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.

First, the Charter references the threat or use of force “against the territorial integrity…of any state.” In the case of Syria, bombing its chemical weapons infrastructure would not have been a threat to its territorial integrity. It was a very specific action intended to punish another very specific action.
Second, the Charter prohibits the threat or use of force “against…the political independence of any state.” Consider the case of Iran’s alleged nuclear weapons program in that context. As a non-nuclear signatory to the NPT, Iran has legally bound itself to not acquire nuclear weapons. But imagine, perhaps a year from now, credible evidence emerging that Iran is in fact on the brink of producing a nuclear warhead.*** A surgical strike targeting Iran’s nuclear weapons facilities, but conducted without Security Council authorization, would arguably not be directed against Iran’s political independence; it’s punishing them for doing something they’re legally not allowed to do in the first place.
Finally, the Charter prohibits states from using force in a manner, “inconsistent with the Purposes of the United Nations,” one of which is maintaining international peace and security. Turning back to Syria, Assad’s gassing his own civilians, as heinous as it is, does not itself really constitute a threat to international peace and security. But the refugee flows into Lebanon, Turkey, and Jordan that have come about as a result certainly are.**** So again, there doesn’t seem to be an obvious conflict with the Charter’s prohibitions.
I’ve used two separate cases to cobble together a corpus of examples in which an unauthorized intervention might still comply with the U.N. Charter; obviously this is a bit inconsistent, but the point is to suggest that it’s not impossible to imagine a situation arising which ticks all three boxes; territorial integrity, political independence, and the Purposes of the United Nations. In all honesty, I can’t imagine this argument being accepted by the international community; there’s far too much in the way of norms and expectations built up around the idea that, without a Security Council resolution, the use of force against another state is illegal – case closed. But who knows? Maybe by the next time China and Russia decide to use their Security Council veto to protect a murderous dictator, our blog will be read in the corridors of power and just this argument will be deployed in support of intervention.*****
*Since, like, the State Department was eagerly awaiting our thoughts on the matter
**Whether or not illegality in the context of international law actually means anything is a subject for another time
***Since this is something of a thought exercise, let’s not quibble over specifically what would constitute credible evidence; obviously it’s a fairly squishy concept
****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