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Syria: the Legal Basis for Military Action

Syria: the Legal Basis for Military Action

It has been 27 months since the start of the Syrian Civil War. The carnage has been ongoing and in clear sight through social media. Up until now, the western world has let the Syrian nation resolve its own disputes. The straw that broke the camel’s back was the chemical weapons attack on 21 August 2013. This took place in the heavily populated Eastern Damascus of Syria which massacred hundreds of innocent lives.

YouTube videos and reports from the chemical attack illustrated widespread bloodshed and severe burns amongst the population. What appeared clearly illustrated that the situation had now turned into the epitome of a humanitarian crisis.

The seriousness and dire consequences of using chemical weapons raised alarm bells and many emergency meetings and investigations were conducted. The main dilemma that the western world was faced with was whether they should intervene through military action or, whether they should observe and hope that this was a one-off.

The North Atlantic Treaty Organisation (NATO), Arab League and the United Kingdom (UK) later stated that they do not want to engage in any military intervention. The main contender left is the United States (US) government led by the Obama administration that have some support from France. Obama overtly stated that he thinks that short term and limited military intervention is necessary. He has also been supported by the foreign relations committee who approved the military intervention.

With no legal means of support, the US may have to intervene illegally without a UN mandate.

It is clear that the US is intending to carry out a military intervention whether it is legal or not.

The Breaches in using chemical weapons

Using chemical weapons violates the universally accepted Customary International Humanitarian Law (IHL) which administrates the conduct of conflict. Under Rule 74 of Customary IHL ‘the use of chemical weapons is prohibited’. However, this is a norm and not a binding law.

The main treaties that exist concerning chemical weapons are; The Geneva Protocol of 1925, The Biological Weapons Convention of 1972 and The Chemical Weapons Convention of 1993.

The downfall is that Syria is not a signatory state to these treaties, therefore, they technically do not break any laws, just a norm. Even if Syria were a party to the treaties, the basis for military intervention would depend on a United Nations (UN) Security Council approval.

This is a process which takes time and in-depth investigation, the US do not seem to have the patience at the moment. Their intentions indicate immediate action.

What the possible legal resolutions are (UN Charter)

The basis for legal military action is based on two main grounds:

  1. Military intervention can be legal under the United Nations (UN) Charter through self-defence under Article 51. Although it is inexcusable, the chemical weapons attack was not launched against the US, but internally to Syrian civilians. This immediately rules out using self-defence against the US. The US may turn to Turkey and Israel where Syria has attacked recently and use that as a source of self-defence. The success rate of this argument succeeding is slim and would be a last resort but, it would be legal.
  2. The other legal alternative would be to use Article 39-42 of the UN Charter to gain Security Council permission in response to a threat to international peace and security. This is highly unlikely to succeed since Russia and China have vetoed non-military sanctions against Syria already. They have not made it a secret that they do not agree with military intervention. It is most certain that they will veto the vote for military intervention.
If no legal resolution is taken by security council what options are left?

With no legal means of support, the US may have to intervene illegally without a UN mandate.

The chemical weapons attack amounts to a war crime in the manner that it has killed mass civilians of the Syrian nation. For these reasons, the US may justify military intervention using humanitarian intervention and the Responsibility to Protect (R2P).

R2P states there is a duty of care within the international community. The R2P Document of the 2005 World Summit outlines a ‘responsibility to use appropriate means to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. The argument is appropriate since crimes against humanity and war crimes have been committed within Syria.

This was also the basis of intervention to protect the civilians and, to prevent ethnic cleansing in Kosovo in 1999. There was an attack by NATO in Yugoslavia without a Security Council approval and similarly China and Russia provoked the approval. It can be argued that the US can use Kosovo as precedent for a ‘legitimate way of acting illegally’. This is the best alternative that the US has, although it does not by any means make it legal.

History doesn’t repeat itself but it often rhymes.

It also has to be remembered that the R2P 2005 codification and humanitarian intervention do not override the UN Charter. The codification of R2P in 2005 has only demonstrated a progressing development in international law to justify intervention even though it has no force. The fear is that this might form a growing trend to arbitrarily intervene in other countries in the future. It has the potential to cause chaos amongst the order of the international community and lay foundations for a third World War which is concerning.

The dilemmas

Nowhere is it stated that the use of chemical weapons is a cause for other states to intervene, it is an action that seems to be forming as an international assumption.

It is heavily presumed that the attack was carried out by the Assad regime, but there is a lack of evidence as to who caused the attack. The evidence that has been presented in the form of Youtube videos cannot be heavily relied on. The pretexts for war that the US is using are very weak at the moment from a legal standpoint.

However the ‘moral obscenities’ that occurred as described by US Secretary John Kerry illustrate that some sort of action is required. If the situation goes unchecked in Syria, this may indicate that such immoral behaviour is almost permissible.

What could this mean for the future?

The US has made proposals indicating short term limited attacks. In turn, Assad has stated that he does have chemical weapons, and he won’t hesitate to use them against other nations who choose to intervene.

What happens if there is a retaliation?

The US will clearly not just stand back and leave. The intervention appears to be long term from the off set. History doesn’t repeat itself but it often rhymes. Just as the lengthy war in Iraq is coming to an end, another one may be on the horizon.

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