RUSI Analysis, 29 Aug 2013 By Dr Jonathan Eyal, International Director and International Studies Director

Creative reasoning is being deployed to justify the legality of military intervention in Syria. However the the legal case for strikes against Syria  is removed from being either obvious or clear-cut.

Mr Dominic Grieve, Britain’s Attorney General and chief legal advisor to the Crown, has told his country’s Cabinet that military strikes against Syria ‘would be legal’ under international law.

It is apparent from the Guidance that an army intervention in Syria is legal belongs to that special category of ‘creative reasoning’ that is often supplied by bright, expensive lawyers to clients who’ve all of the wealth but no persuasive legal case: this can be a concoction of selectively-chosen facts mixed with a couple of high-sounding principles which, with somewhat luck, would bamboozle anyone who cares to read it. For the truth is that the legal case for strikes against Syria, and particularly for the limited, punitive strikes which might be now being contemplated, is much from being either obvious or clear-cut.

To start with, it’s worth remembering that, as was the case with almost each international military intervention because the end of the Cold War greater than twenty years ago, Western governments first decide that they need to make use of force and only then scramble for legal justifications, instead of the opposite direction around. Politicians could have decided to behave in Syria out of strategic or tactical considerations and even out of sheer frustration, but compliance with international law isn’t the driver to such actions. And, invariably, the legal case is fuzzy.

The Self-Defence Argument

The most tempting argument to make in such cases is usually that of self-defence, an inherent right of each sovereign nation and a principle which, because the United Nations Charter explicitly acknowledges, predates the creation of organisation itself and is, therefore, not always subject to an identical panoply of restrictions which were created to using force because the end of the second one World War. There were uncorroborated media reports that a minimum of component to the British case for a strike against Syria now could be  ‘to protect British interests inside the region, including the defence of the UK’s sovereign base in Cyprus, that’s considered potentially within range of President Assad’s Scud missiles’.

But the logic of this argument is thinner than air. To invoke the necessity to use force in self-defence, the alleged threat must, among others, be grave and immediate, brooking no delay. It’s patently obvious that this isn’t the case with Syria now: presumably, the British knew for no less than twenty years that Syria had a ballistic capability to hit at their sovereign bases, and so they knew for greater than the last two years that this capability was getting used in a hostile environment, against rebels.

There isn’t any evidence that President Assad is set to fireplace any of his arsenal against any Western target; indeed, the simplest countries that could invoke the main of acting in self-defence now could be Israel, which was directly threatened by Mr Assad in a speech earlier this week and Russia, which has a number of its own citizens inside Syria, now being threatened by Western military strikes. Briefly, if the British government desires to avoid tying itself in knots and exposing itself to the ridicule rightly heaped on former Prime Minister Tony Blair’s claim that Saddam Hussein’s Iraqi missiles could reach British soil or installations ‘in 45 minutes’, it’ll be well-advised to drop the self-defence argument when it comes to Syria.

Deterring any more Use of Chemical Weapons

A weightier – or not less than a more intellectually-coherent – argument for military action is that of the terror that if no international response is forthcoming to a chemical attack that is believed to have killed as many as 1,400 people in Damascus last week, a very important, long-standing distinction between conventional process of warfare and weapons of mass destruction turns into blurred, potentially encouraging others to resort to similar chemical attacks. Action is, therefore, required not just as a result of enormity of the massacre, but in addition due to its implications on global security, due to a necessity to revive the part of deterrence against using chemical weapons.

That is, essentially, the argument recommend by British Foreign Secretary William Hague earlier this week, when he said in connection with the atrocity in Syria that  ‘this is the primary use of chemical warfare within the 21st century. It needs to be unacceptable, we need to confront something that may be a war crime, something that could be a crime against humanity. If we do not accomplish that, then we shall need to confront even bigger war crimes within the future’. The usa argument also runs along similar lines:  President Assad’s alleged use of chemical weapons violated ‘the general law of war’ while the use and proliferation of such weapons represented ‘a threat to America’s core national interests’, is how the united states State Department’s spokesman put it earlier this week.

But there are serious issues of this argument in addition. Western governments skirt across the basic proven fact that  Syria is a celebration to neither the 1972 Biological Weapons Convention, nor the 1993 Chemical Weapons Convention, nor the so-called Rome Statue of the International Criminal Code (which also reinforces the taboo against chemical weapons) and can’t, therefore, be held answerable for obligations it hasn’t ever accepted.

True, Syria is a celebration to the so-called Geneva Protocol of 1925, which bans the usage of toxic gases in wars. But that document is often interpreted as having been designed with inter-state wars in mind, not with internal conflict of the type we’re witnessing in Syria today; that’s why the next international efforts to enrich the Geneva Protocol with other obligations have been undertaken, and most of these haven’t been accepted by Syria. a more robust case may be made – and is being made by the International Committee of the Red Cross – that the prohibition against chemical weapons has now become customary international law, namely that it’s so entrenched that it has acquired the status of a duty applying to any sovereign state, if it is party to a particular treaty about that topic or not. A fair stronger case could be made that the best way the Syrian regime handled its own citizens constitutes a grave violation of the Geneva Conventions of 1949, which prohibit the indiscriminate killing of non-combatants, and apply specifically to civil wars, like Syria’s today.

But no matter if these kind of arguments are correct and rise up, they don’t amount to a justification for the united states, Britain and a handful of alternative, self-proclaimed members of the ‘international community’ to take it upon themselves to apply force so that you can uphold these principles. Neither is it very clear how the Syrian government may be held answerable for gassing its people simply because the united states and a handful of alternative allied government claim to have ‘irrefutable’ evidence to that effect, even before a UN team of inspectors at the ground have produced any report all alone investigation. Furthermore, establishing the truth that a sovereign state has violated international or bilateral obligation can’t be held to intend that other nations can take it upon themselves to enforce these obligations by using force, or launch ‘punitive’ expeditions.

Humanitarian Arguments and the Responsibility to Protect

A more imaginative argument is that the action against Syria is motivated by the ‘Responsibility to Protect’ idea which rose at the global agenda over the past 20 years, based on a manifest have to act in circumstances when a state is either unwilling or unable to give protection to its people. The horrors of Rwanda, the Yugoslav wars of the 1990s and Darfur, to call but a couple of: in these types of conflicts, earlier action by the international community can have certainly saved lives, and will have prevented some conflicts altogether.

R2P – because it is now generally known – was initially elaborated by a committee of experts in 2001, and subsequently endorsed by the UN General Assembly in 2005. But, as is commonly the case in international law, R2P’s intellectual roots return a millennia, to the customary ‘just war’ concept. As refined by generations of jurists and practice, the ‘just war’ theory argued that, under certain conditions – inclusive of a grave danger to international security or to a set of folk, the exhaustion of all different kinds of conflict-management and a cheap prospect of success – an army intervention may well be considered ‘humanitarian’ and therefore permissible,  in the sense that it served an efficient moral purpose.   

However, quite excluding the indisputable fact that the legal validity of R2P is heavily contested by key countries including Russia and China in addition to scores of developing nations, this is difficult to determine why a ‘punishment’ operation of the type envisaged in Syria should help protect the folk of that country from the tender mercies in their rulers or, again, why it falls to simply a handful of states to enforce this rule without bothering to create a much wider international consensus, and against your complete evidence that the genuine international community – that represented in the course of the UN Security Council, most emphatically doesn’t see matters within the way they’re seen in London, Paris or Washington. Abusing the R2P concept, or transforming it into the catch-all justification for any wanton use of force which can’t be justified under some other international law criteria is a gross disservice not just to the UN and its agencies, but additionally to future humanitarian crises.[1]

And an identical applies to the increased usage during the last few days of the argument that a Syria operation might be justified so-called ‘Kosovo Precedent’, the choice in 1999 to visit war within the former Yugoslavia within the teeth of Russian opposition and despite the absence of an explicit UN Security Council mandate. For, quite aside from the undeniable fact that two wrongs are not making a right, the fundamental fact remains that, despite the fact that the Kosovo operation was justified at the grounds of averting what at the moment gave the impression of genocide, there’s little or no doubt that the Kosovo war itself violated the provisions of the UN Charter, and considerable doubt that an analogous conditions which prevailed in Yugoslavia in 1999 are applicable to Syria today apart, perhaps, from the disappointment of Western governments with the present situation.

None of this is often to indicate that the Western powers now contemplating action in Syria are without all arguments. a fair case – at a more profound level – could be made that the UN Security Council isn’t the absolute, ultimate arbiter of using force, in all cases: force was used before the UN was invented, international law existed centuries before even the League of countries was conceived, and the UN Charter itself hasn’t ever claimed to substitute for customary international law. True, the UN Security Council is the biggest institution authorising using force, and ignoring it – as some Western governments at the moment are proposing to do in Syria – is a damaging impulse which ought to be resisted under most circumstances. But folks that accuse the West of destroying the credibility of the UN Security Council will do well to indicate an accusing finger at Russia and China, the 2 countries that have blocked any action on Syria by way of their veto powers. The credibility of the UN Security Council is not just damaged when it’s by-passed; it’s also damaged when the organisation is paralysed by countries which includes China and Russia. So, if China and Russia value their veto power, then they should also learn how to use their vetoes sparingly. That could be a significant argument which will be recommend by Western governments a lot more frequently.

But, ultimately, that’s also a political argument for brand spanking new norms in international behaviour; it is not a legal argument for the action being contemplated in Syria. For actually that, although clever lawyers will always discover a wheeze, the Syria operation has little justification in international law.

Note 

1. For an extended discussions of the opportunities and dangers in using R2P to justify operations which can’t be otherwise justified see RUSI, Short War, Long Shadow: The Political and armed forces Legacies of the 2011 Libya Campaign.

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