Skip to main content

Legality & Consequences of US Strikes on Syria Airbase

A few days back, we woke up to the heart-wrenching news of how Syrians in the village of Khan Shaykhun had been attacked with the deadly nerve agent, sarin gas. While details are still emerging regarding these attacks, the World Health Organization has confirmed that at least 70 persons- including 21 children died of “exposure to highly toxic chemicals.” A look into the past antecedents of the Syrian crisis would bring to light the 2013 attacks on the Damascus suburb of Ghouta, wherein also the dreaded sarin nerve agent was deployed. The Ghouta attacks had then led to US contemplation of air strikes against facilities controlled by Bashar al- Assad in Syria. With an air of uncertainty around, a compromise was reached wherein the Assad regime had agreed to surrender its chemical weapons stockpiles for inspection and removal by the Organisation for the Prohibition of Chemical Weapons (OPCW). Subsequent confirmation came from the OPCW-UN Joint Mission in Syria about the inspection and destruction of 96% of stockpiles and production facilities declared by the Syrian government.

Whilst contemplating about air strikes in response to the Ghouta attacks, Barack Obama did stress for the requirement of a Congressional approval before undertaking any unilateral use of force against Syria. Contrary to that, in April 2017, the Trump administration decided to take the unprecedented step of unleashing Tomahawk missiles into Bashar Al Assad’s Shayrat military airbase. The blogosphere went into a tailspin discussing the legality, or illegality as such, of such unilateral use of force which violates Article 2(4) of the UN Charter and also various provisions under the US Constitution. On the other hand, US allies almost universally welcomed Trump’s direct engagement in Syria. Justin Trudeau voiced his approval of the US’s ‘limited focused attack’. German Chancellor described the missile strikes as ‘understandable’ while UK’s Secretary of Defence Michael Fallon stated the British Government ‘fully supported the US actions', arguing that the measures were ‘limited and appropriate’ and that the world community at large had exhausted all possible diplomatic and peaceful ways of dealing with the Assad regime regarding regulation of chemical weapons. Out of a catena of issues coming to the fore, it is, therefore, pertinent to make a case for legality and legitimacy if any at all. The main burden when venturing into this debate is to weigh the necessity of humanitarian interventions to prevent war crimes, crimes against humanity and genocide whilst upholding the fundamental values espoused by the charter framers.
US Destroyer launching tomahawk missiles
Intervention through the use of force is illegal, but a look back into history shows it is not unprecedented. At the initial phase of UN, Tanzania invaded Uganda to oust Idi Amin, India launched its invasion into erstwhile East Pakistan (currently Bangladesh) in response to massacres of East Pakistani civilians by West Pakistan, Vietnam invaded Cambodia to oust the Pol Pot led Khmer Rouge, and India also flew military jets into Sri Lanka to drop supplies to the locals there during the heights of LTTE regime*. After the cold war, it was multilateral coalitions conducting such interventions instead. The US, France and the UK established 'No Fly Zones' over Iraq initially to protect the Kurds and later to protect the Shiite population as well, all the while invoking Security Council Resolution 688. Ironically though, that resolution was not passed under Chapter 7 authorization. Also, NATO’s actions of forcefully ousting Gaddafi far exceeded the authority granted to it by Security Council Resolution 1973. In the early 1990s, the Economic Community of West African States invaded Liberia followed by Sierra Leone without getting Security Council authorization. As recently as December 2016, the ECOWAS also threatened to intervene in order to overthrow the Gambian President. The U.N. Charter not only prohibits the use of military force but also the “threat” to use military force. The International Court of Justice, in its landmark judgment on the Nicaragua v US, gave the prohibition on the use of force as aperemptory norm of jus cogens.”

The obligations in Article 2(4) is not only international law, but also a treaty provision to which the U.S is bound, and thus is the “supreme Law” of the land under Article VI of the U.S Constitution. Prima facie the US Congress had not authorized the attacks on Syria, or otherwise made the solemn decision to have the U.S breach the Charter. Hence Trump acting in haste, ended up by putting U.S in a breach of its treaty obligations, that is in violation of not only their Article II obligations, but he has also violated Constitutional allocations of war powers. But the dichotomy arises herein, can we stay unrattled on the face of the barbaric massacre of innocent civilians, especially Syria’s innocent children? Are we letting a Rwanda or Darfur take its gargantuan shape? With the veto putting an impasse to Security Council proceedings, is there a possibility of venturing into extra-legal gray area for a humanitarian cause and not only for “wider national interest”?

To put some perspective, I am compelled to evoke the questions on the sovereignty of nations which a young Rafael Lemkin had in mind during his college days. The horrors of the Armenian massacres at the hands of Turkish forces left a lasting impression on the young mind of Rafael Lemkin. During those days there were no treaties to prevent Turkey from acting as it had, from killing its own citizens. Sovereignty meant sovereignty, total and absolute. Lemkin’s account of an exchange with Professor Juliusz Makarewicz turned into an epiphanic moment. He surmised as to how the law could not prevent a nation from butchering its own citizens. His professor retorted by using the metaphor of a man owning chickens, and a country treating its own sovereignty. He continued by proclaiming, the way a country treats its sovereignty is as absolute and non-derogable as a man killing his own chickens. Incensed, by this remark, Lemkin went on with his relentless pursuits to ultimately coin the term ‘genocide’. Coming back to the present, the situation in Syria fits completely into the sovereignty model espoused by Lemkin’s professor. Amongst a plethora of other crimes, Assad’s repeat use of chemical weapons with apparent impunity has weakened the absolute prohibition of
White Helmets Statement w.r.t chemical attack on Khan Shaykhun
chemical weapons- and with it the tenets of International Humanitarian Law. As Monica Hakimi rightly introspects, anything goes in wartime, as long as you have the right allies.In the face of Assad’s obstinate stance, every UN effort has floundered, whether it is to bring forth a political solution, to bring the warring parties from to the table to protect civilians or provide humanitarian assistance to besieged cities and indeed even to prevent the use of chemical weapons or ensure accountability for these atrocities. Assad continues to maintain his stance that protests or conflict in Syria are domestic matters and thus in the language of the UN Charter- a matter that is “essentially within the domestic jurisdiction” of Syria. In such a situation, the UN cannot intervene except for a Security Council authorization under Chapter VII of the Charter, but that would yet again require Russian and Chinese to comply. The last resort in such a circumstance is to view sovereignty as not being absolute especially if a state’s actions compromised international norms. An international action on the basis of Humanitarian actions or Responsibility to Protect is great in theory but in the practical world of international relations, it has proved to be controversial to many states. Ideally, the U.S strikes were intended to convey a message, however imperfectly and inconsistently, with respect to the prohibitions of chemical weapons, since such strikes are likely to have the effect of bolstering a prohibition that had been deteriorating. But as Brian Egain, Former Legal Adviser, US Department of State argues, the unilateral presidential go ahead for the strikes, do not appear to fit clearly within any of the recognized Charter rationales for using force(self-defense, UN Security Council authorization or host government consent).
The Trump administration may be tempted to follow the blueprint that the US government adopted after the Kosovo Intervention in 1999, where the U.S intervention lacked Security Council authorization and a clear self-defense rationale. With faltering policy making coupled with widespread protests and increased division within the ministry, the administration at the White House is trying to make the most of the American tendency of rallying around its president during the times of war. Without proper justification except for the perilous “legitimate but not legal” use of force statements, suggest an utter disregard for international norms.

In this context, it is pertinent to note the standards on lawful humanitarian interventions set forth by Harold Koh, former Legal Adviser to the Obama administration. An analysis of the same would serve the purpose of legality from the complex policy question about US actions in Syria going forward;
  1. If a humanitarian crisis creates consequences significantly disruptive of international order—including proliferation of chemical weapons, massive refugee outflows, and events destabilizing to regional peace and security—that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51);
  2. Security Council resolution was not available because of persistent veto; and the group of nations that had persistently sought Security Council action had exhausted all other remedies reasonably available under the circumstances, they would not violate U.N. Charter Article 2(4) if they used
  3. limited force for genuinely humanitarian purposes that was necessary and proportionate to address the imminent threat, would demonstrably improve the humanitarian situation and would terminate as soon as the threat is abated.

He stakes a claim for nations’ that their actions would not be wrongful if they could demonstrate:

  1.  the action was collective, e.g., involving the General Assembly’s Uniting for Peace Resolution or regional arrangements under U.N. Charter Chapter VIII;
  2. collective action would prevent the use of a per se illegal means by the territorial state, e.g., deployment of banned chemical weapons;
  3. Help to avoid a per se illegal end, e.g., genocide, war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians, for example, another Halabja or Srebrenica.
He further concludes that the legal analysis of any particular situation would need to substantiate each of these factors with persuasive factual evidence of (1) Disruptive Consequences likely to lead to Imminent Threat; (2) Exhaustion; (3) Limited, Necessary, Proportionate, and Humanitarian Use of Force; (4) Collective Action; (5) Illegal Means; and (6) Avoidance of Illegal Ends.
Non-engagement is no more an option and the U.S government officials should quickly and affirmatively articulate what they view as the international legal framework for these actions. Donald Trump should be genuinely astonished as to how these strikes failed to accomplish its purposes on the

Syrian Airfield
ground. The Syrian airbase which was targeted, was operational again within 24 hours of the strike, so much so that planes from that very base dropped conventional bombs on the same rebel-held city which was previously attacked chemically. The call of the hour is for the recognition of humanitarian intervention as an international custom. Intervention should not be restricted to intervention when children are killed by chemical weapons while choosing not to intervene when many more children are being killed by bullets and explosives. Most importantly to bring any semblance of rule of law in US engagement in Syria, it needs to obtain ex-post facto exemption from legal wrongfulness both at the domestic front as well as in the Security Council. It should not be given a free hand, in invoking doctrines at its own whims and fancies. In this regards, the International Law Commissions' Articles on State Responsibility should be brought forth for discussion wherein during extreme circumstances, such as distress and necessity, states can be precluded from international wrongfulness and be permitted a certain extent of countermeasure to stop illegal acts by others. A Groatian moment of International law is on the horizon wherein international legal community needs to discuss and define a narrow “affirmative defense” to Article 2(4) of the U.N Charter that would clarify the contours of an emerging lawful exception to a rigid rule of humanitarian intervention being per say illegal. At this time instead of repeating the Kosovo script, a controversial legal rationale of Responsibility to Protect can be at the cusp of garnering its instant customary international law status. There will invariably be risks of offering an untested argument, even if narrowly framed, but the risks of offering no argument at all seem greater. Without giving a justification for its actions, it would otherwise send a dangerous signal to an increasingly fragile international order at the most controversial time. Joseph Raz values the rule of law as an ‘instrument’ like the ‘sharpness of a knife’. Even a thin concept of rule of law has the capacity to shape and guide future actions. In relation to the use of armed force, rule of law is paramount. We have to have clarity and certainty as to when force will be used against a state and that it guides a states’ actions when deciding to use force. In turn, it should also give clarity and certainty to other states as to when force should be used. All of these debates should culminate in a universally accepted definition and standards on “crimes of aggression” which would then go a long way to ensure that no child of God should ever suffer the horrors of Syria’s countless Aylan Kurdis.

About the Author:

Sarthak Roy is a 4th-year student of School of Law, Christ University, Bangalore. He has a keen interest in Public International Law, especially laws of war and use of force. He wishes to study public international law abroad, before coming back to India in the role of an academic, and a legal adviser to the Indian government. He always recalls his international law teacher for instilling the passion of international law and similarly wants to pass the same towards the young minds of future generations. He counts the works of Hersch Lauterpacht, James Crawford, Christopher Greenwood and Phillips Sands for being his constant motivation. In his final year of law school, he wishes to participate in the Jessup International Moot Court competition and test himself against the world's best.



Use Of Human Shield In Kashmir – A Legal Analysis

A lot has been debated and written about the ‘human shield’ incident that happened on April 9, 2017, in Kashmir’s Budgam district. Farooq Ahmed Dar, a 26-year-old shawl weaver of Chil village in Beerwah sub-district was tied in front of an Army Jeep and allegedly paraded through several villages for nearly five hours.[1] The media, lawyers, politicians and even army officers have stark differences of opinion on the legality of the said incident.[2] Major Leetul Gogoi, who tied the victim on the army jeep was awarded chief of army staff’s Commendation Card for sustained efforts in counter-insurgency operations.[3] This award was given pending proceedings before the court of inquiry into the said incident. On the other hand, the victim, Farooq Ahmed Dar approached the State Human Rights Commission against the reward given to Major Gogoi by the Army and separate petitions were filed before the National Human Rights Commission against the felicitation.[4] It is alleged that the actions of…

Qatar invokes ICJ Jurisdiction against UAE- Alleges Racial Discrimination

The State of Qatar on the 11th of July, instituted proceedings against the United Arab Emirates at the International Court of Justice (ICJ), with regard to alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination,1965 (hereinafter the “CERD”), to which both States are parties. Qatar invoked the ICJ's jurisdiction under Article 36, paragraph 1, of the Statute of the Court and Article 22 of the CERD. Qatar contended that the UAE has enacted and implemented a series of discriminatory measures directed at Qataris based expressly on their national origin [that] remain in effect to this day, resulting in alleged human rights violations. According to Qatar, on and following 5 June 2017, the UAE expelled all Qataris within its borders; prohibited them from entering or passing through the UAE; closed UAE airspace and seaports to Qatar and Qataris; interfered with the rights of Qataris who own property in the UAE; limited the rights of Qatar…

The Battle of the Oil Titans: Qatar drags UAE to the ICJ alleging violations of the CERD

In what can be said as a fresh face-off in already hostile relations between The State of Qatar and Gulf countries, the former acting under parens patraie doctrine has initiated proceedings at the International Court of Justice against United Arab Emirates (UAE) on 11th June invoking Article 36, paragraph 1, of the Statute of the Court and Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (hereinafter CERD). The proceedings come a year after Qatar was accused of funding terrorism in the region keeping in view its proximity with Iran and consequently, Egypt, Bahrain, UAE and Saudi Arabia severed its diplomatic and trade ties with it. Qatar (Applicant) in its application to the Court contends that “[t]he UAE has enacted and implemented a series of discriminatory measures directed at Qataris based expressly on their national origin [that] remain in effect to this day, resulting in alleged human rights violations.”
According to Qatar…