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Dehn on Syria and Humanitarian Intervention

Jack Goldsmith
Friday, September 6, 2013, 3:22 PM
John Dehn, a professor at  Loyola University Chicago School of Law and  a Senior Fellow in West Point's Center for the Rule of Law, writes in with this comment about Syria and humanitarian intervention:
Much of the discussion surrounding potential U.S.

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John Dehn, a professor at  Loyola University Chicago School of Law and  a Senior Fellow in West Point's Center for the Rule of Law, writes in with this comment about Syria and humanitarian intervention:
Much of the discussion surrounding potential U.S. attacks against the Assad regime seems to assume that the administration is advancing some form of humanitarian intervention argument (see Jack’s recent exchange with Marty Lederman, and, for example, herehere and here at Opinio Juris).  I disagree.  Perhaps I take too narrow a view of "humanitarian intervention," but it is my understanding that armed "humanitarian intervention" refers to armed intervention to protect a specific population whose government has violated or otherwise failed in its sovereign obligation to do so.  (See relevant General Assembly language here.) That is why it is inextricably linked to the responsibility to protect, or R2P.  The justification for intervention by the international community (or some portion of it) comes from a moral imperative to protect a specific population. This has not been the main thrust of the administration's recent rhetoric.  When the administration refers to the human suffering caused by chemical weapons it does not typically focus broadly on the Syrian population but rather the casualties from the attack(s) under UN investigation.  Moreover, its main focus seems to be upholding the chemical weapons ban to protect the U.S. and its allies and "partners" (does this mean the whole world?).  The administration's proposed AUMF language makes this quite clear (as does the Senate’s).  There is a reference to encouraging the parties to the Syrian conflict to participate in the Geneva process and to the chemical attack and its casualties.  There is no call or threat to end the violence that is affecting the Syrian population.  Most of the "whereas" language references norms against chemical weapons.  The administration's use of force language does not include among its purposes protection of the Syrian population, but rather to:       (1) prevent or deter the use or proliferation (including the transfer to terrorist groups or    other state or non-state actors), within, to or from               Syria, of any weapons of mass destruction, including chemical or biological weapons or components of or materials used in such weapons; or       (2) protect the United States and its allies and partners against the threat posed by such weapons. Jack's last post yesterday cites yet another statement that indicates the administration is focused on the moral need to eliminate chemical weapons. All of this indicates that the administration’s principle focus and justification is the need to prevent the stockpiling, proliferation and use of chemical weapons, not to protect the Syrian population.  Thus it is not, strictly speaking, a "humanitarian intervention" as that doctrine/concept has developed in international law.  It may be "illegal but legitimate" for other reasons: the enforcement of strong international norms against chemical weapons.  And eliminating such weapons may be a "humanitarian" goal in a broad sense of the term, but is not “humanitarian intervention” as currently conceived in international law. One might say that the U.S. is trying to expand the evolving concept of "humanitarian intervention" or that it is creating a separate right to use force on behalf of the international community (see thoughtful discussion here).  Of course, claiming a right to use force to prevent the use or proliferation of weapons of mass destruction and setting a precedent for doing so might prove useful when it comes to Iran.  (One might even say there is an implicit or explicit Bush-era, Iraq-like preventive self-defense argument in the administration’s AUMF language as well.) In any event, the administration’s avoidance of humanitarian intervention and R2P language strongly indicates that the administration's goal is not to end the current conflict in Syria and its terrible effects on the Syrian people (and all of the military commitment that goal would require).  It is to respond to the use of prohibited weapons in order to prevent or deter their future use or proliferation. Perhaps, then, we should turn our attention to arguments about using force to effectuate the mandates of UN Security Council Resolutions 1540, 1673 and 1977 (see the relevant UN Committee website, with links to resolutions, here)?  Could these contain the “red line” drawn by the international community?

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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