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
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. …