Would Syria’s Use of Chemical Weapons Change the Legality of U.S. Intervention?

by Julian Ku

The U.S. government has been making all sorts of official and unofficial threats to act if the Syrian government uses chemical weapons in its ongoing civil war.

(CBS News) Whether the U.S. enters the war in Syria appears to be up to the dictator Bashir al-Assad.

On Monday, CBS News reported the Assad regime had given orders to prepare chemical weapons for possible use to put down the revolt that has been raging for more than a year and a half.

President Obama said use of these weapons of mass destruction would be “totally unacceptable.”

One obvious but important legal question: would the Syrian government’s use of chemical weapons affect the legality of a strike by foreign powers (like the U.S.) against that government? My understanding of existing international law governing the use of force is that the use of such weapons in an ongoing civil conflict is no doubt horrible, but not enough to overcome strict rules against an outside military intervention (unless that intervention was approved by the UN Security Council).

If such weapons are used, the U.S. is signaling that it would immediately take military action. Assuming no Security Council approval, I think the U.S. would be in technical violation of the UN Charter. Although this may be correct as a matter of international law, it seems like a silly result. Weapons of Mass Destruction are indeed different than conventional weapons and it seems like the use of such weapons should trigger different consequences. (Wait, this sounds like the Bush Doctrine! It Lives!) Hopefully, Assad will not force the resolution of this legal question.

http://opiniojuris.org/2012/12/07/would-syrias-use-of-chemical-weapons-change-the-legality-of-u-s-intervention/

8 Responses

  1. Julian: you are generally correct.  There is no explanation by the Obama Admin. of its claim to unilaterally use military force in foreign state territory (e.g., in Syria).  I have an essay coming out in January at U. Pa. J. Int’l L. on possible justifications — self-defense, collective self-defense, NATO authorization because such weapons pose an immediate threat to regional security (thus, UN art. 52 “regional action”), consent from the leg. reps. of the Syrian people (which posed an alternative justification for US and NATO uses of force in Libya last year when there was consent from the NTC – see my 26 Emory Int’l L. Rev. 43 at n.4 (2012) article on Constitutionality….). 

  2. I believe that responsibility to protect would be a more fair assessment of any unilateral intervention in Syria. The Bush Doctrine seems inappropriate in light of the fact that the justification of such an intervention would be a violation of IHL (the use of chemical weapons), not a threat of weapons proliferation.

  3. I am less enamored of responsibility to protect than maybe others because I tend to lean toward Hans Corell’s vision about Kosovo that we should not twist international law to make a “new rule” that at most is an emerging idea – though I know many will disagree.  I think Jordan’s approach is more elegant than R2P or Bush doctrine though I quibble with the expanded “self-defense” rationale I have sensed in some of his writings as justifications.  I am more a person who looks in the boxes as legal/illegal and the response of the community of nations of resistance/ acquiescence that leads the action to be seen as legitimate/illegitimate
    Best,
    Ben

  4. “ I am more a person who looks in the boxes as legal/illegal and the response of the community of nations of resistance/ acquiescence that leads the action to be seen as legitimate/illegitimate.”

    Brilliant Richard Falk wrote a piece alluding to this kind of formulation that really comforted me when I came to this for myself in 2008.  Of course Cassesse’ Kosovo formulation of “illegal but legitimate” get there without overtly saying the middle step that I think is essential.

    Best,
    Ben

  5. A quick Google search indicates that a lower estimate for deaths so far in Syria is 40,000. Strange that the issue seems to be the choice of munitions.

  6. If the number dead by a leader to stay in power were the right basis for seeking accountability by a leader then the 100 000 dead in Iraq on false pretenses would be a ground for accountability for George Bush.
    Best,
    Ben

  7. My disclaimer:  I am not a law professor, but would be interested in your thoughts.  I believe that R2P may have become customary international law in the last 13 years.  In the response to Bosnia and associated outcry from many in the IHRL community for the terrible events in Darfur, Sudan, and Rwanda, there appears to be political will and legitimacy to humanitarian intervention in a sovereign state’s non-international armed conflict.

    The UN has a long history of protecting life and rights (see the Torture Convention, Declaration on Human Rights, ect.).  Thus, it would seem HI in this situation would avoid the UN Art. 2 prohibition on use of force in contravention of the purposes of the UN.  I believe this position is bolstered by the R2P which seems to be an initial codification, or at least an urging, of HI as CIL to avoid mass atrocities.

    Finally, this view squares with the discussion above re: the action being illegal but legitimate.  If the action is legitimate (as deemed by most other Countries, and the unwillingness of Syria’s closest allies to rally behind it after allegedly arming WMDs) and backed by many countries, would it not become the first step towards becoming CIL?

Trackbacks and Pingbacks

  1. [...] (This is a context in that Panetta done his statement.) Over during Opinio Juris, Julian Ku has argued that regulating force to stop such an conflict would violate a Charter. But that can’t be a [...]