventing World War outweighed the inconveniences which might occur when the SC is deadlocked and can’t issue an authorisation. Even when such a situation occurs, once the armed attack does happen the victim state has the right to individual and collective self-defence. The system isn’t perfect, but we don’t live in a perfect world. Those are my thoughts on the matter!

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