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Published : November 19, 2017 | Author : kshirjaagarwal
Category : Miscellaneous | Total Views : 181 | Unrated

  
kshirjaagarwal
Student at Symbiosis Law School
 

Legality of US Missile on Syria

Overview
The legality of the US missile attacks on Syria is under question. Through this paper attempts have been made to identify the reasons for the US attacks on Syria and test its legality. The various legal tests used include the United Nations Charter signed by US which has just two exceptions to the use of force against other sovereign nations and they are self defense or prior approval from the United Nations Security Council, US State laws, role of US Congress in times of such acts, Docrtine of Responsibility to Protect. Light has been thrown on the opinion of other counteries in regards to this step of US for preotecting human lives. Attempt has been made to find similarities and differences between previous such acts by various US Presidents with reference to this present issue. The positive and negative impacts of this attack on international laws and world economy has also been tried to analyse.Future course of action by the US, Syria, United Nations and other countries has also tried to be established here. It has been concluded with hinting on the idea of a new way out where new international law is not only developed in relation with conventions or treaties but also acts by various states no matter how slow the process can be.

Background
On the morning of 7th April, 2017, 59 Tomahawk missiles had been launched by American military to target the air base of Shayrat in Homs, western Syria,which can be referred to as the first direct strike against President Assad’s government. The launching was done from two navy destroyers which were positioned in the Mediterranean Sea. It has been quoted by The Pentagon that the strike was aimed at targetting aircraft, aircraft shelters, petroleum, ammunition supply bunkers, air defense systems and radars, and that the U.S. took precaution to avoid civilian casualties.

A notification was issued to the Russian forces operating in Shayrat airfield about the strike in advance according to The Pentagon and it was subsequently confirmed by Kremlin. Atleast seven people were killed and nine were wounded and the assault caused extensive damage as per the report submitted by the Syrian military.

The strikes launched by US were a reaction to the deadly chemical attack in the town of Khan Sheikhoun in Syria killing atleast 72 people which also included children. It was one of the deadliest attacks in recent years in the country already facing war.

The chemical attack of Syria on civilians was a breach of the 1993 Chemical Weapons Convention and the 2013 UN Security Council resolution No. 2118 (which orders Syria to destroy its chemical weapons arsenal). The resolution covers taking up of certain ‘measures’ in the event of breach on part of Syria. However, the measures do not include authorisation for the use of force.

There is speculation with respect to the nature of Syrian chemical attacks that is they were carried out with or without high level authorasation, if it was a planned military action, or if it was organised by lower level military personnel's, or it was an act of the opposition to bring upon pressure on the Assad government.

As per the US, Russia and Syria-agreed "framework for elimination of syrian chemical weapons", Syria was supposed to destroy and dispose off its chemical stocks back in 2014. This means neither Syria nor Russia is likely to own up to any of the scenarios involving continued Syrian military possession of chemical weapons.

The US claims to have compelling evidence, in the form of command-level communications, which is sufficient to confirm that the attacks were authorised by the Assad Government. But unless that material is placed before the eyes of the public and they are brought under the scrutinity of experts, which will help in confirming the claims of the US, until then, it is not moral and acceptable to blame Assad Government for the chemical attack.

Instead of the US missile attacks on Syria, the correct procedure in the case of chemical incident was for an investigation to be carried out by international experts looking into the circumstances of the attacks and the probable forces behind it and after that if Syria was found to be guilty, action should have been taken against the Syrian Government but in accordance with international norms. The procedure could have been slower and even less efficient and hence less satisfying, but in order to get more satisfactory and quick results , one cannot go against the mutually decided internation norms and practices

Legality of The Us Missile Attack On Syria

From a legal point of view, the act was clearly a violation of predecided international norms and practices and hence, it is against the international law as it was an act of agression by one country against another country thereby, attacking the sovereignity of the second country.

United Nations Charter
A treaty of United Nations, the UN Charter can be regarded as ‘Supreme law of the land’ as it is the most important and highly placed treaty in the world. It superceded any other treaty, convention of agreements between member states. As per the UN Charter, there can be only two exceptions to use of force by one country against other and they can be for the purpose of self defense or in cases where such act has been pre authorised by the Security Council.

Self Defense
Recognition of the absolute right of self defense has been enshrined in Article 51 of the Constitution of UN Charter. It states:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The only prerequisite for the attack of one country on another to come under the purview of self defense is an armed attack by the other country initially. Some jurists have also permitted anticipatory action in order to protect oneself to under under the scope of self defense.

Security Council Authorized Use of Force
The second exception with regards to use of force against anothey country is if the security council itself has guven permission or has directed the country to use such force as necessary to maintain international peace, harmony and security as given under Artcile 42 of the UN Charter Constitution.

Article 42 of that chapter provides:
Should the Security Council consider that measures [not involving the use of force] provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

The topic which has been open to debates under the international law is ‘ Humanitarian Intervention’. It basically means if one state is allowed to intervene in the personal matters of another state when the state is using inhuman, deadly practices against its own population.

Humanitarian Intervention was relied upon in times of justifying the acts of the NATO air strike in 1999 aginst Kosovo and Serbia. But it was rejected by the member states by huge majority. So as of now, Humanitarian Intervention without the prior permission of the Security Council is not allowed for.

Neither of the conditions are being fulfilled in the case in hand. The UN Security Council has strongly opposed to the act of the Assad regime’s of using chemical weapons against its own population but it has also not called for an armed response by some other country, and most experts consider that act of the Syrian Government against its own citizens was in no way a direct threat to the US or its allies.

US State Law On Such Attacks
As a matter of domestic law, President Trump presumably relied on his Article II powers as Commander-in-Chief.

The purpose of enacting the War Powers Resolutions was to put a check on the powers of the President. He is required to proceed with dispatching the US combat troops in consultaion with the US Congress. But this consultaion is not required in times of national emergency which involves attack on US including its territories, military and polulation by external forces.

The spokesperson for the Trump Government said that a notification was sent to the Congress and all other relevant members and committees prior to the act of attacking Syria. Also, he said that the reason for the strikes was to maintain national security , it was in anticipation of a potential future attack upon the US.

Role of Us Congress
According to the US constitution, a war cannot be declared by the US President aginst any other countryn without taking prior approval from the US Congress. But in the recent times, through change in adminstration policies and through drone strikes and so-called special operators lax interpretation of this clause has been accepted.

Back in 2013, Barack Obama wanted the authorisation of the US Congress to respond to Assad’s use of chemical weapons by using military force through a system called AUMF (authorization for use of military force). But later the president took the atnce had he did not need to take prior approval of the Congress for limited military action to safeguard its people and that it was the correct and necessary thing to do.

No new vote was taken on AUMF under Obama as the Congress had authorized the act of George Bush back in 2003 when he invaded Iraq.

Doctrine of Responsibility To Protect
Despite all the contradictions, there is legal justification for his military action. It related to the Doctrine pf Responsibility to Protect(R2P). It has been developed in 2000 and approved by all member states in 2005. R2P was a result of the 1990’s genocide of Rwanda and Bosnia, which had caused the deaths of millions of people. One of the major reason for the loss of lives was international failure to act on the right time.R2P fixes responsibility upon very State Government to take care of their citizens suring all times, but if they fail to do so, then other states can intervene to enure a situation of peace and harmony and to protect the citizens from its own government. The duty which has been placed upon the shoulders of all member states require them to take approval of the Security Council.

However in the case of Syria, any attempts made by the Security Council to intervene in the matters of Syria were stymied by China and Russia. But R2P does not end the responsibility on the member states after one failed action of the Security Council. It places a moral duty upon the member states to take some definitive action in order to protect humanity even in times whn the international action has failed. To put it in easy words, the member states have to take action when Security Council fails to do so. But acting without the permission of the Security Council violates the UN prohibitions.

In the recent times, through the combined sentiment of the member nations, R2P has become an exception of taking prior permission from the Security Council.

A major example of violation of UN prohibitions i.e. acting without prior consent of the Security Council can be seen in the acts of NATO in 1999 when it intervened aginst Serbia to end the genocide camp operating there, prior to the rise of R2P.

Since its adoption in 2005, R2P has not been very extensively used to degfend the act of military intervention. In 2011, when NATO launched air strikes against Libya where thousands of unarmed protesters were attacked and killed and columns of tanks that were sent which were just hours away from reaching Benghazi and killing tens of thousands more. The Libya attack was backed by a Security Council resolution (UNSCR 1973) which authorized the use of force. The attack of NATO on Libya was a great success as ity managed to save hundreds of lives there.

To bring an action under the purview of R2P, it is essentaial that it is a well measured and reasonably calculated action for the sole purpose of fighting crime and saving human lives. Trump’s military action only targetted the Syrian regime’s aircrafts which was the source of most of the attacks against its citizens. Therefore, the attack of Trump passed on these grounds and therefore was included under R2P.

Previous Instances of Unilateral Use of Force By Presidents
In the past, any unilateral use of force by the US President has been supported by the rationale of self defense, which cannot be the case in the present Syrian experience. For example, President Jimmy Carter’s failed 1980 rescue attempt of American hostages in Iran, or President Bill Clinton’s 1998 missile strikes after al-Qaeda bombed U.S. embassies in Africa or President Ronald Reagan’s 1986 bombing of Libya.

In other cases, wide interpretation of attacks on US has been considered. For instance, President George H.W. Bush explained his 1989 invasion of Panama was a response to Gen. Manuel Antonio Noriega’s “reckless threats and attacks upon Americans in Panama that created an imminent danger to the 35,000 American citizens” there. Reagan also justified his 1983 invasion of Grenada along similar lines, saying that it was “first, and of overriding importance, to protect innocent lives,” and that “American lives are at stake.”

The second explanation other than self defense used by US Presidents to validate their unilateral use of force against other countries has been particular treaty demands or multilateral support in lieu of humanitarian grounds. Even Reagan, in invading Grenada, stressed that the Organization of Eastern Caribbean States had invited the United States to respond; that it was doing so in concert with other nations in the region and that “this collective action has been forced on us by events that have no precedent in the eastern Caribbean and no place in any civilized society.”

Similarly, in attacking Somalia (1992), Kosovo (1999) and Libya (2011), U.S. administrations were able to cite both humanitarian concerns and treaty obligations (e.g. with the United Nations, NATO, or both). All these attacks certainly frayed War Powers Resolution limits; for instance, the WPR specifically rules out inferring authority to use force from treaty obligations. Nonetheless, such circumstances gave the presidents cover, and Congress failed to overturn their actions.

Way Ahead
Apart from international treaties, conventions and declarations, new international law can also be formed through established state practice provided such practices is accepted by other states as been legal and fairly justifies. This process is slow and tedious but it is very effective. The recent incident of US striking Syria is a step towards outlining a new global practice. A practice which allows other states to intervene in domestic matters of a country in case of human rights violations in teh country.

A similar action can be seen through Kosovo intervention where no doubt that international law was violated but it was an effort on part of other member states to change the international law by dislaying behaviour distinct from established practices and observing the reactions of other member states. This is how customary international law can develop effectively.

Under the new principle which has been tried to be established here, Firstly, the force of force must be targetted to the locations which were the cause of chemical attacks in the first place. US attacked the base through which the chemical attack was launched.

Secondly, one precaution should be taken in times of use of such force and i.e. an attempt to minimise harm to human life. The attack apparently avoided the building suspected to store the chemical weapons, since an explosion there might have caused them to be spread widely, increasing civilian casualties.

The Russian military was even informed in advance by the US Government to give the Russian officers a chance to flee from the spot.

Durig the current chemical attacks by Syria, Trump’s emotions were triggered which can also be associated with his daughter’s heartfelt response.

Images from the Khan Sheikun attack seem to have stirred Trump's emotions, and there are reports that the heartbroken response of his daughter Ivanka influenced him as well. It is a major shift from Trump’s previous administration irrespective of the fact that it was inspired from his head or his heart. President Barack Obama shied away from using military force in response to Assad's first sarin gas attack against civilians in Ghouta in 2013.

During that time, the development of a new legal international principle was suggested by the Russian President Vladimir Putin. The principle basically stated that if any state is found using chemical weapons against its own citizens, in such a scenario, the country forfeits its right to keep chemical weapons in its territory and had to get rid of all of them. Under the leadership of The Organization for the Prohibition of Chemical Weapons, Assad Government was pressurized to get rid of its supplied of chemical weapons back in 2013. Syria was also made to sign the Chemical Weapons Convention.

Now that Syria has breached the four year old convention by attacking its civilians by chemical weapons, Trump has been given the right to use appropriate military force against Syria as it was warned about the same thing during Obama’s term in 2013 also.

But, still, it is not easy to establish a new principle in this regard. For the same, the case of Germany can be considered where though it has praised the current US strikes but has also stated that it will not offer its military for such operations in the future as they are carried out without the authorisation of the Security Council and hence was outside the legal ambit and Germany does not support such avcts which are basically acts of aggression against another country.

On the other hand Russia has threatened to use its military against the US if they do any such action in future.

Even the White House has wavered with respect to its justifications for attacking the Syria. They initially stated that the chemical attack by Syria was a "vital national security interest of the United States". Later on, to clarify their stance it was stated that the use of chemical weapons was a threat to entire mankind and hence is a matter of concern for evebry nation and not just US in particular. The latest stance adopted by the US is that any use of chemical weapons against mankind should be accounted for, and necessary steps should be taken even if it involves punishing the guilty irrespective of the actions adoptive by the UN.

This ambiguity in the various statements issued by the White House clearly hint towqrds the practice of developing a new internationally accepted norm.

The new principle can be accepted worldwide at the earliest, though the codification of the same can take many years. In the current times, with the rampant use of chemical weapons, any action taken against it to prevent loss to life has been accepted universally and such acceptance goes beyond the pre-established norms of the Chemical Weapons Convention.

If this new norm is established , it would enable all member states to take sufficient action against any country in the ocassion of usage of chemical weapons against civilians. But it would also mean challenging the authority of UN Security Council.

But majority of the countries who are speaking in favour of this action of US as of now do not want such a norm to be established as it would really give other countries a huge say in the domestic functioning of the country. On the other hand, US has been it very clear that it will keep acting against such acts in the future also, irrespective of the creation of a new norm.

Conclusion
The act has been held to be proportional to the loss of lives caused by the Syrian government by the White House. This has resulted to usage of conventional weapons by the Syrian army against the rebels if they do not want the US to intervene again i.e. if they do not want to face another attack from the US.

The act of the Trump government has various repurcussions, both positive and negative. The poisitve effects range from breaking of the well established practice of years which allows the Syrian governmenr led by Assad to grow more powerful against its own citizens, it also delivers the message that slaughter od human lives will not be tolerated under any circumstances especially by the US, and it also raises question over the friendly relations between russia and Assad which need to be seriously reconsidered by Russia if it does not want to isolate itself from the rest of the world. The negative impacts include serious economic effects. The strikes have an impact on the international ,markets, with the price of oil rising sharply.

As a result of the US attacking Syria, the relations between Russia and US are also under danger in a situation where Trump was trying to mend ways with Putin, but their relations cannot be built at the cost of suffering of innocent people in Syria. The fact of the matter is that Assad is an enemy to all people and he should be put down. But in any such event, Russia will be reluctant to give up its naval or air bases on Syrian Coast, but if a way is mutually worked out by US and Russia and if Russia acts responsibily, it is very unlikely that Trump would ask Russia to withdraw from the country while an interim government is formed.

In this entire situation, the stance of Iran is still unknown as it had sent its troops to fight along with Assad’s army.As a result, it obviously openely spoke against the US attack, but it is still to be seen if it will react with some force which at present looks very unlikely. The purpose of Iran to support Assad lies in maintaining a Shia foothold in a Sunni dominated area.

Despite the absence of legal justification, only Russia and Iran have forcefully spoken out against the U.S. missile attack, labelling it illegal. Most of the countries and world leaders have praised the act as a start of a fight against chemical weapons.

German chancellor Angela Merkel and French president Francois Hollande issued a joint statement in defense of Trump's action, and the leaders of countries as diverse as Japan, Turkey, Canada, Saudi Arabia, Poland, Italy and Denmark have all supported it.

Chinese President Xi Jinping has also not opened criticized the act and instead has shown support with it as an act to put an end to chemical weapons.

The heads of the European Union and NATO have both stated their belief that the use of chemical weapons "cannot go unanswered."

International law does not permit any retroactive remedy and therefore it is very unprobable that the Security Council will ratify this act of the US retrospectively.

But on the other hand it does not also mean that US will be punsihed for this act as if the laebreaker is among the 5 permanent member sof the Security Council, then the chances of punishment are pretty slim.

In such a situation international law expects the member countries to do the right thing and to respect their duties, responsibility and obligations in good faith and it also relies on the pressure exerted by the other countries on the wrongdoer.

Before this act, there wasn’t much reaction from the US with respect to fighting the conflict with Assad. It was just limiteed to its counterterrorism activities against ISIS and al-Qaida. Trump had even cautioned Obama against attacking Assad in 2013.

But if Trump intends to act in this direction again, he needs the preapproval of US Congress seeing the reactions of many members post the news of the attacks broke.

Reacting to the atrocities of Syria, Trump said “Even beautiful babies were cruelly murdered in this very barbaric attack,” “ No child of God should ever suffer such horror, and hence, the US was justified in its attacks to end such cruel practices.”

This act puts Trump and his new administration on the centre stage in international laws, but the extend to which it will be continued in the future is something that one will have to wait and watch.

Bibliography
Articles
# Andrew Rudalevige, Trump’s missile attack on Syria might be satisfying. But it’s not legal. (8th October 2017)
# Clive Williams, Were the US cruise missile strikes in syria legal? ( 7th October 2017)
# John Burroughs, Andrew Litcherman, Michael Ratner, The United Nation’s Charter and the Use of Force against Iraq (8th October 2017)
# John Bellinger, What was the legal basis for the US Air Strikes in Syria (8th October 2017)

Legal Sources
# SCC Online

Websites
# http://www.politico.com/magazine/story/2017/04/donald-trump-syria-attack-legal-215022
# https://www.usnews.com/news/best-countries/articles/2017-04-13/is-trumps-strike-in-syria-changing-international-law
# https://www.theguardian.com/us-news/2017/apr/07/donald-trump-us-missile-strikes-syria-legal
# http://www.dw.com/en/us-missile-strike-on-syria-a-violation-of-international-law/a-38389950
# https://www.usnews.com/news/best-countries/articles/2017-04-13/is-trumps-strike-in-syria-changing-international-law

Books
# Malcolm N. Shaw, International Law, 7th edition

 




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