Amid reports that Syrian President Bashar al-Assad used chemical weapons against civilians in a recent attack, the United States government has been leaning toward the likelihood of a military intervention in Syria.  Secretary of State John Kerry stated on Monday that there was “undeniable evidence” that Syrian government had used chemical weapons against its own people.  Kerry called for “accountability” in light of this type of attack, which he called a “moral obscenity.”  Secretary of Defense Chuck Hagel told the BBC that U.S. forces were ready to carry out a strike against Syria, and that such a strike could take place within several days.  Senior U.S. officials also stated that strikes could be carried out as early as Thursday (August 29).  Finally, President Obama held telephone talks with the Australian Prime Minister Kevin Rudd and the French President Francois Hollande, in order to potentially lay out the groundwork for a near-future military strike.  In addition to the United States’ government’s recent assertions that a military strike against Syria may be in the works, other countries followed suit and expressed similar sentiments, highlighting the possibility of a joint military action against Syria by the United States and some of its allies, namely Great Britain and France.  David Cameron, the British Prime Minister, recalled members of Parliament from vacation and announced that lawmakers would vote on Thursday on any proposal for action.  Cameron characterized the alleged attacks as “absolutely abhorrent,” called for action from the international community, and stated that Great Britain was considering a proportionate response.  Both the UK Foreign Minister and the French Foreign Minister Laurent Fabius hinted that a military action without United Nations Security Council authorization may occur, because of great humanitarian need.  It is thus possible that the United States, Great Britain, and France would engage in some type of presumably limited military action against Syria without Security Council approval, in what could constitute a true humanitarian intervention (because both Russia and China seem to oppose any type of military intervention against Syria, it is highly likely that these countries would block any proposed Security Council resolution authorizing the use of force in Syria).

Does international law authorize states to use force against other states in instances other than self-defense and Security Council authorization? Some have suggested that the 1999 NATO-led military intervention in Kosovo constitutes a precedent for humanitarian intervention, and that this precedent could apply to the Syrian situation. However, Kosovo was referred to as “sui generis” by the United States’ officials, who were at the time quick to point out that Kosovo could not be used as precedent for the assertion that states may use military force against other states based on humanitarian need and without Security Council approval.  In addition, scholarly opinion is at best mixed on the subject of whether humanitarian intervention has become an international norm authorizing the unilateral use of force.   It is thus doubtful that the case of Kosovo can serve as strong legal precedent for the Syrian situation today.  It will be interesting nonetheless to follow academic debate on this subject, and we hope that more Intlawgrrls will post on the topic in the near future.

Does the fact that Syrian authorities have likely used chemical weapons somehow change the legal analysis about the use of force? In other words, would countries such as the United States, Great Britain, and France have a better legal argument to justify their potential military intervention in Syria without Security Council authorization just because chemical weapons seem to have been used by Assad? Not necessarily.  As Kevin Jon Heller pointed out on Opinio Juris:

Why is the indiscriminate slaughter of civilians with chemical weapons unacceptable, but not the indiscriminate slaughter of civilians with ordinary weapons? Why should the US be willing to intervene if chemical weapons kill 1,000 civilians, but not if ordinary weapons kill tens of thousands?

In other words, the use of chemical weapons, as well as indiscriminate attacks against civilians, are terrible and violate international humanitarian law; however, they do not influence the legal analysis about the unilateral use of force…. unless one can prove that humanitarian intervention has risen to the level of a binding customary norm, constituting thereby an exception to the ban on the use of force absent self defense and Security Council authorization.

Finally, it is interesting to highlight recent commentary on the Syrian situation by Richard Haass, president of the Council of Foreign Relations and former high-level government official.  Haass had been a proponent of the so-called “involuntary sovereignty waiver” theory in the 1990’s – the idea that countries which engage in reprehensible actions, such as harboring weapons of mass destruction, promoting terrorism, or committing atrocities against their own people lose their sovereignty and thereby invite intervention by other countries (such as the United States) (Professor Michael Kelly and yours truly have written about the involuntary sovereignty wavier theory in law review articles as well as a recent book).  While Haass seemed to embrace the idea that law-abiding nations could legally intervene in unilateral military fashion against “rogue” states, his response to the Syrian catastrophe seemed more nuanced. Haass stated that while military action may be needed against Syria to prevent a further use of chemical weapons, any such military action should be carefully calibrated to avoid another prolonged military conflict.

While military action may be needed and necessary in Syria, it is uncertain whether international law in its present state truly authorizes countries to engage in unilateral military action against Assad’s regime.  If the United States, Great Britain and France decide to launch a military offensive, their actions may constitute the first instance of humanitarian intervention and may lead toward the development of new customary norms of international law.