The Legal Basis for Intervention in Syria.

 A resolution simply criticizing the Assad regime could still be used a pretext for intervention. This was the justification for Operation Provide Comfort, the campaign begun in April 1991 which offered humanitarian aid and military protection to the embattled Kurds of Iraq. This was undertaken despite the fact that UNSC 688 did not authorize intervention per se, but called upon Member States to “contribute to…humanitarian relief efforts.”

The American, British, French and Turkish governments interpreted this text to license the deployment of both ground forces and aircraft to jointly defend Kurds fleeing Iraq for the Turkish border. The operation was coordinated atthe NATO-leased Incirlik Air Base near Adana, Turkey. Operation Provide Comfort was followed by Operation Northern Watch and Operation Southern Watch, the 1991 no-fly zones imposed on the Kurdish north and Shi’ite south of Iraq.

Because of the purported fear of “mission creep,” the UNSC route has failed in Syria’s case, most recently in October 2011 when a much-diluted resolution threatening only sanctions was vetoed by permanent UNSC members Russia and China. The Kremlin has been far more vocal in opposing international sanctions against Syria, and even more vocal in opposing military intervention. “It is not in the interests of anyone to send messages to the opposition in Syria or elsewhere that if you reject all reasonable offers we will come and help you as we did in Libya,” Russian Foreign Minister Sergei Lavrov said recently. Although there was previously some suggestion that if the Arab League renounced Assad, Russia and China would be persuaded to support some form of censure and penalty, neither Eastern powers have shown any willingness to accede to a UNSC resolution (in fact, Russia in particular has only increased its hostility to one since the League suspended Syria’s membership and passed sanctons against the regime). Having abstained from UNSC 1973, which authorized a no-fly zone in Libya, Russia claims that NATO overextended its remit in that conflict by continuing operations unto the fall of Gaddafi regime. To safeguard against another Western intervention in the Middle East, and to certify its $4 billion arms contract with the Assad regime, Russia’s last aircraft carrier, the Admiral Kuznetsov, the Admiral Chabanenko destroyer and two submarines, are all reportedly en route to the Russian-controlled naval base in Tartus. The Russian Federation continues to supply the Assad regime with weaponry.

Via the UN General Assembly

One theoretical way to spearhead a legitimate intervention without a UNSC resolution is for the UN General Assembly to invoke the “Uniting for Peace” resolution (377 A), a measure established to circumvent continued deadlock at the Security Council. Very rarely invoked, and with no guarantee of success, “Uniting for Peace” famously did succeed in 1950 under the so-called “Acheson Plan” (named for U.S. Secretary of State Dean Acheson). In this case, it served as a way of authorizing “collective measures” including the “use of armed force” during the Korean War, despite consistent Soviet vetoes in the UNSC. An Emergency Special Session (ESS) of the General Assembly can be called either by a procedural vote in the UNSC or within 24 hours of a majority of General Assembly members requesting one of the UN Secretary-General.

If a resolution were passed for Syria similarly authorizing the use of force, this would provide a legal justification for intervention. The main difficulty, of course, would be convincing the majority of
the General Assembly members to support it, a contingency that seems remote without strenuous lobbying from the Arab League and the Organization of the Islamic Cooperation (OIC), which has 57 member states drawn from the Muslim-majority and Arab countries.

Another basis for an exception to Article 2(4) in the Charter of the United Nations is a reasonable invocation of self-defense, which is stipulated in Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” There are two ways in which Article 51 may be invoked vis-à-vis Syria.

The first is to have foreign powers petition that the Syrian crackdown and gross human rights violations perpetrated by the regime represent a grave risk to regional peace and stability (the escalating Syrian refugee crisis, the descent of the country into a de facto state of civil war, etc.). Accepting that any intervening power has neither the annexation of Syrian territory nor the political control of the Syrian people in mind, that power could then undertake a humanitarian mission to preserve such peace and stability.