A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?
The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? The most obvious option is a so-called ‘right of humanitarian intervention’, which has long been the subject of debate. This concept would serve as an independent legal basis, absent state consent, UN Security Council authorization or justifications of self-defence, for a state (or group of states) to use military force to protect individuals from egregious breaches of human rights occurring in a third state. Superficially, this might seem to be the answer. I think it is not. In an article just published in International & Comparative Law Quarterly, I argue that international law should not recognise such a right.
My position is in response to the invitation by Sir Daniel Bethlehem in 2013 (on this very blog) to knit together various threads of international legal practice to establish a ‘tapestry argument’ in support of such right. My article examines in depth the core ‘threads’ of Sir Daniel’s tapestry argument – that is, developments since World War II in international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL). Together, these advancements point to a paradigm shift in the foundations of international law that emphasizes the security of persons and peoples instead of only states. As such, Sir Daniel’s argument provides a degree of superficial support for a right of humanitarian intervention. The key question, however, is whether this evolution in the fabric of international law has affected the nature and extent of state sovereignty to such a degree that a right of humanitarian intervention should exist to reflect and support it. However, these developments only advance the argument for humanitarian intervention so far. The evolution of IHRL, IHL and ICL is progressive and ongoing and, while the focus on individuals and their security is increasing, its ability to account for humanitarian concerns is circumscribed.
Vitally, secondary rules that might enforce or reflect these developments are weak. Instead, these rules underscore the enduring importance of state consent, peaceful dispute resolution, and ex post facto accountability. The latter notably occurs via ICL, where enforcement and accountability take place in a courtroom rather than through military means. Therefore, while individuals are seen increasingly as bearers of rights and active subjects or participants in international law, there are restrictions on the extent to which third states or other actors can protect them. The potential for international law to monitor and curb state power is limited. These secondary rules create their own tapestry of international law, one that recognizes higher priorities such as the prohibition on the use of force, the comity of nations and the proper functioning of the international order. A right of humanitarian intervention would endanger this. It simply does not ‘fit’ with existing norms. Rather, the very concept risks tearing a hole in that tapestry. Therefore, when the notion of unilateral enforcement and protection of human rights is pitted against the preservation of state sovereignty, territorial integrity, and international peace and security, the former mechanism must lose. This is the (perhaps unfortunate) response to Professor Koh and the argument that wrongfulness of military intervention might be precluded after the fact. Like Professor Lederman, I am forced to conclude that the laws on state responsibility do not provide for a current defence to a breach of the UN Charter in this way and neither should they be used to support a normative claim.
In addition, as part of assessing the role of humanitarian intervention in the international legal order, the risks and dangers of its abuse, doubts as to its efficacy in responding to humanitarian abuses, and its position in the wider context of collective security raise substantial concerns. Article 2(4) is under great strain in the post-9/11 world and further exceptions would only further endanger international peace and stability. One only needs to consider how President Putin drew on NATO’s action in Kosovo as a precedent for intervention in Ukraine, stating that it was a ‘humanitarian mission’. This shows the dangers of setting precedents of humanitarian intervention and the risk of this ‘right’ being used as a pretext for aggressive and unlawful behaviour. It should not therefore be called upon to fill an enforceability or accountability gap. Responding to a breach of one cardinal international rule with a breach of another would be a retrograde step in the development of international law.
None of this is to say that the international community should do nothing. We might rightly conclude that, in extreme circumstances, breaking the law is justified, where the aims being pursued are legitimate. While this position risks undermining the rule of law and potentially invites further such intervention, an argument can be made that it provides a ‘safety valve’ where the law provides no clear response to an extreme situation. Better that than a legally permissive precedent. This seems unsatisfactory, however. Therefore, we should look to changing the system so that, collectively, the international community may respond to these emergency situations. The issue is not that international law lacks the tools to deal with such atrocities. We only have to look back to Libya to see that the UN can and has authorised force for humanitarian purposes. Even if the long-term results in Libya have been disastrous, the problems stemmed from how the legal authority granted by the Security Council was used by states to intervene (and not used, in the case of post-conflict planning), not from the factor of the legal authorisation itself.
The current issue therefore is a lack of political will to act, not a lack of a legal toolkit. We therefore come to the elephant in the room. Arguably the better answer to the road block to ‘doing something’ is facing up to the conundrum that is the exercise of the veto power of the permanent members of the UN Security Council. As the case of Syria shows, the veto may prove fatal to preventing humanitarian disasters. Yet, rather than pointing to a need for a separate legal right humanitarian intervention, this arguably speaks more strongly in favour of institutional and procedural reform of the UN. This will allow responses to future humanitarian catastrophes to be dealt with lawfully, through the collective security framework of the UN Charter.
This issue is nothing new. It harkens back to the stalemates of the Cold War era where the UN Security Council was rendered powerless by the threat and exercise of the veto. One response is greater reliance on the UN General Assembly’s Uniting for Peace Resolution. Yet, structural and procedural reform of the Security Council would be a more effective option to allow for collective action to prevent or stop humanitarian disasters. While, unfortunately, this may not happen any time soon, a meaningful step forward would be for all members of the UN to finally commit to the Accountability, Coherence and Transparency Group Code of Conduct regarding Security Council action against genocide, crimes against humanity or war crimes. Supporters of the Code pledge ‘to support timely and decisive action by the Security Council aimed at preventing or ending the commission of genocide, crimes against humanity or war crimes’ and ‘to not vote against a credible draft resolution’ before the Security Council on timely and decisive action to end or prevent such crimes. As at 25 January 2017, 112 states are listed as supporters, including two permanent members of the Security Council (the United Kingdom and France). The United States, Russia and China are conspicuously absent. If President Trump truly wishes ‘to end the slaughter and bloodshed in Syria’ (and elsewhere), then absent pushing to amend the UN Charter and the structure of the Security Council, he could consider making this meaningful commitment to achieving that end, and call upon the remaining states to follow suit.