First-year MA Candidate at SAIS Europe
On September 3 UN Secretary General Ban Ki-moon stated that the use of force in Syria will only be legal if it is in self-defence or undertaken with authorisation from the UN Security Council. Unfortunately however, such a view is both too simplistic and incomplete. As a matter of fact, legal opinion is divided and it is impossible to provide a definitive answer. In addition, there is no international court that could conclusively decide the matter.
The rules of international law regulating the use of force (ius ad bellum) can be subdivided into two parts based on the authority and purpose of the action taken. A unilateral use of force occurs when an individual state or a group of states acts on its own initiative. On the contrary, international law speaks of the collective use of force when force is used by a competent international organization such as the United Nations after reaching a collective decision.
Turning first to unilateral action, the starting point of every discussion is the 1945 Charter of the United Nations (UN Charter). Article 2(4) imposes a general prohibition on the unilateral use of force – a principle which is universally accepted by the international community. However, there remains no consensus on its scope. The ‘restrictive’ school regards Article 2(4) as imposing a total and uniform ban, subject to the explicit exceptions for self-defence (Article 51) and authorization by the UN Security Council (Article 42). In contrast, the ‘permissive’ school takes a much broader approach by permitting reference to the pre-1945 rules in determining the ambit of the ban.
The most likely argument for the legality of the use of force in Syria would be humanitarian intervention, which already featured prominently in the Kosovo (NATO, 1999) and East Timor (UNTAET, 1999) crises. It describes a situation where State A intervenes in State B with the publicly-declared aim of ending human-rights violations perpetrated by State B against its own people.
Since such a humanitarian intervention is not primarily for the protection of State A’s nationals, it is consequently impossible to justify on the basis of self-defence. In turn, this would entail the acceptance of the ‘permissive’ view, which currently does not prevail. The main problem, however, is that there is very little state practice to support a new rule of customary international law. For instance, 134 states rejected the ‘right of humanitarian intervention’ in the Declaration of the G-77 South Summit in 2000.
Whether an intervention on these grounds should be permissible is a different issue. Two well-known arguments in favor are the following: When the collective security system under Art. 42 of the UN Charter has broken down, it would seem morally problematic and contrary to the spirit and purpose of the UN to strictly adhere to a restrictive interpretation of Article 2(4) – particularly in a case of substantial human rights violations (‘excusable breach’ of the UN Charter).
The second argument is that Article 2(4) should be interpreted in a more restrictive manner in that does not extend to uses of force to protect human rights. This would give more effect to the final sentence in Article 2(4) which states that the use of force against “the territorial integrity or political independence of another State or in a manner inconsistent with the purposes of the UN” is prohibited. The biggest problem with the latter argument, however, is that it is inconsistent with state practice and the travaux préparatoires of the UN Charter. Nonetheless, if this doctrine did exist, it would also become necessary to set clear limitations – e.g. that the violations are substantial, the motive of intervention is protection of human rights and that it is a last resort. The duration and intensity of the intervention should further be governed by the principle of proportionality.
There is also another, alternative way of looking at humanitarian interventions which stems from a United Nations initiative established in 2005 – the so-called ‘responsibility to protect’ or R2P. It is an emerging set of principles which is based on the completely novel understanding of state sovereignty as a responsibility rather than a right.
Sovereignty no longer protects States from foreign interference – they are now also accountable to the international community for the welfare of their people. If a state fails to protect its population from genocide, war crimes, crimes against humanity and ethnic cleansing, then the international community has the responsibility to use appropriate measures to end the violence. Military action is a measure of last resort. Unfortunately, just like the humanitarian intervention argument, the R2P doctrine is equally difficult to reconcile with Article 2(4).
The collective use of force is concerned with the use of force on behalf of the international community and is in addition to any rights that a state has under the unilateral use of force rules discussed above. Under its Chapter VII powers (especially Article 42 of the UN Charter), the United Nations Security Council is able to sanction the use of force. However, given that Russia is permanent member of the Security Council and therefore has a power to veto any decision, it currently remains highly unlikely that there will be UN-backed military action against Syria. Consequently, there is no need to discuss the collective use of force at this point in time.
In conclusion, it would appear that the current position is following: The use of force is only legal if it is in self-defense or undertaken with authorization from the UN Security Council. However, if both state practice changes and the UN puts more emphasis on its R2P initiative, a different attitude may be taken towards Article 2(4), thus permitting a more expansive interpretation to include humanitarian interventions.