Syria Insta-Symposium: The Significance of Chemical Weapons Use Under International Law

[Krista Nelson, PhD, JD, is a recent graduate of Yale Law School]

The Obama administration’s advance toward air strikes stems from the Syrian government’s alleged use of chemical weapons, but under international law does it matter if civilians are being killed with chemical weapons rather than conventional means? And how does the prohibition on chemical weapons interact with international law on the resort to force?

From the law of armed conflict (LOAC) perspective, the use of chemical weapons in Syria was not a game-changer. LOAC is concerned with harm to civilians in armed conflict, whatever the means or methods. Certain weapons are a concern largely because a) they do not distinguish between people who can be attacked and those who are off-limits, and thus they violate the principle of distinction; or b) they cause more harm than necessary to permissible targets, which is not the main issue in the present case. In Syria, the principle of distinction seems to have been thrown out the window long ago; reportedly, thousands of civilians have been killed (even directly attacked) using conventional means. Of course, LOAC does not look kindly on weapons that cause particularly gruesome harm to innocent people, but the first and foremost problem is that civilians are being attacked with any weapons at all.

By contrast, the use of chemical weapons is a critical problem under arms control law. But arms control is not just concerned with use, which is the focus of LOAC – it covers other activities like weapons development, production, stockpiling, proliferation; and it applies in peace as well as conflict. Moreover, arms control has diverse aims with respect to weapons, ranging from reducing suffering or protecting civilians in conflict to preventing conflict from breaking out in the first place and shaping balances of military power.

Current Obama administration statements draw more from arms control than LOAC, citing various concerns from the particular suffering chemical weapons caused to the proliferation of other weapons of mass destruction. The administration suggests that the use of chemical weapons links the Syrian conflict to U.S. national security interests – a claim supported with arguments that Syria’s alleged use of chemical weapons is bound up with other weapons (e.g., nuclear weapons), other actions (e.g., proliferation), and other countries (potential victims as well as perpetrators of weapons-related violations).

What arms control law does not provide is a trigger for the resort to force, the Obama administration’s preferred course of action and the main international legal controversy. Arms control provides no clear avenue around the international legal requirement of a UN Security Council resolution or a self-defense justification, neither of which the Obama administration claims to have. Indeed, one particularly relevant arms control treaty – the Chemical Weapons Convention – provides a framework for addressing non-compliance that points to multilateralism, UN Security Council participation, and conformity with international law. Chemical weapons use may be a game-changer for President Obama, but the rules of the game have not disappeared.

Statements on Syria bear less resemblance to justifications for NATO’s 1999 campaign over Kosovo (where an ethnic cleansing was taking place, triggering what has been called a “humanitarian intervention”) than to the 2003 Iraq War, which was justified with a mix of humanitarian and strategic ideas including emphasis on weapons of mass destruction. Unlike the present situation, attempts were made to justify the use of force using a UN Security Council resolution from the previous decade, as well as the notion of preemptive self-defense.

Perhaps the Obama administration thinks that combining expansive arms control concerns, including some humanitarianism, may effectively push against the rules on the resort to force. If the broad provisions of the proposed authorization for the use of military force are any indication, the U.S. government may tap into diverse concerns, looking for international legal justifications under the biggest umbrella it can find.

That approach would be a different and perhaps bolder challenge to rules on the use of force than humanitarian intervention or President Bush’s preemption. It is true that the significance of chemical weapons use varies in international law, but existing law does not seem to justify the role the Obama administration has assigned it. If the Obama administration has its way, the use of chemical weapons may punch above its international legal weight.