Law, Morality and Red Lines
by Peter Sutch, Professor of Political and International Theory at Cardiff University and Chairman of UNA Wales
Despite UNA-UK’s support for the Responsibility to Protect (R2P) and despite the multiple (and mostly welcome) claims that R2P applies to the tragic situation in Syria, the most recent claims in the wake of the use of chemical weapons are troubling to say the least. The BBC’s legal correspondent Clive Coleman, recognising that the argument is contested, argued that, “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’.”
This claim (and similar claims) added to the argument, first made over a year ago by President Obama and repeated often in the days since the attack, that the use of chemical weapons is the ‘red line’ between intervention and diplomacy which has been the basis for urgent talks on unilateral military action to be taken against the Assad regime in the immediate future.
The arguments are flawed and those who believe the international community does have a responsibility to the peoples of Syria have to think about these claims in more detail. Let’s go through them.
R2P provides a legal framework for intervention without the consent of the UN Security Council (UNSC).
No it does not. R2P is not a legal framework in itself – at best it is a reminder to international actors of their existing obligations under the UN Charter, Human Rights and humanitarian law (all of which deny the right to use force outside of the UNSC framework to address violations of those norms). The definitive text is paragraph 139 of the 1995 World Summit Outcome Document that reads:
The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
Even this much is contested and there has been significant criticism of the doctrine so that, as Dapo Akande demonstrates, the claim that customary international law may have developed beyond this position is untenable. Some illustrious commentators (including Geoffrey Robertson QC) have argued that even without R2P there are legal grounds for unilateral intervention. However, to make this case, one would have to ignore the normatively superior status of the UN Charter which under article 103 states ;
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
And there is the jus cogens status of article 2.4 prohibiting the use of force. There is no treaty or customary law that allows unilateral intervention so let us not permit ourselves the luxury of thinking that, should we use force in response to the atrocities in Syria, we are obeying the law.
So why the confusion? Moral rather than legal imperatives to intervene
If we choose to violate the settled law of nations because we believe our moral responsibility to the peoples of Syria outweighs those obligations, we need to be very clear about our decision.
Here the argument turns on the legitimacy of unilateral action where the UNSC is deadlocked (as it is now with Russia and China opposing military action). When NATO intervened in Kosovo in 1998 without the agreement of the UNSC, the argument that military action was essential to provide humanitarian protection to civilians was enough to see the intervention described as illegal yet legitimate by the Independent Commission on Kosovo. This conclusion recognised that diplomatic efforts had been exhausted and that the levels of humanitarian suffering were so great that morally, if not legally, action could be legitimate.
Moving the argument from a legal to a moral framework recognises that the imperatives of humanitarianism are as important as the traditional rights of sovereign states. This is to be welcomed but with caution. Unlike law, moral judgment does not rely on the consensual and institutional framework of the international legal order. We are all aware of the challenges the institutions of the UN present to humanitarian protection, but rules that structure diplomatic dialogue and decision making protect the sovereignty of states and provide a mechanism to keep members talking in the absence of consensus. Moving outside this framework (flawed as it may be) requires care if it is not to lead to the breakdown of multilateral diplomatic relations that have been the foundation of contemporary international relations. That said, the moral imperative to prevent and to respond to gross humanitarian atrocities is itself an achievement of contemporary diplomacy even if we have to walk the high wire of global affairs without the institutional framework to support and modify our judgments.
Moral imperatives and just war principles
If we accept, as I believe we should, that R2P does express a moral imperative to prevent gross violations of humanitarian law and protect victims of such atrocities, there are other, vitally important, checks and balances on our decision making. Here our decisions are not checked by the will of other states in the UNSC but by the age old reasoning of Just War Theory.
Just War Theory has, for thousands of years, explored the morality of going to war (Jus ad Bello) and of conducting wars (Jus in Bello). Its principles have stood the tests of time remarkably well and its tenets ask the central questions we must all answer before believing that war is justified. The questions ask whether war is a last resort, whether the war is to be fought for the right intention, whether it is ordered by a rightful authority, whether the ends of the conflict can be achieved with only a reasonable or proportionate loss of innocent lives, and whether there is a reasonable chance of success. Using this simple framework we can think through the argument that the use of chemical weapons is the red line between diplomacy and military intervention. Not all of these thresholds have to be passed but we must give strong reasons if, as has been suggested, we are to ignore right authority (the UNSC) in favour of considerations of last resort or right intention (saving civilians).
The red line between diplomacy and military intervention
Even if we accept that our moral responsibility to the peoples of Syria outweighs our obligations under the UN Charter, is unilateral action now justified because of the use of chemical weapons?
The atrocities in Syria have been evident for nearly two years with the sorts of war crimes and crimes against humanity that concern R2P perpetrated without the need for chemical weapons. It therefore seems to me that the ‘just cause’ threshold was passed long ago. The use of chemical weapons is another example of such gross violations of humanitarian law but it is not more heinous (or legally significant) than the massacres that have been a constant part of this tragic civil war. On this basis I do not think the just cause or last resort arguments have changed.
The issues holding the international community back (apart from opposition of Russia and China in the UNSC) concern 1) the question of whether there is a reasonable chance of success, and 2) whether such success could be achieved without a disproportionate toll on innocent Syrian civilians. Again I cannot see how the deployment of chemical weapons alters the judgments made thus far (unless there is compelling evidence that tells us not just that the Assad regime has used chemicals in this attack but that they are likely to significantly increase their use of such weapons – to engage in genocide etc.).
It is interesting that most experienced military commentators have urged caution, worrying about the unclear objectives and unintended consequences of any use of force. If these experienced military planners and leaders cannot see the end-game or the goals of war then we should take note. If we are not clear about the precise objectives of a military strike or about the potential consequences of such a strike (to Syria, its neighbours, to the coalition of the willing in the case of a military response, to the relations between the Permanent 5 members of the UNSC), we should be cautious. The less certain we are about these questions, the less certain we can be that any ‘collateral damage’ (by which I mean the unintended deaths and injuries to innocents in Syria and beyond) can be morally justified. Here then the moral and the legal arguments for military intervention are not clear cut in favour of unilateral action.
None of this denies the fact that gross humanitarian crimes have been and continue to be perpetrated in Syria. The impotence of the UN and of powerful and secure states in the face of this moral and legal outrage is profoundly disturbing, but restraint in the face of the legal, moral and instrumental arguments against intervention at this point seems essential. Our leaders have the responsibility to make these decisions. But we in UNA Wales, as supportive as we have proven to be on the basic tenets of R2P, need a voice in the public debate and we need to be clear about our ground.
Peter Sutch’s new book (with Edwin Egede) The Politics of International Law and International Justice is published by EUP this August.