Karnavas gives seminar at Brown University: Red Lines and Game Changers — The Legality of Unilateral or Collective Use of Force in Syria

This five-part blog post is drawn from Michael G. Karnavas’s Seminar at the Brown University International Organization (BRIO) February 27, 2014.  The complete piece is available on Michael’s website.

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I. INTRODUCTION

Brio_logoOn February 27, 2014 I held a seminar on Syria at Brown University in Providence, Rhode Island, sponsored by the Brown University International Organization (BRIO): “Red Lines and Game Changers—The Legality of Unilateral or Collective Use of Force in Syria.” This seminar was intended to guide Brown University students through the legal framework surrounding the potential, and controversial, use of force in Syria by the United States in response to the use of chemical weapons.

To briefly introduce the Syrian conflict, the Human Rights Council has described the situation in Syria as follows: “The Syrian Arab Republic is a battlefield. Its cities and towns suffer relentless shelling and sieges. . . . Government and pro-government forces have continued to conduct widespread attacks on the civilian population.”[1] Further underlying the exigencies of the situation, United Nations Secretary-General, Ban Ki-moon found that chemical weapons were used on a relatively large scale, resulting in numerous casualties, particularly among civilians, including many children.[2] The seriousness of these allegations has sparked a number of responses from governments and officials.

In response to the use of chemical weapons in Syria—a clear violation of international law—the Obama Administration has offered numerous justifications for the use of military force in Syria. By contrast, the United Kingdom has offered its justification for the use of force based on humanitarian intervention. Just how legal or legitimate would these actions be? Would armed intervention by the United States in response to the Syrian violations be lawful under present international law, either as self-defense, humanitarian intervention, or legal reprisal? Syria has been seen as a game changer which may “crystallize” the legality or legitimacy of the use of force outside the United Nations collective security system. Where are we today?

On September 27, 2013 the UN Security Council passed Resolution 2118[3] requiring Syria to disclose its chemical weapons sites, and to allow the Organization for the Prohibition of Chemical Weapons (“OPCW”) to destroy Syria’s chemical weapons. In the event of non-compliance, the Security Council has threatened to “impose measures under Chapter VII of the UN Charter.”[4]  Resolution 2118 does not contain the stimulative language found in the UN Security Council Resolution concerning Libya (SC Res 1973) on the use of Chapter VII measures: “to take all necessary measures,”[5] thus requiring Security Council authorization for military action to be lawful under the UN Charter.[6]  Resolution 2118 also makes no referral to the International Criminal Court (ICC).  Understandable. It would be rather challenging to expect Syria to be forthright with identifying its chemical weapons sites if at the same time there are ICC investigators on the ground gathering evidence to support an indictment for the use of the very same chemical weapons that are being identified for collection and destruction.

As a point of reference for the discussion, I walked the students through comments made in the media by the White House and others, setting out the reasons and justifications for the United States’ potential use of force in Syria. I also covered briefly the United Kingdom’s nuanced position based on the principle of humanitarian intervention. I then touched on the applicable legal principles to provide the students with the general contours of the law—keeping in mind how the law is interpreted—and how it can be applied to justify the various legal positions. After establishing this framework, I then began to discuss these concepts with the students to determine whether it is in fact possible, under some scenario, to intervene militarily without UN Security Council authorization.  I did not intend this seminar to be an academic lecture, but rather a lively discussion, seeing my role as more of a facilitator so the students could draw their own conclusions.

 II. LEGAL POSITIONS AND JUSTIFICATIONS

1. The US Position

In the diplomatic and media flurry surrounding the Syrian conflict, the Obama Administration gave a number of justifications for the potential use of force in Syria. As international attention began to focus on the Syrian conflict, President Obama stated that he was concerned about: “chemical or biological weapons . . . falling into the hands of the wrong people.”[7] He continued, setting the first “red line”: “We have been very clear to the Assad regime but also to other players on the ground that a red line for us is, we start seeing a whole bunch of weapons moving around or being utilized.”[8] A few days later in an interview with CNN, President Obama stated that the use of chemical weapons in Syria would affect the “core national interests that the United States . . . making sure that weapons of mass destruction are not proliferating, as well as needing to protect our allies.”[9] These statements allude to a few of the United States’ justifications for the potential use of force in Syria: to punish the Assad regime for the use of chemical weapons—for crossing the “red line”—and self-defense or anticipatory self-defense (a variation on the Bush Doctrine) either unilaterally or in the collective.

As the Syrian conflict continued unabated, the United States began to explicitly contemplate military action. A few days prior to the adoption of Security Council Resolution 2118, President Obama made clear in his White House speech his intent to use targeted military force in order to deter and degrade the Assad regime’s ability to use chemical weapons:

This is not a world we should accept. This what’s at stake. And that is why, after careful deliberation, I determined that it is in the national security interests of the United States to respond to the Assad regime’s use of Chemical weapons through a targeted military strike. The purpose of this strike is to deter Assad from using chemical weapons, to degrade his regime’s ability to use them, and to make clear to the world that we will not tolerate their use. [10]

President Obama’s speech to the UN General Assembly, just a few weeks after his White House speech, struck a slightly different note, more in line with the need to collectively for humanitarian reasons:

Different nations will not agree on the need for action in every instance, and the principle of sovereignty is at the center of our international order. But sovereignty cannot be a shield for tyrants to commit wanton murder, or an excuse for the international community to turn a blind eye to slaughter. While we need to be modest in our belief that we can remedy every evil, and we need to be mindful that the world is full of unintended consequences, should we really accept the notion that the world is powerless in the face of a Rwanda or Srebrenica? If that’s the world that people want to live in, then they should say so, and reckon with the cold logic of mass graves.… I believe we can embrace a different future. [11]

In his General Assembly speech, President Obama seemed to appeal more to a humanitarian / victim-centered motivation. Yet, to his domestic audience, President Obama embraced other justifications such as degrading and deterring, self-defense, and punishment or reprisal. Domestically, it is clear that the justifications offered have focused more on punishing, deterring, and degrading rather than a humanitarian approach—yet no single approach or justification was formally adopted.

The Senate Foreign Relations Committee passed a resolution regarding Syria, stating that the “President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria,” only to: (1) respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria; (2) deter Syria’s use of such weapons in order to protect the national security interests of the US and to protect our allies and partners against the use of such weapons; and (3) degrade Syria’s capacity to use such weapons in the future.[12] During this hearing, Secretary of State John Kerry acknowledged the Security Council deadlock and pushed for action. Secretary Kerry stated: “The president’s — the president’s asking for a limited authority to degrade his current capacity and to deter him from using it again. … So we have no illusions. Yes, is the UN Security Council having difficulties at this moment performing its functions? Yes. … And if the multilateral institution’s set up to do it, the Security Council is being blocked and won’t do it, that doesn’t mean we should turn our backs and say there’s nothing we can do. That’s not the case. And we did it in Bosnia and made a difference; we saved countless numbers of lives. And I believe, Mr. — the president of the United States believes we can do that now.”[13]

The White House Press Secretary described the goal of the intervention: “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.”[14] Senator Tom Udall of New Mexico proposed that attention and outrage should be focused on the supporters of the Assad regime—namely Russia and China—who were standing to block any authorization for the use of force in the Security Council,[15] while Senators John McCain and Lindsay Graham were opposed to any authorization for intervention that was not aimed at regime change.[16]

White House Counsel Kathy Ruemmler acknowledged that the use of force in the Syria situation would likely not be lawful under present international law, but might be justified and legitimate.[17] Somehow seeking to legitimize the use of force in Syria, Ruemmler suggested that the fact that President Obama sought Congressional approval would enhance “legitimacy both domestically and internationally.”[18] This seems to have been the extent of a legal basis offered for the justification of the use of force without UN Security Council authorization.

From these statements it is rather clear that the US was fixing to use force in Syria. Yet, the exact legal authority or justification remained unclear. President Obama and other US officials gave widely varying—sometimes even conflicting—justifications. To sum up the various US positions, the message seems to be that use of force in Syria would be justified, whether lawful or not, for the purposes of deterring, degrading, punishing (as a legal reprisal), self-defense, and possibly for humanitarian reasons.

2. The UK Legal Position

By contrast, the UK government adopted a more nuanced official legal position regarding the use of military force in Syria—one that seeks to intervene for a humanitarian purpose.[19] Actually, the UK position was taken straight out of its Kosovo/NATO intervention playbook, with just as little, if any, legal reasoning offered in 1998.

First, the UK qualified the use of chemical weapons by the Assad regime as a “serious crime of international concern,” and a breach of the customary international law prohibition on the use of chemical weapons.[20] Such use, in the UK’s opinion, amounts to a war crime and crime against humanity.[21] Because of these factors, the UK adopted the position that the legal basis for military action in Syria would be humanitarian intervention. The aim of such intervention would be to “relieve humanitarian suffering by disrupting the further use of chemical weapons.”[22] Second, the UK stated that it was currently seeking a Security Council Resolution under Chapter VII of the UN Charter which would (1) demand that the Syrian authorities observe their international law obligations, and cease the use of chemical weapons; (2) authorize member states to take “all necessary measures” to protect civilians in Syria from the use of chemical weapons and to prevent future use or stockpiling; and (3) refer the situation to the International Criminal Court.[23] Third, logically following (the very real likelihood of) a Security Council deadlock, the UK announced that it would be permitted under international law to take exceptional measures in order to alleviate the scale of the humanitarian disaster by deterring and disrupting the further use of chemical weapons.[24] Rather than seeking to justify the use of force based on punishment or reprisal, the UK’s justification was victim-centric—focusing on alleviating the level of human suffering endured by the Syrian population. The UK proclaimed that intervention was permissible for humanitarian purposes under international law since three prerequisites had been met:

(i) there was convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) objectively it was clear that there is no practicable alternative to the use of force if lives were to be saved; and

(iii) the proposed use of force was necessary and proportionate to the aim of relief of humanitarian need, provided it would be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).          

3. International Crisis Group Statement

In the midst of the various government discussions on Syria, the International Crisis Group (“ICG”)—a “heavy hitter” non-governmental organization—released the following statement:

Debate over a possible strike—its wisdom, preferred scope and legitimacy in the absence of UN Security Council approval—has obscured and distracted from what ought to be the overriding international preoccupation: how to revitalize the search for a political settlement. Discussions about its legality aside, any contemplated military action should be judged based on whether it advances that goal or further postpones it. [25]

The ICG regarded all these varying concerns on the legality or legitimacy of the use of force to have distracted from the main issue. According to the ICG, the focus should be on how to reach a political settlement. The use of force would be justified if it advanced this goal.  Put differently: even if not legal, might is right when the cause is just and the goal is achieved.

Next:  The legal framework governing the use of force in the Syria scenario.


[1] Human Rights Council, Rep. of the Indep. Int’l Comm. of Inquiry on the Syrian Arab Republic, 24th Sess., U.N. Doc. A/HRC/24/46 (Aug. 16, 2013).

[2] U.N. Secretary General, Rep. of the U.N. Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the alleged use of chemical weapons in the Ghouta area of Damascus on 21 August 2013,  U.N. Doc. A/67/997-S/2013/553 (Sept. 16, 2013).

[3] S.C. Res. 2118, U.N. Doc. SC/RES/2118 (Sept. 27, 2013).

[4] Id., para. 21.

[5] S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011), para. 4.

[6] See infra part III(1) (discussing use of force under the UN Charter).

[7] White House Office of the Press Secretary, Remarks by the President to the White House Press Corps, (Aug. 20, 2012), http://www.whitehouse.gov/the-press-office/2012/08/20/remarks-president-white-house-press-corps.

[8] Id.

[9] Barack Obama Interview with CNN, President Obama Gives Exclusive Interview to CNN on Major Issues at Home and Abroad, CNN, Aug. 23, 2013, http://newday.blogs.cnn.com/2013/08/23/president-obama-gives-exclusive-interview-to-cnn-on-major-issues-at-home-and-abroad/.

[10]White House, Remarks by the President in Address to the Nation on Syria, President Obama Addresses the Nation on Syria, (Sept. 10, 2013), http://www.whitehouse.gov/photos-and-video/video/2013/09/10/president-obama-addresses-nation-syria#transcript.

[11] White House Office of the Press Secretary, Remarks by President Obama in Address to the United Nations General Assembly, (Sept. 24, 2013), http://www.whitehouse.gov/the-press-office/2013/09/24/remarks-president-obama-address-united-nations-general-assembly.

[12] Wall Street Journal Staff, Full text: Syria Joint Resolution for Markup, Wall St. J., Sept. 3, 2013, available at http://blogs.wsj.com/washwire/2013/09/03/full-text-senate-foreign-relations-committee-resolution-on-syria/.

[13] Washington Post Staff, Kerry, Hagel and Dempsey testify at Senate Foreign Relations Committee hearing on Syria, Wash. Post, Sept. 3, 2013, available at http://www.washingtonpost.com/politics/running-transcript-senate-foreign-services-committee-hearing-on-syria/2013/09/03/35ae1048-14ca-11e3-b182-1b3bb2eb474c_story.html.

[14] Max Fischer, Obama wants to punish Assad, not win the Syrian civil war, Wash. Post, Aug. 26, 2013, available at http://www.washingtonpost.com/blogs/worldviews/wp/2013/08/26/obama-wants-to-punish-assad-not-win-the-syrian-civil-war/.

[15] Tom Udall, Udall Expresses Skepticism about Proposed Strikes on Syria, TomUdall.Senate.gov (Sept. 3, 2013), http://www.tomudall.senate.gov/?p=press_release&id=1405.

[16] PressTV, McCain, Graham call for regime change in Syria, PressTV, Aug. 31, 2013, http://www.presstv.com/detail/2013/08/31/321488/mccain-lindsey-syria-strikes-not-enough/.

[17] Charlie Savage, Obama Tests Limits of Power in Syrian Conflict, N.Y. Times, Sept. 8, 2013, available at http://www.nytimes.com/2013/09/09/world/middleeast/obama-tests-limits-of-power-in-syrian-conflict.html?pagewanted=2&_r=0&pagewanted=all.

[18] Id.

[19] UK Prime Minister’s Office, Chemical weapon use by Syrian regime: UK government legal position, (Aug. 29, 2013) available at 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.

[20] Id., para. 2.

[21] Id.

[22] Id.

[23] Id., para. 3.

[24] Id., para. 4.

[25] International Crisis Group, Syria Statement (Sept. 1, 2013), available at http://www.crisisgroup.org/en/publication-type/media-releases/2013/mena/syria-statement.aspx.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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