Were the US, UK and France led air strikes against Syria strictly by the book?
As long as legal force may only be used with the support of all the members of the UN Security Council, the application of international law to armed conflicts will always be a grey area.
On April 7, 2018 there were reports emerging that there was a chemical weapons attack in the Syrian city of Douma, which reportedly killed at least 70 people. This attack was attributed to the Syrian Arab Army, a military force under the command of the Syrian President Bashar al-Assad, the current incumbent president of Syria. These attacks were allegedly part of operations that are currently happening in the Syrian Civil War, that has lasted for more than seven years now.
The Syrian Civil War has previous allegations of the use of chemical weapons. A week later after the attack at Douma, a coalition of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Republic of France - the Three State Coalition - carried out air strikes aimed at Syrian government facilities in the region. These strikes were carried out against suspected chemical weapons facilities in Syria. According to claims made by the Syrian government, the attacks killed 6 Syrian soldiers and 3 civilians.
If Syria used chemical weapons, then it is in clear breach of international law. Syria would be in violation of the Chemical Weapons Convention. Even in the absence of a treaty, customary international law makes the use of chemical weapons illegal.
However, this article will not deal with the legality of the use of chemical weapons, but will restrict its scope to the legality of the response by the Three State Coalition.
UN Charter and international law
Article 2(4) of the UN Charter makes the use of force between two member states illegal. There are only two circumstances outlined in the Charter that make it lawful to use force to ensure a state complies with its international obligations. The first is that the use by in self-defence and the second when the use of force is authorised by the Security Council in accordance with Chapter VII of the Charter.
It will be interesting here to note, full scale wars have been authorised by the Security Council under Chapter VII. The Korean War was a war fought between the United Nations and the Korean Communist forces. In that case however, the word "war" was not officially used and the actions in Korea were instead called a "police action" against North Korea.
Essentially under the UN Charter, war can no longer be an extension of state policy. Wars of conquest are prohibited along with wars that aim to achieve ends other than bringing a state into compliance with international law.
However, international law is not restricted only to the provisions of the UN Charter. The UN Charter while being the core (near constitutional document) of international law, is at the end of the day only a treaty. Over the years since the Charter came into force, States have resorted to the use of force and have made legal justification for such use of force.
An example would be the 2003 invasion and regime change in Iraq which was not explicitly authorised by the Security Council. Unlike the war in Afghanistan, where the US and NATO invoked self-defence under the Charter, Iraq was justified a pre-emptive military action to prevent Saddam Hussain from developing weapons of mass destruction.
While examining the legality of the Coalition's actions, it will be useful to examine both treaty law as well as customary law.
Civil war, or international conflict by proxy?
The United Kingdom has published its legal justification for the use of force. It has asserted that the use of force against Syria was justified on the grounds of humanitarian intervention.
In 2005, the UN General assembly convened a World Summit between September 14-16 of that year. The outcome document of the World Summit [UN General Assembly, 2005 World Summit Outcome: resolution adopted by the General Assembly, 24 October 2005, A/RES/60/1] outlined a doctrine that is known as the "Responsibility to Protect". This doctrine states that the member states of the UN have a responsibility to protect civilian populations from war crimes, genocide, ethnic cleansing and crimes against humanity.
However, even the Responsibility to Protect doctrine mandates that states use the UN system before the intervene under this doctrine. Accordingly, under international law there is not much justification that a State may use when it is about to unilaterally intervene in another state.
But the civil war in Syria is different from other civil wars which fall under the head of an internal armed conflict. It may be termed an internal armed conflict that has taken on an international character. This was a doctrine outlined by the International Tribunal for the Former Yugoslavia in the case of Prosecutor v Dusko Tadic, where the Tribunal held in Paragraph 72 that:
"As the members of the Security Council well knew, in 1993, when the Statute was drafted, the conflicts in the former Yugoslavia could have been characterized as both internal and international, or alternatively, as an internal conflict alongside an international one, or as an internal conflict that had become internationalized because of external support, or as an international conflict that had subsequently been replaced by one or more internal conflicts, or some combination thereof. The conflict in the former Yugoslavia had been rendered international by the involvement of the Croatian Army in Bosnia-Herzegovina and by the involvement of the Yugoslav National Army (“JNA”) in hostilities in Croatia, as well as in Bosnia-Herzegovina at least until its formal withdrawal on 19 May 1992. To the extent that the conflicts had been limited to clashes between Bosnian Government forces and Bosnian Serb rebel forces in Bosnia-Herzegovina, as well as between the Croatian Government and Croatian Serb rebel forces in Krajina (Croatia), they had been internal (unless direct involvement of the Federal Republic of Yugoslavia (Serbia-Montenegro) could be proven)." [ICTY, The Prosecutor v. Dusko Tadić, IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995.]
The conflict in Syria may also fall within this test, as there are state-like entities currently functioning in Syria that are not the Syrian government. These entities would include the Syrian National Council (which has taken Syria's seat in the Arab League and has also been recognised by other States) and the Democratic Federation of Northern Syria which has also engaged with states on a semi-diplomatic level.
Many state actors in Syria
The question now arises if Article 2(4) of the UN Charter prohibits states from joining in support of a party to an international armed conflict. Though the purpose of the UN Charter is that states may not use force against each other in the conduct of their relations with each other. The UN Charter does provide for collective security arrangement between states that can be entered into. (Article 52, 53 and 54 of the UN Charter).
Though the Coalition’s assistance to a belligerent in the Syrian Civil War may not technically be termed to be a part of a collective security arrangement, it does allow for a contemplation that a State or a Belligerent in a war may rely on allies to come to its aid.
The airstrikes that the US engaged in during April of 2017 were welcomed by the Syrian Opposition, including the Syrian National Council and the Free Syrian Army, with the latter going to the extent of asking the international community to intervene in Syria. Recently, the Syrian National Council has been on the backfoot in Syria with Assad's armies slowly reducing the territory under its control. However, the Democratic Federation of Northern Syria controls a significant chunk of the country's northern territory.
The Syrian National Council has some international recognition. It is like the recognition that the People's Republic of China had prior to it taking the Republic of China's seat at the UN. This recognition may pave the way to provide these airstrikes with an element of legitimacy.
While there is one Syrian state, right now there are three “state actors” in Syria. If this action was authorised or requested by one of the State actors, the action may meet the test of legality under international law. But the Coalition has so far refused to take explicit sides in the conflict, which is why perhaps the justification so far has been one that is founded on the need to protect civilians from chemical weapons.
More often than not, international law is about politics rather than strict legality. There is no effective way but force to prevent states from using force. As long as legal force may only be used with the support of all the members of the UN Security Council, the application of international law to armed conflicts will always be within this grey area as unless the permanent members are politically satisfied there is no scope for any explicit legality.
Ajay Kumar is an Advocate at the Bombay High Court, he is currently retained as an Associate by the firm of MZM Legal he can be reached at email@example.com This article was prepared with research inputs from Amal Patankar an Associate at MZM Legal, she may be reached at firstname.lastname@example.org