This is an opinion piece by Professor Sandeep Gopalan, Pro Vice-Chancellor for Academic Innovation and Professor of Law, Deakin University. The author's view and opinion may not imply or reflect Deakin Law School's view.
Syria’s government killed at least 70 civilians over the past weekend — some estimates put the deaths over 150 — in attacks on Douma, reportedly using Sarin gas. Under President Bashar al-Assad, the government used chemical weapons in 2017 to kill at least 90 people, including children. Yet, because of obstruction by Russia, the United Nations has been unable to effectively respond even though the Organisation for the Prohibition of Chemical Weapons confirmed their use.
U.S. President Donald Trump warned on Monday: “Everybody’s gonna pay a price. [Putin] will. Everybody will. ... We have a lot of options militarily, and we’ll be letting you know pretty soon, probably after the fact.” In the meantime, Israel is reported to have carried out missile strikes on a Syrian target near Homs.
The United Nations Security Council met on Monday, and the United States has demanded an investigation into the use of chemical weapons. But on Tuesday, Russia rejected a resolution to investigate the chemical weapons attack.
While these shenanigans continue, what is the “big price” to which Trump refers? Could he be intending to launch missile attacks and, if so, is such an attack legal?
Unfortunately for the president, international law does not allow him to inflict a big price on the man he calls “Animal Assad.” The United Nations Charter prohibits the use of force. Specifically, Article 2(4) states: “All members shall refrain in their international relations 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.” The only recognized exceptions are upon the authorization of the Security Council, or for self-defense.
The charter vests the Security Council with the right to use force under Article 42. The Council can use force if other measures (under Article 41) “would be inadequate, or have proved to be inadequate.” The use of force includes actions “by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”
Article 51 speaks to the right to self-defense. The charter does not impair “the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations.”
In the current situation, there is no “armed attack” against the United States, and even the most tortured reading cannot support an argument for self-defence. The Security Council is unlikely to authorize use of force because of a Russian veto protecting Assad.
Could strikes be legal under existing U.N. Security Council resolutions? The relevant resolution, Res. 2118 of 2013, “decided that [Syria] shall not use, develop, produce, otherwise acquire, stockpile or retain chemical weapons.” This “decision” is not backed up with any direct consequences; the resolution merely states that if Syria does not comply, the Council may decide to “impose measures under Chapter VII.” In other words, there is no authorization for military action by any state, even if it is proved that Syria did in fact use chemical weapons on Saturday.
The Security Council likely will stop short of military action and explore measures under Article 41 or other provisions first. That means President Trump may not be able to impose a big price on Assad strictly in accordance with international law. So, is the United States without any legal options for military action? Not necessarily, based on precedent.
In 2017, the United States fired 59 Tomahawk missiles on a Syrian base following the use of chemical weapons by Assad. The strike was greeted with acclaim by the international community and the United Nations did not condemn the United States as a law-breaker. States including Australia, the United Kingdom, France, Germany, Netherlands, Japan, Turkey, the United Arab Emirates, Saudi Arabia, Qatar, and Kuwait all supported the U.S. action as a proportionate response, though there were dissenting voices from Russia and Indonesia.
Similarly, the Israeli strike against a Syrian nuclear facility in 2007 has been greeted with silence that apparently condones it.
NATO has carried out strikes in Kosovo, claiming humanitarian intervention, although that doctrine has found little subsequent support.
The current impasse is a terrible indictment of the U.N. system. What is the purpose of a legal system that allows a state to use chemical weapons against its own citizens and escape all consequences? Recent incidents seem to suggest that international law applies only against weak states; a state with the support of a member state with a veto in the Security Council can do as it pleases.
The lack of a safety valve allowing for military options in situations that clearly warrant action will prompt states to ignore international law and act anyway. France and the United States have signaled their willingness to order military action against Syria without any apparent regard for legality. If strikes eventuate, France and the United States will face no consequences, based on precedents, and the only consequence is a further erosion of international law’s potency as a meaningful system for constraining states.