On 19 July, Russia and China for the third time blocked international action against the Syrian regime. This serial stonewalling by two veto-wielding members of the Security Council - the only body empowered to authorise the use of force by states - highlights the inadequacy of the current legal framework governing the use of force for humanitarian purposes.
"Humanitarian intervention" - the use of force by one state in another, to alleviate acute humanitarian suffering - has been known to international law since at least the 19th century. Most scholars agree that prior to 1945, humanitarian intervention was legal. There is sharp disagreement, however, as to whether that legality survived the creation of the United Nations and the U.N. Charter’s prohibition on the use of force. The majority view is that the prohibition allows of only two exceptions, self-defence and force authorised by the Security Council, neither of which encompasses “unilateral” humanitarian intervention. Humanitarian intervention also violates, on this view, the fundamental international law principle of non-intervention in the internal affairs of other states.
To this the substantial minority responds that a state's abuse of the human rights of its people is no longer considered a purely domestic matter but the concern of the whole international community. As to the prohibition of force, they say a close analysis of the wording of the U.N. Charter shows that force is only prohibited when it is directed at the territorial integrity (as in moving borders, or seizing territory) or political independence of the other state, not when it is directed at the protection of human rights.
They alternatively argue that over the years a right of humanitarian intervention has become part of customary international law through that rather circular process whereby a new rule is created when states consistently act in a certain way that is accepted as law. Unfortunately for the minority view, there are very few examples of humanitarian intervention since 1945 and the international community condemned almost all at the time, effectively ruling out both elements necessary for a customary rule. While customary law can change over time, in the transition period states following the putative new rule are violating the old.
In the recent past the United Kingdom has argued that in cases of egregious human rights abuses, other states have not just the right but the duty to intervene, subject to stringent conditions as to purpose, means, and duration of the operation - conditions redolent of the “just war” doctrine. Other, particularly developing, states vehemently oppose recognition of any such right or duty, for fairly obvious reasons, as they are most likely to be the objects of any intervention.
But if humanitarian intervention is illegal, how is the international community to respond to the cries of "never again" that followed the tragedies of Rwanda and Srebrenica? This was the challenge issued by Kofi Annan when U.N. Secretary-General, and taken up by an international commission (co-chaired by Gareth Evans) which in 2001 proposed a new doctrine - the Responsibility to Protect (R2P). Under this doctrine, if a state fails in its own responsibility to protect its population, the international community must then exercise its responsibility to protect that population. The intention was to make R2P more palatable than humanitarian intervention by reversing the polarity of the debate, placing emphasis not on the intervention part but on the responsibility part. And while not displacing the traditional view that a state may suppress an internal rebellion, R2P has certainly heightened international sensitivity about how it does so.
What R2P has not done, however, is to address the age-old question: when all else fails, and a state is grossly abusing its citizens, can external force be used? The 2001 commission hinted that if the Security Council refused to act, concerned states might take unilateral action. This, unsurprisingly, was not part of the much-abbreviated doctrine as endorsed by the U.N. General Assembly in 2005, which was deafeningly silent on the issue. So at best, R2P could now be seen as suggesting some guidelines for the Security Council when deciding whether to authorise force under the U.N. Charter.
But following the intervention in Libya, the Security Council is even less likely to authorise force than before. This was made clear by Russia last October, when it and China first vetoed action on Syria. In the Libyan case, military intervention was possible only because Russia and China - remarkably - decided to abstain from the vote. Force was permitted to protect civilians and enforce the no-fly zone but as we know, the force used went beyond those parameters to include active assistance to the rebels. According to Russia, the intervention not only exceeded its mandate but made a bad situation worse, and Russia seems determined not to allow a recurrence.
In the Syrian context, none of the vetoed resolutions authorised force; they merely threatened sanctions if the Syrian authorities failed to withdraw their troops and heavy weapons from population centres. Explaining his country's veto, the Russian representative complained that the threat of sanctions was “counterproductive”, and that the draft resolution was biased against the regime and would open the door to external military intervention. China's veto was based on its repeated assertions of the principle of non-interference in internal affairs and respect for Syria's sovereignty.
Meanwhile, according to even the most conservative estimates, the number of civilian deaths in the current conflict in Syria far exceeds the number killed in the genocide at Srebrenica in 1995. So with Russia and China unlikely to relent in the foreseeable future, what do we do? There seem to be three choices: (1) do nothing, on the basis of state sovereignty and international law as strictly interpreted; (2) continue the current practice of doing nothing overtly but doing everything possible covertly to aid the opposition and thwart the regime; and (3) implement the pointy end of R2P unilaterally, on the basis that the majority view may be against its legality but the pattern of state practice necessary to change the law has to start somewhere.
Perhaps it is time to look at option 3.