Team America: Should it (Air)Strike Again?

By Alexander Green

800px-Azaz_Syria_during_the_Syrian_Civil_War_Missing_front_of_HouseThe obvious should go without saying. However, sometimes it goes much better with saying. It should be obvious, at least to every right-thinking international lawyer, that Western military intervention in Syria would be illegal at this time. Someone had better tell Messrs Obama and Cameron before they do something we all might regret.

This article will first provide a brief summary of the facts before examining the legal position. I will argue, based upon a normative interpretation of international law, that any military action without the consent of the UN Security Council would be illegal even if a deliberate chemical attack was carried out by the Syrian government on its civilian population.

Mounting Tension:

On 21 August 2013, the world was shocked to see footage of what appeared to be chemical weapon attacks against the civilian population of the Ghouta region of Damascus. The following day, Israel publicly declared that an attack had indeed taken place. In the immediate aftermath, international opinion was divided. The American government were quick to suggest the responsibility of the Assad regime, whilst the Russian government were almost as quick to point the finger at insurgent forces.

The use of chemical weapons was independently corroborated by Doctors Without Borders on 24 August. On the same day, the United States moved several naval warships into missile strike range. Two days later, Secretary John Kerry made a public statement condemning the Syrian government for the attack, which was supported by the Vice President Joe Biden the following day. America was supported in this conclusion by a statement from The League of Arab States.

On 28 August, the United Kingdom government announced the intention to seek a UN Security Council Resolution before considering the use of force against Syria. Today, the UK House of Commons debates a motion that any decision on whether to take military action should take place after UN inspectors report on the attack. This morning, President Obama stated that he had no fixed plan with regards military intervention but that he was contemplating a punitive military strike to send a ‘pretty strong signal’.

Conflicting Evidence:

Responsibility for the 21 August attack is hotly contested. The position of both the US and the UK seems to be that rebel forces lacked the means to deploy chemical weapons and so the Assad regime must be suspected by default. This is hotly disputed by Russia, who claim that there is no positive evidence to suspect the Syrian government. On the one hand, the Syrian government is reputed to have stockpiled considerable chemical weapons, including mustard gas and sarin. On the other, experts such as Gwyn Winfield, editorial director of CBRNe World (a trade journal for the unconventional weapons industry) have suggested that the weapons used in the attack were of a lower grade than those stockpiled by the Syrian government, meaning that it would at least have been possible for rebel forces to have used them.

Winfield has also queried why Assad’s government would use chemical weapons without pursuing a plan of overwhelming force tout court. In reality, only a handful of government troops entered the area after the attack, indicating that the government cannot have gained much worth holding onto. Given the international outrage that was bound to follow, it seems unlikely that Assad would commit such an atrocity without pushing for a substantial tactical advantage. This seems even less likely when one remembers that the government is actually winning the Syrian civil war. In addition, there is evidence that the immediate response of the Syrian government to the attack was to engage in ‘panicked phone calls’: hardly what one would expect after a premeditated assault.

Conversely, it is not clear why rebels would attack Ghouta, an area populated by those sympathetic to their cause. George Lopes, Professor of Peace Studies at the University of Notre Dame, has also questioned why, if rebels were responsible for the attack, they did not focus on military installations.

Set against this is the opinion of the UN Independent Commission of Inquiry on Syria, which has been conducting interviews with Syria refugees in neighbouring countries since its establishment in August 2011. UN Commissioner Carla Del Ponte commented as early as May of this year that there was evidence to support ‘strong concrete suspicions’ that rebel groups had already used chemical weapons. Given the continuing controversy, it is difficult to see how Washington and London can be so sure of their accusations against the Syrian government.

UN inspectors have been present in Syria since 18 August, reflecting long standing concerns about reports of chemical weapons use pre-existing the 21 August attack. The scope of their fact finding mission has been strictly limited to the question of whether chemical weapons were used, rather than where responsibility for that use lies. Nonetheless, the UN team is currently investigating the 21 August site and has been asked to look at three further sites by the government themselves, indicating that their investigations are meaningfully progressing. The ongoing UN investigation, combined with the lack of conclusive evidence, both point to discretion being the better part of humanitarianism in the Syrian situation.

The Law:


The UN Security Council

In contrast to the convoluted factual information at our disposal, the legal position is crystal clear. The default position at international law is one of non-intervention. Every State has a defeasible obligation to every other State not to militarily encroach upon its territory. Any exceptions to this standard must have legal basis. In what follows I will suggest why a duty of non-intervention exists and how exceptions to it might arise. In brief, such exceptions do not include unilateral action on the part of one or more States without the permission of the UN Security Council.

In the past it was thought that the principle of non-intervention could be justified by an analogy between governments and individual human beings, with governments possessing something like the autonomy to exclusively determine the destiny of their territory and population. This was likely the result of the historical conflation between States and their (monarchical) governments common in the early stages of international legal practice.

Within the modern context, the best justification for the duty of non-intervention is that, quite apart from being synonymous with its government, a State is the structure through which a territorially rooted population constructs and maintains a political community. Under this interpretation, governments are the ‘agents’ of their States, in a similar way to which executives are the agents of companies. All governments have a duty not to militarily interfere in other States because doing so violates the rights of the population whose territory they encroach upon: specifically their individual rights to develop and participate in a political community worthy of international respect and recognition. Support for this interpretation can be found in international instruments concerning self-determination, the rights of peoples and individual human rights, as well as in the first few Articles of the UN Charter.

This modern interpretation of international law creates an intriguing possibility. If non-intervention is justified by an appeal to the rights of individuals, severe violations of those rights by domestic governments might warrant exceptions to the rule. In other words, when non-intervention is failing to secure the rights of a State’s population, intervention might be required to ensure that things get back on the right track. In principle, this argument seems sound. ‘Humanitarian intervention’ might be acceptable under modern international law.

Whilst undoubtedly interesting as a matter of legal theory, this doesn’t get us very far in terms of practical international law. In the real world, when presented with arguments of such an abstract nature, lawyers need to ask two questions: “How?” and “When?”

Presumably, we can all agree on extreme cases: if a lunatic tyrant is indisputably and imminently about to blow half of his population to smithereens, military intervention to prevent that from happening would almost certainly be legal, even without the permission of the Security Council. Hypothetical cases of genuine and otherwise unavoidable emergencies make compelling thought experiments.

However, it is doubtful that there has ever been such a case, or that there ever will be. The situation in Syria is certainly nothing of the sort. Instead, Syria is a paradigmatic example of the more usual conditions of uncertainty, both as to the extent of the violation of individual rights and of the responsibility of the parties involved. Under such conditions, we need a more measured approach than permitting individual States going in guns blazing, potentially adding to the death-toll without any guarantee of solving the problem cited as the reason for intervention. We all know what happens when this need for subtlety is ignored.

International law provides the answer in quite uncontroversial terms. UN inspectors with an objective mandate must go and verify any allegations. They must then present their findings to the Security Council, who should pass a resolution requiring member States to take action proportionate to the risk that further violations of individual rights will occur. (This answers “How?”) Then and only then can military action be taken. (This answers “When?”)

The reason that we must rely on the UN for a coordinated solution is implicit in the nature of statehood. Because all States must be treated as political communities worthy of equal respect, until it is publicly demonstrated that their governments are behaving in ways that prevent this from holding true, it would violate equal respect for other States to take unilateral action. Allowing intervention decisions to take place behind the closed doors of (potentially selfishly motivated) foreign governments would allow their judgement to determine the destiny of a political community from which they are totally disconnected. Requiring the Security Council to make a public decision, after a fully disclosed investigation, enhances transparency and focuses upon the rights of the population concerned.

Admittedly, the Security Council is not perfect. Not all States are equally represented on or by it and the selfish political concerns of governments can and do influence its decisions. The recent decision to intervene in Libya is a potential example of this, although that was as plausibly a failure to reign in NATO activity than a case in which no sanctions should have been imposed. But arguments of this sort point to the need for reform of the Council and its relationship with other international organisations, and cannot support unilateral action on the part of individual States.

What the Security Council does provide is a means to limit the impact of partisan political concerns by requiring consensus before the decision to intervene can be made. Coupled with a proper investigative procedure and the possibility of referral to the International Criminal Court, this provides a far better means for dealing with alleged violations of individual rights than unilateral action. That is why the law requires it.

The “What Ifs”?

It can of course always be argued that this all works fine in theory, but what if something goes wrong? What if Russia (or China) vetoes a resolution to intervene after clear and compelling evidence of government attacks come to light? What if Assad refuses to allow inspections to continue? These are serious concerns. For the purposes of this debate alone, I will assume that Assad’s government did commit the atrocities it is accused of (which is not certain) and that it is likely to do so again (which is similarly unclear).

As to the first objection, it might be worth questioning the assumption that a Russian veto would be a bad thing. It must not be forgotten that any Security Council response should require only measures necessary and proportionate to reduce the risk that further violations of individual rights will occur. It is difficult to see how launching missiles at Syrian territory would have this effect. Leaving aside the fact that missile attacks will almost certainly result in some civilian casualties, it is likely that any intervention that succeeded in damaging Assad’s government would make it more desperate: more likely to violate international law by perpetrating further chemical attacks. Conversely, any attack that fails to damage the regime is likely to have no impact upon the existent risk. In either situation, the only result will be one of escalation: either Assad ignores the intervention or he lashes out in a desperate attempt to save himself. What are we then to do? Invade? Once again, this all seems darkly familiar.

Let us say that the attack does go ahead and that it is successful about making the Syrian government repent in using chemical weapons. All well and good, but it is unlikely to thereby bring a halt to the war. If that is so, what good can have been served that could not have been accomplished after the war via criminal investigations or a truth and reconciliation commission? Apart from the ‘benefit’ of making Western leaders feel more macho, there is no immediately obvious answer.

Turning to the other “What If?”, how should the international community respond if Assad throws the UN inspectors out of the country? This problem is a bit more serious because without a public and objective report, the Security Council will be unable to reach a justified and transparent conclusion. Nonetheless, we should not allow contemplating this hypothetical to distract us from the facts. At present, the Syrian government is cooperating fully with inspectors and shows no signs of changing its behaviour. Furthermore, there have been productive UN investigations taking place outside Syria since 2011, which could continue regardless. The bottom line is that international activity should be geared towards ending the war as swiftly and as bloodlessly as possible. Getting the ‘bad guys’ can come later. That is what courts of law, and their associated investigative frameworks, are there for.

  1. After an illuminating (Facebook!) discussion with a colleague, I realised that this article may have failed to make certain aspects of my position unclear. I attach my response to his (very able) criticism, by way of further explanation:

    “Fair point I think, and agree with some of what you say. I’d put it like this: just because the SC is a collective decision making body does not mean that it will necessarily make decisions based on equal respect for all peoples. I completely agree.

    My point was more limited: an institution that requires a certain element of formalised and public international consensus following an open-access report by non-governmental investigators (which, unless I am mistaken, the Syrian report would be) is better placed to limit partisan political considerations than unilateral action by individual States or a coalition based upon partisan political interest. It was this contrast that was the core of my argument and not praise for the SC in the abstract.

    Now, the SC better promotes (or ‘protects’?) equal respect because it does not rely upon domestic governmental decision making alone (‘better’ and ‘alone’ are the important bits for me). To do the latter would be to allow the decisions of foreign governments to rule the destiny of unrelated peoples without the mediation of any institutional frameworks at all, in particular the absence of the aforesaid investigators. Now, I would agree that things like democratic oversight in the domestic context helps, but I see that as more of an addition than an alternative.

    Of course, none of this means that just because the SC makes a decision that it is the correct one. That is not true of any legal institution, even those against which no legitimacy arguments can be levelled. There might be a whole host of legal and moral reasons to object or even disobey an SC resolution to militarily invade, but that does not necessarily detract from the institution itself qua institution. What I had in mind was the SC acting as a necessary but not necessarily sufficient condition for the legality of intervention. Perhaps it was my fault for not making that clear.

    I am not so sure that I must either unequivocally defend the SC as is or simply abandon it altogether. Rather, I think it reasonable to argue that requiring SC permission in the instant case is morally and legally required for the limited reasons I have given, whilst at the same time arguing that in future, certain reforms will need to take place. This is loosely analogous to arguing that Parliament needs reform to become more democratic, whilst at the same time agreeing that statutes passed under the current conditions should be pro tanto observed for democratic reasons. It seems to me that two changes might be made to better enable the SC to fulfil this role in the long term. Firstly, we should scrap the permanent members and replace it with a fairer procedure for allocating seats. Secondly, we could require SC resolutions to make more detailed reference to the reports of UN investigators for these purposes. Both changes seem feasible, at least in principle.”

  2. …and obviously by that I meant: ‘failed to make certain aspects of my position…’ ‘clear’ not ‘unclear’ 😛

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