It appears that once the US Congress returns from its summer break on September 9th, American President Barack Obama will seek Congressional support for ‘kinetic action’ against Syria as a result of Syria’s alleged use of chemical weapons on civilians. The proponents of this action, likely to comprise of air and/or sea-based missile strikes, are being portrayed as a defence of the international order. To support such action, Syria’s violation of the 1925 ‘Geneva Protocol to the Hague Convention’ has been placed in the limelight. However, lost in the painful images of the casualties is the question as to whether such kinetic action would be legal; after all, the Geneva Protocol wasn’t the only international covenant signed in the echoes of catastrophic global war. As the guns quieted after World War II, and the Nuremberg Tribunal established that “crimes of aggression” constitute the ‘supreme international crime’, there was a strong desire to codify when one sovereign state could use military force against another, if ever.
Article 2(4) and the Use of Force
The UN Charter is the ultimate authority in international law; for our purposes, the paramount clause to consider is Article 2(4) thereof, which states:
All Members shall refrain in their international relations from the threat or 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.
Actions “consistent with the purposes of the United Nations” are those pursuant to Chapter VII of the UN Charter, which allows two occasions for the use of force. One is Article 42, which legitimates action through UN Security Council authorization. The other is Article 51, which allows for the use of force where the UN member state is acting in self-defence.
Does it apply?
So, does either apply here? With Russia essentially guaranteed to veto any UN Security Council authorization that path is unlikely to work. As to ‘self-defence’, in the case Nicaragua v. United States of America (1986), the International Court of Justice (ICJ) ruled that self-defence does not apply to the defence of a ‘third-state’, it only applies when the state invoking Article 51 is itself unlawfully attacked. Although the US formally vetoed the decision, it nonetheless appears to have informed an international opinio juris (a customary international law consensus).
Resolution 3314 and Defining Aggression
In seeking to define what kind of action would be subject to Article 2(4), the UN General Assembly passed Resolution 3314. Although it is not strictly legally binding, Resolution 3314 could be considered to impact upon customary international law. The resolution indicates that aggression includes territorial annexation, bombardment, invasion, blockade and/or the sending-in of, or support of, other troops, without compliance with the UN Charter. In other words, a bombardment of Syria, without a UN Security Council resolution, or without an attack on the United States by Syria, would be unlawful and – theoretically - a crime of aggression.
The Two “Never Agains”
In this way, President Obama is caught between the two ‘never agains’, both stemming from World War II. On one hand, there is the ‘never again’ to prevent governments from attacking and killing civilians. As President Obama noted in a Nobel Peace Prize acceptance speech; “in the wake of devastation, they recognized that if human rights are not protected, peace is a hollow promise”. On the other hand, there is the ‘never again’ to prevent one state from attacking another, unprovoked. After all, it had been Adolf Hitler’s claim that the Sudeten-German minority was being attacked that formed the basis of his actions against Czechoslovakia. Hitler’s actions taught us that no one country could judge such a situation on its own; instead, the UN Security Council – acting as a jury of the civilized world – would hear the merits of the planned action.
President Obama and the Affirmation of International Law
There are some who would say, “Oh, but the responsibility to protect supersedes other parts of international law”. Respectfully, no. While UN Security Council Resolution 1674 did affirm that the responsibility to protect is a factor to be considered when deciding whether to authorize action under Article 42, it is not a carte blanche for a nation to act without such authorization. It is not enough to say, “We wanted to receive authorization but not enough countries were willing to support us at the UN”. This situation should, perhaps, be a clarion call to reform the Security Council (and perhaps to reform the veto system), but it doesn’t justify non-authorized action. Personally, I find the use of chemical weapons, especially on civilian populations, to be abhorrent. However, if President Obama wants to state that he is acting in affirmation of the international rule of law, he may find his claim to be weakened by the fact that it has not actually received the affirmation of international law.