Guglielmo Verdirame is Professor of International Law at Kings College London
There is no better evidence of the long shadow that the Iraq war continues to cast that, while in 2003 the British Parliament supported intervention against the mere possibility that weapons of mass destruction might be used, ten years later the British Parliament voted against it after they had actually been used. The vote of the British Parliament will shift the debate, in Britain at least, from law to politics. The domestic and international repercussions of this vote, including on the Syrian conflict, will no doubt require careful scrutiny, but the legal arguments remain relevant not least because the US and France may go ahead with the intervention.
As explained by Marko Milanovic in an earlier post, the British Government invoked humanitarian intervention as the legal basis for the use of force against Syria. Unlike Dapo Akande and Marko Milanovic, I am of the view that there is a doctrine of humanitarian intervention under international law today, although I accept that this doctrine is controversial. It is not to the well-trodden terms of this controversy that I would like to turn in this piece. Rather, I wish to focus on the nexus between the legal assessment and the strategic analysis.
Arguments for humanitarian intervention often assume that, once a certain threshold is reached, a right to use force arises automatically. I disagree. A right to use force on humanitarian grounds can only exist if, in that particular context, there is a military option that can improve the humanitarian situation. Where there is no such option, there is no right. Or, if there is a right, it is a right only in the most abstract of senses: the right to do something which cannot be done. The doctrine of humanitarian intervention gives states a right to use force in order to alleviate the humanitarian crisis. The purpose qualifies the right.
However, in many, perhaps most, conflicts a foreign military intervention offers no realistic prospects of accomplishing any humanitarian objective. In these cases the use of force would be unnecessary (or even counterproductive) – and therefore illegal. One might argue that the proper analysis is that the intervening state did have a right to use force under the doctrine of humanitarian intervention, but failed to exercise it in a manner consistent with the principle of necessity. As I said above, I prefer the view that ascribes the purpose to the scope of the right, because it leads to a right of humanitarian intervention that is inherently limited by the achievability of the humanitarian purpose. This approach is more consistent with the law on the use of force.
The legal assessment of the intervention in Syria thus turns on a question that – in the first instance at least – strategists rather than lawyers are better placed to address: is there a military option that can improve conditions for people in Syria? Put in other terms: is there an achievable humanitarian purpose? Read the rest of this entry…