By Henok Gabisa
It was late afternoon Tuesday the 3rd of September and the US Senate draft resolution for approval of the US use of military forces is in the making overnight after affirmatively receiving President Barack Obama’s request to the Syrian government for the alleged use of chemical weapons in the past few weeks. Citing AP, Al-Jazeera stated on its website that, the US Foreign Relations Committee’s draft resolution contains the measure that would set a time limit of 60 days and leaves discretion to the president to extend the measure for 30 more days with congressional approval. The measure would also bar American ground troops from combat operations and set a deadline for any action. This time, the American bi-partisan political folks did not waste any time to agree on and back up the President’s call for military intervention in Syria. Interestingly enough, the status quo reinvigorates and bolsters the decade old controversial issue of “unilateral humanitarian intervention” [whether or not it has become a customary international rule of legitimate grounds of use or threat of force]. It also remains delicate situation and slightly exhibits a perturbed scenario that the unilateral and unauthorized use of military force by the US would totally dwindle the already “mushy” role of the United Nations. This is more concerning for the future of common humanity.
A Quick Brief on “The Law of Inter-State Use of Force”
The United Nation Charter is the starting point of any legal discussion of the use of military force by one state against the other. Having proscribed/prohibited, in principle, the use or threat of military force under article 24, the UN Charter lets only two exceptional/legitimate grounds of use of military force on international scale. First, the inherent existence of the right of “self-defense” as provided under article 51 of the UN Charter. This ground is non-applicable to the United States and preposterous to establish the nexus between the Syrian chemical weapon and the necessity element of the right of self-defense. One has to build a case where there is an instant, overwhelming and eminent threat [the 19th Century formulation of customary international law in invoking the right of self-defense] posed in the unlikely event of Assad’s use of chemical warfare against the United States. Therefore, this ground is too far removed from reality to be supplicated by any strike against Syria.
Second, international use of military force is legitimate if and only if the UN Security Council UN SC of the United Nations [the most powerful among the six organs of the UN] approves it without veto by any permanent member authorizes force, through an appropriate resolution under Chapter 7 of the UN Charter, in order to restore “international peace and security” [pursuant to article 39-43 of the Charter]. This is popularly termed as “the UN Enforcement Action”.
The soup-to-nuts of the international law of use of force, therefore, narrowly formulates and enjoys only two exceptional grounds of legitimacy: “self-defense” and “UN SC authorization”. Nowhere can one find any other legitimate third ground [other than the two briefly mentioned above] in the theoretical discourse of the subject of law of use of force in the United Nations Charter.
“The Tumorous Debate of Humanitarian Intervention”: Can it be the third legitimate ground to use force?
Can interested state[s] intervene militarily to stop heinous crimes say for example, crime against humanity, war crime, genocide or any other comparable atrocity without the Security Council’s authorization? This question [easy to verbalize but notoriously difficult to answer] had been hanging around as long as the United Nations itself. Humanitarian intervention, as posed in the question above can be defined as the use of military force by one state against another that is brutalizing or killing its own people. The fate of “humanitarian intervention” as the third possible ground for use of force remains the hot button topic in international law of use of force. The recent decades saw a practical challenge posed to the doctrine of humanitarian intervention. For example, the 1998 NATO bombing of Kosovo without the authorization of UN Security Council drew solid criticism from many countries. The fathomable approach to the subject requires an intellectual reconnoitering of the past practices of states in order to evaluate the degree to which the “humanitarian intervention” is being solidified in the process of achieving the status of customary international law. I am of the opinion that unilateral humanitarian intervention can attain legitimacy and be relied on to use force only upon the fulfillment of one basic condition, i.e., “if the Security Council’s decision making process becomes insolvent.”
Therefore, substantiating this controversial ground in a possible strike against Syria must await the outcome of the report of the UN inspection team that travelled to Syria for the investigation of the use of chemical weapons. The ensuing recommendations and the consequence thereof will have a huge impact for the Security Council deliberations. As of now, the UN inspection team has returned back to The Hague and proceeding with their lab investigation process. If the claim put forth by the intelligence communities of the United States, France and other states stating that the government of Syria has used chemical warfare against its own citizens is corroborated by the UN inspection team there is no other prima facie evidence than this for the Security Council to determine the existence of threat and breach of international peace and security [as under article 39-41 of the UN Charter]. That should plausibly call and justify the authorization of use of force against Syria by any interested UN member State [not only the US] under the close supervision of the UN itself. If this condition sounds too genuine to be real, and as a result, the UN SC becomes handicapped for whatever reason, I don’t see a reason why the US should not unilaterally takeover the initiative. There is where the practice of unilateral humanitarian intervention makes sense. In that case, VOILA!
By the way, no one is dismissive or blatantly naive of the imaginable hindrances that might be posed by Russia and China in the form of vetoing/blocking an authorization of use of military force. Conversely, contrary to our perceptions, the Russians seem not to abandon the UN authorization. In a recent statement Putin echoed that Russia doesn't exclude the possibility of supporting a UN resolution authorizing military strikes. Therefore, having not exhausted the possibility of bringing Russia and China on board to the Security Council, it will be premature for the United States to unilaterally use military force on any ground. It is too early, after waiting two solid years, to precipitously wake up and decide international strike unilaterally, particularly when there is a glimmer of hope to have all other Security Council on board for authorization.
The US may need to Chill and Exhaust UN SC Authorization before Unilateral Humanitarian Intervention
The ongoing situation in Syria exhibits a unique reality worth considering the redemption of use of force on the basis of humanitarian grounds. The use of chemical weapons has long been banned under the customary rules that simply consolidated the laws of war in the form of Geneva Conventions and the Chemical Weapons Convention. International Law is unequivocally clear about that. Based on this the international community’s reaction to Syria can take either of the following two forms: first, through the UN Security Council’s determination of the situation in Syria [pursuant to article 39 of the Charter] as having to constitute the existence of threat or breach of international peace and security, an authorization to use force against Syria will be a way to go. In this regard, nonetheless, the lab investigation of the UN inspection team is in-progress and we all need to relax and wait for the report whatsoever. Second option is the subsequent effect of the first option. That means if for whatsoever reason [it might be veto from Russia and China or anything else] the Security Council fails to come up with an authorization, now there is all moral compass and responsibility ready for the unilateral military action by the US against the government of Syria.
Yet, this prescription is not naïvely offered “Carte Blanche” to the US. In other words, if the Security Council is not functioning as it should be and unreasonably refuses to come to an agreement, the unilateral engagement of use of force by the United States, I might argue, must receive legitimacy. This is politically and legally wise in the sense that the “Moral obligation and responsibility of the United States” to intervene in Syria, as pointed out by Secretary Kerry, would at least rally some global support. But one has to make sure, in the first place, that the UN Security Council decision making system is too bankrupt to betray the souls of the 100,000 dead Syrians and the lives of 2 million refugees torn apart.
What if Russia and China [who had proven trend of opposing authorization to use of force in the history of the UN SC] can be convinced by the situation in Syria and agree at least not to block the authorization of military force [contrary to the wrong perception by the US]? Can we not be hopeful as evidenced by their recent decision making in the Libyan crisis? That is why the US must chill and wait on the Security Council decision making system before any unilateral military action. If not, what is the theoretical and institutional difference between “the US” and “the UN”?
Henok G. Gabisa is a JSD/PhD Candidate and International Law Fellow and Researcher at Washington and Lee University School of Law in Lexington, Virginia. He can be reached at GabisaH@wlu.edu
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