Guest Post: Philip Fluegge on “The Syrian Intervention and R2P”
As Lawfire readers know, one of the purposes of the Center on Law, Ethics and National Security (LENS) is to develop the next generation of national security leaders. In pursuing that goal, we try to give new voices a forum to express their views. Our guest essayist today is Philip Fluegge, who comes to us on the recommendation of my longtime friend and mentor, Professor Geoff Corn.
Mr. Fluegge is a J.D. Candidate at South Texas College of Law Houston. After serving as an Airframe Mechanic in the Marine Corps, Philip went on to get his B.A. in Criminal Justice from Sam Houston State University. Philip also was a competitor at the 2018 Clara Barton International Humanitarian Law tournament
On a previous posts, I offered some legal rationales for the recent Coalition missile strikes on Syria. In his essay, Mr. Fluegge explores the application of the concept of Responsibility to Protect (R2P). Here’s his argument:
The Syrian Intervention and R2P
The theory of Responsibility to Protect (R2P) arose after the atrocities in Rwanda, Bosnia, and Kosovo. The Secretary-General, Kofi Annan, lamented over the Security Council’s failure in those conflicts to halt the commission of genocide, war crimes, and crimes against humanity. Following this address, the Canadian government established the International Commission on Intervention and State Sovereignty (ICISS).
The Commission realized that international legal issues morphed drastically from humanitarian issues present in 1945, when the U.N. Charter was ratified, and there would be issues that were not covered by the UN Charter or within International Humanitarian Law. One reason for this shift is that the number of member states of the UN rose dramatically since the Charter was originally drafted.
Under the UN Charter, States owe a responsibility to protect the lives and safety of their people. As States enter into the international community, they also enter into the “culture of international responsibility.”
Fundamentals of R2P
The ICISS concluded that R2P is founded upon three pillars: (1) The domestic State carries the primary responsibility for the protection of its population from mass atrocities; (2) the international community has responsibility to assist States in fulfilling this responsibility; and (3) the international community should use appropriate domestic, humanitarian, and other peaceful means to protect populations from these crimes. Military intervention should be allowed in extreme cases, meaning the harm is to civilians is major and is occurring or imminently apprehended, and the State is unwilling or unable to end the harm; or the State is the perpetrator itself.
In addition to the pillars of R2P, the ICISS also proposed six criteria for Military Interventions. These are: right authority, just cause, right intention, last resort, proportional means, and reasonable prospects.
The first criterion, right authority flows from the UN Charter. The Charter states that any use of force against the territorial integrity or political independence of another state is presumptively illegal. Article 24 vests the Security Council with the primary responsibility to maintain international peace and security. The presumption against the use of force can be rebutted with express authorization from the Security Council in the form of a Resolution, or based on the right of self-defense.
Conventionally, this process falls under Chapter VII. The Security Council passes a resolution allowing for action under Article 42 after the measures in 41 have failed. This is even the case when acting in self-defense. This requires action to be brought before the Council as soon as possible after the initiation of hostilities.
However, the issue of R2P becomes extremely complex in the absence of Security Council authorization, whether the result of indifference or the actual or threatened exercise of a veto by one or more of the 5 permanent members.
The ICISS suggested that one option to bypass this logjam would be to obtain a resolution from an “overwhelming majority of member states.” However, as the ICISS observed when the Security Council fails to act, it would be unrealistic to expect that a State or group of States would rule out any means to address the gravity of the situation. Furthermore, this ‘bypass’ theory is simply inconsistent with the structure of the Charter, which vests the Security Council with the exclusive power to authorize Member State military action in response to a threat to international peace and security. This dilemma is exactly the reason why some proponents, such as the UK, support R2P.
The second criterion is just cause. Just Cause is a threshold issue to reaching the rest of the ICISS’ military intervention analysis. The ICISS noted two events, either of which alone satisfies the criteria. These are:
- Large scale loss of life, with or without genocidal intent, that are a product either of deliberate state action, state neglect or inability to act, or a failed state situation; or
- Large scale ethnic cleansing carried out by killing, forced expulsion, acts of terror, or rape.
The ICISS noted that these two conditions would need to be wide spread before military intervention would be justifiable.
The other criteria are considered precautionary. To satisfy the “right intention,” the intervention must be made to halt or avert human suffering. “Last resort” means that every other possible diplomatic and economic means to prevent have been exhausted, leaving only military power available. And lastly, “reasonable prospects” states that action can only be justified if there is a reasonable chance that the military action will be successful in halting or averting the suffering.
Syria: A Textbook Case for R2P
Whether the ICISS report reflects an actual legal basis for the use of military force in response to an actual humanitarian crisis remains a hotly debated topic. However, if ‘outside the Charter’ humanitarian intervention is ever justified, the events in Syria should qualify as a paradigmatic example. The Syrian Arab Republic ratified the Convention prohibiting Chemical Weapons on 9/14/2014 (taking a reservation that they will not recognize or “enter into any relations with [the State of] Israel”).
Since this date, the UN Organization for the Prohibition of Chemical Weapons has issued 4 fact finding reports on Chemical Weapon Attacks (note: this does not include the attack in Douma on April 7th). This last violation affected an estimated 500 people, many who were civilians, and killed an estimated 70 people as of April 11th. Looking to Syria, the unable or unwilling view is not needed as the State itself has been the one conducting the chemical attacks against its own people, in flagrant violation of both Treaty IHL and Customary IHL.
The United States, United Kingdom, and Republic of France responded on the night of April 13th, 2018, by sending a targeted strike of just over 100 missiles on Syrian chemical weapons facilities. Reports from the Syrian media point out that 3 civilians were wounded in the attack from the use of Anti-Air systems to intercept the coalition missiles.
The ICISS pillars of R2P were met for this intervention. (1) Syria has failed its responsibility to protect its people from mass atrocities. (2) The action by the US, UK, and France upheld their responsibility in the international community to hold Syria to its responsibility. And (3) the appropriate peaceful means (sanctions, treaty enforcement measures, and political pressure) have been exhausted. There have been over 100 Security Council meetings on Syria, and measure after measure have been vetoed time and time again.
The criteria given by the ICISS have also been met. The right authority condition is, of course, most vulnerable to criticism, as military action was not authorized by the Security Council (the result of an inevitable Russian veto). However as noted by ICISS, it would have been unrealistic for a group of States to not act in the present environment. The widespread condemnation of chemical weapons can be seen by the reaction of a few powerful States and the response from other states and organizations following the strike.
Their use of military force could be perceived necessary even without Security Council authorization. The use of chemical weapons is a violation of one of the most universal rules of international law as these weapons were internationally condemned once in 1925 and again in 1993 under the CWC. This is why the Commission stated that it would be unrealistic that the US, UK, and France would not act and it would be unrealistic to deny States this means to prevent human suffering.
This intervention is also a just cause. The first proposed event given by the ICISS is applicable here. Syria has engaged in a long term, wide spread use of chemical weapons that have caused a large-scale loss of life that is a product of State action. This action by the Syrian Arab Republic alone establishes that the intervention was a just cause to halt the chemical weapons strikes on Syrian civilians.
Precautionary measures were also met in the strike. The “right intentions” of the strike were to avert the human suffering and deaths caused by an illegal chemical weapons program. “Last resort” was fulfilled the fact that the international community attempted to remove these terrible weapons time and time again using peaceful means. Since these peaceful means did not prevent the Syrian Regime from the use of chemical weapons on civilians, the strike was necessary.
“Reasonable prospects” will the hardest criterion to determine. Analyzing Reasonable Prospects will require an in-depth analysis of military intelligence to determine if the chemical sites were in fact neutralized. If it is reasonably determined that destruction of these sites would prevent the further employment of chemical weapons, then this criterion would be satisfied.
In a response to the April 13th strike, the Russian Ambassador to the UN charged the members of the Security Council to “take a principled stand.” R2P is truly this “principled stand.” This stand refutes the question of when intervention should be allowable and poses another: How many more innocents need to die before action is justified?
And as we like to say on Lawfire, gather the facts, examine the arguments, assess the law, and decide for yourself!
(The views expressed are those of the author alone and not necessarily those of myself, Lawfire, Duke Law, or anyone other than our guest essayist. )