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Home EJIL Analysis The Clearly Illegal US Missile Strike in Syria

The Clearly Illegal US Missile Strike in Syria

Published on April 7, 2017        Author: 

Yesterday, the United States launched a missile strike against an airbase of the Syrian armed forces, in response to the recent chemical attack that the US claims was launched from this airbase. This is the first time that the US has directly used force against the Syrian regime. It is also the first time that its use of force in Syria is clearly illegal. Clearly, in the sense that I can’t imagine even a remotely plausible argument (let alone a persuasive one) as to why this act is not a breach of Article 2(4) of the Charter. (And arguably of US constitutional rules on the use of force – for which see Marty Lederman’s post on Just Security).

While the US use of force against ISIS on Syrian territory also implicates Article 2(4) of the Charter, the US at least has a reasonably plausible claim to collective and/or individual self-defense in that respect, even if this issue is hugely controversial. In this case, however, no self-defense claim can be made, since the Assad regime targeted its own population (assuming that the facts as alleged by the US are correct). Nor is the US publicly making such a claim. The official statement of the Pentagon quoted in Marty’s post states that ‘[t]he strike was intended to deter the regime from using chemical weapons again.’ Its purpose was therefore clearly retaliatory or deterrent, rather than defensive.

International law does not permit forcible reprisals that would breach Article 2(4), even if the purpose of the reprisal is to induce the other party to comply with its legal obligations. The US also has no Security Council authorization to do this act. Nor is the US claiming, or has ever espoused, a doctrine of humanitarian intervention (like the UK government does, for instance). And even if there was a customary humanitarian intervention exception from the prohibition on the use of force (and there isn’t), its requirements would clearly not be met in this instance. Hundreds of thousands of people have died in Syria even without the use of chemical weapons, and thousands of people will continue to die even if the Assad regime never uses such weapons again. There is, in other words, nothing legally or morally unique about the use of chemical weapons as opposed to other war crimes and crimes against humanity in Syria which did not (and will not) provoke an interventionist response.

In short, this is a situation in which the US government doesn’t have even a colourable argument that its conduct is lawful. It may, of course, decide to break the law (as it did), by thinking that the breach of the law is justified by higher moral considerations (‘illegal but legitimate,’ etc), and by thinking that under the circumstances it is unlikely to pay a high political cost for its breach. At a moral or political plane, this argument rests on an (at this time untestable) assumption that the strike will do more good than harm. But the Charter has nonetheless been broken, and at that with a rare clarity.

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Filed under: EJIL Analysis, Syria, Use of Force
 

49 Responses

  1. Jakob Cornides Jakob Cornides

    “It may, of course, decide to break the law (as it did), by thinking that the breach of the law is justified by higher moral considerations (‘illegal but legitimate,’ etc), and by thinking that under the circumstances it is unlikely to pay a high political cost for its breach.”

    Yes. But what is much less clear is the benefit the US expects to draw from this act. Low cost but no benefit still makes a bad deal.

  2. Muhammad Ali

    I believe that to the extent the US recognizes the rebel Syrian National Council as the legitimate representative of the Syrian people in the ongoing Syrian civil war (see the US Secretary of State’s statement on 5th of December 2011), an ‘arguable’ case in favor of the American strikes and against the Russian strikes can be made. Further, a claim to statehood was also made by ISIS. This claim, however, remained unrecognized (the Taliban regime provides a closer, but less extreme, analogy). To the extent that Assad regime is not recognized by the US, there is no qualitative difference, from the American perspective, between bombing either party. Moreover, to the extent that humanitarian intervention relies on official declarations surrounding one’s motives and intention, there is no reason why the US administration cannot put the attack in such terms (the president of the US already termed the acts as ‘a disgrace to humanity’). A pertinent of words in official terms can clearly change its legal status. However, the act itself, its political and social effects, and its contextual dynamic remains unaltered. I believe that in the midst of a political crisis, things, in a legal sense, remain hazy. Perhaps, international law can clearly be enforced, when the scenery is clear enough. However, till then, it is politics that would continue to have an upper hand.

  3. Mary Ellen O'Connell Mary Ellen O'Connell

    Dear Marko,

    Yes, President Trump has ordered reprisal attacks that clearly unlawful under the Charter. Recall, too, that the Declaration on Friendly Relations includes this statement: “States have a duty to refrain from acts of reprisal involving the use of force.”

    A consistent position by international lawyers on this case should help to re-establish the importance of the prohibition on the use of force.

    Respect for the ban on chemical weapons cannot be purchased with the violation of the United Nations Charter.

  4. Omar Mostafa

    Thank you for the article! It is clear that the intervention does not fall within any of the exceptions of the UN charter. There are two assumptions on customary right for humanitarian intervention. If we first assume that the right exists, then I do not see why the recent attack dos not fit within its scope. The statement of the president and other members of the government, even though it refers to “deterring the government form using chemical weapons”, it also refers to the overall goal of “protection of civilians” and “barbaric attacks on civilians”. The use of chemical weapons has only triggered a long overdue intervention to protect human rights.
    if we assume that there is no right of humanitarian intervention pre-exists, then this act of intervention could be the start of setting custom. The process is obviously long and will have to fulfill the requirements of “usage” and “Opinio Juris Seu Necessitates”. The intervention has already been supported by Saudia Arabia and the UK, but it has also been opposed by the target state, Russia, and Iran.
    I personally believe the intervention , even though not legal yet, could be the first step of setting a customary international law right of unilateral humanitarian intervention.

  5. Omar Naqib

    For counter-arguments it is worth revisiting Harold Koh’s post on whether there was or should have been a right of intervention during the 2013 chemical attacks in Syria.

    https://www.ejiltalk.org/syria-and-the-law-of-humanitarian-intervention-part-ii-international-law-and-the-way-forward/

  6. Marko Milanovic Marko Milanovic

    With regard to some of the comments which describe the strike as an exercise of an emerging/exiting right to humanitarian intervention as an exception to Art 2(4):
    (1) The US government has never claimed such a right existed.
    (2) It has not done so now.
    (3) Without an expression of opinio juris in that regard, the US practice cannot count for the formation of a customary rule.
    (4) Even if this rule already existed, the strikes are manifestly not an example of humanitarian intervention, because they do nothing to alleviate the humanitarian crisis that would form the basis of the intervention. This is a one-off missile strike. There is no indication that this is the start of a larger campaign that would put a stop to all (or most) of the atrocities in Syria.

  7. Omar Mostafa

    With regard to the discussion on “opinio Juris”.

    The clearest evidence of opinio juris is an express statement of a state asserting its legal conviction that a certain rule is obligatory .But states do not often express their legal convictions. However, the practice of states can simply manifest both elements of usage and opinio juris .
    In fact, “the presence of the opinio juris of states can be tested by induction based on the analysis of a sufficiently extensive and convincing practice” .Thus, state practice plays an important evidential role.
    The characterisation of opinio juris will proceed by means of presumptions. The presumption provides that “If a state acts in in a specific way, the state will be regarded to be acting with the belief that it is entitled to act and that its actions conform with international law” .When the practice is sufficiently dense, it will not be necessary to demonstrate separately the existence of opinio juris.

  8. Veronika Bilkova Veronika Bilkova

    Thanks for the post, Marko.
    From my perspective, the US unilateral attack is at least as big a threat to the international (legal) order as the chemical attack itself. It also violates a core norm (if not the core norm) of this order. Yet, it goes beyond that, implying a direct challenge to this norm.
    No one argues that the use of chemical weapons is, or should be, lawful. The chemical attack has been condemned by everyone, including those who allegedly (and I recall, we still only have allegations) carried out the attack.
    The armed attack against Syria, on the contrary, though in clear violation of 2/4, has been backed up by quite a few States. In the scholarly discussion (including the debate here) several persons have expressed the view that a new rule of customary rule is emerging.
    A rule, which, if I understand the situation correctly, would entail that any State which has a suspicion that another State has engaged in an inhuman act (or has put “the vital national security interest” of the former at stake, to quote the official US position), may immediately and unilaterally use force against the latter State. No need to wait for the results of an investigation, no need in fact to have an investigation at all. No need also to consult the Security Council or anyone else.
    This sounds to me as an “original” combination of the doctrines of humanitarian intervention, pre-emptive (preventive?) self-defence and of armed counter-measures, devoid of any possible limitations that used to be part of these doctrines (last resort, collective assessment etc.).
    I wonder whether under any foreseeable circumstances, such a “rule” could do more good than harm.

  9. Omar Mostafa

    With regards of manifestation of human rights in the intervention :

    The definition adopted for Humanitarian Intervention
    provides that the intervention must be aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizenz.This definition creates few issues :

    1) the intervention must be limited to violations of legal obligations due to mankind as a whole .These are obligations Erga Omnes arising from contemporary international law .The obligations are laid down in Article 5 of the Statute of the International Criminal Court(ICC). The Article limits the jurisdiction of the court to the “most serious crimes of concern to the international community as a whole” which includes Genocide, Crimes against Humanity, and War Crimes.

    2) The intervention must be genuinely based on humanitarian grounds . Given the political reality, it is impossible to demand 100% purity of humanitarian motives. Therefore, it is enough that the primary purpose must be humanitarian.

    3) Moreover the intervention must have “the purpose of preventing or putting an end to gross violations of human rights” . Is it not possible to argue that the current intervention will prevent/stop the Syrian regime from further use of chemical weapons?

    I perosnally believe we will have to wait and examine the extent/scope of the operations.

  10. Rui Marques Pinto

    To be lawfull under United Nation charter what should be the position of USA when the Assad regime always have used Chemical against their own population?

  11. Terry Washington

    Was the air strike launched earlier today against Syria illegal? Maybe, but who’s Assad going to complain to- the ICC(International Criminal Court)? And Putin’s response made me laugh- fresh from his annexation of Crimea and mischeif aming in the Ukraine his pontifications about the sanctity of international law make me laugh!

  12. Marko Milanovic Marko Milanovic

    Veronika, I fully agree.

    Rui, the only Charter-compliant option would be an authorization to use force by the Security Council, which of course would not be forthcoming here because (at least) of the Russian veto.

    As for humanitarian intervention, I would point interested readers to Dapo’s very clear and more detailed post on this from a few years ago (sadly, this whole situation is very much deja vu): https://www.ejiltalk.org/humanitarian-intervention-responsibility-to-protect-and-the-legality-of-military-action-in-syria/

  13. Dear Marko, thanks for the analysis. I agree in the result, although I seriously doubt whether there is something like a clear case in international law, a field which is constantly evolving and where the law-makers more or less overlap with those subject to the law. This case is no exception in this respect. While humanitarian intervention does not work as a justification for the reasons you mentioned, I think it would be important to distinguish retaliation from deterrence, the latter being a preventive measure. Judging by the statements of the US government, the strike was to prevent further attacks by Syria. Also, this is yet another case where the security council was called upon to take action faced with a clear violation of the laws of war, and failed to do so. This somehow recalls “uniting for peace”. Even though there are notable differences (no GA resolution), we have de-facto endorsements, or at least statements of no objection from states like France or Germany. Again, although I agree with you that as things stand, the US attack is a violation of IL, it deserves consideration whether there is a new exception developing here.

  14. Marko Milanovic Marko Milanovic

    Thanks Matthias. As a general matter, in international law and domestic law both there are easy cases and hard cases. This is not a hard case. I see no issue of lack of clarity here. Just as one can say clearly that (for example) the UN Security Council has 15 members, and not 13 or 14, so one can say that this particular use of force is clearly unlawful. That a number of states (including some nice ones) found it to be politically expeditious, useful or appropriate is a different matter. I note that – from what I have seen – none of these states articulated any clear legal position or explanation of the legal basis of the strikes.

    Coming to your last point – what exactly do you think is the possible new exception that might be developing here, or whose development we need to seriously consider?

  15. Itzchak Kornfeld, Ph.D.

    Dear Marko:

    Thanks ever so much for your thoughts. Initially, I unequivocally agree with both Muhammad Ali and Mary Ellen O’Connell’s comments above.

    I also wish to point out that Art. 2(4) ends with the following: “or in any other manner inconsistent with the purposes of the United Nations.” Similarly, 2(5)5, states that “All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.”

    As you are aware the security council issued a number of resolutions condemning Syria’s use of chemical weapons and Syria’s humanitarian crisis or crises. See e.g., S/RES/2118 (2013, Adopted by the Security Council at its 7038th meeting, on 27 September 2013 ),* which declares:

    “Recalling that the Syrian Arab Republic on 22 November 1968 acceded to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925,

    Noting that on 14 September 2013, the Syrian Arab Republic deposited with the Secretary-General its instrument of accession to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Convention) and declared that it shall comply
    with its stipulations and observe them faithfully and sincerely, applying the Convention provisionally pending its entry into force for the Syrian Arab Republic . . .”

    Given that the Syrian Arab Republic has violated both its obligations under the previously mentioned Convention and security council resolutions, the USA, as both a UN member and a P-5 member, can be viewed as thus-far, taking actions to enforce the UNSC’s resolutions, as per Art. 2(4) and 2(5)5, i.e., “or in any other manner inconsistent with the purposes of the United Nations” and “All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter.”

    The foregoing, appears to support the USA’s actions of early this morning.

    * See also, http://www.securitycouncilreport.org/un-documents/syria.

  16. Stephan Wittich

    The clearest case to me why this strike cannot be an example of humanitarian intervention is that the US argued that it was in its ‘vital national security interest’. Now that by definition rules out a possible case of humanitarian intervention.
    What worries me though are the partly endorsing reactions by a number of Western countries and the reactions by governments who at least consider the strikes as ‘understandable’ (eg UK SoD, Australia, France, Germany …).

  17. Robin Bankel

    Omar. In my humble opinion, with respect to the issues you raise, I believe that it is important to remember that the combination of state practice and opinio juris implies, with regard to the emergence (let alone the establishment) of customary int’l law, not only that a state presumes it is morally and exclusively justified to use force, but that all states have the legal right to use identical means of response under identical circumstances (general practice accepted as law).From what I have seen, there has been no expression supporting anything of the sort in the US position, nor would I, if I’m to speculate, expect to see it, given its presumed reluctance to accord such powers unto other subjects.

  18. Veronika Bilkova Veronika Bilkova

    I agree, Marko, this is an easy case – at least from the IL point of view. It is also well visible in the argumentation of States. Those condemning the attack use legal language (unlawful use of force, act of aggression, violation of IL). Those supporting the attack use political language (vital interests of security, we have understanding for you, etc.). So even those States which support the US on the political front seem to realize that this attack is simply impossible to justify on the legal grounds, unless they were ready to opt for a purely instrumental, forced interpretation of the Charter that could easily strike back (and that could effectively entail the destruction of the Charter system).

  19. Marko Milanovic Marko Milanovic

    Itzchak, I think it is reasonably clear that Syria is in violation of numerous UNSC resolutions. But what the consequence of this violation should be is for the Security Council to determine. In particular, individual member states are not permitted to use force under the Charter because in their view they are attempting to induce another state to comply with UNSC resolutions. The decision to use force is for the Council alone. Otherwise any powerful state could go around the world saying that it was enforcing UNSC decisions, as that state saw them.

    Incidentally, even with regard to the implied UNSC authorization/revival arguments used by the US and the UK to justify their use of force against Iraq in 2003, the crucial point there was not simply that Iraq breached UNSC resolutions, but that those preceding resolutions authorized the use of force under Chapter VII of the Charter, and that the material breach ‘revived’ that earlier authority. In the case of Syria, however, the Council never authorized the use of force, expressly or implicitly.

  20. I agree that this was a clear case of unauthorized use of force under Charter Article 2(4), and US Ambassador to the UN Nikki Haley gave international law justification short shrift when she claimed in her UN speech after the chemical attack: “When the United Nations consistently fails in its duty to act collectively, there are times in the life of states that we are compelled to take our own action.”

    Could there be any such norm of ‘enforcement’ as an exception to Article 2(4) that ever ripened in international law? I have problems with accepting this constitutionally unauthorized Executive unilateralism as somehow creating a lawful carve out from the permissible uses of force under the Charter, but Ashley Deeks at Lawfare draws parallels between this missile strike in Syria and the Kosovo intervention as somehow acts of enforcement of pre-existing international law (e.g. international human rights and humanitarian law). https://www.lawfareblog.com/how-does-syria-situation-stack-thefactors-justified-intervention-kosovo

    That the missile strike was even ordered during the Trump-Xi summit also carries its own message (unintended or not) about this new era of US unilateralism. It does not appear to me that the administration is interested in providing international law justification, other than vague reference to UNSC resolutions that condemn the situation in Syria but which have not authorized the use of force therein.

  21. Joseph weiler

    Dear Marko,

    It might be going a tad too far by suggesting so categorically that no colorable claim may exist. Not even pastel? Here is not an argument for legality but consideration of what I think may be taken as at least a colorable claim. I would need more time for reflection to reach as categorical a conclusion as you do.

    I think there is a colorable claim that there is a civil war in Syria, one in which the government has even lost effective control over large swaths of territory.

    I think it is colorarle that in these situations IL imposes a blanket duty of no unilateral intervention even at the invitation of one of the parties to the civil war including the no-longer effective government.

    I think that there is a colorable claim that if one of the parties to a civil war invites intervention by an outside power and this power intervenes (arguably illegally) a right of counter intervention is triggered if another party issues such an invitation too.

    Russia is there at the invitation of the regime. The US (and many other govts) have both publicly and privately been begged, cajoled and more by more than one of the other parties to help them – amounting in my view to as clear an invitation one is likely to find in these circumstances. Indeed these parties have expressed public disappointment at what in their eyes is their abandonment.

    Can one reject this line of argument as entirely without merit? All the more so that given the circumstances the SG is likely to be frozen.

    The justification that Trump gave in his press conference should not be taken as the formal legal justification-(lets wait for the State Department Legal Advisor to pronounce on that) but as the motivation for exercising a right of counter intervention. After all, if there is any merit in this argument, it establishes a right – which will have existed for some time now – and not a duty. Public opinion would more plausibly be interested in understanding ‘Why now? rather than a legal disquisition. I can also see a political reason in going gently with this explanation so as not to inflame even further relations with Russia and also not to distract attention from the moral motivation.

    Once again, I only put this as an argument to consider. Snap conclusions are not necessarily the best way to address these issues.

  22. Hannah Woolaver

    I’m in complete agreement with the views expressed by Marko, Veronika, and Mary-Ellen. Of course this is a clear case of violation of Article 2(4)of the UN Charter. And of course the preceding violation of the Chemical Weapons Convention, while heinous, has no bearing on the legality of Trump’s unilateral strike. That the modern law on the use of force disallows forcible reprisals to punish prior breaches of international law is one of the very basic rules that we all teach our students. Perhaps international lawyers will once again have an easier time condemning clear US violations of Article 2(4) now that there is a less charming inhabitant of the office of President than Obama.

  23. Marko Milanovic Marko Milanovic

    Dear Joseph,

    Many thanks for your comment. Obviously, with the passage of time we’ll be able to have a fuller appreciation of the events. As things stand today however, I stand by my argument. In particular: (1) not only is the alleged rule prohibiting interventions in civil wars hotly contested, and most likely non-existent (we’ve discussed it recently here: https://www.ejiltalk.org/the-airstrikes-against-islamic-state-in-iraq-and-the-alleged-prohibition-on-military-assistance-to-governments-in-civil-wars/ ); (2) not only is the alleged right of counter-intervention against a government even more contested and unsupported by the Charter or any legally binding instrument; (3) not only has the US (to my knowledge) never invoked either of these two rules in the recent past, esp. with regard to Syria; but (4) we have a basic factual problem with your argument. It was the US, other Western allies, and numerous states in the region who first intervened in Syria in support of the rebels opposing Assad’s regime. It was only later that Russia intervened in support of Assad. So if anyone is the counter-intervenor here, it is Russia, and there can be no counter-counter-intervention. At least not lawfully so. Nor have the US and any of its allies ever made this argument to justify their intervention (forcible or non-forcible) in Syria.

  24. Joshua

    Thanks for your prompt analysis. I would say, do politicians really care about International legal order? Maybe later, US government will color his actions with international legal language, as we can see from 2001’s attack. however, so what?

    We international lawyers do really think about what we are going through today.

  25. Matthias Goldmann

    Thanks, Marko, for the response. You could not have chosen a better example for an easy case than the rule that the SC has 15 members. Obviously, the present case by far exceeds the complexity of that rule, as the commrnts show. This case requires a complex assessment of precedents, acts, reactions etc. And you know as much as me that political opportunity and opinio juris are not mutually exclusive. In fact, I think they often coincide. What rule will come out of that situation, if any, I do not know. I would only caution against the unquestioned assumption that everything will always remain as it is.

  26. Dear Marko,

    Thank you for your trenchant analysis. And thanks to all for the high quality of posts here.

    Statements by the president and his administration condemning Assad’s chemical attack on civilians must not be taken at face value.

    Trump’s statements pitying the Syrian victims of the chemical attack, especially the children, stand in jarring contrast to the scores of incendiary statements he has made about Syrian people throughout the presidential campaign and indeed as president. He has repeatedly vilified Syrians, particularly Syrian refugees. For example, he called Syrian refugees in the United States a Trojan Horse. Indeed, his demonization of Syrian people—not the regime, but the people—has been a cornerstone of his campaign and young presidency.

    To comprehend his animosity toward the Syrian people, it is necessary to understand the details of his executive orders barring all refugees and all nationals of designated countries, including Syria.

    Both his January 27 executive order (“EO”) and the March 6 EO (a revamp of the January 27 predecessor) impose a 120-day halt to the U.S. refugee resettlement program. This applies to any refugee of any nationality. A separate provision imposes a 90-day suspension of entry on nearly all nationals (whether refugees or not) of the following nationalities: Syrian, Iranian, Yemeni, Somali, Sudanese, Libyan.

    Critically, little-discussed provisions of the March 6 EO (found throughout Section 2) prohibit any national of any designated country from receiving any benefit under the U.S. Immigration and Nationality Act (INA) unless the country of the individual’s nationality provides the United States government with unspecified “information” about that individual. (INA benefits include anything from entry to the United States to naturalization.)

    There are no exceptions or waivers from the foreign country information provisions. The general waiver found in the January 27 version has been removed from the March 6 version of the EO, whose only waivers are limited to the 90-day suspension of entry provision. This means the foreign country information provisions are even applicable to lawful permanent residents of the United States who are nationals of designated countries.

    Plainly, the provisions are intended to effectively permanently ban from the United States all Syrians, including Syrian refugees. (The ban would likewise be permanent vis-à-vis all nationals of other designated countries.) The U.S. presently has no diplomatic relations with Syria. There is no cause to believe that the Assad regime would provide accurate information about its nationals seeking refuge in the United States. For the United States so much as to request from a foreign government information about individuals seeking protection from that government—let alone to require that an adjudication be based on that information—is a grave violation of U.S. and international law.

    For the meantime, a U.S. District Court in Hawai’i has enjoined significant portions of the March 6 EO. Litigation will continue on numerous fronts. The government has argued that the mere assertion of “national security” renders the president’s executive actions on immigration unreviewable by a court of law. Thus far, courts have not accepted that argument. The perfect mismatch of the nationalities of terrorists in the U.S. and those singled out in the EO has of course undermined the government’s assertion of a national security impetus.

    Like the government’s assertion of “national security” in defense of the president’s EO barring all Syrians from the United States, we ought not take this administration’s stated rationale for military action at face value. The Syrian children killed in the chemical attack are the very same children this U.S. president has sought to bar from entering the United States to seek safety. To accept his administration’s statements expressing concern for those innocents strains credulity.

  27. Will Worster

    I agree that this case is fairly clear. And I wonder if is so clear to be a “manifest violation of the Charter”, such that this “bombardment” would amount to an act of aggression? Obviously no ICC jurisdiction (although Syria is still signatory, isn’t it?). Kevin Jon Heller argued over at opinio juris that the chemical weapons use by Syria would not be a crime under the Rome Statute (are we sure we really agree with this?), although of course attacking civilians would be. Interesting then that the US strike might be a crime but the use of chemical weapons – crossing the red line – by Syria would not. I don’t think I have seen that analysis in any of the comments from world leaders that seem to view the entire affair as one in which the US’ actions were “understandable”. (See e.g. the Netherlands reaction today)

  28. Ashish Kumar

    Creepy premonitions happening of a looming next WW, as US air-bombs Syria- an ally of Russia, following Assad being accused of chemical-attacking civilians in Idlib! Chemical weapons are banned WMDs, the use of which must invite global wrath and swift response from the international community! Use of such banned weapons, that too on children, is a horrific crime against humanity, the perpetrators of which must be held to justice. Yet without verifying ‘who-dun-it’, as the rebels opposed to dictator Assad could well have done it too, today’s US attack starkly re-matches in their violation of International Law with WMD-pretext used in the run up to Iraq war in 2003. And with deranged Donald as the Global Police-Maniac and Putin-the peevish master of Russia, the war sirens echo so menacingly…!

  29. […] MILANOVIC can think of no remotely plausible argument how Trump’s air strike in Syria after the poison gas massacre…, neither can MARTY LEDERMAN under US constitutional law, whereas HAROLD KOH’s imagination, […]

  30. […] to the U.S. strikes against Syria. My guess is that most international lawyers will agree with Marko Milanovic that the strikes were unlawful. Article 2(4) of the Charter prohibits the use of force by one state […]

  31. It’s incorrect to state that the Security Council never authorized the use of force.

    Under Security Council Resolution 2118.

    21. Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter;

  32. […] al respecto al análisis del Profesor Marko Milanovic (Universidad de Nottingham) titulado “The Clearly Illegal US Missile Strike in Syria” publicado en el […]

  33. Heiko

    Civil war does not change a state until it is won by some revolutionary. Insofar Assad ist still in power everywhere in Syria. The president of the Yemen was even in power according to common wisdom when he had fled the country for much more than the one day of de Gaulle v. Cohn-Bendid in Wiesbaden. Who is in power in the Ukraine?

    The swiss newspaper NZZ had a channel via some refugee and smartphone to the city of gas. Half of the family dead und so on. How terrible. Everybody has or had relatives in Aleppo and Mosul. I had such a channel to the first “liberated” city somewhere in the south. The refugee with the then still Nokia was from that town. And he was very happy that “experienced streetfighters from Iraq and Afghanistan” had arrived. They killed all policemen.

    In Youtube you can see videos with Nasser in Syria. You see them in open cabriolets driving through cities. That means something, even when the streets were full of secret policemen or whatever. During father Assad there was a time when no official could be on the street without fear to be shot. Until father Assad made a little massacre in one city. Instant peace. Until those “experienced streetfighters” did enter the scene. This was one of the three crimes of war in Robert von Mohl theory of the international community: To let barbars fight for you. A McMasterpiece.

    I dont think that gas can play any role. If you see the definition of a grave breach in Art. 50 of the first Geneva convention: He did not do it, if he did it, maybe, maybe not, Obama was it, for fun. What should he do? Undiscriminate does not convince me when the “very survival” of the state is concerned. It is not worse than a nuclear bomb. Dead is dead and 200 are more than 80. A crime against humanity that was common in Northafrika also in the 20s after WWI. The French were allowed to do it. The proliferation of chemical weapons. What a kitsch. There cannot be very much anymore. There is no factory. Weapons of mass destruction. There is even a conspiracy theory, that would fit very well into the image, if it wouldnt be the very survival, amongst Turks who are critical of Erdogan, that he gave this gas in 2013 to some rebels.

    I have no doubt that the Taliban were the very ordinary effectiv gouvernement of Afghanistan, whoever had recognised them or not. All states are equal.

  34. Heiko

    Le Monde once had the headline: a new state is born, the state of ISIS. I have the impression that such theories follow ones wishes. Everybody gets his Northzypern and the Donald will get his oil.

  35. Heiko

    Isnt that some sort of Putinisation of the West?

  36. Olalekan Yussuf

    Thanks Marko for the simple but erudite analysis.

    The questions here are not convoluted as some of the arguments suggest (Joseph Weiler’s propositions tend to introduce a paradigm shifts on intervention and counter-intervention which I don’t think underpin the recent attack). The question is whether the US strike is not illegal under international law- the answer is obvious and simple as Marko’s UNSC number analogy. Clothing the unilateral use of force as emerging customary international law on humanitarian intervention is setting a grave precedent which is bound to hurt the humanity. A Russia/US unilateral use of force in whatever disguise can only be a recipes for another WW or an horrific hot war.

  37. Heiko

    He could shoot somebody in 5th Avenue…

  38. Veronika Bilkova Veronika Bilkova

    Ad)JosephWang
    I am not sure Resolution 2118, or any other SC resolution, could be interpreted in such a way as to sanction (authorise) the use of force.
    Par. 21 of res. 2118 is clearly not such an authorisation. It is a warning by the SC that non-compliance with the resolution will have consequences under Chapter VII. What these consequences will be and whether they will involve the authorisation of the use of force is not specified. And it is up to the SC, not individual members of the UN, to make such specification.
    We may discuss whether by “deciding, in the event of non-compliance with this resolution, to impose measures under Chapter VII”, the SC creates an obligation for itself to effectively impose new measures if instances of non-compliance arise. I am not, however, sure how it could be argued that this provision authorises the use of force in Syria.

  39. Omar Hammady

    1. Re- Opinio juris: It is good to remember that, regarding a peremptory norm of international law, ALL states need to adopt the same claimed position in order for the norm to be changed.

    2. As to the right of intervention upon invitation from opposition, and although intervening Arab states have adopted this argument at some point, Nicaragua case is still good law: ‘‘it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition’ (Nicaragua Case para. 246). This was also a case where intervention was supposedly taking place ”in support of an internal opposition in another State, whose cause appeared particularly worthy by reason of the political and moral values with which it was identified (para. 206).

  40. Christoph Wahlicht

    While I agree with Marko Milanovic and most of the other commentators here and elswhere, that the US air strikes clearly violate international law http://www.badische-zeitung.de/deutschland-1/wir-wurden-kurz-vorher-unterrichtet–135459630.html and at least one other German news outlet are reporting, that a spokes person of the German Foreign Office has refered to UNSC Res. 2118 of 2013 as a possible justification. While others already convincingly argued against this position it will be interesting to watch, if they actually follows up on this statement.

  41. Jordan Paust

    For points that Article 2(4) expressly prohibits only three types of force and that collective self-defense and self-determination assistance can pertain, see my response in Monica’s next post.

  42. Jordan Paust

    See http://ssrn.com/abstract=2787196
    R2P and Protective Intervention.

  43. […] al respecto al análisis del Profesor Marko Milanovic (Universidad de Nottingham) titulado “The Clearly Illegal US Missile Strike in Syria” publicado en el […]

  44. […] the incontrovertible illegality of these actions. There are excellent posts available here and here on why these missile strikes against the Assad regime were illegal so I do not wish to add […]

  45. […] it acted in self-defense. So the use of force was contrary to the Charter and thus illegal. Q.E.D. Marko Milanovic’s post is maybe […]

  46. Luca Pasquet

    Very well written. I completely agree. International lawyers should be clear on this. The intervention in question is clearly illegal. Nothing to add.

  47. […] same time, if states that use such force do not provide a legal justification for their actions (as is true here of the US), and if other states fail to support the action as legal or condemn it as illegal (as is true here […]

  48. […] airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a […]

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