1. Can the Use of Force Against Syria be Legally Justified?
By Jessica Drury (10/6/2013)
The sudden implementation of chemical weapons as a means to murder persons within the Syrian civil
war has sparked intense international debate regarding how, and whether, the international community should
respond. A prominent question is what the U.S. can “legally” do, if anything at all, in order to protect its
national interest and achieve its goals of (1) reducing Syrian causalities, (2) eliminating chemical weapons, and
(3) ensuring the free flow of energy from the [Syrian] region to the world,” inter alia.1 While Syrian’s President
Assad has recently agreed to cooperate with international efforts to remove chemical weapons from Syria,
whether he will maintain this position cannot be determined, and President Obama has contemplated using
limited U.S. strikes and taking collective action against Syria.
Both unilateral action by the U.S. and collective action by multiple states would likely violate
international law. The use of force against Syria would directly violate Article 2(4) of the UN Charter, which
prohibits any use of force against sovereign nations. There are two exceptions to Article 2(4): (1) force may be
legal if the UN has authorized it for the purposes of restoring or maintaining collective security and (2) force
may be legal for the purpose of individual or collective self-defense.
First, no Security Council resolution has been authorized, nor is one expected to come into existence,
due to the likelihood that China and Russia, permanent members of the UN Security Council with veto power,
will be opposed. Second, no state can allege “self-defense” in the traditional sense of the word because Syria
has not attacked any other country. A second interpretation of “self-defense” includes preemptive strikes when
an attack by one country is deemed imminent. This interpretation is analogous to President Bush’s use of
preemptive strikes on Iraq in 2000, where the Bush Administration argued that the alleged presence of WMDs
was an imminent threat, thus authorizing the U.S. to use force under the claim of self-defense. Syria’s failure to
ratify the Chemical Weapons Convention (CWC) and its possession of chemical weapons may cause states to
feel imminently threatened, especially those 189 states that have ratified the Chemical Weapons Convention
because they have no comparable means to defend themselves if Syria did decide to use chemical weapons
against them.
It has been argued that the following two principles, while not yet established law, create a legal
justification for using force in Syria without UN approval: (1) Responsibility to Protect (R2P) and (2)
humanitarian intervention. Some policymakers who supported NATO’s use of force in Kosovo argue that the
use of force is justified based on the R2P policy. R2P holds that if a state fails to be able to protect its own
nationals, it loses the right to be free from external intervention, and puts a burden on the international
community to protect those nationals. Proponents of this policy argue that Kosovo is legal precedent, the
Kosovo situation is similar to the Syrian situation, therefore, states can legally use force in Syria.
It is also argued that humanitarian intervention has become legal under customary international law and
is a third exception to the UN Charter’s prohibition of the use of force. There are mixed opinions on whether the
humanitarian intervention would require a Security Council resolution. The most recent case of this nature was
Libya in 2011 where a Security Council resolution was in fact enacted, authorizing “any necessary measures” to
protect Libyan citizens under attack. If a Security Council resolution authorizing humanitarian intervention is
deemed a prerequisite to the use of force, then humanitarian intervention is not technically a third exception
because it still requires a Security Council resolution before the intervention can be occur. For these reasons, it
seems that currently, the external use of force in Syria is illegal.
OFFICAL LINK: http://www.cardozojurist.com/2013/10/can-the-use-of-force-against-syria-be-legally-justified/
1 http://www.defense.gov/news/newsarticle.aspx?id=120847
![Can the Use of Force Against Syria be Legally Justified?
By Jessica Drury (10/6/2013)
The sudden implementation of chemical weapons as a means to murder persons within the Syrian civil
war has sparked intense international debate regarding how, and whether, the international community should
respond. A prominent question is what the U.S. can “legally” do, if anything at all, in order to protect its
national interest and achieve its goals of (1) reducing Syrian causalities, (2) eliminating chemical weapons, and
(3) ensuring the free flow of energy from the [Syrian] region to the world,” inter alia.1 While Syrian’s President
Assad has recently agreed to cooperate with international efforts to remove chemical weapons from Syria,
whether he will maintain this position cannot be determined, and President Obama has contemplated using
limited U.S. strikes and taking collective action against Syria.
Both unilateral action by the U.S. and collective action by multiple states would likely violate
international law. The use of force against Syria would directly violate Article 2(4) of the UN Charter, which
prohibits any use of force against sovereign nations. There are two exceptions to Article 2(4): (1) force may be
legal if the UN has authorized it for the purposes of restoring or maintaining collective security and (2) force
may be legal for the purpose of individual or collective self-defense.
First, no Security Council resolution has been authorized, nor is one expected to come into existence,
due to the likelihood that China and Russia, permanent members of the UN Security Council with veto power,
will be opposed. Second, no state can allege “self-defense” in the traditional sense of the word because Syria
has not attacked any other country. A second interpretation of “self-defense” includes preemptive strikes when
an attack by one country is deemed imminent. This interpretation is analogous to President Bush’s use of
preemptive strikes on Iraq in 2000, where the Bush Administration argued that the alleged presence of WMDs
was an imminent threat, thus authorizing the U.S. to use force under the claim of self-defense. Syria’s failure to
ratify the Chemical Weapons Convention (CWC) and its possession of chemical weapons may cause states to
feel imminently threatened, especially those 189 states that have ratified the Chemical Weapons Convention
because they have no comparable means to defend themselves if Syria did decide to use chemical weapons
against them.
It has been argued that the following two principles, while not yet established law, create a legal
justification for using force in Syria without UN approval: (1) Responsibility to Protect (R2P) and (2)
humanitarian intervention. Some policymakers who supported NATO’s use of force in Kosovo argue that the
use of force is justified based on the R2P policy. R2P holds that if a state fails to be able to protect its own
nationals, it loses the right to be free from external intervention, and puts a burden on the international
community to protect those nationals. Proponents of this policy argue that Kosovo is legal precedent, the
Kosovo situation is similar to the Syrian situation, therefore, states can legally use force in Syria.
It is also argued that humanitarian intervention has become legal under customary international law and
is a third exception to the UN Charter’s prohibition of the use of force. There are mixed opinions on whether the
humanitarian intervention would require a Security Council resolution. The most recent case of this nature was
Libya in 2011 where a Security Council resolution was in fact enacted, authorizing “any necessary measures” to
protect Libyan citizens under attack. If a Security Council resolution authorizing humanitarian intervention is
deemed a prerequisite to the use of force, then humanitarian intervention is not technically a third exception
because it still requires a Security Council resolution before the intervention can be occur. For these reasons, it
seems that currently, the external use of force in Syria is illegal.
OFFICAL LINK: http://www.cardozojurist.com/2013/10/can-the-use-of-force-against-syria-be-legally-justified/
1 http://www.defense.gov/news/newsarticle.aspx?id=120847](https://image.slidesharecdn.com/4e0461c9-dc5b-4c2f-bfd4-1173581bc8c0-150707024656-lva1-app6892/85/Jurist-Article-Syria-Drury-1-320.jpg)
