Are the air strikes on Syria legally questionable or legally justifiable?

The strikes were merely a warning that either side or any side should think twice about using chemical weapons.
Friday 20/04/2018
An RAF Tornado taxis into its hangar after landing at British Royal Air Force base in Akrotiri, Cyprus, on April 14. (Britain’s Ministry of Defence)
An RAF Tornado taxis into its hangar after landing at British Royal Air Force base in Akrotiri, Cyprus, on April 14. (Britain’s Ministry of Defence)

Following the United Kingdom’s military intervention in Syria on April 14, opposition leader Jeremy Corbyn of the Labour Party was quick to raise questions about the legality of the strikes and urged the government to publish its legal advice.

The government published its legal position for the justification, under international law, of air strikes on Syria. In short, the United Kingdom invoked the doctrine of “humanitarian intervention.” This doctrine is controversial and only has the support or approval of a minority of countries and international lawyers.

“Humanitarian intervention” is a purported doctrine of international law that holds that countries may use force unilaterally (i.e. without authorisation of the UN Security Council) if there is pressing humanitarian need or to prevent human rights abuses. It is a minority view.

The orthodox view is that there is an outright prohibition on the use of force by any country against another as stipulated in Article 2(4) of the UN Charter. This applies unless such action is in self-defence in the event of armed attack.

While humanitarian law, as stipulated in the 1949 Geneva Conventions and their Additional Protocols of 1977, sets out the circumstances of intervention, the orthodox view of a majority of states and international jurists is that a country such as the United Kingdom (or a coalition of states) cannot act unilaterally outside the collective security system established in the UN Charter, which makes it the responsibility of the Security Council to respond to such brutality (Article 24 and Chapter VII of the UN Charter).

This orthodox view is clearly deducible from the UN Charter, several UN resolutions as well as the International Court of Justice. That view states the air strikes in Syria were not just legally questionable but plainly illegal under international law.

However, the UN Charter’s legal framework and the need for approval in the Security Council have been problematic, as the country’s five permanent members frequently use their veto power to block resolutions. In the present case, Russia has vetoed military intervention in Syria on at least 20 occasions.

Therefore, the legal framework, in substance, relegates any objective legal criteria for the use of force on humanitarian grounds as any decision to veto a motion to use force is often a sharply political decision without regard to the humanitarian situation. It is clear there is often a political rift between Russia and China on one side and the United Kingdom, the United States and France on the other.

While support of the doctrine of unilateral humanitarian intervention is a minority position, it is gaining support for its objective and apolitical criteria. The key distinguishing criterion of humanitarian intervention is that a country acts strictly out of genuine humanitarian motives, rather than out of self-interest.

The aim of the air strikes on Syria was not to bring about regime change or change the dynamics or logistics of Syria’s civil war. The strikes were merely a warning that either side or any side of the conflict should think twice about using chemical weapons.

Countries’ practice since 1945, it is arguable, illustrates that humanitarian intervention is becoming a customary rule of international law. For example, India’s intervention in East Pakistan (1971), Tanzania’s in Uganda (1979) and Vietnam’s in Cambodia (1978) were all carried out without Security Council approval.

In India’s intervention (vetoed by the Soviet Union), thousands of lives were saved. Tanzania’s intervention effectively stopped Idi Amin’s brutal oppression of various tribal groups, which had resulted in the loss of approximately 400,000 lives while the Security Council stood still.

More recently, NATO intervened in Kosovo in 1999 on humanitarian grounds without the approval of the Security Council. That intervention, which was set in motion to stop ethnic cleansing, was clearly the right thing to do.

Likewise, the United Kingdom’s intervention without Security Council approval from 2000-02 in Sierra Leone was hailed as a humanitarian success that saved the lives of many.

The problem with the current orthodox view is that the humanitarian situation often gives way to political considerations.

Former UN Secretary-General Kofi Annan underlined the problem in his 1999 General Assembly address, saying: “[I]n the context of Rwanda: If, in those dark days and hours leading up to the genocide, a coalition of states had been prepared to act in defence of the Tutsi population, but did not receive prompt council authorisation, should such a coalition have stood aside and allowed the horror to unfold?”

Annan urged that “the world cannot stand aside when gross and systematic violations of human rights are taking place” and he challenged the world community to develop the notion of humanitarian intervention “based on legitimate and universal principles.”

The doctrine of humanitarian intervention provides an objective, rigid criteria, which has a high threshold so that countries cannot use it in vain.

In Syria, chemical weapons have been used (irrespective of the perpetrator) numerous times. This has been confirmed in reports by the United Nations’ Organisation for the Prohibition of Chemical Weapons United Joint Investigative Mechanism.

A UN fact-finding mission and a UNHRC Commission of Inquiry investigated previous attacks. The UN mission found that the nerve agent sarin was likely used in the case of Khan al-Assal (March 19, 2013), Saraqib (April 29, 2013), Ghouta (August 21, 2013), Jobar (August 24, 2013) and Ashrafiyat Sahnaya (August 25, 2013). The UNHRC came up with similar findings.

All sides in the conflict have levelled accusations against each other. No side has been free of allegations, including the Assad regime, the opposition rebels, the Islamic State, the Kurds and even the Turkish armed forces.

Putting aside who the perpetrator(s) are (which does not really matter for this question), the April 14 air strikes were solely designed to target chemical weapons infrastructure with the aim of achieving some humanitarian relief and to deter the use of such weapons in the future.

Nobody wants to see the use of chemical weapons in Syria or elsewhere. Based on this minority doctrine of international law, the air strikes are not legally questionable but legitimate and proportionate.