Locke’s Second Treatise argued that only institutions of self-government could constitute a government properly so-called. Most explosively, Locke argued that where there was foreign occupation or tyranny (the two were equivalent in his thinking), there was no government properly so-called, and the people then had the right to establish a government, by force of arms if necessary. The right of rebellion claimed in the Declaration of Independence was straight out of John Locke.
So is the right of humanitarian intervention. The sovereignty of a tyrant is no greater than that of a foreign occupier. If that tyrant also happens to be an enemy of ours, and has already given us casus belli, our right of intervention should be asserted forcefully and explicitly.
In Syria, even more than in Libya, Tunisia, or Egypt, the intrinsic illegitimacy and criminality of the regime has been manifest for decades. Despite his touching friendship with Senator John Kerry, Syrian dictator Basher Assad is a sponsor of international terrorism, facilitates the extension of Iranian military support for terrorists in Lebanon and the Palestinian territories, facilitated the transit of thousands and perhaps tens of thousands of Arab insurgents into Iraq to kill Americans, and is up to his neck in clandestine WMD, including nuclear-weapons technologies. The justifications for ending that regime, to make no mention of stopping a massive humanitarian disaster, have been present for years.
The other side of the coin is this: What if the regime falls tomorrow? How do we know that the regime which replaces it is any more legitimate? Should we try to be “on the right side of history” by recognizing the new regime simply because it is acclaimed by a mob in the street and has some diplomatic support among non-democratic governments? That’s how we got into this whole situation to begin with.
U.S. diplomacy needs to become much more focused on basic constitutional issues. The full rights of sovereignty should be recognized only when a government constitutes “self-government” in the Lockean sense. When the Soviet Union broke up, the Bush administration conditioned recognition of the newly emerging states on criteria that came close to the Lockean mark, but which still relied too much on a given regime’s behavior and not enough on its essential structure and inherent nature. A better starting point would be our own state corporation laws, which require observance of corporate form in order for management’s transactions to be considered “duly authorized.”
Insisting that multinational action in Syria be based on principles that explain the inherent illegitimacy of the Assad regime will run into opposition from the Arab kingdoms, but that is not an insurmountable obstacle. The Assad regime is not illegitimate because it is killing civilians en masse. Any government engaged in a civil war against an insurgency could find itself doing that. It is the tyrannical nature of the Syrian regime that transforms its civil war into a crime against humanity — and an urgent call for humanitarian intervention.
The Syria crisis doesn’t belong in the Security Council, because the interests of its permanent members are not aligned on the issue. That is neither good nor bad, because a divided Council tells you absolutely nothing about the merits of a given course of action. But that is also why Council “authorization” should never be treated as indispensable.
In Syria today we are witnessing a humanitarian catastrophe of the highest order. While we twiddle our thumbs wondering what to do, as hundreds die, it might be a good idea to make it clear what we have the right to do.
U.S. intervention would have risks, and broad international support will be important to the ultimate success of any strategy. But that has no bearing on whether we have a right to intervene, with others if possible and alone if necessary. We do, and we should state explicitly and in advance the reasons why we do.
— Mario Loyola is former counsel for foreign and defense policy to the U.S. Senate Republican Policy Committee.