Papers report on Friday, April 7, 2017 on the previous evening's bombing of a Syrian air base in retaliation for the Assad government using chemical weapons. Richard B. Levine/SIPA USA/PA Images. All rights reserved.
As of last April 6, the ongoing non-international armed conflict in Syria – which since it began in 2011 has presumably reached a death toll of 400,000 people– has been ‘upgraded’ to an international armed conflict, after the United States attacked the Syrian regime by launching a barrage of missile strikes against a military airfield.
The attack was prompted by the alleged use of internationally banned chemical weapons by the Syrian government against its own population.
Considerations of jus in bello aside – which seem to be non-controversial at this point as the Pentagon informed to have targeted only military materiel – the reasons advanced by the Trump administration to justify its actions call for serious discussion from the standpoint of the jus ad bellum grounds required for them under international law.
Jus ad bellum and jus in bello are two dimensions comprised in the Just War tradition, which is a discourse on the moral and legal justifications to initiate hostilities and about the right way of conducting them. More specifically, jus ad bellum requires the existence of a just cause, a legitimate authority, a right intention, proportionality and reasonable chances of success, and for war to be a last resort. Currently, several jus ad bellum criteria have been crystallized into international law under the UN Charter and customary law, and it is under these sources that the legality of the US attacks must be assessed.
Indeed, the attack has immediately been said to infringe upon one of the cornerstones of the UN Charter: the obligation under article 2.4 for states “to refrain 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”. This is so because the Trump administration has not procured a previous authorization from the UN Security Council to use force against another state pursuant to Chapter VII of the Charter; and because the unilateral military action taken by the United States does not amount to the use of force in self-defense (the quintessential just cause for war) against a previous armed attack by another state, an ‘inherent’ right reserved for states under article 51 of the UN Charter. To be sure, President Trump’s laconic jus ad bellum address does mention the “vital national security interest of the United States” in preventing the spread and use of chemical weapons. Yet, there is no evidence to substantiate as of today that the Assad regime will use chemical weapons against the United States.
As a matter of fact, President Trump’s brief remarks grapple with a plethora of possible jus ad bellum justifications for the military strikes conducted against the Assad regime: Besides the aforementioned quite preventive – not preemptive – self-defense argument, there is arguably a claim to be acting at the behest of the UN Security Council to prevent Assad from using chemical weapons, thus enforcing the collective security system envisaged in the UN Charter. More still, Trump does not miss the opportunity of bootlegging into his speech his Catonian leitmotiv of “ISIS delenda est” (“we have to destroy ISIS”) by calling the world to “end terrorism of all kinds”. Trump also conveys his concerns about the refugee crisis that has destabilized the region and threatens to spread to the US and its allies. By calling Assad a dictator, Trump also reaffirms his commitment to the regime change endgame that could allow the Syrian people to reap at last the democratic seeds sown during the Arab Spring. Finally, one of the strongest motivations behind Trump’s decision to strike Syria is the humanitarian shock produced by the images of “helpless men, women and children” affected by the “barbaric attack”. Indeed, on the day of the chemical attack, the US ambassador to the UN, Nikki Haley, had expressed herself along similar lines by holding some poignant pictures of the victims.
The prompt support elicited from US major allies – including the UK, France, Germany, and the UE– is almost as surprising as Trump’s sudden change of heart from his “America First” policy. Conversely, and not surprisingly, Syria, Iran and Russia have all severely criticized the US attack.
Russia has even called it an “act of aggression”. This is a term of art under modern international law, defined in UN General Assembly’s Resolution Number 3314 (1974) as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. The UN General Assembly had already included “wars of aggression” in its Resolution Number 2625 (1970) as an example of what the International Court of Justice would later qualify as one of the most grave forms of the use of force, in its towering ruling on the case Nicaragua v. United States of 1986. In the near future the crime of aggression shall be fully prosecutable by the International Criminal Court.
Absent a legal justification for the US strike against Syria, Russia is most probably right in calling it an act of aggression. Under the UN Charter’s jus contra bellum regime – which contains a watered-down, yet not altogether obliterated, version of jus ad bellum grounds – there are few options for the US to legally base its recent actions: either it demonstrates the existence of an imminent armed attack warranting the use of force in self-defense; or it invokes the UN Security Council’s authority to carry out these military attacks. Neither can be plausibly claimed today by the US.
But jus ad bellum grounds may not be found only within the UN Charter. The law of the use of force is also contained in customary sources of international law. As of 2005, the international community has embraced the doctrine of the “responsibility to protect” comprising traditional jus ad bellum criteria and according to which countries have the duty to react – even militarily if authorized by the Security Council – to stop genocide, crimes against humanity, war crimes and ethnic cleansing. Assad’s chemical attack may be qualified prima facie as a war crime. For more than a decade, the UN Security Council has applied this doctrine in some of its resolutions, including the authorization for the use of force against Libya in 2011 (Resolution 1973), and several resolutions about Syria. The responsibility to protect has thus arguably become at least an emerging rule of customary international law.
Yet, due to the Russian veto, none of those resolutions on Syria has authorized the use of force against the Assad regime. The one resolution authorizing the use of force in Syrian territory, Number 2249 of 2015, does not mention the responsibility to protect and is especially targeted against ISIL and other terrorist groups.
But even if the jus ad bellum criteria of legitimate authority, just cause, right intention, and reasonable chances of success were met, a military humanitarian intervention in Syria, such as the one being currently conducted by the US, still faces major problems concerning the requirements of last resort and proportionality. The former has not been given a fair chance by the Trump administration. To do so, no sanctimonious diplomacy needs to be conducted, but only more effective strategies, such as the “gunboat diplomacy” deployed by the US to stop the humanitarian crisis in Haiti in 1994; or Obama’s “red line” bluff in 2013, which, for all its criticisms, was ultimately successful as it led to a deal between the US, Syria and Russia to ban, until now, the use of chemical weapons in the Syrian conflict. That episode showed that the key to ending the Syrian conflict is held by Russia.
The latter criterion of proportionality has been blatantly disregarded by the US, as it conducted a direct strike against a country located in one of the roughest neighborhoods in the world (considering the Arab-Israeli conflict, Iran, Iraq, Lebanon, and the Islamic State), a country which also happens to be backed by Russia and Iran – one, a nuclear power, and the other, a proto nuclear one. Thus, the risk of ‘balkanization’ of an already unstable region is far too great to conclude that the US has embarked in a Just War against Syria. It rather seems like just another illegal war.