Almost unanimously, commentators across the world have determined that the April 14 strikes against Syria’s chemical weapons capabilities by the United States, United Kingdom and France violated international law. In particular, the three nations are accused of violating the prohibition on the use of force under the United Nations Charter. Assuming for the purposes of this discussion that the three nations indeed violated international law, there are vital considerations that commentators have ignored to date.
After a criminal trial results in a guilty finding, or when a defendant pleads guilty, the case transitions to a sentencing phase. While the mechanisms of international law applied to nation-states do not resemble the criminal processes applied to individuals, a theoretical sentencing case in the Syria matter should be considered to put the strikes in full context. Such considerations are also worthwhile to forecast how the April 14 operation might influence the moral and legal bases for future nation-state operations of a similar nature.
The determination of guilt in a criminal case is much like addition in mathematics. Guilt is based on ascertaining whether each element of a crime has occurred. Guilt is established if each element is supported by evidence.
Sentencing is more like algebra. There are multiple variables, initially of unknown value, that contribute to development of a sentence. The sentencing phase of a criminal trial allows the defense and prosecution to introduce these variables and establish their value to determine the just consequences of misconduct. These considerations include matters in extenuation, mitigation, and aggravation. This flexibility is what allows a man who killed his father for an inheritance to be treated more harshly than a man who killed in order to relieve his father of the pain of a terminal illness.
U.S. legal traditions offer multiple factors that are relevant to sentencing. Although some of these factors would not be useful in considering the acts of a nation-state, those that could be helpful include the nature and circumstances of an offense, the intent of the defendants prior to committing their misconduct, the seriousness of an offense, promoting respect for the rule of law, deterring future criminal misconduct by the defendant, and setting an example to deter others.
Defense counsel for the U.S., U.K. and France might open their sentencing case by distinguishing their military operations from other recent operations that most believe violated international law. Unlike Russia’s self-interested and destabilizing aggression in Ukraine since 2014, the three nations did not seek to annex territory, disrupt Syrian society, or pursue Syrian regime change. While perhaps not a wholly altruistic act to protect the Syrian people, there does not appear to have been much strategic gain from the strikes other than destroying some of the Syrian government’s chemical weapons capability, deterring the future use of those weapons, and announcing to other nations that they too can expect consequences if they use chemical weapons.
The exceptional nature of chemical weapons also presents a strong defense argument. While the Syrian government continues to kill thousands of their citizens with multiple types of munitions, the gruesome effects of chemical weapons and the types of injuries they cause are particularly abominable. Based on the international community’s acute repulsion toward chemical weapons, deterring their use as opposed to the use of other types of weapons might be particularly mitigating.
To conclude its sentencing case, defense counsel might argue: “Ladies and gentlemen of the jury, if you impose a harsh sentence against my clients, the effect you will have on the innocent will be devastating. A harsh sentence will tell the innocent that it’s okay for their leaders to kill them with chemical weapons. It will announce to autocrats around the world that they may commit the most heinous acts imaginable without consequence, so long as they do so within their own borders. A severe punishment will buoy the confidence of every despot who wants to torture or kill the people they lead. Yes, my clients violated a vital rule of international law, but they did so not for their own gain … they did it to protect the innocent from the world’s worst weapons. Although each violation of the UN Charter risks its further abuse, failure to understand and excuse this violation under these unique circumstances puts the peace the Charter created at far greater risk.”
The prosecution would have several arguments in aggravation to present on sentencing . Primarily, the law the three nations broke is perhaps the most important in the international system. It is unknown how many lives have been spared because of the UN Charter, but it is a demonstrable fact that an unprecedented era of peace between nation-states has prevailed since its inception. A prosecutor might argue that failing to adhere to it could be the equivalent of an international mortal sin.
Furthermore, a prosecutor might offer that violating the UN Charter undoubtedly diminishes not only this but perhaps all international law. It potentially provides other nation-states a foundation to justify uses of force for their own purposes. The violation in this case, it could be argued, is especially egregious because of the three democracies’ prioritization of the rule of law as an international policy goal.
This discussion evaluates only a handful of issues that might be raised on sentencing in a typical criminal case and that could be relevant to evaluating an international law violation. It overlooks how judgment and consequences, legal and otherwise, are evaluated in regard to nation-states considered to have committed violations. However, this discussion is offered in the hope it will motivate commentators to explore an appropriate reckoning.
The rule of law requires lawful conduct, but any inquiry into a violation of law does not end with the finding of guilt. When the requirement to act lawfully is violated, the rule of law provides a mechanism to address the violation, and it does not treat all violations equally. Commentators weighing in on the April 14 strikes are invited to offer their thoughts on the notional sentencing case against the nations alleged to have violated international law.
These views are the author’s own and do not speak for any other representative or organization of the U.S. Government.