Note: I am not a lawyer or an expert in international law. My only prerogative is that I received basic Red Cross training as an International Humanitarian Law Instructor, and from 2005 to 2012 taught courses for Red Cross staff and volunteers and for the public. My Instructor's certificate is now expired, and I write as a concerned citizen.
The use of chemical weapons against civilians in Syria gives us a strong incentive to understand more about the Geneva Conventions and the UN Charter. The relation between the two is close, yet the Conventions and the Charter apply in quite different situations.
I think we can see this by focusing on two specific questions: (1) If the Syrian government did in fact kill its own civilians with chemical weapons, has it violated international law? (2) If the U.S. government were to launch a unilateral military attack across Syrian borders, would it violate international law?
Syria and International Law
At the time of this posting Syria has not signed either the Chemical Weapons Convention of 1997 or the Rome Statute of 2002 that established the International Criminal Court. Syria has signed the Geneva Conventions of 1949 (though not its three Protocols added later) and also the Geneva Gas Protocol of 1925.
The language of the Geneva Gas Protocol would seem definitive. It prohibits the use of "asphyxiating, poisonous or other gases, and of all all analogous liquids, materials or devices." But strictly this treaty applies to wars between states, not to armed conflicts within a state—that is, not to a civil war like that in Syria. The same is true of the Geneva Conventions, which in any case do not directly address the issue of chemical weapons.
Over the years since these treaties of 1925 and 1949, however, laws of armed conflict have evolved. Calls for intervention in situations of humanitarian atrocity are increasingly based upon what is called "customary international law": rules that are practiced as law across an extensive and representative range of nations. Customary law now exists alongside treaty law, and together they constitute international law.
It seems to me that neither the Syrian government nor Syrian insurgent forces, if accused of using chemical weapons, could be convincingly charged with violating international law as established in formal treaties and conventions alone. But I believe that they could be charged with violating customary international law.
Then a court would have to decide. It could be a Syrian court, a court of another nation, or an international court, such as the International Criminal Court. First, of course, someone would have to file charges.
The U.S. and International Law
If the U.S. government were to launch a unilateral missile attack across Syrian borders, would it violate international law?
This question takes us beyond the Geneva Conventions and the ICRC. These seek to limit the ways armed conflicts can be conducted; they do not address the question of whether or not an armed conflict is justified under international law.
For the question of whether an armed conflict is legally justified, the fundamental document is the UN Charter and the principal administrative body is the UN Security Council.
I think we can see this by focusing on two specific questions: (1) If the Syrian government did in fact kill its own civilians with chemical weapons, has it violated international law? (2) If the U.S. government were to launch a unilateral military attack across Syrian borders, would it violate international law?
Syria and International Law
At the time of this posting Syria has not signed either the Chemical Weapons Convention of 1997 or the Rome Statute of 2002 that established the International Criminal Court. Syria has signed the Geneva Conventions of 1949 (though not its three Protocols added later) and also the Geneva Gas Protocol of 1925.
The language of the Geneva Gas Protocol would seem definitive. It prohibits the use of "asphyxiating, poisonous or other gases, and of all all analogous liquids, materials or devices." But strictly this treaty applies to wars between states, not to armed conflicts within a state—that is, not to a civil war like that in Syria. The same is true of the Geneva Conventions, which in any case do not directly address the issue of chemical weapons.
Over the years since these treaties of 1925 and 1949, however, laws of armed conflict have evolved. Calls for intervention in situations of humanitarian atrocity are increasingly based upon what is called "customary international law": rules that are practiced as law across an extensive and representative range of nations. Customary law now exists alongside treaty law, and together they constitute international law.
In 2005 the International Committee of the Red Cross published Customary International Humanitarian Law, Vol. 1 (a second volume interpreting the first is in preparation). It is a sweeping review of national laws and practices, national military manuals, international treaties, UN resolutions, pronouncements by national and international courts, and more. The result is the ICRC's distillation of 161 rules of customary law, accompanied by elaborations and profuse documentation.
Here is the volume's rule of customary law concerning chemical weapons, together with a summary sentence:
Rule 74. The use of chemical weapons is prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.Though monumental, the ICRC study is not authoritative. It has been widely welcomed, but amidst vigorous discussions, reservations, and objections. (See Perspectives on the ICRC Study on Customary International Humanitarian Law, Cambridge, 2007.) In any case, the Geneva Gas Protocol itself has come to be regarded as customary international law, and therefore it applies to armed conflicts of all kinds, including civil war in Syria.
It seems to me that neither the Syrian government nor Syrian insurgent forces, if accused of using chemical weapons, could be convincingly charged with violating international law as established in formal treaties and conventions alone. But I believe that they could be charged with violating customary international law.
Then a court would have to decide. It could be a Syrian court, a court of another nation, or an international court, such as the International Criminal Court. First, of course, someone would have to file charges.
The U.S. and International Law
If the U.S. government were to launch a unilateral missile attack across Syrian borders, would it violate international law?
This question takes us beyond the Geneva Conventions and the ICRC. These seek to limit the ways armed conflicts can be conducted; they do not address the question of whether or not an armed conflict is justified under international law.
For the question of whether an armed conflict is legally justified, the fundamental document is the UN Charter and the principal administrative body is the UN Security Council.
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| President Barack Obama chairing the UN Security Council discussion of nuclear nonproliferation September 24, 2009 |
The UN Charter (1945) functions as an international treaty, and all UN member states are legally bound by its articles. The thirteen Articles of Chapter VII establish rules that govern the use of armed force in response to "any threat to the peace, breach of the peace, or act of aggression." Specifically, the rules prohibit one country from attacking another unless (1) acting in self-defence if "an armed attack occurs," or (2) acting with approval from the UN Security Council.
In his remarks to the nation on September 10, President Obama called Syrian use of chemical weapons "a danger to our society." He spoke of the threat that Syria's chemical weapons would "over time" proliferate and threaten U.S. troops and civilians. He concluded his argument with these words:
Thank goodness we currently have a "moment of deliberation" in which diplomacy offers the possibility of an alternative to military action. I applaud President Obama for choosing to explore this diplomatic possibility, for it seems to me that a U.S. military strike across Syria's borders without Security Council approval would violate international law.
The only justification of a unilateral armed strike might be what some experts are calling an action that is "illegal but legitimate"—that is, illegal under international law, but legitimate for compelling humanitarian reasons. (See Legality and Legitimacy in Global Affairs, Oxford, 2012.) The ICRC study of customary law addresses the possibility of such "belligerent reprisals":
President Obama concluded his remarks of September 10 with a claim that the U.S. is exceptional:
Such openness, honesty, and restraint might indeed set an exceptional example among the nations of the world.
In his remarks to the nation on September 10, President Obama called Syrian use of chemical weapons "a danger to our society." He spoke of the threat that Syria's chemical weapons would "over time" proliferate and threaten U.S. troops and civilians. He concluded his argument with these words:
This is not a world we should accept. This is what's at stake. And that is why, after careful deliberation, I determined that it is in the national security interests of the United States to respond to the Assad regime's use of chemical weapons through a targeted military strike. The purpose of this strike would be to deter Assad from using chemical weapons, to degrade his regime's ability to use them, and to make clear to the world that we will not tolerate their use.In his next paragraph the President acknowledges that Syria's threat to the U.S. is not direct or imminent:
So even though I possess the authority to order military strikes, I believed it was right, in the absence of a direct or imminent threat to our security, to take this debate to Congress [emphasis added].I find President Obama's argument problematic. The UN Charter specifies that military self-defense is legal if "an armed attack occurs." The legal precedent behind that phrase includes also a threat of armed attack, but the threat must be "instant, overwhelming, leaving no choice of means, and no moment of deliberation." (The Caroline Case, 1842)
Thank goodness we currently have a "moment of deliberation" in which diplomacy offers the possibility of an alternative to military action. I applaud President Obama for choosing to explore this diplomatic possibility, for it seems to me that a U.S. military strike across Syria's borders without Security Council approval would violate international law.
The only justification of a unilateral armed strike might be what some experts are calling an action that is "illegal but legitimate"—that is, illegal under international law, but legitimate for compelling humanitarian reasons. (See Legality and Legitimacy in Global Affairs, Oxford, 2012.) The ICRC study of customary law addresses the possibility of such "belligerent reprisals":
Rule 145. Where not prohibited by international law, belligerent reprisals are subject to stringent conditions.But if a military strike across Syria's boundaries in the absence of a direct or imminent threat is "prohibited by international law," as I believe it is, then illegal but legitimate reprisal would seem to become a moot issue. Again, a charge would have to be filed, and a court would have to decide.
President Obama concluded his remarks of September 10 with a claim that the U.S. is exceptional:
I believe we should act. That's what makes America different. That's what makes us exceptional.I believe that the best grounds for calling the U.S. exceptional is not military action. Rather, if diplomacy should fail, my government ought to acknowledge, openly and honestly, the questionable legality of a belligerent reprisal, and make its case for military action, "subject to stringent conditions," on the basis of compelling, international humanitarian imperative.
Such openness, honesty, and restraint might indeed set an exceptional example among the nations of the world.
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