The Strongest Legal Case for Intervention in Syria:
The International Responsibility To Protect
Shoshana O'Brien, Chicago Law School
Syria’s two year long civil war has killed more than 100,000 people and caused more than two million Syrians to flee Syria and become refugees in neighboring countries. In the August 21, 2013 attack the Syrian government used outlawed chemical weapons to kill nearly 1,500 civilians, including at least 426 children. The use of chemical weapons has prompted the U.S. and Britain to consider intervention in the area.
However, a foreign state intervening on the sovereign soil of another state is illegal except within sharply proscribed boundaries. The U.N. charter, which governs the international use of force, embraces the principle of "sovereign equality" and requires that member states "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state."
Chapter VII of the U.N. Charter contains two exceptions to the general rule against aggression against another state. The first exception is if the U.N. Security Council identifies "any threat to the peace, breach of the peace, or act of aggression," the council may "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security." This means that the Security Council can pass a resolution which authorizes its member states to use force to carry out its mandates. However, in the case of Syria, since Russia opposes intervention and since Russia holds veto power over any resolution, the U.N. will not authorize intervention.
Secondly, a state may attack another state in self-defense. Article 51 of the U.N. charter states that: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security." However, since Syria has not attacked the U.S. not another state, the two options under the U.N. charter are not useful in this case.
Due to the limitations of the power structure of the U.N., the most likely legal justification for intervention into Syria to deter and stop the use of chemical weapons would be the doctrine of “international responsibility to protect. This doctrine was first rudimentarily formulated as a justification of force to stop the 1999 genocide in Kosovo. In 2001 the International Commission on Intervention and State Sovereignty (“ICISS”) wrote a report identifying the R2P doctrine as a new legal doctrine which holds that if a population is suffering “serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.” In this report, the ICISS argues that the long-standing customary principle of non-intervention as codified in Article 2(4) of the U.N. Charter, encompasses a third, unwritten exception, that of the “international responsibility to protect”. The doctrine of the “international responsibility to protect” “R2P” was codified at the World Summit meeting in 2005.
The United Kingdom’s legal position on a possible intervention in Syria endorses the doctrine of humanitarian intervention, a doctrine similar to R2P (the government’s position can be found here in full http://i2.cdn.turner.com/cnn/2013/images/08/29/chemical-weapon-use-by-syrian-regime-uk-government-legal-position.pdf).
Regardless of the which legal justification the U.S. or the U.K. ultimately will use if either state decides to intervene in Syria, such an intervention is sorely needed on humanitarian grounds. The use of chemical weapons, if left unpunished and if left to continue without international repercussions, will erode international norms of warfare and human decency.
* This column is not related to Human Asia's official opinion.