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Debate Map: Use of Force against Syria

Last Updated: 29 April 2014

The following index maps scholarly commentary on the legal arguments regarding the public international law aspects (but not domestic constitutional law) of the use of force against Syria published in English language legal blogs and newspapers (and some very recent journal articles).

Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what. For a broad range of online OUP materials on these issues please see the guide on our Home Page.

I. Overviews of Legal Issues

II. Analyses of Scope and Meaning of UN Charter Article 2(4) Prohibition of the Use of Force

A) Legality of Arming Rebels

B) Purpose of Force – Reprisals vs Restoration of Peace

C) Meaning of “Territorial Integrity and Political Independence”

D) Chapter VII Authorization

E)”Uniting for Peace” Resolution as a Way Round UNSC Deadlock

III. Legality of Possible Grounds for Intervention:

A) Humanitarian Intervention Doctrines

B) Responsibility to Protect

C) Intervention to Support Self-determination

D) Intervention to Counter Use or Proliferation of WMD

IV. Precedents

A) Kosovo

B) Libya

C) Others

V. Article 51 Self-Defence

A) “Armed Attack”

B) Anticipatory self-defence

VI. Progressive Development of Law on the Use of Force

VII. International Criminal Law

A) Crimes

B) Jurisdiction of the ICC

C) Accountability for Crimes

VIII. International Human Rights Obligations and Remedies

 


 

I. Overviews of Legal Issues

(i) 28 August 2013, Oona Hathaway and Scott Shapiro in the Washington Post and 30 August 2013, Don Anton in The Drum (sketch the outlines of the legal debate)

(ii) 30 August 2013, Kenneth Anderson’s ASIL Insight (provides a more in-depth survey of legal issues)

 

II. UN Charter Article 2(4) Prohibition of the Use of Force

(i) 23 May 2013, Kenneth Chan at Journal of Conflict and Security Law (suggests that designating states as “failed states” has in the past influenced the way that the article 2 prohibition and its exceptions have been applied to them, but also explicitly states he is not claiming Syria is a failed state)

(ii) 29 August 2013, Jack Goldsmith at Lawfare (arguing briefly that claims about the prohibition being sacrosanct are overstated)

(iii) 28 August 2013, Comments on Dapo Akande’s post at EJIL Talk! (main post is on whether a customary international law right to humanitarian intervention exists, but whether Article 2(4) is a limited prohibition is discussed extensively in the comments)

(iv) 3 September 2013 Oona Hathaway and Scott Shapiro in the New York Times (stress that in the times when individual states were free to decide when to use force unilateraly there was constant war and that is why the prohibition of force is so central to the UN system)

 

A) Legality of Arming Rebels

(i) 17 January 2013, Dapo Akande at EJIL Talk! (on providing arms to rebels; 4 possible grounds for legality)

(ii) 17 June 2013, Andre Nollkaemper at EJIL Talk! (on shared responsibility for what rebels do with weapons supplied to them by foreign governments)

(iii) 13 March 2013, Marko Milanovic at EJIL Talk! (mainly about Perisic decision at the ICTY Appeals Chamber, but with reference to liability for arming war criminals, discusses application of distinction between aiding general war effort and complicity in commission of crimes)

(iv) 8 April 2013 Stuart Casey-Maslen at the OUP Blog (suggesting that Article 6(2) of the Arms Trade Treaty may ban transfers of weapons to armed non-state actors)

(iv) 23 July 2013, Jack Goldsmith at Lawfare (on implication of the US publicly admitting to giving covert aid to rebels); revisited again by Goldsmith on 5 October 2013 at Lawfare (discussing excerpts from responses by Kerry and Hagel about military assistance to rebels)

(v) 12 August 2013, Michael N. Schmitt in Journal of National Security Law (general overview but unique contribution is discussion of possibility of weapons falling into terrorists’ hands in violation of UNSC 2083 – see International Crisis Group’s report on possible terrorist links of Syrian rebelsAntonio Coco in the Journal of International Criminal Justice 11/2 (that the UK Court of Appeals in R v Muhammed Gul effectively say that all hostilities by Syrian rebels are terrorist acts) and 12 September 2013, Vladimir Putin in the New York Times, paragraph 6)

(vi) 2014 Tom Rhuys in the Chinese Journal of International Law 13/1 (a full assessment of the law relating to non-lethal assistance)

B) Purpose of Force – Reprisals vs Restoration of Peace

(i) 28 August 2013, Joshua Keeting in Slate applying a 2011 David Luban article on the illegality of war as punishment to the Syria context

(ii)31 August 2013, Ian Hurd at Opinio Juris suggesting that there are unilateral uses of force that are not self-defence or aggression

(iii) 1 September 2013, Shane Darcy at EJIL Talk! (on legality of reprisals)

(iv) 6 September 2013, Carsten Stahn paper titled Blurred Lines (arguing that talk of punishment sits uneasily with justifications for the use of force which should be kept separate from issues of international justice)

C) Meaning of “Territorial Integrity and Political Independence”

(i) 4 September 2013, Rob Howse and Ruti Teitel at Project Syndicate(force that isn’t aimed at a state’s territorial integrity and political independence is not necessarily prohibited, this point is made by Jordan Paust in several Comments to other posts and set out by him in full on 10 September 2013 in Jurist.org)

(ii)6 September 2013, Anthony D’Amato’s Northwestern Public Law Research Paper 13-30 (historical analysis of meaning of these terms)

D) Chapter VII Authorization

(i) 7 September 2013, Stephen Griffin at Balkinization (argues that the UN doesn’t really represent “collective” security since it relies so much on specific states)

(ii) 12 September 2013, Daniel Bethlehem at EJIL Talk! (claims that Iraqi no-fly zones constituted an intervention outside of Chapter VII authorization)

(iii) 26 September 2013, Kenneth Anderson at Opinio Juris on the draft UNSCR 2118 on Syria's chemical weapons (applying his view of international law as substance vs international law as process to the situation in Syria)

(iv) 27 September 2013, Ryan Goodman at Just Security (on whether the draft resolution is binding and automatically enforceable)

(v) 27 September 2013, Dan Joyner at Arms Control Law Blog  (on what it means for a UNSCR to be adopted "under" Chapter VII, and noting that the reference to "a threat to international peace and security" might open the way for authorization of force later)

(vi) 28 September 2013, John Bellinger at Lawfare (arguing that the final and adopted version of UNSCR 2118 is legally binding but merely puts the hard problems off for awhile)

(vii) 1 October 2013, Marko Milanovic at EJIL Talk! (noting that UNSC 2118 endorses for the first time explicitly that all UNSC decisions are legally binding, not just those taken under Chapter VII; and noting that all uses of chemical weapons anywhere are a threat to international peace and security)

E)”Uniting for Peace” Resolution as a Way Round UNSC Deadlock

(i) Andrew Carswell in the Journal of Conflict and Security Law

 

III. Legality of Possible Grounds for Intervention:

A) Humanitarian Intervention Doctrines

(i) 27 April 2013, Dapo Akande EJIL Talk! (on whether chemical weapons provide a basis for humanitarian intervention) building on an earlier discussion from Opinio Juris on 7 December 2012 from Julian Ku (saying the chemical weapons do not provide a basis for the use of force).

(ii) 25 August 2013, Jack Goldsmith at Lawfare (whether Kosovo+Syria would strengthen the development of a customary norm)

(iii) 28 August 2013, Dapo Akande EJIL Talk! (whether a customary international law right to humanitarian intervention exists)

(iv) 29 August 2013, UK Government Legal Position (the conditions under which there is no need for UNSC resolution) which is briefly discussed by Marko Milanovic at EJIL Talk! (whether the UK is trying to make custom) and by Jack Goldsmith at Lawfare (arguing that it is better to offer a weak legal justification than no legal justification). Daniel Bethlehem is quoted in the Guardian commenting on the UK position.

(v) 30 August 2013, Guglielmo Verdirame at EJIL Talk! (the legality of humanitarian intervention turns on a strategic assessment of whether proposed military action could achieve its stated humanitarian purpose)

(vi) 31 August 2013, John Quigley at Opinio Juris (even if humanitarian intervention were legal you would need to show that a plan could protect vulnerable people but the UK plan doesn’t do this)

(vii) 4 September 2013, Jack Goldsmith at Lawfare, (on how two (1, 2) recent statements by President Obama show that the US no longer thinks UNSC approval is needed for humanitarian intervention)

(viii)12 September 2013, Daniel Bethlehem at EJIL Talk! (there is a principle of humanitarian intervention which relies on the urgency of a situation and the cumulative impact of several “threads” which underpin the UK Government’s position that the conditions for intervention were met in the case of Syria)

(ix) 24 September 2013, David Luban at Just Security (suggests that Syria is changing the contours of Just War Theory in that "just cause"  now places greater emphasis on ends rather than only looking at means, and a potential just war that is blocked by the UNSC can alter the meaning of "legitimate authority".)

(x) 2 October 2013, Harold Koh at Just Security (echoing Bethlehem's support for a right of humanitarian intervention but basing it on a reading of the Article 2(4) that permits exceptions other than self-defence, setting out criteria to limit the scope of the exception, and saying that post-Kosovo a consensus has built up supporting such a right). Koh's arguments are criticised on 2 October 2013 by Kevin Heller at Opinio Juris (that the proposed action would fail to meet Koh's criterion of alleviating a humanitarian crisis as it is too limited, and citing the adoption by over 130 states of the G77's rejection of the right of the humanitarian intervention as evidence of the post-Kosovo consensus is against such a right). Koh's arguments are further analysed on 7 October 2013 by David Kaye at Just Security (that Article 2(4)'s ban on force is not the means to an end but an end in itself; and if, as Koh claimed, the right of humanitarian intervention was around since Grotius, then it would have been included in the UN Charter) and again on 8 October 2013 by Carsten Stahn at Opinio Juris. Koh responds to his critics on 12 October 2013 at EJIL:Talk!.

(xi) 31 January 2014 UK Foreign and Commonwealth Office letter responding to a question from the House of Commons Foreign Affairs Select Committee (restating its position on the legality of unilateral intervention in the face of UNSC deadlock, and reconciling this to doctrines of R2P)

B) Counter-Proliferation

(i) 2013 SIPRI Yearbook (details Syria’s 2012 declaration that it owned chemical weapons and threatened to use them against aggressors, and the Russian deputy foreign minister opining that Syria had international obligations not to stockpile or use chemical weapons)

(ii) 28 August 2013, David Fidler at Arms Control Law Blog (suggests protecting the prohibition of chemical weapons as a jus cogens norm as justification for the use of force)

(iii) 6 September 2013, Krista Nelson at Opinio Juris (argues that arms control law does not provide a trigger for intervention to enforce it but that perhaps the US aims to develop this is a legal justification for the use of force)

(iv) 7 September 2013, John C. Dehn at Lawfare (considers the Obama Administration’s proposed Authorization for the Use of Military Force as possibly creating a right to intervene to counter the use of proliferation of WMD).

(v) 7 September 2013, Kevin Heller at Opinio Juris (on customary status of norm against use of chemical weapons)

 

C) Intervention to Support Self-determination

(i) 6 December 2012, Dapo Akande at EJIL Talk!

(ii) 5 May 2013, Stefan Talmon in Chinese Journal of International Law (legal consequences of recognizing Syrian opposition)

 

D) Responsibility to Protect

(i) 10 May 2013, Dianne Marie Amann reported on an article in China Legal Science explaining China’s attitude towards R2P and citing a Beijing Review article explaining Chinese Middle East diplomacy.

(ii) 14 August 2013 John Heieck at Opinio Juris on obligation to prevent war crimes, heavily criticised in Comments, raised again by Manuel Ventura and Dapo Akande at EJIL Talk! on 6 September 2013 (discussing possible customary obligation to prevent genocide)

(iii) 23 August 2013, Peter Stockberger at Opinio Juris (arguing that R2P adds nothing legally to existing doctrine on legality of the use of force)

(iv) 31 August 2013, Jennifer Trahan at Opinio Juris (arguing that R2P fills a gap in the international legal order)

(v) 2 September 2013, Jennifer Moore at the OUP Blog (makes the case that in this instance R2P demands non-lethal assistance)

(vi) 3 September 2013, Mark Kersten at Opinio Juris (on normative versus legal conceptions of R2P)

 

(vii) 31 January 2014 UK Foreign and Commonwealth Office letter responding to a question from the House of Commons Foreign Affairs Select Committee (restating its position on the legality of unilateral intervention in the face of UNSC deadlock, and reconciling this to doctrines of R2P)

IV. Precedents

(i) 29 August 2013, UK House of Commons Standard note (summarises legal backgrounds to interventions in the Gulf 1991, Bosnia, Kosovo, Iraq, and Libya)

A) Kosovo

(i) 24 August 2013, Jack Goldsmith at Lawfare (since the US deliberately avoided creating a legal doctrine for the Kosovo campaign, it cannot provide a precedent)

(ii) 24 August 2013, Ashley Deeks at Lawfare (on “factors” and how Syria compares to Kosovo)

(iii) 29 August 2013, Matthew Waxman at Lawfare (on how to use Kosovo to develop acceptability of humanitarian intervention)

 

B) Libya

(i) 7 February 2013, Olivier Courten and Vaios Koutroulis in the Journal of Conflict and Security Law (view intervention in Libya as contrary to norm against aiding rebels and actual force used as exceeding what the UNSC authorized)

(ii) 7 August 2013, Aqsa Mahmud at Opinio Juris (compares R2P arguments in Libya and Syria contexts)

(iii) 12 December 2013, Ralph R. A. Janik in 1 Studia Universitatis Babes-Bolyai, Studia Europaea (2013) (on how Libya experience explains Russia and China’s reluctance to accept R2P arguments)

 

Others

12 September 2013, Daniel Bethlehem at EJIL Talk! (main post is about humanitarian intervention generally but cites as precedents the following interventions: Tanzania in Uganda, Vietnam in Cambodia, and India in East Pakistan; also claims that Iraqi no-fly zones constituted an intervention outside of Chapter VII authorization)

 

V. Self-Defence Article 51

A) Collective Self-Defence

(i) 8 December 2012, Daniel Bethlehem at Opinio Juris (on NATO supporting Turkey)

(ii) 30 May 2013, Jordan Paust in Pennsylvania International Law Journal (on supporting action on behalf of Turkey and Jordan)

(iii) 10 September 2013, John Bellinger III at the Council on Foreign Relations (deployment of chemical weapons serious enough to constitute the kind of threat to international peace and security that justifies action in collective self-defence)

B) “Armed Attack”

(i) 27 April 2013, Dapo Akande EJIL Talk! (on whether accidental exposure to chemical weapons are grounds for action in self-defence) in part response to 26 April 2013 post by Ashley Deeks at Lawfare (suggesting Syria’s neighbours might feel at risk)

C) Anticipatory self-defence

(i) 7 May 2013, Dan Joyner at Arms Control Law Blog  (on Israeli strikes against Syria)

 

VI. Progressive Development of Law on the Use of Force

(i) 27 August 2013, Ian Hurd in the New York Times, (suggesting that if there is no legal workaround develop the law through “constructive noncompliance”)

(ii) 1 September 2013, Andre Nollkaemper at Opinio Juris (how intervention could change the rules on the use of force)

(iii) 1 September 2013, Ezequiel Heffes and Brian Frenkel at Opinio Juris (discussing Higgins’ view of international law as process)

(iv) 4 September 2013, Anthony Colangelo in PrawfsBlawg (tries to theorise how a future shift in customary international law affects current legality; comments ask questions about thresholds for determining changes in peremptory norms)

(v) 5 September 2013, Kenneth Anderson at Lawfare (elaborating on his ASIL Insight, looking at arguments about developing international law)

(vi) 7 September 2013, Gabriella Blum at Lawfare (on whether permitting punishment as a justification for the use of force would better enable us to discuss moral questions)

(vii) 7 September 2013, Bill Schabas at Human Rights Doctorate (considers G20’s use of term “World’s Rules” and wonders whether this constitutes a distinct source of norms)

(viii) 15 January 2014, Milena Sterio in Cleveland-Marshall Legal Studies Working Paper (sets out how Harold Koh’s vision of allowing a further exception to Article 2(4) might work)

 

VII. International Criminal Law

A) Crimes

(i) 13 March 2013, Marko Milanovic at EJIL Talk! (mainly about Perisic decision at the ICTY Appeals Chamber, but with reference to liability for arming war criminals, discusses application of distinction between aiding general war effort and complicity in commission of crimes)

(ii) 23 August 2013, Dapo Akande at EJIL Talk! (are chemical weapons covered by the Rome Statute?)

(iii) 30 August 2013, Bill Schabas at Human Rights Doctorate (that states attacking Syria without UNSC authorization could be guilty of aggression)

(iv) 31 August 2013, Ian Hurd at Opinio Juris (whether Syria’s use of chemical weapons is a breach of international law when it is not a party to the CWC)

(v) 15 September 2013, William Schabas at Human Rights Doctorate (wondering whether Ban Ki Moon’s declaration that Assad had committed crimes against humanity would be prejudicial to a fair trial)

(vi) 18 September 2013, Catherine Harwood at Spreading the Jam (explains that mere use of chemical weapons – as opposed to their effects – is a war crime but not a crime against humanity)

B) Jurisdiction of the ICC

(i) 13 July 2012, Mark Kersten at Justice in Conflict on using an ICC referral as a tool to stop violence which has since been proposed on 3 September 2013 by Kip Hale in the Huffington Post and on 4 September 2013 by Luis Moreno Ocampo in the Huffington Post

(ii) 27 August 2013, Kevin Heller at Opinio Juris (whether only the use of chemical weapons by the Syrian Government could be referred to the ICC)

C) Accountability for Crimes

(i) 25 September 2013 "Blue Ribbon Panel of Experts" at Public International Law and Policy Group (proposing a Draft Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes for violations of Geneva Conventions and 1925 Chemical Weapons Convention)

(ii) 3 October 2013, Dov Jacobs at Spreading the Jam (critical discussion of PIPLG’s proposed Draft Statute).

(iii) 3 October 2013, Carsten Stahn at EJIL:Talk! (on UNSC Res 2118’s lack of an ICC referral and what the implications for accountability for crimes committed during Syria’s conflict)

(iv) 9 December 2013, Annika Jones at US Naval War College’s International Law Studies (provides an overview of international and domestic criminal justice options)

(v) 23 January 2014, Mark Kersten at Justice in Conflict (discusses Peace v Justice debates with links to his own proposal for a middle ground from 10 November 2013 and Human Rights Watch’s 20 January 2014 demands for justice from the peace talks in Geneva)

 

VIII. International Human Rights Obligations and Remedies

(i) 13 April 2013, Tilman Rodenhauser in EJIL Talk! on the Report of the independent international commission of inquiry on the Syrian Arab Republic of 22 February 2012 which applied human rights obligations to Syrian opposition groups. Rodenhauser produced an article on 1 November 2013 for International Humanitarian Legal Studies 3 (2013) on this topic.

(ii) 5 September 2013, Diane Marie Amann (proposing an ICJ suit under the CAT for use of chemical weapons)

Disclaimer: Please note that inclusion in or exclusion from this index does not indicate approval or disapproval of views or reflect a judgement on the quality of argument.

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