Syria, chemical weapons and international law

Syria, chemical weapons and international law ANU College of Law, Law Link Theatre, Monday 21 May 2018, 5:30-6:30pm Speaking notes on issues of jus contra bellum Dr Etienne Henry, Visiting Fellow ANU College of Law 1. On 14 April 2018 (4am Syrian time), the USA, the United Kingdom and France conducted air strikes on three targets on Syrian territory (the Barzah scientific research centre in Damascus, the Him Shanshar military installation storage site, and Him Shanshar military installation bunker, west of Homs). According to Article 2(4) of the UN Charter: 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. It is well-known that this provision and its customary international law counterpart prohibit the use of military force except in cases of self-defence (Article 51 of the UN Charter), or if authorized by the Security Council, under Chapter VII of the Charter, in case of a threat to the peace, breach of the peace, or act of aggression (Article 39 of the UN Charter). As neither of these situations occurred in the case of the 14 April air strikes, the latter appear to constitute a manifest breach of Article 2(4) of the UN Charter (which is also widely viewed as a peremptory norm of international law (jus cogens)). In fact, for once in Syria, none of the involved parties claims that the action was justified as an act of selfdefence. I will now address the arguments put forward by each of the intervening States in order to justify the air strikes. 2. Actually, the French government claims indeed that UNSC resolution 2118 (2013) of 27 September 2013 contains an implicit authorization to bomb Syria if chemical weapons are used. This is a well-worn argument that was used very controversially in Iraq in the 1990s and in 2003, as well as in Kosovo. At the time of the invasion of Iraq in 2003, France vehemently rejected it.1 It would be plausible—if not necessarily conclusive—if there was a clear an unequivocal declaration of the Council.2 But in this case, the argument that a further decision was not needed is not plausible because the text of the resolution clearly states that only the Council itself will be competent to asses Syria’s compliance with the resolution and to decide on which measure to adopt under Chapter VII of the UN Charter. In paragraph 21 of the resolution, the Council 1 See UNSC Verbatim Record (26 March 2003) UN Doc. S/PV.4726(Resumption 1) (de la Sabliere, France). See Ugo Villani, ‘Les rapports entre l’ONU et les organisations régionales dans le domaine du maintien de la paix’ (2001) 290 Recueil des cours de l’Académie de droit international de La Haye 225, 371. 2 Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter.3 In the following paragraph, the Council decides to remain actively seized of the matter. The text of the resolution thus clearly excludes the possibility of unilateral action, as it clearly refers to Chapter VII, without excluding explicitly the voting procedure or conferring a right on individual Member State. 3. If further confirmation of the implausible character of the French interpretation is needed, the circumstances of the adoption of resolution 2118 (2013) provide it quite clearly. (As an aside, it is admitted that reference to the official records of negotiations is a means of interpretation of Security Council resolutions.4) At the time of the (unanimous) adoption of resolution 2118 (2013), nine of the members of the Council—including the USA, the UK and France—referred to this aspect of the resolution.5 None of them claimed that a State member of the Council or any other State would be entitled to act solely without previous authorization of the Council. In fact, three States clearly expressed the opposite view, including France itself, for whom ‘the Security Council […] will be the judge of Syria’s commitment’.6 When the USA, France and the UK threatened to use force, on 8 and 10 April 2018, they did not rely on resolution 2118 (2013).7 Moreover, several members, including Russia and China, met their threats with reaffirmations of the principle of the prohibition of the use of force and criticism.8 In sum, the resolution and the circumstances of its adoption leaves no room to argue in good faith that France had a right to act unilaterally without a further explicit authorization. The fact that the France clearly articulated this argument only after the facts tends to confirm this interpretation of the meaning of resolution 2118 (2013). 3 UNSC Resolution 2118 (2013) (27 September 2013) UN Doc. S/RES/2118 (2013), 4 [21]. This resolve was reaffirmed several times. See UNSC Res 2209 (2015) (6 March 2015) UN Doc. S/RES/2209 (2015), 2 [7]; UNSC Res 2235 (2015) (7 August 2015) UN Doc. S/RES/2235 (2015), 3 [15] (establishment of the OPCW-United Nations Joint Investigative Mechanism (JIM)); UNSC Res 2314 (2016) (31 October 2016) UN Doc. S/RES/2314 (2016) (shortterm technical extension of the mandate of the JIM), 1 [2]; UNSC Res 2139 (2016) (17 November 2016) UN Doc. S/RES/2139 (2016), 2 [3] (renewal of the mandate of the JIM). 4 See ICJ Namibia Op. (1971); ICJ Kosovo Advisory Op. (2010). 5 UNSC Verbatim Record (27 September 2013) UN Doc. S/PV.7038, 4 (Lavrov, Russian Federation); 5 (Kerry, USA); 6 (Hague, UK); 7-8 (Fabius, France); (Mammadyarov, Azerbaijan); 9 (Republic of Korea); 13 (Timerman, Argentina); 14 (Gasana, Rwanda); 15 (Quinlan, Australia). 6 ibid. 8 (Fabius, France). See also ibid. 4 (Lavrov, Russian Federation); 13 (Timerman, Argentina). 7 UNSC Verbatim Record (9 April 2018) UN Doc. S/PV.8225, 11 (Haley, USA); 13 (Delattre, France); UNSC Verbatim Record (10 April 2018) UN Doc. S/PV.8228, 6 (Pierce, UK). 8 See UNSC Verbatim Record (9 April 2018) UN Doc. S/PV.8225, 15 (Wu Haitao, China); 18 (Tanoh-Boutchoue, Côte d’Ivoire); 21 (Inchauste Jordán, Plurinational State of Bolivia); UNSC Verbatim Record (10 April 2018) UN Doc. S/PV.8228, 6 (Wu Haitao, China); 7-8 (Llorenty Solíz, Bolivia). 2 4. The British government relies on an alleged right of unilateral humanitarian intervention.9 The UN Charter certainly does not contain such norm. A clear majority of UN Member States, has consistently rejected the notion that States could act unilaterally, without a previous authorization by the Security Council, especially in the 2005 World Summit Outcome Document, in the context of the notion of the ‘responsibility to protect’.10 In short, under positive international law, no right of humanitarian intervention is recognized as an exception to the prohibition of the use of force. 5. I am not necessarily entirely opposed to the argument that in some extreme cases, there are good grounds to breach the law for the sake of higher values. It would be a sort of ‘civil disobedience’ of States—although it seems ironical to use the concept of civil disobedience to justify the use of force. It is well-known that the concept of civil disobedience was coined by Henry David Thoreau in the 19th century in protest against the US war of conquest waged against Mexico. 6. However, even if you decide to invoke natural law or the language of legitimacy rather than legality, an intervention must follow certain conditions—although these will of course be subject to differing approaches, given the disputed and fluctuating content of the just war theories from which the notion of humanitarian intervention flows. (a) ‘Extreme humanitarian distress on a large scale, requiring immediate and urgent relief’: As opposed to what the British government claimed, the measures were taken before any investigation, at the time when the facts were highly controverted. There is no consensus of the international community as a whole on the necessity of the strikes. Many States insisted that action should not have taken place before the dispatch of the OPCW-FFM. In this regard, professor William Schabas that the number of civilians killed by the use of chemical weapons in Syria only accounts for a very small percentage of the total death toll of the conflict. So why intervene in cases of the use of chemical weapons and remain passive when it is not the case? Perhaps an answer is that the intervening States see no interest in intervening for the protection of the Syrian population. In addition, perhaps they are aware that military action is not an effective tool in this context. Military action would certainly cause even more civilian casualties and would not necessarily succeed in preventing them. As has been reaffirmed by many actors, a political solution is the only realistic way out of this tragic conflict. Another reason is maybe that after having threatened to intervene, the States are seeking to preserve their credibility. We all remember US President Obama’ unenforced threats ‘Syria Action – UK Government Legal Position’ (Gov.uk, 14 April 2018) <https://www.gov.uk/government/publications/syria-action-uk-government-legal-position/syria-action-ukgovernment-legal-position> (accessed 16 April 2018). 10 UNGA Res 60/1. 2005 World Summit Outcome (16 September 2005) UN Doc. A/RES/60/1, 30 [139]. 9 3 back in 2013, which resulted in a considerable loss of credibility of the USA as a military power. In sum, the air strikes were punitive rather prospective. (b) ‘No practicable alternative to the use of force if lives are to be saved’: The strikes occurred after the attack and no claim was made that further imminent attacks were about to occur. (c) Reasonable chance of success: The objectives of the strikes have not been defined very clearly in the statements available in the public domain. Their chance of success is highly debatable, given that the conflict is coming to an end (and the precedent of last year’s US strike proved that such limited measure were not efficient in preventing the use of chemical weapons). It is difficult to measure their success given that the objective sought by the air strikes remains unclear. But what is certain is that the strikes have been criticized by security experts as failing to 11 What seems relatively clear is that the strikes risked causing a major confrontation between Russia and NATO Member States, with hardly predictable consequences. It seems also clear that the move probably did not facilitate a progress in the talks at the UN Security Council on the establishment of an investigative mechanism. 7. The US lack of elaborated argumentation reflects the rather limited commitment of the Trump presidency for international law. In its recently adopted National Security Strategy, President Donald Trump affirmed that ‘[t]he United States supports the peaceful resolution of disputes under international law but will use all of its instruments of power to defend U.S. interests and to ensure common domains remain free.’12 8. The argument that was given by Nikki Haley is that diplomatic means having failed to prevent the use of chemical weapons, the time was come to use military force.13 This is totally incompatible with the principle of the prohibition of the use of force and the principle of peaceful settlement of international disputes.14 9. I could rely on the non ultra petita rule and stop my analysis here, as no further arguments have been made formally. But I should also say a word on armed reprisals. On 29 May 2017, French President See Phil McCausland and Yuliya Talmazan, ‘Trump's U.S.-led airstrike on Syria won't stop Assad's chemical capabilities, experts say’ (NBC News, 15 April 2018) <https://www.nbcnews.com/news/world/trump-s-u-s-ledairstrike-syria-won-t-stop-n866046> (accessed 21 May 2018). 12 Donald J. Trump, ‘National Security Strategy of the United States of America’ (President of the United States of America 2017) <http://nssarchive.us/wp-content/uploads/2017/12/2017.pdf> (accessed 19 December 2017). 13 UNSC Verbatim Record (14 April 2018) UN Doc. S/PV.8233, 5 (Haley, USA): ‘The time for talk ended last night. We are here today because three permanent members of the Security Council acted. The United Kingdom, France, and the United States acted not in revenge, not in punishment and not in a symbolic show of force. We acted to deter the future use of chemical weapons by holding the Syrian regime responsible for its crimes against humanity.’ 14 See Manila Declaration on the Peaceful Settlement of International Disputes, UNGA Res A/37/10 (15 November 1982) UN Doc A/RES/37/10, [13]: ‘Neither the existence of a dispute nor the failure of a procedure of peaceful settlement of disputes shall permit the use of force or threat of force by any of the States parties to the dispute.’ 11 4 Emmanuel Macron had affirmed that any use of chemical weapons would be the object of reprisals and immediate riposte from the French.15 It is generally admitted in States’ opinio juris that States must ‘refrain from acts of reprisals involving the use of force.’16 In fact, it is interesting to note that neither France nor any of the other intervening States did not formally raise the argument of armed reprisals. Perhaps, they realized that it would not necessarily be in their interests to revive a theory that served to justify the worst abuses of the gunboat policy of the 19th century? Indeed, the comeback of the doctrine of armed reprisals would be the last nail on the coffin of international on the use of force (jus ad bellum). 10. In sum, one cannot escape the straightforward conclusion that the legal arguments put forward by the intervening States are unconvincing, if not very implausible. The only possible conclusion, if you stick to the accepted positivist method of ascertaining the law is therefore that the strikes were a manifest breach of Article 2(4) of the UN Charter. As the UN Secretary-General affirmed during his briefing at the Security Council meeting on 14 April 2018, ‘[t]he Charter is very clear on these issues.’17 11. These unilateral doctrines put forward by the intervening States, are very dangerous, as they could easily have led to a major global confrontation. This was rightly stressed by UN Special Envoy Staffan de Mistura: Recent developments have more than ever before brought to the surface the dangers that the Secretary-General warned about recently at the Munich Security Conference, when he spoke of ‘different faultlines’ in the Middle East that are interconnected and crossing each other, of conflicting interests of both global and regional Powers, and forms of escalation that can have absolutely devastating consequences that are difficult for us to even imagine.18 Some media have reported that the risk of major confrontation has been avoided by warning the Russian Federation of the oncoming strikes, which allowed the Syrian government to any potential devices linked with chemical weapons well in advance. However, this also had potentially the result of depriving them of any efficacy in realizing the stated purpose of destroying chemical weapons. Some 15 Emmanuel Macron (Twitter, 29 May 2017) <https://twitter.com/emmanuelmacron/status/869233035090198528?lang=fr> (accessed 20 May 2018): ‘Toute utilisation d’armes chimiques fera l’objet de représailles et d’une riposte immédiate de la part des Français.’ 16 See UNGA Res 2625 (XXV). Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (24 October 1970) UN Doc. A/RES/2625 (XXV), 2. See also Article 50(1)(a) of the 2001 Articles on International Responsibility of States, International Law Commission, ‘Report of the International Law Commission on the Work of Its Fifty-Third Session (23 April–1 June and 2 July–10 August 2001), UN Doc. A/56/10’ (2001) II, Part Two Yearbook of the International Law Commission 131. 17 UNSC Verbatim Record (14 April 2018) UN Doc. S/PV.8233, 2 (António Guterres, Secretary-General). 18 UNSC Verbatim Record (9 April 2018) UN Doc. S/PV.8225, 4 (Staffan de Mistura, Special Envoy of the SecretaryGeneral for Syria). 5 media indeed reported that the buildings that were destroyed by the strikes had been previously emptied. 12. Arguably, the air strikes amounted to an ‘armed attack’ triggering Syria’s right of self-defence under Article 51 of the UN Charter.19 The immediate implication was that Syria was entitled to repel the attack by force—which it did, although the efficacy of its action is controverted. If necessary it could also have called for the assistance of its allies in the framework of the right of collective self-defence. In other words, the strikes potentially opened an opportunity for Russia or Iran to lawfully engage US, French or British forces with the purpose of repelling the attack. This should give us some pause. If the strikes had effectively led to global confrontation, history books of the future—if someone would remain to write them—would maybe report that the conflict was triggered by an unlawful armed attack on Syria. 13. At the normative level, it seems that many States are willing to bend the law to respond to short-term needs without giving much thought to the systemic implications of the doctrines that they thus promote. However, the rules of international law are built on a long-standing practice and they protect the interest of the international community as a whole. I totally share that the system of collective security as it stands can lead to extremely frustrating results (and I share the frustration that has been expressed by my Phil Drew). However, I submit that this is still a better option than a return to the complete anarchy that would suppose the acceptation of the various arguments put forward in the context of the Syrian conflict more broadly. 19 See UNGA Res 3314 (XXIX). Declaration on the Definition of Aggression (14 December 1974) UN Doc. A/RES/3314 (XXIX), Article 3(): ‘Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: […] (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.’ 6 Casualty Figures of the Syrian War • Overall numbers of casualties and displaced persons In July 2017, the World Bank estimated the number of death caused by the conflict in Syria between 400,000 and 470,000 and that ‘more than half of Syria’s 2010 population [had been] forcibly displaced’.20 • Civilian casualties in 2017 The report of the Syrian Network for Human Rights for 2017 ‘documents the killing of 10,204 civilians, including 2,298 children and 1,536 women (adult female) at the hands of the parties to the conflict.’21 • Civilians killed by the Syrian regime in 2017 According to the same report of the Syrian Network for Human Rights, ‘[o]f those, 4,148 civilians were killed by Syrian regime forces, including 754 children and 591 women.’ 22 • Civilians killed by Russia According to the same report of the Syrian Network for Human Rights, ‘1,436 civilians, including 439 children and 284 women, were killed by Russian forces.’23 Overall (Syrian Network for Human Rights, January 2018): ‘Russian Forces Have Killed 5,783 Civilians, Including 1,596 Children.’24 Airwars: ‘Our researchers have so far identified a total of 2,980 claimed civilian casualty events in Syria allegedly involving Russian aircraft, between September 30th 2015 and February 27th 2017. The total claimed range for these alleged events is 11,251 to 15,740 non-combatants reported killed. At least 20 World Bank Group, The Toll of War: The Economic and Social Consequences of the Conflict in Syria (10 July 2017) <http://www.worldbank.org/en/country/syria/publication/the-toll-of-war-the-economic-and-socialconsequences-of-the-conflict-in-syria> (accessed 18 May 2018). 21 Syrian Network for Human Rights, The Annual Report for Most Notable Violations of Human Rights in Syria in 2017: A Displaced People and a State Left in Ruins (26 January 2018) < https://reliefweb.int/sites/reliefweb.int/files/resources/The_Annual_Report_for_Most_Notable_Violations_of _Human_Rights_in_Syria_in_2017_en.pdf> (accessed 18 May 2018). 22 ibid. 23 ibid. 24 <http://sn4hr.org/blog/2018/01/27/51291/> (accessed 18 May 2018). 7 5,144 of the dead from these alleged events have so far been named by local media, social media and casualty recorders.’25 • Civilians killed by the international coalition According to the Syrian Network for Human Rights ‘2017 saw international coalition forces surpassing Russian forces in terms of civilian death numbers as international coalition forces killed 1,759 civilians, including 521 children and 332 women.’26 The Syrian Network for Human Rights also reported ‘2,286 civilian deaths since the beginning of the campaign until September 2017.’27 Airwars estimates that 3,630 to 5,619 civilians have been killed by the strikes of the international coalition in Syria since 2014.28 US reservation the Chemical Weapons Convention ‘Subject to the condition which relates to the Annex on Implementation and Verification, that no sample collected in the United States pursuant to the Convention will be transferred for analysis to any laboratory outside the territory of the United States.’29 Declaration of Iran ‘4. The Organization for Prohibition of Chemical Weapons (OPCW) is the sole international authority to determine the compliance of States Parties regarding chemical weapons. Accusations by States Parties against other States Parties in the absence of a determination of non-compliance by OPCW will seriously undermine the Convention and its repetition may make the Convention meaningless.’30 Declaration of Sudan ‘Firstly, the unilateral application by a State Party to the Convention, runs counter to the objectives and purposes of the Convention. […] 25 <https://airwars.org/russian-civcas/> (accessed 18 May 2018). Syrian Network for Human Rights (n 2). 27 ‘Syria: Events of 2017’ (Human Right Watch, ) <https://www.hrw.org/world-report/2018/countrychapters/syria> (accessed 18 May 2018). 28 <https://airwars.org/civilian-casualty-claims/> (accessed 18 May 2018). 29 <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVI3&chapter=26&clang=_en#EndDec> (accessed 18 May 2018). 30 ibid. 26 8 Fourthly, the Organization for Prohibition of Chemical Weapons (OPCW), is the sole international authority to determine the compliance of States Parties with the provisions of the Convention.’31 31 ibid. 9