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Home EJIL Analysis United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

Published on April 18, 2017        Author: 

A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian 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 sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?

The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? The most obvious option is a so-called ‘right of humanitarian intervention’, which has long been the subject of debate. This concept would serve as an independent legal basis, absent state consent, UN Security Council authorization or justifications of self-defence, for a state (or group of states) to use military force to protect individuals from egregious breaches of human rights occurring in a third state. Superficially, this might seem to be the answer. I think it is not. In an article just published in International & Comparative Law Quarterly, I argue that international law should not recognise such a right.

My position is in response to the invitation by Sir Daniel Bethlehem in 2013 (on this very blog) to knit together various threads of international legal practice to establish a ‘tapestry argument’ in support of such right. My article examines in depth the core ‘threads’ of Sir Daniel’s tapestry argument – that is, developments since World War II in international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL). Together, these advancements point to a paradigm shift in the foundations of international law that emphasizes the security of persons and peoples instead of only states. As such, Sir Daniel’s argument provides a degree of superficial support for a right of humanitarian intervention. The key question, however, is whether this evolution in the fabric of international law has affected the nature and extent of state sovereignty to such a degree that a right of humanitarian intervention should exist to reflect and support it. However, these developments only advance the argument for humanitarian intervention so far. The evolution of IHRL, IHL and ICL is progressive and ongoing and, while the focus on individuals and their security is increasing, its ability to account for humanitarian concerns is circumscribed.

Vitally, secondary rules that might enforce or reflect these developments are weak. Instead, these rules underscore the enduring importance of state consent, peaceful dispute resolution, and ex post facto accountability. The latter notably occurs via ICL, where enforcement and accountability take place in a courtroom rather than through military means. Therefore, while individuals are seen increasingly as bearers of rights and active subjects or participants in international law, there are restrictions on the extent to which third states or other actors can protect them. The potential for international law to monitor and curb state power is limited. These secondary rules create their own tapestry of international law, one that recognizes higher priorities such as the prohibition on the use of force, the comity of nations and the proper functioning of the international order. A right of humanitarian intervention would endanger this. It simply does not ‘fit’ with existing norms. Rather, the very concept risks tearing a hole in that tapestry. Therefore, when the notion of unilateral enforcement and protection of human rights is pitted against the preservation of state sovereignty, territorial integrity, and international peace and security, the former mechanism must lose. This is the (perhaps unfortunate) response to Professor Koh and the argument that wrongfulness of military intervention might be precluded after the fact. Like Professor Lederman, I am forced to conclude that the laws on state responsibility do not provide for a current defence to a breach of the UN Charter in this way and neither should they be used to support a normative claim.

In addition, as part of assessing the role of humanitarian intervention in the international legal order, the risks and dangers of its abuse, doubts as to its efficacy in responding to humanitarian abuses, and its position in the wider context of collective security raise substantial concerns. Article 2(4) is under great strain in the post-9/11 world and further exceptions would only further endanger international peace and stability. One only needs to consider how President Putin drew on NATO’s action in Kosovo as a precedent for intervention in Ukraine, stating that it was a ‘humanitarian mission’. This shows the dangers of setting precedents of humanitarian intervention and the risk of this ‘right’ being used as a pretext for aggressive and unlawful behaviour. It should not therefore be called upon to fill an enforceability or accountability gap. Responding to a breach of one cardinal international rule with a breach of another would be a retrograde step in the development of international law.

None of this is to say that the international community should do nothing. We might rightly conclude that, in extreme circumstances, breaking the law is justified, where the aims being pursued are legitimate. While this position risks undermining the rule of law and potentially invites further such intervention, an argument can be made that it provides a ‘safety valve’ where the law provides no clear response to an extreme situation. Better that than a legally permissive precedent. This seems unsatisfactory, however. Therefore, we should look to changing the system so that, collectively, the international community may respond to these emergency situations. The issue is not that international law lacks the tools to deal with such atrocities. We only have to look back to Libya to see that the UN can and has authorised force for humanitarian purposes. Even if the long-term results in Libya have been disastrous, the problems stemmed from how the legal authority granted by the Security Council was used by states to intervene (and not used, in the case of post-conflict planning), not from the factor of the legal authorisation itself.

The current issue therefore is a lack of political will to act, not a lack of a legal toolkit. We therefore come to the elephant in the room. Arguably the better answer to the road block to ‘doing something’ is facing up to the conundrum that is the exercise of the veto power of the permanent members of the UN Security Council. As the case of Syria shows, the veto may prove fatal to preventing humanitarian disasters. Yet, rather than pointing to a need for a separate legal right humanitarian intervention, this arguably speaks more strongly in favour of institutional and procedural reform of the UN. This will allow responses to future humanitarian catastrophes to be dealt with lawfully, through the collective security framework of the UN Charter.

This issue is nothing new. It harkens back to the stalemates of the Cold War era where the UN Security Council was rendered powerless by the threat and exercise of the veto. One response is greater reliance on the UN General Assembly’s Uniting for Peace Resolution. Yet, structural and procedural reform of the Security Council would be a more effective option to allow for collective action to prevent or stop humanitarian disasters. While, unfortunately, this may not happen any time soon, a meaningful step forward would be for all members of the UN to finally commit to the Accountability, Coherence and Transparency Group Code of Conduct regarding Security Council action against genocide, crimes against humanity or war crimes. Supporters of the Code pledge ‘to support timely and decisive action by the Security Council aimed at preventing or ending the commission of genocide, crimes against humanity or war crimes’ and ‘to not vote against a credible draft resolution’ before the Security Council on timely and decisive action to end or prevent such crimes. As at 25 January 2017, 112 states are listed as supporters, including two permanent members of the Security Council (the United Kingdom and France). The United States, Russia and China are conspicuously absent. If President Trump truly wishes ‘to end the slaughter and bloodshed in Syria’ (and elsewhere), then absent pushing to amend the UN Charter and the structure of the Security Council, he could consider making this meaningful commitment to achieving that end, and call upon the remaining states to follow suit.

 

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5 Responses

  1. Kriangsak Kittichaisaree

    UNSC reform is unlikely in a foreseeable future and the said Code of Conduct for the UNSC cannot be adopted without the agreement of all the P5 and, as we all know, there are political reasons for this continued lack of agreement.

    A number of States, including the UK, have expressed the view that the US action was an appropriate/proportionate response to the alleged chemical weapons attack launched by the Syrian regime against Syrian civilians, and was intended to deter further attacks. Would this signify a shift in opinio juris away from prohibition of unilateral use of force towards internationally lawful use of force in the context of R2P? A serious danger in legitimizing it would be the fact that only militarily mighty (mightier?) States may resort to this kind of unilateral use of force without being afraid of being subjected to excessive counterattacks.

    Let’s ponder carefully the ramifications of all these. ….

  2. Alessandra Asteriti

    Well said.

  3. Nicolas Boeglin

    Dear Professor O´Meara

    Many thanks for this extremely useful note and the very valuable information provided. I note that Israel has not signed the Code pledge, and that it can be related to US reluctance to do so too.

    Concerning specifically Syria and US missile strike, one detail has to be pointed out.

    There is no evidence nor an investigation made demonstrating the direct responsability of Syrian authorities in the explosion of chemical substances last April 4. In this case, we have not “missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons”, but a military intervention based on assumptions.

    If we read the draft resolution presented by France, United Kingdom and United States last April 12 at UNSC (and vetoed by Russia), Operative Paragraph 1 says that the Security Council:
    “1. Condamne avec la plus grande fermeté l’emploi qui aurait été fait
    d’armes chimiques en République arabe syrienne” / “Condemns in the strongest terms the reported use of chemical weapons in
    the Syrian Arab Republic” /” Condena en los términos más enérgicos el presunto empleo de armas
    químicas en la República Árabe Siria”.

    I added the Spanish version due to the fact that “presunto” is closer to “alleged” that “reported”. Maybe our colleagues can find interesting wording in Russian, Arabic and Chinese official version of the draft resolution availabe here:

    http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2017/315

    Anyway, the point is that, despite political discourses heard in France, in US and UK on the direct responsability of Syria in the “chemical weapon attack”, their representatives at UNSC presented a draft resolution trying to force UNSC to condemn the use “reported” or “qui aurait été fait” of chemical weapons.

    I wonder if in case of adoption of the resolution, it wouldn´t have been a very first “premiere” in UNSC practice and I take the opportunity to ask if there is a precedent of a UNSC resolution condemning “reported” violence by a State against its own citizens you would like to share with us.

    Sincerely yours

    Nicolas Boeglin

  4. James O'Neill

    I would just add to Nicolas Boegin’s comment above that there is now very good evidence that the chemical attacks of 4 April were not committed by the Syrian government forces, and rather, very good evidence that the perpetrators were the terrorist groups occupying the village at the time. The expert Professor Ted Postol has written a number of pieces demonstrating this. If one was gong to mount an argument that a missile attack such as that perpetrated by the Americans was justified, then at the very least one would need proof as to who did it.

  5. Luis Viveros Luis Viveros

    I’ve been struggling with the intuitive ‘that was the right thing to do’ sentiment that seems to be commonplace lately. This is because it leads to unsurmountable contradictory statements where one has to chose between being a lawyer and being a sensible individual — or at least sensible to human misery. Your normative analysis aside, and I agree with it fully, the other normative framework that I’ve been struggling with in this context (and ever since Obama chose to do nothing in similar circumstances) is whether by merely voicing that ‘this is the right thing to do’ means that we would also be arguing for the law to be broken, which in turn means that following the law ‘is the wrong thing to do’. As I’ve found out working and thinking near the same people you have in the last few years (notably Roger), my own position as a lawyer is to humbly try to identify what the law is, accepting that in international law that means near-absolute deference to what states have consented to.

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