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?
The stated objective of the use of force would not be the removal of President Assad, although it is the official view of the US and other countries that he must leave power. If regime change were to become the objective of the humanitarian intervention, the intervening states would have to show that there is a better alternative to the Assad regime and that they have a plan for putting it in place – a tall order given, as the Iraqi experience showed, how difficult it is for foreign powers that have prevailed in the battlefield to shape the post-war landscape. There may be extreme instances (e.g. a genocidal regime like the interim Rwandan government in 1994) where regime change may be by itself an acceptable humanitarian objective but, in all other situations, the cheap Marxist whiff around the idea of regime change – let us do the revolution now and what will follow will surely be better – should not suffice.
Be that as it may, this is not (yet) a case of humanitarian intervention with regime change as the goal. We are told instead that the goal of the intervention would be the narrower humanitarian objective of protecting Syrians from other chemical attacks. In the words of the legal advice published by the UK Government: “the aim is to relieve humanitarian suffering by deterring or disrupting the further use of chemical weapons”.
Note the wording: not “precluding” the further use, for that would require the destruction of the chemical weapons capability of the Assad regime (assuming it was the Assad regime that used these weapons in Damascus on August 21). If this were the objective, an intervention on a much larger scale than is currently envisaged would be required.
The cue is the reference to deterrence. While the British legal advice uses this term exclusively in relation to the future conduct of the Assad regime, some US statements have openly discussed two levels of deterrence. The White House Press Secretary, for example, is reported to have described the goal of the intervention as follows: “to punish the Assad regime for using chemical weapons, both as a deterrent against using them again and as a warning to any future military leaders that they’d better not use them, either.”
The second level of deterrence referred to in this statement – i.e. general deterrence – is impossible to square with the doctrine of humanitarian intervention. As far as I know, there is no version of this doctrine, in state practice or commentary, which justifies the use of force aimed at deterring humanitarian abuses in future conflicts. There may be a doctrine of humanitarian intervention. There is certainly no doctrine of humanitarian preemption.
General deterrence is an important national and collective security objective and, if the intervention ends up strengthening it, this would surely be no bad thing. But general deterrence cannot, on its own, provide the required lawful purpose for the intervention.
By contrast, the first level of deterrence referred to in the statement above – i.e. the deterrence of further uses of chemical weapons in the Syrian conflict – could potentially constitute a lawful humanitarian purpose
There have already been attempts to deter the use of chemical weapons in the Syrian conflict (most conspicuously through President Obama’s “red lines” warning) but they failed. Why?
Deterrence works if the threat is perceived as credible and the consequences of non-compliance as serious. Whoever used chemical weapons in Syria must have thought that President Obama’s “red lines” warning did not have to be taken too seriously.
This may suggest to some that, if the international community shows that it means business, the logic of deterrence will once again prevail. But this apparently straight-forward argument masks a real dilemma: if the military response is too weak, the objective of deterring the Assad regime may not after all be met; if the response is too strong, the risks of escalating the conflict and of collateral civilian damage will increase.
Furthermore, a military option may detract from multilateral and non-military solutions. There are two measures which might contribute to deterring the future use of chemical weapons in the Syrian conflict. First, the Security Council could create a robust mandate for the UN inspectors. At present they are operating under a limited mandate from the Secretary General. Secondly, the Security Council could refer last week’s chemical attacks to the International Criminal Court. Neither of these measures may attract sufficient support in the Council, although we cannot know for certain.
But if these measures were adopted and backed up by a threat to use force by the US and its allies this time leaving no room for ambiguity (unlike the earlier “red lines” warning), they might be effective. We have reason to believe so because of the Iraqi experience. In November 2012, four months before the war, the UN Security Council adopted Resolution 1441 which gave the regime of Saddam Hussein a “final opportunity” to comply with its obligations to disarm. At the same time the US-led military build-up left no doubt that the resolution was backed by a threat to use force. What the US and Britain failed to appreciate at the time was that the combination of a robust multilateral response and a credible threat to use force was working: the regime of Saddam Hussein caved in to that extraordinary pressure and began to cooperate with the UN inspectors.
If the objective in Syria is only to deter future use of chemical weapons, it is at least worth considering whether it could not be achieved by increasing Western and international pressure just to one notch below the use of force. It is also important to keep in mind the Western involvement in the Yugoslav war in the 1990s – a history littered with examples of empty threats, inaction, and timid action. Particularly after the vote in the British Parliament, there can be no doubt that public opinion in the West has at present little appetite even for a small-scale military intervention. In these circumstances no force now, if accompanied by the credible threat of proper force later, may be more effective than too little force.
Legally, the threat to use force would run into similar difficulties as the actual use of force. Those who support the doctrine of humanitarian intervention will, a fortiori, regard the threat to use force on humanitarian grounds as lawful on certain conditions. Those who deny that the doctrine of humanitarian intervention is part of international law will not accept such a threat as lawful in any circumstance. But, on either view, threat is the lesser evil.
Where does the British legal advice stand on the nexus between legal assessment and strategic options? It does not say much. The reason may be that details of the military plans must remain confidential, but it is necessary for the legal advice to engage with those plans and the overall strategic assessment and evaluate them carefully from a jus ad bellum perspective (as well as a jus in bello one). This analysis may well have been conducted in unpublished legal advice.
An issue which is for the lawyers, rather than the strategists, to address is the legal standard that should apply to the question of whether the intended humanitarian objective (in this case deterrence) can be achieved through the proposed use of force. If, for example, the Chiefs and the Intelligence Services advise that it is more likely than not that the particular objective can be achieved, would that be enough? Or should a higher likelihood of success be required? And how should the consequences of failure be factored into the legal analysis?
If the chemical weapons were kept in one or two locations (which is not the case), or if they could be delivered only through military assets that can be easily located and rapidly destroyed (also not the case), the answer to these questions would be far more straight-forward. But the reality is different. The military strike is not expected to destroy the chemical weapons capability of the Syrian regime – hence the importance of deterrence. Crucially,the assessment of how the Assad regime can be effectively deterred is very different from – say – the assessment of how its chemical weapons delivery systems can be taken out of action. The first assessment is mainly political, the second one purely military.
To return to the published legal advice, it identifies the following condition for the legality of the humanitarian intervention: “it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved”. According to the note, this condition is satisfied in the case of Syria for the following reasons:
Previous attempts by the UK and its international partners to secure a resolution of this conflict, end its associated humanitarian suffering and prevent the use of chemical weapons through meaningful action by the Security Council have been blocked over the last two years. If action in the Security Council is blocked again, no practicable alternative would remain to the use of force to deter and degrade the capacity for the further use of chemical weapons by the Syrian regime.
The point of this condition is that force should be used only as a last resort. This is sensible. But, particularly where no indication is given that the chances of success in accomplishing the humanitarian objectives have formed part of the assessment of legality, this condition could quite easily be read as endorsing the dangerous logic of ‘force is better than nothing’. The absence of a non-forcible alternative cannot alone justify the use of force, in either a legal or a strategic sense.. The use of force must, on its own terms, offer at least a credible prospect of providing substantial humanitarian relief.
Finally, one comment on the Security Council mandate. Every international lawyer will agree that an authorization to use force by the Security Council would provide a much stronger legal justification than the doctrine of humanitarian intervention. But we should not make the mistake of thinking that a Security Council mandate is a panacea to the strategic challenges that an intervention in the Syrian conflict poses. The 2003 Iraq War is still fresh in our minds. We are unlikely to forget any time soon about the perils of military interventions without proper international and regional support. But let us not forget the lessons of the previous decade: the 1990s offer no small number of examples of forcible interventions, properly authorized by the Security Council, which failed to prevent and in some cases even exacerbated humanitarian crises and conflicts.