Humanitarian Intervention Post-Syria: Legitimate and Legal?
37 Pages Posted: 16 Jan 2014
Date Written: January 15, 2014
“Even in the most intense policy discussions, lawyers are not potted plants.”
Harold Hongju Koh, former Legal Advisor to the State Department and a professor at Yale Law School, wrote the above-cited phrase in the context of Syria. In the wake of a violent and ongoing civil war in this volatile nation, including the use of chemical weapons by Syrian President Bashar al-Assad against his own civilian population, Koh has argued that nations like the United States should intervene under the paradigm of humanitarian intervention. President Obama has made similar arguments, and several nations have considered and contemplated staging a multi-lateral, United States-led humanitarian intervention in Syria. The discussion over a potential use of military force in Syria has dwindled somewhat, in light of a recently passed Security Council resolution, which has created a United Nations-led chemical weapons inspection and destruction regime. President Assad has thus far agreed to comply with the terms of this regime. However, should Assad disregard the inspection regime and defy the international community, the issue of humanitarian intervention will once again become center-stage.
Humanitarian intervention is a disputed concept for which no normative rules exist, and many in the international community have grappled with the question of whether and under what circumstances external actors may intervene in the affairs of a sovereign state in order to halt humanitarian abuses. In order to fill this legal vacuum, Harold Koh has recently argued for the necessity to develop a normative framework for the legality of humanitarian intervention, and has proposed such a framework. While the proposed framework was developed by Koh in the context of Syria, it could be applied to any future situations of humanitarian suffering, and it would essentially change existing international law by creating another instance of both legitimate and legal use of force.
Currently, international law, as enshrined in the United Nations Charter, prohibits states from using force against other states except in two situations: pursuant to Security Council authorization, or in self-defense. In a situation like Syria, where no particular nations can claim self-defense against the Assad regime, because the conflict has been purely internal, and where the Security Council is paralyzed because one or more veto-wielding nations are against military intervention, international law appears powerless to halt ongoing humanitarian abuses. Yet, most commentators would agree that standing idle is not the most appropriate response. Many international law scholars have proposed preserving the existing international law rules as they stand, and developing policy arguments and factor-based exceptions to the ban on the use of force, in order to justify military interventions in some instances. This was the approach adopted by the United States Department of State during the Kosovo crisis, and this is the preferred approach regarding Syria, according to some scholars. Koh finds this approach unappealing, and has instead argued in favor of developing a new legal framework for humanitarian intervention, because he appropriately believes that it is our duty as lawyers to work toward developing new rules of old when the old ones prove insufficient and undesirable.
This Article will assess Koh’s proposed framework through the following approach. First, this Article will discuss the current state of affairs under international law, by focusing on the existing ban on the use of force and the established exceptions thereto (II). This Part will also discuss various instances in which states have used force, at times outside of this legal framework. Next, this Article will discuss the developing concept of humanitarian intervention, as well as related theories, such as responsibility to protect and involuntary sovereignty waiver (III). Then, this Article will focus on the ongoing crisis in Syria and will briefly describe Syrian history and the current-day conflict (IV), before turning to a discussion of proposed justifications under existing international law for the legality of a proposed military intervention in Syria (V). This Article will then examine Harold Koh’s proposed normative framework for humanitarian intervention (VI), by critically assessing its elements and proposing additional criteria. Next, this Article will apply Koh’s framework to Syria (VII), and conclude that Syria could constitute a perfect case for humanitarian intervention under Koh’s proposed framework, should the Assad regime choose to disobey the United Nations-imposed weapons inspection and destruction regime. Ultimately, this Article will agree that Koh’s proposed framework would constitute a much-needed and beneficial development in international law, and that developing a new normative framework, which would create another legal exception to the prohibition on the use of force, is necessary in today’s world of internal warfare and humanitarian suffering. As lawyers, we should not stand idle and support outdated concepts of international law. Instead, we should join Koh’s efforts in developing new norms, in order to legally justify the use of force against states which abuse their own populations and cause humanitarian catastrophes.
Keywords: international law, humanitarian intervention, human rights, Syria, unilateral military action, state sovereignty, use of force
JEL Classification: K10, K19, K33
Suggested Citation: Suggested Citation