The civil war in Syria has re-captured the international media spotlight. On the ground, the situation is complex and constantly evolving, with events ranging from bullets fired at United Nations inspectors to Russian naval ships on alert in the Mediterranean. Meanwhile, the West is bracing for a military intervention to “punish” Syrian President Bashar al-Assad for allegedly deploying nerve gas against his own civilians. Disturbing photos of lifeless children have made observers painfully aware of the merciless brutality of war.
The push for Canada to intervene is emotionally and morally compelling. Accumulating body counts remind us of our indifference when hundreds of thousands of Rwandans were slaughtered in 1994. Our subsequent interventions is Kosovo and Libya, however, remind us that inaction is not the only option. Many people believe that we have the power and obligation to stop the suffering. Nonetheless, this is not a consensus view. Many experts agree that a Western intervention is likely to be unsuccessful and can only prolong the suffering.
Similarly dominating the media are two legal claims worthy of investigation. First, Western politicians allege that by using chemical weapons against his own civilians, President Assad has violated international law. Is this the case? The original intention of the Geneva Protocol was only to prohibit their use between states but not in purely domestic wars. The Chemical Weapons Convention prohibits their use against civilians, but Syria is not a party to that treaty. Due to widespread state practice and sense of obligation, however, a reasonable case can be made that the unconditional prohibition on chemical weapons is customary international law. This would mean Syria has violated the prohibition, regardless of its non-party status.
The second legal issue is whether this would permit a Western intervention. The United Kingdom has asserted that “the legal basis for military action [into Syria] would be humanitarian intervention.” Along the same lines, Allan Rock and Lloyd Axworthy have argued that the “responsibility-to-protect” (R2P) doctrine would justify a military intervention. The R2P doctrine originates from a 2001 report of the International Commission on Intervention and State Sovereignty which outlines the responsibilities of states in protecting civilian populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. If states manifestly fail in exercising this responsibility, the international community can take military action as a last resort.
However, the R2P doctrine in itself has no basis under international law. Under the Charter of the United Nations, the use of force against a sovereign is only legally permissible in two cases: (1) in self-defence, or (2) with a Chapter VII authorization from the Security Council. In the case of Syria, the West has neither justification. There is no self-defence argument, and it is a near-certainty that Russia will veto any Security Council authorization.
Therefore, any claim by a head of state that intervention is legally justified solely based on humanitarian grounds is either mistaken or blatantly dishonest. As University of Ottawa law professor Craig Forcese observes, R2P is merely a tool of discourse: “R2P may be a useful addition to the parlance and moral justifications available to the Security Council in exercising its powers. It does not, however, change those powers or compel their deployment.” As such, an unauthorized bombing campaign or invasion would directly violate the Charter of the United Nations, making it an act of international aggression.
If the West chooses to take military action in Syria, it should be honest that the reason for doing so is strictly moral—not legal in any sense of the word. As noted above, much of the moral debate reflects the inherent tension between an undeniable imperative to protect civilians and the possibility that military intervention will only prolong civilian suffering. In the face of this uncertainty, reasonable people can disagree about the moral case for intervention. However, it is dishonest—not to mention logically dubious—to claim one is upholding international law by undertaking an illegal war of aggression.
Bryce Dillon, JD/MA Candidate, University of Ottawa and Norman Paterson School of International Affairs