Turkish F-16s shot
down a Russian fighter jet along the Syrian border on November 24, after it
and one other jet purportedly crossed over a two-mile stretch of Turkish territory
that juts into Syria. This act marked the first time in more than sixty years that a North Atlantic
Treaty Organization (NATO) member downed a Russian warplane, leaving President
Vladimir Putin on one side accusing Turkey of stabbing Russia in the back, and
President Barack Obama on the other side supporting Turkey’s right to defend
incident, along with the humanitarian crisis in Syria, resulted
in debates centered on the possibility of instituting a “no-fly zone” to
ward off attacks by the Syrian regime and other extremist groups in the area. While a no-fly zone would not stop
the fighting on the ground in Syria, no-fly zones do protect
civilian and rebel forces from air attacks by making certain airspace “‘off
limits’ to flight-related activities.” A no-fly zone, if accompanied by an explicit clarification of what actions were
prohibited inside the zone, would allow friendly aircraft to intercept any
aircraft deemed to be violating the no-fly zone and escort the violating
aircraft away by forcing it to land or shooting it down.
A Russian Su-34 bombs unspecified enemy positions in Raqqa or Aleppo, Syria.
Russia has been relatively sympathetic to President Bashar al-Assad's regime
and has attacked "moderate" Syrian rebels over U.S. objections. Depending on
the details, a U.S.-backed "no fly" zone could set up a confrontation between
the two superpowers. Photo courtesy of mil.ru via Wikimedia Creative Commons.
for a no-fly zone argue that it could help sway the balance of power on the
ground and level the playing field between the Assad regime and rebel forces
which have already been ruthlessly bombed and beat back. They also say that a no-fly zone
would help create a buffer zone along Turkey’s border, allowing refugees to
seek shelter there, rather than surging further into Europe.
many people and nations argue for a no-fly zone to stem the murder of tens of
thousands of civilians and the displacement of millions, a nation cannot
institute an effective no-fly zone without regard to the legality of such an
action. In consideration of a no-fly zone instituted in Syria by the United
States, the nation’s leaders must listen to more than the moral obligations and
cries that “Surely in
such a situation accomplishing the violence required by principle but prevented
by law would demonstrate, rather than detract from, fidelity to the rule of law.” They must consider that instituting
a no-fly zone in Syria will probably require the United States to move forward
without legal authorization from the United Nations Security Council (UNSC), depending
mostly on the doctrine of necessity to justify its actions and to stop the
human rights violations plaguing the Syrian people.
two, paragraph four, of the United Nations (UN) Charter provides that "All Members
shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations." This ban on threat
or use of force, along with the principle of sovereignty would seem to ban the
implementation of no-fly zones, but modern discussions and UNSC actions suggest
that, in practice, circumstances may necessitate such action, regardless of a
general agreement or principle.From these discussions and actions, there seem to be
three recognized instances, or exceptions, to the UN Charter’s ban on the
threat or use of force:
emerging international human rights law.
These exceptions, in modern times,
tend to overlap and are often used simultaneously.
the end of the Cold War, the UNSC has cited Article 42 of Chapter VII of the
Charter to justify intervention in “situations of extreme human suffering, even
when contained within one state’s borders.” “This evolution towards independent
humanitarian intervention was somewhat inevitable considering the world’s
foremost priority of protecting human life.” Especially when this priority is grounded in UN responsibilities “to help to
protect populations from genocide, war crimes, ethnic cleansing and crimes
against humanity.” The UNSC has received further support from the International Court of Justice
(ICJ), which recognizes multiple instances when “atrocity crimes inhered a
legal interest in their protection for all states.”
trend towards approval and authorization of humanitarian intervention, “takes
many forms, but it is best defined as intervention into the sovereign territory
of another state, without the host state's consent, for the purpose of halting
… crimes against humanity[.]” This intervention is conducted either (1) with authorization from the UNSC, as
discussed above; or (2) without UNSC authorization, a form which remains highly
controversial and much less accepted. When this second option is taken, the intervening state must consider whether
it has a good-faith rationale that could be upheld if the state is brought
before the ICJ.  Despite
this forced consideration that comes from acting without UNSC authorization, many
nations still see humanitarian intervention as necessary in limiting human
suffering and as a part of their “responsibility
to protect” the human rights of peoples in other states.
the responsibility to protect is becoming a more widely accepted justification,
the doctrine of necessity provides another argument for nations acting without
UNSC authorization. This
venerable doctrine “does not invalidate the international obligation concerned,
[but] ‘provides a justification or excuse’” for the actions taken to protect
human rights. Further,
the doctrine of necessity states that extreme humanitarian situations, like the
one in Kosovo which will be discussed later, act as a mitigating factor in the
assessment that a state used force “illegally yet legitimately.” So,
while the doctrine does not say that a state acting without authorization is legally
justified, it is often recognized that the state’s actions may be morally
justified and therefore excusable if the nation is brought before the ICJ.
PAST NO-FLY ZONES
Before discussing how UNSC
authorization and human rights play into the United States’ decision to
institute a no-fly zone over Syria, it will be helpful to review modern
examples of no-fly zones and the precedence they set forth.
This map shows the no-fly zone that the United States and allied nations
set up over Libya in 2011.
Photo via Wikimedia Creative Commons.
The United States joined other
North Atlantic Treaty (NATO) member states in 2011 to enforce UN Security
Resolution 1973 through a coalition operation in Libya known as Operation Odyssey Dawn. Following an uprising against the Libyan government and its President, Muammar
Qadhafi, UNSC Resolution 1973 authorized NATO Member States “to take all
necessary measures to enforce compliance with the ban on flights” imposed by
the UNSC to protect civilians and rebel groups in Libya from various human
rights’ atrocities being committed by Qadhafi and his regime. This resolution was passed 10-0, with Russia, China, and three other members abstaining; it authorized a “pure no-fly zone’ to prevent Libyan air forces from operating
against civilians, while also allowing NATO forces to attack pro-Qadhafi ground
forces that were perceived to be threatening those civilian populations.
Following “Operation Desert Storm,”
an international coalition of the United States, United Kingdom, France,
Germany, Italy, and the Netherlands established no-fly zones, without explicit authorization from the UNSC, in an
attempt to protect Kurdish groups in the north and Shi’i groups in the south
from acts by Saddam Hussein that Human Rights Watch considered to be genocide. This coalition was, however, able to base its actions on two UNSC Resolutions. First,
resolution 678 laid the groundwork by “authoriz[ing]
Member States ... to use all
necessary means to uphold and implement [past Resolutions] and to restore
international peace and security in the area,” of Iraq, and second, resolution
688 “condemn[ed] the repression of the
Iraqi civilian population.” Neither of these
resolutions, however, called explicitly for military force, and therefore, the
applicability of the blanket authorization to “use all necessary means” has
raised heated debate from both sides and has drawn some question to the
legality of the implementation of the no-fly zones in Iraq. Despite the debate, the
no-fly zones in Iraq remained until 2003.
reports of human rights violations in Kosovo, the United States, with NATO,
implemented a no-fly zone without official UNSC authorization and began bombing
raids. This action, taken
without explicit or implicit authorization, prompted the question, “Should one remain silent and
inactive only because the existing body of international law proves incapable
of remedying such a situation? Or, rather, should respect for the Rule of Law
be sacrificed on the altar of human compassion?" While
the United States and NATO acted in Kosovo with no authorization, international
jurists Antonio Cassese and Thomas Franck concluded that the action was morally
justified, although not yet legal.
THE LEGALITY AND IMPLICATIONS OF A NO-FLY ZONE IN SYRIA
Legal and practical arguments for and
against a no-fly zone over Syria range in extremes of emotion and
persuasiveness, but any decision on whether to move forward in Syria will start
with the question of legality. The UNSC has so far failed to produce any binding resolution on the situation,
and has done little more than condemn purported human rights violations.
With UNSC inaction and the
likelihood of any future resolution authorizing a no-fly zone as in Libya and
Bosnia, or a resolution providing “blanket authorization” as in Iraq, being
vetoed, any no-fly zone implemented by the United States would have to follow
the international coalition model used in Kosovo.
In the past, the United States has
sought international approval, both because lack of UNSC authorization pulls
the United States’ actions into question, and because an inability to form a broad
coalition invites questioning of “the legal basis for the no-fly zone” and the
United States’ “commitment to international norms.” Unfortunately, building such a coalition and obtaining international approval
for a no-fly zone in Syria may prove difficult, since “many states have already questioned the good faith of the
United States. This is true both in light of its past breaches of the
prohibition on the use of force and in light of its persistent refusal to offer
a detailed justification of its potential intervention in Syria.” Specifically, Russia and China have made it clear that they view any military
action by the United States in Syria as overreaching and say that any modest
resolutions being sought by the United States are in a bad faith attempt to
acquire a basis, “however farfetched,” for such military intervention. This does not mean that the United States could not create a strong coalition
of NATO allies and other interested parties, especially in light of the refugee
crisis in Western Europe, but it does mean that such an effort would be more
difficult in the face of strong protest.
authorization and with a concern regarding the feasibility of creating a strong
coalition, any argument for a no-fly zone has to center
around the evidence of overwhelming human rights atrocities, specifically
the hundreds of thousands of Syrians who died since the start of the civil war
in 2011, the millions of Syrians who fled the country as refugees, and Assad’s
use of sarin gas and other banned weapons against civilians and rebel forces. The reason why an argument for a no-fly zone would depend on this evidence of
human atrocities, is because this evidence provides the moral justification
needed to make an argument that a no fly zone in Syria would be justified by the
doctrine of necessity.
real legal support for a no-fly zone but a solid justification grounded in the
doctrine of necessity and human rights law, the practical concerns surrounding
a no-fly zone must also be taken into account. First, any no-fly zone carries
with it the risks of “mission creep” and a lack of a logical ending to its implementation. Second,
the “special circumstances in Syria make the no-fly proposal even more
dangerous than normal [as] Russia … is
flying numerous combat missions against rebel units[, and e]stablishing a
no-fly zone over Moscow’s objections would be extremely provocative.” With this in mind, how would the United States react if Russian aircraft were
to challenge the no-fly zone? Would U.S. forces shoot it down and wait to see
if their actions bring “two nuclear-armed powers to the brink of all-out war?” Would Russia react to this humiliation by redoubling its efforts in Ukraine,
Abkhazia, South Ossetia, and other areas on its periphery? Even if Russia did not react, does
the United States want to be involved in yet another war in an Islamic
of these questions must be asked, but is there an answer to any one of these
questions which justifies sitting aside and waiting for the UNSC or NATO to
take the lead in establishing a no-fly zone while watching as the death toll
and human atrocities in Syria continue to increase hour by hour and day by day?
The moral call to
intervene on behalf of those who are being subjected to torture and inhumane
death at the hands of Assad in Syria is enough for the doctrine of necessity to
provide moral justification for a United-States-implemented no-fly zone in
Syria. In fact, the United States has already taken some steps in Syria in
accordance with this justification. And while President Obama has not publicly called for a no-fly zone, he previously
asserted: “It's true that America cannot use
our military wherever repression occurs. And, given the costs and risks of
intervention, we must always measure our interests against the need for action.
But that cannot be an argument for never acting on behalf of what's right.”
With President Obama’s words in
mind, the ability to use the doctrine of necessity as justification against any
claims proceeding from a no-fly zone in Syria, and the possibility of setting
broad precedent for intervention in future cases, the leaders of the United States are left with one question: Is a no-fly zone
in Syria, in contravention of current international law but supported by
necessity, worth the risks it carries if it results in any degree of relief for
the tortured and bereft citizens of Syria?
Id. “This isn’t the first time Turkey
has shot down a jet fighter on its border with Syria. In March, Turkey shot
down a Syrian jet that it accused of violating its airspace in similar
 Id. But see id. (“[C]onversely, if
airpower is not an important factor, it’s unlikely that establishing a no-fly
zone will do much (unless the mandate is extended to destroying
 Bowman, supra note 3.
J. Miller, Int'l Civil Disobedience:
Unauthorized Intervention & the Conscience of the Int'l Cmty., 74 Md. L. Rev. 315, 367 (2015).
 U.N. Charter art. 2, para 4. It is further stated that “‘[N]othing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state …." Id. at
art. 2 para. 7. There
is an argument that the language of [article two, paragraph four] permits some
uses of force. This is based mainly on two ambiguities in the text. “First, is
the operation of ‘against the territorial integrity or political independence,’
and, second is the phrase ‘or in any other manner inconsistent with the Purposes
of the United Nations.’” Miller, supra note
6, at 336-37.
Gertler et al, Cong. Res. Serv., R41701, No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress 4 (May 3, 2013) [hereinafter CRS].
 CRS, supra note 8, at 4.
 Authorization power is given to the UNSC by Chapter VII of the UN charter,
allowing it to respond to threats to international peace and security. CRS, supra note 8, at 4. “The Security
Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42, to maintain or
restore international peace and security.” U.N. Charter art. 39. “Should the
Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air,
sea, or land forces as may be necessary to maintain or restore international
peace and security. Such action may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the United Nations.” Id.
 CRS, supra note 8, at 4. “Nothing in the present Charter shall impair the
inherent right of individual or collective self-defense if an armed attack
occurs against a Member of the United Nations.” U.N. Charter art. 51. “Some
theorists and practitioners consider that there also exists a customary
doctrine of self-defense outside of the U.N. Charter that permits military
action to prevent a grave threat to regional peace and stability, even if that
threat seems to be contained within the borders of a state.” CRS, supra note 8, at 4.
 CRS, supra note 8, at 4-5. “Some have argued that emerging international human
rights law provides that states are no longer free to treat their people as
they see fit under the guise of sovereignty, but are instead obligated to
respect their people’s fundamental human rights. When a government engages in
widespread abuse of the human rights of its own people, it has been asserted,
that government loses a measure of its sovereignty. Other states, the argument
continues, have the right or even the responsibility to intervene in order to
put a stop to crimes against humanity, as an extension of the customary right
of self-defense or the defense of others.”
C. Cooper, A Note to States Defending
Humanitarian Intervention: Examining Viable Arguments Before the International
Court of Justice, 40 Denv. J. Int'l L. & Pol'y 167, 174-75 (2012). “International law is in the process
of adapting to contemporary challenges to the foundational norm of the Charter
system, which prohibits the use of force except in self-defense or when force
is authorized by the Security Council (and, by extension, conforms with the
political desires of the United States, the United Kingdom, France, Russia, and
China, each of which wields a veto in the Council).” Miller, supra note
6, at 324; see e.g., G.A. Res.
60/1, ¶4, U.N. Doc. A/RES/60/1 (Oct. 24, 2005) (“We reaffirm that our common
fundamental values, including freedom, equality, solidarity, tolerance, respect
for all human rights, respect for nature and shared responsibility, are
essential to international relations.”).
 Cooper, supra note 13, at 203 (citing Philip C. Jessup, A Modern Law of
(1948)); see also id. (“In
fact, the evolution was prophesized at the time of the Charter's inception by
the likes of former ICJ Judge Philip C. Jessup. Judge Jessup concluded that if
the [Security Council] were unable ‘to act with the speed requisite to preserve
life,’ individual states would be justified to act in lieu of the ineffective ‘collective
measures under the [Security Council].’”).
 G.A. Res. 60/1, ¶139, U.N. Doc. A/RES/60/1 (Oct. 24, 2005). The UNSC continues
by saying, “In this context, we are prepared to take collective action, in a
timely and decisive manner, through the Security Council, in accordance with
the Charter, including Chapter VII, on a case-by-case basis and in cooperation
with relevant regional organizations as appropriate, should peaceful means be
inadequate and national authorities are manifestly failing to protect their
 Cooper, supra note 13, at 176. Such
interventions include Somalia (1991), Haiti (1993-94), Rwanda (1994), East
Timor (1999), and Bosnia-Herzegovina (1992), among others, and they represent a
chapter in international law that gave hope to many that the UN system was
beginning to work as originally envisioned - for security and the protection of
human life. Cooper, supra note 13, at
 Cooper, supra note 13, at 167.
with SC inaction in response to Russian Vetoes during the Korean War, the
General Assembly passed resolution 377 (V), more commonly referred to as ‘Uniting
for Peace.’ The resolution states that should the SC, because of lack of
unanimity of the permanent members, fail to exercise its primary responsibility
to maintain international peace and security, then states, upon ‘recommendation’
of the GA, may resort to ‘armed force’ when necessary, to ‘restore international
peace and security.’ To ensure that the Resolution would have effect, the GA
created the ‘emergency special session’ (ESS) to ensure prompt action in the
face of a SC stall. Accordingly, an ESS can be called within 24 hours in one of
two ways, either (1) at the request of the GA upon a two-thirds majority vote,
or (2) on the basis of a procedural vote in the SC, which cannot be blocked by
a P5 veto.” Cooper, supra note 13, at 180.
 Cooper, supra note 13, at 167-68.
See Brighton Haslett, No Responsibility for the Responsibility to
Protect: How Powerful States Abuse the Doctrine, & Why Misuse Will Lead to
Disuse, 40 N.C. J. Int'l L. & Com.
Reg. 171, 185 (2014), available at https://www.law.unc.edu/journals/ncilj/issues/volume40/issue-1-fall-2014/no-responsibility-for-the-responsibility-to-protect-how-powerful-states-abuse-the-doctrine-and-why-misuse-will-lead-to-disuse; Miller, supra note 6, at362; Cooper, supra note 13,
at 168-69 (providing a definition and basis for the responsibility to protect); but see group of 77 (stressing the
need to distinguish between humanitarian assistance and intervention and
rejecting the “right” of humanitarian intervention). For a list of member
states in the Group of 77 see The Member
States of the Group of 77, Group of 77, http://www.g77.org/doc/members.html [https://perma.cc/54EF-KTMN].
 Cooper, supra note 13, at 196-97.
After an analysis of these no-fly zones, the Congressional Research Service
concluded that “The most germane recent no-fly zone cases do not establish a
clear model for securing international authorization—they differ from one
another, and in some instances they have spurred debate rather than consensus
about what constitutes appropriate authorization. CRS, supra note 8, at 5. Given the paucity of relevant precedents, and
the dissimilarities among them, there may not exist a single, clear, agreed
model. The concept of authorization is typically considered to be linked to the
ideas of both “legality” and “legitimacy”—the three concepts overlap but are
all distinct. The precise meaning of each of the terms is still debated.
Express authorization from the U.N. Security Council provides the clearest
legal basis for imposing a no-fly zone. CRS, supra note 8.
Gross, Applying the Extra-Legal Measures
Model to Humanitarian Interventions: A Reply to Devon Whittle, 26 Eur. J. Int'l L. 699, 707 (2015).
 More information on Operation Odyssey Dawn can be
found in CRS Report R41725, Operation Odyssey Dawn (Libya): Background and Issues for Congress.
 CRS, supra note 8, at 2.
 S.C. Res. 1973, para. 8, U.N. Doc. S/RES/1973 (Mar. 17, 2011).
 CRS, supra note 8, at 2. For another
example of a UNSC authorized no-fly zone in Bosnia and Herzegovina, as
implemented in UNSC regulation 781, see CRS, supra note 8, at 3, 6; see
also S.C. Res. 781, para. 2, U.N. Doc. S/RES/781 (Oct. 9. 1992).
 Cooper, supra note 13, at 182-83.
 Cooper, supra note 13, at 181.
 CRS, supra note 8, at 5-6; see also S.C. Res. 688, U.N. Doc.
S/RES/688 (Apr. 5, 1991); S.C. Res. 678, U.N. Doc. S/RES/678 (Nov. 29, 1990).
See CRS, supra note 8, at 5-6. An
issue was also raised about whether international intervention was legal
without an invitation from the country concerned. “The United Kingdom argued in that context that “international
intervention without the invitation of the country concerned can be justified
in cases of extreme humanitarian need.” Oren Gross, Applying the Extra-Legal Measures Model to
Humanitarian Interventions: A Reply to Devon Whittle, 26 Eur. J. Int'l L.
699, 703 (2015) (emphasis added).
 Cooper, supra note 13, at 183.
 Cooper, supra note 13, at 188.
 Cooper, supra note 13, at 188.
 Cooper, supra note 13, at 196-97.
 Miller, supra note 6, at 334. Vitaliy Churkin, a Russian diplomat
who has served as Russia's Permanent Representative to the United Nations since
2006, talking about ways to improve humanitarian aid in Syria, said that “While
he did not rule out a future need for a resolution, he said Moscow did not
believe such a move was necessary yet. “If it’s something which is useful,
which will not be regarded by people as simply provocative but is something
which is really aimed at improving the humanitarian situation, then I think it
cannot be ruled out.” Michelle Nichols & Louis Charbonneau, China, Russia Snub
UN Security Council Talks on Syrian Aid, Reuters (Feb. 11, 2014), http://www.reuters.com/article/us-syria-crisis-un-russia-idUSBREA191M820140210 [https://perma.cc/378Y-YGEJ].
Nichols & Charbonneau, supra note 38. This is not, however, a symptom apathy within the
UNSC, but rather a result of China and Russia vetoing three resolutions to
condemn President Assad and threaten him with possible future actions. See Id.
 With or without authorization, a coalition is almost always necessary in
implementing and maintaining a no-fly zone. Members of these coalitions provide
“bases and infrastructure, transit approval through their airspace, access to
supply routes … legitimacy for the overall mission … and [a sharing of] the
burden of patrolling the skies, which reduces the cost for any country.” Hinote, supra note 4.
 Hinote, supra note 4.
 Miller, supra note 6, at 364.
See id. (stating fully: “[T]he support of Western
forces given to the rebels clearly shows that the regime in Syria lost its
position as a sovereign nation in the eyes of the West and is seen as nothing
more than a gang of thugs ruling a large territory. It seems that in the Syrian
case, according to the model suggested in this Article, there are ample reasons
to intervene on humanitarian grounds without the approval of the Security
Council. There is no doubt that mass violations of human rights are taking
place and the regime has shown its will to use chemical weapons and any other
action needed to crush the rebellion with no respect to any international law
norms. With conclusive proof for past gross violations of human rights and the
will and means for future such violations, the regime has lost all its claims
for the protections of sovereignty).
 Hinote, supra note 4 (defining “mission
creep” as an expansion of mandate and increased action).
Id. “There is nothing at stake in Syria
that warrants the United States risking such a dangerous confrontation with
Russia. Imposing a no-fly zone under the current circumstances is utterly
reckless. Anyone who embraces such a scheme should be disqualified
automatically from occupying the Oval Office.” Id. See also Bowman, supra note 3 (“‘I think we’ve gone past the point where a no-fly zone can be effective,’
said retired Air Force Lt. Gen. David Deptula, a former top commander of air
forces in the Middle East. ‘Instead of being distracted with a no-fly zone, we
should put together a cohesive, coherent strategy to eliminate the Islamic
Id. “Aryeh Neier, recently retired
president of the Open Society Institute (and former head of Human Rights Watch
and the ACLU) … calls for [a no-fly zone] to be imposed by a regional force and
NATO. The US would not lead the effort, though presumably it would participate
via NATO – while providing backup, both material and political, another
exercise in deliberately “leading from behind.” He is cautious about the US
intervening militarily directly[.]” Id.
Fuchs & Borowski, supra note 44, at 340-41.
David, Int'l Law & Practice in Times
of Change, 13 Wash. U. Global Stud.
L. Rev. 453, 461 (2014), available
at http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1496&context=law_globalstudies.“‘One important path for the creation
of new international norms is international custom’, or ‘general practice
accepted as law.”’ Statute of the International Court of Justice art. 38, June
26, 1945, 59 Stat. 1055, 1060, U.N.T.S. No. 993.