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

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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.

Is humanitarian intervention lawful?

The main argument for the legality of the use of force in Syria would be humanitarian intervention. This is the argument that says that States may use force abroad to prevent a humanitarian catastrophe or to stop widespread human rights abuses. It seems to me quite clear that this not an accurate reflection of international law as it currently stands. Let me simply quote what I wrote earlier.

The main problem with this argument is that there is very little State support for the view that international law permits States to use force in other States on humanitarian grounds. The UK is of course one of the few States that does accept that international law provides a right of humanitarian intervention. However, this view has been rejected by the vast majority of States. See for example the 2000 Declaration of the South Summit by the G77 composed of about 130 member States [‘We reject the so-called “right” of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law’. para. 54 ]. Also, even other European States have failed to advocate such a right. In the ICJ proceedings regarding the Legality of the Use of Force (by NATO in Yugoslavia), only the UK and Belgium expressly relied on the doctrine of humanitarian intervention. Other NATO countries refrained from doing so.

In short, there is little opinio juris  on which a doctrine of customary international law might be based. Although the matter has not been expressly considered by the ICJ, the Court did seem to reject the doctrine of humanitarian intervention in the Nicaragua case (1986). In the case, the Court stated that: “while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect.” (para. 268). The argument that international law today allows for unilateral right of humanitarian intervention is very weak. No such right exists in international law as it currently stands.

The responsibility to protect doctrine does not change this position in any way. The 2005 World Summit Outcome document, agreed by consensus at Head of State level in the UN General Assembly, is the definitive document on what the “R2P” doctrine is intended to mean. Para. 139 of the document speaks of collective action, through the Security Council, should peaceful means fail. In other words, forceful action to prevent mass atrocity crimes is reserved to the Security Council. The notion that where the Security Council is deadlocked, “R2P” provides a legal framework for the international community to use military force – either by way of a regional coalition or a so-called “coalition of the willing” is just fanciful. This statement was made by the BBC’s Legal Correspondent in legal analysis that is, sadly, likely to be more widely read than any proper assessment of what international law actually provides. If the making of international law has anything to do with States, this statement is far from the law

 In addition to the problem of a lack of a sufficiently general state practice and a lack of opinio juris among States, there are also significant theoretical problems with the humanitarian intervention argument. The argument that there is a right of humanitarian intervention is usually put as an argument that a rule of customary international law has developed since the UN Charter. However, this argument requires reconsideration of the structure of the rules relating to the use of force. There are many hurdles that would need to be overcome for this argument to fit into the structure of international law. This argument implies that a rule of customary international law can prevail over or modify the prohibition of the use of force in the UN Charter.

(i) As the Institut de Droit International stated in 1995, “There is no a priori hierarchy between treaty and custom as sources of international law. However, in the application of international law, relevant norms deriving from a treaty prevail between the parties over norms deriving from customary law.” (Conclusion 11, Problems Arising from a Succession of Codification Conventions on a Particular Subject, emphasis added). It is not inconceivable that a customary rule can prevail over a prior treaty but this is rare and is not easy to achieve. One would need to show either desuetude so that the treaty rule is no longer binding. Clearly, Art. 2(4) is still a binding rule.

(ii) The treaty rule that is claimed to be modified is not just any rule in any treaty. It is often claimed that the prohibition of the use of force in Art 2(4) is a rule of jus cogens. Art 53 of the Vienna Convention of the Law of Treaties says that a rule of jus cogens can only be modified by another rule of jus cogens. Clearly a rule permitting humanitarian intervention cannot be a jus cogens rule.

(iii) Art.103 of the UN Charter says that obligations under the Charter prevails over obligations under any other treaty obligation. Sure it does not say the Charter prevails over custom but if States cannot by explicit agreement in a treaty free themselves from their Charter obligations, it seems strange to argue that they can do this by custom.

Each of these arguments may perhaps be overcome and I can’t explore them in full here. However, individually and put together one would need very strong evidence of acceptance of a customary rule that modifies the prohibition of the use of force in Art. 2(4). We are very far from that.

There is another route to a rule permitting humanitarian intervention. This is to say that the prohibition of the use of force in Art. 2(4) and customary international law should be interpreted in a limited way. The argument would be that the prohibition itself is not comprehensive but rather a more limited one that does not extend to uses of force to protect human rights. This would be an argument that seeks to give some effect to the words at the end of Art. 2(4) which prohibits a use of force against the territorial integrity or political independence of another State or in a manner inconsistent with the purposes of the UN. Without going into the details of this argument, the interpretation of the prohibition in Art. 2(4) as a limited prohibition is not the interpretation hitherto given to Art. 2(4). It would require some strained reading of Art. 2(4); is inconsistent with subsequent practice; and also with the drafting history. It is possible for the meaning of the text to change over time but that would require subsequent agreement among the parties, or subsequent practice establishing agreement of the parties to the Charter. Again we are far from that.

If the position is so clear, how can States like the UK continue to claim that international law allows for humanitarian intervention. Are they just misguided? It seems to me that something else is going on here. In a paradoxical way, the UK is acting within the system of international law by making a claim that is contrary to international law. What I mean is that the UK would like to see a particular rule of international law and the only way in which it can see a change in the law is to insist that it’s position is already the law! This is the paradox of customary law. The only way to change it is to break it. So, for the UK to see its vision of international law on humanitarian intervention established, it has to insist that that vision is already established. This is what the opinio juris aspect of custom requires. So the UK is acting within the system of international law by maintaining a view contrary to the law. Of course, the UK hopes that in time others will come to share this view

Should Humanitarian Intervention be Lawful?

This is perhaps the key question that ought to be answered with regard to this topic. However,  I don’t aim to tackle it here. All I will point out is that the question of whether international law should allow humanitarian intervention (without Security Council approval) is not the same as whether military intervention for humanitarian purposes should occur.  It is possible to take the view that the law should prohibit such action but that there are cases where such action should occur (as a matter of morality) although the prohibition remains in place. Ian Brownlie and Tom Franck made such arguments (though Anthea Roberts has written an essay disagreeing)  It may be argued  that providing advance legal authorization is more likely to encourage such action whereas what we want is to be very restrictive with regard to permissible uses of force but that in cases of genuine need the international community will excuse and not condemn action. On this view, it would be plausible to take the view that even if action in Syria is unlawful it should nevertheless take place.

 

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    Elvira Domínguez-Redondo says

    August 28, 2013

    Great entry.

    Just a minor comment. Those who argue on the possibility of intervening acknowledging the shaky legal foundations of such intervention (following the example of Kosovo)seem to ignore commenting on consequences for the perpetrators of possible violations of international law.

    It reminds me of Shue's arguments advocating that torture is morally permissible, albeit illegal, under certain circumstances. Shue proposes that judges would be expected to suspend punishment of the torturers, on the exceptional cases torture is morally expected.

    As it happens with torture, one of the biggest risks of advocating 'legitimate' violations of core principles of international law, is that the violators are portrayed as heroes in the best Hollywood style.

    Any attempt to justify (illegal) military intervention should comment on the potential consequences of such action.

    René Provost says

    August 28, 2013

    Dapo provides an extremely lucid and – in my opinion – accurate picture of the law as it stands now on humanitarian intervention.

    I would only make a link that is implied more than explicit in his post, to the Kosovo intervention. The parallels are striking: a perceived grave humanitarian crisis, seemingly on a downward spiral, with no obvious internationalizing aspects that can open other exceptions to the prohibition of the use of force. Others have made the link to the Kosovo ‘precedent’ (see the Lawfare blog debate), although that discussion centres on the extent to which Kosovo can count as a precedent, legal or moral, on which the US and UK can rely in the current situation to justify unilateral intervention.

    I see the value of the Kosovo events as a useful non-precedent, ie a road then not taken that might point the way to the road that should be taken now. A fundamental question that is often avoided in relation to Kosovo is why the matter was never voted on in the Security Council. The usual answer is that Russia had indicated that it would veto such a resolution, but that is not an answer that fully explores the implications of that choice. The idea of the veto in the Security Council is that permanent members can block a resolution, but that such an act would incur a significant political cost. In the case of Kosovo, with hundreds of thousands of people fleeing the violence and massing at and over the borders, the political cost of Russia standing alone in the way of decisive military action to stop the violence would have been enormous. There is a possibility that, faced with that political cost, Russia would have back down, perhaps only partly, and opened the door to some form of intervention. There is a possibility that this slower, more messy process, resulting in a solution that was less ideal than what Washington thought best, could have legally validated an intervention in Kosovo. This is the way the Security Council is supposed to work (slow, messy, not leading to the ‘best’ solutions). By turning their back to the Council and intervening unilaterally, NATO governments severely undermined the standing of the UN collective security regime.

    There is more to the Kosovo precedent: if all efforts had failed in the Security Council and Russia imposed its veto, it does not seem unreasonable to think that many governments would have felt domestic pressure to condemn Russian obstructionism and react to it. The possibility of a ‘Uniting for Peace’ resolution (that great US invention) is rarely evoked because of the uncertainty surrounding its legal significance in past UN practice. But in the context of humanitarian intervention where the arguments always combine legality and legitimacy, there is no doubt that a Kosovo intervention approved by a UN General Assembly resolution would have appeared more legitimate than one decided unilaterally by NATO states. There is at least a degree of uncertainty regarding the legal significance of such resolutions that opens a space for a legal argument invoking them as a valid interpretation of the UN Charter.

    For me, the value of the Kosovo precedent lies in its lessons of how things could be done, not by the book but at least somewhat closer to the letter and spirit of the UN Charter, thus protecting its integrity.

    Jordan says

    August 28, 2013

    Dapo: very useful for discussion. I disagree with the view, which ia contrary to the text of Article 2(4) and various policies at stake, that Article 2(4) prohibits all uses of armed force. McDougal, Lasswell, et al. aptly set forth the point that only three types of force are prohibited. Yet, it may well be that "humanitarian intervention" as such has few supporters. If so, Article 2(4) may allow certain uses of armed force that are, on balance, serving of the purposes of the Charter (e.g., re: peace, security, self-determination, human rights, use of force "in the common interest"), but not "humanitarian" intervention as such.
    My prior article on use of force in Syria addressed the possiiblities of collective self-defense (with Turkey and/or Jordan -- perhaps even Israel if other facts develop) and "regional action" authorized by NATO [which does not seem to be forthcoming at this point any more than an Article 42 U.N. S.C. authorization] see http://ssrn.com/abstract=2272291
    However, the present U.S. "legal" justification set forth by the White House spokesperson (as reported on CNN, etc.) is that U.S. use of force is needed to counter a "significant threat" to U.S. "national security." This, indeed, sounds like a claim to engage in "preemptive" self-defense (as opposed to even "anticipatory" self-defense) -- a claim that only a rare minority would accept and that appears to involve a "manifest" violation of the Charter (re: ICC standards re: "aggression").
    If the U.S. uses miliitary force merely because some state poses a significant national security threat, we have enetered a new era regarding claims to engage in preemptive self-defense (that Iran might pay attention to as well). At least a real and significant "threat" is a better (but unacceptable) standard than the Obama doctrine regarding an "imminent threat" -- which is not yet a real threat.

    Markus P. Beham says

    August 28, 2013

    As to the Art. 103 UN Charter point, it might be necessary to emphasise that - notwithstanding any argument as to logic regarding formation of treaty and or customary international law through state consent - the travaux préparatoires clearly point towards the intention of the drafters specifically not to include customary international law. Of course this does not solve the question of custom formation in the first place. In any case, I do not quite see how one would read human rights protection from the wording of Art. 2(4) - would it be possible to elaborate on how exactly you reach this interpretation?

    Jordan says

    August 28, 2013

    sure (please see the article in the click-on) and note that it might be possible to argue that a selective use of armed force merely against certain military targets in Syria, in the context of a belligerency and outside recognition of the "rebels" as the legitimate representative of the Syrian people, would not be "against" the "territorial integrity" of Syria, "against" the "political independence" of Syria as such, and would, on balance, be serving of peace in the long-term (as opposed to peace in the short-term), security in the region, self-determination of the Syrian people, and human rights relevant to freedom from unlawful death, injury and suffering. Some will disagree.
    As the article notes, an additional claim might involve consent of the legitimate representatives of the Syrian people to some form of collective self-defense and/or self-determination assistance. Collective self-defense re: Turkey in view of prior armed attacks by remanants of the Assad regime is a possible claim. Perhaps there will be an attack on U.S. naval vessels off the coast of Syria -- that would end concerns about legal justifications and, perhaps, end the Assad regime.

    Manuel Ventura says

    August 28, 2013

    Thanks Dapo. Just a quick point: I know it's not popular opinion, but I've personally never really bought the argument that the prohibition on the use of force is a jus cogens norm. The reason is fairly simple: there are 2 exceptions to the rule. To make things worse, one of those is UNSC authorisation. Stop and think about that for a second. If we agree that the prohibition on the use of force is a jus cogens norm and that the UNSC can nonetheless authorise it, it means that the UNSC can, in theory, authorise the violation of a jus cogens norm. I don't think there would be many international lawyers who would make that claim. It would be akin to saying something like that the prohibition on the commission of genocide is a jus cogens norm unless it is authorised by the UNSC... (!!)

    Zeray Yihdego says

    August 28, 2013

    This is a great post, Dapo.
    I agree with what the great public international law Professor, Kiyan Kaikobad, once said about humanitarian intervention -the concept is dead and buried as there is no evidence which suggests that it can be invoked to support a unilateral military action against a sovereign state. The reason why the notion of R2P was introduced was simply because the notion of humanitarian intervention was not recognised by the international community as a justified legal doctrine to use military force under international law.
    It is widely accepted, even if used once in Libya, that R2P has not yet crystallised as a legal concept.
    This is not to suggest that those who use chemical or even other conventional weapons, in a large scale, against their own people, must not be punished. They have to be punished on the basis of:
    1) solid evidence that they have committed such an atrocity;
    2) the UN peace and security framework; and,
    3) the notions of proportionality and legality.
    The failure to adopt a common position in the UN in such critical issues is unfortunate and a failure of the international legal order; however such a failure ought not justify unilateral military action. I thought readers of this post and the excellent comments offered may also benefit from another post in Arms Control Law blog which appears to have a different tone compared to Dapo's argument -it is available at http://armscontrollaw.com/2013/08/23/now-what-responding-to-alleged-chemical-weapons-attack-in-syria/

    Kushtrim Istrefi says

    August 28, 2013

    So far the purpose of the potential NATO intervention appears to be limited and therefore its legal basis is blurred. From the ongoing debate it emerges that the potential action would be directed only against chemical weapons of Assad regime. This raises a further question if any action would be undertaken if the Assad regime continued to utilize conventional weapons maintaining the grave situation. The possible intervention as presented so far could be discussed in the context of the 1928 Geneva Protocol. In that light, unlike in Kosovo, the purpose does not seem to end the humanitarian catastrophe. If the purpose of intervention is not to terminate the humanitarian crisis this adds to the complexity of the legal argument on humanitarian intervention.

    Jordan says

    August 28, 2013

    With respect to Kosovo, the difference so far is that NATO authorized the use of military force re: Kosovo and Article 52 of the Charter supports "regional action" when the S.C. is veto-deadlocked and cannot authorize "enforcement action" a la Article 53, etc. -- please see my click-on above for a free dowload from SSRN.

    Patrick S. O'Donnell says

    August 29, 2013

    Dapo,

    I second the kind appraisals above of your post.

    I think there’s one option not mentioned, although it partially overlaps with several you’ve cited, namely, that proffered by Allen Buchanan. It is similar to the UK’s “paradoxical” approach inasmuch as it envisions a new particular rule of international law (in fact, it seeks to reform the system in toto), and it likewise aims to show respect for the existing system of international law, which one could say the UK is doing insofar as it would claim to be acting in within the existing system while at the same time violating an existing rule of law. However, Buchanan’s “civil disobedience” analogue is not, strictly speaking, about the putative “paradox of customary law,” as it argues one can, indeed should, break existing rules in the manner and spirit of “civil disobedience” in municipal law and is therefore not claiming fidelity to the procedure of customary law. It is similar to Brownlie and Franck to the extent it is a moral argument in the first instance, but one made by way of motivating change in the international legal system, including a change in the precise nature of the prohibition on the use of force: so, it endorses an unlawful act out of moral necessity with regard to legal reform, and thus this act serves to that extent the purpose the UK envisions in changing the existing rule. It can be correctly described as the international law analogue of civil disobedience on the domestic front.

    Buchanan’s goals of course stretch beyond the instant case, hoping to put in place a new legal framework for armed intervention, relying on a strategy that seeks to create a “treaty-based, rule-governed, liberal-democratic regime for armed intervention that bypasses the current UN Charter-based requirement of Security Council authorization,” while not depending on the U.S. to “act as the world’s policeman” or lead a “coalition of the willing.” In short, writes Buchanan, “under certain conditions a willingness to violate existing international law for the sake of reforming it can be not only consistent with a sincere commitment to the rule of law [as in, say, the tradition of civil disobedience in municipal legal systems that runs from Gandhi through King], but even [morally] required by it.” From chapter 11, “The Morality of International Legal Reform,” in Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford University Press, 2004): 440-473.

    One last point. The UK might also be seen as providing the international law analogue of what Mortimer Kadish and Sanford Kadish termed the “discretion to disobey” that involves “lawful departures from legal rules.”* They cite a number of compelling examples of such departures as exemplified by both legal officials and ordinary citizens: police and prosecutorial nonenforcement decisions, and jury nullification, for instance. So, as with Buchanan, we have here an international analogue of a municipal legal (and moral) practice.

    * Hence the title of their book: Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Quid Pro Books, 2010, originally published by Stanford University Press, 1973).

    Remy says

    August 29, 2013

    Manuel, indeed. It's an assumption that is made too often and too easily, but problematic in light of the definition of jus cogens. I am sure you will enjoy James A. Green - Questioning the peremptory status of the prohibition of the use of force, 32 Michigan JIL (2011) 215, especially pp. 229-236 on the problems of arguing that "art. 2(4)"/"the prohibition on the use of force" is jus cogens. It gets very entertaining actually at the point where he tries to formulate the alleged jus cogens rule in such as a way to take into account the established exceptions. He concludes: "Without entirely excluding the possibility that the prohibition of the use of force is a peremptory norm, this Article has aimed to highlight that the rule’s jus cogens status—when tested against these criteria—is extremely problematic."
    Available at: http://www.mjilonline.org/wordpress/wp-content/uploads/2012/06/v32n2-green.pdf

    Moritz Moelle says

    August 29, 2013

    I do like the argument made for a new interpretation of the prohibition of the use of force. The develop the idea a bit further, could one not combine this new interpretation of the prohibition of the use of force with an expanding interpretation of "countermeasures"? So far, as the law stands, countermeasures involving the use of force are prohibited, but why should countermeasures in reaction to erga omnes violations (of human rights) not involve the use of force? Such an analogous interpretation would further strengthen the argument made as well as connection the prohibition on the use of force directly with reactions to violations of human rights.

    Manuel Ventura says

    August 29, 2013

    Thanks Remy, I was aware of the paper. However Green doesn't really take the UNSC authorisation exception very far or the implications that recognising such an exception inevitably bring. In addition, he is a lot more cautious about the issue than I would be. In my view, as soon as you recognise exceptions to jus cogens then by definition it can't be jus cogens. Imagine if someone said to you that committing genocide is prohibited as a jus cogens norms except in x, y, or z circumstances. Sounds a bit ridiculous doesn't it?

    Sadiyah says

    August 29, 2013

    Thank you, Mr Akande, for such a thorough legal analysis of this, as of yet pending action. I particularly enjoyed your characterisation of International Law as a Paradox, a legal system that must be broken to bring change. When it comes to the concept of Humanitarian Intervention this seems to be the case, perhaps more so then elsewhere. If I recall correctly professor Greenwood explores this argument quite well in his article “Humanitarian Intervention, the Case for Kosovo.” The article covers much of the history of military action in humanitarian emergencies. He looks at situations such as the Indian intervention of Bangladesh, the Tanzanian intervention of Uganda, and the Vietnamese intervention in Cambodia. All had both humanitarian as well as self-defence motives. Yet for Professor Greenwood the former does not over ride the significance of the latter.

    He then goes on to explore how the Instruments of international law, such as the the Security Council have actually directly aided or provided post intervention justification for unilateral action. He first looks at the  Economic Community of Western African States (ECOWAS) intervention in Liberia, and the significance of Security Council Resolution 788, which unanimously imposed a Chapter VII mandatory arms embargo on Liberia, post intervention, to aid ECOWAS forces. Greenwood then uses the case of Iraq during the crackdown on the Kurdish and Shi’ite community, and Security Council Resolution 688. This demonstrates a time when the Security Council Resolution identified a humanitarian problem, but was not clear about Chapter VII or enforcement; forcing several state,  like the US to take the initiative.

    Combined with the unanimous rejection of Russia’s attempt to table a resolution that would deem the US intervention in Kosovo illegal, Professor Greenwood concludes that a Right to Unilateral Humanitarian Intervention exists. Nonetheless it is subject to three conditions: a) there exists, or there is an immediate threat of a serious humanitarian emergency involving a large scale loss of life, b) military intervention is the only practicable way this can be ended or prevented; c) the Security Council is unable to take such action, for example the threat of the use of the veto. 

    It seems that Professor Greenwood argument is that the legality of unilateral intervention is often decided post intervention, through the reaction of the international community and the actions of the UN in support or in condemnation of an act. As a result it seems that there has been a history of states breaking international law to change the law, in a way that R2P doctrine has been unable to, within the current legal system due to the lack of controls placed on the use of the veto in Humanitarian emergencies.

    Perhaps then we need to think about the responsibilities of the International Community. As a result of the holes in the R2P implementation system and the centrality of human rights and humanitarian law, are there erga omne obligation placed on the international community? Are they somehow transferable, and thus capable of legally justifying Unilaterally Humanitarian Intervention?

    I have never personally been keen on intervention in Syria, as I believe that the ground situation is extremely complicated. Nonetheless, the recent pictures coming out of the country seem to be making this the only option; unless we are prepared to stand back and watch. Can we do that and still claim that Humanitarian Intervention or R2P have any legal place in our international legal system. When there is no universality of application; if all we do is pick an choose what is in our best interest, we undermine our own moral and legal case.

    This is a link to Professor Greenwoods article. Hopefully I gave and accurate account of it. http://eprints.lse.ac.uk/21492/1/Humanitarian_intervention_the_case_of_Kosovo(LSERO).pdf

    Remy says

    August 29, 2013

    Manuel, I agree that that sounds odd to say the least. But I don't think Green in effect argues that UNSC authorization is an exception to a jus cogens rule (which would indeed be a contradiction in terms), or that the UNSC can authorize jus cogens violations (the implication you allege). Instead, he seeks to formulate the jus cogens rule in a way that the exceptions are "built in" to the rule (prohibition on use of force when not sanctioned as self-defence or by the UNSC, although he notes that such exercise has its own problems); getting rid of the exceptions as already encompassed by the rule as reformulated.

    Ali Daee says

    August 29, 2013

    The legal basis for military intervention is articulated
    in UN charter. so any other justification is void. what US and UK are up to in Syria case, has no legal basis.
    US and its allies fascinated by uni-polar word order are taking back the word to the self-help era which caused the most heinous atrocities of the history. power intoxicates rulers. this is what we witness now about US and its allies.

    Hasan says

    August 29, 2013

    Thanks for this very clear and useful discussion.

    The government's legal position has now been published (https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-government-legal-position/chemical-weapon-use-by-syrian-regime-uk-government-legal-position-html-version).
    It is now however being described, including by the Prime Minister on the floor of the House of Commons, as (a summary of) the government's legal 'advice'. This is slightly confusing, since the final position is not the same as the advice that went into crafting that position (which likely included far more caveats and doubts). There was a world of difference between the legal advice the government received over Iraq (especially from Sir Michael Wood at the FCO) and the 'case for war' Tony Blair ultimately presented to Parliament. I hope this is clarified soon.

    I've linked to this post in a comment here http://www.huffingtonpost.co.uk/hasan-dindjer/syria-unanswered-questions_b_3826219.html?ncid=edlinkusaolp00000008 where I've written about concerns over intervention in Syria, legal and otherwise.

    Arman Sarvarian says

    August 29, 2013

    Thank you very much Dapo for your interesting post. Following the defeat of the Government motion in the House of Commons this evening, I have two short comments to offer on your post. The first is that the opinio juris paradox to which you rightly draw attention can be resolved if the UK were to posit the argument that, even if the law today does not endorse humanitarian intervention, it ought to do so. This would be relying upon the lex lata/lex ferenda distinction. Although it would not, of course, assist the UK in strengthening its argument that military action in Syria is lawful (to the contrary, it would be self-defeating in that respect), it would resolve the 'break the law to make the law' paradox. So your statement that 'The only way to change it is to break it' may be slightly inaccurate. It is open to the UK to acknowledge that (even if the hurdles that you correctly point out can be overcome) customary international law does not presently permit humanitarian intervention but that the Syria case, in its view, demonstrates why the law ought to change.

    My second observation pertains to the importance of the Kosovo precedent. The evidence of distinguished international lawyers to the House of Commons Foreign Affairs Select Committee (http://www.publications.parliament.uk/pa/cm199900/cmselect/cmfaff/28/2813.htm) on the lawfulness of that operation contained a range of views, from Brownlie (strongly critical) to Greenwood (strongly supportive). In light of the frequency to which the Kosovo example was referred to during the course of the House of Commons debate this evening as well as its importance as the most pertinent contemporary attempt to apply the putative doctrine of humanitarian intervention, the conclusion of the Committee in its report based upon that evidence is apposite:

    'To determine whether NATO's action was morally justified, and legally justified under the criteria which NATO set itself, we have to ask whether a humanitarian emergency existed before NATO intervened, and whether a humanitarian catastrophe would have occurred—perhaps over a number of years, rather than being concentrated within the 78 days of the NATO campaign—if intervention had not taken place. We have dealt with these issues elsewhere,[365] and concluded that the answer to both questions is "yes". That being the case, we conclude that NATO's military action, if of dubious legality in the current state of international law, was justified on moral grounds.'

    Moreover, it is noteworthy that the Committee (based largely upon the evidence of Professor Lowe) expressed 'support [for] the FCO in its aim of establishing in the United Nations new principles governing humanitarian intervention'. This comes close to the lex lata/lex ferenda distinction in my first point and, in addition, may even be construed as opinio juris by the UK expressed by an important select committee of the House of Commons (in contradiction to the legal position of the Government). In this respect, the summary of the Attorney General's legal advice published by 10 Downing Street does not necessarily constitute the determinative UK opinio juris on the lawfulness of humanitarian intervention today. As the Crawford and Viles article noted in Marko's post demonstrates, we will need to wait until the dust settles before assessing how the legal position of the UK may be affected by this latest attempt to apply humanitarian intervention.

    Olivier Corten says

    August 30, 2013

    Very convincing piece, Dapo,
    Just a few complementary comments, after having read some observations made above.
    Concerning the 'Uniting for peace' option, it must be recalled that GA Res 377 A allows the GA to take, 'appropriate recommendations to Members for collective measures, including IN THE CASE OF A BREACH OF THE PEACE OR ACT OF AGGRESSION the use of armed force' (emphasis added). In the Syrian case, as in the Kosovo precedent (two situations which can/could be qualified as non-international armed conflicts), there is/was no 'breach of the peace' or 'act of aggression' according to the UN Charter. Therefore, the GA can/could not recommend the use of armed force. Anyway, but this is another story, it is more than questionable than a 'recommendation' could be considered as equivalent to an 'authorization', as the latter would be a 'decision' the GA is not competent to take according to art. 11/12 of the UN Charter (as interpreted by the ICJ in Certain Expenses).
    Concerning the 'self-defence' argument, it sounds rather curious, particularly as far as Israel is concerned. As we all know, Israel occupies a part of the Syrian territory for decades so that it should be paradoxical for this State to invoke self-defense (and significantly, it does not). As far as Turkey is concerned, one can wonder if, by strongly supporting the syrian opposition for more than a year (including by providing weapons and by allowing the armed rebellion to use a part of its territory), Turkey could not be considered as in breach of art. 2.4 of the UN Charter (as interpreted by GA res 2625 (XXV)). Against this background, invoking self-defense against Syria seems more than doubtful. This is probably why NATO did not invoke article 5 of the Washington treaty, even when a Turkish aircraft was shot down by the Syrian artillery.
    I thing there is little possible controversy about the peremptory character of the prohibition of the use of force, if we taken into account the opinio juris of the States, as expressed within the GA in many occasion (for concrete examples, see my book, The Law against War, 2010, Chapter 4, http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781841139425). The existence of 'exceptions' to the prohibition doesn't change anything, as the definition of a peremptory norm (cf. art. 53 VCLT) does not exclude the existence of an exception, but only of a 'derogation' (i.e. the possibility to conclude a treaty in derogation of such a norm).
    Finally,the argument tending to minimize the bombing of the territory of another State as not in breach of article 2.4. because it would not be directed against the territorial integrity of this State sounds like a revival of the pre-Charter measures 'short of war' doctrine. Once again, it is obviously in blatant contradiction with the opinio juris of the States as expressed many times during the debates about jus contra bellum within the UN since 1945.
    For all these reasons, I fully agree with Dapo's legal analysis and don't think that humanitarian intervention can be convincingly invoked without a previous and clear Security Council's authorization. Of course, all those difficulties do not prevent the use of other peaceful means to sanction the blatant violations of IHL the Syrian authorities are responsible for.

    Yvonne says

    August 30, 2013

    Great post, Dapo. In my opinion, the strongest counter-argument to an alleged emerging customary norm on R2P is the fact that an R2P exception was proposed at Kampala as an exception to the crime of aggression, and ultimately rejected.