Would Intervention in Syria Violate International Law?

In July the Public International Law & Policy Group (PILPG) issued a memorandum setting forth the legal basis for international military intervention in Syria. The memorandum analyzed the conflict using the doctrine known as the Responsibility to Protect (R2P).[1] The very short memorandum (only 23 pages)[2] concludes that R2P is a norm of customary international law that allows military intervention by individual States when the United Nations (UN) Security Council does not act to end ongoing atrocity crimes.[3] The memorandum justifies its interpretation of R2P by looking to the first Gulf War in 1991 and the NATO intervention in Kosovo of 1998.[4] It also relies on the International Commission on Intervention and State Sovereignty (ICISS) Report from 2001, which developed the idea of R2P as such, and the acceptance of this principle by the UN.[5] That acceptance was argued based on the 2005 World Summit Outcome Document (Outcome Document), which made reference to the doctrine, and the use of similar language by the Security Counsel in authorizing the 2011 intervention in Libya.[6] The greatest flaw with this memorandum is that it presupposes what it desires to prove, the validity of R2P’s permissive stance on military intervention outside of the framework of the UN Security Council.[7] This assumption renders the memorandum of little practical use and deprives its conclusion of any legal value.

The memorandum is correct to point out that the R2P doctrine was developed in response to mass atrocities in the 1990’s. It was most notably based on the Kosovo intervention of 1998 carried out by the North Atlantic Treaty Organization (NATO) in response to allegations of such atrocities. Kosovo, however, was not an example of R2P as it predated the development of the doctrine. The same is true for the First Gulf War in 1991 which was in any case authorized by the UN Security Council in response to a cross border international conflict.[8] Furthermore, as the memorandum acknowledges, there is a diversity of opinion on the legality of the NATO intervention outside the auspices of the UN Security Council.[9] R2P was in part developed to move past this form of “humanitarian intervention” into a system governed by legal principles to legitimize actions that while legally dubious were considered to be morally justifiable. The conclusions of the memorandum might have been correct if R2P had become a principle of customary international law in its original form including the sanctioning of military intervention without UN Security Council approval. The doctrine, before obtaining this level of legitimacy, evolved.

R2P was developed by ICISS under the auspices of the Canadian government; it was not an international (in the sense of inter-State) meeting resulting in an international agreement setting out a principle of international law. The report was an attempt to move the law forward by developing a number of principles, one of which would allow military intervention to put a stop to ongoing mass atrocity crimes when the UN Security Council failed to act. The principle of R2P did not make the jump to realm of real law (soft as it may be) until the 2005 Outcome Document where the UN General Assembly endorsed R2P’s main idea of sovereignty as responsibility. The prong providing for military intervention, however, was significantly modified. Intervention was limited to those situations where the UN Security Council authorizes military action. The Security Council invoked this meaning of R2P when it authorized military intervention in Libya, not the broader version pronounced in the ICISS Report. This can be seen from the lack of any language to the effect of adopting the broader meaning of the doctrine and the fact that the Security Council in fact authorized the intervention.[10]

The memorandum’s reliance on the broader understanding of R2P in the ICISS Report and the acceptance of that principle at the international level is incorrect. Intervention outside of the UN framework did not survive the transposition of R2P from the ICISS Report to the level of actual international law. The States of the world did not accept that aspect of the doctrine thereby leaving it on the way-side when R2P was accepted as an “emerging norm” of international law. All the dicussion about the existence (or not) of a prima facie case of atrocity crimes in Syria in the memorandum is irrelevant for the purposes of any application of R2P as the doctrine currently stands. Outside of Security Council authorization for military intervention, there is no right of one State to intervene militarily in another.[11]

Hiding in the background of the memorandum’s analysis is a feeling that the UN Security Council has failed in its mission to protect international peace and security which should then open up the possibility of other solutions to international problems. R2P was supposed to be a new legal basis for acting when the UN sits on its hands. Unfortunately, R2P and the old idea of “humanitarian intervention” which it was supposed to replace suffer from the same deficiencies. Neither makes clear how the preconditions for action are to be established or by whom. They both come down to situations where the party that wants to intervene will declare that the preconditions are met while those against action will argue that they have not. Without a neutral arbiter, the criteria for intervention themselves are of little use.  In theory, that arbiter should have been the UN Security Council, but the inaction of that body is exactly the problem.[12]

The memorandum attempts to justify unauthorized military intervention in Syria by relying on an outdated version of R2P. The doctrine could have potentially allowed such an intervention as it was originally developed in the ICISS Report, but that prong of the doctrine was not adopted by the international community in the Outcome Document of 2005, nor was it adopted by the Security Council when it authorized intervention in Libya in 2011. The harsh truth is that R2P as it currently stands does not permit individual States (or groups thereof) to intervene militarily in other States to put an end to ongoing mass atrocity crimes. The memorandum reaches the opposite conclusion based on a false premise of the validity of R2P in its original form. If intervention outside of Security Council authorization is to be legal, it will have to find its justification somewhere else.

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[1]http://www.internationallawbureau.com/blog/wp-content/uploads/2012/08/PILPG-The-Legal-Basis-for-Humanitarian-Intervention-in-Syria.pdf

[2] Not including the executive summary and table of contents.

[3] ibid. at pp. 7-15.

[4] ibid. at pp. 11-12.

[5] ibid. at pp. 13-14.

[6] ibid. at pp. 14-15.

[7] This can be seen in the statement near the end of the executive summary that “As R2P currently stands, an intervention that satisfied all of these requirements and criteria would be legal.”

[8] The First Gulf War was started after Iraq invaded Kuwait and refused to withdraw.

[9] ibid. at p. 1.

[10] This example in many ways fails for the same reason as the Gulf War example. Both were in the end authorized by the Security Council and so do not evidence any norm allowing action outside of Security Council action.

[11] This is of course assuming the doctrine is even valid as a matter of law. This is in the UN Charter, Article 2(4).

[12] The International Court of Justice would be a possible forum except that the proceedings before that court can take years, far too long in an emergency situation.