It was late afternoon Tuesday the 3rd of September and the US Senate draft resolution for approval of the US use of military forces is in the making overnight after affirmatively receiving President Barack Obama’s request to the Syrian government for the alleged use of chemical weapons in the past few weeks. Citing AP, Al-Jazeera stated on its website that, the US Foreign Relations Committee’s draft resolution contains the measure that would set a time limit of 60 days and leaves discretion to the president to extend the measure for 30 more days with congressional approval. The measure would also bar American ground troops from combat operations and set a deadline for any action. This time, the American bi-partisan political folks did not waste any time to agree on and back up the President’s call for military intervention in Syria. Interestingly enough, the status quo reinvigorates and bolsters the decade old controversial issue of “unilateral humanitarian intervention” [whether or not it has become a customary international rule of legitimate grounds of use or threat of force]. It also remains delicate situation and slightly exhibits a perturbed scenario that the unilateral and unauthorized use of military force by the US would totally dwindle the already “mushy” role of the United Nations. This is more concerning for the future of common humanity.
A Quick Brief on “The Law of Inter-State Use of Force”
United Nation Charter is the starting point of any legal discussion of the use of military force by one state against the other. Having proscribed/prohibited, in principle, the use or threat of military force under article 2(4), the UN Charter lets only two exceptional/legitimate grounds of use of military force on international scale. First, the inherent existence of the right of “self-defense” as provided under article 51 of the UN Charter. This ground non-applicable to the United States and preposterous to establish the nexus between the Syrian Chemical weapon and the necessity element of the right of self-defense. One has to build a case where there is an instant, overwhelming and eminent threat [the 19th Century formulation of customary international law in invoking the right of self-defense] posed in the unlikely event of Assad’s use of Chemical warfare against the United States. Therefore, this ground is too far removed from reality to be supplicated by any strike against Syria.
Second, international use of military force is legitimate if and only if the UN Security Council (UN SC) of the United Nations [the most powerful among the six organs of the UN] without vetoing by any permanent member authorizes force, through an appropriate resolution under Chapter 7 of the UN Charter, in order to restore “international peace and security” [pursuant to article 39-43 of the Charter]. This second ground is popularly termed as “the UN Enforcement Action”.
The soup-to-nuts of the international law of use of force, therefore, narrowly formulates and enjoys only two exceptional grounds of legitimacy: “self-defense” and “UN SC authorization”. Nowhere can one find any other legitimate third ground [other than the two briefly mentioned above] in the theoretical discourse of the subject of law of use of force in the United Nations Charter.
“The Tumorous Debate of Humanitarian Intervention”: Can it be the third legitimate ground to use force?
Can interested state[s] intervene militarily to stop heinous crimes (say for example, crime against humanity, war crime, genocide or any other comparable atrocity) without the Security Council’s authorization? This question [easy to verbalize but notoriously difficult to answer] had been hanging around as old as the United Nations itself. Humanitarian intervention, as posed in the question above can be defined as the use of military force by one state against another that is somehow brutalizing or killing its own people. The fate of “humanitarian intervention” as the third possible ground for use of force remains the hot button topic in international law of use of force. The recent decades saw a practical challenge posed to the doctrine of humanitarian intervention. For example, the 1998 NATO bombing of Kosovo without the authorization of UN Security Council had drawn solid criticism from many countries. The fathomable approach to the subject requires an intellectual reconnoitering of the past practices of states in order to evaluate the degree to which the “humanitarian intervention” is being solidified in the process of achieving the status of customary international law. I am of the opinion that unilateral humanitarian intervention can attain legitimacy and be relied on to use force only upon the fulfillment of one basic condition, i.e., “if the Security Council’s decision making process becomes insolvent.”
About the Author: Henok G. Gabisa is a JSD/PhD Candidate and International Law Fellow and Researcher at Washington and Lee University School of Law in Lexington, Virginia.
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