Tuesday, August 27, 2013

Bombing Syria Without Security Council Authorization Would Be--And Should Be--A Violation of International Law

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.


Shag from Brookline said...

So the end result is international political and humanitarian limbo? The US would not be acting unilaterally. And does "Never again" have any real meaning? Who was it who asked in 1938 "Who remembers the ....?" Even international law may be "a ass."

Michael C. Dorf said...

Shag: You correctly point to the tragic downside of abiding by the international system for authorizing the use of force: Some perpetrators of genocide and other atrocities will not encounter armed resistance from the fraction of the world community that is prepared to use such force. Nothing I said denied that. I was pointing out that the downside of ignoring international law may be even greater. The result is not limbo but a strong presumption against legally authorizing the use of force. Given the unpredictable tragic consequences of wars, that presumption is justified.

Moreover, civil disobedience has its place in international law as in domestic law. Sometimes moral imperatives are so strong that countries ought to use force even though doing so would violate international law. Your reference to the Holocaust invokes such an example, although it's worth noting that it is historically inapt. There was no international law norm that prevented the U.S. and its allies from, for example, bombing the railroad tracks to the death camps, once a state of war existed. The failure to do so was in no way a product of anyone thinking that it would be a good idea but a violation of international law.

As I said when President Bush was advancing bogus humanitarian and other arguments for invading Iraq in 2002 and 2003, the problem is not that his Administration gave too little weight to the unlawfulness of the course of conduct on which he was embarking. The problem was that he appeared to give the law no weight at all. The same seems to be true today.

Shag from Brookline said...

As for Bush's bogus arguments for invading Iraq, the humanitarian argument was overwhelmed by the WMD argument. The history of the Middle East going back to 1915 demonstrates that humanitarian arguments do not result in action. Back then the shoes were reversed with refugee marches from Turkey through the Syrian deserts to Lebanon. International law took a long time, too long, to recognize that sovereignty serves not only as a shield but as a sword. This is not limited to even the extended Greater Middle East. We lawyers deal with presumptions and the reasonable person standard all the time. But this can be dithering in addressing the current problem. I'm not suggesting what the Administration should or should not do. If international laws are in effect impotent, and cannot be changed on a timely basis, that makes the decision of the Administration more difficult. Doing something may well lead to tragic consequences; and so might doing nothing. Is America's national interests at stake? What is most troubling to me is that the US, so distant geographically, is expected by the sovereign nations directly in the area to take action that they themselves are not willing to take even though they are more directly impacted by the situation. It was troubling to me that in Europe in the 1990s that those sovereign nations failed to address the problems in the former Yugoslavia, even with the history that two world wars had connections to the Balkans. (Clinton's actions were taken without Security Council approval.) These sovereign nations should have been ashamed. The sovereign nations of the Middle East have the direct and greatest stake in the situation with Syria: Sovereign self-defense. Historically the US doesn't mess around with international laws when faced with its Sovereign self-defense actions closer to home. (I'm not suggesting that all such actions were pure.)

So what is the role of America? Bush's National Security Strategy (Sept., Oct. 2002) declared that America was #1 economically, militarily and politically in the world and would take all steps necessary to maintain such positions. A lot has happened since then. But there has not been a real debate about America's role when confronted with a situation such as this. International laws too can end up in gridlock.

Sam Rickless said...

Syria may well have violated the Geneva Protocol of 1925, which it signed in 1968. This is a promise not to use chemical weapons, and it is a promise made to all countries who are signatories to the protocol, including the United States. If there is clear evidence that Syria violated the protocol, doesn't international law countenance some form of effective enforcement mechanism? If so, does it matter whether Russia and China do not approve of the decision to enforce? Maybe the tacit enforcement provision of the Geneva Protocol conflicts with the UN charter. But why suppose that this conflict should be decided by allowing China and Russia a veto on all enforcement of the Protocol?

Michael C. Dorf said...

Sam: It's also clear that Syria has violated other provisions of international law, including the obligation not to target armed force against civilians. And yes international law contemplates enforcement mechanisms but there is no reason to think either that the enforcement mechanism is the use of force or that any country or group of countries can decide on the use of force outside of the Security Council mechanism.

Shag from Brookline said...

There is some debate going on, perhaps triggered by memories of the invasion of Iraq and its consequences and so-called Arab Spring events that have not turned out to be as promising for democratization as originally expected. We still have political/pundit Hawks and Doves. Consider the differing reactions of Roger Cohen and David Brooks just at the NYTimes today. There is an obvious divide here in America. What should be America's National Security Strategy and its role in the world today? I've commented elsewhere on the many variations of "The Mouse That Roared" that have confronted America especially since the end of the Cold War. Enough. Let's get serious and stop the political gamesmanship that adds to gridlock.

Sam Rickless said...

Mike: If there's no prospect of enforcement within the UN framework, then there's no prospect of enforcement period, which renders the relevant agreements worthless. States will then get the benefits of signing Protocols (some of which are provided by the UN) without any downside for refusal to abide by them. It seems to me that, from the perspective of international law, there is a mandate for enforcement of any very important agreement that there is overwhelming reason to believe a particular state has violated. As in Locke's state of nature, any state has the right to enforce agreements against any other. Beyond international law, there are policy considerations. These may well, in this case as in others, counsel against military intervention in Syria, all things considered. You describe some of these problems, the most important of which is the avoidance of global war arising out of unilateral enforcement decisions of which at least one permanent member of the UN security council strongly disapproves. I'm not disagreeing with you about this. What I am unsure about is the more academic question whether bombing Syria would be a violation of international law.

Joe said...

"no prospect of enforcement period"

Economic boycotts, ending diplomatic relations, denial of aid, etc. are potential enforcement mechanisms here.

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