by Juan Carlos Portilla
There is growing evidence that an estimated 1,429 civilians—including more than 400 children—died torturous deaths in a chemical weapons attack in Syria at the hands of Syrian President Bashar Al-Assad’s regime. Western powers are now contemplating launching a limited military strike in Syria to deter the government’s further use of chemical weapons. Several military, political, and moral calculations are being weighed. Yet equally important to consider, and largely underreported, are the legal issues underlying Western powers’ decision to launch a military strike in Syria. In particular, it is important to ask whether the Syrian government violated international law when it used chemical weapons against civilians and whether Western powers are legally obligated or allowed to retaliate with military force. While the answer to the first question is a resounding yes, international law is not as clear on the second. However, given that the UN is the only body that can authorize the use of force to maintain or restore international peace and security, the international community must get UN approval before militarily intervening in Syria.
Did the Syrian Government Violate International Law?
By using chemical weapons on civilians, the Syrian government violated jus in bello norms—laws governing the conduct of armed conflicts. In 1992, the UN General Assembly approved the Chemical Weapons Convention (CWC), which prohibits nations from producing, stockpiling, and using chemical weapons and which has become customary international law. Currently, 189 states have ratified the CWC. Two countries have signed but not ratified the treaty and there are five non-signatory states, including Syria. Although Syria is not party to the CWC, it still cannot use chemical weapons as a method of warfare, because the 1949 Geneva Conventions and their Additional Protocols—a cluster of international treaties dealing with the protection of civilians during conflict—dictate that all parties to the Syrian civil war must distinguish between civilians and military personnel. Additionally, the International Committee of the Red Cross (ICRC) published a compendium in 2005 on customary international law governing armed conflicts, which included the prohibition of the use of chemical weapons.
Legal Justifications for Intervening in the Syrian Conflict
The main source of international law to consult in this case is the UN Charter, which outlaws war but makes exceptions in the case of individual or collective self-defense. However, self-defense does not apply in the Syrian case, because Article 51 of the UN Charter states that an armed attack must occur against any member of the UN to legitimate the use of force by a state or a group of nations acting in self-defense. Although the Syrian Armed Opposition is a party to the internal conflict and was the target of a chemical weapon attack launched by the Syrian regime, it is not a member of the UN.
Other exceptions to the prohibition of the use of force are more applicable to the Syrian case. The UN Security Council (UNSC) can authorize the use of force to maintain or restore international peace and security. Additionally, there exists a responsibility to protect policy (R2P), whereby countries must protect their own people from genocide, war crimes, ethnic cleansing, and crimes against humanity. When a country fails to do so, other countries may take collective actions to stop the killings. Nonetheless, there is no treaty governing R2P, thus any collective action taken under R2P must have UNSC authorization.
If the UNSC fails to authorize an intervention in Syria, the UN General Assembly (UNGA) could step in. However, passing a resolution at the UNGA is difficult and time-consuming, since decisions regarding the maintenance of international peace and security must be made with a two-thirds majority of members present and voting. If unable to get authorization by the UNSC or the UNGA, Western powers could take enforcement actions against Syria through regional organizations, as they did during the NATO bombing on Yugoslavia during the Kosovo War, but this would violate the UN Charter.
What Legal Course Should Western Powers Take?
Countries should come together to stop the killing of civilians by chemical weapons, which are illegal under international law, and foster peace in Syria. However, they must carry out enforcement actions through the limits and scope of the UN Charter. Only the UNSC has the power to authorize the use of force; yet, UNGA could step in if UNSC fails to execute its responsibilities under Article 24 of the UN Charter. Thus, getting UN authorization for an intervention in Syria is the only legal course of action the global community should take. As President Obama and his administration weigh their options, they must avoid damaging the UN system, a regime that after all was shaped according to the strong and positive influence of the American vision of international order after World War II.
About the Author
Juan Carlos Portilla is a Visiting Scholar at Boston College Law School. He is representing before the Human Rights Committee of the United Nations two students of the Venezuelan political opposition, who are victims of unlawful detention in Caracas. He previously worked for the government of Colombia. He is a lawyer from the Sabana University School of Law, Colombia, and holds a LL.M. in International Law from The Fletcher School of Law and Diplomacy, Tufts University.
