By Mike Dorf
With President Obama and the leaders of various European allies intent on imminently launching missiles to punish the regime of Bashar al-Assad for its use of chemical weapons against civilians, it is probably too late to make a persuasive case against that course of action. The pragmatic arguments for and against have been well-rehearsed and--although the conclusion is highly contestable--the decision has apparently been made.
Nonetheless, to review, the case FOR such an attack boils down to two factors: (1) The use of chemical weapons is, for historical as well as humanitarian reasons, considered categorically worse than other attacks against civilians, and therefore demands a response; and (2) President Obama, having previously called the use of chemical weapons a "red line," must follow through on the threatened use of force, or lose credibility in the region and with respect to foreign policy more broadly.
The case AGAINST such an attack is at least equally powerful: (1) The Syrian civil war increasingly amounts to a Sunni/Shiite battle waged by al Q'aeda against Hezbollah, in which the U.S. cannot act without risking highly unpredictable blowback; (2) Having still not fully extracted American forces from over a decade of wars in the middle east, the U.S. has neither the appetite nor the capacity for involvement in a new one; and (3) Sea-launched missiles can only do limited damage, and unless the U.S. and European powers are willing to put boots on the ground in Syria (which they are not), such actions will either strengthen the resolve of Assad or, if they "succeed", risk the consequences described in (1).
As I said, the Administration apparently finds the FOR arguments more powerful than the AGAINST arguments. I disagree, although I acknowledge that, judged purely as a matter of pragmatic policy, this is a choice between bad options. However, the matter should not be judged purely as a matter of pragmatic policy. There is also the question of international law.
Article 2.4 of the U.N. Charter (to which the U.S. adheres as a matter of treaty law and customary international law) categorically forbids the use of armed force, subject to two exceptions found elsewhere in the Charter: (1) Articles 39-50 (of Chapter VII) grant the Security Council the power to authorize force in response to actions that threaten peace or constitute aggression; and (2) Article 51 recognizes "the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
Although there is some doubt about the authority of the Security Council to authorize force in response to "internal" matters, the pretty clear consensus view rightly holds that the Security Council can authorize force in response to aggression or atrocities in a civil war--especially where, as in Syria today, the civil war threatens to spill over the borders. With Iran and its Hezbollah clients in Lebanon directly backing Assad, while Turkey, Saudi Arabia and Qatar (as well as other Sunni-majority countries in the Middle East) promoting the cause of the rebels, the Security Council could authorize action in Syria. However, the Obama Administration has zero chance of obtaining Security Council authorization for the use of force against Syria because of the certainty of a Russian (and probably also a Chinese) veto.
Nor does Article 51 provide the Administration with a basis for the use of force. The Syrian regime has not attacked the United States or an ally to whose defense the U.S. is committed. There is some spillover of refugees and violence into Turkey, a NATO ally, but Turkey itself has not treated that as an armed attack by Syria, and Assad appears to be aware that directly attacking Turkey would bring forth a substantial NATO response.
Nonetheless, some scholars argue that customary international law recognizes a third, albeit unenumerated, exception to the Article 2.4 prohibition on the use of armed force: Nations may use force on humanitarian grounds to impede gross abuses of human rights--such as genocide or, as in Syria, the use of chemical weapons against civilians. This position is sometimes advanced under the rubric of a "responsibility to protect." In my view, there is no such responsibility under existing customary international law, and recognizing one would be potentially dangerous. Consider:
First, as a matter of international practice, there simply is no consensus permitting humanitarian interventions without Security Council authorization. For example, in 1999, NATO forces intervened in Kosovo to protect ethnic Albanians, without Security Council approval. However, there was significant dissent from that move--including by two permanent members of the Security Council (Russia and China). Although they failed to obtain U.N. approval for a resolution that would have called for halting the NATO intervention, the absence of consensus against a practice is not the same as a consensus for a practice. Yet to rise the level of customary international law, a practice must be widely observed and generally accepted as law. One might wish there were a customary international law norm recognizing a responsibility to protect, but there isn't one now.
Second, even if there were or had been a customary international law norm permitting the use of force on humanitarian grounds, the text and structure of the UN charter are best read as permitting such force in particular cases only with Security Council approval. After all, customary international law permits the use of armed force in national self-defense; yet, the Charter nonetheless expressly spells out (in Article 51) that such force continues to be permitted, notwithstanding Article 2.4 and the balance of Chapter VII. It is therefore a reasonable textual inference that national self-defense provides the only circumstance in which force is permissible without Security Council authorization.
Third, I understand some of the proponents of armed humanitarian intervention to be voicing frustration with the Security Council system itself. Given that Russia and China will usually oppose humanitarian interventions (but see Libya in 2011), proponents argue that responsible members of the international community should have the unilateral power to intervene to avoid humanitarian disasters. I have considerable sympathy for the general view. It must be frustrating for diplomats who favor humanitarian intervention to encounter resistance from Russia and China, knowing that the resistance is not based on a differing evaluation of the costs and benefits of intervention, but simply on the perceived strategic interests of those countries, without apparent regard for the value of the lives at risk.
Nonetheless, I think that the proponents of a unilateral power of armed humanitarian intervention both misconceive the point of the Security Council and underestimate the dangers of the norm they propose. As to the former, the permanent members of the Security Council (US, UK, France, Russia, China) do not hold their positions because they are, in any sense, the most virtuous countries in the world. They hold their seats as the major victorious powers in WWII (or in the case of Russia and China, as the legatees thereof). That is still a pretty good proxy for military strength, which makes sense as a matter of institutional design. If one regards global war as a catastrophe worth avoiding at nearly any cost (which strikes me as quite sensible), then one will want a system of force-authorization that does not risk pitting these militaries against one another. And that is exactly the point of giving each permanent member of the Security Council veto power. Yet, if force can be used without Security Council authorization, then this safeguard against global conflict is circumvented. To be sure, the Charter recognizes one circumstance in which unilateral force is authorized: response to an armed attack. But that is because countries will inevitably respond with force to armed attacks and perhaps to deter such attacks in the first place.
Finally, it is worth noting that wars--certainly including civil wars--frequently produce atrocities by more than one side. A norm permitting powerful countries to use force on humanitarian grounds without prior Security Council authorization could very well increase the likelihood that small-scale conflicts become large-scale conflicts, resulting in greater, not less, suffering. The UN Security Council system for authorizing, and for not authorizing, the use of armed force, is imperfect because powerful nation-states (including Russia and China but also the other permanent members) often pursue their perceived national strategic interests rather than simply aiming at righting wrongs. But the alternative world to which we may be heading--the world of unilateral armed humanitarian interventions--may very well turn out to be worse.