09/09/2013 08:19 BST | Updated 06/11/2013 05:12 GMT

Syria, UN and Military Intervention

The civil war in Syria is at a critical juncture with alleged use of chemical weapons and threats of foreign military intervention. If there is to be an international response, it must come from the United Nations and not individual States taking the law into their own hands.

The debate on the legality of foreign military intervention has focused on the controversial doctrine of humanitarian intervention (or responsibility to protect, R2P). But those advocating military intervention based on the right to humanitarian intervention fail to appreciate that the right, if it exists at all, can only be the prerogative of the UN.

International law is explicit in its prohibition against the use of force by one State against another. Other than intervention authorised by the UN Security Council, military force may only be used in self-defence. Whilst there is some credence to the claim that humanitarian intervention is evolving into an independent justification for military force, it is not yet a legal norm and is met with opposition by many States. It is misleading to suggest that if the right to humanitarian intervention is not recognised then crises such as the one in Syria cannot be prevented. The situation in Syria is precisely the sort that the Security Council is equipped to tackle, and humanitarian crises have been averted in the past when the Security Council has felt it appropriate to authorise the use of military force, as in Somalia, Bosnia-Herzegovina and Sierra Leone amongst other places.

The deadlock in the Security Council, as a result of vetoes by Russia and China against western-backed resolutions seeking authorisation of military intervention, is often cited as evidence of a failing UN system. In actuality, it shows a system that serves the purpose it was designed for: "to save succeeding generations from the scourge of war". The Security Council has sought to prevent conflict escalation by refusing to authorise foreign military intervention on a number of occasions - as it is presently in Syria.

NATO's intervention in Kosovo in 1999 is cited by enthusiasts of humanitarian intervention as an archetypal example of a lawful intervention to prevent a humanitarian crisis without the need for Security Council approval. But the post-war Independent International Commission on Kosovo in its report to the UN Secretary General concluded that the NATO intervention in Kosovo was "illegal but legitimate". Paradox aside, this conclusion does not support the contention that Kosovo is a precedent for future humanitarian interventions.

When they felt circumstances warranted it, the Security Council has authorised military force, most recently in Libya. It is essential for the Security Council to make an objective assessment of the facts to determine whether military force is required. An assessment of the Syrian situation by the UN should include determination of (1) whether chemical weapons were used, (2) who was responsible for the use of chemical weapons and (3) whether military intervention would improve or worsen the humanitarian situation. If, as in the case of Iraq in 2003, there is insufficient evidence to justify military intervention, then permanent members of the Security Council may legitimately use their veto to prevent foreign military intervention. US government officials fomenting outrage at Russia's use of the veto may have you believe that the US does not do the same. In fact, the most frequent user of the veto in the Security Council is the US who has vetoed resolutions regarding Israel on no fewer than 42 occasions.

The use of chemical weapons is prohibited under international law, but one violation of international law should not be responded to with another. US military action in Syria without Security Council approval would be illegal. If the aim of military intervention is to deter others from violating international law then that would not be achieved by this hypocritical method.

Those States with a genuine desire to alleviate the suffering of Syrian civilians can provide aid and open their borders to refugees fleeing the violence. Not only would this not raise any questions of permissibility, accommodating refugees may be mandatory under the 1951 Refugee Convention. International law does then provide a solution, but perhaps not the one that some States seek.