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Unlawful Reprisals to the Rescue against Chemical Attacks?

Published on April 12, 2018        Author: 
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Donald Trump has threatened Syria with a ‘big price to pay’ for an alleged chemical attack on 7 April in a Damascus suburb. Last year, in similar circumstances, Trump authorized an attack of 59 Tomahawk missiles that reportedly killed 9, including 4 children. The French and German governments responded with a joint press release finding it a ‘just and proportionate’ response. They did not say ‘lawful’–nor could they.

Armed reprisals are uses of military force that follow an incident, usually to punish or in retaliation or revenge and which do not fit the exception to the prohibition on the use of force for self-defence. See the same conclusion here  and here. Reprisals need Security Council authorization to be lawful. The Security Council has never authorized a reprisal and will not in the case of Syria.

In 1970, the General Assembly stated clearly in its Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States that among the fundamental rights and duties of states, is the ‘duty to refrain from acts of reprisal involving the use of force’ against other States. The International Court of Justice found in its 1994 advisory opinion on the Legality of Threat or Use of Nuclear Weapons that ‘armed reprisals in time of peace […] are considered to be unlawful.’ In the Oil Platforms case, it further held that US attacks on Iranian sites were not lawful acts of self-defense because of their retaliatory nature.

Thus, unauthorized reprisals are always unlawful, and, indeed, as Derek Bowett wrote in a 1972 article in the American Journal of International Law: ‘Few propositions about international law have enjoyed more support than the proposition that, under the Charter of the United Nations, the use of force by way of reprisals is illegal.’ Nevertheless, Bowett preceded to construct an argument to reverse the ‘proposition’ eight years after the UK was condemned by the Security Council in Resolution 188 of 1964 for bombing Fort Harib in Yemen. The Council found the bombing an unlawful reprisal and ‘incompatible with the purposes and principles of the United Nations.’ (It is noteworthy and to the UK’s credit that it did not veto the resolution.)

Bowett had undertaken a similar effort at ex post facto justification when he came up with the ‘Caroline Doctrine’ to attempt to justify the force used in the 1956 Suez Crisis by the UK, France, and Israel. In reaction to the wide condemnation of the UK, he proposed a re-interpretation of UN Charter Article 51 on the right of self-defence reading out ‘if an armed attack occurs’ to replace it with a right to use force in cases of necessity that are ‘instant, overwhelming, leaving no choice of means, and no moment of deliberation’. Following 9/11 and the US declaration of a ‘war on terror’, the British government referenced Bowett’s argument as a better legal basis for using force than America’s assertion of global war. While perhaps an improvement on the ‘war on terror’, Bowett’s Caroline argument nevertheless conflicts with the Charter, a fact that is being underscored increasingly by scholars today.

Bowett’s arguments on reprisals have had and are likely to have far less influence. First, the US seems to have lost interest in providing legal justifications. None were offered in April 2017, and the new US National Security Adviser John Bolton published an opinion during the Kosovo crisis concluding that international law is an ‘academic sham’. Why bother making a weak argument where none will do?

This point in Washington has been reached after a long, steady decline in US respect for international law restrictions on the US of force. During the Cold War, the US tended to manipulate the facts, rather than the law. Respecting reprisals, the US tried to justify retaliatory attacks on Libya in 1986 as self-defence. Ronald Reagan ordered air attacks on Libyan military sites in Tripoli and Benghazi ten days after a terrorist bombing of a disco in Berlin. The U.S. said it had evidence that Libya was planning more acts of terrorism. On this basis, US government lawyers and scholars argued the bombing was lawful as self-defense under Article 51, though the facts fell far short of meeting the legal requirements.  The Berlin incident did not amount to a significant armed attack per the standard set out in the Nicaragua case.  Evidence of the necessity for military action was also lacking. Whatever vague evidence the U.S. had amounted to criminal plots, not armed attacks. The UN General Assembly condemned the Tripoli operation, the US not having the grace to abstain from using its veto in the Security Council.

With the end of the Cold War, US attempts at legal justifications began to noticeably dwindle. President Bill Clinton ordered unlawful armed reprisals on several occasions.  In 1993, he ordered an attack on government buildings in Baghdad in response to an alleged attempt to assassinate former President George H.W. Bush. In 1996, when Iraqi troops moved against Kurdish separatists in northern Iraq, Clinton ordered attacks in southern Iraq. The US and UK actually tried to argue that these attacks on Iran were lawful under the UN Security Council resolutions that had been adopted against Iraq following its invasion of Kuwait in 1990. (Yes, the same argument the two States tried in 2003 when invading Iraq.)  France and Russia disagreed in 1996 that resolutions connected with Kuwait’s liberation could justify the use of force years later for very different purposes. Even if the US and UK did have some sort of Security Council authorization, bombing southern Iraq to retaliate for action against Kurds in the north violated the principles of necessity and proportionality.

Clinton also carried out unlawful reprisals following terrorist attacks on the United States embassies in East Africa. He ordered missile attacks on Sudan and Afghanistan, which were a significant step beyond Reagan’s attack on Libya for state-sponsored terrorism. The US said the target in Sudan was a chemical-weapons related facility producing inputs for VX nerve gas. Many States condemned the air strike when the site turned out to have no connection with chemical weapons.

With 9/11, US justifications for using force became ever more attenuated variations on self-defence. In 2013, when Barack Obama sought Congressional authorization to use force in Syria following a use of chemical weapons, he asserted that a military strike was somehow linked to US national security. The Republican-controlled Congress refused to give him authorization, not because of the flimsy legal basis but because Republicans did not wish to give Obama a win.

At least Trump is no hypocrite. He offers no legal basis for attacking Syria other than to enforce the law in the case of a war crime. In other words, he plans to violate the prohibition on the use of force to send the message of how important it is to comply with the law on chemical weapons. And he is doing so with relish as he tweets, ‘Get ready Russia, because [the missiles] will be coming, nice and new and “smart!”’ 

French President Macron has actually chosen to encourage Trump and Britain’s Prime Minister May is still considering options. There should, however, be only one option for States committed to the rule of law: Use the means available in international law to seek accountability for law violations. It is a dangerous moment in history to do anything else.

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24 Responses

  1. Carmen Madgearu

    Thank you for this analysis and for the informative review of US history of manipulating facts and law. I would only like to make a remark on your conclusion that “[Trump] offers no legal basis for attacking Syria other than to enforce the law in the case of a war crime”. It sounds like it takes for granted the narrative Trump and the US establishment is selling worldwide that 1) there was a chemical attack in Douma, AND 2) that Syria is responsible for that. In light of the US and its allies proven record of launching false allegations against their targeted enemies, I would advise more caution on believing their justifications. Especially as lawyers, we should be more reluctant to believe such allegations until facts and attribution of responsibility for such facts is firmly established according to an adversarial, not inquisitorial procedure. A proper procedure must be used to prove that the law on chemical weapons was breached the other day in Douma, and if so, WHO has used those weapons.
    So I would rephrase the wording of your conclusione, by saying that “[Trump] offers no legal basis for attacking Syria other than to enforce the law in the case of an ALLEGED war crime”.

  2. If one takes seriously the law enforcement argument, maybe we can see the formation of a new kind of reprisal, closer to Belligerent Reprisal. I wrote a piece about it when an attack was considered in 2013, here: https://armscontrollaw.com/2013/09/02/2044/

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

    Dear Carmen,

    Yes, I agree that the ‘alleged’ nature of the chemical attack cannot be restated often enough, thanks for emphasizing this. I am glad we agree on the main point: Reprisals are unlawful regardless of whether the facts are as Mr. Trump seems to believe them to be or not.

    Thanks,

    Mary Ellen

  4. Susan Kemp Susan Kemp

    This is an excellent post and will hopefully encourage the mainstream media to consider this aspect of international law in its Syria coverage.

    As to the UNSC veto – “the US not having the grace to abstain from using its veto in the Security Council” – and the likely positions of the UK and France now, the UK and France also used their veto powers alongside the US to avoid UNSC condemnation of the reprisals in 1986 (21 April).

  5. Mary Ellen O'Connell Mary Ellen O'Connell

    Dear Carmen,

    I agree with your emphasis on the attacks being ‘alleged’ and use that word at the start of the piece. And I did consider using it again at the end, but the point there is that regardless of what Pres. Trump thinks respecting the use of chemical weapons in Syria, he has no legal right under international law to use military force in response. Glad we agree on that point, too.

    Thanks for your comment!

    Mary Ellen

  6. Mary Ellen O'Connell Mary Ellen O'Connell

    Dear Liron,

    I think it is important to discuss the controversial topic of belligerent reprisals, too. Indeed, most of us believe the jus in bello today forbids belligerent reprisals. A fortiori, how can they be tolerated under the jus ad bellum?

    We have means of enforcing important norms of international law such as the prohibition on the use of chemical weapons that involve individuality accountability respecting actual perpetrators. Missile attacks will kill people with no link to any law violation. They will destroy property and devastate the environment. Military force is the bluntest of human tools and is thus highly and rightly restricted under the Charter.

    National leaders who think the only way to uphold international norms is through violating equally important ones are, I fear, not being well advised respecting international law.

    Thanks

  7. Constantine Antonopoulos

    Thank you for this excellent post. A possible response to the alleged use of chemical weapons in Syria could be the activation of the Uniting for Peace procedure [GA Res. 377 (V)]in the face of a deadlocked SC. It is question-begging and a source of concern that States prefer controversial or manifestly unlawful unilateral action (Kosovo 1999, Iraq 2003 and Syria 2017), something which you point out very succintly in your post.

  8. Mary Ellen O'Connell Mary Ellen O'Connell

    Dear Constantine,

    The United for Peace resolution could be very helpful in this case–not to authorize a use of force, which the General Assembly has no power to do, but to call together the world body to condemn any use of chemical weapons, as well as the unlawful use of force.

    Macron said today he is worried about preserving the norm against chemical weapons use. I hope this is true. Wide support for a resolution of condemnation in the General Assembly would be an appropriate way to preserve the norm, one supportive of international law generally. Violating the peremptory norm prohibiting the use of force would not.

    Time to get away from the mono-focus on using military force.

    Mary Ellen

  9. Dear Mary Ellen,
    Thank you very much for your detailed response that reflects serious and real concerns. Just to clarify: my piece was not advocating for this possible development, just pointing at it as a possible explanation as to where the law is headed. However, I’m not sure one can see belligerent reprisals as absolutely forbidden if not directed against protected persons. More importantly, to leave legal technicalities, is there any evidence that personal criminal responsibility prevents or deters such atrocities as the use of chemical weapons? has the SC been effective in the Syrian case? perhaps it is true that the medicine is more dangerous than the disease. However, I find the argument that there are other available medicines less convincing.
    Thanks again for an thought provoking post.

  10. Chrysanthi Samara

    Indeed a very educative and detailed analysis which deals with important issues of iternational law. How many times haven’t we discussed about the proper interpretation of article 51 of UN Charter and the preconditions of self defence. Also, about the role of states and international organizations in the game of power.
    There is no doubt that in any case action must be taken in Syria. I think that all efforts should be focused on a solution through UN system, although veto complicates the situation.

  11. Mary Ellen O'Connell Mary Ellen O'Connell

    I agree that the response should be through the UN but as Constantine suggests, the General Assembly is available and untroubled by the veto. The General Assembly can support the norm against chemical weapons use and considered lawful alternatives for accountability.

    Deterrence is a complicated subject. There is certainly no right to violate a peremptory norm like the prohibition on the use of force in the slim hope that future use of chemical weapons will be deterred. The better path to deterrence is through modeling law compliance.

  12. Dear Mary Ellen,

    I am no more of a public international lawyer than when we first met, but see that the British Government is describing last night’s strikes as “a humanitarian intervention to protect innocent civilians” (Gavin Barwell, PM’s chief of staff, on Twitter this morning. What is the status of this doctrine these days, and how convincing or otherwise do you find it as a justification in international law for the intervention that has now taken place?

  13. Mary Ellen O'Connell Mary Ellen O'Connell

    I woke up in Oslo to the news the US, UK, and France have attacked Syria with 110 missiles–roughly twice the number of last year. Reports are also coming in of at least three people killed. We may soon be hearing from some in the international law community that this sort of attack is now lawful, that State practice and opinio juris have now created another exception to the prohibition on the use of force in Article 2(4) for ‘enforcing’ the bans on WMDs.

    If so, it will be an argument with the gravest potential consequences, considering the concerns over Iranian and North Korean weapons programs.

    It is also an argument in conflict with the basic point that Article 2(4) is a peremptory norm from which no derogation is permitted. Its scope cannot be reduced through contrary State practice and claims of legality. Even if the ban was a mere treaty rule or rule of custom, it certainly has not changed to permit last night’s use of force or any other to respond to weapons use or development.

    The three attacking governments insist the use of force was to enforce the international law prohibition on the use of chemical weapons. Prime Minister May said it was the UK’s ‘only alternative.’ Did government legal advisers fail to explain that the use of force would itself be a violation of the most fundamental international law risking respect for the very system that has created the weapons ban? Alternatives always exist to unlawfully killing. As we have been discussing here–a meeting at the UN General Assembly would have been dramatic and impactful, certainly with respect to preserving a norm of international law.

    For more on change respecting the prohibition on the use of force, see, Jutta Brunée/Stephen J. Toope, ‘Self-Defence Against Non-State Actors: Are Powerful States Willing but Unable to Change International Law?’ International and Comparative Law Quarterly 67 (2017) 263-286 and my contribution to the forthcoming book on self-defence described in Anne Peters, Christian Marxsen (eds), “Self-Defence Against Non-State Actors: Impulses from the Max Planck Trialogues on the Law of Peace and War”, Heidelberg Journal of International Law 77 (2017), 1-93; SSRN-version in Max Planck Research Papers 2017-17).

    The US, UK, and France violated Article 2(4) in a quixotic effort to enforce the ban on chemical weapons.

  14. Mary Ellen O'Connell Mary Ellen O'Connell

    Dear David,

    Your question is astute–as I would expect from you. Of the many inadequate attempts at justification for last night’s strikes, humanitarian intervention is less bad than some. It pits a moral claim above the legal one and avoids the contradiction enforcing a legal norm through violating the norm against the use of force.

    Following Kosovo, however, the issue was thoroughly debated and the decision for reasons of morality and legality was taken by the entire UN membership to require Security Council authorization for the use of force for humanitarian purposes.

    Even those who continue to see a right of unauthorized HI promote it as a rescue action in emergency situations, not a justification for killing as punishment after the fact with a vague claim of future deterrence or support of norms.

    It is also telling, I think, that so many different positions are being put forward of attempted justification. I think political analysis will tell us more about why Macron, May, and Tump attacked in defiance of the law.

    Thanks for writing,

    Mary Ellen

  15. Thanks Mary Ellen. Humanitarian intervention does indeed seem to be the basis advanced by the UK, which has at least now troubled to set out its case: https://www.gov.uk/government/publications/syria-action-uk-government-legal-position/syria-action-uk-government-legal-position.

    I note your comments on UNGA and look forward to reading some of your references. My fear is that if international law is unable adapt itself to the realities of a non-functioning UNSC, it will increasingly be regarded as an irrelevance by those on whose respect its legitimacy depends. But I have probably just demonstrated my initial point: I am no international lawyer. Great to be in touch again, anyway, after far too many years. David

  16. Mary Ellen O'Connell Mary Ellen O'Connell

    Yes, David, you predicted what the UK government would argue. Note that no authority is provided for military force for humanitarian reasons–not the Charter, not an ICJ case, nothing. None exists.

    As for the UNSC failing to authorize military force as dysfunction, is this really dysfunction? Why not use lawful alternatives to air strikes? Given the experience respecting Libya in 2011, it would have been dysfunctional to authorize force.

    And if PM May’s hypothesis re Assad is accurate, how will military force play any positive role? Assad went to work as usual today. He is winning or has won the war. He won’t need to use weapons in the future. Not because his country was bombed and his fellow citizens killed and injured.

    The Charter requires the peaceful settlement of disputes where no right of military force exists. Those means are truly humanitarian.

    Yes–very much appreciate the exchanges after too long!

    Mary Ellen

    I do not consider the refusal to authorize force as dysfunction. The drafters of the Charter knew well the limited uses of military force. Arms control is not one of them.

    Mary Ellen

  17. […] (véase artículo titulado “Unlawful Reprisals to the Rescue against Chemical Attacks?“, publicado por EJIL-talk y disponible aquí). […]

  18. […] (véase artículo titulado “Unlawful Reprisals to the Rescue against Chemical Attacks?“, publicado por EJIL-talk y disponible aquí). […]

  19. […] (véase artículo titulado “Unlawful Reprisals to the Rescue against Chemical Attacks?“, publicado por EJIL-talk y disponible aquí). […]

  20. […] (véase artículo titulado “Unlawful Reprisals to the Rescue against Chemical Attacks?“, publicado por EJIL-talk y disponible aquí). […]

  21. Władysław Czapliński

    Even though I share most of arguments presented by Mary Ellen O’Connell, I would like to add two issues. Firstly, during the discussion in the 6th Committee on countermeasures most States declared forcible countermeasures unlawful, some states were eager to confirm their legality (including the US), and military doctrine of some states provide for the use of force if necessary. Secondly, one could argue that forcible countermeasures in the interest of the international community as a whole are lawful, in particular if the UNSC is unable to take any decision on specific question. I discussed this issue in an article concerning the intervention of the US and UK in Iraq (bombings in the late 1990s), I will be pleased to send references if anyone is interested.
    Władysław

  22. […] (véase artículo titulado “Unlawful Reprisals to the Rescue against Chemical Attacks?“, publicado por EJIL-talk y disponible aquí). […]

  23. […] (véase artículo titulado “Unlawful Reprisals to the Rescue against Chemical Attacks?“, publicado por EJIL-talk y disponible aquí). […]

  24. […] Research Professor of International Dispute Resolution—Kroc Institute, University of Notre Dame. (Unlawful Reprisals to the Rescue against Chemical Attacks? – 12 April […]

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