Does it Matter if US Intervention in Syria Violates the UN Charter?

Most international law experts agree that a US military intervention in Syria would violate the United Nations charter, which forbids the use of force against another state except in self-defense or when authorized by a UN Security Council Resolution. In this case, the Assad regime has not attacked the United States, and there is no chance of a Security Council resolution authorizing intervention, because Russia and China would veto it.

Thus, US military intervention would indeed probably violate the Charter. I am skeptical of the case for intervention on other grounds. But if intervention were otherwise justified, US and its allies should not abandon it out of respect for the UN Charter. The Charter’s requirements are procedurally unjust, and there is no reason to believe that adhering to them has beneficial consequences.

I. Procedural Justice.

Sometimes, we have a moral obligation to follow just procedures even if they produce bad results in particular cases. But the Charter’s procedures for authorizing military intervention are deeply unjust. No matter how egregious a regime’s atrocities against its own citizens, it forbids outside intervention unless the intervention has the consent of two brutal authoritarian states: Russia and China. These governments have an obvious interest in curbing intervention against their client states, and also in shielding their own oppression from outside pressure. It is as if domestic law enforcement operations against organized crime required the prior approval of the two most powerful Mafia families. This is not to say that any intervention opposed by the Chinese or Russian governments is necessarily justified. Sometimes, as in the case of Syria, it may not be. But there is no good procedural reason to give these regimes an automatic veto over interventions being considered by liberal democracies.

If the process by which the Security Council makes decisions is unjust, so too was the process by which the Charter and the Security Council were established in the first place. Both required the consent of the Soviet Union, then ruled by Joseph Stalin, a regime that slaughtered more people than any other in history, with the possible exception of the communist government in China, which imitated many of Stalin’s policies. It is no accident that Stalin preferred a Charter that made it virtually impossible to authorize outside intervention against the sorts of crimes he was committing. Giving the USSR a veto on the Security Council was a concession to the power of a mass-murdering regime, not an expression of any valid moral principle. Unfortunately, this is just one of many ways in which the content of international law was warped by the influence of oppressive governments.

One can respond that liberal democracies also lack moral standing to pass judgment over interventions, because their historical record is also far from perfect. The governments of Britain, France, and the US – the three liberal democracies with Security Council vetoes – have all been guilty of serious injustices of their own. True enough, although their record is less bad than that of Russia and China. But the logical implication of this line of reasoning is that none of the five permanent Security Council members deserve a veto, not that all of them do.

II. Does the Charter Curb Aggression in Practice?

The Charter’s unjust procedures might still be defensible if they produced beneficial results. Defenders of the Charter, such as Yale law professors Oona Hathaway and Scott Shapiro argue that it is a valuable tool for curbing aggression. But the historical record suggests that just isn’t true. It is difficult to find even one case where an authoritarian or totalitarian regime decided to forego aggression out of respect for the Charter, in a situation where it otherwise would have launched an attack. The Charter did not prevent the Soviet Union from invading Czechoslovakia, Hungary, and Afghanistan, for example. Even smaller authoritarian powers feel free to ignore it when it suits their interests, as in the case of Saddam Hussein’s invasions of Iran and Kuwait, Argentina’s attack on the Falkland Islands, and many other cases. Illiberal regimes sometimes are deterred from aggression, of course. But almost always it is because of fear of defeat or retaliation, not deference to the UN Charter.

If anyone is ever deterred by concern about the Charter, it is liberal democratic states contemplating humanitarian interventions. Sometimes, it may lead them to forego unwise actions. But at least equally often, it helps justify overlooking massive atrocities that could easily have been prevented, as in the cases of Cambodia in the 1970s and Rwanda in the 1990s. Had Bill Clinton followed the Charter in the case of Kosovo in 1999, many more innocent civilians would have died.

In sum, the the UN Charter framework for authorizing military action is procedurally unjust, and there is no evidence that it produces beneficial results in practice. In some cases, going through the UN system might be useful for public relations reasons. But the US and other liberal democracies should not feel any moral obligation to forego otherwise justified interventions merely because they might violate the Charter.

It is fair to ask whether domestic constitutional restraints on military action, which I believe the US government should follow, are subject to similar criticisms. In my view, the US Constitution is far superior to the Charter on both procedural and consequentialist grounds. Procedurally, forcing the president to seek congressional authorization for offensive military action helps ensure that it has the consent of at least a large majority of both the public and the political elite. In terms of consequences, it prevents us from entering dubious wars at the whim of a single man, and increases the chance of winning those wars we do enter. Success is more likely if the cause has broad political support, thereby reducing the chance of defeat through loss of will. Adherence to domestic constitutional law certainly does not prevent all dubious military interventions. But it at least reduces their incidence. Yet even if it turns out that the US Constitution is actually no better than the UN Charter on these issues, the flaws of the former do not justify those of the latter.

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