The conversation about a military intervention in Syria based on humanitarian grounds (i.e. a “humanitarian intervention” - type argument) raised by (mainly) Western states in order to hinder the further escalation of the on-going catastrophe has been debated for years now. The legal justification for such an attack has mainly relied on a highly controversial doctrine in international law; namely the doctrine of “humanitarian intervention”.

Why is it so problematic to rely “humanitarian intervention” as a justification for any military strike in Syria?

From a legal positivist point of view, it is relatively uncontentious that any kind of military intervention in Syria would be illegal in international law as embodied in the United Nations Charter i.e. based on the formal notion of the equality of all Member States of the United Nations (“UN”) and the inviolability of their sovereignty, as articulated in Article 2(4) of the UN Charter (the so-called “non-intervention” clause).

There are only two exceptions to this rule; namely: 1) by securing the United Nations Security Council (“UNSC”) authorisation (with the UNSC passing a legally binding decision [Article 25 UN Charter] using their powers under Chapter VII of the UN Charter), or 2) as an act of individual or collective self defence [Article 51 of the UN Charter].

What logically follows is that any argument contending the legitimacy of any foreign military intervention, or use of force of any kind, in Syria must be based on a principle of customary international law.

When does a norm become one of customary international law?

There are two conditions which must exist for a customary international law to come into existence; namely:

1) State practice i.e. there is evidence that there has been overwhelming practice of the principle by other Member States [the number of instances that translates to “overwhelming” and the subjective circumstances that mandated their use in previous situations is dubious].

2) Opinio Juris i.e. the subjective element or the endorsement of the use of the principle by other Member States, thus suggesting that the principle is a legal obligation.

There is a persuasive argument that the principle of “humanitarian intervention” has not attained the status of a customary international law. There are no examples in history of a successful argument advancing “humanitarian intervention” as a valid justification for a military strike which has successfully persuaded the international community to consider the norm as having formally gained customary legal status. While there are a few examples of the international community attempting to reach a consensus on defining a criteria for a military intervention based on humanitarian concerns, no such international consensus has yet been reached.

The term “Kosovo precedent” has been used numerous times by UK MPs (e.g. Robert Halfon, Brooks Newmark, etc.) as well as by France and the United States as an example of a successful “humanitarian intervention”, and hence as authoritative law.

While academics as early as the 1970s have argued that “humanitarian interventions” have become a rule of customary international law, the first and only time “humanitarian concerns” was ever argued as a legal defence was when certain NATO states defended their air combing campaign in Kosovo in 1999 after the Former Republic Yugoslavia (“FRY”) instituted proceedings before International Court of Justice (“ICJ”) i.e. The ICJ case concerning the legality of the use of force: FRY v. Belgium et al [Here is the official ICJ judgement]. The ICJ delivered its decision on 2 June 1999. While the judgment emphasised the Court’s deep concern over the “human tragedy” in Kosovo, the case was dismissed due to lack of jurisdiction.

[Note the specifics of the judgement: FRY relied on two main provisions in international law: 1) Article IX of the Convention on the Prevention and Punishment of Genocide (“Genocide Contention”) i.e. disputes between contracting parties relating to the interpretation, application or fulfilment of the Genocide Convention shall be submitted to the ICJ, and 2) Article 38(5) of the Rules of the ICJ i.e. applications filed against States which have not accepted the Court’s jurisdiction cannot proceed unless and until that State accepts the Court’s jurisdiction for the purposes of the case.

While all the NATO States and FRY were party to both the Genocide Convention and the treaty establishing the ICJ, the United States made a reservation to Article IX declaring that its “specific consent” is necessary before any dispute is submitted to the ICJ. Thus Article IX could not constitute a basis for jurisdiction.]

Nevertheless the merits of the case were subsequently considered by a commission established by the Swedish government, headed by Richard Goldstone, and relied on regular consultations with the UN Security General; namely, the Independent International Investigation Commission for Kosovo (“Kosovo Commission”). The “Kosovo Report” was published by the Commission in 2000, and, in short, found that NATO’s intervention was “illegal, but legitimate”. [Here is a copy of the “Kosovo Report”].

One may be tempted to consider the “legitimacy” argument further, and contend that even though illegal, an intervention in Syria may still be “legitimate”. Here are some problems with such a line of reasoning:

1) “Legitimacy” does not translate to “legality”. The conclusion of “legitimacy” drawn by the Kosovo Commission was deliberate. The specific choice of language employed by the Commission exemplifies this. NATO’s actions in Kosovo were deemed as de facto illegal;

2) The conclusion drawn by the Kosovo Commission related to the specific situation in Kosovo in particular; and

3) While the Kosovo Commission developed conditions precedent that may draw a similar legitimate verdict for any future international humanitarian-style interventions, there is insufficient evidence of these principles passing the two-prong test for a rule to develop into a norm in customary international law.

i) These have not been formally accepted by the international committee as a whole (in the form of a binding treaty or resolution); and

ii) The Kosovo Commission’s recommendations have been superseded by other conditions promulgated by national governments (the UK, in particular), international institutions (the ICISS, for example) and academics (though, admittedly these later principles are fairly similar to those suggested by the Commission).

The UK promulgated six principles after NATO’s intervention in Kosovo, as articulated by the UK Foreign Minister at the time, Robin Cook. These principles broadly reflect those in the Kosovo Report. However, this criteria has not been publicly endorsed by the international community. These principles have been articulated by Prof. Nicholas J. Wheeler as the following:

1) “just cause”,

2) “last resort”,

3) “good over harm”,

4) “proportionality,

5) “right intention”, and

6) “reasonable prospect”

While this language of “humanitarian concerns” continues to be used by primarily Northern states to justify military interventions, there has not been a consensus reached on what exactly constitutes the grounds legalising such an intervention, and neither has there been sufficient support from the international community for such a “humanitarian intervention” norm to have crystallised into a rule of customary international law.

Conclusion

Given that there is insufficient evidence that the doctrine of “humanitarian intervention” has been formally accepted as a customary legal norm by the international community, the concept may not be justified within the current discourse of positivist legal theory that enables an intervention in Syria to be legal in international law.