Neither Humanitarian Intervention Nor Self-Defense in Syria: A New Justification for the Use of Force in International Law?

As matters hurtle toward a military strike against Syria, the debate about the prudence and legality of such a strike is in full frenzy–and Arms Control Law has participated in this debate earlier and over the past few days.

Here, I follow-up on a thought I raised in a reply to a comment on my August 23rd post on international and national legal issues associated with possible military action against Syria in response to the chemical weapons attack, namely that the international legal justification for using force against Syria is not really humanitarian intervention.

So, to continue this thought experiment, what might be emerging here is, in essence, a claim that use of chemical weapons on a large-scale provides an independent basis in international law for countries to use force against the government perpetrating such an illegal action.

As we have seen in the debate, including my August 23rd post, commentators have tried to slot a military response to the Syrian chemical weapons incident into existing exceptions to the prohibition on the use of force in international law, including arguments that such a military response:

Can only be legal if authorized by the Security Council;

Could, perhaps, fall under a broad concept of self-defense; and

Can be justified as humanitarian intervention not requiring Security Council authorization.

However, Security Council authorization is unlikely, and arguments from self-defense (even broadly interpreted) and humanitarian intervention encounter serious problems as justifications for the use of military force against Syria as a response to the chemical weapons incident. As between a self-defense argument and the humanitarian intervention argument, the humanitarian intervention argument appears to have more support, with the humanitarian intervention in Kosovo undertaken without Security Council authorization often considered the best precedent. The resolution the U.K. has introduced at the Security Council apparently seeks authorization for “all necessary means to protect civilians,” which links to the humanitarian intervention framing of the problem.

Although I understand the framing of the issue in this manner, especially given existing international law on the use of force, the humanitarian intervention argument does not fit this crisis well. The humanitarian intervention exception to the prohibition on the use of force is very controversial even when used to prevent or stop humanitarian atrocities. Even many supportive of the humanitarian intervention in Kosovo acknowledged it did not, or should not, constitute a strong precedent for a humanitarian intervention exception to the prohibition on the use of force in international law.

The path to the use of force against Syria is hard, however, to pave with humanitarian intentions. From the “red line” laid down by President Obama through the present crisis, the focus has been on the use of chemical weapons by Syria in its civil war. Although we do not know what the anticipated military strike will involve, public statements of the U.S. and other governments indicate that the military response will be limited in scale and duration, designed to deter any further use of chemical weapons, and is not intended to change the course of the Syrian civil war or effect regime change. Put another way, based on what we are being told, this military intervention appears surgically focused on shoring up the international legal prohibition against the use of chemical weapons.

Preventing any more use of chemical weapons would have positive humanitarian consequences in removing one type of weapon from the battlefields of Syria, but, as many have already argued, the currently stated purposes and objectives of the military response will not alleviate the humanitarian disaster the Syrian civil war has become. As has already been asked, is death and suffering from chemical weapons worse, as a humanitarian matter, than death and suffering from conventional weapons?

The anticipated military strikes will not, apparently, degrade the Syrian military’s ability to use heavy conventional weapons against civilians and civilian areas, which have been the source of much human death and suffering in this conflict to date. Nor apparently are the strikes designed to change the Syrian government’s and military’s strategies, tactics, and choice of weapons, except with regard to chemical weapons. Humanitarian protection, as an objective or outcome, is deliberately limited to use of a specific type of weapon. Put differently, but for the use of chemical weapons, we would not be debating humanitarian intervention any differently than we have since the Syria civil war started. More simply, it’s fundamentally about the weapon not the human suffering.

Following this thought, justifying military action against Syria flows most directly, then, from the importance of protecting the “chemical weapons taboo” in international law–the complete prohibition in armed conflict of the use of any chemical weapons. This prohibition contains within it not only the purpose of limiting the suffering war causes but also the core interests of states in eliminating chemical weapons from armed conflict. These core interests have coalesced multilaterally in a manner that makes this prohibition one of the most important rules in international law, an importance developed on the journey from the trenches of World War I, to the Geneva Protocol of 1925, and to the CWC of 1993–as enhanced by actions to prevent chemical terrorism (e.g., Security Council Resolution 1540).

Looking at the way the move to military action against has developed, the anticipated military response appears most deeply rooted in this prohibition and its fundamental importance in international relations. This prohibition is, then, the basis for justifying the legitimacy and legality of a use of force against Syria in the absence of a Security Council resolution.

But. wait, I hear people saying (or perhaps shouting), international law has not recognized such an exception to the prohibition on the use of force–there’s no state practice or opinio juris supporting this notion, nor does any treaty, including the Geneva Protocol or CWC, create any such exception. All correct arguments, but my point is that we are perhaps seeing unfold a rapidly emerging acceptance of a new exception to the prohibition on the use of force grounded in a critical rule of international law, the importance of which depends on its protection or, if you will, its enforcement, including through military means against violators. Otherwise, we are left with the contorting legal gymnastics necessary to make what is about to happen “humanitarian intervention” or “self-defense.”

This thought experiment has not addressed every issue, problem, pitfall, or potential “you can’t be serious” response raised by what it has suggested, but, being a speculative enterprise, pushing this idea farther at the moment might aggravate more than illuminate.