After Aleppo: Humanity’s Right of Self-Defence

“We Syrians are human beings of this world, and the world must stop the Assad regime from killing us. Now.” With these words, Mr. Yassin al-Haj Saleh, a Syrian writer and activist, ended his appeal to the United States Congress to authorize a military strike against the Assad regime after its use of chemical weapons on 21 August 2013.

The U.S. Congress was at the time considering President Obama’s request for authorization to use military force against the Assad regime’s stockpile of chemical weapons. In explaining his move, President Obama made a similar argument to the one stated by Mr. Saleh:

“We are the United States of America, and we cannot and must not turn a blind eye to what happened in Damascus. Out of the ashes of world war, we built an international order and enforced the rules that gave it meaning. And we did so because we believe that the rights of individuals to live in peace and dignity depends on the responsibilities of nations.”

President Obama’s statement was consistent with his general position, articulated well before the Syrian crisis began. On the occasion of receiving the Nobel Prize for Peace in 2009, he stated:

“More and more, we all confront difficult questions about how to prevent the slaughter of civilians by their own government, or to stop a civil war whose violence and suffering can engulf an entire region.

“I believe that force can be justified on humanitarian grounds, as it was in the Balkans, or in other places that have been scarred by war. Inaction tears at our conscience and can lead to more costly intervention later. That’s why all responsible nations must embrace the role that militaries with a clear mandate can play to keep the peace.”

The UK government was the first to support military intervention in Syria. Following what it deemed “a serious crime of international concern [that] amounts to a war crime and a crime against humanity,” and in light of the existence of “extreme humanitarian distress on a large scale, requiring immediate and urgent relief,” the British government invoked the doctrine of humanitarian intervention and stipulated that an attack “to strike specific targets with the aim of deterring and disrupting further such attacks would be necessary and proportionate and therefore legally justifiable” and all the conditions for such “would clearly be met.” But Prime Minister Cameron decided to seek Parliament’s support for military action in Syria and his motion was narrowly rejected.

Fortunately the U.S. pressure paid off, and on basis of an agreement between the U.S. and Russia, Syria acceded to the Chemical Weapons Convention, and committed to destroy its entire stockpile (although later on Syrian troops employed chemical weapons on at least three occasions).

Was the threat of military action against Syria a violation of the prohibition on the threat or use of force?

It is difficult to revisit this question with clinical detachment as the voices of the desperate people of besieged Aleppo call out for our attention and help in the name of our common humanity, as they await their fate at the hands of the advancing enemy, after weeks without food, water or medicine, and under relentless and indiscriminate bombardments. A UN spokesman described the situation in Aleppo as a “complete meltdown of humanity” and the UN Secretary General referred to Aleppo as “a synonym for hell.” But can we exercise detachment? Behind the proverbial veil of ignorance, should we answer this question while envisioning ourselves as potential victims? As potential defenders of victims?

Back in 2013, President Obama and the UK government did not fully articulate the legal theory underlying their asserted right to use of force. But Mr. Saleh did, when he succinctly stated that “Syrians are human beings of this world.” The underlying rationale is humanity: all human beings in this world are entitled to live in peace and dignity. One of the more fundamental rules that emerged out of the ashes of the world wars and gave meaning to the international order is the concept of crimes against humanity and the commitment that such crimes will not remain unpunished. And if punishment is both a right and a duty of all, prevention should also be. As Michael Reisman has framed this point, we have the right to act “before victims become victims.”

Crimes against humanity are by definition crimes committed not only against those who are physically harmed but at the same time against each and every one of us. This is what grounds the concept of jus cogens. This is why the violation of jus cogens obligations carries erga omnes consequences. Such obligations include, as the Institut de droit international suggested, “obligation[s] under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of th[ose] obligation[s] enables all States to take action.”

The idea of crimes against humanity affirms the assertion that all states are subject to certain pre-state norms, which, to use David Luban’s words (p. 139), were not

“created by any political community at all, but rather by universal human need. Their normative force does not arise from the fact that they have been positivized in the statutes of the international tribunals and a few domestic legal systems, nor from the tepid commitment of states to enforce them. They represent every human being’s rightful demand that the political rough-and-tumble never again include the uttermost barbarism that crimes against humanity represent. Anyone who transgresses these laws is henceforth an enemy of all humans.”

It is because the crimes against humanity are committed against every human being by the enemies of all humans that states have, as the organs of humanity, the right to prosecute the perpetrators. When the Israeli Supreme Court justified Israel’s right to prosecute Eichmann for crimes against humanity (not only crimes against Jews), it invoked the same idea:

“the state which prosecutes and punishes a person for that offence acts solely as the organ and agent of the international community.”

The court (at para. 12(d)) cited Morris Greenspan as authority for the view that,

“Since each sovereign power stands in the position of a guardian of international law, and is equally interested in upholding it, any state has the legal right to try war crimes, even though the crimes have been committed against the nationals of another power and in a conflict to which that state is not a party.”

Although the notion of crimes against humanity is by now entrenched with respect to universal jurisdictions for crimes already committed, it is yet to be elucidated in the context of the UN Charter and the right to use force. Article 51 of the Charter refers to the “inherent right of individual or collective self-defence.” If crimes against humanity are perpetrated against every human being by the enemies of all humans, the “self” that resorts to self-defence surely must be every one of us. Our nations, as humanity’s organs, surely have the right to defend us.

This right was already recognized by Grotius who articulated “a just cause for undertaking war on behalf of the subjects of another ruler, in order to protect them from wrong at his hands.”[1] This just cause would be based on “the right vested in human society” by those acting as “a guardian, or some other person, [that] goes to law on behalf of a pupil, who is personally incapable of legal action.”

A legal system that recognizes certain pre-political obligations that apply erga omnes stipulates that the UN Charter is subject to those basic norms of humanity, and that its organs, including of course the Permanent Five, are bound by them. For the same reason, as highlighted by Eliav Lieblich (in his book, pp. 205-6), governments that perpetrate such crimes lose their authority to oppose the defenders’ intervention. While the consequences of the breach of jus cogens norms do not necessarily enjoy the same protected status as the norms themselves (e.g., some perpetrators may still be immune from criminal jurisdiction), it remains necessary to examine whether the UN Charter restricts the right to unilateral action to put an end to crimes being committed against humanity.

And if there is a right to use force against “hostis humani generis,” there is a duty to do so, provided, as Grotius has suggested, that the action is likely to be of service to the victim and the defender’s own life and interests are sufficiently secured.[2]

Of course, the exercise of this right cum obligation in response to an attack on humanity is subject to serious constraints of necessity and proportionality, as discussed in the UK government’s statement. Recent experience with interventions in Iraq and Libya demonstrates the concerns of abuse and misuse of military intervention, of intervention that can be more harmful than beneficial. Nevertheless, the basic tenet, that whoever perpetrates crimes against humanity attacks all humanity, seems to be beyond reproach, and should serve as the starting point for any analysis. The possibility of abuse should not become an excuse for evading the responsibility to protect “the human beings of this world” by exercising universal jurisdiction and even, in extreme circumstances and under strict conditions, by military intervention. Grotius acknowledges the concern of using intervention as a pretext, but he adds, “a right does not at once cease to exist in case it is to some extent abused by evil men.”

All this is easier said than done. In his last press conference at the White House in December 2016, President Obama described “hours of meetings, if you tallied it up, days or weeks of meetings where we went through every option in painful detail, with maps, and we had our military, and we had our aid agencies, and we had our diplomatic teams, and sometimes we’d bring in outsiders who were critics of ours,” that led him to conclude that “unless we were all in and willing to take over Syria, we were going to have problems, and that everything else was tempting because we wanted to do something and it sounded like the right thing to do, but it was going to be impossible to do this on the cheap.”

In these difficult days for the very idea of us as “human beings of this world” and the bearers of rights and obligations erga omnes, it is perhaps important to express commitment to it and to do whatever is possible to stop those who violate it. “Now.”

[1] Grotius DE JURE BELLI AC PACIS (On the Law of War and Peace) (Francis W. Kelsey 1925) (1625) Book II, Chapter XXV, part VIII

[2] Id., and part VII.