The Syria strikes: still clearly illegal

The strikes conducted this week against Syrian government targets by the US, UK and France are as manifestly illegal as the strikes conducted by the US alone last year. With one exception, the strikes are identical in the arguments made by the intervenors, in the reactions to those arguments by other states, in the deliberate use of silence and ambiguity, and in the consequent inability of this breach of international law to actually cause a shift in international law.

The language of deterrence used has the flavour of armed reprisals

Like last year, the US (and France) failed to put forward any legal argument as to the source of their authority to act under the UN Charter system of the prohibition on the use of force. Their leaders spoke of the imperative need to avoid normalizing the use of chemical weapons; President Trump stated that the purpose of the strikes ‘is to establish a strong deterrent against the production, spread, and use of chemical weapons;’ Prime Minister May said that there was ‘no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian Regime;’ President Macron spoke of the operation being directed solely against the clandestine chemical arsenal of the Syrian regime.

The language of deterrence used has the flavour of armed reprisals. Not only are such reprisals widely regarded as unlawful, but none of these governments actually clearly sets out an argument on the basis of reprisals. As the ICJ has explained in Nicaragua, para. 207, it is for states to articulate their own legal views, and it is on the basis of these views that other states can react, perhaps towards the creation of a novel rule or exception to an existing rule. In the absence of such a position, however, the approval of the strikes or lack of condemnation by third states has no bearing on the formation of customary international law, or on the evolving interpretation of the Charter. This is the barest minimum of formality required in a legal system, even a flexible one. This is not, as Monica argues in her post, a ‘simplistic’ position lacking in nuance – even if it is conceptually simple, and should be conceptually simple. This is the only dividing line we can have between law and politics, between legal and political arguments.

both the intervenors and their supporters studiously avoid the language of legality

States have to be taken at their word. It is not for international lawyers to invent justifications for state behaviour that these states do not themselves make. The fact that both the intervenors and their supporters studiously avoid the language of legality confirms that they do not regard the Charter as now encompassing an exception to the prohibition of armed reprisals against states using weapons of mass destruction (see e.g. here for a summary of the debate in the Security Council – note in particular the justifications for the vote against (or abstaining from) the Russian draft resolution condemning the strikes; here for the statement of the German chancellor; here for a statement of the NATO Council). Rather, what we have here are states willing to engage in, or tolerate, a one-off (or two-off) exceptional breach of Article 2(4) of the Charter for the sake of some other political and moral considerations, but unwilling to modify the law for the future as a general matter. Whether this is a good thing or bad (it’s bad) is a different question, but there is nothing unfathomable about this phenomenon – individuals and states frequently break the law (any law) if they think they can get away with it or the penalty for breaking it is light, and/or if some higher-order interests justify doing so.

This brings us to the one really exceptional state in this whole affair – the UK – which, unlike its allies, did now articulate a clear legal basis for its use of force: the doctrine of humanitarian intervention. Here is the summary of the UK’s official position, based in the advice of the Attorney-General, Jeremy Wright.  It is divided into two parts – first, the elements of the rule that the UK thinks governs/permits humanitarian intervention, and second, how these elements are satisfied on these specific facts. Note how the UK’s explicit reliance on humanitarian intervention – not repeated by its allies – by implication further supports the conclusion that the UK is not relying on any theory of permissible armed reprisals.

The first part is based on the UK’s official position after Kosovo, reiterated in 2013 regarding Syria:

3.The UK is permitted under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering. The legal basis for the use of force is humanitarian intervention, which requires three conditions to be met:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian suffering and must be strictly limited in time and in scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).

The obvious problem with prong (i) is what does it mean for the ‘international community as a whole’ to generally accept evidence of extreme humanitarian distress on a large scale – presumably that would have to include Russia and China. But the general validity of the UK’s position aside, it is its application to the facts that is completely untenable:

1. The Syrian regime has been using chemical weapons since 2013. The attack in Eastern Damascus on 21 August 2013 left over 800 people dead. The Syrian regime failed to implement its commitment in 2013 to ensure the destruction of its chemical weapons capability. The chemical weapons attack in Khan Sheikhoun in April 2017 killed approximately 80 people and left hundreds more injured. The recent attack in Douma has killed up to 75 people, and injured over 500 people. Over 400,000 people have now died over the course of the conflict in Syria, the vast majority civilians. Over half of the Syrian population has been displaced, with over 13 million people in need of humanitarian assistance. The repeated, lethal use of chemical weapons by the Syrian regime constitutes a war crime and a crime against humanity. On the basis of what we know about the Syrian regime’s pattern of use of chemical weapons to date, it was highly likely that the regime would seek to use chemical weapons again, leading to further suffering and loss of civilian life as well as the continued displacement of the civilian population.
2. Actions by the UK and its international partners to alleviate the humanitarian suffering caused by the use of chemical weapons by the Syrian regime at the UN Security Council have been repeatedly blocked by the regime’s and its allies’ disregard for international norms, including the international law prohibition on the use of chemical weapons. This last week, Russia vetoed yet another resolution in the Security Council, thwarting the establishment of an impartial investigative mechanism. Since 2013, neither diplomatic action, tough sanctions, nor the US strikes against the Shayrat airbase in April 2017 have sufficiently degraded Syrian chemical weapons capability or deterred the Syrian regime from causing extreme humanitarian distress on a large scale through its persistent use of chemical weapons. There was no practicable alternative to the truly exceptional use of force to degrade the Syrian regime’s chemical weapons capability and deter their further use by the Syrian regime in order to alleviate humanitarian suffering.
3. In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention to strike carefully considered, specifically identified targets in order effectively to alleviate humanitarian distress by degrading the Syrian regime’s chemical weapons capability and deterring further chemical weapons attacks was necessary and proportionate and therefore legally justifiable. Such an intervention was directed exclusively to averting a humanitarian catastrophe caused by the Syrian regime’s use of chemical weapons, and the action was the minimum judged necessary for that purpose.

The fundamental issue here is what exactly is the humanitarian catastrophe that requires a unilateral armed response, i.e. how the scope of that disaster is to be defined, because it is only then that we could do a necessity/proportionality analysis. One option is that the humanitarian catastrophe is the Syrian war as a whole; the hundreds of thousands dead and millions displaced mean that answering this question in the affirmative is relatively easy, and this is exactly what the UK government does in (i). But a different option is that the deaths resulting from the use of chemical weapons constitute a humanitarian catastrophe, which is the option the UK government uses in (iii). Note the inconsistency between these two positions, and the obvious reason for that inconsistency – the UK government knows well that only a military intervention on a truly massive scale could (potentially!) alleviate the suffering caused by the Syrian war as a whole; what it wants to do instead is a very limited intervention focused specifically on chemical weapons, but that does almost nothing for the wider humanitarian catastrophe – only a minuscule proportion of all human casualties in the war, probably less than 1%, were caused by chemical weapons.

the UK’s humanitarian intervention argument is so bad even on its own terms that it is clear why the US and France chose to stay silent

In other words, the necessity/proportionality analysis under the third prong of the UK test would be meaningless if the Syrian war as a whole constituted the relevant humanitarian catastrophe, because the allied response is manifestly unsuited to stopping that catastrophe – it just can’t work. Which is why the UK redefines the scope of the catastrophe, ending up with the entirely morally arbitrary conclusion that killing a thousand people with chemical weapons requires a unilateral military intervention without Security Council approval, whereas killing hundreds of thousands with conventional weapons does not. As I explained before, this is not a morally or legally coherent concept of humanitarian intervention. Even if the US/UK/France strikes are perfectly successful and Assad never uses chemical weapons again – and this is a big if, in light at least of the apparent failure of last year’s strikes to achieve that purpose – the war and the atrocities will still go on. In short, Donald Trump’s  indescribably inane tweeting of ‘mission accomplished’ is exactly what’s wrong about this whole operation if it is seen from the lens of humanitarian intervention. What is accomplished is so, so very little, at a potentially very high cost.

To conclude, the UK’s humanitarian intervention argument is so bad even on its own terms that it is clear why the US and France chose to stay silent – no legal argument is in their view a better option than a palpably bad one. And every legal argument that could be put forward here is a palpably bad one – morally right or wrong, wise or stupid, the strikes are simply, unconditionally, unambiguously illegal.

Editors’ Note: This post originally appeared on EJIL:Talk!, and is reproduced with permission and thanks

MARKO MILANOVIC

Dr Marko Milanovic is associate professor at the University of Nottingham School of Law. He is co-editor of EJIL: Talk! and a member of the EJIL’s Editorial Board, as well as Vice-President and member of the Executive Board of the European Society of International Law.