The Narrow Case for the Legality of Strikes in Syria and Russia’s Illegitimate Veto

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

On April 13, the US, UK and France launched a barrage of missiles at three chemical weapons-related sites in Syria, in response to the most recent attack in Douma, part of a long series of chemical weapons attacks, attributed to the regime.

The UK has set forth its legal position on the strikes, justifying them as “humanitarian intervention,” while France and the US asserted the legality of their action without articulating a legal theory (nor did the US articulate any legal theory for its similar 2017 strike). There is of course no justification for three permanent members of the Security Council to use force at will, so there needs to be a basis under international law. The UN Charter only clearly permits use of force under two exceptions: (1) UN Security Council Chapter VII authorization, and (2) the right to self-defense under UN Charter article 51. A third scenario where force is also permissible is consent of the host country. None of these three scenarios appears applicable in the current instance.

While some have already blogged that there was no legal basis for the recent military strike in response to the Assad regime’s latest use of chemical weapons (including Kevin Jon Heller on Opinio Juris), there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice. And the recent use of force has received support, again not only by the “West,” but by the Gulf Cooperation Council, to name an example. Though this support was not based on a legal theory, it is nonetheless significant.

On the question of legality, there appears a split between those states and scholars who take the view that humanitarian intervention is (1) under a strict reading of the Charter, never legal, (2) fully legal, or (3) in line with practice and an updated reading of the Charter sufficient that it falls into at least a “grey area” of legality. (See my article substantiating this third position.)

Why do we have this split in views on humanitarian intervention? It goes back (at least) to Kofi Annan in 1999 asking the very important question: “if in those dark days and hours leading up to the [1994] genocide [in Rwanda], a coalition of states had been prepared to act, in defense of the Tutsi population but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?” While early formulations of the doctrine of the “responsibility to protect” (R2P) were quite encouraging, later formulations appear to answer the question by emphasizing both the duty to act in the face of atrocity crimes, but the need for Security Council approval for forceful intervention. To this author, R2P then gives a disappointing answer to Kofi Annan’s question of what to do in the event of Security Council paralysis, by responding that one waits for the Security Council to act. In the face of mass atrocity crimes, this is cold comfort to the victims.

A large number of states have now come forward over the last decade and a half to ask the permanent members to pledge themselves to veto restraint in the face of atrocity crimes (genocide, crimes against humanity and war crimes). Important initiatives in this respect include the ACT Code of Conduct, and the French/Mexican initiative. It is however concerning that only two permanent members of the Council, the UK and France, have taken this pledge. One might well ask: if the US cared enough about the Syrian victims and Assad regime’s chemical weapons use to engage in a military strike, then perhaps it could also take this simple pledge not to use its veto in the face of atrocity crimes?

Aside from legal questions as to the strike and whether or not it met appropriate criteria of legitimacy (as well as why the US is not doing more to solve the Syrian crisis or admit Syrian refugees as Harold H. Koh well asks), let us recognize that we are in a place we should never have reached. First, the Assad regime should never have been using chemical weapons against its own people in violation of multiple treaties banning them (nor committing countless other atrocity crimes that don’t always draw an equal share of the headlines). Second, Russia, sometimes joined by China, should never have been using its veto to block investigations as to chemical weapons use, to condemn their use (and other indiscriminate weapons use) or referral of the situation for prosecution, in the face of widely acknowledged crimes against humanity and war crimes. (Allowing investigations or prosecution, or issuing condemnation, does not directly halt the commission of atrocity crimes, but at least it communicates: “the world is watching and accountability is coming,” when the veto in such circumstances conveys exactly the opposite.)

When the veto was drafted into the UN Charter, it was to guarantee unanimity of action by the permanent members as to the use of force. It had absolutely nothing to do with blocking investigations and/or prosecution of atrocity crimes. It is time to recognize that the veto power is being abused in a way never anticipated when the Charter was drafted, and in a way that is at odds with other bodies of international law (such as the highest level jus cogens norms) and the “purposes and principles” of the UN Charter, with which the Security Council (including its permanent members), are bound, under article 24.2 of the Charter, to act in accordance.

Whether the Security Council is to be seen in the future as an effective and credible institution will depend in part on whether it can reign in its own permanent members’ behavior when they utilize the veto, or threat of veto, in the face of mass atrocity crimes. Those permanent members engaging in such actions appear to fail to recognize that, in addition to being complicit in facilitating the commission of atrocity crimes, they are undermining the Council itself. This behavior then force the US, UK and France into taking action that is worrying to many other states for its potential of pretextual or abusive invocations. The argument of abuse is not ultimately, however, fully convincing: does anybody argue we should do away with the right of self-defence because it is sometimes abused, for instance, by Turkey in Syria? But of course unilateral humanitarian intervention should, ideally, never prove necessary. And if would not if we didn’t have illegal vetoes.

http://opiniojuris.org/2018/04/23/the-narrow-case-for-the-legality-of-strikes-in-syria-and-russias-illegitimate-veto/

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