Syria Update, and the Evolution of a Right of Counterproliferation-Oriented Preemptive Self-Defense?Posted: May 7, 2013
Well I’ve been listening to the news about Syria just like everyone else has. Things appear to be getting more complex by the day now, with the allegations by Carla del Ponte that it’s the opposition that has used Sarin gas; and the recent Israeli missile strikes inside Syria, condemned by Syria, Turkey and Iran. For the USG, knowing exactly what if anything to do about this huge political and security mess, and more importantly about the unfolding humanitarian tragedy for ordinary Syrians, has been difficult from the beginning. It now resembles a Gordian Knot, and I don’t envy President Obama his choices.
I thought I’d write down some thoughts about the recent Israeli missile strikes against what Israel claims were sites containing long-range missiles in transit from Iran, through Syria, to Hezbollah in Lebanon, who would then likely have used them against Israel at some point in the future. I really can’t penetrate the question of whether this narrative of the facts is correct. Like the Syrian chemical weapons situation, it’s very difficult to know what the facts are and whose version of them to believe.
But for the moment, let’s assume arguendo that the Israeli narrative is correct, and these military strikes by Israel inside Syria have been targeting, successfully, missiles in transit from Iran to Hezbollah, and that these missiles likely would have been used against Israel at some point. Turkey and others have said that these strikes by Israel are a violation of international law. Are they right?
Readers of this blog will recall that I wrote about the previous Israeli strikes into Syria, conducted for this same avowed purpose, back in January. See that post here. In the comments to that post, and in some other posts and comments to them lately, I’ve written quite a bit about my views concerning both what the lex lata (current law) is on preemptive international uses of force for counterproliferation and other reasons, as well as my views about when and how governments might legitimately consider acting in disharmony with that law. I wrote about the subject of counterproliferation-oriented preemptive self-defense from both a lex lata and lex ferenda (what the law should be) perspective in depth in an article in the George Washington International Law Review a few years ago. Even since then I’d say my views have evolved, and are still evolving.
In terms of the lex lata, I think Turkey is almost certainly right to say that these strikes by Israel inside Syria are in violation of international law. I can’t think of a persuasive justification under current law for striking at missiles in a warehouse in another country, that might at some point make their way to someone who might then shoot them at you sometime in the future. I don’t think this is covered by the customary law on anticipatory self-defense – and that’s even if you’re among those states and scholars (a majority in my opinion) who recognize this right in customary international law. See my recent brief discussion with Jordan Paust on this subject in the comments to this post by Dapo Akande over at EJIL: Talk.
That being said, as I noted in my piece about a similar strike by Israel into Syria back in January, if I put myself into the shoes of an Israel defense official at this moment, knowing what they know about how very likely it is that these missiles would indeed end up in the hands of Hezbollah, and in fact eventually be shot at Israeli cities including Tel Aviv, I have a lot of sympathy and understanding for why they are doing exactly what they are doing. And I would probably do exactly the same thing – a targeted strike on where the missiles are being housed in Syria, which is in the midst of a civil war and largely lawless, before they can be transferred to Hezbollah, and the moment to destroy them is lost.
Now, one thing I don’t want to be trite about is the fact that in this instance it appears that more than forty Syrian soldiers were killed in this attack. If that’s true, then it’s very lamentable. This would form a part of the law of armed conflict analysis of this strike, which is of course legally separate from the use of force law analysis I’ve been discussing so far. We’d have to know more facts about the incident to know if it complied with the law of armed conflict’s rules concerning discrimination and proportionality. And let me be clear about one thing – even in cases where I think it would be legitimate, even if not lawful under the jus ad bellum, to engage in international military force, there are no facts that would in my opinion excuse a violation of the law of armed conflict. So if these strikes violated the law of armed conflict rules on targeting, then they are unlawful and condemnable.
One more point I wanted to address, though, is the possibility that these strikes by Israel against sites in Syria, avowedly purposed in counterproliferation-oriented preemptive self-defense, might be contributing to the evolution in customary international law of a legal right to engage in such strikes. I know that these are contentious waters factually, but the legal principles here are well established. Customary international law can be created in areas like international use of force law, in which there are (thankfully) few data points, as long as there is state practice and opinio juris by acting states supporting the principle, along with general acquiescence by other states. In this way, use of force law is not unlike, say, the law governing shooting satellites into orbit. In both contexts there are relatively few states who have the capability to engage in the relevant state practice. If, therefore, among those states that do engage in the relevant state practice, there emerges consistent practice establishing a certain rule, and if it is accompanied by opinio juris of the acting states and, crucially, by the general acquiescence of the rest of the international community, a new rule of customary law will come into being.
This is the point at which the facts become highly contested in the context of a right of counterproliferation-oriented preemptive self-defense. Have there been sufficient examples of state practice establishing such a right? Has there been sufficient opinio juris expressed by those acting states? Has there been general acquiescence by the international community in the development of this rule? I expect that there are scholars who have written articles on this question – though I don’t know of any myself – engaging in a rigorous analysis of each question, using available empirical facts. And if there aren’t, then someone definitely should write one!
My own impression, based only on me sitting here thinking about it, is that we are likely not quite there yet on a number of vectors, but that such a right is likely emerging as a principle of customary international law. When Israel attacked Osirak in 1981 there was general condemnation of this act in the international community, including in the Security Council. When Israel launched a similar targeted attack on the suspected nuclear reactor at Al Kibar in Syria in 2007, there was nowhere near that level of condemnation. And in fact I think the facts probably support general acquiescence in that instance. Now with these recent strikes in Syria, there are a few regional states that are condemning them, but I doubt we’ll see much more generalized condemnation. In fact, I suspect a lot of silence and general acquiescence on the matter, because I think, like me, most people can understand where Israel is coming from here.
Iraq 2003 is a special case, and I wrote about it extensively in my 2009 book. It was, of course, not just a targeted counterproliferation strike. It was a monstrous, boots on the ground, regime change debacle, that started off with a – completely false as it turned out – counterproliferation objective. I think that this huge difference in context explains a lot of the condemnation associated with Iraq – which, believe me, I share in 100%.
I’m not going to take the time here to go through the empirical record systematically, and do the whole analysis. I’ll just say again that, while I don’t think there is currently a right of counterproliferation-oriented preemptive self-defense in the international lex lata, I do think that such a right is likely evolving through limited, targeted, instances of state practice like those we’re currently seeing Israel engage in in Syria, and the overall acquiescence of the international community in those cases.
We’re all trying to sort through the reports and evidence about the use of chemical weapons, specifically sarin gas, in Syria, allegedly by Syrian government forces. A lot is being said about whether the evidence of use is persuasive, and if so what sort of use it likely was/is – i.e. intentional use by government forces, an accident, etc.
I thought I’d chime in on the question of international law relevant to the use of chemical weapons by Syrian government forces, if that is indeed what has occurred. Chemical weapons possession and use is comprehensively regulated and essentially prohibited by the 1993 Chemical Weapons Convention (CWC), which is a masterwork of treaty drafting and construction. See Chapter 2 in my 2009 book for a thorough explication of the CWC.
The CWC built upon the 1925 Geneva Gas Protocol, which proscribed the use of chemical and biological weapons in war.
Specifically on the use of CW, Additional Protocol I to the 1949 Geneva Conventions, of which Syria is a party, prohibits the use in armed conflict of weapons “of a nature to cause superfluous injury or unnecessary suffering.”
Syria is not a party to the CWC. However, it is beyond doubt that the essential prohibitions contained in the CWC regarding both possession and use of CW, have passed into customary international law, and are thus binding on all states, including Syria. Syria is, though, a party to the 1925 Geneva Gas Protocol, so there is no question that Syria is bound by both conventional and customary international law to not use CW in war. I have seen it written that the 1925 Geneva Protocol “implicitly, does not cover internal or civil conflicts.” I actually don’t think that’s accurate, given later developments in the law of armed conflict, in which the essential rules of the LOAC have been understood to have both passed into customary law, and to apply to both international armed conflicts and non-international armed conflicts.
In a case like Syria, where we are undoubtedly dealing with a non-international armed conflict, the essential rules of the LOAC apply, and this includes the 1925 Geneva Protocol as well as Additional Protocol I to the Geneva Conventions. These conventions and the parallel customary international law attached to them, very clearly prohibit the use of chemical weapons during armed conflict. So I think there is no doubt that, if indeed chemical weapons have been utilized by Syrian government forces, Syria has violated the law of armed conflict.
So where does that take us? Well, as we all know, President Obama has said that the use of CW in Syria would be a “game changer” and would cross a “red line” (a whole new vocabulary we seem to be working with here!). This raises the question, why would the use of CW by the Syrian regime be such a game changer and cross such a red line, when we’ve been watching the regime slaughter its people with conventional weapons for years? This is a good question. I think it’s best answered by Max Fisher in the New York Times:
[T]he reason is about more than just Syria: it’s about every war that comes after, about what kind of warfare the world is willing to allow, about preserving the small but crucial gains we’ve made over the last century in constraining warfare in its most terrible forms.
One of the few positive outcomes of World War I was the Geneva Protocol of 1925, in which world leaders agreed that they would no longer use chemical or biological weapons. They wanted to change not just international law but international norms, both of which were further codified by the 1972 biological weapons convention and the 1993 chemical weapons convention. The idea was that war, sadly, is going to happen. But if we can all agree not to use chemical weapons, warfare will be less terrible.
It’s largely worked: With a few notable exceptions, the taboo against chemical weapons has held up. Even in some of the most vicious conflicts of the past few decades, otherwise ruthless armies and rebels have largely refrained from using chemical weapons. That’s a remarkable achievement and one of the world’s few successes in constraining warfare. Keeping Syrian leader Bashar al-Assad’s regime from breaking the chemical weapons taboo is about more than just what happens in Syria: It’s about maintaining the international norm against chemical warfare, about ensuring that present and future wars will not redeploy the awful chemical weapons that made the First World War so much worse than it would have otherwise been.
I agree with Fisher that this is a norm worth supporting. But from a legal perspective, just because CW are used in a non-international armed conflict like Syria, it doesn’t automatically give third states a legal justification for intervening in the conflict to stop their use. That may sound ridiculous to the non-lawyers out there. But international law still stakes Westphalian sovereignty very seriously, and does not permit interventions into sovereign states’ territory without a legal justification that can form an exception to the U.N. Charter’s broad prohibition on international uses of force in Article 2(4).
Over at Opinio Juris, there are a couple of thoughtful pieces by Julian Ku and Deborah Pearlstein on this subject of on what international legal justification an intervention into Syria by the US could be based. Julian particularly references an earlier post of his, and links to responses to that post by Daniel Bethlehem and Ashley Deeks. I encourage readers to view these posts, as they will give you the contours of the legal debate.
I personally am not very persuaded by either Bethlehem’s or Deeks’ legal justifications for a US intervention, even if CW have been unlawfully used by the Syrian regime. I share Julian’s essential skepticism that such an international use of force would be lawful.
That being said, I’ve thought for some time now that more should be done by the US to support the Syrian opposition forces against the Assad government forces. From supplies of both food and military materiel, to the establishment of no-fly zones enforced by US aircraft, I would support any and all such measures that wouldn’t put US boots on the ground, but would significantly support the opposition in Syria. I know there are a lot of problems with identifying who the opposition is, and a lot of concern about what comes next after Assad falls. But it seems to me that the opposition, even with its fractures, appears to represent the Syrian people much better than the Assad government ever has. And if the regime is now using chemical weapons against the opposition and civilians, I don’t think that the US can sit by any longer and watch this humanitarian tragedy unfold.
As usual, I’m trying to separate what I think the correct analysis of the lex lata is, from what I think should actually be done in the situation. I don’t like fudging the law to support what I think should be done. Here, I think the law is against outside intervention by the US, even if CW have been used. But I don’t think that should be the only factor in considering whether humanity and morality dictate action.