Sir Daniel Bethlehem KCMG QC is a barrister in practice at the London Bar, Visiting Professor of Law at Columbia Law School and was formerly principal Legal Adviser of the UK Foreign & Commonwealth Office.
The debate on possible intervention in Syria has moved beyond the discussion of whether any such action would be justified by reference to a principle of international law of humanitarian intervention. Given the importance of, and interest in, this issue to this point, however, it may be useful to step back a little and reflect on the detail of the legal arguments that might be advanced in support of the existence of a principle of humanitarian intervention – not specific to Syria or the use of chemical weapons but for purposes of addressing an unfolding humanitarian catastrophe more generally.
There are at least two distinct though intersecting strands of legal argument that could support a sustainable conclusion that the use of force in circumstances of dire humanitarian need would be lawful under international law notwithstanding the absence of an authorising Chapter VII resolution of the UN Security Council or other Charter-based justification (such as collective self-defence). The first strand is purpose-driven, focused on the insufficiency of a narrow, traditionalist view of the law on such matters and the consequential imperative to translate from the existing law to address circumstances of dire humanitarian need. This approach contends for the rapid crystallisation of a norm of customary international law in favour of a principle of humanitarian intervention – akin to the process that has seen the rapid crystallisation of other principles of customary international law, such as that of maritime straight base-line delimitation, on the basis of only limited (and even contested) State practice (and opinio juris) but compelling reason and need.
The second strand is more rooted in the detail of the law, pulling together threads of practice that in isolation may appear fragile and unreliable but which, when knitted together, are more robust and compelling. As every litigation lawyer knows, an assessment of the legality of contested conduct is seldom a linear matter, there invariably being another side to the case. Legality therefore often falls ultimately to be assessed by reference to a circumstantial appreciation of a range of factors rather than resting simply on some apparently trumping proposition of law. In the case of the law on humanitarian intervention, an analysis that simply relies on the prohibition of the threat or use of force in Article 2(4) of the UN Charter, and its related principles of non-intervention and sovereignty, is overly simplistic. The law in this area is more complex, even before one gets to any complicating issues of fact and imperatives of policy. Read the rest of this entry…