Good luck with that.
- By Rosa BrooksRosa Brooks is a law professor at Georgetown University and a Schwartz senior fellow at the New America Foundation. She served as a counselor to the U.S. defense undersecretary for policy from 2009 to 2011 and previously served as a senior advisor at the U.S. State Department.
So let’s say you’re the president of the United States and you want to use military force to intervene in Syria. I’m not saying you do (it sorta looks like you don’t), and I’m not even saying you should (you’re not wrong to worry that military intervention might not end well).
But let’s say you become convinced that military intervention is the only way to protect Syrian civilians from being slaughtered by government forces, or that it’s the only way to prevent Iran and Hezbollah from becoming dangerously emboldened, or the only way to prevent factions with links to al Qaeda from gaining the upper hand within the Syrian rebel movement, or the only way to prevent the conflict from spilling over into neighboring countries, or the only way to do all those things. And let’s say that Russia continues to block every U.N. Security Council resolution that might pave the way for a civilian-protection intervention á la Libya.
You’re a president who respects international law — or, at any rate, you’re not inclined to thumb your nose openly at international law. You’re not Dick Cheney, and you don’t like being compared to Dick Cheney. That means that if you decide America should intervene militarily in Syria, you want to be able to tell the world, with a straight face, that the intervention is legal. At a bare minimum, you want to at least feel confident that what you’re doing isn’t blatantly, manifestly, obnoxiously illegal, in a "F*** the U.N. Security Council and the horse it rode in on" kind of way.
Can you do it? Would it be lawful, as an international law matter, for the United States to use military force in Syria without a Security Council resolution authorizing the intervention?
The short answer: Probably not.
But that’s not quite the end of the story. For advocates of military intervention in Syria, the longer answer’s a little less definitive, and offers somewhat greater wiggle room.
Start with a primer on the international law governing the use of force. In theory, it’s pretty clear. The U.N. Charter embraces the principle of "sovereign equality" and requires that member states "settle their international disputes in a peaceful manner" and "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state." That’s generally viewed as a blanket prohibition on the use of force inside the borders of another sovereign state.
Chapter VII of the U.N. Charter outlines just two exceptions to this prohibition: First, if the Security Council identifies "any threat to the peace, breach of the peace, or act of aggression," it may "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security." For practical purposes (since the United Nations never got the standing army envisioned by its charter), this means the Security Council can pass a resolution authorizing member states to use force to carry out its mandates. In the context of Syria, the likelihood that the Security Council will pass a resolution authorizing the use of force is approximately the same as the likelihood that Vladimir Putin will defect to the United States.
The second exception to the prohibition on the use of force relates to self-defense: In Article 51, the charter says, "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security."
Here again, this doesn’t offer much to advocates of U.S. intervention in Syria: Syria hasn’t staged any armed attacks against the United States, and it seems most unlikely to do so in the foreseeable future. Syrian President Bashar al-Assad may be a vicious autocrat, but he’s plenty smart enough to refrain from giving Washington a good excuse to intervene.
There’s one other implied exception to the prohibition on using force inside a sovereign state: By definition, it’s not a violation of sovereignty if a state consents to another state’s use of force inside its borders. But this still doesn’t seem to help us much. Given the frequently reiterated U.S. insistence that Assad must go, Assad is hardly likely to invite American forces in to preside over his political (and perhaps literal) demise.
So that’s that. A straight read of the applicable international law makes it painfully clear: The United States seems to have no lawful basis for using military force inside Syria.
But in international law, "that’s that" isn’t always the end of the story. When you can’t get legality, you can always go for its somewhat disreputable but appealing cousin, "legitimacy."
Here’s how you could go about making the quasi-legal case for intervention in Syria, with arguments listed in ascending order of persuasiveness.
1. Mendacious literalism.
You could start by trying to reinterpret the language of the U.N. Charter itself. The charter prohibits "the threat or use of force against the territorial integrity or political independence of any state," so maybe you could argue that any U.S. military intervention would not be against Syria’s territorial integrity or its political independence, but would, on the contrary, be undertaken for the purpose of shoring up both. After all, doesn’t the two-year old civil war — which has caused massive refugee flows and has already led to foreign intervention by non-state actors such as Hezbollah — threaten to destroy Syria altogether? Wouldn’t a U.S. intervention designed solely to end the conflict and foster the creation of a functional, non-predatory Syrian state actually be good for Syria?
Nice try! It’s a clever argument, but one that has been soundly rejected for many decades by scholars and states alike. That’s because any state resorting to force, for however self-interested a reason, would presumably be happy to claim that military intervention inside another sovereign was really, truly meant to shore up the intervenee’s independence and territorial integrity. (C.f. "We had to destroy the village in order to save it.") It’s an interpretation of the U.N. Charter that would render the prohibition on the use of force entirely meaningless.
2. Self-defense, revisited.
Next, you could try to frame intervention in Syria as a permissible act of self-defense. This claim might rest on a variety of bases. You could borrow an argument from the drone strike arsenal, for instance, and assert that the al-Nusra Front, an al Qaeda-linked faction of the Syrian insurgency, is a lawful target in the U.S. armed conflict with al Qaeda and its associates. Heck, the United States has made this argument with regard to drone strikes against al-Shabab in Somalia and assorted militants in Pakistan and Yemen, so why not try it in Syria? Or, if you’re not so comfortable with the "war on AQ and its associates" framework, you could just argue that al-Nusra presents an imminent threat to the United States, especially when chemical weapons appear to be sloshing all over the place.
Unfortunately, there are significant problems with this approach. It’s already been much criticized — not to say lambasted — when used to justify the expansion of U.S. "targeted killings" and probably would go over even less well with the international community if used to justify a much larger-scale military intervention. Also, it only gets us to military action against the al-Nusra Front — and AQ associates or not, these guys are currently fighting against Assad, who’s the real bad guy when it comes to slaughtering civilians. The enemy of our enemy might not be our friend, but they’re still causing confusion to our enemy. In the near term, only going after the al-Nusra Front would be doing Assad a big favor. So scrap that.
Maybe Hezbollah would make a better bad guy than the al-Nusra Front. A terrorist’s a terrorist, right? And while we can’t really argue that Hezbollah’s an AQ affiliate — far from it — it could still pose an imminent threat to the United States, couldn’t it?
Okay, not so much. At the moment, it’s hard to make the self-defense argument pass the smell test. No one wants an Iraq redux.
But maybe Hezbollah poses an imminent threat to our good friend, Israel. That one’s not such a stretch: Hezbollah has a long history of attacks against Israel and Israeli nationals. Israel has already invoked self-defense as justification for its own missile strikes against targets inside Syria, arguing that the strikes were needed to prevent Hezbollah from acquiring advanced weapons that might be used against Israeli targets. And maybe Israel needs our help defending itself against Hezbollah, a terrorist group that Assad is clearly harboring. We don’t have a mutual defense treaty with Israel, but that doesn’t mean we couldn’t use force in collective self-defense against Hezbollah and Assad’s forces if requested by Israel.
That’s a slightly stronger argument, but still not a big winner. The use of force in self-defense must be both necessary and proportionate to the threat posed, and it’s far from clear, after the Iraq War, that any states other than the United States and Israel would consider a full-scale military intervention in Syria justified under self-defense principles. With more than 90,000 Syrians already dead as a result of the Syrian conflict, claiming that we need to intervene militarily to protect Israel would likely be greeted by a global howl of protest. We already have plenty of enemies in the Middle East. Making even more would be a bad idea.
If Turkey or Jordan could claim to be threatened by the Assad regime — perhaps by the spread of violence or chemical weapons — coming to their defense might be a little more palatable, politically. At the moment, though, it would be quite a stretch from a legal perspective.
3. Would the real Syrian government please stand up?
But we’re not out of arguments yet. Try this one on for size: The use of force inside a sovereign state is lawful if that state consents, so maybe we can argue that Syria — the real Syria, really — actually does consent to U.S. military intervention. At a minimum, Assad’s attacks on his own civilian population and significant popular support for the rebel movement raise legitimate questions about who can truly be said to represent the Syrian people.
The Syrian people have an internationally acknowledged right to self-determination, and although the Assad regime still holds Syria’s seat at the United Nations, the Arab League has given Syria’s Arab League seat to the Syrian National Coalition (SNC), an organization comprised of the more "moderate" Syrian opposition groups (e.g., the al-Nusra Front isn’t part of the SNC). The United States and nearly 100 other states have recognized the SNC as the "legitimate representative" of the Syrian people. As a result, it’s not completely crazy to assert that the SNC, rather than the Assad regime, is the entity with the ability to consent to foreign military intervention.
Not completely crazy — but also not completely solid, as arguments go. The SNC is not particularly organized, and not particularly elected, either (as in, not at all elected — though this doesn’t differentiate the SNC leadership from Assad, who was "elected" by the Syrian people in much the same way Joseph Stalin was elected by the Russian people). No one really knows what "the Syrian people" want. And then there’s that U.N. seat thing. Recognizing the Syrian National Coalition as the "legitimate representative" of the Syrian people is not, as a legal matter, the same thing as recognizing the SNC as the "government" of Syria. Most legal commentators would probably argue that until the U.N. General Assembly votes to give Syria’s U.N. seat to the opposition — and/or until a substantial majority of U.N. member states have each recognized the Syrian National Coalition as Syria’s government — claims that the SNC can "consent" to foreign military intervention remain dubious.
4. The "responsibility to protect."
Here’s the best trump card: In the end, law is not the same as morality.
In 1999, the U.N. Security Council was similarly deadlocked on how to respond to the mounting violence in Kosovo, and the United States and other NATO member states went ahead — without Security Council authorization — and intervened militarily to prevent ethnic cleansing. NATO authorities simply refrained from offering a legal theory justifying the use of force. But though few in the international community doubted that the NATO intervention was, at best, of dubious legality and constituted, at worst, a clear violation of the U.N. Charter and international law, few were prepared to condemn the intervention outright: After all, it appeared to have saved thousands of lives. Even the Security Council gave it grudging retroactive blessing.
Since that time, the "responsibility to protect" has gained traction. That concept — first advanced by the International Commission on Intervention and State Sovereignty (ICISS), an ad hoc commission of experts convened by the Canadian government — is premised on the idea that "State sovereignty implies responsibility…. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect."
While ICISS’s initial 2001 report urged that action undertaken in the name of the responsibility to protect should, if possible, be authorized by the Security Council, it made it clear that the council could not be considered the ultimate and sole arbiter. True, states might seek to misuse the concept to justify self-interested wars. But ICISS worried just as much about Security Council paralysis. If the Security Council "fails to discharge its responsibility to protect in conscience-shocking situations crying out for action," asserted the ICISS report, concerned states "may not rule out other means to meet the gravity and urgency of that situation."
The responsibility-to-protect concept was later embraced to a significant degree by the Security Council itself, although the U.N. version limited the responsibility to protect to situations involving "genocide, war crimes, ethnic cleansing and crimes against humanity" — and, unsurprisingly, focused solely on Security Council-endorsed action.
From a moral perspective, of course, the Security Council is irrelevant. The council itself is an artifact of the post-World War II political power structure, and few would defend its anachronistic and unrepresentative voting rules (aside from the five states that benefit from them).
States — and international institutions — are artificial constructs, but human beings are not. What legitimacy can a state have if it preys upon its own people, and what legitimacy can the Security Council have if it fails to act to prevent war crimes and crimes against humanity?
5. Legality and Legitimacy
At the moment, "conscience shocking" as we may find the situation in Syria, the international law justifications for military intervention are weak. If the United States decides to intervene militarily in Syria, it will be taking a legal risk.
But this still doesn’t tell us whether or not we should intervene in Syria. The ICISS report emphasized that to avoid abuse of the responsibility to protect, those arguing for military action premised on the concept needed to show that the intervention would be consistent with the traditional principles of "just war" theory: "just cause," "right intention," "last resort," "proportional means," "reasonable prospects," and "right authority." Translated, that basically means we shouldn’t use force in Syria unless we have genuinely humanitarian motives, we have genuinely exhausted non-military ways to resolve the crisis, we’ve done everything reasonably possible to garner international consensus, and — perhaps most important of all — we reasonably believe that our intervention will do the Syrian people more good than harm. If we can persuade the world that these criteria are satisfied, history will likely judge a U.S. military intervention kindly. If we can’t, we’ll be judged far more harshly by allies and enemies alike.
In a 1973 article reflecting on the bloodbath surrounding Bangladeshi efforts to become independent from Pakistan, legal scholars Thomas Franck and Nigel Rodley argued that military intervention for humanitarian reasons "belongs in the realm not of law but of moral choice, which nations, like individuals, must sometimes make."
Forty years later, there’s still not much more to be said.