The Coming Attack on Syria Will Be Unlawful

by Kevin Jon Heller

You go to war with the President you have, not the President you wish you had.

We should keep that basic truth in mind as the US inches ever closer to war with Syria — and potentially with Russia, a far more terrifying possibility. Donald Trump does not care about civilians in Syria. He does not care about containing the spread of chemical or biological weapons. If he attacks Syria, it will be for one and only one reason: to distract attention from his collusion with Russia, his obstruction of justice, and his corruption. As Trump well knows, Americans love nothing more than high-def images of American bombs falling from the skies. No matter how many innocent civilians die (especially brown ones), an attack on Syria will give his approval ratings a healthy boost. That is all the motivation he needs.

That Trump will act with base motives does not mean, however, that an attack on Syria would be unlawful. Illegality has to be demonstrated, not assumed.

So let’s start with some basic principles. Syria is a sovereign state. Russia is using force on Syrian territory with the consent of the Syrian government. The US is not. To justify its use of force in Syria, therefore, the US would have to be acting in self-defence. If it was not acting in self-defence, it would be violating the jus cogens prohibition of the use of force that is enshrined in Art. 2(4) of the UN Charter.

With regard to its use of force in Syria against ISIS and other terrorist groups, the US at least has a plausible claim to individual and collective self-defence: the “unwilling or unable” doctrine. Readers know that I do not believe that “unwilling or unable” reflects customary international law. (For the most recent scholarly rejection of that idea, by Brunee & Toope, see here.) But the argument is not a frivolous one.

An attack directed at Syria itself, however, would be patently unlawful. Syria has never attacked US forces or interests. By contrast, the US has attacked Syria: in 2017, when it fired 59 cruise missiles at a government airfield in Shayrat; and in 2018, when it killed approximately 100 members of a pro-Assad militia who attacked a Syrian Democratic Forces headquarters. The US offered no legal justification whatsoever for the 2017 attack, and it claimed that the attack on the militia was “self-defence” — as if collective self-defence somehow permitted the US to come to the aid of a rebel group.

But that is the past. More importantly, there is no evidence — literally none — that Syria has any intention of attacking US forces. Not in the near future or in any future. If the US attacks Syria, therefore, it would not be acting in self-defence. Its attack would violate the jus cogens prohibition of the use of force. It would be, to use the accurate but loaded term, the aggressor.

And that would, of course, have two very important consequences — consequences you will not see discussed in the American media if and when the US attack begins. To begin with, Syria would have every right to use force to defend itself. It could shoot down American fighter planes. It could kill American soldiers. The only limitations on Syria’s right of self-defence would be the usual ones: necessity and proportionality.

Even more importantly, Russia would also be legally entitled to use force against the US. The right of collective self-defence is guaranteed by Art. 51 of the UN Charter and by customary international law. Just as the US invoked collective self-defence to justify attacking North Vietnam at South Vietnam’s request, Russia could invoke collective self-defence to justify attacking the US at Syria’s request. What is sauce for the American goose is sauce for the Russian gander. This is the most frightening aspect of Trump’s madness: although the Syrian military is capable of doing far more damage to American forces than Iraq’s or Libya’s militaries ever were, Russia’s military is one of the most powerful and technologically-sophisticated in the world. A hot war between Russia and the US could be literally catastrophic.

None of this jus ad bellum analysis should be remotely controversial — at least not to those who don’t believe the US has the God-given right to use extraterritorial force wherever and whenever it pleases. All of the conclusions above derive from a straightforward application of black-letter rules concerning the use of force.

That said, in recent days we have seen a number of scholarly attempts to justify Trump’s coming attack on Syria. I want to focus on one such attempt here, by my friend (and retired Maj. Gen.) Charlie Dunlap at Lawfire. Dunlap offers two potential justifications for attacking Syria: (1) self-defence; and (2) unilateral humanitarian intervention. Neither justification works.

With regard to self-defence, Charlie says the following with regard to Syria’s chemical and biological weapons:

Today, there are considerably more U.S. troops in Syria – perhaps as many as 2,000  – well within range of a number of Syrian weapons’ delivery systems.  Accordingly, it is not unreasonable to conclude that these uniquely dangerous weapons of mass destruction require an aggressive response.

Even if we assume that US troops are in Syria lawfully — a big if, given that it requires accepting the “unwilling or unable” doctrine — this argument denudes Art. 51’s armed attack requirement of all meaning. As noted above, Syria has neither attacked US troops nor threatened to do so. The mere possibility of attack — involving the mere possibility of that attack involving chemical or biological weapons — cannot justify an armed “response” by the US. To argue otherwise is to embrace preventive self-defence on steroids — going beyond even the US’s rationale for attacking the shadowy Khorosan group, where the US spokesman openly acknowledged, with regard to what armed attack the US was supposedly trying to prevent, that “I don’t know that we can pin that down to a day or month or week or six months.” At least terrorists who were possibly associated with the Khorasan group had previously attacked US interests. With regard to Syria, there is not even one previous attack to invoke.

Charlie’s invocation of unilateral humanitarian intervention (UHI) is no more persuasive. Here is what he says:

I also contended that Harold Koh’s 2013 argument about humanitarian intervention in certain narrow circumstances was supportive of a separate legal rationale for the 2017 strikes. I think the reaction of the international community to last year’s strikes is indicative of a growing consensus supporting limited interventions in select situations much as Professor Koh conceptualized, at least in the case of a clear violation of international law.

I have previously explained — in response to Harold Koh — why there is no plausible argument for the legality of UHI. The same critique applies here. I would just add that the international reaction to the 2017 attack on the airfield at Shayrat does not help the argument, for one simple reason: the US never invoked UHI as a justification for the attack. Because it did not, states were under no obligation to denounce UHI after the attack took place — as they have repeatedly done in the face of attacks (such as Kosovo) where one or two states did invoke the doctrine. What I said a few days ago regarding Israel’s 2007 Al-Kibar attack applies no less to the 2017 Shayrat attack: had the US claimed that the attack was legal UHI, the international response would have assuredly been different.

The conclusion above thus remains sound: if the US attacks Syria, it will be the aggressor and both Syria and Russia will have the right to use force against the US in self-defence.

Let me end with what I hope is obvious: this is a legal analysis, full stop. It is not a normative argument. I loathe Assad, a murderous dictator who deserves to spend the rest of his life in prison for his innumerable crimes. I understand the desire to something — anything — to prevent further violence against innocent Syrian civilians. I don’t believe, as I said in my response to Koh, that attacking Syria would contribute to that goal — particularly if it was limited to aerial warfare, as it almost certainly would be. But even if it would, the prohibition of the use of force still matters. We should not cloak acts that categorically violate that prohibition in a patina of legal respectability.

http://opiniojuris.org/2018/04/12/the-coming-attack-on-syria-will-be-unlawful/

20 Responses

  1. This is a great post (as always), Kevin. I completely agree with your analysis. It amazes me that the US media shows so little interest in the complete absence of a legal basis for the Trump Administration’s pending strike.

  2. How about condemning use of chemical weapon attack on Douma, for a change?

  3. How hollow is your entire argument? A new low, even for you. You will be eligible to be Putin’s advisor on chemical weapons.

  4. Anon,

    You’re absolutely right. I probably should have written something like, “I loathe Assad, a murderous dictator who deserves to spend the rest of his life in prison for his innumerable crimes.”

    Oh, wait, I did. Funny how you missed that. I’m sure it was an honest oversight.

  5. You simply do not have the guts to right against international wrongs or war crimes as in this case. You can only write what suits your masters in Kremlin!

  6. This ‘invitation’is the same idiotic argument that was used for the Soviet invasion of Afghanistan in 1979. Decades later an expert uses the argument to justify Putin’s intervention in Syria.

  7. And Hitler’s invasion of Czechoslovakia. You forgot that one.

  8. 1956 Budapest and Prague Spring 1968 all lawfully valid intervention for invitation and occupation. Convenient argument!!

    Kevin the main issue is not “the coming attack…” but the blatant use of chemical weapons by a murderous regime backed by Russia.

  9. Here is a fun fact: states make international law and are self-interested, so they often make rules that we don’t like. A good example is the rule that permits a state to invite other states to help it do bad things — such as Syria’s invitation to Russia and Yemen’s invitation to Saudi Arabia.

  10. As Koh pointed out in that 2013 post, the customary int’l concept of humanitarian intervention has long historical roots. There is good work by political scientists like M. Finnemore and G. Bass (and prob. historians too) on this whole topic that international lawyers, istm, should not ignore. (Originally this was a much longer comment but the system didn’t like it, so I’ve gone with a shorter one.)

  11. correction: should read “customary int’l law concept”

  12. I think Dr. Heller’s argument seems rather solid. I’m a little surprised other sources even bother with some tenuous fig leaves on the matter.

    I’m afraid the present political situation leaves little recourse for the protection of civilians of Syria within the confines on international law.

  13. LFC,

    At EJIL: Talk!, both Marko Milanovic (directly) and Mary Ellen O’Connell (indirectly) have address the customary international law claim (Legal Views/Argument? There is none.) And at Just Security, Jack Goldsmith and Oona Hathaway note that

    “…there is no exception to the U.N. Charter regime for humanitarian intervention. Former Secretary General Kofi Annan, one of the best known early advocates for the principle often referenced as a basis for humanitarian intervention, the ‘Responsibility to Protect,’ made clear that the principle required action through the U.N., not around it: ‘Building on our evolved understanding of sovereignty, R2P asserts that when states cannot or will not protect their populations from the worst crimes, other states, acting through the U.N., should do so.’ A very small number of states have endorsed the principle that humanitarian intervention can be taken unilaterally. But that remains a minority opinion.”

    See too Anthony Gaughan’s helpful analysis of the putative doctrine of “humanitarian intervention” at The Faculty Lounge: The International Law Implications of Bombing Syria (April 11, 2018).

    Even Harold Koh (at Just Security, April 16) admitted the Trump administration’s rationale for the retaliatory bombing strikes did not meet most of the elements of the criterial he elaborated “for judging the international lawfulness of claimed humanitarian interventions.” He concludes:

    “While uncertainty about these factors makes it premature to judge Trump’s action lawful, what is not premature is the increasingly obvious need for the United States to articulate its long-overdue legal justification for using military intervention for genuinely humanitarian purposes. The United States government missed its chance to state that legal rationale during the Kosovo intervention nearly two decades ago, instead listing amorphous ‘factors’ that it believed made that intervention ‘illegal but legitimate.’ It failed again to state that rationale in 2013, when President Obama did not defend his own announced ‘red line’ in Syria. As additional humanitarian crises have triggered repeated American actions in the years since, the glaring absence of an official U.S. legal justification for humanitarian intervention has plainly reached the crisis point.” No shit!

Trackbacks and Pingbacks

  1. […] this, SOAS criminal law professor Kevin Jon Heller’s reasoning. He knows what he’s talking […]

  2. […] bound to seek the approval of Congress before he enters a large-scale war operation in Syria. KEVIN JON HELLER points out that a US attack in Syria in breach of international law would give Assad troops the […]

  3. […] under UK law, in the absence of Security Council authorisation, airstrikes against Syria would be a flagrant violation of international law, which supersedes domestic arrangements. An attack against Syrian and Russian forces would enable […]

  4. […] under UK law, in the absence of Security Council authorisation, airstrikes against Syria would be a flagrant violation of international law, which supersedes domestic arrangements. An attack against Syrian and Russian forces would enable […]

  5. […] been and continue to be opposing views. If you want to get a flavour of this you could start with this contemporary blog piece by Kevin Jon Heller, who rejects the lawfulness of the US/UK/French strikes on Syria; the post also […]

  6. […] illustrated that approach by categorically asserting– before Trump’s action –that “the coming attack on Syria will be unlawful,” no matter what form it might take, or what its stated purpose might be.  But to those […]

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