This House believes military action to intervene during atrocities without United Nations Security C

When a massacre is about to happen it is legal to intervene to prevent that massacre. The ‘Responsibility to Protect’ which was accepted by the UN in 2005. Resolution 60/1 at the 2005 World Summit stated, there was international responsibility “to help to 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.” Though this will only happen “should peaceful means be inadequate and national authorities are manifestly failing to protect their populations”.^[1] This is most certainly the case in Syria where the national authorities are the ones doing much of the killing.

It must be proved that the Syrian regime is responsible for the attacks; the US and UK say there is such evidence but so far the link is not crystal clear. Even the UK government accepts that there must be “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief”.^[2] As the doctrine states peaceful means must have been tried – and in Syria after two years of conflict we can safely say a peaceful resolution is not in sight. And the use of force must be proportionate – which since there is no plan for a full scale invasion in Syria it will be. [3]

[1] United Nations General Assembly, ‘Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’, Resolution 60/1 2005, p.30 http://www.un.org/en/preventgenocide/adviser/pdf/World%20Summit%20Outcome%20Document.pdf#page=30

[2] ‘Chemical weapon use by Syrian regime – UK Government legal position’, gov.uk, 29 August 2013, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235098/Chemical-weapon-use-by-Syrian-regime-UK-government-legal-position.pdf

[3] Cassese, Antonio, ‘Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’, EIJL, Vol.10, 1999, http://ejil.oxfordjournals.org/content/10/1/23.full.pdf

In the case of Syria these conditions have not been met; the evidence has not yet been provided – the weapons inspectors have yet to report, there have been very few peace talks to try to reach a peaceful solution or attempts at peaceful coercion such as sanctions. Will the attacks be proportionate? They will simply cause more damage and unless they are very large will not stand a chance of halting the violence.  

Moreover in general terms it is difficult to see whether a responsibility to intervene really exists. There does not seem to be much agreement that humanitarian distress and the need for urgent relief allows unilateral action if the state that is in need of relief does not want it. There is certainly very little state practice (well not since 19^th century imperialism anyway) where it has happened.^[1] Even in the last decade there have been failures to intervene against states killing their own civilians in Chechnya, North Korea[2] and Uzbekistan.[3]

It is notable that this was very much scaled back from a more general doctrine of humanitarian intervention. This doctrine does not allow for any nation to take it upon itself to ‘protect’ another’s civilians rather it provides an opportunity for the United Nations to do so.[4] “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” this simply provided a mandate for the UN Security Council to intervene in such situations.

[1] Booth, Robert, ‘Syria: legal doubt cast on British government’s case for intervention’, theguardian.com, 29 August 2013, http://www.theguardian.com/world/2013/aug/29/syria-legal-doubt-british-intervention

[2] Ryall, Julian, ‘Up to 20,000 North Korean prison camp inmates have 'disappeared' says human rights group’, The Telegraph, 5 September 2013, http://www.telegraph.co.uk/news/worldnews/asia/northkorea/10288945/Up-to-20000-North-Korean-prison-camp-inmates-have-disappeared-says-human-rights-group.html

[3] ‘Uzbekistan: No Justice 7 years after Andijan Massacre’, Human Rights Watch, 12 May 2012, http://www.hrw.org/news/2012/05/11/uzbekistan-no-justice-7-years-after-andijan-massacre

[4] Thakur, Ramesh, ‘Is America now becoming an international outlaw?’, The Japan Times, 3 September 2013, http://www.japantimes.co.jp/opinion/2013/09/03/commentary/is-america-now-becoming-an-international-outlaw/

A second possible justification for intervention is when the state that is intervening against is itself breaking international law such as the Chemical Weapons Convention or the Nuclear Non-Proliferation Treaty. The intervention would then be to force compliance of the treaty; this would mean forcible disarmament of illegal weapons. In the case of Syria the country could be deemed to have violated its own legal obligations due to its having broken the 1925 Geneva Protocol^[1] that bans the use of chemical weapons. Since manufacturing and possession of these weapons is banned if it is considered that having such weapons is a ‘gross violation of international law’ then a limited use of force to destroy these weapons could be considered to be legal.^[2] This could be considered to be analogous to the police stepping in to confiscate a banned weapon, with no police internationally other states have to be the ones to step in.

[1] 1925 Geneva Protocol, League of Nations, 17 June 1925, http://www.un.org/disarmament/WMD/Bio/1925GenevaProtocol.shtml

[2] Dr Wolff Heintschel, ‘Viewpoints: Is there legal basis for military intervention in Syria?’, BBC News, 29 August 2013, http://www.bbc.co.uk/news/world-23847169

The only precedent for this is the disastrous Iraq war where the reason for the invasion was given as disarming Saddam of Weapons of Mass Destruction he turned out not to have. Most countries would therefore be justified in being skeptical of any country claiming the right to disarm another of WMD. Additionally when this is done by the major powers the action is likely to be seen as being hypocritical. In the case of Chemical Weapons the United States does not have a particularly clean record. The United States used less deadly chemical weapons, Agent Orange, in Vietnam in order to clear foliage, and in Iraq it used white phosphorus as an incendiary weapon. The United States has so far failed to decommission its own Chemical Weapons and instead keeps getting extensions.[1] Similarly both Russia and the United States had Biological Weapons programs, and although these have ended still maintain large smallpox supplies.

[1] Monbiot, George, ‘Obama’s Rogue State’, monbiot.com, 9 September 2013, http://www.monbiot.com/2013/09/09/obamas-rogue-state/

The international prohibition on the use of force has always been honoured in large part in the breach leading to the question of whether it should really be considered to be binding international law at all. Almost every major country has launched an illegal offensive action at some point; The USA has been involved in Kosovo and Iraq, the UK and France in attacking Egypt in 1953, China in attacking Vietnam in 1979, and Russia (as the USSR) in attacking Afghanistan also in 1979. In each instance of unilateral offensive action there will be justifications and a ‘smoke screen’ to make the conflict appear to be legal when in fact it is not. Major powers should simply admit that they do not regard the prohibition of the use of force as binding on them. Even without admitting it because international law is based upon state behaviour the use of force is legal as Michael J Glennon suggests “The consent of United Nations member states to the general prohibition against the use of force, as expressed in the Charter, has in this way been supplanted by a changed intent as expressed in deeds.”[1]

[1] Glennon, Michael J., ‘How War Left the Law Behind’, The New York Times, 21 November 2002, http://www.nytimes.com/2002/11/21/opinion/how-war-left-the-law-behind.html

Current international law does still matter, each time a state takes such action without consent other states object, they are simply not powerful enough to prevent it but this does prevent any norm being created by the aggressor.

If however international law does no longer matter then any war is legal, or rather at least not illegal. This potentially means going back to a situation where any state has a sovereign right to engage in conflict for almost anything it sees as an infringement of its sovereignty. The best we might hope for would be that states could agree that while war might be legal it has to be under the conditions of launching a just war under jus ad bellum. There are six requirements:

1. just cause – defence of oneself, allies, or innocents or punishment for wrongdoing
2. right intention – no ulterior motives beyond the stated cause
3. Proper authority and public declaration – must be open and done publically
4. Last resort – have expended all peaceful alternatives
5. Proportionality – must create more good than evil so that the action is worth the costs
6. Probability of success – there must be some likelihood of making a difference and concluding the conflict quickly.[1]

In most cases military action would not meet all of these requirements.

[1] Orend, Brian, "War", in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), http://plato.stanford.edu/archives/fall2008/entries/war/

Also see the debatabase debate ‘This House believes there can be such a thing as a just war’

When a massacre is about to happen it is legal to intervene to prevent that massacre. The ‘Responsibility to Protect’ which was accepted by the UN in 2005. Resolution 60/1 at the 2005 World Summit stated, there was international responsibility “to help to 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.” Though this will only happen “should peaceful means be inadequate and national authorities are manifestly failing to protect their populations”.^[1] This is most certainly the case in Syria where the national authorities are the ones doing much of the killing.

It must be proved that the Syrian regime is responsible for the attacks; the US and UK say there is such evidence but so far the link is not crystal clear. Even the UK government accepts that there must be “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief”.^[2] As the doctrine states peaceful means must have been tried – and in Syria after two years of conflict we can safely say a peaceful resolution is not in sight. And the use of force must be proportionate – which since there is no plan for a full scale invasion in Syria it will be. [3]

[1] United Nations General Assembly, ‘Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’, Resolution 60/1 2005, p.30 http://www.un.org/en/preventgenocide/adviser/pdf/World%20Summit%20Outcome%20Document.pdf#page=30

[2] ‘Chemical weapon use by Syrian regime – UK Government legal position’, gov.uk, 29 August 2013, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235098/Chemical-weapon-use-by-Syrian-regime-UK-government-legal-position.pdf

[3] Cassese, Antonio, ‘Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’, EIJL, Vol.10, 1999, http://ejil.oxfordjournals.org/content/10/1/23.full.pdf

In the case of Syria these conditions have not been met; the evidence has not yet been provided – the weapons inspectors have yet to report, there have been very few peace talks to try to reach a peaceful solution or attempts at peaceful coercion such as sanctions. Will the attacks be proportionate? They will simply cause more damage and unless they are very large will not stand a chance of halting the violence.  

Moreover in general terms it is difficult to see whether a responsibility to intervene really exists. There does not seem to be much agreement that humanitarian distress and the need for urgent relief allows unilateral action if the state that is in need of relief does not want it. There is certainly very little state practice (well not since 19^th century imperialism anyway) where it has happened.^[1] Even in the last decade there have been failures to intervene against states killing their own civilians in Chechnya, North Korea[2] and Uzbekistan.[3]

It is notable that this was very much scaled back from a more general doctrine of humanitarian intervention. This doctrine does not allow for any nation to take it upon itself to ‘protect’ another’s civilians rather it provides an opportunity for the United Nations to do so.[4] “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” this simply provided a mandate for the UN Security Council to intervene in such situations.

[1] Booth, Robert, ‘Syria: legal doubt cast on British government’s case for intervention’, theguardian.com, 29 August 2013, http://www.theguardian.com/world/2013/aug/29/syria-legal-doubt-british-intervention

[2] Ryall, Julian, ‘Up to 20,000 North Korean prison camp inmates have 'disappeared' says human rights group’, The Telegraph, 5 September 2013, http://www.telegraph.co.uk/news/worldnews/asia/northkorea/10288945/Up-to-20000-North-Korean-prison-camp-inmates-have-disappeared-says-human-rights-group.html

[3] ‘Uzbekistan: No Justice 7 years after Andijan Massacre’, Human Rights Watch, 12 May 2012, http://www.hrw.org/news/2012/05/11/uzbekistan-no-justice-7-years-after-andijan-massacre

[4] Thakur, Ramesh, ‘Is America now becoming an international outlaw?’, The Japan Times, 3 September 2013, http://www.japantimes.co.jp/opinion/2013/09/03/commentary/is-america-now-becoming-an-international-outlaw/

A second possible justification for intervention is when the state that is intervening against is itself breaking international law such as the Chemical Weapons Convention or the Nuclear Non-Proliferation Treaty. The intervention would then be to force compliance of the treaty; this would mean forcible disarmament of illegal weapons. In the case of Syria the country could be deemed to have violated its own legal obligations due to its having broken the 1925 Geneva Protocol^[1] that bans the use of chemical weapons. Since manufacturing and possession of these weapons is banned if it is considered that having such weapons is a ‘gross violation of international law’ then a limited use of force to destroy these weapons could be considered to be legal.^[2] This could be considered to be analogous to the police stepping in to confiscate a banned weapon, with no police internationally other states have to be the ones to step in.

[1] 1925 Geneva Protocol, League of Nations, 17 June 1925, http://www.un.org/disarmament/WMD/Bio/1925GenevaProtocol.shtml

[2] Dr Wolff Heintschel, ‘Viewpoints: Is there legal basis for military intervention in Syria?’, BBC News, 29 August 2013, http://www.bbc.co.uk/news/world-23847169

The only precedent for this is the disastrous Iraq war where the reason for the invasion was given as disarming Saddam of Weapons of Mass Destruction he turned out not to have. Most countries would therefore be justified in being skeptical of any country claiming the right to disarm another of WMD. Additionally when this is done by the major powers the action is likely to be seen as being hypocritical. In the case of Chemical Weapons the United States does not have a particularly clean record. The United States used less deadly chemical weapons, Agent Orange, in Vietnam in order to clear foliage, and in Iraq it used white phosphorus as an incendiary weapon. The United States has so far failed to decommission its own Chemical Weapons and instead keeps getting extensions.[1] Similarly both Russia and the United States had Biological Weapons programs, and although these have ended still maintain large smallpox supplies.

[1] Monbiot, George, ‘Obama’s Rogue State’, monbiot.com, 9 September 2013, http://www.monbiot.com/2013/09/09/obamas-rogue-state/

The international prohibition on the use of force has always been honoured in large part in the breach leading to the question of whether it should really be considered to be binding international law at all. Almost every major country has launched an illegal offensive action at some point; The USA has been involved in Kosovo and Iraq, the UK and France in attacking Egypt in 1953, China in attacking Vietnam in 1979, and Russia (as the USSR) in attacking Afghanistan also in 1979. In each instance of unilateral offensive action there will be justifications and a ‘smoke screen’ to make the conflict appear to be legal when in fact it is not. Major powers should simply admit that they do not regard the prohibition of the use of force as binding on them. Even without admitting it because international law is based upon state behaviour the use of force is legal as Michael J Glennon suggests “The consent of United Nations member states to the general prohibition against the use of force, as expressed in the Charter, has in this way been supplanted by a changed intent as expressed in deeds.”[1]

[1] Glennon, Michael J., ‘How War Left the Law Behind’, The New York Times, 21 November 2002, http://www.nytimes.com/2002/11/21/opinion/how-war-left-the-law-behind.html

Current international law does still matter, each time a state takes such action without consent other states object, they are simply not powerful enough to prevent it but this does prevent any norm being created by the aggressor.

If however international law does no longer matter then any war is legal, or rather at least not illegal. This potentially means going back to a situation where any state has a sovereign right to engage in conflict for almost anything it sees as an infringement of its sovereignty. The best we might hope for would be that states could agree that while war might be legal it has to be under the conditions of launching a just war under jus ad bellum. There are six requirements:

1. just cause – defence of oneself, allies, or innocents or punishment for wrongdoing
2. right intention – no ulterior motives beyond the stated cause
3. Proper authority and public declaration – must be open and done publically
4. Last resort – have expended all peaceful alternatives
5. Proportionality – must create more good than evil so that the action is worth the costs
6. Probability of success – there must be some likelihood of making a difference and concluding the conflict quickly.[1]

In most cases military action would not meet all of these requirements.

[1] Orend, Brian, "War", in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), http://plato.stanford.edu/archives/fall2008/entries/war/

Also see the debatabase debate ‘This House believes there can be such a thing as a just war’

Traditionally (by this I mean since 1945!) there are only a couple of ways in which a war is legal. The first is simple; self defence. The UN charter allows “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations”^[1] but this does not fall into that category. Assad is attacking his own people, not another state that is entitled to self defence. No state is able to claim the right to provide self defence for those who Assad is attacking.

A much more viable proposition is to go through the UN Security Council. The charter allows that “The Security Council shall determine the existence of any threat to the peace… Should the Security Council consider that measures provided for in Article 41 [sanctions and other non-forceful methods of applying pressure] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” So the UN Security Council certainly could authorise the use of force. Unfortunately a Security Council member, Russia, has already effectively ruled out authorizing military action with its foreign minister urging the US not to repeat “past mistakes” (i.e. Iraq and Libya) and warning “It’s a very dangerous slippery slope that our Western partners have gone on before. I hope common sense prevails.”^[2]

[1] United Nations, ‘Chapter VII: Action with respect to threats to the peace, breaches of the peace, and acts of aggression’, Charter of the United Nations, 1945, https://www.un.org/en/documents/charter/chapter7.shtml

[2] Meyer, Henry, ‘Syria Is Headed for Western Strike, Russia Says’, Bloomberg, 26 August 2013, http://www.bloomberg.com/news/2013-08-26/russia-warns-u-s-against-regional-fallout-of-syria-intervention.html

The problem with relying on the Security Council is that it effectively means that the world is saying that five states can decide what is legal and what is not. Should the five countries who are probably most inclined to interventions, and are usually at loggerheads really be the ones to decide in such situations?

One interesting possibility that could help short circuit the problems on the Security Council that prevents action either through UN Security Council action or through the Responsibility to Protect would be to take the case to the UN General Assembly. There was a resolution in 1950 that “Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to peace, breach of the peace or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.”^[1] The General Assembly is clearly the more legitimate body, and it also does not have the problem of vetos. It is however unlikely that UN Security Council members France, the UK, and the USA would want to create such a precedent.^[2]

[1] ‘Uniting for peace’, General Assembly – Fifth Session, 377, 3^rd November 1950, http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/377%28V%29

[2] Dapo Akande, ‘Viewpoints: Is there legal basis for military intervention in Syria?’, BBC News, 29 August 2013, http://www.bbc.co.uk/news/world-23847169

Uniting for Peace is well over sixty years old and yet has only been used once, to intervene against a full scale invasion of South Korea. This is hardly a good precedent for using against a state that is not involved in aggression against another state. The intent of Uniting for Peace is to restore “international peace” not domestic peace. It says nothing about intervening in internal conflicts without approval from the Security Council.

Intervention is almost always about upholding ‘international norms’. Thus the attack on Syria is to disarm Syria of its banned chemical weapons because it “risks making a mockery of the global prohibition on the use of chemical weapons.”[1] With Iraq it was once again a norm against WMD with Tony Blair arguing “UN weapons inspectors say vast amounts of chemical and biological poisons such as anthrax, VX nerve agent and mustard gas remain unaccounted for in Iraq.”[2] This means that the nation that is going to engage in offensive action is attempting to prevent the breach of one international norm against certain weapons by breaching a norm against unauthorised military action.

In Kosovo it was even more hypocritical; NATO acted to make sure Milsovic “honor his own commitments and stop his repression” with the intent that “if President Milosevic will not make peace, we will limit his ability to make war.”[3] So we will protect the norm against conflict by initiating a conflict of our own. Defending one international norm by breaching another is both pointless, because it undermines all norms, and hypocritical because it says those norms apply only to someone else.

[1] President Obama, ‘TRANSCRIPT: President Obama’s Aug. 31 statement on Syria’, The Washington Post, 31 August 2013, http://articles.washingtonpost.com/2013-08-31/politics/41635689_1_chemical-weapons-president-obama-regime

[2] ‘Full transcript of Blair's speech’, BBC News, 20 March 2003, http://news.bbc.co.uk/1/hi/uk_politics/2870581.stm

[3] Clinton, Bill, ‘Statement on Kososvo’, Miller Center University of Virginia, 24 March 1999, http://millercenter.org/president/speeches/detail/3932

An international norm is being breached one way or the other the only question is which one is to be breached. Those in favour of intervention consider that lives saved is worthwhile compared to the problems the breach of a norm against humanitarian intervention might create. All of these norms are there with the intention of saving lives; that is what a norm of preventing any infringement of sovereignty without UN approval is supposed to prevent – conflict and the lives lost this causes. But Internal conflict and genocide has since become much more the problem than aggression between states requiring a rebalancing of which norms are kept.