PARIS – Syria appears to be moving closer by the day toward the end of Assad’s regime. In Western countries, the debate on a military intervention to secure the country’s "hot zones" is gaining momentum.
Until now, Western leaders have said that they would only support a military intervention if Bashar al-Assad used chemical weapons. Unfortunately, if the use of weapons of mass destruction is the only reason for intervention, people are going to make unhappy parallels with the recent past.
"The reason why such statements are risky," says one Paris-based diplomat, "is that you are exposing yourself to criticism – if you use the same reasons that led to the Iraqi war, people will be suspicious."
The fact is that neither the US nor the UK nor France have explicitly said that a military intervention to secure Syrian chemical stocks would be contingent on a United Nations Security Council vote. Given the seriousness of the situation, these countries seem willing to bypass the UN. This is exactly what the Bush administration did in 2003. After being denied the Security Council’s authorization, they decided that resolution 1441, voted on Nov. 8, 2002, was sufficient for them to go ahead. This text threatened Saddam Hussein of "heavy consequences" if he didn’t come clear on his weapons’ programs. The American approach was strongly contested by the French and the Russians.
The Iraqi and Syrian situations are completely different. Nobody wants to launch a large ground operation in Syria. The Western countries and their Arab allies would rather see the regime fall at the hands of the rebels or from the palace itself in Damascus. As opposed to Iraq, no one denies the presence of weapons of mass destruction in Syria.
It may seem paradoxical for Barack Obama – who always wanted to distance himself from his predecessor’s foreign policy – to even consider bypassing the UN in order to carry out a military intervention. On the other hand, that would follow the U.S. tradition for multilateralism. Obama certainly didn’t break from this line of conduct when he ordered intensive drone strikes without the UN’s approval.
For French President François Hollande, who claimed in late August that he would "stay true to international laws" and only participate in "operations to protect the population – with a Security Council mandate," bypassing the UN would be a tad more difficult.
Diplomats are scrambling to find a solution. In case of an impasse at the UN with Russian and Chinese vetoes, the last plausible reason for an intervention would be to claim self-defense. The right to use military power in case of legitimate defense is indeed mentioned in article 51 of the UN Charter: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
Could this be used against Syria? It might, but only if one of Assad’s chemical rocket crossed the border over to another country.
A long history of bypassing the Security Council
This has led NATO – as a safety measure – to deploy Patriot missiles in Turkey. However the current situation points to Bashar Al-Assad’s government using his chemical weapons inside his country, meaning against rebels and civilians. The self-defense argument wouldn’t stick in that case.
Unless…. Unless the international community recognizes the Syrian National coalition as "the legitimate representative of the Syrian people." The U.S., the Gulf states, France, Turkey and the UK already led the way on Dec. 12. Indeed, if the coalition should, as a recognized political entity of the Syrian sovereignty, call out for exterior military help, the question of interference would not apply.
In truth, when the subject of international law is brought up, the political usually prevails over the juridical. The countries, France included, which say they need the UN’s approval to get involved, have already managed to bypass international laws in the past.
This is the core of a long-standing debate that is still relevant today: did NATO’s intervention in Kosovo in 1999 – which was executed without explicit authorization from the Security Council – violate international law? The West had argued that the texts previously voted by the UN, added to the failed negotiations with Belgrade were enough to confer legal legitimacy to the operation. This was contested by Moscow, and since then, Russia’s position has stayed the same – they condemn the sanctions taken against Iran, which they consider illegal because they were decided without the UN’s approval.
In the end, the prevailing policy will always be the most "legitimate" over the most "legal." In the case of Syria, the West is trying to bypass the amorphous Security Council by drawing on the condemnation of Assad’s regime by regional organizations (the Arab League, the Gulf Cooperation Council and the EU) as well as the UN General Assembly and the ad hoc group of the "Friends of the Syrian people." The Russians, however, could – and they would be in their legal right to – protest that this is not enough and that no one is allowed to openly interfere in a civil war.
But Moscow’s arguments are often misleading – including when it questioned the Western interpretation of resolution 1973 that authorized armed force to be used in Libya. The Russian diplomats couldn’t have ignored paragraph four of the resolution, which stipulated that "all necessary measures" to "protect civilians and civilian populated areas under threat of attacks," had to be implemented in order to hasten the fall of the regime. The word "threat" was enough for Western countries to argue that Gaddafi remaining at the helm of Libya represented a constant "threat," and that his forces were thus a legitimate target.
Russia’s self-proclaimed title as keeper of UN dogma is actually more political than it is legal. It’s interpretation of international law tends to be much more flexible when it comes to safeguarding its "vested interests" in neighboring countries.
This was the case when it invaded Georgia during the summer of 2008, and then unilaterally changed its borders. The Russians drew on the UN "duty to protect" to hide what was – in the eyes of international law – a crime of aggression. They conveniently "forgot" that just saying they needed to "protect" Russians living in Georgia did not constitute a free pass to intervene in such manner – without the Security Council’s authorization. An authorization that it never asked for, of course.