Use of Force in Humanitarian Crises: Addressing the Limitations of U.N. Security Council Authorization.

• Author: Williams, Paul R.

Introduction Responsibility to Protect and Humanitarian Crises The U.S. Government's Response to Syria's Chemical Weapon Attacks The Need for a Framework A Framework for Non-UN Authorized Use of Force for Humanitarian Intervention Conclusion The original 2001 United Nations (UN) codification of the Responsibility to Protect (R2P) granted the UN Security Council exclusive control over authorizing use of force in sovereign states. (1) Unfortunately, as demonstrated over the past 20 years, the need for humanitarian intervention has not changed and the use of force in the name of humanitarian intervention has not always occurred even when the need for such intervention was dire. (2) When the UN Security Council is deadlocked and a humanitarian crisis is at hand, it is necessary to have a means of using low-intensity military force to prevent mass atrocity crimes. In this article, we discuss the need for a framework for non-UN authorized military force in the name of humanitarian intervention. Expanding on previous work, (3) we set forth a seven-point framework for countries to follow if they wish to justifiably use military force in humanitarian crises without UN authorization.

Responsibility to Protect and Humanitarian Crises

Under R2P, a state itself is responsible for protecting its own people. (4) However, the third pillar of R2P indicates that there is a broader responsibility that falls on the international community when a state is "unwilling or unable to fulfill its responsibility to protect or is itself the actual perpetrator of crimes or atrocities." (5) The UN Charter generally prohibits the use of force by outside states within sovereign states and sets forth a state's right to be free from intervention, except for measures authorized by the Security Council, such as actions justified by R2P. (6) In certain cases, however, political dynamics on the Security Council may prevent UN member states from gaining the authorization to intervene in serious humanitarian crises (e.g. Kosovo). (7) Currently, R2P lacks a framework for the limited use of force when there is a humanitarian emergency and an occurrence of mass atrocity crimes but the Security Council is deadlocked. (8)

When a state is committing mass atrocity crimes against its own people, a coalition of the willing has the right, and arguably the obligation, to intervene to cease the crimes. (9) Under R2P, low-level and low-intensity use of force is reserved for actions that fit within the UN Charter Chapter VII framework. (10) This use of force can only be deployed when peaceful options, including sanctions and diplomacy, have been exhausted and the actions are subject to approval by the UNSC. (11) As R2P states:

There is no better or more appropriate body than the United Nations Security Council to authorize military intervention for human protection purposes. The task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work better than it has. Security Council authorization should in all cases be sought prior to any military intervention action being carried out. Those calling for an intervention should formally request such authorization, or have the Council raise the matter on its own initiative, or have the Secretary General raise it under Article 99 of the UN Charter. The Security Council should deal promptly with any request for authority to intervene where there are allegations of large scale loss of human life or ethnic cleansing. It should in this context seek adequate verification of facts or conditions on the group that might support a military intervention. (12) However, as has been observed during the conflict in Syria, the international community cannot necessarily depend on the Security Council to approve appropriate use of force under R2P. Time and time again, Russia has vetoed Security Council Resolutions on Syria that do not align with its own political interests in the conflict; as of April 11, 2018, Russia used 12 vetoes on Security Council Resolutions for Syria. (13)

Consequently, the U.S. government has been faced with challenges throughout the Syrian conflict about whether and how to intervene in the face of humanitarian crisis and mass atrocity crimes. Both the Obama and Trump administrations have taken low-intensity military action in Syria to prevent further mass atrocity crimes. (14) In connection with that, we will turn now to a discussion of the April 2018 chemical weapon attacks by the Assad regime against the Syrian people and the U.S. government's subsequent actions.

The U.S. Government's Response to Syria's Chemical Weapon Attacks

On April 7, 2018, the Syrian government attacked civilians with chemical weapons in the Damascus suburb of Douma. (15) After the April 7, 2018 chemical weapon attacks in Syria, Russia blocked a Security Council resolution "that would have established a mechanism to investigate use of such weapons in Syria, as well as another concerning a fact-finding mission in the war-torn country." (16) On April 13, 2018, after multiple failed attempts to pass UN Security Council Resolutions that would investigate these attacks, the U.S. authorized its military to conduct airstrikes against three facilities associated with the Syrian chemical weapons attacks in collaboration with the U.K. and France. (17) The goal of these actions was to destroy the facilities to prevent future mass atrocity crimes. (18)

On April 14, 2018, Russia proposed a Security Council proposal to condemn these actions by the U.S. and called for the U.S.-led coalition to "immediately cease such actions and refrain from any further use of force in violation of international law." (19) While Russia argued that the coalition's actions were illegal under international law, the U.S. did not agree. According to a Department of Justice Office of Legal Counsel (OLC) memo released in May 2018, the...