Between ‘warfare’ and ‘lawfare’

By Carsten Stahn

The Syria crisis has challenged the boundaries of international law. The concept of the ‘red line’ was used to justify military intervention in response to the use of chemical weapons. This phenomenon reflects a trend to use law as a strategic asset or instrument of warfare (‘lawfare’). In the Syrian context, terms and rationales of criminal law (e.g. retribution, deterrence) entered the justification for the use of force. Intervention was framed in a way that suggested that is acceptable to ‘punish’ the Assad regime through use of force. I argue that this practice reveals certain deeper dilemmas in international law that merit critical reflection: (i) the role of semantics, (ii) the idea of  ‘punishment’ through the use of force, and (iii) ‘humanitarian labelling’.

Syria and the role of semantics

In international affairs, law is typically presented as neutral and objective framework of discourse. The debate on  intervention challenges this assumption. Legal terms and concepts were used as strategic tools to portray certain narratives about the conflict and to make use of force more acceptable. Classical philosophy uses the distinction between logos (reasoned discourse), pathos (appeal to sympathies), and ethos (expertise and responsible use of knowledge). The Syria crisis shows that is important to understand why and how vocabulary and imagery are used to justify certain choices.

Like in previous interventions (e.g. Kosovo, Iraq) specific techniques were used to ‘frame’  the case for action and to make it more persuasive in legal discourse. Action was contrasted with inaction, by way of binary (‘either/or’) dichotomy in which intervention was presented as a lesser of two evils (G20 statement). Pro-intervention speech used heroic narratives to shift attention from violence of intervener to victims. A compelling example  is President Obama’s statement at the General Assembly (‘Should we really accept the notion that the world is powerless in the face of a Rwanda or Srebrenica?’) or Harold Koh’s comparison of interveners to ‘ambulance drivers who run red lights in extremis’. In legal justifications, emphasis was placed on a logic of exceptionalism (UK Legal Memorandum, White House statements). The most compelling example is the image of the ‘red line’ itself.  It was invoked to claim the use of ‘chemical weapons’ warrants a repressive response, including a legitimate threat of or recourse to the use of force.

Following the return to collective security, specific legal opinions were voiced by former legal advisors through informal channels, such as blogs, to preserve authority for intervention (e.g., Daniel Bethlehem, Harold Koh).

These dynamics illustrate a trend to use legal terms as a strategy in intervention which deserves critical attention in ‘reading’ international law.

Intervention and ‘punitive’ considerations

A second dilemma of the Syrian crisis is the recourse to ‘punitive’ motives in the rhetoric of justification. Use of force was considered as an instrument to remove the threat of chemical weapons and to achieve retribution. This claim sits uneasily with contemporary international law. The case for intervention conflated two layers of legal reasoning that have been separated for good reasons in the past decade: (i) responsibility of a state for the breach of a fundamental international norm (i.e. the ban of the use of chemical weapons in armed conflict), and (ii) accountability for international crimes (individual criminal responsibility).

The idea that another state might be ‘punished’ for unlawful conduct has has lost support in the development of modern international law. ‘Punitive’ rationales have become suspect in UN collective security action (e.g. ‘targeted sanctions’). International law is hostile towards armed reprisals in peacetime and ‘punitive reprisals’ in armed conflict. International criminal law contains a prohibition of collective punishment  to avoid an indiscriminate effect. It remains highly controversial to what extent the right to self-defence might entail dimensions of ‘punishment’. Contemporary just war theorists (e.g. David Rodin) claim that ‘punitive war’ is morally wrong because there is no-one who has the ‘superior’ authority to punish.

Legal discourse on Syria re-opened this distinction. I would argue that this is a dangerous development. Use of force cannot and should not serve as a short-cut to international justice or as a means of punishment in the ‘criminal sense’.

Syria and ‘humanitarian’ labels 

Thirdly, recourse to ‘punitive’ justifications was coupled with the use of specific ‘humanitarian’ labels. The concepts of ‘humanitarian intervention’ and ‘protection of civilians’ were invoked as justifications for action. Their use remains contestable.

Syria differs from other cases of ‘humanitarian intervention’. Given the conflicting views over the goals and roles of both parties in the conflict, there was no clear strategy what to stop through ‘intervention’. Intervention was not directly aimed at ending atrocities and armed conflict as such. It was geared at best at shifting the military balance between the Assad regime and opposition forces. It was framed as a response to an incident in a crisis, i.e. the use of chemical weapons. A sustained international presence in and after conflict was ruled out. This reasoning differs from the necessity arguments and moral dilemmas that underpinned other interventions (e.g. Kosovo).

Similar criticisms apply in relation to the use of the label of ‘protection of civilians’ invoked in the UK Legal Memorandum. The concept might justify the establishment of safe-zones or demarcation lines in conflict. But it provides limited scope for retaliatory action against combatants in civil war. It is, in particular, ill-equipped to accommodate goals of ‘punishment’ and regime accountability. Logically, regime accountability might be a consequence or effect of protection. The discourse on intervention in Syria turned this logic on its head. It used protection as a means to achieve accountability through military force. This approach conflates fundamentals of the law of armed force. It relies on core principles under international humanitarian law (jus in bello) to extend claims relating to the use of force (jus ad bellum). This weakens the ban of war as instrument of punishment and enforcement of legal claims which has gained ground in the second half of the 20th century.

The use of armed force was only averted through last-minute diplomacy on Syrian disarmament in late September 2013. The return to UN collective security structures was partly driven by fears about the spread of chemical weapons to non-state actors. This shared concern led to agreement on the disarmament regime under Security Council Resolution 2118.

Logos, pathos, and ethos

What conclusions can be drawn from this? I would argue that the Syrian crisis has at least three key implications for the treatment of intervention under international law.

First of all, there is a need for greater vigilance towards the ‘import’ and ‘expert’ of specific labels in different fields of international law. In past decades, notions and concepts of criminal law have penetrated fields, such as human rights law and international humanitarian law. This process has generally been celebrated as a move towards greater enforcement of legal norms. But it has downsides. Syria shows how the use of semantics may blur lines and conflate categories of law.

Secondly, the strategic use of legal notions and vocabulary as means of intervention makes it necessary to contemplate the role of different actors and constituencies in discourse, including checks and balances.  In many contexts, discourse on intervention is dominated by State executive power. There is a need to rethink discourse on intervention through the lens of democratic legitimacy. The role of domestic parliaments in the Syrian crisis supports the idea that ‘humanitarian interventions’ should enjoy a sufficient degree of transparency and legitimacy at the domestic level of the intervening states before such action can be ‘safely’ undertaken.

Thirdly, it is vital for international lawyers to understand how semantics are used and how underlying narratives can be deciphered. Syria shows that there are different approaches towards arguing about intervention. There is a ‘formal’ approach which is geared at constraining options for unilateral intervention. It is grounded in formal legal texts and typically deployed in discourse within collective deliberative fora and international legal institutions. It contrasts with a more ‘flexible ’approach, which is more open towards systemic change and adaptation of the law through less formal processes (e.g. incremental practice) or criteria (e.g. ‘factors’ justifying the use of force). Both of them are inherent in international law. The first approach contributes to the maintenance of the formal ideal (i.e. the preservation of the ‘imperfect, yet resilient, security system’ of the UN Charter). The second one points towards transformation and adjustment of law to practice. They are invoked with logos and pathos. The challenge is how to strengthen ethos in the discourse.

Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies (The Hague). He directs research projects on ‘Jus Post Bellum’ (see Jus Post Bellum: Mapping the Normative Foundations) and ‘Post-Conflict Justice and Local Ownership’, funded by the Netherlands Organization for Scientific Research (NWO). He is Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and Correspondent of the Netherlands International Law Review. He is the author of “Syria and the Semantics of Intervention, Aggression and Punishment” (available to read for free for a limited time) in the Journal of International Criminal Justice.

The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.

The Oxford Atlas Place of the Year 2013 is Syria. The Oxford Atlas Place of the Year is a location — from street corners to planets — around the globe (and beyond) which has attracted a great deal of interest during the year to date and judged to reflect the important discoveries, conflicts, challenges, and successes of that particular year. Learn more about Place of the Year on the OUPblog.

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Image credit: Palmyra, Syria – March, 25th 2011: A demonstration moves along the main street in the town of Palmyra in the middle of Syria. Young people stand on the roof of a moving car holding the Syrian flag. The Syrian uprising started in March 2011. © Sporthos via iStockphoto.