Germany’s Research Report on the Syria Strikes: Unlawful Acts of Reprisal

Just hours after the United States, United Kingdom and France launched the first series of coordinated strikes against targets related to Syria’s chemical weapons program, Germany’s Chancellor Angela Merkel issued a statement backing the operation. According to Merkel, the intervention was “necessary and appropriate to preserve the effectiveness of the international ban on the use of chemical weapons and to warn the Syrian regime against further violations.”

The formulation was cleverly crafted, allowing the Chancellor to express political support for her NATO-partners without passing judgement on the strikes’ contentious legal status. For Germany’s left-wing party Die Linke, however, this was not enough. Pushing for greater clarity, some of its members have commissioned an expert opinion from the Parliament’s Research Services (Wissenschaftliche Dienste) on the legality of the intervention.

Similar to the United States’ Congressional Research Service, the Wissenschaftliche Dienste functions as the research arm of Germany’s federal legislative chamber, providing background information, policy briefings and extensive legal expertise to its members, regardless of their party affiliation. As a parliamentary branch agency, its official mandate is of a purely consultative nature. That said, its analysis and positions are widely respected among German policymakers and have often figured prominently into the country’s public discourse.

The 11-page report it produced on the international legal dimension of the Syria strikes is significant in many ways. It not only challenges, though somewhat implicitly of course, Merkel’s initial statement, but also offers some useful reflections on the use of force in international relations. Its overall verdict on the intervention is clear: as an “armed reprisal cast in the veil of humanitarianism,” the use of force constituted a violation of international law and UN Charter Article 2(4), respectively.

The report is divided into four sections. I summarise each briefly here.

1. Sorting out Legality and Legitimacy

In marked contrast to the official and largely incoherent statements issued by the US and some of its allies, the report neatly separates questions about the strike’s legality from moral-political arguments about its legitimacy. Citing argumentations put forward by the US, UK and France, the Parliament’s Research Services notes that issues concerning the international legality of the military operation have been overshadowed by political-moral claims regarding the legitimacy of international actions.

2. The (Il)legality of Armed Reprisals

Moving to the analysis of possible legal justification for the latest strike, the first argument considered is that of reprisal – a limited violation of international law to punish another state that has already broken the law. In essence, each of the leaders of the three states that carried out the strikes offered some version of this argument in their statements.

Reprisals involving the use of force, the report finds, are generally unlawful. While states, by way of customary international law, are entitled to take countermeasures against another state for the violation of an international legal obligation, they are not allowed to use force as their means to that goal. This not only holds true in cases in which a state violates its international legal obligations stemming from an international treaty (the Chemical Weapons Convention) or a Security Council Resolution (Resolution 2118 (2013)), but also in those cases in which a state has committed an international crime using weapons of mass destruction.

Instead of a “carte blanche for unilateral acts of reprisal by a coalition of the willing,” the report suggests, international law provides explicit mechanisms for monitoring, implementing, and punishing such violations. For the report’s authors, the fact that those mechanisms have failed in the case of Syria – Russia’s Security Council veto or the obstacles to the OPCW investigation – has no implications for the legal status of the strikes.

There are some limited exceptions to the general prohibition against armed reprisal, namely when a conflict is ongoing. However, neither the US nor the UK nor France is in an international armed conflict with the state of Syria. Operation “Joint Resolve,” under the banner of which all of the coalition’s military activities have taken place so far, is directed against ISIS, not the Syrian state.

3. Dismantling the ‘Humanitarian Intervention’ Argument

The third part of the report probes in detail the UK’s argument that the “legal basis for the use of force is humanitarian intervention.” While commentators have already, and convincingly, rebutted that argument, the report provides a number of additional reasons for why it falls short.

Firstly, in addition to absence of a Security Council Resolution, which any legal humanitarian intervention requires, the report questions the coherence of the “humanitarian element” of the UK’s position. That is, it would not be clear how a series of limited air strikes is suited to prevent further human suffering among the Syrian population, and how the use of chemical weapons has added a “qualitatively” different dimension to the seven-year Civil War that justifies the use of force. They have point: if humanitarian concerns have triggered the latest strike, then there was more than ample reason for such an intervention in the past. Having done nothing back then, and nothing about the mass slaughter going forward, it is difficult to see the humanitarian purpose of the latest pinprick strike.

Secondly, like in the case of NATO’s intervention in the Kosovo in the late 1990s, moral justification does not make up for the illegal use of force. As the report ably puts it: “legitimate state action does not automatically produce its legality.”

Thirdly, the concept of the Responsibility to Protect, upon which the current legal understanding of humanitarian intervention is generally based, is aimed at protecting civilian populations; its purpose is not to enforce international law. The problem is, as the UK’s statement suggests, that the humanitarian element of the strikes seems to be justified by precisely the latter motive.

Finally, apart from the UK, none of the two other states that carried out the strikes has made an explicitly legal argument in favour of humanitarian intervention. This, however, would have been necessary in order to clearly demonstrate the existence of a shared belief on behalf of the coalition that they felt obliged under international law to conduct a humanitarian intervention as a reaction to the use of chemical weapons.

4. Implications for the Development of International Law

Recognising that what states’ believe the law to be has significant implications for the development of (customary) international law, the authors do not rule out the possibility that “humanitarian reprisals” could become a lawful exception to the general prohibition on the use of force. A similar suggestion was articulated by the former Legal Adviser of the Department of State, Harold Koh, after the first US military response to the use of chemical weapons in Syria in 2017. For now, however, the report concludes that there is neither enough practice nor a sufficient belief on behalf of states (opinion juris) to suggest that international law has evolved in this way.

As the report shows, any future attempt to establish such a legal doctrine has to be approached with extreme caution. Such an endeavour would mean addressing some serious, fundamental questions about the limits of, and conditions for, the use of force in international society. There are certainly good ethical reasons for doing so. After all, the use of chemical weapons causes unspeakable human suffering, and if limited strikes can deter actors from using them, then we have to at least think about the possibility of a globally shared conception of lawful humanitarian reprisal. That said, the inherent potential for abuse of such a conception, and the risk it bears for watering down the prohibition of force in a way that is becomes unnoticeable, cannot be stressed enough.

 

[Editor’s note: For more on this topic, see Alonso Gurmendi Dunkelberg, Rebecca Ingber, Priya Pillai and Elvina Pothelet’s “Mapping States’ Reactions to the Syria Strikes of April 2018–A Comprehensive Guide“] 

About the Author(s)

Dennis Schmidt

Research and Teaching Fellow at the Institute of Political Science at the University of Tübingen; Research Fellow in International Relations at Durham University. You can follow him on Twitter (@DennisRSchmidt).