So far, Secretary of State John Kerry has 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 authorization
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, minimizing 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 trivialize 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.
