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!
Aleppo, November 2012. (Photo: AP / Narciso Contreras)
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.
(Photo: The Spectator)
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.
(Photo: CNN)
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.
Justice in Conflict 
This article misstates the law:
“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.”
That is patently false as much of the commentary on the web and elsewhere makes very clear. The current doctrine of R2P reinforces the need for Security Council authorization for any use of military force in support of humanitarian intervention. As such, these two doctrines are interlinked and mutually reinforcing. You cannot have R2P without SC authorization. It’s very simple, actually. R2P without SC authorization is an act of aggression, i.e. an international crime, not humanitarian intervention.
Anything else one says about this can be consigned to the realm of wishful thinking. The best one can hope for is an ‘illegal but legitimate’ scenario, but for that the US needs a very broad coalition, and it is nowhere near mustering the necessary support. Contrary to what this article argues, at this point, the answers are indeed very clear-cut: if Obama proceeds with his cowboy raid on Syria, he will be committing an act of aggression under international law against a sovereign country. It would be very helpful if the ICC then also disregarded the need for SC authorization (i.e. a referral in ICL terms), and began investigating alleged criminals like Obama and Kerry for their crimes against peace. Since Obama is arguing that there is no need for SC authorization, it would be nice to have him taste his own medicine. I wonder if James P. Randolph would then also be writing about there being “no clear-cut answers”…
First things first. It’s Rudolph, not Randolph. I know, actually reading can be arduous. Second, the so-called crime of aggression is, well, not yet a crime according to the ICC. Why? Countries have not been able to settle on a definition. It is, in other words, too amorphous a concept. This means your statement regarding any action by the U.S. being an “international crime” is simply academic and likely motivated by some kind of animus. Third, the U.S. is not a signatory to the Rome Statute (and it has veto power at the SC), so your thinking is wishful. Fourth, if you cannot appreciate the complexity of the situation (and the need for articles to present us with questions to ponder), then you are a hopeless romantic. The UN, especially the SC, is outmoded and outdated and in need of serious reform. It will happen. It’s only a matter of time.
Mr. Rudolph, my apologies for misspelling your name. That was unintentional.
As for the rest, I find it rather strange that you accuse me of ‘romanticism’ when it is you who is propagating a romanticized version of R2P, which would somehow circumvent the need for SC authorization. By all means, let’s appreciate the complexity of the situation and ponder these issues, but we need to agree on – if nothing more – the law. The law in this regard is pretty simple, and yet this article fails to mention one basic issue: under international law, as it currently stands, US intervention in Syria is illegal. The 2005 World Summit document underscores that R2P cannot be invoked by any country or group of countries without SC authorization.
After making this observation, it is true that one can shift the debate into the realm of the ‘aspirational,’ ‘progressive’, or – as some would have it – ‘romantic.’ One can then argue about legitimacy, the need for SC reform, the progressive aspects or unexplored interpretations of R2P. But that discussion is rather hard to have when one fails to get the basics right, i.e. international law, as it currently stands, makes an intervention in Syria without SC illegal. R2P, as it currently stands, reaffirms that position. Some things are not clear-cut, but that is.
As for the crime of aggression and its status under international law, I don’t want to get too bogged down in this discussion here. See Bill Schabas’s blog for more on that. Suffice it to say that that part of my comment was intentionally provocative.
Maya, my name is Bill — I am not the author. Sorry to disappoint you.
Maya, I am the author, not Bill. Thanks. Feel free to follow me on Twitter, where I’d be happy to discuss this issue with you.
Bill, I’m disappointed in your boorishness (“I know, actually reading can be arduous”?) especially given Maya’s politely-stated, well-crafted points. Also, James Randolph presumably means well in exploring what can be done to end those “unimaginably shocking and scandalous violations of individual dignity happening every day” in Syria. I can only hope he is just as shocked and scandalized by violations of economic and social rights in the rest of the Third World that hardly, if ever, figure in these “simply academic” discussions among those who purport to be discussing “international law” and “international criminal justice.” Not germane to the article? That would be because some of these debates about “international criminal justice” and “R2P” are carried on within circles of mostly First World lawyers and academics who seem to be living in a world where atrocities are only committed by Africans and Arabs (and sometimes Asians) on each other, but never by the Western diplomats and government officials — say the “high-level officials within President Obama’s national security team” — that Rudolph is second-guessing here. First World problems vexing lawyers in Washington DC and California are the least of the Third World’s actual problems. I’m sure you can appreciate the complexity of the situation and the need not just for articles — but perhaps for people fascinated by R2P to actually live in the Third World (preferably outside fortified UN compounds) that they want to protect.
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While I am certainly not an expert, I am a student who has been studying R2P extensively over the past few weeks for a paper I have to write. I was left wondering if Mr. Rudolph even read the Outcome to the World Summit from 2095 where R2P was decided on, as this article is chock full of inaccuracies. Bottom line: Maya is right, and Bill and Mr. Rudolph are wrong. Mr. Rudolph, for your convenience, I have attained a link where you can find the Outcome paper. The Charter reference you mentioned (that Maya accurately stated is reinforced by R2P) is found on page 22 (#77). http://www.un.org/womenwatch/ods/A-RES-60-1-E.pdf
Jinnie,
R2P is not law; it is a principle. At most, it is an emerging norm. Also, the 2005 Outcome is 10 years old. Things have changed.
That was meant to say 2005 not 2095
Please also see R2P expert Alex Bellamy, who says that while R2P as outlined in the World Summit Document “does not advance the question of how to deal with unauthorized intervention, it does not preclude the possibility of action outside of the council.”