The drumbeat to war in Syria (or at least cruise missile strikes by the United
States and some allies) has become unmistakable.
As the clock ticks down
to the decisive point, there is further indication that a key aspect of the
final days leading up to American intervention would be the US presenting, among
other things, a legal case for war.
To some commentators, this idea is
Those against intervention say there is no
justification under international law for the US to intervene without UN
Security Council authorization (a non-starter due to Russian/Chinese vetos)
because it is an internal conflict of one UN member state that has not attacked
any other UN member states (they downplay minor Syrian attacks on Turkey and
Without such an armed attack, no right to self-defense or
collective defense can be invoked, they say.
But several legal
justifications to the contrary have been floating around the media and within
Some have suggested that US intervention in Kosovo in 1999 on
humanitarian grounds had set an international legal precedent for doing the same
in Syria. (The more recent US intervention in Libya had at least partial UN
Security Council approval and widespread international support.) Opposing
commentators have observed that US officials took pains at the time to argue the
uniqueness of the Kosovo situation, wanting to prevent it from serving as a
precedent and preferring to view it as an extreme case in which international
law would turn a blind eye to intervene without changing the rules of the
Regardless of this distinction, it is likely that Kosovo,
explicitly or implicitly, will be part of the justification.
then at least the same “everything but the kitchen sink” strategy could be used
– listing an abundance of factors that, when stated collectively, make
non-intervention nearly unthinkable.
Another much-discussed doctrine is
R2P, or Responsibility to Protect. Rather than saying that nations such as the
US have the right to infringe on another state’s sovereignty because of a dire
human-rights situation, advocates of R2P could claim that Syria has abdicated
its sovereignty by failing to protect (or by actively decimating) its own
The next step would be that other nations have a
responsibility to step in and protect those segments of the population that
An alternative invocation of R2P or a variation of the
argument could be that Syria had abdicated its responsibility to prevent the use
of chemical weapons within its sovereign territory.
Whether the stress is
on humanitarian suffering or on preventing a trend whereby other nations would
feel entitled to use chemical weapons could be significant for future
situations. But it is unlikely that the US would base its decision solely on R2P
without additional arguments.
While responsibility to protect was
accepted by a UN conference as a “norm” in 2005, a norm is essentially a way of
thinking and attacking that is becoming more common and that many nations hope
will someday become fully accepted as binding law.
In the same year, the
UN explicitly failed to endorse a push to allow military action outside of UN
Security Council authorization to promote arms control and prevent a
The list of justifications is likely to include:
Syrian attacks on Turkey have triggered collective self-defense obligations by
other NATO states; Syrian chemicalweapons use could accidentally cross Syrian
borders, impacting other states; potential transfer of chemical weapons to
Hezbollah could lead to further national security threats; and recognizing the
Friends of Syria group as the sole representative of the Syrian people, as
France has done, could sidestep any violation of sovereignty or make it more
Some variation of a novel argument made by an American
academic could also be thrown into the mix, although it, too, is unlikely to
The approach requires a creative reading of Article 52 of
the UN Charter, which deals with action by regional organizations as opposed to
the entire UN Security Council.
While, conventionally, Article 52 is read
to authorize regional action only on behalf of the UN Security Council, the
argument goes that regional groups are merely limited from undertaking Security
Council “enforcement action” and not from taking “regional action.” Linguistic
interpretations aside, the premise of the argument is that where the UN Security
Council is deadlocked on dealing with a clear and ongoing massive violation of
the UN Charter’s goal of upholding peace and security, it cannot be illegal and
could even be desirable for a regional group, such as NATO, to
Underneath the “kitchen sink” list of arguments likely to be
presented by the US, it is framing this common sense point – that under dire
circumstances the world must act regardless of the UN – as having a legal basis
that could prove most effective.