The frequently hideous Syrian civil war has attracted intense international examination. The legitimacy of the human-centered crisis spawned by this struggle is undoubted. International bureaus estimate over 120,000 Syrian deceases. [ 1 ] Evidence that Syrian forces deployed nervus gas is obliging. [ 2 ] The August 2013 UK authorities ‘Legal Note’ sets out a series of claimed justifications for international community human-centered intercession. [ 3 ] The Note suggests such justification exists even where the UN Security Council has non provided such countenance. [ 4 ]
The Syrian war is a authoritative international jurisprudence job with the parametric quantities framed by the title inquiry. The moral instance for intercession is obliging ; the legal instance is fraught with hazard. [ 5 ] This essay will look at the background of the civil war, the rules on the usage of force so the UK legal note shall be analysed and a decision will be drawn – finding the Syrian intercession is doubtful at best, absent of a Security Council mandate.
The ongoing Syrian civil war is decimating a province that in 2009 seemed positioned to re-enter the international community mainstream. [ 6 ] Western states had long regarded Syria as a ‘rogue’ province and avowed protagonist of anti-US terrorist act. The probationary diplomatic melt ended suddenly with the March 2011 Syrian rebellion that mirrored broader ‘Arab Spring’ protests. [ 7 ] Hopes for a peaceable declaration were lifted when the Syrian authorities removed a 48 twelvemonth ‘state of emergency’ , in evident acknowledgment of protestor demands for greater societal / political freedoms. This impermanent peace shortly disintegrated into fully fledged civil war. [ 8 ]
Economic and military countenances constituted the initial UN Security Council response to a quickly intensifying Syrian human-centered crisis. US and UK Security Council proposals empowering UN military intercession were vetoed by Russia and China. The UK ‘Note’ was published when important grounds became available refering the deployment of Syrian chemical arms against civilian populations. [ 9 ] Resolution of this issue was mostly achieved through diplomatic negotiations. Syria permitted international bureaus to inspect, and finally take / destroy chemical arms supplies. Negotiations to decide the larger, go oning war are ongoing. [ 10 ] Relevant international jurisprudence on usage of force rules are now examined against this background.
- Use of force rules
The cardinal rules engaged in this analysis extend from their UN Charter and customary international jurisprudence foundation. Charter Article 2 ( 4 ) provides that provinces shallchorusfrom the menace or usage of force against any other state’s territorial unity or political independency, or in any other mode inconsistent with UN intents. [ 11 ] This boldly phrased jussive mood, one consistent with the overarching Charter publicity of peaceable options in all international differences, is capable to two general exclusions. [ 12 ]
Right of self-defense
The first is the built-in right of self-defense, as sanctioned by Charter Article 51, and recognised as customary international jurisprudence right since the ‘Caroline’ incident. [ 13 ] Self-defense is accepted as including a preemptive work stoppage against another state’s forces or military installings, where the province pickings such action restricts the force used to contradict abona fide, immediate menace to its districts or political unity. [ 14 ] The air work stoppages directed by Turkey against Syria in response to missiles launched at its boundary line communities falls within this sphere. Paust offers this provocative but arguably sound appraisal of Turkey’s self-defense right, where Turkish lawful authorization is neatly distinguished from the suggested UK intercession claim of bastardy discussed in greater item below. [ 15 ] Under accepted Torahs of war, Turkey has the right to destruct chemical arms sites or other military marks, as these pose an immediate menace to its territorial unity. [ 16 ] The UK has no such power.
The terrorist act threats that decidedly formed post-9/11 are a suggested logical extension of the Article 2 ( 4 ) / 51/ customary jurisprudence continuum. [ 17 ] Since 2011, there is a clear academic consensus that in appropriate fortunes, a terrorist / non-state histrion menace posed to a province may deserve a proportionate, time-limited military response. [ 18 ] Charney suggests that direct Security Council engagement in anti-terror enterprises would further extremely desirable consistence in this of import country. [ 19 ]
The claimed human-centered intercession philosophy as a principled exclusion to Article 2 ( 4 ) restrictions has generated important academic and political contention. Such intercession has been cited in support of the 1998 NATO engagement in Kosovo. Simma epitomises the scholarly sentiment supportive of the exclusion. [ 20 ] He suggests that in endangering air work stoppages against the Yugoslavian authorities forces, Article 2 ( 4 ) wasPrima facieviolated. [ 21 ] Whilst suggested necessity and human-centered philosophies were non operative, Simma contends that Kosovo represented a ‘hard instances ‘ affecting awful quandary. In such exceeding instances, “….imperative political and moral considerations leave no pick but to move outside the law” . [ 22 ]
Alternate positions include those advanced by Koskenniemi. [ 23 ] He expresses a concern, surrounding on dismay that human-centered intercession is an all excessively convenient screen for ‘shallow and unsafe moralisations’ that potentially transform international jurisprudence into an noncritical foreign policy picks instrument. [ 24 ] Taken to its logical, and ( for Koskenniemi ) unsafe decision, powerful states that can non procure needed Security Council countenance for intercession will mention moral jussive mood as legal justification. Left unchecked, the international legal construction is destabilized. With these places identified, the UK ‘Note’ legal propositions are critically evaluated.
- The ‘Note’ deconstruction and analysis
The UK authorities knew that the Security Council would non back international community military intercession in the Syrian war, notwithstanding chilling grounds that deployment of Syrian chemical arms violated theChemical Weapons Convention( CWC ) [ 25 ] and likely constitutes a offense against humanity. [ 26 ] The Note is therefore every bit much a political instance for intercession as its purported legal justification. The human-centered intercession claim as premised on the three stated bases is now examined.
The ‘doctrine’ claim
The bold UK contention that its proposed Syrian intercession is consistent with a human-centered philosophy assumes that incontestable international legal authorization exists to back up this contention. It is a suggested statement that this is the first and most outstanding failing in the UK place. If a true legal philosophy exists, the anterior Kosovo and Iraq intercessions represent possible doctrinal case in points. It is notable that whilst the Kosovo air work stoppages were mostly justified in the subsequent legal commentaries [ 27 ] , Iraq is a far flimsier authorization. Gray is one of legion bookmans to separate these two events. [ 28 ] She suggests that the US and UK have become progressively isolated in their insisting that human-centered intercession needfully justifies usage of force, without of all time prosecuting in a robust articulation of rules that support divergence from the expressed Article 2 ( 4 ) linguistic communication and every bit settled right of self-defence exclusions. [ 29 ]
The failing of the ‘doctrine’ claim is made clearer when the available case in points are jointly assessed. The International Court of Justice ( ICJ ) provides important, if slightly generalized counsel inNicaragua. [ 30 ] The ICJ expressly states that usage of force is non an acceptable agencies through which regard for human rights is decently monitored or promoted. [ 31 ] International jurisprudence does non recognize any general right of intercession ; the US Nicaraguan intercession hence violated international jurisprudence. [ 32 ] A 2nd persuasive statement flows from this ICJ finding. Human-centered intercession is an bing, if lawfully unsupported province pattern. The ICJ legislative act includes ‘state practice’ as one of the enumerated possible international jurisprudence beginnings. [ 33 ] The weight of international authorization confirms that pact and customary jurisprudence norms can non be trumped by province pattern. In the present Syrian fortunes, it is evident that pact ( through the UN Charter ) and customary jurisprudence denounce usage of force except where self-defense is warranted.
It is on this point that the UK Note fails to bridge the spread betweenmoraljussive mood andlegaljustification. Human-centered evidences otherwise persuasively progress the proposition that provinces can non exert a purported privilege to allow human rights to be wantonly violated. Where other provinces intervene, cardinal human rights defined in legion international instruments are protected and preserved. However, as attractive or obliging the current Syrian state of affairs may look as a human-centered cause, the older Stone appraisal of international jurisprudence ‘loopholes’ remains informative [ 34 ] . International jurisprudence has an inherently obscure quality, given its assorted beginnings and the influence of pattern and usage in its development. It would be unnatural to the point of clear incompatibility, if international jurisprudence ensures self-defense can merely originate in the specific Charter and normative fortunes, yet an single province can claim human-centered evidences as higher authorization.
The Note conveys tangible UK authorities defeat with evident Security Council inaction that precludes military intercession, no affair how desirable the human-centered aims. The Note verb ‘blocked’ is disapproving in this context. However, the legal justification asserted in Note paragraph 4 is significantly undermined when anterior Security Council-sanctioned military intercessions on express human-centered evidences are recalled. The Iraq [ 35 ] and Libyan [ 36 ] Resolutions confirm that Security Council mandate is the exclusive lawfully allowable way to set about human-centered intercession. It is a calamity that international community spirit, as represented by the Security Council, has non been efficaciously mobilised to convey human-centered alleviation to threatened and displaced Syrian civilian populations. The 22 February 2014 Security Council declaration demands that all parties ( peculiarly the Syrian governments ) , quickly allow rapid, safe and unhampered human-centered entree for UN human-centered bureaus and their implementing spouses, including across struggle lines and across boundary lines ” . [ 37 ] The Resolution does non include any countenances for its breach. [ 38 ]
Security Council inactivity, nevertheless condemnable does non warrant one-sided UK military action. [ 39 ] Absent of Security Council mandate, otherwise obliging human-centered claims can non get the better of the corporate weight of international legal case in point, comparatively clear UN Charter linguistic communication, and a organic structure of scholarship that tends to back up the decisions advanced here. The moral justification implicit in the UK place on Syria is attractive. The apparition of human-centered justification being improperly employed by powerful states in less compelling hereafter fortunes is existent.
One may reason that foreign intercession is even more desirable now ; given the disorganized Syrian Rebel ‘leadership’ prompts serious inquiries whether these forces are more committed to human rights than the Assad government. [ 40 ] These observations do non change international jurisprudence jussive moods, nor should expediency be substituted for the particular, if extremely flawed Security Council authorization where geopolitical involvements frequently predominate over effectual international responses to menaces against universe peace. The hazard that human-centered intercession would be relied upon as a screen for more bare and clearly prohibited ‘aggression’ against another province is an issue that the UK ‘Note’ justifications fail to chase away. As Garvey [ 41 ] , and the earlier Fitzmaurice [ 42 ] beginning each confirm, Charter Article 2 ( 4 ) and its intended bar of aggression by one province against another must be given an expansive definition, or the full peace publicity Charter doctrine is soberly compromised.
The Syrian civil war and the UK attempts to call up support for human-centered military intercession underscores an obvious spread between moral jussive mood and lawfully allowable international community response. A province committed to broad democratic rules and the overarching human rights ethos encouraged under international jurisprudence ought non to sit lazily by and watch a authorities commit peculiar ferociousness on defenceless civilian populations. At its nucleus, the UK ‘Note’ is a supplication to the international community to move now, salvage guiltless lives, and kind out the legal deductions subsequently. The Kosovo illustration provides fortunes most closely aligned to those revealed in Syria.
The harder, sobering decision prompted by the UK ‘Note’ analysis is that international jurisprudence does non expressly recognize a human-centered intercession philosophy. Ad hoc solutions, no affair how apparently moral, or otherwise capable of relieving existent agony, can non be preferred over the current international constructions that constitute the current international community-sanctioned criterion. There is small inquiry that international jurisprudence would go more consistent and consistent if the international community could craft express legal instruments to better determine its human-centered intercession model.
A concluding remark is provided refering the legal virtues of the UK place, one based on its intended practical results. The international community must take no comfort from the corporate inability to forestall the negative ongoing Syrian war effects for the affected civilian population. This begs the inquiry of why the UK deems this peculiar human-centered crisis to demand intercession, where others, past and current ( such as the Darfur wars ) did non ask for such determined UK attending. This UK incompatibility is a secondary but effectual ground why the ‘Note’ has doubtful legal virtue.
- Table of Cases
Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ) ,[ 1986 ] ICJ Reports 14
- Table of Legislation
- Conventions and pacts
Chemical Weapons Convention 1992
Rome Statute of the International Criminal Court 2002
United Nations Charter 1945
Universal Declaration on Human Rights 1948
Security Council Resolution 688, adopted on 5 April 1991
Security Council Resolution 1970, adopted on 26 February 2011
Security Council Resolution 2139, adopted 22 February 2014
- Secondary beginnings
- Texts and diaries
Brunnee, J and Toope, S ( 2004 ) ‘The Use of Force: International Law After Iraq ‘ 53 ( 4 ) ICLQ 785
Byers, M ‘Terrorism, ‘The Use of Force and International Law After 11 September ‘ ( 2002 ) 51 ICLQ 401
Charney, J ‘The Use of Force against Terrorism and International Law ‘ ( 2001 ) 95 ( 4 ) AJIL 835
Chesterman, S ‘Hard Cases Make Bad Law’ in Anthony Lang, ed. ,Merely Intervention( Georgetown University Press, 2003 ) , pp 50-67
Greenwood, C ‘International Law and the Preemptive Use of Force: Afghanistan, Al-Qaida, and Iraq ‘ ( 2006 ) 4San Diego Int’lLJ 7
Greenwood, C ‘International Law and the NATO Intervention in Kosovo ‘ ( 2000 ) 49 ICLQ 926
Fitzmaurice, G. G. ‘The Definition of Aggression ‘ ( 1952 ) 1 ( 1 ) ICLQ 137
Franck, T ‘Terrorism and the Right of Self-Defense ‘ ( 2001 ) 95 ( 4 ) AJIL 839
Franck, T ‘On Proportionality of Countermeasures in International Law ‘ ( 2008 ) 102 AJIL 715
Gardam, J G ‘Proportionality and Force in International Law ‘ ( 1993 ) 87 ( 3 ) AJIL 391
Garvey, J ‘UN Definition of Aggression: Law and Illusion in the Context of Collective Security ‘ ( 2008 ) 17 Va. J. Int’l L 177
Gray, C ‘From Unity to Polarization: International Law and the Use of Force against Iraq ‘ ( 2002 ) 13 ( 1 ) EJIL 1
Henkin, L ‘The Reports of the Death of Article 2 ( 4 ) Are Greatly Exaggerated ‘ ( 1993 ) 65 AJIL 544
Koskenniemi, M ‘The Lady Doth Protest Too Much ‘ : Kosovo, and the Turn to Ethical motives in International Law ‘ ( 2002 ) 65 ( 2 )Modern Law Review159
Nayak, G and Chhaba, R ‘The Right of Self-Defence Under International Law’ ( 2011 ) , 6 ( 1 )International, Transnational & A ; Comparative Criminal Law eJournal, available at & lt ; hypertext transfer protocol: //dx.doi.org/10.2139/ssrn.1974451 & gt ; 21 February 2014
Paust, J ‘Use of Military Force in Syria by Turkey, NATO, and the United States ( 2013 ) 34University of Pennsylvania Journal of International Law431
Simma, B ‘NATO, the UN and the Use of Force: Legal Aspects ‘ ( 1986 ) 10 ( 1 ) EJIL 1
Rock, J ‘Hopes and Loopholes in the 1974 Definition of Aggression ‘ ( 1977 ) 71 AJIL 224
Travis, H ‘War-gaming the ‘Arab Spring ‘ : Predicting Likely Outcomes and Planning U.N. Responses’ ( 2012 ) , 45,Cornell International Law Journal, 1
- Other beginnings
BBC News ‘Syria’ ( 2014 ) available at: & lt ; hypertext transfer protocol: //www.bbc.co.uk/news/world-middle-east-14703995 & lt ; hypertext transfer protocol: //www.bbc.co.uk/news/world-middle-east-14703995 & gt ; 21 March 2014
Bryant, N ‘As Syria devours itself, UN pothers on aid’ ( 20 March 2014 ) BBC News, available at & lt ; hypertext transfer protocol: //www.bbc.co.uk/news/world-us-canada-26277562 & gt ;
UK Government Legal Note 29 August 2013 available at & lt ; hypertext transfer protocol: //www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-government-legal- position/chemical-weapon-use-by-syrian-regime-uk-government-legal-position-html-version ( accessed 11 March 2014 )