Something is Not Always Better Than Nothing: Against a Narrow Threshold Justification for Humanitarian Intervention

Something is Not Always Better Than Nothing: Against a Narrow Threshold Justification for Humanitarian Intervention

[David Hughes and Yahli Shereshevsky are Grotius Research Scholars at Michigan Law School.]

Western forces have again attacked Syria following the suspected use of chemical weapons by the al-Assad regime. As in 2013 and 2017, international lawyers largely agree that the recent US, French, and British-led operation is illegal. Yet the recent strikes against chemical weapons facilities in Damascus and Homs are part of an enduring narrative concerning the legality and efficacy of unilateral (or unauthorized) humanitarian intervention (UHI). Within this discourse, a majority of legal scholars assert that humanitarian intervention – devoid of Security Council authorization – is legally invalid. However, as a recent post in Just Security demonstrates, though many states share this view, an increasing group now employ justificatory rhetoric in defense of the recent attacks. This rhetoric signals a potential shift. Following the NATO-led intervention in Kosovo, states and scholars vindicated the military response through universal appeals to human rights and justice. This language often remained non-specific. More recently, however, the language assumes precision. It abandons general assessments of an atrocity’s gravity and favors identification of particular incidents – like the use of chemical weapons – as a trigger to legitimize or legalize humanitarian intervention.

The response of international lawyers has been divided. Harold Koh identifies three camps, helpfully categorizing the broad positions that international lawyers assume within this debate. The first (and most sizable) holds that UHI is both illegal and illegitimate. The second offers that the practice remains illegal but certain manifestations may be legitimate. Finally, the third group are reformist (though some within this group already regard humanitarian intervention as lawful). They wish to create a more effective legal system to evaluate, and when necessary, facilitate humanitarian intervention as both a viable and legal response to atrocity crimes.

We address the second and third camps. Following recent events in Syria, some approaches offered by those who wish to preserve the necessity of humanitarian intervention exhibit a similar tendency to those states that seek to vindicate the recent strikes in narrow, incident-specific terms. Narrow exception tests that fail to appeal to the general gravity of atrocities risk further eroding the legal regime governing the use of force. Relegating broad appeals to gravity facilitates (often inadvertently) disingenuous attempts by states to harness humanitarian intervention’s moral force in furtherance of specific interests. The past week evidences how appeals to a chemical weapons justification contribute toward a narrative suggesting that the desire of certain states to reduce the threat of non-conventional weapons is motivated by strategic geopolitical objectives and not the harm these weapons cause. Further, such justification stands in contrast to the call for “common-sense” legitimacy – the appeal to the overarching gravity and universality of an atrocity – that constitutes the most persuasive case for deviating from black-letter adherence to the relevant norms. Those proponents of humanitarian intervention that offer justification premised upon a narrow threshold exception inadvertently diminish the normative force of the call for humanitarian intervention.

A move from the moral origins of humanitarian intervention towards incident-specific justifications:

The moral appeal of humanitarian intervention is grounded in the notion of gravity. Proponents of UHI traditionally suggested that the prevention of atrocity is compelled by the seriousness of the triggering event. Justification relied upon a broad humanitarian rationale. It discounted competing considerations that may otherwise prompt, or serve as a guise for, state interests. Traditionally, discussions concerning the appropriate standard for UHI identified the gravity of the atrocities before subsequent considerations regarding the necessity or effectiveness of the intervention. The case of Kosovo provides example. Here, the United Kingdom, did not appeal to a specific threshold. Instead, they justified their actions as a response to a “humanitarian catastrophe.” Other governments and NATO provided similar rationales.

Justifications of, and responses to, the recent events in Syria exhibit an increasing tendency amongst states to abandon gravity-based appeals. Instead, we are offered narrow exceptions in justification of UHI. These increasingly preference specific incidents, like the use of chemical weapons, above general assessments of the seriousness of the humanitarian crisis.

The United Kingdom was the first of the three states that recently intervened in Syria to provide legal reasoning. The UK appears to have maintained its gravity-based justification of UHI. Its defense of the Syrian attack began in conformity with its 2013 rationale which based legality on: (i) evidence of large-scale humanitarian distress; (ii) absence of alternatives to the use of force; and (iii) the necessary, proportionate, and limited application of force. Now, departing from their Kosovo approach, the British referenced the more limited use of chemical weapons to satisfy the test’s criteria. They concluded that, “military intervention…in order effectively to alleviate humanitarian distress by degrading the Syrian regime’s chemical weapons capability and deterring further chemical weapons attacks was necessary and proportionate and therefore legally justifiable [emphasis added].”

Though Britain’s reasoning has been criticized on various grounds, it is our present concern that deriving legal permissibility from an incident-specific threshold facilitates, as Marko Milanovic recognized, “a limited intervention focused specifically on chemical weapons, but that does almost nothing for the wider humanitarian catastrophe.”

While the British justification began by appealing to the gravity of the Syrian crisis, its turn to the specific use of chemical weapons was accentuated by other states. In its statement to the Security Council, France noted Syria’s disregard for basic humanitarian principles. After citing the scope of the catastrophe, France shifted emphasis. Their Permanent Representative to the UN stated that, “the Syrian regime has been using the most terrifying weapons of mass destruction – chemical weapons – to massacre and terrorize its civilian population.” This focus, on the use of chemical weapons, prioritized strategic interests above gravity-based humanitarian considerations. France declared that the use of such weapons constituted a threshold of which violation could not be tolerated. In response to their deployment, the Syrian operation was described as compliant with the UN Charter. France noted that the Syrian operation, “was developed within a proportionate framework, restricted to specific objectives… Syria’s capacity to develop, refine and manufacture chemical weapons has been rendered inoperative. That was the only goal and it was achieved [emphasis added].”

The United States has not yet offered a formal legal justification. Initial political pronouncements accentuated humanitarian considerations. More recently, however, Secretary of Defense Mattis linked enforcement of a prohibition on the use of chemical weapons with the operation’s legality. The Secretary told a press briefing that, “… we worked together to maintain the prohibition on the use of chemical weapons… We did what we believe was right under international law, under our nation’s law.”

Several states have expressed support for the attack. The vast majority have based their (often limited) reasoning on the use of chemical weapons. Prime Minister Trudeau noted that, “Canada condemns in the strongest possible terms the use of chemical weapons in last week’s attack…Canada supports the decision by the United States, the United Kingdom, and France to take action to degrade the Assad regime’s ability to launch chemical weapons attacks against its own people.” Similarly, Prime Minister Abe stated that, “the Japanese government supports the resolve of the United States, Britain and France not to allow the proliferation or use of chemical weapons.” Chancellor Merkel informed that the acting states had taken, “responsibility in this way as permanent members of the UN Security Council…to maintain the effectiveness of the international rejection of chemical weapons use and to warn the Syrian regime against further violations.” Israel issued a statement noting that, “last year, President Trump made clear that the use of chemical weapons crosses a red line. Tonight, under American leadership, the United States, France and the United Kingdom enforced that line.” Finally, the NATO Secretary General stated that, “the use of chemical weapons is unacceptable, and those responsible must be held accountable.”

Resisting a limited threshold exception for humanitarian intervention:

These legal and extra-legal arguments have caused some commentators to ponder the emergence of a narrow threshold. This has led to suggestions that UHI may be justified if this threshold – increasingly identified as the use of chemical weapons – is breached. Endorsements of this view appeal to the belief that “something is better than nothing.” They accept the achievable rather than the ideal. And they perceive, while pursuing alignment with, an emerging state practice that exhibits tolerance of a particular form of narrow intervention.

Following the US, British, and French operation, Harold Koh reiterated his call for legal reform. Koh proposes a six-stage test. Though this begins with a traditional appeal to the general gravity of the event – humanitarian intervention is framed as a need “to prevent or mitigate extreme human rights disasters” – the proposed test diverges from its justificatory origins. The test’s first stage is described as mandatory and requires:

“a humanitarian crisis [that] creates consequences significantly disruptive of international order – including proliferation of chemical weapons, massive refugee flows, and events destabilizing to regional peace and security – that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51) [emphasis added].”

The test’s second stage – described as a criterion that may strengthen justificatory appeals – refers to an intervention that, “would help to avoid a per se illegal end, e.g., genocide war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians…” Koh’s approach demands that the intervening state(s) exhibits a vested interest while relegating justifications grounded in gravity and universality to a secondary (non-mandatory) consideration.

Koh’s proposal has become the focal point for reformist efforts. These have increased as the recent attacks and the desire to respond to the ongoing Syrian crisis have prompted the adoption of a narrow threshold. Andrew Bell advocates for a qualitative approach. The use of chemical or biological weapons provides an identifiable standard. Bell proposes that a violation of this standard would justify humanitarian intervention. Anders Henriksen considers whether a specific norm has emerged that permits an intervention in response to the use of chemical weapons. This would maintain the assumption of illegality toward instances that do not cross this threshold. Charles Dunlap, also responding to the events in Syria, conducts a similar inquiry while employing a different legal argument.

These proponents, alongside those who view UHI as invariably illegal, participate in a broader debate regarding the use of force. Variants of this debate are present within considerations regarding the use of force against non-state actors, the employment of anticipatory self-defense in reply to an imminent attack, and, of current relevance, the appropriate use of humanitarian intervention. On one side of this debate is the belief that strict doctrinal adherence to the UN Charter’s prohibition on the use of force is necessary to ensure legitimacy and prevent abuse. Alternatively, others hold that this regime is threatened by a schism between what states do or moral necessity and a formalist interpretation of the law limiting the use of force.

This becomes a conversation about the legitimacy and efficacy of international law. It is a debate about how to best preserve international law’s relevancy and insulate against its misuse. Responding to the dictates of realpolitik, instances of Security Council paralysis, and a lineage of cynical legal arguments favoring misguided “humanitarian” forays, this broader discourse proposes “appropriate” responses to this reality. Those supporting the necessity of humanitarian intervention believe that the legitimacy of international law, the demands of morality, and an accurate accounting of state actions are best served by a reading of the UN Charter and international law that permits a qualified form of UHI.

These proponents of humanitarian intervention traditionally employ the language of sensibleness. Common-sense appeals to the legitimacy of intervention will begin with the paradigmatic case of genocide and there is room to debate where they will end. These arguments derive normative force from the atrocity’s gravity. They constitute the strongest argument in favor of developing a legal exception to Article 2(4) of the UN Charter, of revising a traditional conception of sovereignty, of expending military force and resources, and of promoting a cosmopolitan ideal. It is unlikely that common-sense appeals to an atrocity’s gravity will persuade that intervention is legitimate to prevent the use of chemical weapons (or other narrow exceptions) while it is not legitimate in response to the equally grave, and often much worse, atrocities caused by conventional weapons. Reasoning that favors a limited threshold exception does not adhere to the internal logic expressed by proponents of humanitarian intervention who believe that the law must better fit the dictates of reality, the demands of morality, and the needs of the international community.

Efforts to ensure against the abuse of a humanitarian exception to the prohibition on the use of force are ever-present. This concern is, of course, very real. The desire to protect against such abuse through a clearly identifiable threshold is understandable. Yet, the appeal to a chemical weapons exception must be understood in light of the various statements of the involved and supportive actors whose motivations appear to depart from the underlying humanitarian justifications that traditionally accompany the call for UHI.

Endorsement of this approach by proponents of humanitarian intervention poses another, subtler, danger. This danger remains relevant even in cases where there is a genuine belief that the actors operated in good-faith and no fear of abuse exists. Divergence from black-letter adherence to the use of force regime entails significant cost. It may only be justified by reasoning that these costs are less than the alternative costs incurred by failing to address the dictates of reality. The normative case for humanitarian intervention is contingent on a common-sense legitimacy argument rather than only upon the provision of a workable test or standard. The case for humanitarian intervention must subscribe to a general notion of gravity to persuasively offer an attractive alternative to a formal reading of the Charter.

Prioritizations of gravity appear to be missing from this current trend. For example, Andrew Bell does not sufficiently address the gravity argument when he proposes adoption of a limited exception. Similarly, and as Kimberly Trapp suggests, Koh discounts many potential atrocities that do not threaten the intervening state. Such endorsements of UHI shift the discourse away from universalist and gravity-based considerations that have supplied proponents of humanitarian intervention with normative purchase.

Clearly, workability and relevant safeguards demand consideration by those proposing a UHI framework. Yet proponents, those who favor a limited approach or narrow threshold, would be well-served to resist a shift away from gravity-based justifications. A narrow exemption test that fails to prioritize assessments of gravity is problematic. Similar arguments, favoring a limited exception, are increasingly employed by states in justification of and in response to the recent use of chemical weapons in Syria. By abandoning or deemphasizing the common-sense legitimacy and gravity-based approach, the language of humanitarian intervention conflates with the strategic political calculations of certain states. Proponents of humanitarian intervention must adhere to their internal logic to strengthen the genuine humanitarian interests, moral coherence, and legal viability of their respective positions.

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Charles J. Dunlap

May I invite readers to take a look at my essay about About the strikes? “Yes, There Are Plausible Legal Rationales for the Syria Strikes” found here: https://lawfareblog.com/yes-there-are-plausible-legal-rationales-syria-strikes