by Sujoy Sur
The United States of America fired 59 Tomahawk missiles at an air base in the Syrian town of Khan Sheikhoun on 6th April. This was 2 days after chemical weapons were used in the same Syrian town, which killed over 80 people, including at least 20 women and 30 children. However, the question arises whether USA’s act can in any manner be held a) a legitimate response, b) a valid act in itself.
Use of Force
There is no doubt that USA’s attack can be characterized as use of force and aggression under international law, be it the UN Charter or the Friendly Relations Declaration (UNGA 2625). Use of force is legitimate only on 2 grounds – I) When sanctioned by the Security Council under Chapter VII of the UN Charter, II) In self-defence, as envisaged under Article 51 of the UN Charter.
There was no resolution passed under Chapter VII, as it was not sanctioned by the 5 great powers and a minimum of 9 members of the total 15 members of the UN Security Council. Since there was no resolution passed to this effect, such an act had no international mandate of approval as envisaged by the UN Charter and present norms and customs of international law. Secondly, USA’s act cannot be taken to be in self-defense as neither does it qualify the test of an armed attack having taken place against it (as under Article 51), nor does it pass the Caroline test of pre-emptive self-defense – that there was such ‘a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation’ to the US. USA’s attack on Syria meets none of these criteria.
Usage of chemical weapons is prohibited under international law by way of Chemical Weapons Convention (CWC). In the event a violation occurs by usage of prohibited chemicals, allegedly Sarin gas in this case, an investigation under Chapter XI of the CWC by the Organization for the Prohibition of Chemical Weapons (OPCW), the implementing body for the Chemical Weapons Convention, has to be carried out. An investigation by the OPCW was being carried out while the missile strike took place.
Keeping the legality of the procedure aside, when it comes to international politics, Assad was made to sign the CWC by Obama after the Assad regime was found to have used chemical weapons in 2013. The UNSC also had passed Resolution 2118 in 2013 warning Syria that in case chemical weapons were employed by it then Chapter VII measures would be initiated against Syria. This was hoped to have created a restraining mechanism, a kind of middle ground reached as far as the use of chemical weapons was concerned. Assuming Assad’s involvement in this case, such an attack by the US can be politically justified as being a counter-attack against a blatant violation of a) a promise to not violate a specific international order, b) a peremptory norm of not killing one’s own citizens (by use of deadly chemical weapons). However, former U.N. weapons inspector Scott Ritter pointed out, “chemical attacks had been occurring inside Syria on a regular basis . . . with some being attributed to the Syrian government (something the Syrian government vehemently denies), and the majority being attributed to the anti-regime fighters, in particular, those affiliated with Al Nusra Front, an Al-Qaeda affiliate.” Similarly, Carla del Ponte, former spokesperson of the International Criminal Tribunal for Yugoslavia and who was in Damascus at the time of the 2013 gas attack as head of a UN mission tasked with investigating allegations of poison gas attacks, had expressly concluded in a televised interview to Swiss TV that the rebels, and not the Syrian armed forces, were responsible for that attack. There have been other reports as well which have pointed out to the greater possibility of a non-government faction being responsible for the creation of Sarin gas, though not absolving the government altogether. Also, the fact the Trump administration had assured Assad that it does not seek a regime change (again a question of great international consideration) in Syria, makes one question as to why would Assad carry out any such an act which would disturb the status quo. In light of this, such a knee-jerk reaction on the basis of presumed attribution seems misdirected and makes a weaker case for the unilateral use of force for enforcement of the international legal order.
Responsibility to Protect
Responsibility to Protect (R2P) is an emerging doctrine in international law. It is a global politico-legal commitment by the international community to take active steps to prevent genocide, war crimes, crimes against humanity, ethnic cleansing, et al. R2P was espoused in the report by International Commission on Intervention and State Sovereignty (ICISS) which was a response to Kofi Annan’s challenge to reconcile the two important concepts of the inviolability of state sovereignty and the need to respond to ‘to gross and systematic violations of human rights that offend every precept of our common humanity’. The list of measures are peaceful means prevalent in international law, failing which the authority to use force lies only through UN Charter, empowering UNSC to do it and is a measure of last resort. Here, even if we consider Syria’s induction to CWC as a peaceful means to take action, unilateral use of force by the US is still a violation of international law. It must be kept in mind that R2P is a reaffirmation of the peremptory norms and basic underlying principles of international law, therefore, an exception to the principle of non-intervention and not to use force cannot be done away with even in desperate situations, except as prescribed by the international order. The scope cannot be expanded.
R2P is severely limited by the mechanism of representation in the Security Council. Global legal commitments are influenced by global politics, which is why due to the veto power invested in the permanent members a UNSC Resolution affecting power politics is hardly passed. The right to humanitarian intervention bypasses this handicap. US’ position that the use of chemical weapons against civilians must not go unpunished irrespective of UN’s authority is the reinforcement of this leeway which humanitarian intervention provides for. Although humanitarian intervention should also be ‘authorised’ by the UN and done multilaterally, the failure of UN to take action has resulted (not allow) in unilateral humanitarian intervention in the past, as it has in the present case. Because of this, humanitarian intervention is a grey area of international law and its legitimacy lies in state practice and not so much in codified international law. NATO’s intervention in Kosovo in 1999 was one such intervention. Back then, the intervention was supported by many States, while many States held it in violation of international law. Prior to Kosovo, in 1990 the Economic Community of West African States (“ECOWAS”) intervened in Liberia in an attempt to put a stop to appalling violations of human rights. In April 1991, the United Kingdom, the United States of America and a number of other States intervened in northern Iraq to create “safe havens” to enable the large numbers of refugees and displaced persons to return home in safety. While the UNSC had condemned Iraq’s action in a non-binding UNSC resolution, no UNSC resolution was passed allowing the use of force. Can this state practice be held to be sufficient enough to tout it is an emerging norm of customary international law; the norm of giving absolute regard to unilateral humanitarian aid, over and above territorial integrity and use of peaceful means first in all situations?
An emerging norm?
The answer to the above-posed question seems to be in the negative. Whereas such unilateral intervention was received with positive to mixed responses (negative response was limited to mere reprimands), it can be argued the international community for this very reason introduced the R2P doctrine at the 2005 World Summit. This breaks the chain for the development of customary law of unilateral intervention for humanitarian purposes. UNSC authorized effective action in Kenya 2007/8, Libya in 2011, and Ivory Coast in 2011 is state practice which affirms the trend of authorized use of force. Though this trend can obviously be changed later towards one which justifies use of force for humanitarian measures. Many States, such as Germany, have supported the US air strike on Syria. Since such support does contribute to the creation of customary international law, a unilateral intervention of this kind cannot be ruled out as legal in the future. Also, if owing to the increasing political tension this finds legitimacy in law by way of unadulterated opinio juris and not only state practice then this could also lead to the creation of an instant global custom. Further, the fact that the strike was carried out on a targetted military base, after informing the concerned parties involved also gives it an air of legitimacy. But as law does not act in a void, Trump administration’s blatant disregard of other humanitarian obligations, especially to the refugees of the very country it deemed fit to bomb for humanitarian reasons, does not help its case. Thus, this attack does seem like an extension of a consistent policy measure but more like an assertion of political and military might.Even if such attacks are accepted by the international community, it shall give rise to a legal doctrine of unilateral humanitarian intervention in cases of failure of the international institutional mechanism of multilateral intervention and aid in dire cases. Therefore, effectively, the jurisprudential battle which this trend will espouse is whether unilateral humanitarian intervention in dire situations (again an extremely uncertain, subjective consideration) prevails over territorial sovereignty (which otherwise can only be breached by a collective will of the international community through UNSC).
In the time period this article was written, the US dropped the MOAB in Afghanistan. Though the MOAB attack might find legitimacy in international law, when coupled with the Syria attack such unilateral use of force gradually legitimizes the need for it. Whereas the use of force should not take place, and at worst it must be the last resort, such unilateral use of force allows other States to resort to it as per their convenience. This is why it should not be backed up by other States even for political reasons. States should not be allowed to act unilaterally in a vacuum when their actions have precedential, norm creating value. Whereas legitimacy is a question of political and legal acceptance, unilateral use of force in the territory of another State in pursuance of any aim (be it bona fide) can lead to a complete disregard for the existing international order.