Of Law and Morals: The Use of Force and the Syrian Conflict

I. Introduction

With regards to the internal conflict in Syria, the optimistic nomenclature of an ‘Arab Spring’ has fallen into desuetude. A series of protests against the Assad regime in Syria in March 2011 escalated into an armed conflict between governmental forces and dispersed rebel groups. As of March 2014, over 146,000 people have been reported dead since the start of the conflict.1 A UN report revealed a range of grave human rights and humanitarian law violations, particularly indiscriminately against women and children, attributed to both Assad’s forces and rebel groups.2 A chemical weapons attack by Assad’s government in August 2013 received global attention, resulting in State propositions of the use of force in Syria to prevent a further escalation of the conflict.

This piece will discuss the application of the law on the use of force with regards to military intervention in Syria, examining the legal and theoretical limitations of the law pertaining to the internal conflict. Firstly, the potential application of legal exceptions to the UN Charter prohibition on the threat or use of force against a State will be considered. Finding no legal basis for military intervention in the absence of Security Council authorisation, the question arises as to whether unilateral military intervention ought to be undertaken, albeit illegally, examining the controversial doctrine of humanitarian intervention as well as moral or legitimate justifications. The ongoing crisis in Syria starkly highlights the limitations of the current law on the use of force in the circumstances of an intrastate conflict exacerbated by contemporary weapons, bringing to the forefront the competing interests of adherence to the principle of State sovereignty and the protection of individuals from human rights and humanitarian violations.

 

II. A Legal Basis

Article 2(4) of the UN Charter provides that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”3

This prohibition on the use of force is a cornerstone of the international legal system.4 The legal exceptions to the use of force by a State against another requires Security Council authorisation, self-defence, or consent by the relevant governmental authority.

 

A. Security Council Authorisation

Under Chapter VII of the Charter, the Security Council may authorise the use of force. Although the Council has passed a resolution concerning humanitarian aid in Syria5, it has found itself at a stalemate with regards to the authorisation of the use of force. There is sufficient basis for such authorisation concerning the ‘maintenance of international peace and security.’ One example of a number of circumstances allowing for such a basis is found in the overflow of refugees in to neighbouring countries such as Jordan and Lebanon. Such a flow of refugees has previously been treated as a threat to international peace and security.6

Considering the internal nature of the conflict and violations of human rights and humanitarian law committed by Assad, the notion of the ‘responsibility to protect’ may be applied to justify intervention through a Security Resolution. The emerging doctrine, manifested in the 2005 World Summit Outcome Document, has formed the basis of previous resolutions warranting intervention, as in Libya in 2011.7 It is submitted that the human rights violations in Syria warrant an application of this doctrine in the drafting of a resolution. The resolution authorising humanitarian aid in Syria reinforces principles of sovereignty and territorial integrity8, and is additionally arguably contingent upon the cooperation of the Assad regime. The veto power employed by Russia and China continues to depict a prioritisation of territorial integrity and State sovereignty above such a purported responsibility to a State’s citizens in the related circumstances, preventing the authorisation of the use of force in Syria.

B. Self-Defence

A second exception to Article 2(4) is found in Article 51 of the Charter which provides all States with the “inherent right to individual or collective self-defence.”9 In response to a reported chemical weapon attack on civilians by the Assad regime in August 2013, Obama asked the US Congress to vote in favour of military action in Syria primarily on the purported basis of the danger it presents to US national security and to nations neighbouring Syria.10 It is submitted that any individual or collective self-defence argument implied by Obama’s statements is unlawful with regards to the current conflict in Syria.

Although Obama argued a threat to ‘national security’, no such threat has yet manifested itself. No armed attack was reportedly conducted outside of Syria’s borders warranting individual self-defence.

In its Nicaragua Judgement, the ICJ set out the preconditions of collective self-defence. The legitimate use of force in collective self-defence under Article 51 of the Charter must be preceded by an armed attack against a state and an express request from the victim State for such forceful assistance from the third-party State.11 Neither of the preconditions manifest themselves in the situation in Syria. Despite a reported increased instability in neighbouring countries and an outpouring of refugees causing economic and political constraints on countries including Jordan and Lebanon, this cannot be stretched to constitute an ‘armed attack’ or imminent threat to legitimise the use of force in the region. Obama’s concern with such instability would further find itself unsubstantiated in the case of an armed attack without an express request from a victim state. It is therefore submitted that no legal basis can exist for the invocation of Article 51 as an exception to the prohibition of the use of force.

C. Consent: Providing Military Assistance

Intervention on behalf of the government of the State is allowable in international law12, however aid to rebel forces is not, as affirmed by the ICJ in its Nicaragua Judgement13 and Congo v Uganda Judgement.14 If the status of the rebels is considered to be equatable to that of a governmental authority, as was the case with Libya’s National Transitional Council in 2011, intervention at the party’s request would be legal.

Obama has stated that the US recognises the Syrian National Council as a “legitimate representative” of the Syrian people.15 Despite a statement of ‘legitimacy’ no clear indication has purported towards the attribution of an authoritative status to the rebel groups in international law. A recent Security Council resolution on the conflict continues to make reference to the ‘Syrian authorities’ as distinguished from the ‘armed groups.’16 In consideration of the widely dispersed and unorganised groups indicated in past UN reports17, the meeting of a firm test of effective control18 for the purpose of amounting to a governmental authority is not realistic. The question is not one of the nature of a pro-democratic opposition group, but rather the legal status of the group for the purpose of a State providing aid. Expounding the principles of non-intervention in the Nicaragua Judgement, the ICJ made clear the illegality of a State’s intervention in the internal affairs of another State by providing aid to an armed rebel group.19 The current situation in Syria does not allow for foreign military assistance to an opposition group.

 III. The Doctrine of Humanitarian Intervention

J. L. Holzgrefe defines humanitarian intervention as “the threat or use of force across state borders by a state (or group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied.”20 The doctrine of humanitarian intervention is a normatively controversial basis for unilateral State intervention, if unauthorised by the Security Council. The UK’s legal position propounded the use of force in Syria pursuant to the doctrine of humanitarian intervention.21 This was contingent upon three criteria pertaining to extreme humanitarian distress, absence of a practicable alternative, and a necessary and proportionate application of the use of force. The report shows the situation in Syria to satisfy the criteria. However, this position on the doctrine has not found legal support in other state practice or sources of international law. A more comprehensive set of criteria was provided by Reisman22, which the situation in Syria fails to meet.

The principle of non-intervention in a State’s internal affairs continues to characterise the law on the use of force, as evident from the ICJ’s Nicaragua Judgement.23 It is submitted that unauthorised intervention pursuant to the UK’s three-fold criteria would be unlawful. Reisman’s criteria take into consideration the potential consequences of the unilateral use of force, providing a higher threshold accordingly. However, neither of the proposed criteria provides legal justification for the use of force. The question turns as to whether intervention ought to be undertaken in the absence of a clear legal basis for doing so.

IV. A Legitimate or Moral Basis?

With regards to NATO’s controversial intervention in Kosovo, the Goldstone Commission report advocates humanitarian intervention by a coalition of states as an illegal but a legitimate use of force.24 In the circumstances of grave human rights violations in an internal conflict, the argument is put forward that illegal action is preferred to no action at all. Franck supports this reasoning in his ‘legal exception’ argument by which the use of force may be employed ‘legitimately’ albeit illegally.25 A similar view is supported by Schachter, who contends that in the absence of Security Council authorisation, force may be employed to end human rights atrocities “when the necessity is evident and the humanitarian intention is clear” and the illegal action will consequently be “pardoned.”26 However, it is submitted that this moral purview of the unilateral use of force is not sustainable; respect of the principles of State sovereignty must continue and Security Council authorisation must not be circumvented in order to prevent exacerbating instability.

Franck presents the argument that the legal order should not find itself an “accomplice to moral depravity” and that violation of Art 2(4) is legitimate in the pursuit of a common sense of moral justice.27 However, this purview undermines the prohibition on the use of force and its contiguous respect for State sovereignty and territorial integrity. As Roberts argues, the use of force is not illegal pursuant to a ‘technical rule’, but due to its status as a fundamental Charter obligation.28

The prosaic portrayal of moral justifications falls apart in light of the potential adverse consequences of external intervention. The rebel groups in Syria are diverse and dispersed throughout the nation29 and additional military force may serve to exacerbate, not improve, the humanitarian situation. Furthermore, intervention must be seen in the context of the volatile politics of the Middle East. The Security Council has previously invoked policy-based restrictions in this context, as evident in the resolution authorising the use of force by “Member States co-operating with the Government of Kuwait.”30 Such normative limitations by clear rules can prevent a spillover of the internal conflict when an external force intervenes. Circumventing the Security Council precipitates a high degree of uncertainty. As Reisman states

“Uncertainty…is always an invitation to adventurism; adventurism with highly

destructive and non-discriminating weapons is a particularly frightful prospect.”31

In light of Syria’s geography and the contemporary context of chemical weapons, such uncertainty should not be taken lightly.

The Council’s decision not to impose forceful intervention as a result of a veto power must not be viewed as paralysis.32 Falk supports the use of a veto by a member “because it believes force would be inappropriate” as “precisely the role for which the veto was intended.”33 Inaction should not provide a green-light for unilateral State action which bears the risk of a more powerful State invoking control upon another. The sovereignty of Syria and the legitimate power which Assad’s government continues to hold over Syrian territory should not be sidestepped by one State’s decision to do so. The UN’s collective security system finds itself facing a challenge with regards to the use of force in this internal conflict, but the system should not be circumvented. As Schmitt states, “he who invokes humanity wants to cheat.”34

Conclusion

Any unilateral military intervention in the internal Syrian conflict, in the absence of Security Council authorisation, will be unlawful. Humanitarian and moral arguments without an established legal basis bring to the foreground limitations in the law of the use of force with regards to purely internal conflicts. It is submitted that the unlawful but ‘legitimate’ use of force would allow a violator of an integral rule of the UN charter to act as an upholder of moral standards. This paradox is one which would undermine the Charter prohibition of the use of force. In Syria, the circumstances remain that Assad’s government is the sole legitimate governing body and armed groups are acting in rebellion. The limitations of the law on the use of force is starkly revealed with regards to the human rights violations being committed within a sovereign State. When the question arises whether or not a State’s internal violations of international law remain protected by principles of sovereignty and non-intervention, the current position of the law on the use of force responds in the affirmative.

Raneem Asad

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References

1 Syrian Observatory for Human Rights, More than 146,000 Dead Since the Start of the Syrian Conflict(13 March 2014) <http://syriahr.com/index.php?option=com_news&nid=16470&Itemid=2&task=displaynews#.U1WxzXn_7Un> accessed 27 March 2014.

2 UNSC Report of the Secretary-General on children and armed conflict in the Syrian Arab Republic(27 January 2014) UN Doc S/2014/31

3 Charter of the United Nations (adopted 26 June 1945, came into force 24 October 1945) art 2.

4 Andrew Clapham, Brierly’s Law of Nations (7th, OUP 2012) 450.

5 UNSC Res 2139 (22 February 2014) UN Doc S/RES/2139.

6 As in Rwanda: UNSC Res 918 (17 May 1994) UN Doc S/RES/918.

7 UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970.

8 UNSC Res 2139 (n 5).

9 Charter of the UN (n 3) art 51.

10 President Barack Obama, Statement by the President on Syria(Rose Garden, Washington, 31 August 2013) <http://www.whitehouse.gov/the-press-office/2013/08/31/statement-president-syria>.

11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Rep 14, 110.

12 ibid 126.

13 ibid 108.

14 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Merits) [2005] ICJ Rep 168, 226,227.

15 Devin Dwyer and Dana Hughes, ‘Obama Recognizes Syrian Opposition Group’ (ABC News 2012) <http://abcnews.go.com/Politics/OTUS/exclusive-president-obama-recognizes-syrian-opposition-group/story?id=17936599> accessed 01 April 2014

16 UNSC Res 2139 (n 5)

17 UNSC Rep 2014 (n 2).

18 Malcolm Shaw, International Law (6th, CUP 2008) 1151.

19 Nicaragua (n 11) 126.

20 J L Holzgrefe, The Humanitarian Intervention Debate’ in J L Holzgrefe and Robert O Keohane (eds), Humanitarian Intervention: Ethical, Legal and Political Dilemmas (1st, CUP, 2003) 18.

21 Prime Ministers Office, Chemical weapon use by Syrian regime: UK government legal position (2013).

22 W Michael Reisman,Humanitarian Intervention and Fledging Democracies[1994] 18 Fordham ILJ 794.

23 Nicaragua (n 11) 126.

24 Independent International Commission on Kosovo (The Goldstone CommissionKosovo Report: Conflict, International Response, Lessons Learned 4 (2000) 163-98.

25 Thomas M Franck, Recourse to Force (CUP 2002) 174-198.

26 Oscar Schachter, International Law in Theory and in Practice (2nd, Brill 1991) 126.

27 Franck (n 17) 178.

28 Anthea Roberts, ‘ Legality vs. Legitimacy: Can Uses of Force be Illegal but Justified?’ in P Alston and E Macdonald (eds), Human Rights, Intervention and the Use of Force (OUP 2008).

29 UNSC Rep (n 2).

30 UNSC Res 678 (29 November 1990) UN Docs S/RES/0678.

31 W Michael Reisman and Andrea Armstrong, ‘Claims to the Pre-Emptive Uses of Force: Some Trends and Projections and Their Implications for World Order’ in Michael Schmitt and Jelena Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines (Brill 2007) 110.

32 Roberts (n 20) 186.

33 R Falk Kosovo World Order, and the Future of International Law(199) 93 AJIL 847, 850.

34 Carl Schmitt, The Concept of the Political, (George Schwab tr, University of Chicago Press 1996) 54.


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