Essay: U.S. Intervention in Syria: Morality or Legality?

Abstract
International Law is lauded as the solution to human rights abuses, including in international terrorism cases. However, a prime example of the inadequacy of international law is worn-torn Syria, in which the international community is failing to protect Syrians from their government. The “Responsibility to Protect” is the responsibility of countries and the international community as a whole to stop war crimes and human rights violations from taking place, a principle which has failed to protect Syrian citizens from chemical weapons, mass displacement, and numerous other human rights abuses. In order to participate in a conflict on behalf of this statute, there must be “clear and convincing evidence” that human rights violations have taken place. The question should be: Have crimes against humanity taken place by the government against the population? In Syria, the POCW United Nations fact-finding mission has “confirmed with “high degree of confidence” that Chlorine and Mustard were used as weapons in Syria.” Thus, the question becomes: When the United Nations is ineffective due to the Veto-structure and lack of tangible power, what burden of responsibility do third-party nations carry in enforcing a solution to stop human rights abuses of a state sponsoring terrorism? Can force be justified without approval of the UNSC? Should the preservation of human rights take priority over the prohibition of force?
Keywords: Invitation to Intervention, State Sponsored Terrorism, Humanitarian Law, Sovereignty, Prohibition of Force, Jus Cogens, Legitimacy, State Consent.
U.S. Intervention in Syria: Morality or Legality?
When considering intervening in Syria, one must first consider the state of humanitarian affairs. More than 400,000 people have died since the Civil War in Syria began in 2011, a result of Arab Spring protests for democracy and modernization across the middle east. Additionally, there are 5 million displaced Syrians abroad and 6 million displaced within Syria who have fled or been forcibly displaced by the state of Syria. Many of these casualties have resulted from the Assad Government leading attacks against civilians in numerous ways- it has “[launched] deliberate and indiscriminate attacks against civilians and civilian infrastructure, withheld humanitarian aid, employed starvation as war tactic, and forcibly displaced Syrians in contravention of international law,” with many of these practices continuing today. This is seen as one of the serious crises in International Law considering the large amounts of casualties, displacements, and war crimes. Working within the definition of State Sponsored Terrorism provided by the Department of State, “repeatedly provided support for acts of international terrorism”, the State of Syria has continued to fund terrorists including ISIS and Hezbollah and is subsequently listed as one of the four State Sponsors of Terrorism by the U.S. State Department. This essay will critically evaluate the different approaches of the Trump and Obama Administrations in addressing the actions of the Assad Government in Syria. By examining the different approaches of these administrations, this paper will evaluate prominent flaws in humanitarian law today and look for the path to real solutions in humanitarian intervention, especially the role of the United States in ensuring global stability and terror attack preventions.
Red Lines in the Sand
During the Arab Spring, protests on March 15th, 2011 emerged throughout Syria for political reform, civil rights, and an end to the state of emergency instated since 1963. Syrian leader Bashar al-Assad denied responsibility for the violent response to the protests and kept a low profile, repeatedly citing external factors as a source for the internal civil war arising. However, by the end of 2011, world leaders were calling for Assad to step down, by 2012 the United Nations categorized Syria as a full-scale civil war, by 2013 Assad was accused of using chemical weapons against civilians, and in the midst of this Russia established itself as a dominant force in the region by helping to hide chemical weapons and shield the Assad government from international scrutiny. By 2014 Russia had introduced military support to Assad’s forces and managed to veto all resolutions in the Security Council which may have allowed intervention to end human rights abuses in Syria. When President Barack Obama announced that the use of chemical weapons in Syria would result in the involvement of the United States of America, it seemed that perhaps the U.S. Government was willing to take a stand against Russia and its allies. However, when in 2013 more than 1,500 Syrians were killed in a chemical attack allegedly propagated by the Assad government, the U.S. did not act. Instead, President Obama asked congress for approval to respond, resulting in Congress not approving airstrikes on the Syrian government, a subject which is still contested considering that airstrikes are not an action subject to congressional approval. When President Donald Trump established the same red-line of chemical weapons, he did not ask for congressional approval to act, instead ordering air strikes in April 2017 when more than 80 people were killed by a chemical attack, sending 59 Tomahawk missiles within 48 hours. Although the United States did not take direct military action until President Trump responded to chemical weapons attacks in 2017 by ordering air raids on a Syrian base, it was able to collaborate with France and the UK in 2018 to air strike it and multilaterally strike against ISIS and other terror groups in the region. However, considering recent actions of the Trump administration’s decision to pull out of Syria, there are great concerns about what will happen in the region. Acting to intervene on behalf of the Syrian people, including U.S. Kurdish allies who have made great sacrifices and continue to be persecuted in the middle east, appears to be a moral action but is arguably not in accordance with International Customary Law. Out of this arises the questions: why is it not legal to use military intervention within Syria?
International Law
The most accepted legal ground for using military force is a United Nations Security Council Resolution which would authorize force or self-defense out of Art. 2 (4) UNC. In Syria, it can be argued that there is not a good case for self-defense by the United States because this internal conflict concerns the Syrian people in a civil war and as we will later discuss, Russia is not likely to pass a Security Council Resolution allowing military force by the United Nations to intervene in Syria. Although intervention has been questioned as a method of retaliation for chemical weapons, it is vital to acknowledge that this is a controversial topic but is a vital concept in humanitarian law. Before evaluating humanitarian law, one must evaluate why the United Nations Security Council does not pass a resolution to intervene in Syria with military force.
The Vice of the Veto
The solution then to human rights abuses, including pressures such as sanctions, and the exception to the prohibition of force is military force through the unanimity of the Security Council. However, this is impossible in a situation such as Syria in which China and Russia side with the human rights violator and thus veto any productive resolutions proposed by other members. To take any action which is approved by the United Nations Security Council and de facto customary international law, there would have to be a complete restructuring of the United Nations Security Council and the Veto-vote. Restructuring the United Nations is almost impossible considering that it would require multilateral approval and the devolution of power from the respective nations part of the Security Council. Subsequently, any military action taken by the United States of America to help the Syrian people would amount to a violation of International Law and the United Nations Charter because Russia and China side with the Assad government. Thus, the question must be asked: What would it take to produce a fundamental restructuring of the United Nations Security Council procedures?
The United Nations
A complete restructuring being highly unlikely, one must evaluate the morality juxtaposed with the legality of the implications of not intervening in Syria. In Rwanda, Bosnia, Myanmar, Sudan, and now in Syria there have been and continue to be major human rights abuses being carried out under the auspices of the United Nations. Russia has been formally invited by Syria to intervene on behalf of the government and has helped to cover up untraceable atrocities and act in ways contrary to the interests of the Syrian population including major human rights violations. This invitation from the Assad government to the Russian government is an “Invitation to Intervention” in which a legitimate government may ask for help in maintaining peace in times of crisis and civil war. This intervention allowed under International Law makes it almost impossible to prove where chemical weapons and abuses are coming from considering foreign actors including Russia and Iran. So, should the Syrian people be subject to chemical attacks from the Assad government on account of the legality of international law? Although Russia is acting on invitation of the Assad government, it is less clear if they are allowed to act in a full-scale civil war. Additionally, Iraq has asked for the United Nations to intervene in fighting ISIS/Daesh not only in Iraq but also in the region which could be interpreted by the United States as an invitation to intervene in the Syria to fight international terror. If broad interpretations allow for Russia to intervene in Syria to suppress protests and attack civilians with chemical weapons, then it is plausible to allow intervention in Syria to intervene and halt the war crimes being committed. Although an invitation to intervene in another territory is disputed as a legitimate invitation, it is also important to question if invitations to intervention can be issued by effective or legitimate governments- there is certainly more legitimacy to democratically elected governments in the international community. Specifically, the legitimacy of inviting other governments to intervene when these undemocratic governments do not exhibit effective control is extremely questionable. ¬When considering the fragility of the region and the necessity of Russia as a backer of the effectiveness the Assad Government, Syria is not currently a legitimate and effective government especially if one considers the landscape of the country in 2011 at the start of uprisings. Subsequently, Syria’s invitation to Russia could be viewed as illegitimate, prompting a justified intervention from third parties. However, current customary international law including the United Nations prioritizes peacekeeping over the right to self-determination and leaves nations such as Syria to react to largely peaceful protests in harsh and unethical ways.
The Responsibility to Protect
The Responsibility to Protect additionally can be seen as a source of international law as a result of the Rwanda genocide in which 800,00 people were killed with no military intervention authorized by the United Nations. Adopted in 2005 in a General Assembly Resolution, there are no legally binding elements to the Responsibility to Protect and various countries who promised to adhere to the doctrine have ignored it time again. Within the doctrine, a United Nations mandate is required in order to authorize military force. Thus, the Responsibility to Protect has only authorized one mission of sanctions and military force in Libya. It is questionable as to how effective this intervention was and since intervention still requires authorization by the security council for the use of force, this paper does not find this particularly relevant to the debate of humanitarian intervention outside of the security council.
Prohibition of Intervention
Having excluded a Security Council resolution as a probable path to ending human rights violations in Syria, this paper will examine the alternative paths to justifying intervention. The United Nations Charter is not clear in defining the Prohibition of Force in Art. 2(4) of the United Nations Charter: it is still up for debate today as to who can interfere in situations in which the government invites foreign actors to intervene on their behalf. In order to understand varying interpretations of force, one must evaluate contemporary sources from International Legal Bodies including the United Nations and the International Court of Justice. The International Court of Justice suggested that intervention should only be extended by the legitimate government in the Nicaragua Case, as does the jus cogens of the prohibition to the use of force. The International Community continues to deny aggressive humanitarian intervention considering the further prohibition of the use of force in the Rome Statute and various United Nations General Assembly Resolutions which condemn it. In accordance with this, the United Nations General Assembly Declaration on the Inadmissibility of Intervention (1965) and the Friendly Relations Declaration (1970) have also been interpreted as disallowing the invitation to intervention between government. Nevertheless, this allows room for argumentation and interpretation, including as to whether current jus cogens principles which support the preservation of human rights had ought to take precedence over peacekeeping. When lex superiori derogat legi inferiori, or superior laws take precedence over inferior laws, and jus cogens is always the highest peremptory norm, it becomes unclear which peremptory norms take precedence over one another. There is also no universally accepted criteria for which norms constitute jus cogens. Subsequently it could be argued that jus cogens is not as inflexible as it may appear and considering that international customary law becomes customary through common practice, it may not be as far of a reach to presume that the humanitarian intervention could be prioritized over the prohibition of force. A contemporary example of this would be the international community accepting retaliation in dire circumstances such as NATO’s military intervention in Kosovo in 1999 as well as NATO intervention in Yugoslavia and Vietnam’s intervention in Cambodia. Although this type of action may be unlawful considering that this action has not been approved by the Security Council, it may still be accepted as legitimate considering the grave humanitarian crisis in Syria. Additionally, in Military and Paramilitary Activities, the International Court of Justice and the Security Council in Resolution 387 have allowed special circumstances for intervening, especially in civil war. Questions of sovereignty are raised by countries who fear government intervention, but there is precedence in which hostage situations have led to authorized force by the Security Council- including the Congo and Uganda. However, after the genocide in Rwanda, the International community has been clear in determining that there is no absolute sovereignty- the community must come together to preserve human rights and prevent genocides from occurring. All of this is not to say that there are not principles governing humanitarian intervention- there must be time limits, the threats must be proved to exist and imminent, intervention must be proportional, and of course there is a big difference between unilateral and multilateral state action. For example, in Syria the United States launched air strikes in conjunction with France and the United Kingdom, giving their attacks more legitimacy on the international world stage as a multilateral action as opposed to a unilateral one-country action.
Humanitarian Intervention
Although a case can certainly be made for general intervention to prevent unpredictable state actors, a much stronger case can be made for humanitarian intervention. Humanitarian intervention is “the use of force by a state or states in the territory of another state in order to protect nations of that state, and possibly nationals of other states, from large-scale inhumane treatment and other severe violations of fundamental right which “shook the conscience of mankind” and are committed or condoned by the authorities of that state, unable or unwilling to prevent them.”. Within this context, perhaps the most important case is the Military and Paramilitary Activities within Nicaragua in which the International Court of Justice ruled that using force to preserve human rights was not an “appropriate method” of intervention. The Nicaragua Case additionally introduces the threat of force as jus cogens by introducing it on the same level of force as a peremptory norm. Another argument for humanitarian intervention would be that “…forcible humanitarian intervention [does] not conflict with Art. 2 (4) UNC since it was not used against the territorial integrity or political independence of any state and was not inconsistent with the UN purposes”. So the question becomes: Does the preservation of human rights take priority over the prohibition of force? Although there are few examples of humanitarianism as the sole reasoning for the use of force, there is an invitation for the United States to intervene. Iraq invited Western Nations including the United States to intervene in their region to fight ISIS and other terror groups, which resulted in the Security Council passing Resolution 2249 which called for use of force to stop terrorist groups in the region. Additionally, stabilization of the region is particularly important to consider in cases of civil war, seeing that it often affects the region beyond the country’s borders. Although there is a clear prohibition to intervene in a civil war, certain circumstances may arise as exceptions, like when large abuses of human rights take place, there is an argument to make that humanitarian intervention can proceed. For this however, several standards must be set in place. First and foremost, there must be proof of war crimes or atrocities by the accused state in accordance with the definitions set by the International Criminal Court. Additionally, all other possible courses of action should have already been attempted, proportionality should be observed, international humanitarian law should be observed and the ICJ should be notified of the intervention and also involved in monitoring the intervention. The best contemporary example of humanitarian multilateral intervention was NATO’s intervention in Kosovo. Considering that customary international law does not allow any exceptions to the use of force unless authorized by the Security Council, NATO intervention in Yugoslavia was not legal but it may have been legitimate. All things considered, there is a huge flaw in contemporary international law in not being able to address war crimes and human rights violations in a legal way. For this reason, countries such as the United States should create precedence by intervening in countries like Syria and continue to work in ways which are moral and legitimate. Although it is highly controversial for any type of armed intervention to take place but is still up for debate with many differing interpretations.
Conclusion
Due to recent events in which the Trump Administration has pulled out of Syria, the issue at hand is further highlighted in that one of the gravest mistakes being made in International Law today is the failure to stabilize regions. Not only stability, but also consistency would prove to be a net benefit to the United States and all global actors. It seems that in Syria, the United States has allowed for legality to surpass morality in their actions. As much as it is important to keep law as objective as possible, the United Nations has been unable to protect the Syrian people from chemical weapons. As President Trump pulls out of the region, terror groups including ISIS and Hezbollah will likely regain much of their lost territory. Additionally, persecuted minorities in the region such as the Kurds will be seriously impacted in losing U.S. support and more human rights abuses will likely occur as we have seen in the past when the United States prematurely pulls out of conflicts like the one currently taking place in Syria. Although we are yet to see the long-lasting results of the continuance of international terrorism within Syria, we already can see the hundreds of thousands killed and displaced. Not only is Syria affected, but the whole surrounding region has been flooded with refugees as a result of Syria’s terrorism against its own people. This leaves surrounding countries such as Jordan with hundreds of thousands of refugees and western countries such as the United States and United Kingdom with the responsibility to take on thousands of new refugees. For this reason, it is reasonable to deduce that the United States is directly involved in the conflict considering the burden which the United Nations, European Union, NATO, and other global organizations expect for the United States to provide humanitarian support to the region and to aid and take on many of their refugees. Additionally, ISIS will take back territory and presumably increase global terror attacks. To ensure that egregious policies such as chemical weapon use on civilian populations cease to exist, the world stage must reevaluate its own morality and also the logic behind prioritizing peacekeeping over human rights. In a world of rising terror threats, the United States of America should not be pulling back in fighting against ISIS in Syria and across the world. Until the United Nations Security Council is reformed, Russia will continue to veto draft resolutions from western countries regarding UN Sanctions and military intervention. Syria currently serves as Russia’s foothold in the middle east and its only Mediterranean port and thus will not be given up easily. The U.S. must act in Syria and in other escalating global conflicts to stop further human rights atrocities and crimes against humanity from occurring as long as the UN continues to prohibit force with such impossible standards. Appeasement has never been a successful doctrine in practice and the longer that there is no stability in Syria, the longer that the Assad government will become more difficult to overpower and the Russians will become confident in their presence in the region. International law is an ever-changing and subjective doctrine. Thus, the United States of America must be reminded to acknowledge this and move forward by setting the precedence of interfering in the region and helping the Syrian people in their darkest hour.
Table of Authorities (Primary Sources)
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (2005) ICJ Rep 168;
Country Reports on Terrorism 2017’ (US Department of State) Chapter 2: State Sponsors of Terrorism <https://www.state.gov/j/ct/rls/crt/2017/282847.htm>;
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14;
UNGA Res 2131 (XX) ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty’ (21 December 1965) GAOR 20th Session Supp 14, 11;
UNGA Res 2625 (XXV) ‘Declaration on Principles of International Law concerning Friendly Relations and co-operation among States in Accordance with the Charter of the United Nations’ (24 October 1970) GAOR 25th Session Supp 28, 121.
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