Was the U.S. strike against Syria legal under international law?
April 10, 201710 April 2017
Noting that U.S. President Trump can invoke no clear authority in international law to use force in response to Syria’s use of chemical weapons, John Bellinger argues that he needs to justify his actions legally all the same:
Although a U.S. military strike cannot be easily justified as self-defense of the United States, it is possible that the United States could argue that the use of force was permissible as an action in collective self-defense of Syria’s neighbors. Alternatively, it might be better for the Trump Administration to argue that its limited use of force was justified, even if not strictly lawful, under international law based on the specific facts in Syria and that other avenues had been exhausted. This is the approach the Clinton Administration took when it participated in the NATO bombing campaign in Kosovo in the 1990s, and that the Obama Administration was apparently prepared to take if it had decided to use force against Syria in 2013.
But for Craig Forcese, there are no persuasive legal arguments to be articulated, notably around exceptions of “humanitarian intervention” or the “responsibility to protect”:
People do, of course, urge the existence of these other carve-outs. See most notably Harold Koh, here. But unpack those discussions, and they turn on normative justifications – the should of international law, not the is. The is comes from basically two things: treaties and customary international law. There is no treaty basis for either humanitarian intervention or R2P. All that is left, then, is customary international law. And one would need to give supreme primacy to the state conduct (with opinio juris) of a handful of the world’s states to conclude an R2P or humanitarian exception exists. And along the way, you’d need to ignore a lot of state expressions of dissent, not least dissent generated by the justifications offered by the United States in the 2003 Iraq War (where at least one line of justification focused on humanitarian impulses).
Nor is there any international law norm that permits use of force by one state against another to punish use of weapons of mass destruction.
And so we are left with a “wicked problem”: surely, we could prosecute the Syrian leadership for war crimes and crimes against humanity, if we had them. But we don’t. And so Syria acts with impunity, shielded by the well-meaning, international strictures on use of force. And these well-meaning limitations on the use of force were intended by the framers of the UN Charter to operate in a world in which the Security Council worked – and where it would exercise collective defence.