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UN approval is needed

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the associated press archives /Shaam News Network
This image provided by Shaam News Network, which was authenticated, purports to show dead bodies  after a chemical attack on Ghouta, Syria on Aug. 21.

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the associated press archives /Shaam News Network This image provided by Shaam News Network, which was authenticated, purports to show dead bodies after a chemical attack on Ghouta, Syria on Aug. 21.

In 1860, following a spate of massacres that had resulted in tens of thousands of deaths in what is now Lebanon and Syria, France and other European powers persuaded the Ottoman sultan to agree to international intervention. An expeditionary force led by a French general was sent to Beirut shortly thereafter.

It remained in place for roughly one year, helping to suppress the conflict and reorganize legal practices and administrative boundaries. Jurists and diplomats styled it an intervention in the name of "humanity" -- one in a series of such actions in the Ottoman Empire, the principal site for the development of a "right" to humanitarian intervention in the 19th century.

Over 150 years have passed since. The French and Ottoman empires are no more, and the eastern Mediterranean has been shaken by countless waves of war and revolution. Yet, preparations are underway for another intervention in Syria. Should it materialize, this act will also be undertaken in response to massacres, with 100,000 having already perished and millions struggling to survive as displaced persons, either within Syria or in neighbouring states. And it, too, will be clothed in the language of humanitarianism. But, troops are unlikely to be put on the ground, and governmental authorities in Syria won't provide their consent. Most importantly, the intervention will run counter to international legal norms.

The Obama administration has yet to advance a coherent legal argument in defense of its proposed intervention in Syria. However, U.S. officials and commentators have floated a number of ideas in an effort to find a legal basis for the "punitive" and "deterrent" strike. It has been suggested that the U.S. and its allies would be acting in individual or collective self-defense. A slightly more plausible contention is that intervention is necessary on humanitarian grounds. In this connection, some have argued that Damascus's apparent use of chemical weapons has triggered the so-called "responsibility to protect", according to which the "international community" is entrusted with a duty to protect populations at risk of genocide, war crimes, ethnic cleansing and crimes against humanity.

The legality of humanitarian intervention -- and of the "responsibility to protect", its putative successor doctrine -- is highly dubious. No multilateral treaty governing humanitarian intervention or the "responsibility to protect" is available. And despite fashionable claims to the contrary, neither finds a home in customary international law, the body of international legal rules that arise from general practices of states recognized to be legally binding.

Indeed, the vast majority of international lawyers agree that without explicit authorization from the UN Security Council, there is no legal basis upon which the U.S. and its allies can mount a humanitarian intervention in Syria. Simply put, a strike on Syria that lacks such authorization will circumvent the UN framework for the use of force. While morally and politically legitimate for some, it will be unlawful.

The Assad regime has proven itself to be reckless and repugnant. The horrors to which the people of Syria have been subjected for the past two years (and for decades before then) demand a concerted and consistent response through the UN. But bombarding Syria without a Security Council mandate to "send a message" is not likely to bring its civil war to an end.

Nor is it likely to escape denunciation as a violation of international law, just as NATO's bombing campaign during the 1998-99 Kosovo War (a closer analogue to Syria today than the U.S. invasion of Iraq in 2003) was widely and rightly condemned as unlawful. If the U.S. and other states wish to alter existing laws relating to the use of force, diluting traditional conceptions of state sovereignty in the name of humanitarianism, they need a better way of doing so than by adding to the carnage.

Until now, Russia and China, both permanent members of the Security Council, have vetoed any resolution to permit military intervention. Their largely unqualified support for Assad is irresponsible and deeply counter-productive. Still, intervening illegally in a region that has long been at the receiving end of colonialist and imperialist policies runs the risk of deepening and prolonging the humanitarian crisis.

The 1860 expedition was undertaken at a time when humanitarian intervention was widely regarded as lawful -- when (European) international lawyers frequently spoke of a "right" to humanitarian intervention. The 1945 UN Charter went a long way to changing that, rendering humanitarian intervention essentially unlawful. However noble the relevant intentions may (or may not) be, intervention in Syria without Security Council authorization would clearly flout existing international law.

Umut Ozsu is a professor of law at the University of Manitoba. He teaches and conducts research in public international law.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien and Paul Samyn.

Republished from the Winnipeg Free Press print edition September 7, 2013 A15

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