The legal side to Syrian war

• Best focus on the peace process

The US and its allies struck civil and military facilities in Syria, violating the UN Charter and international law, rightly said Putin recently leading to huge fallout on international relations.

The prohibition on the use of force is enshrined within Article 2(4) of the UN Charter 1945. The threat or use of force against the territorial integrity and political independence of another state in their international relations, in any manner which is inconsistent with the UN Charter, is prohibited. As per the International Court of Justice in Nicaragua v USA (1986), this prohibition also represents customary international law. The integrity of a sovereign state is also protected by Article 2(7) of the Charter, which states that the UN cannot intervene in matters which are essentially within the domestic jurisdiction of a state.

There are certain exceptions to the rule: Firstly, Article 51 of the UN Charter, which allows for individual and collective self-defense against an armed attack by another state. While USA and its allies have justified the use of force against non-state actors in Syria on the basis of self-defense, it is difficult to see how this applies to Assad’s regime, who has not carried out chemical weapons attacks against other states—instead, these have been used against inhabitants within Syrian sovereign territory (though on current case it has been claimed by some that the attack was not by his regime). Russia’s veto to stop investigation in inquiry of latest chemical attack in Syria however only reduces UN’s stature to look towards an inclusive peace process for Syria.

Professor Mary Ellen O’Connell says ‘Nobody thinks Assad could use chemical weapons on Americans.’ This recent attack cannot be justified, therefore, on the basis of self-defense.

Secondly, use of force is permissible where it is authorised by the United Nations Security Council (UNSC). Under Chapter VII, the UNSC may make recommendations or binding decisions when dealing with situations which endangers international peace and security. The UNSC determines whether there is a threat to the peach or breach of peace, Article 39. However, no such UNSC authorisation can be relied upon to justify this attack—the UNSC is currently paralysed on the Syrian crisis, with Russia supporting Assad, as opposed to USA, UK and France.

The concerns expressed by President Trump appear to be humanitarian in nature, with the attack being justified due to the chemical weapons used by Assad against Syrian civilians. Senate majority leader Mitch McConnell said the US operation was “robust” and “clearly well-considered”.

What does international law say about the use of force (in the absence of self-defense or UNSC authorisation) on the basis of humanitarian reasons?

Syria has eerily begun to resemble Kosovo, with a return to the discredited doctrine of humanitarian intervention. This is a problematic doctrine because it essentially relies upon a subjective assessment about the internal policies of another state

First: The doctrine of humanitarian intervention — intervening on the basis of humanitarian concerns — does not pose a problem where there is UNSC authorisation. Chapter VII authorisation rendered lawful the intervention in Somalia, Bosnia-Herzegovina, and the French military troops which intervened in Rwanda only when the UNSC approved of such intervention. The problem arises in situations like Syria—where intervention is on the basis of humanitarian concerns in the absence of such authorisation. The Yugoslav government carried out a policy of ethnic cleansing which resulted in the persecution of Albanian Kosovars. The relevant UNSC resolutions did not expressly allow for military intervention—however, NATO responded with the use of force and by academics such as Alina Kaczorowska-Ireland, this was accepted as morally justified but legally problematic. Kosovo highlighted the need for a new approach—after all, the prohibition on the use of force is an integral cornerstone of international law and cannot be circumvented for arbitrary military interventions. This brings us to the doctrine of responsibility to protect (R2P) which superseded the doctrine of humanitarian intervention.

Secondly R2P was devised by the International Commission on Intervention and State Sovereignty (ICISS) – a body set up in 2000 under the auspices of the Canadian government to consider how to respond to gross human rights violations. Unlike humanitarian intervention which focuses exclusively on military intervention, R2P’s preventive principle places emphasis on non-coercive measures to be applied first, with military intervention being a measure of last resort.

Syria has eerily begun to resemble Kosovo, with a return to the discredited doctrine of humanitarian intervention. This is a problematic doctrine because it essentially relies upon a subjective assessment about the internal policies of another state. The possibility for abuse is therefore immense. It must be remembered that this cry of ‘bombing Assad’ essentially means carrying out air strikes which will inevitably kill a number of innocent Syrian civilians. No state wishes to risk its own citizens’ lives or financial resources with no gain to itself. It is no coincidence that NATO, in Kosovo, largely carried out air bombardments, so that NATO troops would face minimal risk. Anne Orford (2003) notes that this resulted in the estimated deaths of 500 Yugoslav citizens. This is counter-productive.

Further, this allows the international community to cherry-pick which regions to intervene in. Then United Nations Secretary General Kofi Annan had stated that such measures must be ‘fairly and consistently applied’ regardless of the region of nation. Realistically speaking, this is impossible. The international community was willing to engage in Kosovo but failed to take quick action in Rwanda.

Attack on a state without approval of the UN Security Council is seen to be unlawful and illegitimate. Unfortunately UN has become a spectator in the theatre of global violence. UN must convince US and her allies to focus on peace process in Syria instead of going for direct confrontation with may lead to yet another world war.