Is Intervention in Syria Legal? Does Obama Care?

The Russian foreign minister Sergei Lavrov said on Monday that “the use of force without the approval of the United Nations Security Council is a very grave violation of international law.” He used these words to argue against American and other outside intervention against the Syrian government after its chemical weapons massacre. He also stepped into one of the most hotly contested topics in international law: is it permissible for governments to use force against another country to prevent human rights atrocities?

There are three views on the question and all are on display in the current debates over Syria. As President Obama decides on an American response, he too will have to take a position on these issues.

Lavrov expressed a common view of international law: the U.N. Charter forbids countries from “the threat or use of force against the territorial integrity or political independence of any state.” This makes war illegal. It is a descendant of the Kellogg-Briand Pact of 1928, the first general treaty to outlaw war.

Having spent a decade as Ambassador to the United Nations, Lavrov knows well that the U.N. Charter makes no allowance for the intentions of the states involved. Except in self-defense, the Charter outlaws all war-making by states, and is unconcerned with the motivation of the states involved. Whether a state intends to save a population from genocide, to punish a neighbor for an insult, or to gain territory by aggression, the Charter treats all the same. All are forbidden by Article 2(4).

The Charter instead creates a collective process centered on the U.N. Security Council, which has the authority to marshal the collective resources of the world’s governments “in defense of international peace and security.” This was the legal justification for the removal of Iraq from Kuwait in 1989. Like Hobbes’s Leviathan, the United Nations takes from states their autonomy over the use of force (except in self-defense) and gives it to a centralized agent that acts collectively on their behalf. This is sometimes referred to as “pooling sovereignty.”

This reading of the law on war serves Lavrov’s strategic purposes well. The Security Council cannot take collective action without the approval of 9 of its 15 members, including “the concurring votes of the permanent members.” Given its veto in the Council, Russia can be confident that no collective U.N. action will be taken without its approval. The Russian position leads to a situation where neither the Council acting collectively nor states acting individually can use force legally under the Charter against Syria, no matter the Assad regime’s depredations against the Syrian people.

Speaking on the same day as Lavrov, William Hague, the U.K. foreign minister and another seasoned diplomat, offered a second perspective on the legality of the use of force in Syria. He stated: “Is it possible to respond to chemical weapons without complete unity on the Council? I would argue yes it is, otherwise it might be impossible to respond to such outrages, such crimes, and I don’t think this is an acceptable situation.”

Hague’s position reflects a competing and contradictory understanding of international law on the use of force. Chemical weapons and comparable “outrages” are different, he suggests. In the face of such crimes, outside governments are allowed, and perhaps even required, to intervene. This view has been growing in strength since the Rwandan genocide in 1994, but has its origins in the Nuremberg trials after World War II.

Where a humanitarian disaster is unfolding, the argument goes, the international community may have a responsibility to take action to stop it. This position draws a distinction between the use of force for humanitarian as opposed to other purposes. It adds a third kind of war that is considered lawful to the portfolio of international legal options: in addition to self-defense and unanimous Council approval, war is legal if it is used to prevent mass humanitarian disasters. This has come to be known as the Responsibility to Protect (R2P) and is reflected in the British position on Syria.

Hague’s statement also reveals a normative tautology common among liberal internationalists—if humanitarian intervention is found to be illegal, then there will be no way to respond to “such outrages, such crimes.” Such an outcome would be unacceptable. So Hague works backwards from his desired policy (responding to the outrage) to infer that international law properly understood cannot possibly make such a policy illegal. Rather than dealing with international law as it is, he assumes that international law is by its nature benevolent, and therefore cannot possibly outlaw what he wants to do, which he assumes is also desirable.

Both the British and Russians maintain that their preferred policy on Syria fits within international law. They just disagree on what the law allows and forbids.

The French introduce a third possibility: humanitarian intervention in Syria may indeed be illegal but it should be pursued anyway. Laurent Fabius, the French foreign minister, said on Monday that, “international law is defined by the United Nations, but at the same time there are countries that are blocking [military action]. . . In certain circumstances we can bypass it, but international law does exist.”

In an air campaign in Kosovo in 1999, NATO bombed Yugoslavia for almost three months to stop President Milosovic’s depredations against the Kosovar population. It worked, though at a great cost. The campaign rested on no legal authority other than NATO’s claims that it was a morally and politically defensible action. In words made famous by the Independent Commission on Kosovo after the fact, the war was widely considered to be “illegal but legitimate.”

The notion that intervention might be illegal but is still advisable—Fabius’s position—goes against the grain of international law, in which the duty to comply with the law is often taken to be paramount. Madeline Albright famously defined “rogue states” as those “who, for one reason or another, do not feel that they should cooperate with the rules that have been established” by international law. Yet this position is also not unprecedented either in domestic or international affairs. Rule breaking is often considered morally justified when the law is unjust: civil disobedience and even revolution are premised on the fact that the law may be wrong. Much of the so-called “Arab spring” has been fueled by this form of extra-legal contestation. Less dramatically, all legal systems include some concept of mitigating circumstances in the commission of a crime. These reflect the reality that law and justice do not naturally coincide. The same is true in international affairs.

The British, French, and Russian statements illustrate three distinct positions on humanitarian intervention. They also suggest three different philosophies of international law.

The Russian position is that international law is defined by the black-letter law of international treaties—in this case the U.N. Charter. This is the legal formalist’s take on international affairs, and according to Lavrov, it makes intervention illegal. The British position is that the text of the Charter should be read in light of subsequent state practice and today’s needs and challenges. As governments and others have increasingly claimed that humanitarian war is permitted, it is gradually becoming so. This suggests that the content of law changes as it is used, such that the ban on war in the U.N. Charter has been amended by an emerging consensus on the desirability of humanitarian intervention. The French agree with the Russian view of the law, but reach the opposite policy conclusion. The law may oppose it, but in this view intervention is morally and politically right.

Where among these positions will we find the Obama administration, assuming that it decides to proceed with military action against Syria without U.N. approval? Secretary Kerry’s statement on Monday was apparently designed to set the stage for an American military response, and was accompanied by unnamed U.S. officials who told the New York Times that the United States had given up trying to get Council approval.

The American position has included elements of all three positions. Hedging his bets, Obama has sought U.N. approval for military action, while hinting that he may act even without it, and revealing few details on how he interprets international law in these circumstances. Having ruled out the Russian position, the United States will have to clarify whether it intends to break international law or argue that the law has changed to permit the use of force without Council approval—in other words, to decide between Hague and Fabius.

The latter would allow the United States to claim that it remains within the framework of international law, while still using force without Security Council approval. It will be left to others to determine whether such actions are “legal” or not.