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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3. Discussion on Syria—is there a legal basis or justification outside the Security Council?
The United States’ positions discussed seem to provide a justification for the use of force based on punitive reprisals and anticipatory self-defense. However, President Obama gave mixed messages. The US seems to be scoping out all the possible justifications for the use of force. An analysis of the legal rules governing countermeasures and reprisals, armed force in reaction to a breach of an international law norm is generally prohibited. Similarly, the use of force in anticipatory self-defense is not regarded as lawful. It goes beyond the Caroline precedent as an armed attack from Syria on the US or UK is not imminent. A strict application of the UN Charter to determine the legality of the use of force under Articles 2(4), 39 and 42 leaves us with the proposition that any intervention outside the Security Council, apart from self-defense, would be unlawful. In regard to the UK position, R2P leaves us at square one—as it requires Security Council authorization. R2P does not solve any of the issues when there is Security Council deadlock.
However, the law is a dynamic process. Customary international law evolves according to state practice and opinio juris. In a thoughtful article, Ezequiel Heffes and Brian Frenkel remind us that Rosalyn Higgins, former President of the International Court of Justice proposes that “international law is a legal decision-making process, i.e., it is a continuing process of authoritative decisions.” Higgins proposes that international law is created by the actors, and that it is a continuous dynamic process of decisions. So can we conclude that States may use intervention in Syria as a precedence setting “game changer” which would fundamentally change the legal norms in relation to the use of force concerning humanitarian intervention?
Sir Daniel Bethlehem, former principal Legal Adviser of the UK Foreign & Commonwealth Office, has suggested that there may be two distinct justifications for the use of force as humanitarian intervention outside the Security Council system: (1) the weaving threads of law and practice may demonstrate the legality of force outside the Security Council system; or (2) through a claim that a new norm of customary international law in favor of a principle of humanitarian intervention has rapidly crystalized.
Bethlehem takes a holistic approach in making his case, similar to what Christopher Greenwood did in advancing a legal justification for the UK/coalition of the willing Kosovo intervention. Bethlehem argues that an analysis that relies on Article 2(4) and its exceptions is overly simplistic and that the UN Charter should be read as a whole. This includes the human rights principles in the preamble: to “save succeeding generations from the scourge of war” and “reaffirm faith in fundamental human rights.” The exceptions to Article 2(4) (Security Council authorization and self-defense under Article 51) show that the prohibition on the use of force in Article 2(4) is not absolute—the Charter expressly accepts these customary international law exceptions. While no express exception exists for the use of force for humanitarian intervention, an exception could be carved out that permits use of force against another state when persistent deadlock obstructs the UN’s capacity to achieve its humanitarian purposes. The United Nations Charter is based on the development of customary international law. The principles of international law, as well as the Charter do not draw exclusively from principles of state sovereignty and non-intervention but also from human rights and humanitarian law. Arguably—and preferably—preventing and responding to mass atrocities would do more to further the principles of international law, including the UN system, than a rigid application of the Charter and treaty texts. While the Draft Articles on State Responsibility do not permit armed reprisals or countermeasures nor provide a basis for humanitarian intervention, they do give some leeway to use some sort of action in response to an unlawful act. Thus, according to Bethlehem, the law permits some limited responses; no condemnation for military action should follow when used as a last resort measure to address extreme exigencies.
But it is also important to look to state practice. In the Kosovo situation, the legal basis relied on by NATO was humanitarian intervention. Seventeen NATO members individually satisfied themselves of the legality of their participation in the operations. Although there were efforts in the UN to condemn the air strikes, no condemnation was made. The Kosovo commission report found that although NATO’s military intervention was illegal, it was nonetheless legitimate in light of the overwhelming humanitarian crisis in Kosovo. This supposedly demonstrates that where states have intervened on humanitarian grounds without Security Council approval—where there were clear exigencies—their actions have been accepted by the majority of states, and at least tacitly approved by the Security Council. Lou Henkin, a Columbia University Law Professor who is widely considered one of the most influential contemporary scholars of international law, enumerated four factors which support the legality of NATO action in Kosovo without Security Council authorization: “(1) extreme gravity of the human rights situation; (2) collective humanitarian action; (3) prior Security Council unavailability; and (4) subsequent Council monitoring.”
From this perspective, if you look at all the legal provisions accompanied by state practice, arguably, there may be some sort of legal leeway for the permissible use of force in humanitarian intervention in Syria. If not explicitly legal under the rules, it may be considered legitimate as seen in practice in Kosovo. Further, perhaps R2P could be regarded as a set of principles, rather than law as such, permitting the use of force outside the Security Council. As for Syria, Bethlehem suggests the legal issues to be considered should include:
(a) the legal effect of the Security Council’s failure to act, (b) the legal effect that attaches to the use of chemical weapons, as distinct from other massive humanitarian violations that have occurred previously; (c) the legal effect of resolutions of the Arab League; (d) the legal effect of the opposition of Russia, China, Iran and others to the suggestion of intervention.
Bethlehem also suggests other practical considerations should considered, such as the massive cross-border refugee flow into Syria’s neighbors. This may not be an altruistic consideration. States have a self-interest in developing other countries in order to save their own taxpayers from the economic burden of refugees. Additionally, the provision of aid and assistance to both sides in a civil war provides an additional practical consideration. Providing aid to rebels fighting against a government regime could be a violation of that state’s sovereignty. It can hardly be argued that providing aid to the rebel forces in Syria would be akin to sending aid to a government. There is no monolithic group in “the opposition,” but rather groups of fighters against the Assad regime. States would have to recognize a rebel group, or collective of groups, as the rightful government. It’s doubtful that the rebel movement meets the Montevideo criteria for recognition. The opposition has included Syrian as well as outside fighters, including the Islamic State in Iraq and the Levant (ISIS), an Al-Qaeda affiliate organization from Iraq. Additionally, Syria could possibly turn into a regional conflict.
If, under this analysis, international law can be shown to be permissive of humanitarian interventions, there are a number of distinguishing factors which would contribute to the legitimacy of the use of force in Syria. This would include an assessment of the catastrophic humanitarian situation—not only the use of chemical weapons on civilians, but also other widespread human rights violations, the likelihood of future atrocities, the severity of already committed atrocities which may constitute international crimes, and the growing likelihood of regional security. If, as Bethlehem suggests, all the Charter provisions, international legal principles, and state practice are taken together, this may legitimize the use of force in Syria. Even if not seemingly permissible under all the legal provisions read as a whole, and taken into account with state practice, a new norm permissive of humanitarian intervention could rapidly crystallize in customary international law. The US and its allies could treat Syria as a “game changing” moment, in order to solidify a limited, and narrowly tailored, concept of humanitarian intervention, which is capable of operating outside the veto-stranglehold in the Security Council in extreme circumstances.
 See supra, Section III(2).
 Ezequiel Heffes and Brian Frenkel, Syria Insta-Symposium: Ezequiel Heffes and Brian E. Frenkel–The Decision-Making Process of the R2P Doctrine: Towards New (Old) Paths in the Use of Force in International Law, Opinio Juris (Sept. 2, 2013, 3:30 PM), http://opiniojuris.org/2013/09/02/syria-insta-symposium-ezequiel-heffes-brian-e-frenkel-decision-making-process-r2p-doctrine-towards-new-old-paths-use-force-international-law/
 Bethlehem, supra note 43.
 See Greenwood, supra note 62.
 U.N. Charter Preamble.
 Bethlehem, supra note 43.
 Greenwood, supra note 62 at 161.
 See Draft Articles on State Responsibility arts. 22, 25, 24 (circumstances which preclude wrongfulness).
 Bethlehem, supra note 43.
 Greenwood, supra note 62 at 169.
 Harold Hongju Koh, Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward), Just Security, (Oct. 2, 2013, 9:00 AM), https://www.justsecurity.org/1506/koh-syria-part2/.
 Bethlehem, supra note 43.
 See Montevideo Convention on the Rights and Duties of States, 165 LNTS 19; 49 Stat 3097 (1934). Although a regional treaty, the following criteria are regarded as customary international law on the sovereignty of states: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.
 BBC Middle East, Profile: Islamic State in Iraq and the Levant (ISIS), BBC News (last updated January 6, 2014), http://www.bbc.com/news/world-middle-east-24179084.