Strike on Syria for chemical weapons – not illegal

Humanitarian interventions, as proposed by Obama on Syria, shape responsibility to protect

Crises are lived forward, but understood backwards. While it’s still too early to know how the Syria crisis of will end, we can start evaluating the precedents of law and policy it should generate, properly understood. When the dust settles, notwithstanding a welter of political miscues, history might well remember the episode as Obama’s Harfleur, where an announced threat of potentially illegal force catalyzed a better nonviolent result, thereby reinvigorating multilateral diplomacy abroad and much-needed public debate at home. In my judgment, there are strong arguments that under international law, President Barack Obama’s threatened intervention in Syria would have been legal. While the law is hazy, this would have provided a law-making moment to clarify when a nation may validly use humanitarian force.

To read recent commentaries, one might think that the villain of this piece is Obama, not Bashar al Assad or Vladimir Putin. But from the start, the president has been the quintessential reluctant warrior, who for years tried to avoid military intervention in Syria and just this May gave a major speech at the National Defense University reaffirming that he wants to end wars in Iraq, Afghanistan and against Al Qaeda. Just as undeniably, Assad is a war criminal who has slaughtered his own people for months – with and without chemical weapons – and lied about it while Putin has given him cover with four vetoes and shameless rhetoric.

Facing weak support abroad and at home, Obama pushed the pause button not once, but twice: first saying on August 30, that instead of using the previously threatened military force, he would seek prior approval from a distracted and divided Congress when he had not secured the necessary votes from the House of Representatives. Three weeks later, he postponed indefinitely that congressional vote, which he likely would have lost, to pursue diplomatic alternatives that remain ongoing.

But the president’s greater political miscue was diplomatic. He failed, in his August 30 speech, to address not just the American public, but Putin and Assad. Obama should have made clear to the G20 that he was going to St. Petersburg to mobilize the other 17 leaders to put pressure on Russia and China to support a long-overdue UN Security Council resolution, or be publicly blamed for complicity in mass slaughter by illegal chemical weapons. He should have made it clear to Assad that his only way to avoid a US attack was to admit the use of chemical weapons, permit UN inspections and promptly turn over existing stockpiles.

Apparently, Obama had sent these messages privately and repeatedly, perhaps as early as the previous G20 meeting among heads of state in June 2012, but in so doing, he secured neither a united multilateral front nor the public commitment from Russia or Syria to claim diplomatic victory in St. Petersburg. He drew a red line without the domestic or international politics needed to defend it. That made his abrupt threat of force this summer seem less principled than unilateral, and strikingly inconsistent with his broader, generally successful first-term “smart power” approach to foreign policy.

The legality under international law of Obama’s threatened action has been widely questioned. Yet I would argue that under certain highly constrained circumstances, a nation could lawfully use or threaten force for genuinely humanitarian purposes, even absent authorization by a UN Security Council resolution. Under this view, had Obama proceeded in Syria as threatened, the US would not have been in flagrant breach of international law, but rather, in a legal gray zone. The US and its allies could treat Syria as a lawmaking moment to crystallize a limited concept of humanitarian intervention, capable of breaking a veto stranglehold in extreme circumstances, such as to prevent the deliberate use of forbidden weapons to kill civilians.

The customary international law concept of humanitarian intervention dates back to Grotius and the 17th century. Since the birth of the UN Charter, examples of state practice often invoked to illustrate humanitarian intervention in action include India’s incursion into East Pakistan to help create Bangladesh in 1971 and Tanzania’s intervention into Uganda to help oust Idi Amin in 1978-79.

A recent watershed regarding the collective use of humanitarian force came when NATO took military action in Kosovo in 1999, also without express Security Council authorization relying upon a listing of factors that together justified the intervention. Kofi Annan, then secretary-general, captured the UN’s ambiguity about a narrowly tailored form of humanitarian intervention in situations of great extremis by issuing a statement that recognized occasions when force might be necessary, while also referring to the importance of Security Council authorization. This catalyzed the international legal movement to explore whether there is an international Responsibility to Protect, or R2P.

In 2004, a High-Level UN Panel on Threats, Challenges and Change “endorse[d] the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort.” At the 2005 World Summit, member states declared that “we are prepared to take collective action . . . through the Security Council . . . on a case-by-case basis . . . should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

Left unanswered in this legal evolution was what should happen if, as in Syria, the national government and the Security Council fail to fulfill their responsibility to protect? The International Commission on Intervention and State Sovereignty argued 12 years ago that, “if the Security Council fails to discharge its responsibilities in conscience-shocking situations crying out for action, then it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations.”

Syria presents an even stronger case for intervention than Kosovo. A recent UN report concluded unequivocally that chemical weapons were used on a relatively large scale near Damascus on August 21, causing numerous civilian casualties. In response, a group of nations could seek to fill the vacuum of protection to prevent future releases without invoking either a “legal right of humanitarian intervention” or a legal claim of R2P, in the sense of an international legal duty to intervene. These states could claim instead an ex post exemption from legal wrongfulness, as rules of state responsibility and domestic “Good Samaritan laws” permit benevolent interveners to do. This exemption could arise if a humanitarian crisis creates consequences significantly disruptive of international order – including proliferation of chemical weapons, massive refugee outflows, and events destabilizing to regional peace and security of the region – that would likely soon create an imminent threat to the acting nations; if interested nations have exhausted all other remedies besides force; and if force could be used for demonstrably humanitarian purposes and was limited to what was necessary and proportionate to the threat.

In sum, despite Obama’s hesitations and diplomatic miscue, his threatened attack on Syria was not illegal and would certainly helped clarify the ambiguity of the responsibility to protect doctrine. After months of stalling, his threat of violence seems finally to have finally brought both Assad and the Russians back to the negotiating table with regard to chemical weapons. The saga recalls Shakespeare’s Henry V, where a principled, untested but war-weary leader gambles and threatens illegal force to win a key battle and make a nonviolent entry into Harfleur in 1415. As Kenneth Branagh’s version of the play shows, no one knows for sure if the leader actually would have used force had his bluff been called. But Obama’s controversial actions jumpstarted a stalemated diplomatic process and may now lead to a better result.

Harold Hongju Koh is Sterling Professor of International Law and former dean (2004-09), Yale Law School; former legal adviser, US Department of State (2009-13); former assistant secretary of state for democracy, human rights and labor (1998-2001). This essay is a condensed and edited version of two-part essay published in Just Security.