James P. Rudolph joins JiC for this guest-post on R2P and the legal options for intervening in Syria. James is an attorney in Washington, D.C. and California where his work focuses on international law. He has previously written on R2P in the case of Mali. Enjoy!
How, in the absence of U.N. Security Council authorization, could the Obama administration, acting alone or as part of a coalition, justify the use of force under international law? This question is doubtless being bandied about by high-level officials within President Obama’s national security team, and the answer, despite protestations to the contrary from both hawks and doves, is not an easy or straightforward one.
Article 2(4) of the U.N. Charter reads as follows: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” There are only two exceptions to this otherwise ironclad edict: the use of force as authorized by the Security Council and self-defense.
If the Security Council sanctions the use of force, it does so pursuant to Chapter VII, Article 42 of the U.N. Charter, after first having decided that there exists a threat to the peace, a breach of the peace or act of aggression. “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”
When there is agreement regarding what constitutes a threat to the peace or act of aggression, this authorization normally is forthcoming. But there’s the rub: matters of peace and security can be devilishly difficult and divisive. As an example, one need look no further than the Security Council as it relates to Syria’s horrifically violent civil war. Russia and China, permanent members of the Council with veto power, oppose any military intervention in Syria. Yet the U.S. and France are today in favor of a more robust response to the atrocities unfolding there. Hence the current deadlock.
The other exception to the prohibition on the use of force is self-defense. This right, which can be invoked individually or collectively, predates the United Nations and, given its importance in international affairs, is enshrined in Article 51 of the U.N. Charter. The right does not arise until after an armed attack occurs against a member of the U.N., and any such response must be necessary and proportional. In the case of Syria’s apparent use of chemical weapons, it isn’t obvious that an armed attack has occurred against a member of the U.N. To be sure, the use of chemical weapons constitutes a crime in itself, but arguing that another member of the United Nations has been attacked would, to say the least, be a stretch.
What, then, is left as an option for responding to the gross human rights violations occurring in Syria today? After all, it’s estimated that at least 100,000 people have been killed since the start of the conflict; laws of war have been flouted; and fundamental rights are being violated with impunity. Despite the apparent unavailability of U.N. Security Council authorization or the use of self-defense, there are several other options, one of which is known as the Responsibility to Protect, or R2P.
R2P, which has been recognized by both the U.N. General Assembly and the Security Council, redefines sovereignty to include the element of responsibility. That is, sovereignty still involves exclusive control and supremacy over a defined territory, but it now includes the primary responsibility of the state to protect its own citizens from so-called mass atrocity crimes – i.e., genocide, crimes against humanity, etc. If the state cannot or will not live up to this basic responsibility, the traditional doctrine of non-intervention in internal affairs yields, and it is the international community’s responsibility to react and respond. This is because the way a state treats its own citizens is no longer a matter for the state itself. Rather, given the widespread adoption of human rights treaties and the fact that the United Nations Charter itself obligates member states to promote and protect human rights, it appears that R2P could be a viable option to the crisis in Syria.
But the question of authority remains: which state or states would be authorized to assume this awesome and far-reaching responsibility? And would the prohibition on the use of force in the absence of Security Council authorization have to be jettisoned? Are these two doctrines mutually exclusive? Unfortunately, there are no clear-cut answers to these exceedingly important questions, so any decision by the Obama administration (or any coalition) will have to embrace this element of uncertainty.
It should nevertheless be kept in mind that a humanitarian crisis has been unfolding in Syria for almost three years now, with unimaginably shocking and scandalous violations of individual dignity happening every day. Will this continue because the U.N. is deadlocked? Or should we conclude that, notwithstanding laws to the contrary, the violation of human rights is itself a threat to the peace and therefore intervene regardless of the U.N. Charter?
Whatever happens, it’s clear at this point that some kind of response is in the offing, so we can only hope, for the sake of those enduring hardship and pain, that meaningful and lasting relief comes soon.