A View from a Syrian International Lawyer: Were the April 14 Strikes Legal?

On April 14, the United States, the United Kingdom and France conducted air strikes in Syria in response to the Syrian government’s alleged use of chemical weapons in Douma. Regrettably, neither the U.S. nor France provided to the public a legal basis for their use of force to conduct these strikes. By failing to do so, they’ve set a bad precedent for the international legal order they purport to uphold. The U.K. government, however, cited humanitarian intervention as its legal basis for the use of force. It is noteworthy that three States, acting in concert to use force on the territory of a foreign State, were conspicuously unable to publicly agree upon which legal basis they were acting. This fact on its own weakens their joint claim to have acted legally.

The U.K. government at least deserves credit for its attempt to articulate a legal position. Much has been said on the general legal status of humanitarian intervention under current international law, and I do not wish further to engage in that debate except for noting two things. First, there can be no doubt that the status of humanitarian intervention under current international law including, most importantly, the UN Charter, is doubtful. Secondly, the use of force by the U.S., the U.K. and France, while having been condemned by a number of States, has also been supported by a significant part of the international community. In my opinion, this latter fact is very understandable in view of the scale and gravity of the crimes committed by the Syrian regime during the past seven years, the Security Council’s constant deadlock and the resulting absence of action that is genuinely capable of affording any measure of protection to the suffering Syrian civilian population.

This latter consideration, however, leads me to my main criticism of the allied use of force last month: I dispute that the strikes were at all capable of reaching the only arguably acceptable goal of a humanitarian intervention, which would be to alleviate the suffering of the Syrian people by deterring the future use of chemical weapons. My two further critical considerations are of a subsidiary nature. I question the timing of the use of force at a moment the evidence of the alleged use of chemical weapons is still not sufficient and has to be collected and analyzed, and I’d argue that France, the U.K. and the U.S. should have brought the matter before the UN General Assembly instead of taking unilateral action.

(I) The necessity of the use of force to alleviate humanitarian distress

U.K. Prime Minister Theresa May stated that the strikes were not about “intervening in a civil war” or “regime change” but to ensure that chemical weapons were not used again. Despite the failure of the April 2017 U.S. strikes to deter the Syrian government’s continued use of chemical weapons, it is possible that the most recent strikes could have the desired deterrent effect. But the key question remains whether such deterrence would alleviate the humanitarian distress in Syria. Unfortunately, there is no convincing reason to believe so. To the contrary, the Syrian regime remains in possession of all kinds of weapons, such as barrel bombs and cluster bombs, by use of which it has, without hesitation, slaughtered civilians, including women and children. There is not the slightest reason to believe that the Syrian regime will change course because of the allied use of force in April.

Instead, the message conveyed through the recent use of force is clear: the use of chemical weapons will not be tolerated and force will be used to deter continued action of that kind. But the continuous commission of other crimes under international law, even if their results are no less lethal, will not provoke protective forcible action.

In short, there has been an urgent need for humanitarian intervention in Syria for the last several years. But the recent use of force is not an appropriate means to provide the Syrian population with humanitarian protection so that this basic condition for a lawful humanitarian intervention, as set out by the U.K. government, is not met. Do not get me wrong: the use of chemical weapons is abhorrent and amounts to a serious war crime. But an even greater tragedy is that only the use of chemical weapons constitutes a red line. This should not be the course to be followed in the future. The UN Security Council’s failure over many years to authorize the measures necessary to protect the civilian population in Syria, despite its unspeakable sufferings, makes it unlikely that the debate about humanitarian intervention in cases of most dire need will go away. But the allied use of force in Syria last month demonstrates that it would be the wrong path to single out one particular element of a lethal attack against a civilian population, even it is as abhorrent as the use of chemical weapons.

(II) Strong evidence of extreme and large-scale humanitarian distress

There is overwhelming evidence, collected and assessed by various independent international mechanisms, that the Syrian regime is responsible for the commission of war crimes and crimes against humanity, including the repeated use of chemical weapons (see, for example, the Independent, International Commission of Inquiry on the Syrian Arab Republic, the OPCW Fact-Finding Mission in Syria and the International, Impartial and Independent Mechanism). According to the U.N. Secretary General Antonio Guterres, “Syria today represents the most serious threat to international peace and security.” He also added,

For eight long years, the people of Syria have endured suffering upon suffering.
Syrians have lived through a litany of horrors: atrocity crimes, sieges, starvation, indiscriminate attacks against civilians and civilian infrastructure, the use of chemical weapons, forced displacement, sexual violence, torture, detention and enforced disappearances. The list goes on.

Accordingly, there is no doubt of the disastrous situation of the civilian population in Syria, and about the Syrian regime’s heavy responsibility for it, in continuous, flagrant disrespect of meeting its (primary) responsibility to protect. Last month, the urgent need for protective action was therefore not in question. However, the American, British and French governments explained their military action in Syria as a response to a particular atrocity – the alleged chemical attack in Douma. It would therefore have been important that the factual case for the attribution of this attack to the Assad regime was as strong as it possibly could be. Yet, as of the time of writing, the investigation into the chemical attack in Douma is still not complete, and, as far as I can see, there is still not sufficiently strong public evidence to connect the regime of Syrian President Bashar al-Assad with this use of chemical weapons. Therefore, the timing of the strikes was bad. In fact, the Organization for the Prohibition of Chemical Weapons (OPCW) mission was in Lebanon and ready to enter Syria to investigate the alleged chemical attack in Douma. It would have been far better had the Western allies waited for the OPCW team to investigate and assess the alleged use of chemical weapons in Douma before taking action.

(III) No practicable alternative to the use of force

On April 17, the G7 Leaders of Canada, France, Germany, Italy, Japan, the U.K, the U.S. and the European Union issued a statement on the chemical weapons use in Syria. In this statement, the G7 countries asserted, “the response was … taken only after exhausting every possible diplomatic option to uphold the international norm against the use of chemical weapons.” I respectfully beg to disagree. Instead, I believe, the matter should have been brought to the attention of the UN General Assembly before taking forcible action. The 1997 Chemical Weapons Convention does not provide for the unilateral use of force when there is a breach by a member state of the convention. Article XII(4) of the Convention provides that such a matter shall be brought to the attention of the UN Security Council or the UN General Assembly. When the Security Council cannot act because of the use of veto power, which is evident in the Syrian case, the General Assembly shall consider the matter immediately and may issue any recommendations it deems necessary in order to restore international peace and security. I therefore agree with the view taken by Dapo Akande that:

an attempt might have been made to conform to the UN Charter by seeking endorsement of the strikes from the UN General Assembly under the Uniting for Peace Resolution 377A (1950) which allows the Assembly to take measures in response to breaches of international peace, where the Council is blocked through the threat or use of force. This is the route that would permit collective international endorsement of both the overwhelming humanitarian suffering and of the need for military action to provide relief.

In summary, the debate about taking exceptional forcible measures in the absence of Security Council authorization, in order to protect a civilian population in case of an (impending) humanitarian catastrophe and/or a manifest failure of the Security Council to authorize the measures necessary to alleviate the civilian’s plight, will not go away. But the idea to confine such forcible measures to the deterrence of the use of chemical weapons or any other isolated element of an overall lethal attack is ill-conceived and should not be the blueprint for any State practice in the future. In addition, the factual case for any such forcible action must be as clear as can possibly be and available mechanisms for independent investigation should be used. Finally, the Uniting for Peace Resolution, which can be seen as a legitimate alterative to the Security Council authorization, should be activated in order to provide the protective use force the strongest possible collective endorsement. An action to be taken on the basis of the majority support of the UN member states is what would be needed to relieve the Syrian suffering.

Image: A Tomahawk missile launches from the guided missile destroyer USS Laboon in the Red Sea, April 14, 2018. U.S. Navy photo 

 

About the Author(s)

Anan Alsheikh Haidar

Philipp Schwartz Fellow at the Institute for International Peace and Security Law at the University of Cologne, Germany; previously a lecturer at the Law School of Damascus University from 2010 to 2014 as well as at the Syrian Virtual University