The Legality of the US intervention in Syria

As the US and its allies prepare for an imminent military intervention in Syria in the aftermath of reports that chemical weapons were used by the Assad regime against innocent civilians in Damascus, it remains to be determined whether this use of force is justified and legal from an international law point of view. Without drawing comparisons with the military intervention of the US in Afghanistan and Iraq, it is argued that the US has no legal basis to intervene in Syria. I recently read somewhere that “inter arma enim silent leges”, which means that in times of war, the law usually falls silent. According to the Obama administration, justifications for a military intervention in Syria include the Geneva Protocol, the Chemical Weapons Convention, the Kosovo precedent, and the so-called ‘Responsibility to Protect’ doctrine. However, the arguments of the US fall flat in the face of the UN Charter which bans military intervention without a UN Security Council approval for same, an approval which is likely to be denied by Russian and Chinese veto.

International envoy Lakhdar Brahimi commented that the US would need UN Security Council approval to be able to proceed with military intervention in Syria. This is a testing time for the UN and its Security Council. Britain and other allies such as France have begun talks in New York as to a Security Council resolution approving military intervention in Syria. The UK Prime Minister, David Cameron, as well as its foreign secretary, William Hague, have indicated that they would seek approval from the UN before launching any attack. However, Cameron has argued that “Britain has always wanted that the UN Security Council lives up to its responsibilities on Syria. Today they have an opportunity to do that," the Prime Minister said.

The US would back their attack in Syria on the doctrine of ‘pre-emptive force’ to protect US allies. The US, France, and other allies would likely use the justification of collective self-defence and also vouch for intervention based on humanitarian grounds, especially since neighbouring states such as Jordan and Turkey might be threatened by the Assad’s regime possible use of chemical weapons. As noble a concept is intervention based on humanitarian grounds to protect innocent civilians, it is nevertheless one that is unacceptable if applied unilaterally and without approval by the international community. The UN Charter forbids the “use of force against the territorial integrity or political independence of any state" but allows for the use of force in self-defence.” Furthermore, Article 51 reads, in part that "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations." However, none of these provisions have prevented the US and its allies to resort to the use of force in Afghanistan and Iraq.

The US might push for a Chapter VII resolution, as was used in the case of Libya in 2011 where a no-fly zone was enforced in the wake of a potential massacre in Bengazhi. However, having said that, it seems very unlikely that the US and other like-minded governments could convince Russia and China that Chapter VII applies in the case of Syria. Both Moscow and Beijing were angered that the resolution used in the case of Libya was a green light to removing General Ghadafi. Issuing a similar ‘carte blanche’ to the US and its allies would be a definite no for both Russia and China.

At the present moment, the trigger that could convince UN Security Council members to approve the resolution to allow military intervention in Syria would be the fact that the US and the West claims that the Assad regime has used chemical weapons against innocent civilians in Syria. However, there is not tangible proof as to whether this is actually true: it is very difficult to determine whether it was the rebels or the Assad regime who resorted to the use of chemical weapons. Dr Wilmer Leon, of Harvard University has explained that, it might be a fact that the Syrian government has the weapons, and that they are the only ones that have them. But this is not taking into account all the defections from the government over to the militants. Leon argues that “it is quite possible that in government operatives leaving the government and moving over to fight with the rebels those chemical weapons could have gone with as the way that the people went.” For the most part unilateral intervention into another country has been conducted by the US without a legal basis, and more often than not, the results of such actions have not proven to be good. 

The gassing of innocent civilians during an internal conflict is wrong, and not just from a moral perspective. The perpetrators of such an ignominious should be brought to trial and punished for their criminal wrongs. There exist an international criminal court, the ICC, which an institution which now has the world's more brutal political and military leaders looking over their shoulder for fear they might be extradited to the Hague to answer for their crimes. If Bashar-al-Assad has ordered for chemical weapons to be used against innocent civilians, and there is strong evidence that he has done so, then he should be made answerable and accountable for his crime in front of the ICC and put on trial on the charge of crimes against humanity. This logical step is far removed from unilateral and illegal military intervention by a nation which considers itself as the world ‘policeman’.

The civilian death toll from external military intervention will in all likelihood exceed that which prompts the intervention in the first place. It is likely that, as the past lessons from Afghanistan and Iraq have attested; military intervention might end up killing more Syrians than the Assad regime itself. This stance is no way to pay tribute to those killed by their own government. If admittedly, as the US and its allies argue, humanitarian grounds should trump international law, then why does the US apply the concept of humanitarian basis selectively? There are conflicts raging in North and Central African countries such as Egypt, Congo, Cote d’Ivoire, the Central African Republic, Somalia, Sudan, etc. Why has the US refrained from intervening there, where children and women have been killed over the recent years due to internal civil wars and all sorts of political conflicts? In my humble opinion, the US always has had an agenda backing its military interventions. There is no guarantee that the use of force by the US and its allies in Syria will be a blanket righting of wrongs. If anything, the use of force might escalate the Syrian conflict into something more dangerous, which can have serious political ramifications on relations between the West and other countries like China and Russia, maybe paving the way for a second Cold War of sorts. 

The intervention in Syria is neither legal nor legitimate. But the US will find a way to have the final word on this and the impact of this intervention only presages more doom for innocent civilians caught between the cross-fire of the conflict in Syria.

Krishnee Appadoo ©




References:

http://www.abc.net.au/news/2013-08-28/fitzpatrick-syria/4918406

http://www.reuters.com/article/2013/08/28/us-syria-crisis-brahimi-idUSBRE97R0EW20130828

http://www.theguardian.com/world/middle-east-live/2013/aug/27/syria-crisis-military-intervention-un-inspectors

http://www.theguardian.com/world/2013/aug/28/syria-crisis-labour-cameron-commons