By Robert Howse and Ruti Teitel
Deal with Assad in international courts, not with military power
As President Barack Obama made the case for military intervention by the United States in response to the Syrian government’s use of chemical weapons, Americans and many others around the world were asking what the objective should be.
Is the purpose of using military force to prevent future attacks against Syrian civilians, or is the proper goal to punish President Bashar al-Assad’s regime for violating the law of nations?
Secretary of State John Kerry invoked both purposes – degrading Syria’s chemical-weapons capacity, as well as ensuring “accountability” and “deterrence” – in advocating US military intervention.
But a mission limited to reducing the Assad regime’s capacity to use chemical weapons in the future is far more justifiable under international law than a mission conceived as a punitive or law-enforcement action.
Preventing future attacks has a clear humanitarian objective. While some argue that humanitarian intervention is never justified without approval by the United Nations Security Council, the UN Charter itself provides a dubious foundation for this view.
The Charter does not prohibit all unilateral use of force. It prohibits only such uses of force that are aimed at a state’s “territorial integrity or political independence,” or that otherwise contravene the principles of the UN.
But promoting and encouraging respect for human rights, including the right to life, are also among the UN’s purposes, as stated in Article One of the Charter. Can Assad really hide behind the notion of territorial integrity or political independence to forestall an effort to stop his illegal brutality toward Syria’s citizens?
Massacres of civilians conducted with chemical weapons hardly correspond to the principle of defending states’ territorial integrity and political independence. Humanitarian intervention in Kosovo in 1999 was often described as “illegal but legitimate.”
But, because the use of force was not well tailored to the objective of preventing genocide, it could be – and was – perceived by some as punishment of the Serbian people as a whole for supporting Slobodan Milošević’s regime. Indeed, the example of Kosovo suggests the wisdom of not entangling humanitarian action in notions of deterrence or punishment.
Since World War II’s end, collective punishment has become increasingly unacceptable as a response even to grave or egregious violations of international law, and this approach has been codified in a widely accepted set of principles – the so-called ILC articles – concerning the responsibility of states.
At the same time, non-forcible sanctions, such as economic measures, are generally compatible with current international law. So is insistence on prosecution of war crimes at the International Criminal Court.
Indeed, the emergence of international criminal tribunals suggests that accountability for crimes against international law ought to be a matter addressed by independent courts, not by the unilateral exercise of military power.
Accepting that humanitarian intervention without Security Council authorisation is in principle compatible with the UN Charter gets us only so far, however. For purposes of both legality and legitimacy, it is vital to ensure that an unwise and ineffective intervention does not undermine the overall balance of legal rights and obligations in the UN Charter and related human rights and humanitarian norms.
Is it really possible to degrade significantly the Assad regime’s capacity to engage in similar atrocities in the future, given the means at hand? How much humanitarian harm will the mission itself cause?
These are the key questions that those who advocate military intervention must address. They are moral and practical, but also legal, for international law is not just the UN Charter; it also encompasses long-standing principles of necessity and proportionality.
Above all, where the objective of using force is humanitarian, minimising the humanitarian harms from intervention follows from the logic of necessity, as both a legal norm and moral principle.
By contrast, the trouble with using military force to punish is that necessity and proportionality cannot easily be applied to the calculus: a slap on the wrist would trivialise the gravity of the offense, while large-scale intervention would wreak death and destruction on many who are innocent.
Well-designed humanitarian intervention, as well as legal accountability for war crimes and atrocities, can send a strong signal to thugs and tyrants that they must reckon with the values that underpin international law. But conflating these two purposes – to save lives and to mete out justice – could end up undermining both.
Robert Howse is a professor at New York University School of Law. Ruti Teitel is a professor at New York Law School and a visiting professor at the London School of Economics.