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Middle East

Putting the Cart Before the Horse? Top Panel of International Criminal Law Experts Proposes “Extraordinary” Criminal Tribunal for Syria

by Julian Ku

As one commenter to Ken’s post on the draft UN Security Council Resolution notes, there will be no Security Council referral to the ICC on Syria. Currently there is one paragraph in the draft resolution expressing the Security Council’s “strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable;”  That’s not much, but it might be enough of a hook for some future UN Security Council or a future Syrian government to set up a hybrid ad hoc criminal tribunal to hold “accountable” those users of chemical weapons.

So it is worth noting that friend of blog Michael Scharf of Case Western Reserve University Law School alerts us to a proposed “Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes” that he, and a panel of blue-ribbon international criminal law experts, have released under the auspices of the Public International Law and Policy Group (PILPG).  The panel of experts is both distinguished and experienced on questions of international criminal law, and on the nitty-gritty details of setting up international criminal tribunals.  They will be discussing next week at a press conference in DC and it should get quite a bit of attention among US and UN policymakers.  It is a discussion draft, and it is not an attempt to demand the UN or Syrian governments establish something exactly along these lines.  Rather, it is an attempt to get the ball rolling among lawyers and policymakers.

One move in the proposed draft stands out.  The proposed tribunal is not exactly an international criminal tribunal, and indeed, it is not necessarily even a hybrid tribunal (with a mix of international and domestic judges) although its closest analogue appears to be Cambodia. Rather, it could be simply a special court set up under Syrian law to prosecute high-level offenders for violations of international law.  One advantage to this approach?  I don’t think it would require UN Security Council action to set up such a tribunal.  So that is a useful nod to political realities and Russia’s current position.

One (really big) disadvantage to this approach? We would need a new Syrian government to set up and carry out this proposed statute.   And to get that new Syrian government, would we have to promise some sort of immunity to the old Syrian government that committed all those horrible crimes we want to prosecute?

Obviously, there is a lot to sort through, and I do salute Prof. Scharf for getting the conversation rolling in a useful and politically realistic way.  But there are not just legal, but enormous political issues that need to be dealt with before key details of such a tribunal could be determined.

Brief Thoughts on the Russia-US Deal (and No, I’m Not in Favor of Force)

by Kevin Jon Heller

On both twitter and the blog, readers seem to have inferred from my previous post that I’m somehow disappointed that the US-Russia chemical-weapons deal does not automatically allow force for noncompliance. I suppose that’s my fault; I tend to assume when I write that readers have at least some prior knowledge of my politics. So let me be clear: I am categorically opposed to the US using military force against Syria in the absence of Security Council authorization. (And I’d be very skeptical of it with authorization, but at least it wouldn’t be illegal.)

So what do I think of the US-Russian deal? For what it is, and assuming Assad complies, it seems like a good idea. Anything that reduces Syria’s stockpiles of chemical weapons is positive. Although I don’t think Assad ordered the Damascus attack, I have no doubt he would use chemical weapons if (as seems unlikely at that this point) the rebels ever threatened to overthrow his regime. And of course someone in the Syrian military used chemical weapons, so it would be great if that could not happen again. I also have little doubt that the rebels would use chemical weapons if they could, so anything that limits that possibility, as well, is a good thing. I also hope that the deal will put pressure on other states in the region — Israel and Egypt, in particular — to ratify the Chemical Weapons Convention and destroy their own stocks of the weapons.

That said, my central critique of the US obsession with chemical weapons still stands: they are only a very minor part of the conflict. The real problem is the systematic violence the Assad regime has unleashed against its own people with conventional weapons — and the equally unconscionable, if less intense, violence inflicted on those same people by the rebels. This deal not only does nothing to address that violence, it significantly distracts attention from it. When was the last time the media focused  on anything in Syria other than chemical weapons? Just this week, Human Rights Watch published reports on a mass execution of 248 people by Syrian forces in May and on the Syrian military’s widespread use of cluster munitions, which are no less indiscriminate than chemical weapons, while the Commission of Inquiry published a report documenting the Syrian military’s numerous — and deliberate — attacks on medical facilities. How much attention have those reports received in the media?

My hope, of course, is that a successful resolution to the chemical-weapons problem will free up the relevant parties, and the media, to focus on the need to find non-military ways to pressure the Assad government and the rebels to stop killing innocent civilians. But I’m not holding my breath. I imagine 95% of the coverage we will see in the coming months will focus on whether Syria is actually complying with the US-Russian deal. In other words, business as usual. Meanwhile, Syrian civilians will continue to be killed through conventional means in large numbers.

Putin & Assad: 1; Obama: 0; Syrian People: -1

by Kevin Jon Heller

That’s the tally in light of the deal that has been reached regarding Syria’s chemical weapons. The US position was that any agreement had to permit the use of force against Syria in case of noncompliance. But the US-Russian deal simply calls for the Security Council to consider the consequences of noncompliance under Chapter VII; it does not commit the Council to any particular course of action. And we know what would happen to a resolution authorizing force:

Under a “framework” agreement, international inspectors must be on the ground in Syria by November, Mr. Kerry said, speaking at a news conference with the Russian Foreign Minister, Sergey V. Lavrov.

Under the agreement, Syria must submit a “comprehensive listing” of its chemical weapons stockpiles within a week.

American and Russian officials also reached a consensus on the size of Syria’s stockpile, an essential prerequisite to any international plan to control and dismantle the weapons.

“If fully implemented,” Mr. Kerry said, “this framework can provide greater protection and security to the world.”

If President Bashar al-Assad of Syria fails to comply with the agreement, the issue will be referred to the United Nations Security Council.

Mr. Kerry said that any violations would then be taken up under Chapter 7 of the United Nations Charter, which authorizes punitive action. But Mr. Lavrov made clear that Russia, which wields a veto in the Security Council, had not withdrawn its objections to the use of force.

Obama not only failed to muster a credible threat of force, he has now failed to ensure that Syrian noncompliance will result in real consequences. Score one for Putin and Assad.

The real losers in the deal, however, are the Syrian people. If the agreement holds, Assad will have effectively been given the green light by both the US and Russia to continue killing his citizens. He just won’t be able to use chemical weapons to do it.

Does the Washington Post Editorial Page Have ANY Standards Left?

by Kevin Jon Heller

Apparently not, because yesterday’s war propaganda editorial by Sebastian Junger beating the drum for attacking Syria is just spectacularly awful. I’ve been out of the fisking game for a while, but the editorial simply can’t pass unmentioned.

Every war I have ever covered — Kosovo, Bosnia, Sierra Leone and Liberia — withstood all diplomatic efforts to end it until Western military action finally forced a resolution. Even Afghanistan, where NATO troops stepped into a civil war that had been raging for a decade, is experiencing its lowest level of civilian casualties in more than a generation.

When you’re citing Afghanistan — now in its 12th year of conflict, with tens of thousands of civilian casualties, millions of refugees, 3300+ dead US soldiers, and a price tag nearing $500 billion — as an example of successful Western military action, you should probably just stop, delete your file, and go play with your kids.

(But I do like the slogan for the US: “Year 12 in Afghanistan: Lowest Civilian Casualties Ever!”)

That track record should force even peace advocates to consider that military action is required to bring some wars to an end. And yet there’s been little evidence of that sentiment in American opposition to missile strikes against military targets in Syria.

Obama has specifically disclaimed any intention to end the Syrian civil war through military action. But whatever…

From Apology to Bazinga!: International Legal Rhetoric in Obama’s Speech and Putin’s Op-Ed

by Chris Borgen

In From Apology to Utopia, Martti Koskenniemi  mapped how international legal rhetoric can be used to “apologize” for power—to provide a fig leaf over the rude exposure of realpolitik—and how it can be utopian—making rules for a world that does not actually exist.  This week we have had two examples of international law and high politics: President Obama’s speech on Tuesday and Vladimir Putin’s op-ed in today’s New York Times. And while many in the U.S. seem most concerned about Putin’s apparent skepticism toward American exceptionalism, I suggest that more attention should be focused on what his op-ed and President Obama’s speech show about how Russia and the U.S. use international legal rhetoric in pursuit of their goals.

As President Obama’s speech tried to make the case for U.S.-led military action in Syria (if the current diplomatic initiatives fail), Vladimir Putin’s op-ed argued why the U.S. should not intervene. In looking at these two texts—attempts by an American President and a Russian President to speak to the American public, and, at times, to the world—we can compare and contrast how the language of international law is used by both leaders.

Putin’s argument plays on American fears and worries but it is framed in the rhetoric of international law. There are some scare lines, such as: “A strike would increase violence and unleash a new wave of terrorism.” There is a description of a “reeling” Afghanistan where “no one can say what will happen after international forces withdraw.”  And, he adds, don’t forget the divisions in Iraq and Libya.  It is not in “America’s long-term interest” to have U.S. military intervention be “commonplace.” Well, that last part is true enough.

There are also some parts that are a bit hard to swallow, like his implying that his policy is based on a concern over the security of Israel or blaming the ongoing civil war on the West supplying arms to the opposition (which staying silent on Russia’s arming of the murderous Assad regime). I half-expected Putin to follow-up some of his arguments with “Bazinga!”

But all of these various points, be they persuasive or not, are placed in a frame of international legal rhetoric.  Putin’s op-ed is an excellent example of Russia’s strategy of using the language of international law to try to persuade publics around the world of the wisdom of its own foreign policy, while implicitly or explicitly critiquing the policies of other states. Near the beginning of his essay, Putin explains… (Continue Reading)

Obama’s “Credible Threat” of Military Action Against Syria

by Kevin Jon Heller

In his speech yesterday, Obama predictably took credit for the latest developments regarding Syria’s use of chemical weapons:

In part because of the credible threat of U.S. military action, as well as constructive talks that I had with President Putin, the Russian government has indicated a willingness to join with the international community in pushing Assad to give up his chemical weapons. The Assad regime has now admitted that it has these weapons, and even said they’d join the Chemical Weapons Convention, which prohibits their use.

Such shameless credit-mongering is more than a little difficult to swallow. Had Syria’s new willingness to give up its chemical weapons materialized two weeks ago, when Obama was still rattling his sabre and promising to attack Syria without congressional authorization, it would have been reasonable to conclude that the “credible threat of US military action” was the decisive factor in Assad’s capitulation. But now? Just days after Obama acknowledged that it would be very difficult for him to attack Syria against the will of both Congress and a large majority of the American people? Sure, he hedged a bit, insisting that he has the authority to attack Syria anyway. But I doubt many people (especially Assad) take Obama’s hedge seriously — defying the will of Congress would at a minimum lead to the extremist House holding him in contempt, and it could well lead to a foolish and ultimately doomed attempt to impeach him. The last thing Obama needs is to spend the final few years of his presidency dealing with either possibility — especially given that attacking Syria would accomplish next to nothing from a military standpoint and runs the risk of dragging the US far more deeply into the Syrian civil war than Obama wants.

The idea that the latest diplomatic developments are attributable to the US’s “credible threat” of military action in Syria, then, is anything but credible. Indeed, I’d like to suggest an alternative explanation, one that leads me to be relatively optimistic about the fate of the Russian proposal: this is a diplomatic dream come true for Assad. (And Russia, for that matter.) Although I think there is little doubt left that Syria’s military used chemical weapons against civilians, there is still no evidence that Assad ordered their use. The new Human Rights Watch report specifically concludes that the Syrian government is responsible for the Damascus attack, but it does not claim that Assad himself was responsible for them. And a German newspaper has claimed that “high level national security sources” in the German government believe that Assad “did not personally order last month’s chemical weapons attack near Damascus… and blocked numerous requests from his military commanders to use chemical weapons against regime opponents in recent months.”

I have no idea whether the German report is true, and I’m skeptical of the claim that Assad actively blocked the use of chemical weapons. But I find it very difficult to imagine that Assad was behind the Damascus attack. Had the attack occurred last year, when it looked (at least for a time) like the rebels might actually be able to overthrow the government, I would have had no problem believing that Assad was behind it. He’s clearly a monster, and I’m sure he would use any weapon in his arsenal as a last resort. But why now? Why would Assad use a weapon that has very little tactical military use when it seems clear that the rebels are slowly losing the war? Assad may be a monster, but he’s not an irrational one. He had to have known that using chemical weapons so openly would be of little military benefit and would run the risk of international condemnation and even military intervention. So I find it unimaginable that he would have used them anyway.

If Assad was not responsible for the attack, and if he thinks he is going to win the civil war, the Russian proposal for avoiding US military intervention is a fantastic solution to his international problems. Assad gives up weapons he has no intention of using anyway, and in exchange he reaps the diplomatic benefits of giving them up and avoids being attacked by the US. And, of course, he remains free to keep on killing innocent civilians with conventional weapons, which the US has made clear it has no intention of using force to stop. As I said, a dream come true for Assad.

Obama can claim all he wants that he’s responsible for the possibility of Syria giving up its chemical weapons. In reality, it’s just as plausible that Assad has played him like a fiddle.

What Does Putting Syria’s Chemical Weapons Under “International Control” Mean? (And Some Thoughts on Russia’s Use of International Legal Rhetoric)

by Chris Borgen

With the focus now on the Russian proposal to bring Syrian chemical weapons under “international control,” questions that remain include how would this actually work? Who would take control?

One likely participant in the implementation would be the Organisation for the Prohibition of Chemical Weapons (OPCW), the implementing body for the Chemical Weapons Convention (CWC).  From the OPCW website:

As of today the OPCW has 189 Member States, who are working together to achieve a world free from chemical weapons…

To this end, the Convention contains four key provisions:

1. destroying all existing chemical weapons under international verification by the OPCW;

2. monitoring chemical industry to prevent new weapons from re-emerging;

3. providing assistance and protection to States Parties against chemical threats; and

4. fostering international cooperation to strengthen implementation of the Convention and promote the peaceful use of chemistry.

See their annual reports here.

Although Syria is not a signatory to the CWC, given the OPCW’s expertise, it is a fair assumption that they would be involved in some capacity in any international control of Syria’s chemical weapons.  The OPCW has already been involved in attempts to address the Syrian crisis: the UN-led group of monitors that investigated the chemical weapons attack in Damascus primarily consisted of OPCW technical experts.

As for the new proposal… [Continue Reading]

Can the General Assembly Provide a Way Around the Security Council on Syria?

by Julian Ku

As Samantha Power (the new U.S. Ambassador to the U.N.) demands unilateral action and rages against the deadlocked Security Council, it is worth thinking again about the odd structure of the UNSC and its veto power for P-5 members.  In this light, I would point our readers to an interesting piece by Andrew Carswell forthcoming in the Journal of Conflict and Security Law entitled “Unblocking the Security Council: The Uniting for Peace Resolution.”  Essentially, there is some (very thin in my view) precedent from the Korean War era for the General Assembly to provide authority for the use of military force.  This might allow the U.S. to seek GA endorsement of a strike against Syria due to the deadlock in the Security Council.  As a practical matter, it is far from clear that a majority of the current GA would actually support the U.S. but even if it did, the legal significance of a GA act is uncertain to say the least.  Still, something worth discussing.

Unfortunately, the full article is not quite done but it will be out shortly. This link may provide (for a limited time) access to his almost complete draft. His abstract is below the jump.

Syria Insta-Symposium: Geoff Corn–The President, Congress, Syria: What If?

by Geoffrey Corn

[Geoffrey Corn is the Presidential Research Professor of Law at South Texas College of Law in Houston. His prior articles addressing war powers include: 123.]

It seems almost abundantly clear that President Obama has resolved the question of “what if” the United Nations Security Council is unwilling to authorize military action against Syria for use of chemical weapons. The U.S. will act without such authorization, unilaterally if necessary. Why? Well, we know there are numerous overt and sub rosa motives being discussed, but ultimately because of a U.S. conclusion that the UNSC has proven ineffective. To bolster the credibility of this assertion, which is obviously dubious to certain other permanent members of the Security Council and countless other states, international law experts, and observers, the President has asked Congress to endorse his planned punitive strike with express statutory authorization.

Many have hailed this decision to submit the matter to Congress as a positive manifestation of the President’s respect for the Constitution’s allocation of war powers. But in reality, while Congress may be developing what it views as an authorization to use military force, this is not exactly how the President views their effort. Instead, he, like predecessors who have also sought express statutory authority for military actions, views it much more as support for the use of military force. Just as President George H.W. Bush emphasized when he, in 1991, requested congressional authorization to use military force to implement UNSC Resolution 678 and oust Iraqi forces from Kuwait, President Obama insists that while he wants this authorization, he does not need it. Of course, President Obama assertions of ‘desire’ versus ‘necessity’ follow the pattern of all modern presidents. However, by seeking authorization, the President does seem to be assuming a greater degree of risk than had he acted on his own asserted Article II authority. Thus, ironically, while the request for authorization will enhance strategic and constitutional legitimacy should Congress support the President, the risks associated with a down vote invokes the parable that, “it is easier to seek forgiveness than ask for permission.”

So, “what if” a majority of at least one house votes against his request, preventing enactment of an AUMF?  (more…)

Syria Insta-Symposium: The Significance of Chemical Weapons Use Under International Law

by Krista Nelson

[Krista Nelson, PhD, JD, is a recent graduate of Yale Law School]

The Obama administration’s advance toward air strikes stems from the Syrian government’s alleged use of chemical weapons, but under international law does it matter if civilians are being killed with chemical weapons rather than conventional means? And how does the prohibition on chemical weapons interact with international law on the resort to force?

From the law of armed conflict (LOAC) perspective, the use of chemical weapons in Syria was not a game-changer. LOAC is concerned with harm to civilians in armed conflict, whatever the means or methods. Certain weapons are a concern largely because a) they do not distinguish between people who can be attacked and those who are off-limits, and thus they violate the principle of distinction; or b) they cause more harm than necessary to permissible targets, which is not the main issue in the present case. In Syria, the principle of distinction seems to have been thrown out the window long ago; reportedly, thousands of civilians have been killed (even directly attacked) using conventional means. Of course, LOAC does not look kindly on weapons that cause particularly gruesome harm to innocent people, but the first and foremost problem is that civilians are being attacked with any weapons at all.

By contrast, the use of chemical weapons is a critical problem under arms control law. But arms control is not just concerned with use, which is the focus of LOAC – it covers other activities like weapons development, production, stockpiling, proliferation; and it applies in peace as well as conflict. Moreover, arms control has diverse aims with respect to weapons, ranging from reducing suffering or protecting civilians in conflict to preventing conflict from breaking out in the first place and shaping balances of military power.

Current Obama administration statements draw more from arms control than LOAC, citing various concerns from the particular suffering chemical weapons caused to the proliferation of other weapons of mass destruction. The administration suggests that the use of chemical weapons links the Syrian conflict to U.S. national security interests – a claim supported with arguments that Syria’s alleged use of chemical weapons is bound up with other weapons (e.g., nuclear weapons), other actions (e.g., proliferation), and other countries (potential victims as well as perpetrators of weapons-related violations).

What arms control law does not provide is a trigger for the resort to force, the Obama administration’s preferred course of action and the main international legal controversy. Arms control provides no clear avenue around the international legal requirement of a UN Security Council resolution or a self-defense justification, neither of which the Obama administration claims to have. Indeed, one particularly relevant arms control treaty – the Chemical Weapons Convention – provides a framework for addressing non-compliance that points to multilateralism, UN Security Council participation, and conformity with international law. Chemical weapons use may be a game-changer for President Obama, but the rules of the game have not disappeared.

Statements on Syria bear less resemblance to justifications for NATO’s 1999 campaign over Kosovo (where an ethnic cleansing was taking place, triggering what has been called a “humanitarian intervention”) than to the 2003 Iraq War, which was justified with a mix of humanitarian and strategic ideas including emphasis on weapons of mass destruction. Unlike the present situation, attempts were made to justify the use of force using a UN Security Council resolution from the previous decade, as well as the notion of preemptive self-defense.

Perhaps the Obama administration thinks that combining expansive arms control concerns, including some humanitarianism, may effectively push against the rules on the resort to force. If the broad provisions of the proposed authorization for the use of military force are any indication, the U.S. government may tap into diverse concerns, looking for international legal justifications under the biggest umbrella it can find.

That approach would be a different and perhaps bolder challenge to rules on the use of force than humanitarian intervention or President Bush’s preemption. It is true that the significance of chemical weapons use varies in international law, but existing law does not seem to justify the role the Obama administration has assigned it. If the Obama administration has its way, the use of chemical weapons may punch above its international legal weight.

Syria Insta-Symposium: The “Law” in International Law: A Response to Carvin

by Sondre Torp Helmersen

[Sondre Torp Helmersen teaches at the University of Oslo and is an LLM candidate at the University of Cambridge.]

Stephanie Carvin recently contributed to the Syria Insta-Symposium with a post titled “A Legal Debate Devoid of Consequences (or Bringing Practical Judgment Back In)”.

Her call for a practical perspective is timely. The decision of whether or not to attack must be necessarily be a political decision, on which political scientists such as herself may offer sound advice. However, she apparently does not take full account of the fact that international law is (at least supposed to be) law.

She “crudely paraphrases” her position as follows: “if 15 men sitting around a table in New York say it is okay to strike, then somehow it is fine. If 15 men do not, then it’s not okay. This seems to be an incredibly poor way to decide how to respond to the attack.”

This line of reasoning is applicable to any legal regulation, domestic or international. Try replacing “attack” with any other matter regulated by domestic or international law, (more…)

Syria Insta-Symposium: Mark Kersten–Whose R2P Is It? The Responsibility to Protect Post-Syria

by Mark Kersten

[Mark Kersten is a PhD candidate in International Relations at the London School of Economics and author of the blog Justice in Conflict. You can find him on Twitter @MarkKersten]

Who would have thought that the most pressing question regarding the Responsibility to Protect in 2013 would be: what is it? The answer to this question is as unclear today as any time in R2P’s political life. It might even be less clear.

In the midst ongoing questions regarding the legality and legitimacy of direct military intervention in Syria, scholars and observers have passionately rehashed the main tenets of R2P, defending or castigating it depending on their political persuasions and which interventions they’ve cut their political teeth on. At the core of their debate is that pesky, simple question: what, exactly, is R2P?

The cacophony of reactions to plans of a potential military intervention in Syria by the US (perhaps with some coalition of powers) has been a déjà vu of the year 2000. There has been a lot of talk about reconciling international commitments to preserve and protect sovereignty with obligations to preserve and protect inalienable universal human rights. All of a sudden, the phrase “humanitarian intervention” is back with a vengeance. Echoing Richard Goldstone’s famous judgement regarding NATO’s intervention in Kosovo, many are suggesting that a military intervention without UN sanction being “illegal but legitimate”. Of course, it was out of this rather curious and, for many, frustrating proposition as well as the inability to reconcile universal human rights with the sovereign prerogatives of states, that the concept of R2P was born. Which begs the question: how did we get back to square one?

The early- to mid-2000s helped establish not one R2P but multiple R2Ps and that these have never been sufficiently reconciled. There are two dominant and distinct versions of R2P at play. First is R2P as a package of norms. This package of norms represents liberal cosmopolitan convictions, namely that the commission of mass atrocities against individuals is of concern to all other human beings and that sovereign inviability of states is conditioned upon their respect of individual rights and freedoms. R2P as a package of ideals is broadly appealing. NGOs, activists and key normative entrepreneurs like the UN Secretary General have been working tirelessly for over a decade to talk these norms into reality. But R2P in this context is also sometimes fuzzy. This has been made clear over the question of who can legitimately authorize R2P. If R2P is a set of principles, then it can be authorized outside of the UN Security Council. After all, the International Commission on Intervention and State Sovereignty (ICISS) stated that, in the situation where the Security Council is deadlocked, intervention by a coalition of states or a regional organization would be appropriate. Legally, however, this is highly dubious.

Distinct from R2P as a normative prescription for world politics is R2P as a legal doctrine. It is less fuzzy and rests primarily upon the two paragraphs in the World Summit Document, accepted by the UN General Assembly in 2005. With the experience of Iraq looming over UN member states, virtually none were inclined to support granting authority to invoke R2P outside the Security Council. And so they didn’t. Hence, whatever its merits, R2P can only lawfully be invoked through the Security Council.

R2P as law and R2P as a set of normative ideals are often in tension. But it is also something else. R2P has emerged as a language with its own vocabulary. The various reports and commissions, UN resolutions, nation state policies, and diplomatic statements are R2P’s lexicon. But as a language, R2P is a double-edged sword. All language can, after all, be used and abused. R2P as a vocabulary provides the invaluable discursive space within which any intervention is weighed against its ability to protect civilians. But it also allows its defenders and its critics to abuse the concept by pretending that R2P is something that it isn’t – or at least not yet.

Proponents of R2P have largely been uninterested in resolving the nature and tensions inherent between the different conceptions of R2P. Instead, many have used R2P language dressed up as R2P law in order to propagate their own desired version of the doctrine. To do so, they cherry-pick from passages in the ICISS Report, UN Secretary General Reports, and previous interventions.

The ultimate aim for R2P proponents is to turn the conceptual doctrine into a legal doctrine and thus to establish it as an integral part of a liberal cosmopolitan international legal landscape. There has been a concomitant belief that so long as R2P keeps chugging along, receiving endorsements in UN reports and being put in motion in situations like Libya and Ivory Coast, then the concept’s trajectory would guide it to the promise land of legal stature. But this trajectory is very unlikely to be fulfilled if the tensions within different conceptions of R2P aren’t resolved.

Importantly, it won’t be the ‘realists’ against ‘liberal internationalists’ who will diminish the concept. It will be liberal internationalists against themselves. Look closely. The most vicious fight today over R2P is not between proponents and critics of R2P but between proponents of the concept who have fundamentally different visions of what R2P is and should be.

As a result, non-intervention into Syria would be neither a success nor failure of R2P. It would be both. It would be a failure because the type of suffering of Syrian citizens (since the beginning of the civil, not just since the chemical weapons attack) is precisely why R2P was created in the first place. But it would also be seen as a success because if R2P is understood as a legal doctrine with resultant obligations on the part states, then it can only authorized by the Security Council. Intervention into Syria without a UN mandate might be moral and it might be imminent. But whatever its enactors suggest, it’s not the legal version R2P, it’s the normative dream of R2P.

The case of Syria could actually save R2P by helping to decipher what it is and, more importantly, what it should be. R2P desperately needs conceptual consistency if it has any hope in emerging as an accepted norm in international relations. But if R2P is simultaneously a fledgling legal doctrine, a package of normative prescriptions as well as a widely used and abused language, it risks meaning everything to everyone and thus meaning very little at all – especially to those in whose name it was supposedly established. If this is R2P’s destiny, for every future Syria we will be doomed to debate what R2P is and isn’t at cross-purposes and ad nauseum.