Jus ad Bellum/UN Charter/Sovereignty

More on The Impact of Kosovo + Syria

By Jack Goldsmith
Sunday, August 25, 2013, 10:45 AM

I agree with everything Ashley says about Kosovo’s value as a non-legal precedent, and why the USG might invoke Kosovo if it intervenes in Syria – better to be able to say that a similar intervention occurred and was viewed as in some sense legitimate, regardless of whether it was viewed as lawful, or as creating a precedent, the first time.

Invocation of Kosovo to justify intervention in Syria raises these questions – the same basic questions raised by those who tried to render Kosovo a non-precedent fourteen years ago: (1) Will Kosovo + Syria in some sense strengthen the norm in favor of humanitarian intervention for those who want to engage in it?; (2) If so, how might the strengthened intervention norm be abused by nations that want to use humanitarian intervention as a ruse for intervention on other grounds?, and (3) What will be the effect of Kosovo + Syria on the legal and political integrity of the U.N. Charter?

I don’t know the answer to (1), but I doubt that Kosovo + Syria will encourage new humanitarian interventions, for such interventions tend to be checked strongly by national interest (as President Obama acknowledged in his speech explaining the Libya intervention).  I think the answer to (2) is “not much” for similar reasons, and because I don’t think international law, or non-law norms, have a large impact on state behavior in this context.  And I think the answer to (3) is “not much” especially with regard to legal integrity – because the Charter system’s legal limits have long been weak to non-existent.

In short, while I don’t think it is a great idea for the United States to get more involved in the mess in Syria, I also don’t think the costs to international law would be high.  But I wonder how those who think international law is more consequential in this context, and who support the integrity of the U.N. Charter as a legal system, view the impact on international law and the Charter system of a Syria intervention.  Will it harm international law and the Charter by showing them to be toothless?  Or will it strengthen them by showing that they do not stand in the way of interventions to prevent gross abuses?