Brown University Seminar – Part V

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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VI. CLOSING THOUGHTS

conclusionIn wrapping up the seminar, I discussed the implications of the various positions that are out there. To strike or not to strike. Operate outside the international legal framework, or operate as if within the international legal framework (as suggested by the UK) or alternatively with the view of recalibrating (redefining) the law on the use of force?

Military strikes against Syria without UN Security Council approval are almost certainly a violation of international law. Building a coalition of the willing that operates outside the UN would not make it any more legal, though, as in Kosovo, it could be viewed as legitimate or morally right.  Punishment is not a legal justification. International law does not seem to provide a right of states to respond with force to serious violations of international law—even when that law prohibits the use of chemical weapons.

The principle of humanitarian intervention, despite the UK’s expressed position, does not provide a legal basis to use force absent Security Council authorization.  R2P is clear: the use force outside the UN Charter is not sanctioned. Were Syria to fail in its obligations under Resolution 2118, and were the Security Council be deadlocked in using force under Chapter VII, the US would have a hard choice to make:  follow the law by acting inside the UN Charter, meaning do nothing, or act outside the UN Charter by justifying the military strikes as morally legitimate and seemingly necessary as part of a law making moment.  Perhaps customary international law has evolved to the extent that under certain circumstances, it trumps the UN Charter—at least in so far as the use of force for extreme humanitarian situations where the P-5 are unwilling to abide by their obligations in ensuring the fundamental precepts of the UN Charter as expressed in its Preamble.  Perhaps.  But where there may be good humanitarian intention for unilateral/collective use of force absent P5 consent, other agendas – such as regime change – seem to lurk in the background, giving rise to questions as to the real purpose of the use of force.  Just take a look at how Michael Ignatieff put the case forward for the US to use force in Syria, in an Op Ed piece in the New York Times, coincidently, the day before the seminar, which, exquisitely, fit into our discussions:

The trouble is that the conventional wisdom may be fatalism parading as realism and resignation masquerading as prudence. […] Given the near certainty that Russia would veto any United Nations Security Council  authorization of air power, and that the United States Congress, if asked to authorize force, would likely turn President Obama  down, stopping the war in Syria will stretch domestic and international legality. But if legality is not stretched, the killing will go on indefinitely. […] Above all, using force would make the president ‘own’ the Syrian tragedy. So far he has tried to pretend he doesn’t have to. The fact is he owns it already. American inaction has strengthened Russia, Hezbollah and Iran. It has turned Syria into the next front in the war with Islamic extremism. And it has put in jeopardy the stability of Jordan, Lebanon, Iraq and Turkey and risks leaving a failed state next door to Israel. If the president already owns the deadly consequences of inaction, it is only prudent now to back diplomacy with force so that the consequences do not become deadlier still. [1]

From the rhetoric coming out of the White House and Congress, the Obama administration seemed intent on acting outside the UN Charter while offering no credible legal justification.  The R2P doctrine—such as it is—provides no viable solution.  As for the application of the humanitarian intervention as articulated by the UK, it too is fraught with risks of abuse.  States could justify the use of force as a pretext of humanitarian intervention.

With the Ukraine situation on the horizon, I concluded by asking, perhaps presciently, it now seems: Is there international law, or is there only power?

Read the entire piece on my blog at michaelgkarnavs.net


[1] Michael Ignatieff, With Syria, Diplomacy Needs Force, N.Y. Times, Feb. 25, 2014, available at  http//nyti.ms/1cl99qW.

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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.

One thought on “Brown University Seminar – Part V”

  1. Dear Mr. Karnavas:
    Thank you for your excellent blog post and your detailed analysis of the legal problems in relation with a Humanitarian Military Intervention in Syria.
    I always supported the idea of a Humanitarian intervention to prevent serious crimes against humanity. However in the case of Syria, it is important to consider the matter from a conflict resolution point of view. Whoever intervene in a conflict alters the existing balance of power between the contending parties. The might of a Western Coalition will prevail in defeating the Syrian government but it will create a vaccum of power that could benefit the most extremist opposition groups, thus favouring the creation of a fundamentalist Syria. The US could not occupy Syria with a little number of casualties. In the Kosovo intervention NATO stroke Serbia and the Albanese Kosovars collaborated with the West but in Syria you should have to deal with different groups that may even unite against a foreign invader. It would be risky to ignore the possibility that Russia decides to intervene as well.
    In the end Israel will be less secure than before. It is very difficult to intervene in a civil war with so many different actors as israel realized in 1982 when she invaded the Bekaa Valley in Lebanon. Once you are in it is difficult to get out. It would very likely produce more atrocities and death than the present war and certainly more anger against Western Powers. Democracy will not flourish either because you need democratic values and a tolerant culture to beguin with (very rare in the middle of a civil war). Russia seized Crimea because the West wanted to make Ukraine a member of NATO and Ukraine wanted to join the EU. She will not accept easily the lost of her Syrian Naval Base in the Mediterranean as well .
    Yours very sincerely
    Claudio G. Morassutti

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