US Intervention in Syria Must Be Legitimate in Eyes of International Law

Article excerpt

Everyone seems to agree that the situation in Syria is unimaginably horrific and heartrending. But the consensus seems to break down when the subject of solutions is broached. Now, the reported use of chemical weapons (sarin gas) raises the stakes of the crisis - and outside intervention - considerably.

President Obama, who warned that the use of chemical weapons would be a "game changer," is likely considering some kind of response beyond the nonlethal aid already given to Syria's rebels. Alleged Israeli strikes on Damascus over the weekend may complicate matters. And many questions remain. One of the most important deals with whether US intervention in Syria would be "legal" under the UN Charter without Security Council backing.

And that legality matters. It can determine the costs of and allies involved in an intervention, set precedents for future military campaigns, and can increase or decrease the likelihood of future wars in general.

Even if the Security Council doesn't sanction a Syrian intervention, any move by the United States to "put boots on the ground" in Syria could still be well supported by the international laws of war - and the demands of the UN Charter. And intervention to protect Syrian civilians may finally pressure Russia to finally give UN Security Council support for such a move.

Several lawmakers, including Sen. Lindsey Graham (R) of South Carolina, Claire McCaskill (D) of Missouri, and the chairman of the House Intelligence Committee, Mike Rogers (R) of Michigan, are either calling on the president to put "boots on the ground" or refusing to rule that out as an option. Doing so, they argue, will increase the pressure on the Syrian regime and demonstrate to Iran that we mean what we say.

However, consistent vetoes from Russia at the UN Security Council on further action in Syria make it unlikely the international body will back any military intervention there - at least for the time being. This is unfortunate, as the UN is the most prominent international organization and therefore shouldn't be consigned to irrelevance as Syria is turned into a charnel house.

But action outside the framework of the UN - i.e., unilateral action - appears increasingly likely. Many will argue that the use of force in the absence of Security Council authorization (other than self-defense) is illegal; others will stress the primacy of human rights. It might be that the absence of Security Council authorization will render any operation illegal under international law, but that same law (including the UN Charter) obligates member states to act in the face of mass atrocities and large-scale human suffering.

If Mr. Obama and other international leaders pursue military intervention in Syria, they will ideally be guided by a concept known within the law of war as "jus ad bellum." That is, the conditions under which a state is justified in resorting to war in the first place.

In order for the use of force to be justified, the following five criteria must be consulted: the seriousness of the harm; the primary purpose of the proposed action; the existence and viability of peaceful alternatives; the proportionality of the response; and, finally, the balance of consequences.

The seriousness of harm. In the case of Syria, the world is witnessing savagery and butchery the likes of which we haven't seen since Rwanda. More than 70,000 people have been killed; civilians have been deliberately targeted; and the number of internally displaced persons now stands at more than 3 million, a situation the UN high commissioner for refugees calls the worst humanitarian disaster since the end of the cold war. This element, in other words, is not in doubt.

The primary purpose. The primary purpose of the intervention must be to halt the suffering. To be sure, ancillary considerations (for example deterring Iran, a strong ally of the Assad regime in Syria) can be present. But these considerations must not constitute the crux of the operation. …