Is military intervention justified if Syria uses chemical weapons? Je ne crois pas…Posted: August 28, 2012 Filed under: Chemical | Tags: chemical weapons, R2P, Syria, UN Charter 4 Comments
I read in the press that, according to French President François Hollande, the use of chemical weapons by Syria would be ‘a legitimate justification for military intervention’. Am I missing something here? The only case where the use of WMDs (or any other weapon) would legitimate an intervention against Syria would be if Syria would be using them against the interveners, who could then invoke self-defence. Or if the Security Council adopts a resolution under Chapter VII of the UN Charter authorising a military intervention in reaction to the use of WMDs by Syria against its own population (perhaps this is the situation Hollande had in mind). After all, according to para. 139 of the 2005 World Summit Outcome Document, states are prepared to exercise their responsibility to protect populations from their own governments only ‘through the Security Council, in accordance with the Charter, including Chapter VII’, and not unilaterally.
The use of chemical weapons, and of WMDs in general, is a violation of jus in bello, and not, per se, of jus ad bellum, which does not differentiate between types of weapons. Unless, of course, one argues that Hollande’s statement, which follows similar statements by the UK and the US, is a manifestation of a new opinio juris of the international community which might eventually lead to the formation of a further exception to the prohibition of the use of force under customary international law. But, in my opinion, this conclusion seems still unjustified.
I was going through the posts and comments of this, let me say, one of the most-useful-blogs, and it struck me that no further comment was added hereon.
I’d like to refer to some question begging assumptions before making few comments. First of all, I do not clearly understand why Syria “is obliged” not to use chemical weapons, and if it is, what shall be the legal foundation thereof. Does the nature of the conflict, internal or international affect this? Secondly, and from another point of view, should not WMDs be used in any case? E.g. in the opinion of the ICJ in 1996, in an ambigious way and analogous to cw, use of nuclear weapons is banned unless there exists a state of extreme necessity for a State, whereby the Court refrained from commenting on. Thirdly, what is really stated in Holande’s statement, and is that statement alone points to an opinio juris alone? If so, then what about State practice and, if any, other conditions of int’l customary rule to emerge. One may adduce other remarks.
In my opinion, Hollande’s statement brings several questions to be answered beforehand. First, how can we assure ourselves of the use of chemical weapons in Syria? Then, taking also the above comment into consideration, in such a “conflict”, if we cannot assure ourselves, in case UNSC authorizes a use of force, what would be consequences? In normative sense, there seems no way to use of force rather than collective security system, but, in fact, there have always been exceptions. I take Hollande’s statement to reflect the France’s position in ongoing and endless-seeming discussion on Syria, which is directly related to the positions of Russia and China in the UNSC. Furthermore, the legality of the question is highly debatable.
Thank you for your comment. Syria is not a state party to the 1993 Chemical Weapons Convention, but, according to the ICRC, the use of these weapons is prohibited under customary international law, both in international and non-international armed conflicts. In the Tadić case, in particular, the ICTY held that ‘there undisputedly emerged a general consensus in the international community on the principle that the use of [chemical] weapons is also prohibited in internal armed conflicts’ (Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 124). The ICJ’s controversial conclusions in the Advisory Opinion on the legality of the threat and use of nuclear weapons cannot be used to justify the use of chemical weapons by Syria, for two reasons. First, the ICJ refers to ‘extreme circumstances of self-defence’ (not necessity): this is not the case of Syria, which is not the victim of an armed attack. Second, as already said, while the use of chemical weapons is prohibited by customary international law, the use of nuclear weapons – at least according to the ICJ – is not, as state practice and opinio juris are ambiguous.
I agree with you that an alleged right of unilateral intervention in Syria would probably create more (legal and political) problems than it would solve.
I thought a lot before sending this post because this site is dedicated to legal aspects of arms control. But, things, especially contexts seem complicated in an issue as such.
In my comment I tried to point out difficulties inherent in international legal argument. E.g. I shall conclude that ICJ ruled out use or threat of nuclear weapons, however (taking international law into consideration in 1996), refrained from declaring an opinion on such a case. Therefore, in principle, it shall be held that use or threat of use of nuclear weapons are contrary to international law. But, doing so, I contradict myself. One may also notice that the formulation used by ICJ resembled nineteenth century “state necessity” doctrine in the said opinion… In sum, the argument seems to be “circular” in its perfect sense.
We may also assert that ICRC’s (invaluable) Study is only a source of international law in terms of ICJ Statute, Art. 38(1)(d) as well as the reference made in the Tadic case.
The sole thing I am trying to advance is that ‘legal’ cannot be easily separable from the ‘political’.
[…] Rule of law. The Secretary-General maintains that the use of chemical weapons by the Syrian government would be ‘an outrageous crime with dire consequences’. While this is an obvious statement, it would have been interesting if the Secretary-General had expanded on the remedies should such a crime be committed: in particular, does he support the responsibility to protect doctrine to the point of allowing the unilateral use of force by states in reaction to international crimes? (see my previous post on this topic here) […]