The Road from Syria to Ukraine
Humanitarian intervention as a basis for using force against another nation, or within another nation’s territory, is not without its own set of legal challenges and criticisms. Russia’s justification for using force in the Crimean peninsula, in the wake of repeated calls for intervention in Syria, highlights difficulties associated with humanitarian intervention as a basis for the use of force. On March 1, 2014, the Russian Federation deployed troops and armored vehicles to the Crimean peninsula, a recognized territory of Ukraine, and occupied the region. The United Nations indicated that these actions were contrary to the UN Charter and called upon Russia to respect the “sovereignty and territorial integrity of Ukraine.” Some leaders condemned Russia’s actions, calling them an unlawful act of aggression and a violation of Article 2(4) of the UN Charter. In response, Russian President Vladimir Putin claimed the intervention, in large part, was to defend Russian-speaking minorities in the region from “real threats” to life and their health, to protect against anti-Semitic violence, and for a number of other humanitarian purposes. While President Putin’s claims continue to be debated, his response to critics is eerily similar to the arguments made by other world leaders for a humanitarian intervention to stop the Syrian Civil War.
The Syrian Civil War—characterized by chemical weapon use, mass displacements, and hundreds of thousands of deaths—is undoubtedly a humanitarian crisis. However, the United Nations has consistently been incapable of passing a resolution allowing for a military operation stopping the mass atrocities taking place in Syria. The guiding source for determining the legality of a nation’s use of force against another nation or within another nation’s territory is the UN Charter. Under the UN Charter there are only two legal bases for intervention in Syria—UN Security Council Resolution (UNSCR) under Article 42 or self-defense under Article 51. Without a UNSCR and no justifiable claim to self-defense, a plain reading of international law prohibits a state from intervening with military force in the Syrian conflict. Frustrated by the inaction of the United Nations, some have argued for an alternative international legal basis to justify a military intervention that is not found in the UN Charter. Relying on the controversial concept of “humanitarian intervention,” which allows one state to use military force to stop large scale atrocities in another state, interventionists believe the moral imperative to act makes consent of the Security Council unnecessary.
The genesis of the humanitarian intervention use of force concept was in NATO’s Operation Allied Force, which involved the bombing campaign in Kosovo. For NATO, getting a Security Council Resolution to use force in Kosovo was nearly impossible given two permanent members—Russia and China—opposed such action. Thus, NATO intervened in Kosovo without the support of the UN Security Council. Despite the absence of a UN authorization to use force, NATO justified the intervention as a necessity to stop a humanitarian crisis.
While the use of force by NATO was not warmly received by the international community, the situation in Kosovo exposed a weakness in the international legal framework, which emphasizes state sovereignty. This emphasis often acts as a shield that allows states to commit mass atrocities without international intervention. The International Committee on Intervention and State Sovereignty developed the doctrine of Responsibility to Protect (R2P) specifically to respond to this weakness in the legal framework. While R2P became a basis for intervention, it still required the approval of the UN Security Council. Until the crisis in Syria, many calls for intervention to prevent mass atrocities were based on R2P. Nevertheless, the legitimacy of R2P waned after the 2011 NATO operations in Libya were viewed by some members of the Security Council as a “cover for regime change.” With the lack of support for R2P amongst members of the Security Council, those appalled by the ongoing Syrian civil war again looked to humanitarian intervention as a justification for unilateral action outside the parameters of the UN Charter.
Beyond the circumvention of the Security Council, humanitarian intervention has other vulnerabilities—identifying the requisite threshold conditions that justify intervention and empowering an individual state actor or actors to make the decision to intervene. It is unclear when a humanitarian crisis rises to a level where a state has a moral obligation to unilaterally intervene. Many view situations involving mass atrocities, like those occurring in Kosovo in 1999, as the appropriate threshold for employing unilateral force. This decision, however, will vary based on how a state defines “humanitarian crisis.” Empowering individual state actors with this type of discretion admittedly allows for a quick intervention during a legitimate international emergency; but it also inadvertently opens the door for an aggressive state to invade a weaker neighbor under the pretext of stopping a “humanitarian crisis.” Nations seeking to intervene may try to establish objective standards for intervention to avoid the perception their use of force is an unlawful act of aggression. Yet, regardless of the criteria created by the intervening state actor, this decision will remain subjective.
It was the international community’s desire to eradicate these types of subjective use of force decisions that was impetus for the United Nations Charter. Drafted following the devastation of World War II, the Charter specifically prohibits the threat or use of force by any state. This express prohibition is deliberate and intended to prevent a state from independently determining when an invasion of another state, regardless of the reason, is allowed. Allowing otherwise invites a return to the wars of aggression, often driven by a nationalistic agenda, which led to the unprecedented destruction and devastation of the World Wars. Consequently, any use of force by a state should be consistent with the UN Charter and authorized by the Security Council. This removes the risks articulated by Kofi Annan in his response to NATO’s operation in Kosovo when he stated, “For this much is clear: unless the Security Council is restored to its preeminent position as the sole source of legitimacy on the use of force, we are on a dangerous path to anarchy.”
Thus, while the concept of humanitarian intervention offers a possible solution for the crisis in Syria, it also provides legal justification for Russia’s actions in Ukraine. It is not a coincidence that President Putin used the language of a humanitarian interventionist to rebut criticism of Russia’s involvement in Crimea. The ease with which the concept of humanitarian intervention can be used for subjective use of force determinations is extremely troubling and raises a difficult question. What poses a greater risk to international peace: a humanitarian crisis or a subjective legal basis that empowers nations to unilaterally initiate international armed conflict? For those concerned with both stopping humanitarian disasters as well as saving “succeeding generations from the scourge of war” finding an answer to this question will not be easy.
About the Authors: Shane Reeves is a Lieutenant Colonel in the United States Army and an Associate Professor at the United States Military Academy, West Point. Winston Williams is a Major in the United States Army and an Assistant Professor at the United States Military Academy, West Point.
The views expressed here are personal views and do not necessarily reflect those of the Department of Defense, the United States Army, the United States Military Academy, or any other department or agency of the United States Government. The analysis presented here stems from academic research of publicly available sources, not from protected operational information.
 Press Release, United Nations, Ukraine, in Emergency Meeting, Calls on Security Council to Stop Military Intervention by Russian Federation (Mar. 1, 2014), available at http://www.un.org/press/en/2014/sc11302.doc.htm; Tim Sullivan & Vladimir Isachenkov, Russian Troops Take Over Ukraine’s Crimea Region, Yahoo! News (Mar. 1, 2014), http://news.yahoo.com/russian-troops-over-ukraines-crimea-region-200052097.html.
 Press Release, United Nations, Deputy Secretary-General, Briefing Security Council on Situation in Ukraine, Says Now Is Time for Cool Heads to Prevail (Mar. 1, 2014), available at http://www.un.org/sg/dsg/statements/index.asp?nid=497.
 See, e.g., Alexander Smith, Biden: Russia Violated International Law With Crimea Annexation, NBC News (Mar. 18, 2014), http://www.nbcnews.com/storyline/ukraine-crisis/biden-russia-violated-international-law-crimea-annexation-n55511.
 U.N. Charter art. 2(4).
 Sullivan & Isachenkov, supra note 1.
 Isi Leibler, Candidly speaking: Putin, Ukraine and the Jews, The Jerusalem Post, Mar. 19, 2014, available at http://www.jpost.com/Opinion/Columnists/Candidly-speaking-Putin-Ukraine-and-the-Jews-345546.
 See Transcript: Putin defends Russian Intervention in Ukraine, Wash. Post, Mar. 4, 2014 available at http://www.washingtonpost.com/world/transcript-putin-defends-russian-intervention-in-ukraine/2014/03/04/9cadcd1a-a3a9-11....
 See, e.g., Samantha Power, U.S. Permanent Representative to the United Nations, Remarks at a UN Security Council Meeting on Ukraine, New York City (Mar. 1, 2014).
 See Josh Rogin, Topic Islamic Leader Calls for No-Fly Zone in Syria, The Daily Beast (Jun. 4, 2013, 4:45 AM), http://www.thedailybeast.com/articles/2013/06/04/exclusive-top-islamic-leader-calls-for-no-fly-zone-in-syria.html; Flavia Krause-Jackson & Nicole Gaouette, Qatari Leader Calls for Arab Led Intervention in Syria, Bloomberg Business, Sept. 26, 2012, available at http://www.bloomberg.com/news/articles/2012-09-25/qatari-leader-calls-for-arab-led-intervention-in-syria.
 See John McCain, Senator from Arizona to the United States Senate, Floor Statement on Mass Atrocities in Syria, Washington D.C. (Feb. 12, 2014), available at http://www.mccain.senate.gov/public/index.cfm/2014/2/statement-by-senator-john-mccain-on-mass-atrocities-perpetrated-by-....
 Most recently, the French proposed a resolution which would refer the Syrian conflict to the International Criminal Court. This attempt was vetoed by the Russians and Chinese. See Ian Black, Russia and China Veto UN Move to Refer Syria to International Criminal Court, The Guardian, May 22, 2014, available at http://www.theguardian.com/world/2014/may/22/russia-china-veto-un-draft-resolution-refer-syria-international-criminal-court.
 Currently, 193 nations have ratified the UN Charter to become members and are bound by the provisions contained in the Charter. See Member States, United Nations, http://www.un.org/en/members/index.shtml (last visited June 6, 2015).
 U.N. Charter arts. 42, 51.
 See Kenneth Anderson, Legality of Intervention in Response to Chemical Weapon Attacks, ASIL Insights (Aug. 30, 2013), http://www.asil.org/insights/volume/17/issue/21/legality-intervention-syria-response-chemical-weapon-attacks. See also Michael N. Schmitt, The Syrian Intervention: Assessing the Possible International Law Justifications, 89 Int’l L. Stud. 744, 747–48 (2013).
 See UK Prime Minister’s Office, Chemical Weapon Use by Syrian Regime: UK Government Legal Position (2013), [hereinafter UK Government Legal Position], available at https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-government-legal-position/chemical-we....
 See Geoffrey S. Corn et al., The Law of Armed Conflict: An Operational Approach 27 (2012).
 See generally UK Government Legal Position, supra note 15, at 2.
 Adam Roberts, NATO’s ‘Humanitarian War’ over Kosovo, 41 Survival 102, 104 (1999), available at http://www.columbia.edu/itc/sipa/S6800/courseworks/NATOhumanitarian.pdf.
 See Marjorie Cohn, United States Violation of International Law in Yugoslavia, Afghanistan and Iraq, in Challenges of Multi-Level Constitutionalism 233, 234 (Nergelius, Policastro & Urata eds., 2004); Eve Massingham, Military Intervention for Humanitarian Purposes: Does the Responsibility to Protect Doctrine Advance the Legality of the Use of Force for Humanitarian Ends?, 91 Int’l Rev. Red Cross 803, 810–815 (2009).
 Anderson, supra note 14.
 See International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect at VII (2001), [hereinafter ICISS Report], available at http://responsibilitytoprotect.org/ICISS%20Report.pdf.
 Id. The actual parameters of R2P are beyond the scope of this paper but for more information on R2P and its relationship to humanitarian intervention see Garth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All 44 (2008).
 ICISS Report, supra note 21, at 49. See Anderson, supra note 14.
 See Rep. of the High-Level Panel on Threats, Challenges, and Change, A More Secure World: Our Shared Responsibility, U.N. Doc. A/59/565 (Dec. 2, 2004), available at http://www.un.org/en/peacebuilding/pdf/historical/hlp_more_secure_world.pdf. Roland Paris, Is it Possible to Meet the “Responsibility to Protect”?, Wash. Post, Dec. 9, 2014, available at http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/12/09/is-it-possible-to-meet-the-responsibility-to-protect/.
 Paris, supra note 24; Gareth Evans, Responding to Mass Atrocity Crimes: The Responsibility to Protect After Libya, Lecture at Chatham House, London (Oct. 6, 2011) available at http://www.chathamhouse.org/events/view/177949.
 See Rachel E. Van Landingham, The Stars Aligned: The Legality, Legitimacy, and Legacy of 2011’s Humanitarian Intervention in Libya, 46 Val. U. L. Rev. 859, 886 (2012). See also, Kofi Annan, UN Secretary-General, The Effectiveness of the International Rule of Law in Maintaining International Peace and Security, Address Before the Hague International Peace Conference (May 18, 1999), available at https://www.globalpolicy.org/component/content/article/190/38833.html.
 See U.N. Charter pmble.
 Id. art. 2(4). See Treaty Between the United States and Other Powers Providing for the Renunciation of War as an Instrument of National Policy, 94 L.N.T.S. 57 (1928).
 See Shane R. Reeves, To Russia with Love: How Moral Arguments for a Humanitarian Intervention in Syria Opened the Door for an Invasion of the Ukraine, 23 Mich. St. Int’l L.J. 199, 215–217 (discussing the history behind the drafting of the United Nations Charter).
 Press Release, United Nations, Secretary-General, Secretary General Says Renewal of Effectiveness and Relevance of Security Council Must Be Cornerstone of Efforts to Promote International Peace in the Next Century (May 18, 2014), available at http://www.un.org/press/en/1999/19990518.SGSM6997.html.
 Russia is justifying its actions as a humanitarian intervention to protect ethnic Russians in Crimea. See, e.g., Harriet Torry & Bertrand Bertrand Benoit, Watchdog Sees No Threat to Ethnic Russians, Wall St. J., Mar. 12, 2014, at A10.
 U.N. Charter pmble.