Military Action in Syria as a New Form of Belligerent Reprisal

Friend of ACL Colonel Liron Libman has written a really interesting and valuable contribution to the discussions we’ve been having here the past few days regarding a potential use of force against Syria. I’m extremely pleased that he has allowed us to post it here.

Liron was previously the head of the International Law Department of the Israeli Defense Force.

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Military Action in Syria as a New Form of Belligerent Reprisal

By: Liron Libman

The recent chemical attack attributed to the Syrian regime has taken the toll of more than 1,400 civilians, including hundreds of children, according to a US government intelligence report. As the possibility of a military response is discussed worldwide, different opinions are expressed as to the possible legal justification for such a use of force.

Of course, the best justification would be a UN Security Council resolution, under Chapter VII of the UN Charter, authorizing the use of force against Syria for a specific purpose and stipulating the conditions and limitations on such a use of force. However, it is probably unrealistic to expect such a resolution, especially when considering the fact that two years of bloodshed in Syria have not produced even a declaratory Security Council resolution denouncing the regime for International Humanitarian Law (IHL) and Human Rights Law violations.

The question remains, then, can a military response against the Syrian regime be legally justified, without Security Council authorization?

The obvious candidate for such a justification is the doctrine of humanitarian intervention, as illustrated by the UK government communique about its legal position on the justification for a military intervention in Syria (released, of course, before Parliament voted against UK participation in the operation).

However, as Prof. David P. Fidler recently wrote here at Arms Control Law, regardless of the general debate over the existence of a humanitarian intervention exception to the prohibition on the use of force against a state and its limits, it is difficult to fit the current situation into the humanitarian intervention mold. The rhetoric on both the cause for action, and the purpose of the intervention planned, is focused on the use of chemical weapons: the cause is the use of such weapons by the regime, and the purpose is to prevent or to deter the regime from further use of these weapons, prohibited by international law.

More than 100,000 people have died in the Syrian internal conflict to this point, many of them civilians. As many people wonder, is it allowed under international law to target your civilian population, as long as you butcher them with conventional weapons, such as tank shells and napalm bombs? Since the answer is negative, why is a military response deliberated only now? And how will the destruction of the Syrian regime’s chemical weapon stockpiles, or even the deterrence of the Syrian regime from repeating such an attack, protect Syrian civilians from deliberate attacks using conventional weapons in the future?

Indeed, this brought Prof. Fidler to suggest that perhaps we are currently witnessing the emergence of a new and independent exception to the prohibition on the use of force in international law – enforcing a fundamental rule of international law (the prohibition on the use of chemical weapon) by deterrence of violators.

What comes to my mind is the interesting analogy between such a rational in the jus ad bellum and an old rule of jus in bello: Belligerent reprisals.

Reprisals, in the words of the UK Manual of the Law of Armed Conflict (section 16.16), are:

“….extreme measures to enforce compliance with the law of armed conflict by the adverse party. They can involve acts which would normally be illegal, resorted to after the adverse party has itself carried out illegal acts and refused to desist when called upon to do so.”

The similarities between the possibly emerging rule (hereinafter- “the new rule”) and reprisals are:

1. Both are mechanisms designed to enforce IHL.

2. Both are based on the use of force against violators of IHL during hostilities in order to deter them from further violations, and thus may actually save lives, as opposed to enforcement ex post facto by holding perpetrators accountable, which cannot bring back to life even a single victim.

3. Both are based on the use of force in a way that exceeds the usual use of force during an armed conflict: in reprisals the act taken is usually illegal under IHL, and therefore outside of the regular lawful “toolbox” a belligerent possesses. In the “new rule” the act is taken by a third side, not a party to the ongoing armed conflict, therefore tilting the balance of power between belligerents.

Certainly, belligerent reprisals are a very problematic measure, rarely used. The ICRC’s Customary IHL study states (rule 145):

“In the course of the many armed conflicts that have marked the past two decades, belligerent reprisals have not been resorted to as a measure of enforcing international humanitarian law, the main exception being the Iran–Iraq War, where such measures were severely criticized by the UN Security Council and UN Secretary-General… The reticence of States to resort to reprisals can be explained by the fact that they are ineffective as a means of enforcement, in particular because reprisals risk leading to an escalation of violations.”

The ICRC further quotes Kenya’s Laws of Armed Conflict (LOAC) Manual:

“reprisals are an unsatisfactory way of enforcing the law. They tend to be used as an excuse for illegal methods of warfare and carry a danger of escalation through repeated reprisals and counter reprisals.”

However, one can see the advantages of the “new rule” compared to traditional reprisals:

1. It is not by itself a violation of IHL, “just” a violation of the jus ad bellum, thus, arguably, less problematic from a humanitarian perspective.

2. The enforcer is not the adversary, naturally to be suspected of ulterior motives other than preserving IHL, and more susceptible to motives like revenge. Rather, a third party not involved in the armed conflict. It is easier to trust such a third party to act with caution, impartially and proportionally.

If accepted as a new version of reprisals, one may borrow some important conditions from the old rule (all conditions taken, mutatis mutandis, from the UK manual, mentioned above, section 16.17):

1. It must be in response to serious and manifestly unlawful acts for whom the government of that state is responsible.

2. It must be for the purpose of compelling the violating government to observe the law of armed conflict – effectively serving as an ultimate legal sanction or law enforcement mechanism. Thus, if a party to an armed conflict breaches the law but then expresses regret, declares that it will not be repeated, and takes measures to punish those immediately responsible, then any action taken in response to the original unlawful act cannot be justified under this rule.

3. Reasonable advance notice must be given that military force will be used (is President Obama’s “red line” declaration enough?).

4. Other reasonable means of securing compliance must be exhausted before this measure can be justified (means like diplomatic pressure, economic sanctions, UN Security Council’s intervention).

5. The force used must be in proportion to the original violation.

6. It must be publicized. Since this measure is undertaken to induce compliance with the laws of armed conflict, any action taken must be announced as such and publicized so that the relevant government is aware of the reason for the otherwise unlawful use of force against it and of its own obligation to abide by the law.

7. As this measure will entail state responsibility, it must only be authorized at the highest level of government.

8. Action may not be taken or continued after the target government has ceased to commit the conduct complained of. However, when dealing with a pattern of unlawful attacks, it seems reasonable to demand positive evidence of a policy decision to abandon this course of action. The fact that a specific unlawful attack has ended and another one of a similar type has not yet began, is not enough.

As Prof. Fidler carefully notes, this is a preliminary “thought experiment” addressing unfolding events, not a statement of existing law. I hope I have added something to this experiment.