Why the United States’ Use of Force Against Syria Violates International Law

Curtis FJ Doebbler
OPINION

Source: COUNTERPUNCH

Photo: Tjeerd Royaards

Cartoon: Tjeerd Royaards

The United States’ use of force against the sovereign state of Syria is a prima facie violation of international law. It is an act of aggression against an UN Member State in violation of the Charter of the United Nations. It therefore gives Syria the right to react in self-defense or a legal justification for the use of force. It also gives any other UN Member State the right to act in collective self-defense and to support Syrian action against the US. This is the basic understanding of the international legal consequences of the United States’ use of force against Syria.

An analysis of the US use of force must review the known facts and the applicable international law. The position of US law, while relevant to Americans, has little to do with the evaluation of international law. National law can never be a justification for a violation of international law. Similarly, national emotions, even the emotional concerns of a US President, cannot justify the actions of the US government that are inconsistent with international law.

The Facts

The United States launched 59 Tomahawk cruise missiles at Al-Shayrat Airfield in Syria from a warship based in the Mediterranean Sea starting at 3:42 a.m., local Syrian time, in the early morning of Friday, 7 April 2017. Each Tomahawk cruise missile carries over 1000 pounds of conventional explosives. The United States based television channel CNN not only reported the air strikes, but also showed videos of the missiles being launched from an American warship that it claimed were the missiles used in the attack. United States President Donald Trump admitted that his government launched this armed attack against Syria and he bragged about it in a way that indicates that it may launch further attacks. He stated that the attack was based on a “vital national security interest” of the US and called on “all civilized nations to join us [the US] in seeking to end the slaughter and bloodshed in Syria. And also to end terrorism of all kinds and all types.” He went on say “[w]e ask for God’s wisdom as we face the challenge of our very troubled world…[and]…[w]e pray for the lives of the wounded and for the souls of those who have passed and we hope that as long as America stands for justice then peace and harmony will in the end prevail.” Ironically, the very Syrian base that was bombed was very much engaged in action against non-State actors that the US government itself has labeled as terrorists organizations.

At approximately 6:45 a.m. Washington, D.C. time, US Secretary of State Rex Tillerson also acknowledged that the US had used force against Syria. He said the use of force was a retaliation for a chemical weapons attack. The same justification was given by the US Permanent Representative to the United Nations Ambassador Nikki Haley, who claimed the armed attack on Syria, another sovereign Member State of the UN, was justified by a chemical weapons attack that took place in Syria. She also stated that the US is “prepared to do more” to the UN Security Council. And she claimed that Russia and Iran has been complicit in the chemical weapons attack.

Syria has also publicly acknowledged that it has been attacked and that it has suffered material damage to its infrastructure and military assets as well as human casualties. Syria reported that eight civilians were killed, including four children. In addition, five Syrian soldiers were killed. At the time of the attack, Syria was engaged in an armed conflict against non-State actors who were using of force against the sovereign government of Syria. Both the government of Syria and the non-State state actors had been accused of committing violations of international law in the conduct of the armed conflict. The armed conflict also involves other States such as Iran and Russia, both of which had been asked to assist the government of Syria in restoring control over the country.

International Law

Even before the 7 April attack, the US and its allies from Europe and Saudi Arabia, among others, had been assisting non-State actors in their use of force against the government of Syria, including by providing soldiers who were combatants in the armed conflict. Such participation in an armed conflict by uninvited States, supporting the use of force against a sovereign Member State of the UN, is a violation of international law prohibiting interference in the domestic affairs of States. Such interference was strongly condemned by the International Court of Justice in 1986 in the Case Concerning the Military and Paramilitary Activities in and Against Nicaragua between Nicaragua and the United States. The Court found such action to be illegal. Thus, the US and its allies were already engaged in illegal action against Syria even before the US conducted the 7 April armed attack.

Both Syria and US are Member States of the United Nations and therefore both States are legally bound to the obligations in the Charter of the United Nations, which by virtue of its article 103 takes precedence over all other legal obligations they may have. Article 2, paragraph 4, of the Charter prohibits in, relevant part, the “use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The only justifications for the use of force are self-defense or when the use of force has been authorized by the UN Security Council.

Self-defense may only be used as a justification for the use of force, when a state has been subject to an armed attack. The necessity of satisfying the condition of having been subject to an armed attack was made clear by the International Court of Justice in the already-mentioned Nicaragua Case. This interpretation is also consistent with the object and purpose of the Charter of the United Nations, which is to prevent the use of force and ensure the peaceful co-existence of States. The requirement that the use of force in self-defense be proportionate is only irrelevant if the requirement of an armed attack has been satisfied. In this case, the US is not alleging that Syria attack the US or threatened to do so. In this case, there has been no authorization by the UN Security Council.

The US government has publicly claimed that its use of force against Syria is in response to Syria’s use of prohibited chemical weapons in an attack in the Idlib Province of Syria near the village of Khan Sheikhoun. Syria has denied that it used chemical weapons. The area in which the attack took place is under the control of the non-State actor, the Al-Nusra Front, which the US and the UN have labeled a terrorist organization. The US government’s claim that Syria used chemical weapons was being investigated by the Organization for the Prohibition of Chemical Weapons’ (OPCW) Fact Finding Mission at the time of the US attack against Syria. The OPCW Fact Finding Mission has stated that its investigation was ongoing and that it was not yet able to attribute responsibility for, or even confirm that, chemical weapons were responsible for the injuries that the US government claimed took place near the village of Khan Sheikhoun.

The Russian government, which is closely cooperating with Syria, has stated that it does not believe that the government of Syria used chemical weapons. The government of Russia issued a statement indicating that the injuries from chemicals appear to have been sustained by individuals under the jurisdiction of the non-State actors that are using force against the government of Syria because a Syrian attack hit a depot holding chemical weapons smuggled into the country by the Al-Nusra Front. If this is correct, the non-State actors who had chemical weapons, and the States supporting them, may be responsible for the injuries caused by the release of toxic chemicals from chemical weapons. Moreover, the Russian intelligence, which has been consistently more reliable than that of the US or other Western States, has stated that less than half the 59 cruise missiles fired by the US hit the targeted airfield. This supports the Syrian government’s claim that most of the casualties were civilians.

Legally, the US government’s claim that Syria used chemical weapons is irrelevant to a consideration of the use of force and its legal justification for the use of force. Even if true, the US’s use of force is inconsistent with international law and gives rise to the State responsibility of the US for an internationally wrongful act. A retaliation by one State against another State, which is alleged to have violated international law, may not involve the use of force unless is in response to an armed attack. In this case, no armed attack took place against the US, therefore there is no justification for the use of force by the US. When there is no justification for a violation of international law then a State is responsible for the consequences of an internationally wrongful act.

The consequences of an internationally wrongful act include that a State must bring its violation of international law to an immediate end, provide assurances that it will not reoccur, and provide reparations to the injured State. It appears that the US has ended its legal use of force for the time being, but the US has not provided assurances that it will not act illegally again in the near future. In stating to the UN Security Council that the US is “prepared to do more,” Ambassador Nikki Haley, made a representation on behalf of the US that could be construed as a threat to use force against the people of Syria again in the future. This would itself be an additional violation of international law because threats to use force are also violations of international law, according to article 2(4) of the UN Charter.

Additionally, the US government has not offered any reparations to the people and government of Syria. In this case, reparations could run into the billions of dollars given the serious nature of an illegal use of force against the people of Syria and the irreplaceable loss of life.

In addition, because the use of force is a very serious violation of international law, other States must refrain from recognizing the situation created by the illegal use of force. States that support or recognize the situation created by the illegal use of force by the US government may themselves be violating international law. In this regard, the public statements of the Turkey, Australia, the United Kingdom, Germany, Saudi Arabia, and Israel should be noted. It is also relevant to note that the leaders of Bolivia, Venezuela, China, Iran, and Russia have condemned the US’s use of force as illegal.

Perhaps more importantly, the US government’s apparently illegal use of force against constitutes an armed attack against Syria that provides a justification for the use of force against the US in self-defense. Moreover, other States, if requested, may act in collective self-defense to support action taken by Syria against the US. Thus ironically, the US aggression against the people of Syria serves as a justification of the otherwise unlawful use of force against American citizens and US military assets. This escalation of the use of force and this possible spiral of violence are exactly what the Charter of the United Nations was intended to avoid.

Russia has called for a UN Security Council meeting to consider the US use of force against Syria because it believes it violates the UN Charter. This Russian action is consistent with the UN Charter and the use of its mechanisms that are intended to prevent and address the illegal use of force. One would think that such an initiative would be welcomed by other Member States of the UN and used as an opportunity to condemn an illegal use of force. If this does not happen, then the illegal use of force by the US government may merely be another shameful event in the already checkered reputation of the UN.

In 2001, the US government attacked Afghanistan destroying the country and leaving it in shambled to this day. In 2003, the US government attacked Iraq leaving it devastated. And in 2011 the US lead its NATO allies into battle against the people and sovereign State of Libya that turned the richest country in Africa—a country with free education and health care—into a failed State whose resources are being plundered by the victors. Together a reliably estimated 3 million people died in these armed conflicts which were initiated by the illegal use of force and the meddling of foreign States in the internal affairs of the countries concerned. In these cases, nothing their leaders had done in decades before the US attacks could have matched the inhumanity left behind from the US use of force. In the aftermath of these tragedies, Syria is perhaps the most significant rebuttal to the mantra that might makes right. As such, Syria may be one of the last chances for the international community to show that it is a community based on the rule of international law and not on the mere whims of men.

Curtis FJ Doebbler is a visiting professor of international law at the University of Makeni, Webster University (Geneva) and the Geneva School of Diplomacy and International Relations. He is attending the climate talks in Paris on behalf of International-Lawyers.Org, an UN ECOSOC accredited NGO.