By Rebecca Lowe
Military intervention in Syria following the regime’s alleged use of chemical weapons would be illegal but potentially ‘legitimate’ under global humanitarian law, one of the world’s leading international lawyers has told IBA Global Insight.
Under international law, armed attack against another nation is illegal except in self-defence or with the authority of the UN Security Council (UNSC). However, the use of force for a humanitarian purpose – such as protecting civilians from abuses perpetuated by the state – has become recognised as ‘soft law’, and was used to justify the 1999 Kosovo intervention by NATO.
A resolution condemning NATO’s actions was put forward by Russia after the event, but was defeated by a vote of 13 to two. ‘This has been regarded as ex-post-facto approval of the action,’ says Richard Goldstone, former Chief Justice of the International Criminal Tribunal of Rwanda and the former Yugoslavia, who chaired the 2000 Independent International Commission on Kosovo. ‘In the present case, it could be argued that the military force is being used to protect the people of Syria from the future use of chemical weapons. That would very much depend on the efficacy of the force used and whether it would indeed deter such future use of such weapons.’
Goldstone adds: ‘If the intervention is calculated to prevent the future use of chemical weapons by the Syrian Government and any future regimes that might consider it, I would support such an intervention.’
Excerpt from keynote speech by Bernard Kouchner at the IBA Annual Conference 2012 (1:02)
‘...sometimes you have to break the law to change it...'
Founder, Médecins sans Frontières
In 2005 – following a report by the International Commission on Intervention and State Sovereignty, which came to broadly the same conclusions as the Kosovo Commission – UN member states agreed on a new ‘responsibility to protect’ principle. The norm, never cemented in law, allows for a last resort of military intervention under a series of strict conditions if a state commits genocide, war crimes, ethnic cleansing or crimes against humanity against civilians. However, unlike the Kosovo Commission proposals, such intervention could only take place with the authority of the UNSC.
The Kosovo Commission conceded its framework for humanitarian intervention was controversial, but voiced hopes it would help to move the international community ‘in the direction of establishing a legal doctrine of humanitarian intervention that balances the claims to protect peoples against the importance of restricting discretion to use force in international relations’.
For former French Minister of Foreign and European Affairs Bernard Kouchner, who served as UN special representative to Kosovo from 1999-2001, legitimacy is often more important than legality. States, he believes, have an ethical duty to intervene in humanitarian crises. ‘Sometimes you have to break the law to change it,’ he told the IBA Rule of Law Symposium during the IBA’s 2012 Annual Conference in Dublin. ‘And that is my advice: act illegally to change the law, and you will see […] the change will follow you.’
‘We must not undermine the UN Charter…What we need is that the permanent members of the UNSC fulfil their duty under the Charter’
Former Legal Counsel of the United Nations
The Kosovo Commission concluded that the NATO intervention was ‘illegal but legitimate’. Its legitimacy was contingent, it said, on two critical factors: that severe, sustained human rights violations had been carried out, and that civilian society had been exposed to great suffering and risk due to the ‘failure’ of the state.
The overriding aim of the intervention must be the direct protection of the victims, the Commission declared, and the method of intervention must be ‘reasonably calculated to end the humanitarian catastrophe as rapidly as possible’. It must only be carried out once all non-violent solutions have been exhausted, and should not be done unilaterally but ‘enjoy some established collective support’.
Converting legitimacy to legality could be achieved through a UNSC resolution or through crystallising customary law – ie the acceptance of such a doctrine by a critical mass of UN member states. However, both would be extremely difficult to achieve. A more effective way would be through reform of the UNSC itself. Many international law experts and policymakers have called for an expansion of UNSC membership and for reform of its decision-making process, which currently allows all decisions to be vetoed by one of the five permanent members: the US, UK, China, Russia and France.
Former UN legal chief Hans Corell does not advocate bypassing the UNSC, but has long argued that the veto right must be reformed for the institution to work effectively. He proposes that the permanent members only use their veto in situations where their most ‘serious and direct’ national interests are affected. ‘We must not undermine the UN Charter,’ he says. ‘What we need is that the permanent members of the UNSC fulfil their duty under the Charter.’
James Goldston, founder of the Open Society Foundation, acknowledges the UNSC lacks political legitimacy, but stresses that policy considerations – such as enforcing the international norm against the use of chemical weapons or protecting Syrian civilians from being killed – ‘does not render lawful an unlawful act’. Instead, he says, the UNSC should refer Syria to the International Criminal Court for investigation – and be subject to fundamental reform.
He adds: ‘To be sure, the UNSC is an artefact of history, unrepresentative of today’s world […]. Absent substantially more persuasive evidence than has been presented to date that both the goal and likely effect of military action are to protect civilians, the answer is not to ignore those rules, but to muster the political will to change them.’
Without reform, it could be argued the entire structure and procedures of the UNSC are contrary to developing norms of international humanitarian law. Where Kosovo was concerned, the UK Government argued the action was justified on the grounds that international law recognises an exceptional right to take military action without UNSC authorisation in cases of ‘overwhelming humanitarian necessity’. The UK has reiterated this argument in the case of Syria and is currently seeking a UNSC resolution that would authorise member states to take ‘all necessary measures’ to protect civilians from the use of chemical weapons.
Russia, conversely, believes that any military intervention without a UNSC resolution would be a violation of international law and an act of aggression. It has also asserted its belief that there is insufficient evidence to place blame on the Syrian regime for the chemical attacks.