Syria: The Unbearable Lightness of Intervention

Abstract

Now that the US-led intervention against the Islamic State in Syria is winding down, we would do well to begin to understand it. While critics of the intervention have long sensed that the US was proceeding on the basis of a novel legal theory, they have misinterpreted what that theory is. Far from seeking to lower the threshold of infringement of United Nations Charter (UNC) Article 2(4) to one of strict liability for “unable” Non-State-Actor (NSA) host States, the US militarily intervened in Syria on the basis of a theory of sovereignty forfeiture according to which unable hosts that are deemed politically unworthy lose the right to consent to, and place conditions on, counter-NSA intervention by foreign states.

This actual US theory represents a creative commingling of two threads of interventionist logic that once had seemed incompatible: Humanitarianism to deal with dictators and the Failed State Doctrine to deal with weak central State authorities. But is it consistent with existing international law or with basic notions of political-moral legitimacy? This article offers the first in-depth analysis of the “Commingled Position” in an attempt to answer these questions. Combining sympathy for an expansive reading of UNC Article 51 with a deep concern to safeguard the political equality and independence of NSA-host States, this article concludes that the Commingled Position is both legally deficient and—as deployed in Syria—morally untenable.

Keywords: Syria