News & Updates
August 30, 2013
Emotions on Syria are running high with the revelation that chemical weapons were used in Ghouta, eastern Damascus, on 21 August, causing between 300 to 1,000 victims. France has indicated that it is ready to punish those responsible and the US has prepared its military for an imminent strike. Turkey, Qatar and Saudi Arabia have pledged to support military action against Assad. Pressure from the media has been mounting as President Obama’s critics hold him to his “red line” with respect to the employment of chemical weapons in Syria. Yet before America rashly heads into yet another war, the position of international law and a clarification of key facts is called for.
Syria’s Use of Chemical Weapons Does Not Necessarily Violate International Law
Before concluding that Syria’s use of chemical weapons violates international law, it is first necessary to recall the character and nature of international law, which is generally only binding on nations that voluntarily commit themselves to it. Chemical weapons are governed by the 1997 Chemical Weapons Convention, which Syria has not ratified and is therefore not bound by. It cannot therefore be argued that Syria violated international covenants with respect to the employment of chemical weapons.
An argument can be made that the Chemical Weapons Convention, having been signed or ratified by all UN member States except Angola, Egypt, North Korea, Somalia, South Sudan and Syria, has become so widely accepted as a standard of the law of war that it is binding as customary international law undertaken out of a sense of legal obligation. One may further argue that the use of chemical weapons rises to the level of jus cogens, or non-derogable peremptory legal norms. This latter argument is however problematic because chemical weapons have been repeatedly used in the past (e.g., by Saddam Hussein against Iran in the 1980-1988 war and against Iraqi Kurds in 1988) with impunity.
The Use of Chemical Weapons in Syria Does Not Constitute a Crime against Humanity, though It May Be a War Crime
Several media outlets have misstated facts with respect to the use of chemical weapons in Syria. Many of these misinterpret applicable international law. Al Monitor, for example, stated that “[t]he use of chemical weapons goes beyond being a crime against humanity, given that it violates even the most basic laws currently governing the international system” (“Ghouta Massacre Reactions Show the Region’s Shifting Dynamics,” Al Monitor, 29 August 2013).
However, Syria’s isolated and sporadic use of chemical weapons does not fit neatly into the definition of crimes against humanity. Under the Statute of the International Criminal Court (SICC), certain enumerated acts, including murder and extermination, constitute crimes against humanity when “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (art. 7.1 SICC). The use of chemical weapons in small quantities in March and April, and last week, are isolated and sporadic incidents that do not rise to the level of “widespread” or “systemic,” per the SICC’s requirements. The use of chemical weapons, if proven, may be odious and perhaps even a war crime, but is not a crime against humanity.
The Syrian Regime’s Use of Chemical Weapons May Constitute a War Crime
In contrast, the Regime’s use of chemical weapons may constitute a war crime, defined by the Geneva Conventions as a criminal violation or grave breach of international humanitarian law (the law of war). The SICC provides an extensive list of examples of war crimes under its jurisdiction, including the willful killing, murder or ill-treatment of the sick or prisoners of war; torture and inhuman treatment; extensive destruction not justified by military necessity; intentionally directing attacks against civilians or civilian objects including cities, towns and villages; and the employment of poisoned weapons (art. 8 SICC).
Evidence in the present case points to the use of chemical weapons, probably delivered by mortars and rockets (see “Special Report on Use of Chemical Weapons in Damascus Suburbs In Eastern Gotas,” Center for Documentation of Violations in Syria, 27 Aug 2013; and “Syrian eyewitness accounts of alleged chemical weapons attack in Damascus,” The Guardian, 22 Aug 2013, respectively). One may argue that these acts constitute the “employment of poisoned weapons,” though such a broad interpretation would also then prohibit the use of nuclear weapons, which result in “radiation poisoning.”
Yet even if Assad’s use of chemical weapons could be deemed a “war crime” under the SICC, there is currently no prospect that members of Assad’s regime could be prosecuted for war crimes under the International Criminal Court (ICC). In order for the ICC to exercise jurisdiction, one of the following conditions must apply:
(a) The crime must have been committed in the territory of an ICC member State or on board a vessel or aircraft registered with a member State or the accused must otherwise be a national of a member State (art. 12.2 SICC). This condition is inapplicable, as Syria is not a State party to the SICC.
(b) The State in question must agree to jurisdiction. Given the extent of potential war crimes for which Assad’s regime may be accused, it is highly unlikely that Syria will voluntarily agree to the jurisdiction of the ICC at any time in the near future (art. 12.3 SICC).
The Regime’s Use Chemical Weapons Has Not Been Proven
President Obama must avoid the same mistake his predecessor made in rashly heading into war based on faulty intelligence, and should instead carefully study the intelligence he is receiving now. In the case of Syria, the Assad regime’s use of chemical weapons is not a “slam dunk.” Four US officials told the AP of their confusion as to where the reported chemical warheads are currently being held and whether Assad’s forces or the rebels possess them. Moreover, in satellite images of Syrian troops moving trucks into weapons storage areas and removing materials, US analysts have not been able to track what was moved or to confirm that Assad’s forces were able to remove everything before rebels took over an area where weapons had been stored (“Report: Syria chemical attack evidence not a slam dunk.” FoxNews, 29 Aug.2013).
In May, Carla del Ponte, a member of the UN Independent International Commission of Inquiry on Syria, said there were “strong, concrete suspicions but not yet incontrovertible proof,” that rebels seeking to oust Syrian strongman Bashar al-Assad had used the nerve agent Sarin (“Syrian rebels used Sarin nerve gas, not Assad’s regime: U.N. official,” Washington Times, 6 May 2013). Moreover, it appears incongruent that Assad’s forces, who were winning on the battlefield since June, would have employed chemical weapons against the rebels last week.
It is key that before President Obama rushes to conclusions, he and his administration allow the United Nations Commission of Inquiry on Syria to complete its invesgtigation of the chemical weapons site and confirm with clear and convincing evidence that: (i) chemical weapons were used; and (ii) the Assad regime—either Assad himself or another state actor—was responsible for their use.
Legal Problems of US Unilateral Military Action
Under International Law
Customary international law as well as the Charter of the UN (CUN) recognize the territorial integrity and independence of States and prohibit military force from interfering with this integrity (see art. 2 CUN). Chapter VII of the UN Charter permits only two exceptions to these prohibitions: when acting pursuant to (i) UN collective security measures (art. 42 CUN); or (ii) self-defense (art. 51 CUN).
The first exception involves the right of the Security Council to employ the use of force in order to secure peace. If the Security Council determines the existence of any threat to or breach of the peace or act of aggression, it may take military action “by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (art. 42 CUN). In the case of Syria, the US has been unable to obtain a Security Council resolution authorizing the use of armed force in Syria. Russia has twice vetoed proposals to intervene in Syria and Russian representatives left the UN Security Council session discussing the 28 August draft resolution on Syria. Without a UN Security Council authorization, the first exception to the use of force is inapplicable.
The second exception to the prohibition on the use of force involves States’ inherent right to self-defense. This is a limited exception that only permits States to use military force as a last resort under article 51 of the UN Charter when threatened by armed attacks. Even this use of force is subject to immediate Security Council review and is permitted only until “the Security Council has taken measures necessary to maintain international peace and security” (art. 51 CUN). The right of the US to self-defense does not apply in the case of Syria, which has not threatened the US or its territories, possessions, civilians or armed forces.
There is currently a precedent to the use of armed force absent UN Security Council authorization, the most recent example of which is the US invasion of Iraq, based on the purported right of the United States to pre-emptive self defense in cases of imminent attack. This theory suffers from a troubled past and in any case, is inapplicable in the present case, where Syria has never threatened to attack the US and in which no imminent threat to the US exists.
NATO’s 1999 intervention in Kosovo serves as another instance of military action absent a UN Security Council resolution. However, in the case of Kosovo, many observers agree that NATO’s actions were legitimate and justified under international law because of later Security Council votes that seemed to ratify the action, which is highly unlikely to happen in the case of Syria, to which Russia will remain loyal.
Under US Domestic Law
The US Congress is granted the power to declare war under § 8 of Article I of the US Constitution. In addition to this power, Congress, without declaring war, may, under the War Powers Resolution of 1973 (codified at 50 U.S.C. 1541-1548), authorize the President to send US armed forces into action abroad. The War Powers Resolution permits the President to send US armed forces into action abroad not only by authorization of Congress, but also in case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
The Syrian conflict has not given rise to a US national emergency and Syria has not attacked the United States, its territories, possessions or its armed forces. Therefore, the only way for the President to legally employ his war power would be through first obtaining congressional authorization. However, there is little evidence that the President intends to obtain congressional authorization for any unilateral military action in Syria. Even if he sought authorization, it would likely be denied given prevalent concerns of inadvertently aiding terrorist opposition groups Jabhat al-Nusra and the Islamic State of Iraq and the Levant, or of being drawn into yet another costly war.
Just War Theory Considerations
Since ancient times, nations have explored the philosophical grounds of just war and the legality of the use of force. In the West, just war theory has perhaps been most precisely stated and developed by the Catholic Church, starting with the writings of Augustine of Hippo and later expanded by Thomas Aquinas. The Catholic Church has since extended Aquinas’ just war conditions to include additional conditions that the US would be wise to heed before entering Syria:
Reasonable Prospect of Success
Deaths and injury incurred in a war not having a reasonable chance of success are not morally justifiable. The US has not yet defined its mission in Syria, but precedents in Iraq and Afghanistan have shown the challenges inherent to regime change and nation-building.
The use of arms must not produce evils graver than the evil to be eliminated; the peace established by the war must be preferable to the peace that would have prevailed had the war not been fought. Clearly, the situation in Syria is deplorable. But would a US intervention in Syria make things worse? On the one hand, a US intervention may lead Syria (and possibly Iran) to strike Israel and thus cause a larger spillover conflict. If the US topples Assad, it may be a ten to twenty-year investment in incubating democratic governance or, in the event the US pulls out after toppling Assad, the power vacuum may be filled by ruthless rebel groups such as al-Qaeda-affiliated Jabhat al-Nusra, which has emerged as the most effective force fighting the Assad regime.
Conclusion: Caution Is Needed Before Striking Syria
The intent of any military intervention in Syria must ultimately be to secure peace, but the growing extremist nature of the opposition poses special, new challenges to intervention. Currently, there is no effective opposition group that would credibly support the rule of law and universal rights in Syria. By supporting the opposition, the US may inadvertently put into power extremist groups that seek to impose Al Qaeda-style governance on a nation whose diverse ethic and religious demographic instead demands protection of universal rights and respect for minorities.