In a heroic attempt to rid the Syrians of the horrors of chemical bombing, on Friday the 13th of April, the US along with France and Britain coordinated a strike in Syria which targeted the research, storage and military area. This article looks into the legality of the said bombings and how it is viewed under International Law.
For those who want to know the events which led to the strike, refer to my concise infographic here.
What actually happened?
On 7th April, 2018, Syria, or more particularly Douma, was victim to a chemical attack which affected civilians including children. Most of the nations condemned the barbaric attacks. But US, UK and France went one step further to bomb Syria. In retaliation, they fired 105 missiles in Syria, an already war-torn country. Understandably, this has not gone down too well with some other nations. This is not the first time that the US has led air strikes in Syria.
Can they do that?
Before answering this question, it is necessary to have an idea of the relevant laws in place. The UN Charter has been extremely clear about the global rule on use of threat or force. Article 2(4) of the UN Charter states as follows:
“4. 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.”
Article 2(7) of the UN Charter also talks about the principle of non-intervention.
“7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”
While the former puts the responsibility on the member nations to not intervene, the latter puts the duty on United Nations itself.
The principles of peace; or conversely, the rule against use of force is a fundamental aspect under the jurisprudence of International Law. The basic reason for the establishment of the United Nations was to prevent wars and attacks between nations. It has been one of the most logical and necessary rules to maintain peace after the devastating aftermath of World War II.
What about the exceptions under Chapter VII of the UN Charter?
According to Chapter VII, the Security Council is given the powers to identify any problem areas and decide what action can be taken in situations where there are any threat to the peace, breach of the peace, or act of aggression. It can either recommend a course of action or take up measures in accordance with Article 41 and 42 of the UN Charter.
Moreover, there are only two justifications for a nation to carry out attacks against other countries – either by a permission from the Security Council or as self-defence.
In the current scenario, the attacks carried out on Syria were not sanctioned by the Security Council. In fact the states who carried out the attack form 3/5ths of the permanent Members of the Security Council. It was not possible for other nations to protest against such attacks, as any such protest would be largely symbolic in nature compared to the “veto power” given to the Security Council’s permanent members. The self-defense justification also cannot be used in this context, as there is no valid threat to the US by Syria.
Even under the Chemical Weapons Convention, there needs to be formal authorization by the authorities before any measures are carried out.
If states-parties are found to have engaged in prohibited actions that could result in “serious damage” to the convention, the OPCW could recommend collective punitive measures to other states-parties. In cases of “particular gravity,” the OPCW could bring the issue before the UN Security Council and General Assembly.
States-parties must take measures to address questions raised about their compliance with the CWC. If they do not, the OPCW may, inter alia, restrict or suspend their CWC-related rights and privileges (such as voting and trade rights).
Armed Reprisal or Humanitarian Intervention?
Armed reprisals are uses of military force that follow an incident, usually to punish or in retaliation or revenge and which do not fit the exception to the prohibition on the use of force for self-defence. Only after the Security Council’s authorization, can the action be carried out.
Mary Ellen O’Connell says this about the status of reprisals in international law:
“In 1970, the General Assembly stated clearly in its Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States that among the fundamental rights and duties of states, is the ‘duty to refrain from acts of reprisal involving the use of force’ against other States. The International Court of Justice found in its 1994 advisory opinion on the Legality of Threat or Use of Nuclear Weapons that ‘armed reprisals in time of peace […] are considered to be unlawful.’ In the Oil Platforms case, it further held that US attacks on Iranian sites were not lawful acts of self-defense because of their retaliatory nature.
Thus, unauthorized reprisals are always unlawful, and, indeed, as Derek Bowett wrote in a 1972 article in the American Journal of International Law: ‘Few propositions about international law have enjoyed more support than the proposition that, under the Charter of the United Nations, the use of force by way of reprisals is illegal.’ Nevertheless, Bowett preceded to construct an argument to reverse the ‘proposition’ eight years after the UK was condemned by the Security Council in Resolution 188 of 1964 for bombing Fort Harib in Yemen. The Council found the bombing an unlawful reprisal and ‘incompatible with the purposes and principles of the United Nations.’ (It is noteworthy and to the UK’s credit that it did not veto the resolution.)”
“Humanitarian intervention”, on the other hand, refers to a state using military force against another state when the chief publicly declared aim of that military action is ending human-rights violations being perpetrated by the state against which it is directed. These interventions have a lot of debate surrounding their legality and validity.
While the US, UK and France are terming this attack as a humanitarian intervention on the unfolding crisis in Syria, the same needs to be taken with pinch of salt. The following reasons list why:
- The “humanitarian intervention” is inconsistent in its applications: The instances where humanitarian intervention is applied is seen to be self-serving at best.
- There should have been strong and convincing proof of the attack: There is no conclusive proof of the attack. As Syria and Russia didn’t allow the members of OPCW to enter Douma, the former Allies drew adverse inference and launched the attack.
- The intervention should have ensured that the humanitarian crisis is averted: One of the most important criteria for the intervention is that it should have succeeded in preventing the human-rights violation. As of now there is only speculation of the chemical laboratories being destroyed. There is nothing to prevent the instances of future chemical attacks. Similar attacks in 2017 did not prevent the 2018 attacks.
For these reasons the rationale taken by US, UK and France seem sketchy at best and completely untenable at worst.