JURIST Guest Columnist Curtis Doebbler of Webster University and Geneva School of Diplomacy and International Relations argues that the use of military force against Syria would constitute a violation of international law...
iolence has been the greatest threat to human rights throughout the past two decades. Although the cold war between superpowers ended, the illegal use of force by the US has killed an estimated 3 million people in Iraq, Afghanistan, and Libya. Now the US seeks to use force against Syria.
Threat or Use of Force
The threat or use of force between sovereign states constitutes a serious violation of the international law enshrined in Article 2(4) of the UN Charter and in customary international law that has been recognized [PDF] as jus cogens by the International Court of Justice.
When, on August 31, 2013, President Barack Obama said, "I have decided that the United States should take military action against Syrian regime targets," the US threatened the use of force against the sovereign state of Syria. It is an imminent threat because the president said that force could be used "tomorrow, or next week, or one month from now." The imminent threat has since been repeated by the US Secretary of State, the US Secretary of Defense, and US Admiral Jonathan Greenert, a naval operations officer in the US Navy, who said that all the military elements were in place to strike at Syria immediately.
If force is used against the people of Syria in violation of international law, Syria will have the legal right to use necessary and proportional force in self-defense. Moreover, once Syria declares it has been attacked all other states will also have a legal right to aid Syria in its self-defense using all necessary and proportional means to end the attack. There is no requirement that a state aiding Syria, by, for example, attacking US military assets somewhere in the world, has been affected by the attack on Syria.
Under customary international law reflected [PDF] in the Caroline Incident involving the US, Syria or any other state could also likely act to prevent an imminent attack by the US. Again, it is not necessary that an assisting state is affected, but merely that Syria has a well-founded fear of imminent attack. Thus a consequence the US threat to use of force against Syria is that the people of the US are in mortal danger. Moreover, the measurement of necessary and proportional in an anticipatory act of self-defense could take into account the US record of using "scorched earth" and "shock and awe" means of warfare.
The US might put forward several legal justifications for the use of force. The UN Charter limits these exceptions to those in Chapter VII and Article 51. To invoke the Chapter VII justification there must be both a determination by the UN Security Council that measures not involving the use of force have failed and an authorization for the use of force. For the US to claim it is acting in self-defense under article 51 of the Charter, the US or one of its allies must be the subject of an armed attack. If this is not the case, as appears to be the situation concerning Syria, this justification is not available.
Considering that President Obama seemed to think otherwise, it is relevant to note that it is a long-established principle of international law, that domestic law or domestic political positions can never serve as a justification [PDF] for a violation of international law. A vote by the US Congress to authorize the use of force is irrelevant under international law. Similarly, the justification of "humanitarian intervention" or the "responsibility to protect" have never been accepted as a justification for the use of force and have often rejected by the US itself.
It is noteworthy, that states recognizing the illegal consequences of an act of aggression or rendering assistance to use of force in violation of international law are themselves violating international law. All states, according to the UN Charter, are instead obliged to take all necessary action to prevent the violation of international law.
In addition to the responsibility of states, any person ordering the use of force in violation of international law commits the international crime of aggression and should be punished by any State that can obtain jurisdiction of that person. President Barack Obama, by threatening the use of force against the people of Syria in his public address on August 31, 2013 admitted that he is committing the crime of aggression. If the US carries out an attack against Syria, Obama will not only be responsible for attempting the crime of aggression, but also of committing it.
The consequence of Obama's ill-chosen or merely arrogantly muttered words is that he should be treated as a war criminal by the international community. This requires many states to investigate him, and, if they find sufficient evidence, to arrest him, and eventually to try him and punish him if he is found guilty. The prospect of having not only a US President, but also a Nobel-Prize winner behind bars for international crimes, is unfortunate, but it is what the rule of international law requires when such hideous crimes have been attempted or committed.
The US claims that Syria has used chemical weapons against its own people has not been confirmed. The US has refused to provide its alleged evidence to the public despite Russian requests. Instead, the US has merely called upon us to believe its assessment even before the UN inspectors have made their determinations.
At the same time, Carla del Ponte, a member of the UN Independent International Commission of Inquiry on Syria, has stated publicly on Swiss TV that there "strong, concrete suspicions" that rebels used chemical weapons and no evidence that the government used chemical weapons. A senior US government official told the Associated Press that the US lacked significant evidence linking Assad to chemical weapon use. On September 3, 2013, the Russian government provided the UN and the public a dossier that strongly indicates that foreign-backed Syrian rebels used chemical weapons. This dossier is based on film footage, tested samples containing evidence of chemical weapons, and interviews. It contains detailed examinations of the chemical weapons materials that have been collected in a variety of alleged situations of their use and concludes that the evidence is consistent with use by the foreign-backed rebels in Syria, not the government. Despite this important finding the report has been almost completely ignored by the UN weapons inspectors, the US, and the mainstream media.
On August 31, 2013 the Syrian government provided the UN inspectors a dossier with evidence of three chemical weapons attacks that the government claimed were carried out by the foreign-backed rebels. Nevertheless, the UN inspectors left Syria after having received this information without investigating it, although they vowed to return to investigate the information a future unspecified date.
As noted above, even if Syria is found to have used chemical weapons against its own people, something it strongly and consistently denies, the use of force against the people of Syria, an even more grave internationally wrongful act, cannot be justified. The Chemical Weapons Convention, which the US has ratified, states that any disputes concerning the subject of the treaty must be resolved in accordance the UN Charter, which prohibits the use of force. The suggestion that the use of chemical weapons by Syria is a justification for the use force is wrong in law.
What States Can Do in the Face of US Threats to Use Force Against Syria
In the circumstances, the US (and allies) have no legal justification for the use of force. The US president did not even try to assert a legal justification, but instead asserted the unilateral right of the US to violate international law whenever it wishes to do so based on domestic interests. Such a position is a grave threat to the rule of international law.
As time is running out, states can take steps to uphold the rule of international law, as Russian president Vladimir Putin and several other world leaders at the G20 Summit have done this, by demanding that there be no aggression against the people of Syria and that all efforts to achieve a peaceful settlement be exhausted. They can also call for a vote in the UN Security Council, the General Assembly or even the UN Human Rights Council to condemn the threat and use of force by the US and a very small group of allies.
In addition, states can move to isolate the US and to hold it accountable for its threats to violate the Charter of the United Nations as well as any act it undertakes in violation of international law.
And finally, all states can take steps to investigate, and if, necessary prosecute, any state official in any state that threatens, orders, implements, or otherwise facilitates the use of force against the people of Syria in violation of international law as having committed or contributed to the international crime of aggression.
Dr. Curtis F.J. Doebbler is an international lawyer with an office in Washington D.C,, a professor at Webster University and the Geneva School of Diplomacy and International Relations, both located in Geneva, Switzerland, and the representative of Nord-Sud XXI at the UN in New York and Geneva
Suggested citation: Curtis Doebbler, The Use of Force Against the People of Syria Will Be a Serious Violation of International Law, JURIST - Forum, September 9, 2013, http://jurist.org/forum/2013/00/curtis-doebbler-force-syria.php
This article was prepared for publication by Alex Ferraro, the Section Head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org