Some argue that a US use of armed force in Syria would violate the United Nations Charter in the absence of a UN Security Council authorization or a valid US claim of self-defense. However, what the Charter expressly denies and permits is far more complex and there could be at least seven claims for lawful US use of force arising out of the Syrian context.
First, not every use of armed force is prohibited in the text of Article 2(4) of the Charter, which expressly covers only three types of force: (1) that used "against" the "territorial integrity" of a "state," (2) that used "against" the "political independence" of a "state," and (3) that which is "in any other manner inconsistent with the purposes of the United Nations."
In the special context of an ongoing belligerency in Syria and significant outside recognition of the Syrian National Council (SNC) as the legitimate representative of the Syrian people, a limited use of force by the US against the Assad regime's military capabilities in response to a criminal use of chemical weapons would not simplistically be against the territorial integrity of Syria or the political independence of the Syrian people. On balance, it would be consistent with major purposes of the Charter, such as the need to serve peace, security, self-determination of people, and human rights.
Second, ongoing consent to US use of force by the SNC (as the legitimate representative of the Syrian people) serves as an independent but related basis for permissibility whether or not the US acts to support the SNC. Consent from the legitimate representative of a people is a critical feature of context that must be addressed for adequate and policy-serving legal decision. As noted in a prior writing [by the author], consent by the legitimate representative of a people engaged in a self-determination struggle provides sufficient legal justification. Support of a people against armed attacks by a government can also involve claims regarding collective self-defense consistent with Article 51 of the Charter: a third type of claim. A fourth claim can rest on consent from a "belligerent" in the context of a traditional civil war (as opposed to a mere "insurgent" under international law). Support of a belligerent would constitute an act of war against the other party to a civil war, but so would use of armed force by the US against the Assad regime under any of the seven possible claims identified.
More generally, a reading of Article 2(4) of the Charter that ignores the clearly malleable nature of the text, an express reference to what are the many purposes of the UN, and special features of context would not always serve human dignity and the needs of humanity in an ever increasingly interdependent world. Significantly, nothing in the text of the Charter prohibits "all" or "every" use of armed force, nor does the phrase "any use of force" appear in Article 2(4). For this reason, a textually-sound and policy-serving approach to interpretation of Article 2(4) would not automatically rule out every use of force in every social context. An essential focus of the UN Charter includes the duty to promote universal respect for and observance of human rights, the dignity and worth of each human being, and self-determination of peoples.
If NATO or the League of Arab States authorizes the use of force, Article 52 of the Charter would allow the use of "regional action" for the "maintenance of regional peace and security" when the Security Council is veto-deadlocked and is unable to control "enforcement action" under Article 53, as in the case of Kosovo under an authorization from NATO and during the Cuban Missile Crisis under an authorization from the OAS. Such an authorization would provide a fifth type of claim to use force consistently with the Charter.
A sixth claim can involve use of force as part of collective self-defense under Article 51 of the Charter in response to armed attacks by the Assad regime against Turkey, which began last year. A seventh claim might involve UN General Assembly authorization under a Uniting For Peace resolution [PDF] if such a resolution is later approved. A UN study notes that the General Assembly had invoked such a resolution ten times by 2008.
Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston Law Center and has extensive experience in international law. Professor Paust is one of the most cited law professors in the US and has published over 185 articles, book chapters, papers and essays addressing treaty law, customary international law and the incorporation of international law into US domestic law.
Suggested citation: Jordan Paust, US Use of Limited Force in Syria Can Be Lawful Under the UN Charter, JURIST - Forum, September 10, 2013, http://jurist.org/forum/2013/09/jordan-paust-force-syria.php
This article was prepared for publication by Alex Ferraro, the Section Head of JURIST's academic commentary service. Please direct any questions or comments to him at email@example.com