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Would it be lawful to aid Syrian rebels: A commentary on Mark Lagon’s proposal

Logo of the Free Syrian Army

Logo of the Free Syrian Army

Over at The Internationalist, my dear friend and colleague, Ambassador Mark Lagon, posts on lessons for intervention in Syria. Lagon writes:

Despite a reputation as arch-hawk, in her twilight years the first U.S. female UN ambassador, Jeane Kirkpatrick, privately opposed invasion and occupation in Iraq. (I knew, as she was my mentor.) Biographer extraordinaire Peter Collier documents this fact in Political Woman. Her qualms and preference for another avenue offer insights for leadership and multilateral action today, especially regarding Syria.

Sometimes a government so acutely threatens its own people or its neighbors that external actors must step in. Sometimes global governance requires globally changing domestic governments.

Most observers would think of four options. First, is direct military intervention with a UN Security Council imprimatur, such as Operation Desert Storm to repel Iraq from Kuwait or Operation Uphold Democracy to replace Haiti’s junta.

Second, a “minilateralist” option without formal UN legitimization is embodied by NATO bombing Serbia to prevent ethnic cleansing in Kosovo after Russia blocked Security Council approval.

A looser “coalition of the willing” option was seen in the Iraq intervention starting in 2003, opposed by two neoconservatives: Kirkpatrick privately and Frank Fukuyama publicly.

The merits of stated pro-democracy goals and post-facto approval by allies or bodies aside, pure unilateral action is the fourth option – like the U.S. invasion of Grenada in 1983.

Yet the Kirkpatrick preference is another viable option—embodied by the “Reagan Doctrine” aid to insurgencies against Soviet-backed governments in Angola, Nicaragua, Cambodia, and Afghanistan. My 1994 book The Reagan Doctrine tries to answer how in the late Cold War the United States got in the business of aiding insurgencies—rather than counterinsurgency as in Vietnam and El Salvador (and Iraq and Afghanistan in recent years). Avoiding full, direct intervention after Vietnam was one reason.

This option typically involves three actors: (1)  an indigenous opposition movement enjoying varying degrees of unity, popular backing, and authentic roots, (2) a sanctuary state offering them a base to regroup and from which to mount military efforts, and (3) a substantial patron power funding and arming them, often through the sanctuary state.

The Reagan era cases highlight two prerequisites for this option to serve global governance. One test is the will and capacity of the United States and the international community to follow through and help an insurgency transition into an efficacious, pluralism-protecting government. The United States neglected Nicaragua after aiding the Contras. Then U.S. secretary of state James Baker reportedly said that Central America after the Cold War should return to the back pages of the newspaper. Nicaragua has been mired in acute poverty and corruption with not-so-benign neglect. Ironically, the Sandinistas are once again in power with the same illiberal President, Daniel Ortega.

The other test is looking hard at just who the insurgents are and what they will become. President Reagan called the U.S.-backed insurgencies “freedom fighters” who were “the moral equivalent of the Founding Fathers,” supported by France in the American Revolution. Given the direct multilateral intervention in Afghanistan to oust the Taliban, it is noteworthy to recall how the United States backed the Muslim fundamentalist resistance to Soviet occupation of Afghanistan, some elements of which became the Taliban. (Truth be told, the world also committed the sin of neglect in Afghanistan after the Cold War as well.) Even columnist Charles Krauthammer, who approvingly gave the approach the moniker “the Reagan Doctrine” noted the perils of the United States backing elements of the genocidal Khmer Rouge in a coalition of insurgents against a pro-Soviet regime in Cambodia.

My last guest post looked at the global and domestic governance issues of civil strife in Libya, noting that the “responsibility to protect” required responsibly examining an opposition movement for commitment to liberal governance in weighing whether to back it.

In the most striking humanitarian calamity in the world today, Syria’s government has through a long train of abuses forfeited its legitimacy and justified revolution, a la John Locke. It has contravened its responsibility to protect its own people—indeed proactively subjecting its people to massive harm. That fact justifies the international community stepping in to protect the Syrian people.

Perhaps the most feasible option is the Reagan Doctrine formula.  The vice president of the American Enterprise Institute, Danielle Pletka, offered a measured, thorough assessment of the actors in question: various insurgent groups, sanctuary states like Turkey, and other patrons like Saudi Arabia. While indigenous actors, local sanctuary states, and great power patrons like the United States may have some parochial interests involved, it would be wise to back the best of the insurgents before a slaughter already claiming tens of thousands of civilians balloons further. That is, as long as the United States pays close attention to the nature of who it backs and is prepared to follow through helping a new state govern and govern justly.

The perfect is the enemy of the good. Being too pristine in “the fog of civil war” about vetting the liberal credentials of armed insurgencies risks just standing by as a house burns. Awaiting some nonexistent better alternative to materialize risks the same. Better stability and governance in Syria, the region, and the world would likely result from working with a responsible rising power, Turkey, to help those already willing to help themselves in Syria.

This approach does seen to make a lot of sense.  But would such support for rebel groups be lawful?

In Nicaragua v. the United States, the International Court of Justice found that the America actions in Nicaragua violated customary international law embodied in Article 2(4) of the United Nations Charter. Undoubtedly, the same logic would apply to similar actions in Syria– absent an authorization by the Security Council under Chapter VII of the United Nations Charter.

Nonetheless, for some time, several of us, including my friend and collaborator, Robert J. Beck, Michael Glennon, and Mark Weisburd, have argued that the rules embodied in the Charter framework no longer reflect existing international law. In 2003, for example, I wrote:

international law is created through the consent of states expressed through treaties and custom. Because both treaties and cus tom are equally the source of international law, if a conflict arises between the two, such a conflict is resolved by determining the rules to which states consent at the present time. This can be determined by ascertaining which rules currently possess two elements: authority and control. First, to have authority, the would-be rule must be perceived by states to be the law; in the traditional language of the law, the rule must have opinio juris. Second, the putative rule must be controlling of state behavior. It must be reflected in the actual practice of states.

When the UN Charter was adopted as a treaty in 1945, that was a clear indication that states perceived the norms embodied in that agreement to be law. In the more than 50 years that have transpired since the conclusion of the charter, however, the customary practice of states seems to be wildly at variance with the charter’s language. If the charter framework intended to prohibit the threat and use of force by states against the territorial integrity or political independence of states or in any other manner inconsistent with the purposes of the UN, such prohibition does not seem to be realized in practice. Almost since the moment that the charter was adopted, states have used force in circumstances that simply cannot be squared with the charter paradigm.

.  .  .

Given this historical record of violations, it seems very difficult to conclude that the charter framework is truly controlling of state practice, and if it is not controlling, it cannot be considered to reflect existing international law. As Professor Mark Weisburd has noted, “[S]tate practice simply does not support the proposition that the rule of the UN Charter can be said to be a rule of customary international law.” “So many states have used force with such regularity in so wide a variety of situations,” Professor Michael Glennon echoes, “that it can no longer be said that any customary norm of state practice constrains the use of force.” Although I would argue that there is customary prohibition on the use of force for pure territorial annexation, as witnessed by the international community’s reaction to the Iraqi invasion of Kuwait in 1990, such minimal prohibition is a far way from the broad language of the charter prohibition contained in Article 2(4). For all practical purposes, the UN Charter framework is dead. [footnotes omitted]

Under this understanding of the law relating to the use of force, Dr. Lagon’s suggestion that the United States support efforts to provide assistance to rebel groups in Syria would not violate international law.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.