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Syria and the Law of Humanitarian Intervention

- would the policy option to use military force ever be available under either domestic or international law?

- Part of scholars refer to Article 2(4) of the U.N. Charter that permits individual and collective self-defense but bars any and all other forms of intervention without express Security Council authorization. à UoF in Syria is per se illegal

- Too simplistic approach, since it doesn’t take into account systematic dysfunction of UN SC (persistent veto of Russia)

- A “per se illegal” approach overlooks massive violations of HR, use of chemical weapons, catastrophic humanitarian situation, threat to global security

- The question: whether preventing the Syrian atrocities would put forward the purposes of international law and the U.N. system far more than a rigid reading of Article 2(4) that privileges one systemic value—territorial sovereignty—over all others

- Syria can be a lawmaking point; UoF under certain strict criteria can put US actions in Syria in the gray legal zone

- Chapter I of the U.N. Charter states “Purposes and Principles” that guide the United Nations, including “to maintain international peace and security….”

- Art. 51 of the Charter includes exceptions to the prohibition on the UoF – individual and collective self-defense

- Does the threat of UoF fall under these exceptions?

- Kosovo situation: October 1998 - the UK publicly declared the legality of the operation, “so long as the proposed use of process is necessary and proportionate to the [humanitarian] aim and is strictly limited in time and scope to this aim.”

- Lou Henkin enumerated four factors that supported the legality of collective action in Kosovo without Security Council authorization:

· extreme gravity of the human rights situation

· collective humanitarian action

· prior Security Council unavailability

· subsequent Council monitoring

- Kofi Annan’s statement on Kosovo: recognized necessity of the UoF in certain situations, while emphasizing on the importance of UN authorization à legal movement to explore R2P

- 2005 World Summit, member states declared that “we are prepared to take collective action . . . through the Security Council . . . on a case-by-case basis . . . should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

- 2006 UN Resolution confirmed this

- In Syrian blatant situation when chemical weapons are applied, states can take action without claiming legal right to HI or R2P, but can refer to ex post exemption from legal wrongfulness (happened in the Kosovo situation: after using force by NATO, the UN SC later approved the settlement)

- Arguments in favor of UoF under HI:

· Humanitarian crises à threat to other nations à right to self-defense

· Exhaustion of all available remedies to obtain UN authorization

· Limited UoF in genuinely humanitarian purposes



· Collective action (e.g. General Assembly “Uniting for Peace” Resolution or regional arrangements)

· To prevent per se illegal UoF by state (e.g. chemical weapons in Syria)

· To prevent per se illegal consequences (war crimes, crimes against humanity, humanitarian crises)

- International law is not just about constraint and sovereignty, but about building legitimacy, channeling good U.N. policy, protecting human rights, and preventing the scourge of war

- the option of diplomatic intervention backed by the lawful threat of limited military intervention

- International lawyers in and out of government need to discuss and define a narrow “affirmative defense” to Article 2(4) () that would clarify the contours of an emerging lawful exception to a rigid rule.

- Public statement on the legality and legitimacy of the UoF should prevent abuse of R2P by less humanitarian-minded states in malicious purposes.

 

Corporations

- Problems with control of MC: reluctance of states, lack of jurisdiction of domestic courts, legal personality

- IL can urge states to regulate MC activity but states are often reluctant to do so

- Corporate scandals highlight two important distinctions: that between corporate and white collar offending (acting against the company) and that between corporate and directorial responsibility.

- MC collude with repressive states (question of complicity under criminal law)

- Decicion: defining legal status of MC, establishment of their complicity under criminal law


Date: 2016-03-03; view: 894


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