Intervening Without the U.N. – More Legal Than You Thought?
Back when it looked like we were only days away from seeing American bombers over Syria, my coauthor and I exchanged views via email over precisely this subject – whether there was an argument for the legality of intervention even without a U.N. resolution approving it. The deal to spare Syria from American JDAMs in exchange for its chemical weapons has lessened the immediate need for an answer to the question, but since policy questions over intervention more generally aren’t going away anytime soon, it seemed like something worth returning to.*
The starting point for all this is that, as the great humanitarian Vladimir Putin has so often reminded us, absent claims of self-defense or an authorizing resolution from the Security Council, the use of force against another state is prohibited. And indeed, Article 2, Section 4 of the U.N. Charter says, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
That seems, on the face of it, pretty clear cut. Case closed, stop reading, you can all go home. Regardless of what you think about the utility or moral necessity (or lack thereof) of a given intervention, international law seems to be fairly certain that, if it has not been authorized by the U.N. Security Council, it is illegal.** But I’m not convinced the actual wording of the Charter requires that to be the case.
**Whether or not illegality in the context of international law actually means anything is a subject for another time
****For the following argument to hold in a strictly legal sense, I imagine it would have to shown that chemical weapons attacks specifically caused refugee flows, as opposed to the mass murder Assad has perpetrated with conventional weapons
*****And if you believe that, I have a bridge in Brooklyn you might like to purchase