Neither Humanitarian Intervention Nor Self-Defense in Syria: A New Justification for the Use of Force in International Law?Posted: August 28, 2013
As matters hurtle toward a military strike against Syria, the debate about the prudence and legality of such a strike is in full frenzy–and Arms Control Law has participated in this debate earlier and over the past few days.
Here, I follow-up on a thought I raised in a reply to a comment on my August 23rd post on international and national legal issues associated with possible military action against Syria in response to the chemical weapons attack, namely that the international legal justification for using force against Syria is not really humanitarian intervention.
So, to continue this thought experiment, what might be emerging here is, in essence, a claim that use of chemical weapons on a large-scale provides an independent basis in international law for countries to use force against the government perpetrating such an illegal action.
As we have seen in the debate, including my August 23rd post, commentators have tried to slot a military response to the Syrian chemical weapons incident into existing exceptions to the prohibition on the use of force in international law, including arguments that such a military response:
- Can only be legal if authorized by the Security Council;
- Could, perhaps, fall under a broad concept of self-defense; and
- Can be justified as humanitarian intervention not requiring Security Council authorization.
However, Security Council authorization is unlikely, and arguments from self-defense (even broadly interpreted) and humanitarian intervention encounter serious problems as justifications for the use of military force against Syria as a response to the chemical weapons incident. As between a self-defense argument and the humanitarian intervention argument, the humanitarian intervention argument appears to have more support, with the humanitarian intervention in Kosovo undertaken without Security Council authorization often considered the best precedent. The resolution the U.K. has introduced at the Security Council apparently seeks authorization for “all necessary means to protect civilians,” which links to the humanitarian intervention framing of the problem.
Although I understand the framing of the issue in this manner, especially given existing international law on the use of force, the humanitarian intervention argument does not fit this crisis well. The humanitarian intervention exception to the prohibition on the use of force is very controversial even when used to prevent or stop humanitarian atrocities. Even many supportive of the humanitarian intervention in Kosovo acknowledged it did not, or should not, constitute a strong precedent for a humanitarian intervention exception to the prohibition on the use of force in international law.
The path to the use of force against Syria is hard, however, to pave with humanitarian intentions. From the “red line” laid down by President Obama through the present crisis, the focus has been on the use of chemical weapons by Syria in its civil war. Although we do not know what the anticipated military strike will involve, public statements of the U.S. and other governments indicate that the military response will be limited in scale and duration, designed to deter any further use of chemical weapons, and is not intended to change the course of the Syrian civil war or effect regime change. Put another way, based on what we are being told, this military intervention appears surgically focused on shoring up the international legal prohibition against the use of chemical weapons.
Preventing any more use of chemical weapons would have positive humanitarian consequences in removing one type of weapon from the battlefields of Syria, but, as many have already argued, the currently stated purposes and objectives of the military response will not alleviate the humanitarian disaster the Syrian civil war has become. As has already been asked, is death and suffering from chemical weapons worse, as a humanitarian matter, than death and suffering from conventional weapons?
The anticipated military strikes will not, apparently, degrade the Syrian military’s ability to use heavy conventional weapons against civilians and civilian areas, which have been the source of much human death and suffering in this conflict to date. Nor apparently are the strikes designed to change the Syrian government’s and military’s strategies, tactics, and choice of weapons, except with regard to chemical weapons. Humanitarian protection, as an objective or outcome, is deliberately limited to use of a specific type of weapon. Put differently, but for the use of chemical weapons, we would not be debating humanitarian intervention any differently than we have since the Syria civil war started. More simply, it’s fundamentally about the weapon not the human suffering.
Following this thought, justifying military action against Syria flows most directly, then, from the importance of protecting the “chemical weapons taboo” in international law–the complete prohibition in armed conflict of the use of any chemical weapons. This prohibition contains within it not only the purpose of limiting the suffering war causes but also the core interests of states in eliminating chemical weapons from armed conflict. These core interests have coalesced multilaterally in a manner that makes this prohibition one of the most important rules in international law, an importance developed on the journey from the trenches of World War I, to the Geneva Protocol of 1925, and to the CWC of 1993–as enhanced by actions to prevent chemical terrorism (e.g., Security Council Resolution 1540).
Looking at the way the move to military action against has developed, the anticipated military response appears most deeply rooted in this prohibition and its fundamental importance in international relations. This prohibition is, then, the basis for justifying the legitimacy and legality of a use of force against Syria in the absence of a Security Council resolution.
But. wait, I hear people saying (or perhaps shouting), international law has not recognized such an exception to the prohibition on the use of force–there’s no state practice or opinio juris supporting this notion, nor does any treaty, including the Geneva Protocol or CWC, create any such exception. All correct arguments, but my point is that we are perhaps seeing unfold a rapidly emerging acceptance of a new exception to the prohibition on the use of force grounded in a critical rule of international law, the importance of which depends on its protection or, if you will, its enforcement, including through military means against violators. Otherwise, we are left with the contorting legal gymnastics necessary to make what is about to happen “humanitarian intervention” or “self-defense.”
This thought experiment has not addressed every issue, problem, pitfall, or potential “you can’t be serious” response raised by what it has suggested, but, being a speculative enterprise, pushing this idea farther at the moment might aggravate more than illuminate.
And now for something completely non-Syrian that still involves chemical weapons. In its October 2013 Term, the US Supreme Court will hear Bond v. United States, a case that involves treaty interpretation and constitutional challenges to the CWC Implementation Act. Briefly, the federal government successfully prosecuted Carol Ann Bond under the criminal provisions of this Act for using toxic chemicals against a woman who had an affair with Bond’s husband. Bond challenged the federal government’s interpretation of the CWC (as implemented in the Act) and asserted that the treaty did not apply to her case. She also argued that the CWC Implementation Act was unconstitutional because it exceeded Congress’ authority to pass legislation to implement a valid treaty, encroached on state authority for local criminal matters, and, thus, violated principles of federalism.
For those interested in learning more about the case, see the Bond v. United States page on SCOTUSblog. This page includes links to the briefs filed by the parties and amicus briefs submitted by various experts. One such amicus brief filed by experts on international arms control agreements (including me) supports the U.S. government’s position in this case and seeks “to explain the CWC’s requirements in light of its text, structure and history and the shared understanding of the 189 states parties to the CWC, to explain the treaty’s importance for the United States and the rest of the world, and to explain the reasons why the terms of the treaty were intentionally made expansive.”
As media are reporting, high-level discussions in Washington, D.C. and elsewhere are focusing on how governments should respond to the incident in Syria involving an alleged chemical weapons attack by the Syrian regime. These discussions include consideration of military strikes against Syria. Earlier, in light of conclusions that the Assad government had used chemical weapons on a small scale, deliberations about arming Syrian rebels raised questions of international law and other sources of law (EU law, US law). See, for example, Pierre-Emmanuel Dupont’s Arms Control Law post on this issue.
At present, the debate about direct military strikes is dominated by non-legal questions, such as (1) clarifying what happened and who is responsible (on which see Jean Pascal Zanders’ posts on Arms Control Law and The Trench), (2) further danger to US credibility given existing controversies about President Obama’s “red line” statements, and (3) whether military intervention would be prudent or effective. However, as suggested by gathering momentum for military action, legal issues are on the agenda internationally and within governments contemplating the use of force. So, here are some preliminary, general thoughts on these legal questions.
In terms of international law, two critical, linked issues are (1) the principles on state responsibility (did a chemical weapons attack occur, and was the Syrian government responsible?), and (2) the rules on the use of force (does a chemical weapons attack attributable to the Syrian government provide a justification for other states to use force against Syria?).
The cleanest scenario would be for the evidence to show that the Syrian government used chemical weapons, and, then, for the Security Council to authorize UN member states to respond with military force to this threat to international peace and security.
For many reasons, this scenario is unlikely to be the one that plays out. At the moment, it appears as if definitive attribution of this attack to the Syrian government will prove time-consuming, difficult, and politically contentious, leaving enough room and time for differences among members of the Security Council to produce opposition to a resolution authorizing the use of force against Syria.
The next strongest basis for using force, the right to use force in self-defense, is not an option because the attack in question was not perpetrated against another state. Nor, at the moment, would an argument of anticipatory or pre-emptive self-defense be persuasive as a justification for using force.
That leaves the more controversial option of justifying a use of force under the “responsibility to protect” (R2P) principle, or (to the extent it is considered distinct from R2P) under the older idea of humanitarian intervention. This option is controversial because, among other things, whether a state can rely on these grounds to use force without Security Council authorization remains hotly debated, indicating that no consensus exists in international law on this question. The Syrian conflict, and the humanitarian debacle associated with it, has revealed the depth of disagreement about, and the difficulties associated with, the R2P principle in international law.
However, even given this controversy, the large-scale use of chemical weapons by a government against civilians in a civil war constitutes an atrocity of sufficient gravity that states can, with some force, argue that international law permits military action against that government without authorization of the Security Council. This argument will agitate the long-standing legal controversy in this area, but the controversy cuts both ways in that its existence means neither position is beyond the legal pale. Potentially effective ways to manage the controversy in order to tip opinion in the direction of using force without Security Council authorization include (1) producing clear and convincing evidence of Syrian government responsibility for a chemical weapons attack, (2) making good faith efforts to try to obtain Security Council authorization for a use of force, and (3) ensuring serious multilateral support for, and participation in, military action against Syria.
In terms of US law, military strikes by US armed forces would bring questions of constitutional war powers into play, as well as the War Powers Resolution (WPR). Most recently, controversies about the application of constitutional war powers and the WPR erupted in connection with the US air campaign against Libya. To much debate, the Obama administration argued that US military activities against Libya did not constitute “war” under the Constitution or “hostilities” under the WPR. Whether the administration would use the same reasoning with respect to military action against Syria depends on many factors, including the scope and seriousness of US military efforts.
However, we know enough to understand that Libya and Syria are not comparable. To date, US reluctance to get involved militarily in Syria flows, in part, from a realization Syria presents a harder target, and a more difficult operational context, than Libya. These differences would probably require more extensive, much riskier military activities than the US was able to undertake against Libya. Legally, it would be harder to sustain the position that such activities do not constitute “war” under the Constitution or “hostilities” under the WPR. Further, very limited military actions designed to permit re-use of the legal positions taken in the Libya incident could undermine the international legal case that military force is justified in responding to a large-scale atrocity committed with chemical weapons.
To avoid constitutional and statutory problems, the President could seek congressional authorization to use force, but the wisdom of US military intervention into the Syrian conflict has been, and currently is, at issue in Washington, D.C., even in light of the alleged chemical weapons atrocity. Given this, and the nasty political climate between the White House and Congress, it is difficult to believe that Congress would declare war on Syria absent some development that would dramatically change the political calculations inside the Beltway.
This morning the UN Human Rights Council published the report of the Independent International Commission of Inquiry on the Syrian Arab Republic (ICI).
While detailing the horrors of the escalating civil war and the atrocities committed by both sides, the document was eagerly awaited after Commissioner Carla del Ponte had claimed on Swiss-Italian television four weeks ago that the ICI has evidence of rebel use of chemical weapons (CW). She added that it still had to see direct evidence of government chemical warfare. The next day the ICI clarified that ‘it has not reached conclusive findings as to the use of chemical weapons in Syria by any parties to the conflict. As a result, the Commission is not in a position to further comment on the allegations at this time’. Despite its terseness, it did not exactly refute del Ponte’s asseveration.
The 29-page ICI report, however, supports none of the details in her television interview. The introductory summary notes that ‘there are reasonable grounds to believe that chemical agents have been used as weapons’, but ‘the precise agents, delivery systems or perpetrators could not be identified’. CW are addressed in more detail in Part IV(D) on Illegal Weapons:
136. As the conflict escalates, the potential for use of chemical weapons is of deepening concern. Chemical weapons include toxic chemicals, munitions, devices and related equipment as defined in the 1997 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and Their Destruction. Also applicable is the 1925 Geneva Protocol which Syria has ratified. The use of chemical weapons is prohibited in all circumstances under customary international humanitarian law and is a war crime under the Rome Statute.
137. The Government has in its possession a number of chemical weapons. The dangers extend beyond the use of the weapons by the Government itself to the control of such weapons in the event of either fractured command or of any of the affiliated forces gaining access.
138. It is possible that anti-Government armed groups may access and use chemical weapons. This includes nerve agents, though there is no compelling evidence that these groups possess such weapons or their requisite delivery systems.
139. Allegations have been received concerning the use of chemical weapons by both parties. The majority concern their use by Government forces. In four attacks – on Khan Al-Asal, Aleppo, 19 March; Uteibah, Damascus, 19 March; Sheikh Maqsood neighbourhood, Aleppo, 13 April; and Saraqib, Idlib, 29 April – there are reasonable grounds to believe that limited quantities of toxic chemicals were used. It has not been possible, on the evidence available, to determine the precise chemical agents used, their delivery systems or the perpetrator. Other incidents also remain under investigation.
140. Conclusive findings – particularly in the absence of a large-scale attack – may be reached only after testing samples taken directly from victims or the site of the alleged attack. It is, therefore, of utmost importance that the Panel of Experts, led by Professor Sellström and assembled under the Secretary General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons, is granted full access to Syria.
Is there anything new?
The strongest refutation of del Ponte comes in §138: insurgents ‘may access and use’ CW refers to a future possibility, not events in a recent past. The 430 interviews and other evidence collected between 15 January and 15 May 2013 yielded ‘no compelling evidence that these groups possess such weapons or their requisite delivery systems’.
Although the next paragraph states that ‘allegations have been received concerning the use of chemical weapons by both parties’, it does not specify from whom the ICI obtained this information. Listing the main allegations between March and mid-May, the sources may just as well have been the UN Secretary General, the formal requests to Ban Ki-moon by Syria, UK and France to launch a formal investigation of alleged use, or the many media reports. It does not assert, as del Ponte did, that ‘Our investigators have been in neighbouring countries interviewing victims, doctors and field hospitals and, according to their report of last week which I have seen, there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas, from the way the victims were treated.’ As a matter of fact, the ICI document does not mention sarin a single time. The mere assumption that no UN member would submit to the Secretary general a frivolous request for an onsite investigation allows the Commissioners to write in the introductory summary that there are reasonable grounds to believe that CW have been used, possibly by both sides. In §140 the ICI nonetheless comes to the obvious conclusion that confirmation or refutation of the allegations will be possible only after samples retrieved directly from victims or the site of the alleged attack by an independent international expert team have been tested.
Much ado about nothing?
It is a plain shame that Carla del Ponte has felt the need to join the global chorus of blabberati. Commentaries will invariably focus on her statements, or on whether the ICI document buttresses the Obama Administration’s position that its self-proclaimed red line has not yet been crossed.
Yet, despite the brevity of the section on CW allegations, the report adopts some remarkably thinking in §136:
- It accepts the Chemical Weapons Convention (CWC) as a foundation of international criminal law. In particular, it embraces the wide-ranging definition of a CW, which means that for criminal prosecution no discrimination between warfare agents based on an ill-defined lethality criterion is acceptable. The CWC applies to incapacitants and irritants (such as riot control agents, for instance, tear gas), as well as to industrial chemicals such as chlorine (a warfare agent of World War I vintage). Whatever toxicant any belligerent may choose to use, it will fall under the remit of an international criminal court for Syria. This statement may well be a first! (See, for example, Yasemin Balci’s discussion of criminal law in Future of the CWC in the Post-Destruction Phase.)
- It also refers to the applicability of 1925 Geneva Protocol prohibiting the use of chemical and biological weapons in armed conflict and emphasises Syria’s ratification. The phrasing is interesting, because it juxtaposes rather than cascades both international agreements, thus implying that the scope of the CWC definition of a CW also applies to the Geneva Protocol.
- It declares CW use as prohibited in all circumstances under customary international humanitarian law and determines that it is a war crime under the Rome Statute. Most significantly, it does so in a separate sentence and without specific referral to the Geneva Protocol. Usually, scholars, lawyers and officials will assert that the Geneva Protocol has entered customary international law. According to their phrasing, the ICI Commissioners strongly suggest that the CWC equally informs the customary norm, which is not without consequence given their emphasis on the CWC definition of a CW. It definitely sharpens the boundaries of a war crime as defined under the Rome Statute.
These points will be and have to be the subject of legal debate to bolster the CW prohibition under any and all circumstances.
The future of the CWC in the post-destruction phase
Report – No15 – 27 March 2013
Yasemin Balci, Richard Guthrie, Ralf Trapp, Cindy Vestergaard, Jean Pascal Zanders
edited by Jean Pascal Zanders
From the Foreword by Ambassador Jacek Bylica, Principal Adviser and Special Envoy for Non-proliferation and Disarmament, European External Action Service:
The international community can be justifiably proud of the Chemical Weapons Convention. It has banned an entire category of weapons of mass destruction and provided for their verifiable elimination under international supervision. A small but effective intergovernmental organisation, the Organisation for the Prohibition of Chemical Weapons (OPCW), has been created for this purpose.
In the present international situation it is important to note that the Convention has created a de facto legal norm against the production, possession and usage of chemical weapons for military purposes. This prohibition goes beyond the letter of the Convention and stems from the reactions to the tragic experience of World War I and more recent cases of CW usage, including against non-combatants.
This volume features contributions derived from some of the presentations made by world-class experts at the workshop organised by the EU Institute for Security Studies in cooperation with the European External Action Service on 10 September 2012. The workshop offered an opportunity to reflect on some of the challenges facing the CWC over the next decade in preparation of the Third Review Conference at The Hague in April 2013. I am confident that this report presents an invaluable contribution to the debate on the future direction of our joint efforts which aim at the total and irreversible elimination of chemical weapons from the face of the Earth.
Reports are coming in about the use of chemical weapons (CW) near Aleppo in Syria. The source is the Syrian government, who alleges a rebel attack. Up to 25 people may have been killed; scores more injured.
Russia confirms the reports in a strong-worded statement; the US denies the attacks, but is waiting for further analyses of the reports. The Director-General of the OPCW expressed his grave concern over the reports.
I just saw images from a hospital, where a lot of people wearing surgical masks attend to people having infusions, on BBC World. Sana-Syria has published pictures.
My quick take on these developments:
- I am not convinced that the footage and pictures I have seen prove a CW attack;
- There are no images of the site of the attack; just of some affected people. These people do not show outward symptoms of a CW attack. Definitely not mustard; definitely not a nerve agent.
- There are far too many people, including non-medical staff, around the affected persons. Apart from a surgical mask, nobody wears any protective garment or gas masks. If there would have been a CW attack with one of the agents known (or believed) to be in Syria’s arsenal, then most of the people present would have been fatally or seriously contaminated.
- I am deeply sceptical of allegations that the insurgents would have resorted to CW. There would have far greater propaganda benefits if they were to demonstrate to the world that they had overrun one of the storage or production facilities. In addition, insurgent spokespersons were very quick to deny the government allegation.
- Regarding a case of a transfer to (and, hence, use by) surrogates of the Syrian government, I have already expressed my views on such a scenario.
- Present-day battlefields are extremely toxic. Many materials may be propelled into the air and inhaled by bystanders. If some (toxic) chemical container were hit by a shell, then bystanders could be badly affected, as we have seen in a variety of recent internal conflicts (former Yugoslavia; Sri Lanka; Iraq; etc.). Bhopal reminds us of the large-scale effects of an industrial accident. Any investigation of the allegation must first exclude plausible alternative explanations.
Possible developments I do worry about include:
- Is the Syrian government allegation the type of statement often heard in the past to justify ‘retaliatory’ chemical attacks? If so, the next days and weeks may become very nasty indeed. Not just because of chemical warfare, but also because of the various red lines Western states, and the US in particular, have drawn if such an escalation with CW were to take place.
- Why has Moscow confirmed the Syrian allegation so quickly and in such strong words? What is the motive behind this? Just contradicting the West again? If not, why is it so tied to Bashar al-Assad? What can it gain from this position? Of course, Syria got most of the technology and expertise to set up and run its CW programme from the former Soviet Union. Did the former head of the Soviet CBW forces, Anatoly Kuntsevich, not die on his return from Syria in 2003? Furthermore, if Syria were ever to become a party to the CWC, it would have to declare the origins of its CW programme. Whatever we wish to believe, it potentially sets up Moscow against any country that might intervene militarily because of CW use.
- In three weeks time the States Parties to the CWC will convene for the 3rd Review Conference. Confirmation of the allegations or escalation described in the bullets above would have a most serious impact on the proceedings.
Anyway, this is just a quick take on an unfolding story. I am sure to follow up if anything further happens.
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.