We asked Dapo Akande, co-director of the Oxford Institute for Ethics, Law and Armed Conflict and a lecturer in public international law at the University of Oxford, to weigh in on the legality of a strike.
Syria Deeply: How could President Obama make intervention in Syria legal?
Dapo Akande: There’s a difference of opinion there, but most people would take the view that he does need the Security Council’s authorization. There’s a view that says that even without it, states can use force for humanitarian purposes. This is the Doctrine of Humanitarian Intervention, or now called responsibility to protect. But the U.S. has never before articulated this as a rule of international law. Also, most states reject this doctrine of humanitarian intervention or the view that the responsibility to protect permits action outside the Security Council. The U.K. is an advocate of it, but even in Kosovo in 1999, the U.S. carefully refrained from arguing that force is legal just because there is a humanitarian need.
SD: Why?
DA: Most states reject it because they are suspicious that other states could then unilaterally decide that they could use force in states that they consider are having a humanitarian crisis. There’s a fear it could be abused. The other reason that many scholars of international law reject it as well is because using force for humanitarian purposes, especially when done unilaterally, might not solve the problem, it might even make it worse. It’s the dilemma we face now: is it going to make things worse in Syria?
We speak about using force for humanitarian purposes, and that’s a goal, but it’s not necessarily going to be achieved. Even with something like the intervention in Kosovo, which many regard as a successful case of humanitarian intervention, it’s hard to tell if it did more good than harm. I always find it cautionary that when the International Criminal Tribunal for the former Yugoslavia indicted people for crimes committed in Kosovo, almost all of those crimes, the overwhelming majority, occurred not before NATO’s intervention, but after it began. So did NATO’s intervention make the humanitarian situation better or worse?
SD: What are the consequences if he goes forward without the U.N.’s approval?
DA: If he doesn’t get the Security Council’s authorization to go in, the consequences are going to be more long term than short term, for a violation of international law. If there is a violation, it makes it much more difficult for the U.S. to oppose force in future situations where they don’t want force to be used.
It’s unlikely you’ll see consequences immediately. What it does complicate is the matter of referring [Syrian regime crimes] to the International Criminal Court (ICC) if that’s a goal the U.S. has, and I suspect it is. To the extent the U.S. and others become embroiled in Syria, it makes referring matters to the ICC more complicated, because they’ll have to be more careful of their own actions.
They would definitely try to demonstrate that there was humanitarian need; the U.K. foreign secretary has already been trying to do this. The U.K. feels there’s an overwhelming humanitarian need to use force. The argument would be that the use of chemical weapons crosses that threshold.
SD: What’s NATO’s role in this equation?
DA: The position for NATO is no different from other states. It’s just a foreign power, and the position will not be any different. An angle that has not been tried is to try to get the U.N. General Assembly to try and approve the use of force, or to give some kind of authorization. The U.N. charter doesn’t explicitly say that the General Assembly can do this, but they have done it in the past. It goes back quite some way: the General Assembly adopted a resolution back in the 1950s called the Uniting for Peace Resolution, in which they declared they have this power to act when the Security Council is blocked. The advantage of acting through the General Assembly is that there is no veto power. It would be collective, without Russia or China having a veto.
SD: How likely is it the U.N. General Assembly will be the route?
DA: The likelihood of its use is slim because it hasn’t been done in a while. But this case might be the case to do it, because the General Assembly has already been active on Syria. It’s passed a number of resolutions on Syria. There could be a number of Arab countries who would be willing to use it.
SD: What’s the difference between Syria and other recent cases of military intervention?
DA: The main difference between Syria and Libya is that in Libya, we had a Security Council resolution. The setting is of course the same in Syria, by which I mean we have a civil war scenario in which the government is using excessive force and committing brutalities, but in Libya the Security Council was able to adopt a resolution.
SD: What do you expect we will see in the coming weeks?
DA: It looks like we’re going to see some use of force. It’s not quite clear to me how the U.S. will justify it. It hasn’t in the past advocated humanitarian intervention, and this is the dilemma they face. They will need to put forward some legal justification, and they have no precedent. In Kosovo, which is perhaps the closest precedent, the U.S. was able to say that the Security Council had demanded that Yugoslavia do certain things and that although the Council had not authorized force specifically, NATO was simply acting to enforce the will of the Security Council. Here, of course, the Security Council hasn’t made demands, and it’s not possible to argue that this would be enforcing the will of the Security Council.