Even Britain’s Closest Friends Think Its Rationale for War Is Illegal

The British government asserted today that it has the legal authority to strike Syria because of the controversial doctrine of "humanitarian intervention." One small problem: That legal norm has never been accepted by the United States, the United Nations, and other key Western allies.

The government of British Prime Minister David Cameron argued in a short written report that the British government and other governments are legally permitted to launch a military attack against Syrian government targets in order to deter the Syrian government from using chemical weapons in the future. London is effectively arguing that such strikes could be undertaken without the approval of the United Nations Security Council, where Russia and China are almost certain to veto new proposals authorizing the use of force against the government of Syrian President Bashar al-Assad.

The British legal opinion comes as Barack Obama’s administration prepares to brief lawmakers today on a U.S. intelligence report that blames the Syrian government for a chemical weapons attack near Damascus this month that killed hundreds of civilians. The White House will use that report to make its own argument for the justification of striking Syria without U.N. backing. The United States has shifted a fifth Navy destroyer to the Mediterranean, and administration officials and lawmakers have said that missile strikes against Syria could begin within days.

Britain released the opinion a day after introducing a Security Council resolution authorizing the use of force against Syria in response to its alleged role in the chemical weapons attack near Damascus. Cameron’s government has released an intelligence assessment asserting that "it is highly likely that the [Syrian] regime was responsible" for an attack that caused "at least 350 fatalities." Other estimates by opposition activists have placed the death toll more than four times higher.

The British draft resolution, which is still under discussion by the Security Council’s five big powers, is all but certain to be vetoed by China and Russia if it is put to a vote, an act that is expected to be followed by a U.S.-led air attack against Syrian military targets.

"If action in the Security Council is blocked again, no practicable alternative would remain to the use of force to deter and degrade the capacity for the further use of chemical weapons by the Syrian regime," the report states. "In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention to strike specific targets with the aim of deterring and disrupting further such attacks would be necessary and proportionate and therefore legally justifiable."

The British government privately asserted the existence of a legal right to humanitarian intervention to justify the establishment of a no-fly zone in Iraq in the 1990s that was designed to protect the country’s Kurdish minority.

The United States and Britain initially argued that their creation of the no-fly zone — which was not explicitly approved by the U.N. Security Council — was justified by the need to implement a Security Council resolution calling for an end to the repression of Kurds. Britain later used a humanitarian intervention argument to justify NATO’s 1999 air campaign against Serbia in defense of ethnic Albanians in Kosovo, notes Steven R. Ratner, a professor at the University of Michigan Law School. That argument has never been accepted by NATO, the United Nations, or the United States, however, due to fears that the doctrine would be abused by countries like China and Russia to invade neighboring countries.

"It seems [the British] are testing the ground," Ratner told Turtle Bay. "If the United States bought into this, it would be a major change. The United States has never accepted the idea that any state can enforce any treaty by force, because it would hurt U.S. interests."

The United States, meanwhile, has been exploring a range of legal justifications for military action against Syria, including propositions that members of the international community have the right to use force to protect civilians or deter a rogue country from using chemical weapons. But former U.S. State Department lawyers from George W. Bush’s and Bill Clinton’s administrations say that the United States has never asserted that states can mount interventions unless they’re acting in self-defense or with the Security Council’s blessing.

The United States, of course, has frequently used force without the Security Council’s explicit blessing, including in Iraq in 2003 and in Kosovo in 1999. In the Iraq case, the United States argued that Iraq’s breach of resolutions dating back more than 12 years provided a legal basis. The United States never argued that its attack against Serbia in defense of the Kosovars was legal, only that it represented a "legitimate" response to mass killings.

Kal Raustiala, a professor of international law at the University of California, Los Angeles, said that British opinion rests on a "shockingly thin" legal foundation. "I think the U.S. position is wiser to say we’re going to just do it, but not justify in strict legal terms. The British laid out a template that could apply to a lot of cases."

"We sometimes accept law breaking and say OK after the fact," he added. In the Kosovo case, he said, "a lot of people felt, ‘OK, maybe this was necessary,’ but they were not comfortable making it a doctrine. That’s a loaded gun that lies around to be used in the future."

The emergence of new doctrines like the so-called "responsibility to protect," which argues that states are required to respond to mass atrocities, has built expectations that states should intervene in situations like the Syrian war. French President François Hollande invoked the responsibility-to-protect doctrine in making his case to "punish those who took the decision to harm the innocent." In a speech to French ambassadors Tuesday, Hollande suggested that international law has not kept pace with the emerging international consensus on the need to act to halt mass atrocities. "International law must evolve with the times. It cannot serve as an excuse to allow mass murder," he said.

Still, the responsibility-to-protect doctrine, which was approved by the world’s leaders at a 2005 summit, requires Security Council approval for military intervention. Raustiala said that the big powers’ invocation of responsibility to protect as the justification for intervening in Libya has damaged the doctrine’s international standing because it was used as the basis for toppling a government, not for simply protecting civilians.

U.N. Secretary-General Ban Ki-moon has already voiced skepticism about the wisdom of creating a new norm for the use of military action. "If there needs to be any such unilateral or military actions, we should remember that as secretary-general I would like to emphasize that it is the charter that provides the framework for action to ensure international peace and security," Ban said Wednesday at a news conference in The Hague with Dutch Foreign Minister Frans Timmermans. "The charter provides the framework for any action to be taken by any member state."

Follow me on Twitter: @columlynch