The main purpose of this article is to answer the legal question, which is chiefly raised in the Western countries about the justification, if any, in law for the legal basis of international reaction against the Syrian action.
The Kosovo intervention in 1999 was justified by humanitarian concerns. It is trite knowledge that the words “international law” conveys the sense of a set of established international rules and authorities agreed by all nations, and easily understood and applied by them. However, regrettably, that is far from the case and, in practice, it is difficult, if not impossible, to get definitive rulings in international law involving military intervention. There is no international court on hand to give the legal go-ahead to intervene. There did exist the leading case of such intervention dealing with the matter of the Ugandan and Tanzanian crisis, but, that too, seems to have been conveniently forgotten by those whose task it is to remind others of the actual realities of a matter. In the early eighties, this scribe had written a piece on this matter. But since then, a new aspect of this perspective has been introduced by the developments at the UN.
One that comes to mind is about “humanitarian intervention”. Let us, therefore, see if there is a developing legal framework for military intervention on humanitarian grounds. Leaving aside the historical basis of the use of this doctrine, there does exist what is generally known as ‘Responsibility to Protect’, or usually referred to as R2P; it was born out of the humanitarian disasters of the 1990s in Kosovo and Rwanda.
This theory is widely but not universally accepted and has three principal elements:
i States must protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity, while,
simultaneously, the international community has an obligation
to help states prevent such crimes.
i Where there is strong evidence of these crimes and a state cannot or will not stop them, the international community should exhaust all peaceful means in seeking to bring the atrocity to an end.
i If all that is done, and fails, the
international community can
use military force.
In the theory of laws in order to have maximum legitimacy, military intervention should be authorised by the UN Security Council. It holds a unique position as the primary arbiter on the use of force in international law. However, as in the case of Syria, it may be hamstrung by a lack of consensus, with one or more members opposed to action.
Coalition of the willing: In these situations, according to one view, R2P provides a legal framework for the international community to use military force as a last resort - either by way of a regional coalition or a so-called coalition of the willing.
There are at least three safeguards in R2P:
i There needs to be powerful
evidence of an ongoing atrocity held to constitute a violation of
i Peaceful measures, such as
diplomacy and sanctions, must have been exhausted.
i Any force used must be specifically targeted at stopping the atrocity and protecting the civilian
In other words, it is a ‘limited’ power to act. However, if all of the criteria are met, then the limited and targeted use of military force may, according to some lawyers and commentators, be legal in international law under R2P. Ultimately though, military interventions in these circumstances are up to governments rather than lawyers. It is for them to make the case for military intervention by showing that the legal requirements have been met. As in the case of Syria, such protagonists may argue that there is an ongoing atrocity, all peaceful means of stopping it have been exhausted and that targeted military action could achieve the twin goals of ending the atrocity and protecting the civilian population.
The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan and professor at Harvard University.