Creating a case defending Western intervention in the fight against Assad

Analysis: A ‘kitchen sink’ list of arguments would provide Washington with legal footing for any actions in Syria.

By
August 28, 2013 04:33
4 minute read.
Syrian civilians take part in a candlelight vigil in solidarity with Syrian civilians killed.

syrian mourn those killed in chemical weapons attack 370. (photo credit: REUTERS)

 
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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.

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To some commentators, this idea is inherently contradictory.

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 Israel).

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 academia.

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 game.



Regardless of this distinction, it is likely that Kosovo, explicitly or implicitly, will be part of the justification.

If implicit, 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 citizenry.

The next step would be that other nations have a responsibility to step in and protect those segments of the population that Syria cannot.

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 humanitarian crisis.

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 ambiguous.

Some variation of a novel argument made by an American academic could also be thrown into the mix, although it, too, is unlikely to stand alone.

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 intervene.

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.

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