Home Archive for category "Syria" (Page 7)

Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward)

Published on October 4, 2013        Author: 

Editor’s Note: This piece was originally published on Just Security.

My first post for Just Security explained why, despite some bungled politics, President Obama’s proposed military action in Syria could have been lawful under U.S. domestic law.  This post discusses why President Obama did not violate international law by threatening to use force in Syria in the face of a persistent Russian veto, and how the Syria crisis might best evolve from here.

Obviously, we cannot fully evaluate the lawfulness of any state’s use of force until we know the precise factual circumstances under which it chooses to take action.  But let’s start by distinguishing the legal question—is the option of military force available under domestic or international law?—from the policy question: would it be wise to use military force in Syria for the limited purpose of discouraging a repeat use of chemical weapons?  No one denies that the policy question presents a vexing judgment call, even if the intended use were very limited and even if a decision-maker like President Obama had far more information than that available to the general public. As Nick Kristof rightly cautioned, “[l]et’s be humble enough to acknowledge we can’t be sure of the answer and that Syria will be bloody whatever we do.”  The shifting balance of power in the Syrian civil war; the proliferation of questionable armed groups on both sides, the risk of mission creep, and the uncertainty of follow-on consequences from any military strike all demand caution, particularly if one starts from the premise, “first, do no harm.”

3. Was the Proposed Military Action Lawful Under International Law? That said, a prior and distinct legal question remains: would the policy option to use military force ever be available under either domestic or international law? My last post explained the circumstances under which U.S. domestic law allows policymakers that policy option.  But does international law nonetheless bar it? I believe that international law has evolved sufficiently to permit morally legitimate action to prevent atrocities by responding to the deliberate use of chemical weapons.

Among international legal commentators, the emerging party line seems to be that President Obama was threatening blatantly illegal military action in Syria, for the simple reason that the Russians were not on board. The conventional argument, set forth by among others, my Yale friends and colleagues Oona Hathaway and Scott Shapiro, is “per se illegality:” in their view, Article 2(4) of the U.N. Charter permits individual and collective self-defense but bars any and all other forms of intervention without express Security Council authorization. They see the Syrian crisis as a moment to reaffirm that acting without an UN Security Council Resolution is per se illegal.  But is that really what international law requires? Read the rest of this entry…

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A Few Thoughts on Resolution 2118 (2013)

Published on October 1, 2013        Author: 

The official final text of Security Council resolution 2118 (2013) on Syria is now available, as is the full proces-verbal of the Council’s discussion after the adoption of the resolution (text available here; ODS search strangely still showing it as under embargo; S/PV.7038). The main points of the resolution have of course received much attention from the press, and there is also commentary by John Bellinger on Lawfare and Ryan Goodman on Just Security, here and here). There are a couple of features of the resolution that I find particularly interesting.

First, there’s the fact that in its last preambular paragraph the Council unanimously endorsed the view that all Council decisions, and not just Chapter VII resolutions, are legally binding. This was of course due to careful diplomacy between the US and Russia, with the former wanting a legally binding instrument and the latter refusing to agree to a Chapter VII resolution. The compromise between the two is reflected in the preambular paragraph when the Council is ‘underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions’ and then in a number of operative paragraphs which use the verb ‘decides’ to impose legally binding obligations.

In other words, while decisions under Chapter VII are legally binding (even though resolutions under this chapter will frequently include non-binding recommendations as well), they are not the only decisions with binding force. This is I think the first time that the Council so openly adopted this view, which was endorsed before it by the ICJ in the 1971 Namibia advisory opinion. Doctrinally of course the issue was not settled and continued to be debated; for an overview see John Bellinger’s post as well as this excellent report linked to by Ryan. But now the matter does seem to be finally settled, with the ICJ’s interpretation of the Charter garnering unanimous support of the Council.

The PV of the meeting, at which many delegations stressed the legally binding nature of the resolution, only supports the resolution’s text. I think Ryan is wrong when he argues that Russian Foreign Minister Lavrov ‘took a swing at the legal strength of the Resolution’ when he stated that it was not passed under Chapter VII. As I see it, Russia is in full agreement with the US and the UK that the resolution did create binding obligations – this is at least implicit in his following statement on p. 4 of the PV:

Particular responsibility lies with those who back and sponsor the opposition; they have to ensure that chemical weapons do not fall into the hands of extremists. We draw attention to the fact that the resolution contains requirements set by the Security Council that apply to all countries, especially Syria’s neighbours. They must report to the Council any attempts by non-State actors to obtain chemical weapons. It would be even more unacceptable for them to support such attempts. All similar cases will be immediately considered by the Security Council with the objective of taking the necessary measures. (emphasis mine)
What Chapter VII brings to the table is not necessarily the binding nature of the measures enacted, but telling us what the measures can substantively be under the Charter, e.g. the authorization to use force. And this is what the Russians are (rightly) concerned about; they don’t want there to be any plausible argument that the Council has implicitly authorized force, and this is what they achieved. But that does not mean that they do not consider the decisions made within the resolution, e.g. for Syria not to use chemical weapons, to cooperate with the OPCW, etc., to be non-legally binding.

The second striking thing about the resolution is its determination in the first operative paragraph ‘that the use of chemical weapons anywhere constitutes a threat to international peace and security.’ In other words, any use of chemical weapons by anyone anywhere is ipso facto a threat of international peace and security, and justifies the Council’s intervention. The Council has previously made such determinations only rarely, as e.g. in resolution 1368 (2001) in which it found that any act of international terrorism was a threat to international peace and security.

Also of note is op. para. 19, in which the Council ‘demands that non-State actors not develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, and calls upon all Member States, in particular Member States neighbouring the Syrian Arab Republic, to report any actions inconsistent with this paragraph to the Security Council immediately.’ Note how the demand is addressed to non-state actors directly and is very precise in scope; this of course raises the issue whether the Council can create legally binding obligations for non-state actors, and whether it has done so in this particular instance (cf. the ICJ’s Kosovo advisory opinion). The Council buttressed this ‘demand’ (but not a ‘decision’?) by deciding in op. para. 20 that ‘all Member States shall prohibit the procurement of chemical weapons, related equipment, goods and technology or assistance from the Syrian Arab Republic by their nationals, or using their flagged vessels or aircraft, whether or not originating in the territory of the Syrian Arab Republic.’

Finally, the Council’s decision in op. para. 21 to impose Chapter VII measures in case of non-compliance is also I think a novelty – although it clearly wouldn’t prevent a veto regarding the adoption of a further resolution, it would render that veto even more politically suspect.

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Syria and the Law of Humanitarian Intervention (Part I: Political Miscues and U.S. Law)

Published on September 26, 2013        Author: 

50Harold Hongju Koh is Sterling Professor of International Law at Yale Law School and was Legal Adviser of the U.S. Department of State from 2009 to 2013.

Editor’s Note: This piece was originally published on Just Security, a new blog with a fantastic team of editors and contributors who will be well known to our readers. Although the blog claims to be dedicated to US national security law and policy, the first week of posting suggests it will be an important forum for discussion of international law issues. We urge you to check it out!

Crises are lived forward but understood backwards.  While it is still too early to know how the Syria crisis of 2013 will end, we can start evaluating what precedents of law and policy it should generate, properly understood.  Notwithstanding a welter of political miscues, when the dust settles, history might well remember the episode as “Obama’s Harfleur:” where an announced threat of potentially illegal force catalyzed a better nonviolent result, here by reinvigorating multilateral diplomacy abroad and much-needed public debate at home.

To explain why, Part I of this – my first for Just Security and EJIL:Talk! — will sort out first, what went wrong; and second, why the proposed military action was lawful under domestic law. Part II will discuss third, whether the proposed military action was lawful under international law; and fourth, what might still go right if we, as constructive observers, can help get it there.

1.What went wrong:  To read recent blog commentary, one might think that the villain of this piece is Barack Obama, not Assad or Putin.  But from the start, the President has been the quintessential reluctant warrior, who for years tried to avoid military intervention in Syria, and just this May, gave a major speech at NDU reaffirming that he wants to end wars in Iraq, Afghanistan, and against Al Qaeda. Just as undeniably, Assad is a war criminal who has slaughtered his own people for months and lied about it–with and without chemical weapons –while Putin has given him shameless cover with four vetoes, lies, and sickening rhetoric. Putin’s hypocrisy culminated in his recent “pro-international law” op-ed in the New York Times, which pretended that despite condoning civilian slaughter for many months, Russia was not trying to protect the Syrian government, and that the Syrian opposition, not Assad, had deployed chemical weapons. Read the rest of this entry…

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Filed under: Syria, Use of Force

Syria and the Semantics of Intervention, Aggression and Punishment

Published on September 19, 2013        Author: 

untitledCarsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director, Grotius Centre of International Legal Studies, University of Leiden

As I have tried to argue in a draft paper to be published in  the Journal of International Criminal Justice (Vol. 11, Issue 5) one of the most striking features of discussion concerning the legality of strikes against Syria has been the mixture of semantics relating to intervention. The justification of intervention in Syria has been replete with references to notions of accountability, deterrence and punishment. For example, US Secretary of State John Kerry linked the moral legitimacy of the proposed response to the idea that ‘there must be accountability for those who would use the world’s most heinous weapons against the world’s most vulnerable people’.  Also, the United Kingdom Legal Memorandum speaks of the objective of ‘deterring or disrupting the further use of chemical weapons’. Section 2 of the Resolution of the US Senate Foreign Relations Committee invokes three rationales of the authorization of military intervention: (i) ‘respond to the use of weapons of mass destruction by the Syrian government’; (ii) ‘deter Syria’s use of such weapons’; and1 ‘degrade Syria’s capacity to use such weapons in the future’.

This language associates military intervention with notions of ‘retribution’ and  ‘punishment’. The justification seems to be predominantly linked to the ‘gravity’ of the violation. The Obama Administration has translated this imagery into the notion of the ‘red line’. The  metaphor seems to suggest that such a breach of international law is so severe that it cannot be tolerated by the international community and warrants a repressive response. The concept that certain acts might trigger international responsibility and are of concern to the ‘international community as a whole’ is of course well-known (ICJ,  Barcelona Traction) and reflected in the ILC Draft Articles of State Responsibility (Art. 48).

The use of chemical weapons against civilians is both a violation of customary law and an international crime (UK Legal Memorandum, para 2).  But the consequence of this approach, i.e., the idea to ‘punish’ a regime for unlawful action under jus in bello through resort to the use of force, is highly controversial. There are other competing, and at least similarly important ‘red lines’ that require respect, i.e., Articles 2 (1) and (4) of the UN Charter, the prohibition of aggression and the viability of the collective security system, as argued by others.

The policy case in favor of intervention mixes two levels of discussions that have been separated in past decades: state responsibility for an international wrongful act, and individual criminal responsibility for international crimes. The idea that another state (rather than individuals) might be ‘punished’ has been banished from contemporary international law, in contexts such as sanctions, the ban on reprisals against civilians or the prohibition of collective punishment in international criminal law (e.g., Article 4, paragraph 2(b), of Additional Protocol II to the Geneva Conventions), since it has an indiscriminate effect. The current discourse on intervention appears to re-open this principle. Read the rest of this entry…

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Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention

Published on September 12, 2013        Author: 

Sir Daniel Bethlehem KCMG QCsir-daniel-bethlehem 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…

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Mapping the Debates about Syria

Published on September 10, 2013        Author: 

John LouthJohn Louth is Editor-in-Chief of Academic Law at Oxford University Press

International lawyers are fortunate to be well-served by a number of very well informed and thoughtful blogs. Whether just throwing out an idea for discussion or undertaking a detailed survey of a topic it seems to me that we need to start taking seriously the idea that they are making a lasting contribution to scholarship. This seems especially true in the case of Syria.

The sharp increase in scholarly commentary that has appeared online since the chemical attack on 21 August has added much needed nuance and authority to more general press coverage of the issues. At the same time such a sudden torrent carries the risk of overwhelming our abilities to keep track of what has been said.

To counter this I have created a “Debate Map” on a freely available page within the Oxford Public International Law site which indexes discussions by scholars of the public international law aspects of the debates over military intervention in Syria that have appeared in blogs and newspaper articles (plus two forthcoming journal articles and one recently published article).

It is organized by topic and within each topic I give the date, the author, where it was posted or published, and a brief description of what arguments are being discussed or put forward. It only covers English language materials, focuses on public international law questions (not domestic constitutional law questions). Not every single post that has appeared is included – if two posts are on the same topic but one merely flags up the questions whilst the other one attempts to solve them I have only included the latter post.

Intended users include scholars who want to see what has been written about so far (either just to keep track or to plan their own writing), and lecturers and librarians preparing guides for student discussion. It also might help scholars who want to write a blog post to see where there are gaps in what has been written on.

The aim is to keep this up to date and in due course it will reference published articles and even books. I would be very happy to receive feedback on whether such a  resource is useful, if you feel I have missed something (I cannot guarantee that I will include it of course), or if you have suggestions about the structure of the Map. That can be done by emailing me at john.louth {at} oup(.)com .

If the concept is considered useful I would also be keen on hearing any suggestions for further Maps that people would like to see.

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Why is David Cameron in this blog’s attic, naughtily rattling my cage?

Published on September 2, 2013        Author: 

You might remember me.  I am the editor who doesn’t write much, and I have been less engaged here than I would have liked for the past few months as I am in the process of moving to Manchester.  I did prepare an entry on the legal nonsense currently being spewed, principally by the UK, on forcible intervention in Syria, but Dapo posted first (here and here and here) and, to be honest, he did so extremely well.  I can add little to what he has said.

On the other hand, as someone said in the comments to one of Dapo’s posts, at least international law is being discussed in the UK parliament.  It is a pity that the government has been doing this so blatantly badly.  Former Australian foreign minister Gareth Evans, who was central in formulating the responsibility to protect doctrine, has apparently accused the UK government of “making things up as it goes along”.   On a brighter note, the House of Commons rejected the government’s motion that would have opened the door to possible UK intervention in Syria, by 285 votes to 272, with 91 members of parliament absent.  Read the rest of this entry…

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Military force against Syria would be a reprisal rather than humanitarian intervention, but that doesn’t make it any more lawful

Published on September 1, 2013        Author: 

Dr Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

The anticipated use of military force against Syria in reaction to the use of chemical weapons does not meet the permitted exceptions to the prohibition on the use of force under the United Nations Charter. Security Council authorisation has not been forthcoming, while self-defence is obviously not applicable. Although British MPs have blocked a United Kingdom military intervention, the United Kingdom government had relied up on humanitarian intervention as the legal basis to justify the use of force. The doctrine is controversial and as Dapo Akande has shown, it at best has weak legal standing in international law. But the type of limited military intervention envisaged bears all the hallmarks of a reprisal, rather than humanitarian intervention, and this concept is equally problematic in modern international law.

 Reprisals are a traditional means of law-enforcement, involving the unilateral use of force in response to breaches of international law. The Institut de Droit International defined reprisals involving the use of armed force in a resolution passed in 1934:

Reprisals are measures of coercion, derogating from the ordinary rules of international law, decided and taken by a State, in response to wrongful acts committed against it, by another State, and intended to impose on it, by pressure exerted through injury, the return to legality.

 The purpose of military intervention against Syria seems to be both punitive and deterrent; to punish Syria using chemical weapons in breach of international law and to deter any further use.  Such military action would be prima facie unlawful, in that it fails to meet the terms of the United Nations Charter. But might it be lawful as an armed reprisal?

Read the rest of this entry…

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Breaking: UK Government Discloses Legal Rationale for Syria Intervention

Published on August 29, 2013        Author: 

In more breaking news today, the UK government officially endorsed humanitarian intervention as a legal basis for using force against Syria. The full (and quite brief) statement can be found here, and is also reproduced below the fold. While it is not supported by a detailed legal analysis, it sets out three legal conditions for the use of force in a humanitarian intervention without UN Security Council authorization, and finds that Syria fulfils these criteria on the facts. This is as formal an expression of opinio juris by the UK as is possible, and probably the most official endorsement to date of humanitarian intervention (note also the absence of any reference to R2P).

I fully ascribe to Dapo’s analysis from his post yesterday, and have little to add in that regard: humanitarian intervention is not permissible in international law as it stands today, on 29 August 2013. The key issue for me here is how the UK is essentially trying to change international law by asserting a position and waiting to see how other players will react and possibly validate its view; the conceptual problems that Dapo points to aside, this is essentially how customary law works. I’d also refer readers to an excellent 1994 piece by James Crawford and Thomas Viles called ‘International Law on a Given Day’, on custom as ex-post facto rationalization, which is excerpted in part here.

UPDATE 1: The language of the UK guidance with regard to the three criteria reproduces almost verbatim an October 1998 FCO memo in respect of the impending intervention against the FRY, which is itself quoted in this article by Adam Roberts at p. 106.  One key difference between the two memos is that the 1998 uses UNSC resolution 1199 and UN reports as convincing evidence of an impending humanitarian catastrophe, and this is missing with respect to Syria.

UPDATE 2: Dapo and Philippe Sands discuss the problems with the UK government’s rationale in the Guardian here.

The UK statement in full:

Read the rest of this entry…

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The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect

Published on August 28, 2013        Author: 

It now seems fairly clear that the US and the UK are set to take military action in Syria in the coming days in response to the recent chemical attacks there. The UK Prime Minister, UK Foreign Secretary and the UK Secretary of State for Defence have all asserted that any action taken in Syria will be lawful. But on what grounds will military action in Syria be lawful. As is well known, United Nations Charter prohibits the use of force in Art. 2(4), as does customary international law. The UN Charter provides 2 clear exceptions to the prohibition of the use of force: self defence and authorization by the UN Security Council. It is almost certain that there will be no Security Council authorization. In a previous post, I considered the possibility of a (collective) self defence justification for the use of force in response to a use of chemical weapons. The scenario contemplated then is very different from the situation that has emerged, and the language used, at least by the UK, does not hint at a use of force on the basis of national interest. However,  President Obama in a CNN interview last week did seem to speak of self defence when he said “there is no doubt that when you start seeing chemical weapons used on a large scale  … that starts getting to some core national interests that the United States has, both in terms of us making sure that weapons of mass destruction are not proliferating, as well as needing to protect our allies, our bases in the region.” A justification for force on this basis would sound like preemptive self defence in a way that is very close to the Bush doctrine. I find it hard to see the Obama administration articulating a legal doctrine of preemptive self defence claim in this scenario.

So, absent Security Council authorization and a self defence claim, would the use of force be lawful? This is a question receiving a lot of media attention in the UK and I spent much of yesterday fielding this question in various media interviews (here on Channel 4, on BBC Radio 5 live [around the 1hr 10 min mark] and here on the Syria Deeply website.) In an earlier post I considered the legality of arming rebels in Syria and concluded that there was no strong legal basis for doing so. Well, the same is true of direct military action. It is hard to make the case that international law allows the use of force in this scenario or that the use of chemical weapons makes the case for lawful military action easier. Read the rest of this entry…

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