Syria Insta-Symposium: Jennifer Trahan-The Legality of a U.S. Strike on Syria

[Jennifer Trahan is an Associate Clinical Professor, NYU Center for Global Affairs, chair of the American Branch of the International Law Association International Criminal Court Committee, and member of the American Bar Association 2010 ICC Task Force]

As the U.S. prepares, with or without coalition partners, for a potential military strike against the Bashar al-Assad regime in Syria , it is important to consider the legality of such a strike as a matter of domestic and international law.  At the international level, with a U.N. Security Council resolution, such action would be clearly legal.  Without such a resolution, the law is in somewhat of a grey area, but the legality is supportable.

The “responsibility to protect” doctrine, developed in recent years, makes clear that the international communitydoes have a responsibility to protect a people in peril from grave atrocity crimes.  Recent formulations of the “responsibility to protect” doctrine suggest that large scale war crimes and/or crimes against humanity — acknowledge to have occurred in Syria — are such atrocity crimes.

While the clearest path to utilizing forceful intervention under the “responsibility to protect” framework is through Security Council authorization (as happened in the case of Libya ), tragedies such as genocides in Rwandan and Darfur dramatically pose the question:  what should the world do when the votes are not there at the Security Council level?  Should one simply allow massive humanitarian tragedies to be inflicted by a regime on its own people absent a Security Council resolution?  Does one really need to wait for recalcitrant China and Russia (permanent members of the Security Council possessing veto power) to do the right thing?

A legitimate argument exists that even when the Security Council does not authorize humanitarian intervention, it is arguably still permissible.  As formulated by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, while the decision to intervene should be made by the Security Council, if the Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation.”

Clearly, intervention through a coalition of partners, such as a NATO coalition (as occurred with Kosovo) lends greater legitimacy (although even that is technically not sufficient under a strict reading of the U.N. Charter).  But when a broad coalition or regional actor is unavailable, does that mean that countries must stand by and let mass atrocities, such as the use of chemical weapons (a necessarily indiscriminate weapon), occur?  The answer is arguably no.

While the U.N. Charter only clearly permits intervention in two scenarios:  U.N. Security Council authorized action and article 51 individual or collective self-defense, the Charter also contains a clear commitment to human rights.  Committing mass atrocity crimes is about the clearest violation of human rights that one can get.  Thus, while humanitarian intervention is not clearly legal under the U.N. Charter, it is not clearly illegal either.  We are in a grey area where the demands of morality and those of international law are not yet fully harmonized in a clear manner.  Should thousands more die while we wait for international law (which can take decades to form) to catch up to where it should be?

We might have not reached this point had Assad regime members (as well as others actors in Syria ) felt much sooner that the international community was scrutinizing their actions.  This could have happened through a Security Council referral of the situation to the International Criminal Court.  Unfortunately, that has not happened, and any chance to deter crimes through a referral has been squandered.

While the U.S. contemplates a strike, important criteria for consideration include those formulated by the Secretary-General’s High-Level Panel on Threats, Challenges and Change.  Namely, last resort:  “Has every non-military option for meeting the threat in question been explored . . . ?”  Proportional means:  “Are the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question”? Balance of consequences:  “Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?”

The Administration is facing a difficult choice as the U.S. contemplates moving ahead, hopefully along with coalition partners such as France .  Yet, a flexible reading of international law does not demand that countries stand impotent in the face of over 100,000 fatalities and the use of chemical weapons.