The Strike in Syria – Is the International Law Calculation Different Now Than in 2013?

In 2013, there was I think broad agreement that the United States lacked any international law justification for the use of force against Syria following its initial use of chemical weapons: there was no UN Security Council resolution authorizing such force, and no assertion by the United States (or anyone else) that this was an action taken in national self-defense. The closest anyone came to a theory of international law legitimacy then was the UK’s suggestion that a post-chemical weapons attack was ‘illegal but legitimate’ for humanitarian reasons in the same way NATO’s un-authorized use of force had been in Kosovo in the 1990s. I detailed my reasons for concluding that illegal but legitimate argument seemed inapplicable to the proposed U.S. intervention following Syria’s use of chemical weapons in 2013 here.

There are two significant differences I can perceive between the state of affairs on the ground in Syria today and the state of affairs in 2013 that have some bearing on the success of any international law defense in support of the latest attack. The first is worth noting, but I think unpersuasive. The United States today has its own troops on the ground in Syria – troops that were not present in 2013, troops stationed (at least some of them) as close as 50 miles away from the site of the chemical weapons attack. In the abstract, one might imagine this could lead the United States to offer some sort of self-defense justification (in defense of our own nationals). But given our troops are in Syria (to fight ISIS) without Syrian consent, and given Syria’s apparent determination since 2014 to avoid engaging U.S. troops directly despite this state of affairs, there seems little objective grounds for concern that Assad would soon train his chemical weapons on U.S. forces.

The second difference goes to the relative strength of the illegal-but-legitimate theory – the view that the use of force against the territorial integrity of another country is technically illegal, but should be viewed as ‘legitimate’ under certain limited circumstances (a view I could describe at best as a still nascent norm of international law). In 2013, the UK Prime Minister’s Office put it in the following terms. A state could take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”

There can be little doubt of the horror of the recent chemical attack, albeit on a smaller scale than the attack of 2013. I can imagine few international complaints about the proportionality of a strike targeting only the airfield from which the chemical attack occurred. Where the current administration is in a stronger position than the last is on the question of the objective availability of a practicable alternative to the use of force – thanks to the diplomatic efforts of the past administration, it is far more persuasive now than it was then to argue that the international community has tried through peaceful means and failed to rid Syria of its chemical weapons.

That said, there are at least three factors that persuade me against embracing the proposition that this exercise should be seen as akin to the Kosovo intervention in its relative international law ‘legitimacy.’ First, it was done with no apparent international support – neither from our allies, nor from other countries in the region. The response of foreign nations over the next few days will be significant and could change this calculus but for now, it is a glaring distinction from Kosovo. Second, precisely for the reason President Obama regularly cited against more aggressive U.S. intervention in Syria repeatedly during his administration, it is deeply unclear whether this highly limited attack will have any impact on the humanitarian situation on the ground. Finally, there is the explanation the President himself offered for why the United States undertook the action it did tonight. His reasons were threefold: (1) “It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” (2) “Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention and ignored the urging of the UN Security Council.” (3) “The refugee crisis continues to deepen and the region continues to destabilize, threatening the United States and its allies.” I expect we will talk at length in the days ahead about each of these justifications. But while the speech was framed by the President’s own horror at the nature of the attack, none of the reasons given for the action bore any relation to speeding humanitarian relief to the people of Syria themselves.