White House Counsel Announces Syria Strike Would Not Violate International Law, But Doesn’t Explain How

by Julian Ku

In the UK, the government released a brief note which described the legal theory justifying a strike on Syria.  The note may have had flaws, but it certainly offered a basis to evaluate the UK government’s view of international law.  In the United States, the equivalent appears to be conversations between the White House Counsel and Charlie Savage of the NYT

Ms. Ruemmler said that while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited.

Come on, Charlie, you have got to push her to elaborate!  Why would it be “justified and legitimate”? Is it illegal but legitimate, or is it actually legal under a theory yet to be revealed by the administration? Has the State Department been asked for an opinion?

I don’t fault the reporter here since the constitutional issue is plainly more important than the international one, as a practical matter.   But I am curious that the President, who has publicly cited international law as a factor in his decisionmaking, has not bothered to offer anything more than a quote in a NYT article to explain its international legality.  To be sure, Congress is not exactly pushing him to do so, but I am surprised the bureaucracy hasn’t generated anything yet. Leak, please!

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.

RIP, The Doctrine of Humanitarian Intervention?

by Julian Ku

It might be premature to declare the death of the doctrine of humanitarian intervention under international law, but there is no doubt that doctrine suffered a massive blow when the British Parliament voted against a preliminary motion in favor of military strikes on Syria.  To be sure, humanitarian intervention was not directly before the Parliament, but the UK government’s international law justification for the Syria strikes without UN Security Council authorization was almost wholly based on a version of the humanitarian intervention doctrine.  And since the UK government’s motion would have only supported strikes after a report from UN inspectors confirming the use of chemical weapons by the Syrian government, I don’t think doubts about the use of the weapons were the top reason the motion failed.

More likely, the MPs voted against the motion on the theory that even if the Syrian government’s responsibility for the use of chemical weapons was established, the UK should not launch strikes.  To be sure, I doubt many MPs voted no just because they didn’t accept the government’s legal justification, but it obviously didn’t gain a majority support.

Since the UK is one of the few states to openly adhere to the doctrine of humanitarian intervention, and this vote casts doubt on the UK’s future commitment to this doctrine, I would not be optimistic about the future acceptance of this doctrine by other states.  Of course, there is one state out there that might jump on the humanitarian intervention bandwagon, even at this late hour.  But it has not done so yet.

The Legality of a Syrian Military Intervention: Russia, France, and the UK Weigh In

by Julian Ku

It looks like the tragic events surrounding a likely chemical weapons attack in Syria will spark a military intervention by the United States, France, and Britain without the authorization of the U.N. Security Council.  We have already heard President Obama publicly state that international law is a factor in the decisionmaking process in the U.S. and the NYT suggests U.S. officials are looking at Kosovo as a precedent for an intervention.  Now other leading powers are weighing in.  First to the plate, Russia:

“Using force without the approval of the UN Security Council is a very grave violation of international law,” Foreign Minister Sergei Lavrov told reporters.

Speaking at a news conference urgently convened just a few hours before, he added that the West was currently moving towards “a very dangerous path, a very slippery path”.

Next into the fray, France, whose foreign minister seems to concede Russia’s point about legality, but then makes a mysterious reference to bypassing the UNSC.

France’s foreign minister said on Monday no decision had been made yet on whether to take military action against Syria, but doing so outside the auspices of the U.N. Security Council would be problematic.

“It is a problem that will be difficult,” Laurent Fabius told Europe 1 radio.

“International law is defined by the United Nations, but at same time there are countries (on the council) that are blocking (military action)- China and Russia have blocked and would probably block again so it would be a problem…

“In certain circumstances we can bypass it, but international law does exist,” he said without elaborating.

I have no idea what he is talking about in terms of “international law is defined by the United Nations.” I am also wondering what circumstances would allow France to bypass the UN Charter, given that it is defined by the U.N. itself.

It may be that France is following the UK’s lead, as the UK’s foreign minister is also hinting that an attack without UNSC authorization is going to happen.

Mr Hague said diplomatic methods to resolve the civil war in Syria had “failed so far”.

He said the UN Security Council, split over Syria, had not “shouldered its responsibilities”.

The council is made up of 15 members including permanent members China, Russia, France, the US and the UK which have the power to veto any resolution.

But any action could be taken “without complete unity on the UN Security Council”, he said.

He said a response could be “based on great humanitarian need and distress” and “in accordance with international law”.

It sounds like the UK and France are both going to need to come up with some international law theory to justify their support for an attack, and the UK seems interested in the “humanitarian intervention” justification.  If the U.S. goes along with this, it would be interesting to see if the “invisible college of international lawyers” will endorse this legal theory.

Guest Post: The Politics of Responsibility to Protect

by Neomi Rao

In my last post, I introduced my recent article rethinking the concept of responsibility to protect. Today, I consider how the discussion of R2P often obscures the reality of how states go about choosing to intervene by speaking of duties and responsibilities. Some commentators have expressed concern about the selective nature of R2P or about the disappointment of R2P in Syria. But this disappointment simply glosses over the real problem, which is that states simply have no responsibility or duty in these circumstances—rather, they have a choice, which they exercise selectively based on myriad factors.

R2P lumps together two distinct responsibilities that actually have very different foundations. First, the responsibility of a state to its own people; and second, the responsibility of all states to people victimized in other states.

The responsibility of a state for its own people reflects well-established understandings about the nation state—it is an essential aspect of the social contract that the state provides basic human security to the people within its borders. Although state practice often violates these principles (creating the asserted need for intervention), states have widely accepted the basic responsibility to their own people. For instance, no state contested this responsibility in the 2005 United Nations World Summit that affirmed certain principles of R2P.

A responsibility to protect between a state and its people primarily begins with the negative right to be left alone, the right to enjoy life without interference from the state. The social contract, however, includes more than this because within a political society individuals have a claim to be kept safe—for the state to ensure certain conditions of safety to individuals and their property. All governments provide some form of protection from private actors through their criminal justice systems. This demand, however, is inherently a political one within the state. It concerns the type of public resources that should be allocated to crime prevention, law enforcement, incarceration, and rehabilitation.

Importantly, even within the most liberal, rights-respecting countries, there are not enforceable rights to safety or protection from private actors. The United States Supreme Court has repeatedly affirmed that the government does not have an affirmative obligation to protect individuals, even though it may have an obligation to refrain from harmful activities. Instead, the political process determines what the state provides with respect to protection—increased security is balanced against civil liberties, not to mention costs.

The second responsibility between a state and people in other states lacks this political foundation. The claim of victims in other states to protection is essentially a positive claim for rescue from the harms inflicted by their government or by private actors while their government stands by. Consider that victims in Syria have no particular political claim to the assistance of France, England, or the United States. Their plight may present a moral demand for assistance and political pressure may mount through interest groups, the media, international organizations, and former Presidents. Yet the claims of foreigners will invariably present a different calculus than domestic claims and rightly so.

The responsibility to protect people in other states is a positive claim and positive claims require resources (diplomatic, humanitarian, and military). Although proponents of R2P often prefer to shift the language away from “rights,” at its foundation R2P depends on having some conception of the “rights” of people to protection from other states. It is not about leaving the Syrians alone, but rather protecting them from harm. Yet what precisely this right to assistance includes in Syria or elsewhere, no one is able to say.

Even accepting a basic moral responsibility, there remain difficult questions about what action best respects rights and what will serve to promote human rights and security overall. The responsibility will always be contingent on political, military, and other calculations and will be uncertain in any particular instance. Calling this choice a responsibility dilutes the meaning of rights and duties and obscures the actual mechanisms for promoting intervention.

Guest Post: The Choice to Protect (or Not) in Syria

by Neomi Rao

The White House’s recent statement that it would begin supplying Syrian rebels with arms demonstrates how military assistance and intervention remain a choice of states rather than an obligation. Recent events confirm the arguments I make in a recent article The Choice to Protect: Rethinking Responsibility for Humanitarian Intervention. I am pleased to be guest blogging about this topic over the next few days and thank the editors at Opinio Juris for the opportunity.

The comparison between the intervention in Libya and the foot dragging with respect to Syria should cause some rethinking about the doctrine of responsibility to protect (R2P). As readers here are aware, R2P posits that states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. When states fail in this responsibility, the international community and individual states have a responsibility to protect people from serious human rights violations. In the context of Libya, President Obama appeared to invoke this doctrine when he said the United States had a “responsibility to act” to prevent the slaughter of civilians by Gaddafi’s forces. In the latest statement on Syria, “responsibility” is notably absent. There is no mention of the 93,000 people killed in the conflict. Rather, the Administration’s statement focuses on the fuzzy “red line” of chemical weapons, not the humanitarian nightmare of the ongoing fighting.

Action in Syria will depend, the statement made clear, on the Administration’s assessment of the threat and its appropriate response: “[W]e will make decisions on our own timeline. Any future action we take will be consistent with our national interest, and must advance our objectives….” Commentators have considered the legality for intervention in Syria. While these may be important questions of international law, whether the United States chooses to intervene invariably will depend less on considerations of international law as on whether Administration chooses to intervene.

The pragmatism of the Administration’s statement should come as little surprise—powerful states will make their own choices in light of their own interests, regardless of the humanitarian credentials of the foreign policy team. Yet international law scholars and proponents of intervention often ignore these realities and continue to speak of an emerging norm of intervention or of the responsibility of states to people outside their borders. While emerging norms may tolerate intervention, state practice hardly suggests that an emerging norm requires intervention.

Focusing on the choice of intervention and the domestic processes of choosing intervention should be relevant both for proponents of intervention and its critics. In subsequent posts, I will discuss why the responsibility to protect people in other states is theoretically problematic and also explain why the scope of any such obligation rests entirely with the states considering assistance.

MJIL Symposium: A Response to Ramesh Thakur and Thomas Weiss by Spencer Zifcak

by Spencer Zifcak

[Spencer Zifcak is Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.]

This post is part of the MJIL vol13(1) Symposium. Other posts in this series can be found in the related posts below.

I begin this response by acknowledging the two commentators. Ramesh Thakur and Tom Weiss are, together with Gareth Evans, the pre-eminent writers in the field — as well as each having played formative role in the creation of the Responsibility to Protect (‘R2P’) doctrine in the first place. So, it is a privilege that both have chosen to write a commentary on my article and it is my pleasure now to respond.

Plainly, Professor Thakur and I agree on his four summative points, so there is no need for me to comment further on them. He does, however, point to three matters he believes I have missed, so, let me say something about each.

Professor Thakur observes that, in the Syrian case, a perverse incentive exists for the Syrian rebels to respond brutally to governmental repression in order to internationalise the conflict and thereby encourage external intervention on their side. I had neither seen any prior commentary to this effect nor had this occurred to me. So, I’m grateful for the observation.

My only reservation about it is that it does seem to me difficult to make any valid, general comment about how the rebels are thinking, and why they are acting in the way that they are, because the rebel cause is so divided. As Hussein Agha and Robert Malley note in a recent article in the New York Review of Books, the opposition is an eclectic assortment of ‘Muslim Brothers, Salafis, peaceful protesters, armed militants, Kurds, soldiers who have defected, tribal elements and foreign fighters’. And then there is Al-Qaeda. So, I accept completely that some parts of the rebel leadership will be angling for external intervention but I’m not at this stage sure which ones and how representative they are. Further, if brutality and crimes against humanity are part of a rebel strategy, it does seem to be counter-productive. It is clear that international support for the rebel cause has waned in direct proportion to the increasing number of reports emerging from Syria of rebel atrocities. And so has support within Syria itself. If a vote were taken of Syrians now, it is by no means clear that the rebels would prevail over the regime.

Professor Thakur then refers to the existence of the Sunni-Shi’a split in the country and in the region. I don’t think I missed this one but may not have made it as explicit as it should be. The tragedy within Syria is that initial calls for democratic reform have morphed into a fully-fledged civil war on Sunni-Shi’a lines. And Professor Thakur is right to point to the fact that the Sunni-Shi’a battle has profound regional implications as well. Again, tragically, the civil war has drawn influential regional actors into the fray, so much so that the Syrian conflict already appears, at one level, to be a proxy war between Iran/Iraq on one side, and the Saudis, Qataris and allies, on the other. This is one critical factor that militates against any form of external intervention, as any intervention will alienate significant regional powers with unpredictable and inevitably adverse consequences both ways.

Professor Thakur points to my failure to discuss the Brazilian ‘Responsibility while Protecting’ (‘RWP’) proposal. He is right. I didn’t. I footnoted it and that is all. There were two reasons for this. First, I’ve read it many times and have not found it particularly helpful. In my view, it is not much more than a statement of the obvious, in the wake of the mistakes made by the international community in the Libyan case. Secondly, one of my major objectives in the article was to encapsulate the standing of R2P following Libya and Syria. I did that in a series of propositions at the end of each section. These propositions in part resemble those in the Brazilian document but are more specific, detailed and, I hope, more helpful. So, I didn’t want to muddy these waters by setting out to compare and contrast the two encapsulations. And since one was my own, obviously I chose to give it most prominence. Professor Thakur is right, however, to point out that the Brazilian concept note has provoked some new thinking. So, I will take that as an encouragement to explore the discussion while maintaining my reservations about the Brazilian note itself.

Professor Thakur points to two key elements in the RWP proposal that he believes are significant. The Security Council should ensure that it sets in place a monitoring and review mechanism when any intervention is commenced so as to ensure compliance with the Council’s resolutions. It should also formulate an agreed set of criteria on the basis of which to debate and mobilise consensus upon an R2P military intervention.

The second one is interesting. Gareth Evans has been a tireless advocate of the Security Council’s adoption of such prudential criteria and I am in wholehearted agreement with him on this. I note that Professor Thakur too, has joined Evans in a recent letter in which both support the deployment of the prudential criteria developed in the International Commission on Intervention and State Sovereignty (‘ICISS’) report, the High-Level Panel report and Kofi Annan’s In Larger Freedom. It was in this context that I wrote the sentence that appears to have surprised Professor Weiss. In the article, I wrote that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’. This was a reference to my earlier discussion about the desirability of adopting prudential criteria. There is substantial opposition, not least amongst the P-5 to the Security Council’s adoption of the criteria, but one can always hope.

I note Professor Weiss’s comment that applying universal principles may have a detrimental effect. I’m not sure whether he was referring here to Evans-Thakur prudential criteria or something else. But if it was in relation to the criteria, I think his criticism is misconceived. It is precisely to avoid the prospect of double-standards that I support the criteria’s application. The South would have far more confidence that they would not be subject to neo-imperial meddling if they could be assured that the relevant criteria including necessity, proportionality and balance of consequences were consistently and openly discussed and applied when decisions as to intervention were being made.

He may be right on another point, however. Yes, it’s true, lawyers love criteria. We think they’re really useful as a means of structuring constructive deliberation and decision-making. But political scientists? Perhaps we are as different as Weiss surmises.

On another matter, Professor Weiss is clearly right. Humanitarian impulse rather than humanitarian imperative is the better descriptor. I will use it. But his last sentence rather puzzles me.

On what basis can it properly be said that if Assad leaves Syria, his exit will have in part been attributable to the R2P norm? Apart from the occasional and cursory reference to R2P in Security Council resolutions decrying the regime’s failure to protect its people from atrocity, for reasons I’ve outlined in some considerable detail, the Syrian case is passing R2P by. Neither the regime, nor its rebel opponents, nor the major regional and international players, seem to be concerned with it at all. Each pursues its agenda with absolute ruthlessness.

R2P is a noble doctrine. For the time being, however, it will have to play on a different and less contested field.

MJIL Symposium: A Response to Spencer Zifcak by Thomas Weiss

by Thomas G Weiss

[Thomas G Weiss is a Presidential Professor of Political Science at The CUNY Graduate Center and Director of the Ralph Bunche Institute for International Studies]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Professor Spencer Zifcak’s article on the international reactions to Libya and Syria is thorough and thoughtful, and well worth reading for the treasure trove of documentation. But I was frankly surprised by his unsurprising conclusion that ‘judgments as to whether and when to intervene are likely in the foreseeable future to be made case by case rather than according to predetermined, universally applicable principles’.

How else?  Obviously, political scientists and lawyers have quite different expectations.

Undoubtedly the loss of life and suffering is much higher in Syria than in Libya, and it has gotten worse in the time taken to get Professor Zifcak’s article into print. The death toll has risen fivefold — now approaching 25 000 — and the joint UN-Arab League envoy Kofi Annan has resigned from his ‘mission impossible’, an assignment that trouble-shooter Lakhdar Brahimi has assumed.

The paralysis amidst atrocities and killings in Syria suggests, in case there was any doubt, that robust action in one crisis does not necessarily foreshadow similar efforts elsewhere. Inconsistency is not only the hobgoblin of little minds but also the proverbial bottom line for political decision-making. Rhetoric is one thing, tough decisions are another. Talk is cheap, action is not.

Indeed, to expect anything else is to play into the hands of the usual spoilers in the global South — the Nicaraguas and Cubas, the Zimbabwes and Sudans — who point to the double standard of the Responsibility to Protect (‘R2P’) as neo-imperial meddling.  They, of course, would prefer the old single standard for mass atrocities and do nothing because state sovereignty is sacrosanct and includes the license for mass murder. The best should never be the enemy of the good — for R2P or anything else.

In describing the present global governance of mass atrocities, humanitarian ‘impulse’ is more accurate than humanitarian ‘imperative’. The latter entails an obligation to treat victims similarly and react to all crises consistently — in effect, to deny the relevance of politics, which consists of drawing lines and weighing options and available resources. Yet humanitarian action remains desirable not obligatory. The humanitarian impulse is permissive; the humanitarian imperative is peremptory. Similarly, R2P is not a peremptory obligation but a desirable and emerging norm whose consolidation can result in occasional enforcement when the politics are right.

Politics and military capacity ultimately determine whether, when, where and why to protect and assist war-affected populations. However shocking to the conscience a particular emergency and however hard or soft the applicable public international law, when political will and a military capacity exist, humanitarian space will open and war victims will be assisted and protected. In Libya the moral, legal, political, and military dimensions dovetailed under the R2P rubric. Rather than speaking truth to power, the value-added of R2P was speaking truth with power. And if Assad leaves Syria, it will in part be attributed to the evolving power of the R2P norm.

MJIL Symposium: A Response to Spencer Zifcak by Ramesh Thakur

by Ramesh Thakur

[Ramesh Thakur is Director of the Centre for Nuclear Non-proliferation and Disarmament (CNND) in the Crawford School, Australian National University and Adjunct Professor in the Institute of Ethics, Governance and Law at Griffith University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

Professor Spencer Zifcak has written an insightful article on a topic that is important, timely and will not go away. His analysis and conclusions are judicious, circumspect, balanced and, in consequence, stand the test of time since the article was written. I would like to make four points in summary and add three items to his analysis.

First, the use of force, no matter how benevolent, enlightened and impartial in intent, has empirical consequences and shapes the struggle for power and helps to determine the outcome of that political contest. This is why it is inherently controversial and contentious.

Secondly, the Responsibility to Protect (‘R2P’) is the normative instrument of choice for converting a shocked international conscience into decisive collective action — for channelling selective moral indignation into collective policy remedies — to prevent and stop atrocities. In the vacuum of responsibility for the safety of the marginalised, stigmatised and dehumanised out-group subject to mass atrocities, R2P provides an entry point for the international community to step in and take up the moral and military slack. Its moral essence is the acceptance of a duty of care by all those who live in zones of safety towards those trapped in zones of danger. It strikes a balance between unilateral interference and institutionalised indifference. But the precise point along the continuum is not easily ascertained in the fog of armed violence amidst chaos and volatility.

Thirdly, R2P was the discourse of choice in debating how best to respond to the Libya crisis. But the R2P consensus underpinning Resolution 1973 in 2011 was damaged by gaps in expectation, communication and accountability between those who mandated the operation and those who executed it. For NATO, the military operations, once begun, quickly showed up a critical gap between a no-fly zone and an effective civilian protection mandate. But back in New York, there was an unbridgeable gap between effective civilian protection, which Brazil, Russia, India, China and South Africa (‘BRICS’) supported, and regime change, which they strongly opposed.

One important result of the gaps was a split in the international response to the worsening crisis in Syria. Both China and Russia, still smarting from the over-interpretation of Resolution 1973, have been defiantly opposed to any resolution that could set in train a sequence of events leading to a 1973-type authorisation for outside military operations in Syria.

Fourthly, the Libya controversy over the implementation of R2P notwithstanding, by 2012 there was no substantial opposition to R2P as a principle or norm — an international standard of conduct.

(more…)

MJIL Symposium: The Responsibility to Protect after Libya and Syria

by Spencer Zifcak

[Spencer Zifcak is Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

My article on this subject attempts to encapsulate the standing of coercive (Pillar 3) intervention within the framework of the Responsibility to Protect (‘R2P’) following the application of the doctrine in Libya and paralysis with respect to it in Syria. In 2011, the international community was confronted with the prospect that large-scale civilian casualties may occur as a consequence of fighting between government and rebel forces in Libya. The UN Security Council, therefore, was confronted with the dilemma of whether to authorize an intervention to avert what seemed likely to be a humanitarian catastrophe. In this case, the UN Security Council sanctioned an intervention by NATO forces in accordance with the new doctrine. Soon after, the Syrian rebellion took hold and civilians began to be killed and injured in their thousands. In that case, however, the Security Council has been stymied as neither sanctions nor military intervention can be agreed upon. In the article, the Libyan and Syrian cases are analysed with a view to determining why the international community’s response to the two conflicts has been so different and what these differences tell us about the current status and practice of the R2P doctrine. To that end, the article concludes with a series of propositions which summarize my answer to the latter question.

I have recently updated the article to take into consideration the tragic developments in Syria between February, at the time the article was completed, and October this year. In the light of that revision, the propositions contained in the original have been slightly amended. For the purpose of this interchange, therefore, I provide the most recent set as follows:

  • Prior to approving a coercive Pillar 3 intervention, in the interests of national sovereignty and independence, the Security Council will need to be satisfied that every possible diplomatic solution to a crisis has been exhausted. Pillar 3 intervention will occur only as the last resort.
  • Prior to approving a coercive Pillar 3 intervention, the Security Council is likely in future to insist that its objectives be made clear and that its mandate be spelt out with precision.
  • It is highly unlikely that the Security Council will approve a Pillar 3 intervention if its explicit or implicit objective is regime change.
  • Given that a Security Council mandate for a Pillar 3 intervention is likely to have as its principal objective the protection of civilians, it is probable that the Security Council will require that the position of an intervening force be one of strict neutrality as between the contending parties.
  • Before approving a Pillar 3 intervention, the Security Council will need to be clearly satisfied first, that the intervention is likely to achieve its protective objective within the country concerned and, secondly, that it will not result in any wider regional destabilization.
  • A Pillar 3 intervention should, in all aspects, conform to the dictates of international law and in particular international humanitarian law.
  • Where a contemplated coercive intervention runs contrary to the core political or strategic interests of a member of the P-5, it highly unlikely to proceed. This is unless the crimes against humanity committed are so extensive and so grave that no reasoned member could resist the demand the crimes be fought. Even so, the failure of Russia and China to endorse even a very weak Security Council resolution against Syria in the face of clear evidence of the commission of mass atrocities has dispiritingly cast doubt even on that seemingly obvious proposition.
  • However inadequate, engagement in Pillar 3 intervention that excludes action pursuant to Chapter VII of the UN Charter may still be preferable to provoking Security Council gridlock. This is because, as in Syria, the outcome of gridlock may be seen by antagonists to a conflict as an international licence for the commission of further crime.
  • Alternatively, in response to mass atrocities, coalitions of the willing may decide to take action outside the legal framework of the UN Charter. Should this become common, R2P may wither to the great detriment of the international rule of law.

The full article may be accessed here.

Syria and the Overlapping Consensus

by Jens David Ohlin

Cross-posted at LieberCode.

David Rieff has an interesting – and somewhat polemical – article in the latest Foreign Policy.  Rieff, you will recall, was an early supporter of intervention, a policy position no doubt influenced by his time spent in Bosnia which culminated in Slaughterhouse: Bosnia and the Failure of the West.

Although initially hawkish on intervention, and willing to support liberal interventionism in Iraq, Rieff had a change of heart after the Iraq war failed to achieve any liberal goals.  Not only did Rieff renounce the Iraq war, but he also went further and started renouncing the liberal interventionism that he once championed.

These debates are always about historical comparisons and parallels. Which ones are correct and which ones are wrong?  Was Iraq more like Vietnam (intervention not OK) or more like World War II (intervention permitted or even required)?  Was Libya more like Kosovo or Iraq?  And is Syria more like Kosovo or Iraq?

Rieff does a number of things in this article.  First, he points out the lack of concrete and impartial information on the ground in Syria.  He is also particularly concerned about the possibility of Islamic extremists and terrorists among the rebels; on this score he is channeling the recently departed Christopher Hitchens.  Finally, he wants to throw a cautionary wrench into the interventionist assumption that unilateral interventions will make matters better, not worse:

During the Bush administration, Democrats often boasted that — unlike the president and his aides, who were consumed by millenarian dreams of remaking the Middle East in the image of American democracy — they were part of the “reality-based community.” In fact, the neoconservatives were paragons of modesty compared with the liberal interventionists and R2P supporters who saw in Libya and now see in Syria the chance to move one step closer to remaking the world in the image of the human rights movement. Infatuated by their own good intentions — and persuaded that their interventionist views incarnate a higher morality — those who view Libya as a triumph and Syria as an opportunity to cement the practice of humanitarian intervention are in full crusading mode. If the looming victory of the Taliban in Afghanistan, the failure of the democratic project in Iraq, and the fact that the most significant political outcomes of the Arab Spring in Egypt, Yemen, and Libya have been instability and the victory of political Islam have not chastened them — and clearly they haven’t — nothing will. Welcome to the second decade in a row of humanitarian war.

I don’t necessarily agree with what Rieff is saying, but I do worry about the possibility of an overlapping consensus supporting intervention.  On the one hand, some people support foreign interventions because they are necessary to stop extremism – think of Hitchens on Iraq or Afghanistan.  Liberals, on the other hand, support intervention under R2P or just a general belief that innocent victims ought to be protected, as they were in Kosovo, or as they should have been (but weren’t) in Rwanda.

The danger, of course, is that such an overlapping consensus is rather thin, i.e. it doesn’t go very deep, and disagreements about the conduct of the war will then be exposed.  That’s one reading of what happened with Iraq.  Neo-conservatives supported the war, as did some prominent liberal interventionists on the theory that what we really needed to do was protect the Kurds and other ethnic groups from Saddam’s rule.  But when it became clear that we were failing to significantly protect the civilian population and provide adequate security, that liberal support started to vanish.  But at that point it was too late.

Syria, Intervention, and Recognition

by Jens David Ohlin

Cross-posted at LieberCode.

It is becoming increasingly likely that Russia and China are going to block just about any resolution on Syria coming out of the Security Council, regardless of whether it is meaningful or not.  They aren’t going to support a resolution that seriously denounces the regime, nor are they going to support an ICC referral, I believe.  And they definitely will veto any resolution that authorizes military action in Syria.

Consequently, people are starting to talk about recognizing the rebels in Syria as the legitimate government of Syria.  That’s something that also happened during the Libyan conflict, although the move was only of marginal significance to the legal argument.  The Security Council voted to authorize military action in Libya pursuant to its Chapter VII authority, so Libya wasn’t really a case of unilateral humanitarian intervention.  True, Russia and China complained that NATO far exceeded its Security Council mandate to protect the civilian population and pursued regime change ultra vires.  But that complaint aside, which strikes me as a bit of posturing, the infringement of Libya’s sovereignty was authorized by the Security Council.

Since the Security Council is not likely to pass a similar resolution regarding Syria, the recognition strategy is more pressing.  If the rebels have some political structure, and that structure can be recognized as the legitimate government of the Syria people, then any outside military support would be by invitation only, and therefore not an infringement of Syrian sovereignty.  Under this view, there would be no violation of Article 2 of the U.N. Charter, so it would not need to be justified by either Article 51 or a Security Council Chapter VII authorization.

There are two options to this strategy.  Under option one, recognition is combined with a secession claim, and the rebels are deemed to be the rulers of some newly sovereign sub-set of the Syrian territory.  Under option two, recognition is the only claim and the new government is considered the legitimate rulers of Syria proper.

What interests me is if this does indeed happen in Syria, will it set the stage for a general strategy to solve the humanitarian intervention quandary?  In other words, can the recognition strategy be universalized?  Isn’t it the case that in most situations one can find some council, committee, or “parliament” – or any collective group at all — and anoint them as legitimate rulers?  Could someone justify military action against China by recognizing the ROC in Taiwan as the true leaders of China?  (The ROC once ruled mainland China too but lost a civil war to the PRC).

Of course, it would be an exaggeration to suggest that there is no law that could serve as a limiting principle here.  There is the Effective Control test, the Montevideo Convention, the EC principles, the Declaratory View, etc., all of which purport to establish criteria for when a country exists and who its government might be.  With regard to the Effective Control test, it might be said that neither the rebels nor the Assad government have effective control over the territory at the moment (or put another way, they both have effective control at the same time if such a thing is possible).  But I think the take-away from the Kosovo decision at the ICJ is that there is less positive law in this area than one might hope (one reason for the court interpreting that case so narrowly).

That being said, the interesting question about the recognition strategy is whether it’s an impermissible workaround of the Charter scheme. If it can be universalized, does that suggest that it is a reductio ad absurdum?