Customary International Law, Humanitarian Interventions and Syria
By Nikhil Shah
06 September, 2013
There has been a lot of discussion recently about the U.S. intervention in Syria being justified as a humanitarian intervention with the Kosovo war as a precedent. Many international commentators in the U.S. have stated that as the U.S. is unable to get Security Council authorization for a strike against Syria, international law must ‘evolve' to allow for a humanitarian intervention to avoid prohibited chemical weapons from being used or from further atrocities from being committed by the Asad regime. All these discussions about humanitarian interventions have conveniently avoided a discussion of whether they have been accepted as part of customary international law. The International Court of Justice Statute defines customary international law in Article 38(1)(b) as "evidence of a general practice accepted as law." This is generally determined through two factors: the general practice of states and what states have accepted as law. Widespread objections by states to a practice cannot constitute customary international law.
In the case of humanitarian interventions, most nation states have widely rejected humanitarian interventions by other states even where the death toll was higher than the Syrian conflict. Michael Byer, an international legal scholar, in his book War Law: Understanding International Law and Armed Conflict has pointed out that in the aftermath of India's intervention in the civil war between West and East Pakistan (now Bangladesh), the international community failed to endorse India's intervention even though it put an end to the horrific atrocities committed by Pakistan. In his book, Byer states that in the aftermath of India's intervention, “A Security Council resolution calling for a ceasefire and immediate withdrawal of Indian troops from the country was vetoed by the Soviet Union, which at the time was a close ally of India. The UN General Assembly adopted essentially the same resolution in a 104-11 vote with ten abstentions. Most importantly not one country endorsed India's humanitarian intervention claim, so no opinion juris was expressed in its favor.”  Similar, distinguished international law scholar, Luis Henkin, in the book Right v. Might pointed out that military intervention by Vietnam into Cambodia which ended Pol Pot's atrocities was similarly rejected by the UN General Assembly by a majority vote.  Many nation states were very vocal in their objections to both these military interventions carried out on humanitarian grounds. Byer pointed out that during the conflict with Vietnam and Cambodia even Bangladesh, which had benefitted from Indian intervention failed to endorse the Vietnamese intervention.  The International Court of Justice in the case, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), 1986 I.C.J. 14 (June 27), concluded that binding customary law prohibits coercive military intervention in the internal affairs of another state.
During the Kosovo war, two Security Council members, Russia and China publically condemned NATO's intervention. In addition, Foreign Ministers of 132 countries passed a Declaration within the Group 77 in which they “rejected the so-called right of humanitarian intervention, which has no basis in the UN Charter or in international law.”  From these objections it is apparent that these types of humanitarian interventions cannot be considered legal under customary international law.
There are several legal alternatives to circumvent the U.N. charter to stop certain atrocities. The U.N. Charter does not prevent the Security Council from intervening in matters within the domestic jurisdiction of a state when applying enforcement measures under Chapter VII. Of course, any such response would be subject to the veto or failure to obtain majority support in the Council. However, in the event of Security Council veto, authorization for at least voluntary collective action could be sought from the General Assembly under the Uniting for Peace resolution if the crisis is grave enough.  Additionally, the UN can create a special international court such as was the case in Yugoslavia, Rwanda and Sierra Leone to prosecute any crimes committed. If a member of the Security Council vetoes the resolution creating the court, then the International Criminal Court (ICC) may also get involved. The ICC statue allows the court to get involved in situations where it determines that the fair and genuine prosecution of war crimes has not taken place at a national level by a country. All of these legal alternatives would be far preferable to the alternatives suggested by the U.S. which find no justifications in international law.
Nikhil Shah is an attorney in Los Angeles, CA
 Michael Byers, War Law: Understanding International Law and Armed Conflict , (Grove Press, 2007) pg. 94.
4] O. Corten, ‘Un Renouveau du ‘Droit d'Inter vention humanitaire' ? Vrais Problèmes, Fausses Solutions', 41 Rev. trim. dr. h. 2000, p. 698.
 G.A. Res. 377(V)A, U.N. GAOR, 5th Sess., Supp. No. 20, at 10, U.N. Doc. A/1775 (1950).
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