The unlawfulness of the Syria strikes
In response to the (alleged) use of chemical weapons by the Syrian regime in the city of Douma, the United Kingdom, United States, and France carried out a number of missile strikes against several government facilities. These strikes clearly violate basic rules of international law.
The legal framework regulating the use of force in international law is well-known. The general prohibition contained in Article 2(4) of the UN Charter is reflected in customary international law, and is subject to just two established exceptions. Firstly, states have an individual and collective right of self-defence against an armed attack, as contained in Article 51 UN Charter. Secondly, the UN Security Council, in exercising its “primary responsibility” for the maintenance of international peace and security, may authorise the use of force under Chapter VII. Neither of these exceptions has been invoked in the case at hand.
Whilst the views of all three states are likely to be similar, only the UK attempted to clearly articulate its legal position. In doing so, it asserted a right to humanitarian intervention, and made reference to the goal of degrading Syria’s capacity to carry out chemical attacks and deterring their reoccurrence. The claim that force can be used to ensure compliance with international rules and deter further violations is easily dismissed. The unlawfulness of such reprisals has been confirmed by the International Court of Justice in the Nuclear Weapons Advisory Opinion and the Oil Platforms case, and is reflected in the law of countermeasures (Article 50(1)(a) ARSIWA).
As for the argument of humanitarian intervention, the claim that force may be used to “alleviate overwhelming humanitarian suffering” has been consistently asserted by the UK since the NATO intervention in Kosovo in 1999. Proponents argue that such a right is needed where Security Council action is impossible as a result of the use of the veto power of its permanent members, as is the case here. As demonstrated by the reactions to the recent strikes, there does not appear to be the required state practice and opinio juris to establish a customary right to humanitarian intervention. The oft-cited 2005 World Summit Outcome fails to provide support for a unilateral right of humanitarian intervention, affirming the fact that actions are to be taken through the Security Council should peaceful methods fail. The claim that such a customary right exists also overlooks the challenging issue of the superiority accorded to Charter obligations under Article 103.
The arguments put forward for the strikes reflect certain important values (or, even, “principles”) of the international legal system: the protection of individuals from human rights abuses, and the enforcement of international law. However, such motivations alone cannot exclude the application of legal rules. Such values may find reflection in rules, and may even be the impetus for the creation of new rules. Yet, it is imperative that any modification of international rights and obligations is done through the recognised law-making procedures.