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International law cannot justify attack on Syria

Justin Glyn |  29 August 2013

Soldier with gas mask

For the second time in a little over ten years, Britain and America (this time with the assistance of France) seem about to launch hostilities against an Arab country on the basis of the possession or use of chemical weapons.

To be sure, they argue that this case is different. In the Iraqi case, no weapons were to be found. Here, there are claims of an actual chemical attack. Surely this justifies a response? Well it’s a little bit more complex.

Chemical weapons are horrific and indiscriminate and are therefore largely used to strike fear in populations rather than to achieve particular military goals. After World War I – when both sides made widespread use of chlorine, phosgene and mustard agents – the world largely recoiled from their use. This resulted in the 1925 Geneva Gas Protocol prohibiting the use of chemical or biological weapons. Syria is a party to this treaty, although not to its 1993 successor which, unlike the 1925 treaty, contains detailed enforcement mechanisms. 

This did not stop continued violations in the years since. In the 1930s, new neurotoxic organophosphates ('nerve gasses', although actually liquid) were developed by German scientists. Mussolini used chemical weapons against Ethiopia in 1935, the Soviets used them in Afghanistan, and the US helped Saddam Hussein use them against Iran. (He also, of course, turned them on his own, Kurdish, population.) In the aftermath of the Cold War, a new Chemical Weapons Convention was drafted but, as noted above, Syria is not a party.

There is, however, no general right to intervene to prevent the use or stockpiling of chemical weapons. It will be remembered that the purported justification by the US in Iraq was that that country had breached earlier UN Security Council resolutions specifically forbidding it to keep or build chemical weapons. 

There can also be no question of the US and its allies acting in 'self-defence' (permitted by Art.51 of the UN Charter), given that this is clearly a civil war.

Certainly, if either side has used chemical weapons in Syria, this would seem to be a 'threat to the peace, breach of the peace, or act of aggression' within the meaning of Art.39 of the UN Charter (which would entitle the UN Security Council to authorise military action to prevent it). The problem is that the UN Security Council is split down the middle: three powers with vetoes (power to block resolutions) oppose the Syrian Government (US, UK, France), while two (Russia, China) support it. Russia and China, in particular, are nervous of anything that looks like intervention in Syria.

Apart from having their own interests in the region, they are wary of giving anything that might look like a nod to Western military ambitions – with some cause. While they supported the resolution demanding a no-fly zone in Libya to protect civilians, they were less than impressed when NATO members took this as a mandate to remove Gadhafi from power completely.

More basically, it is by no means clear (a) that there has been a chemical weapons attack in Syria (b) if so, what agents were used or (c) who used them.

Determining any of these propositions involves complicated chemical analysis and assumes that there has been no opportunity for tampering with samples or for the chemicals to degrade in the meantime. (Hence, the importance of a clear chain of custody for any alleged samples.)

The US and its allies have made clear that while they may seek a Security Council resolution, they do not consider themselves bound by any such resolution (or the lack of one), or the findings of the UN team already investigating alleged chemical attacks.  

This is worrying. Both sides seem to have access to chemical weapons and both have been accused of their use. Previous UN investigations were inconclusive on alleged use of chemical weapons (although one investigator, Carla Del Ponte, noted that any evidence pointed to the insurgents as the likely culprits). In addition, in June, rebels were arrested in Turkey carrying chemicals which initial reports (later denied by Turkish authorities) claimed included the nerve agent sarin. These factors suggest more reason, one would think, to wait for the UN to report.

As a result, while an attack on Syria may be imminent, it is difficult to see how – at least from an international law standpoint – it is justifiable.

Justin Glyn headshotJustin Glyn SJ is a student of philosophy and theology in Melbourne who holds a PhD in international and administrative law.

Soldier with gas mask image by Shutterstock.



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Submitted comments

Excellent article, Justin. Interesting bit about the rebels possessing chemical weapons. Ed Miliband, the British Labour leader, has said he will not back Cameron in going into action in support of the US. Robert Fisk, the 33 year resident in Beirut Middle East correspondent of the British "Independent" newspaper has pointed out that the civil war in Syria is highly sectarian with international repercussions and that, if the West goes in in support of the rebels, it will, in effect be allying with Al Quaida. Becoming involved in a Sunni/Shia conflict with Saudi Arabia backing the rebels and Iran the government, with Israel standing by, possibly ready to attack Iran, is a nightmare scenario. Fisk also thinks that, if it comes to the crunch, the Free Syrian Army and the government may join an alliance against the Salafi jihadists (bankrolled and armed, of course, by our old "friend" Saudi Arabia). What Syria desperately needs is not more war and violence but a genuine attempt at peace. Whether that is still possible is a moot point.

Edward F 30 August 2013

Please no more war its bad enough now without America and its lackeys blundering in havr they not learnt by the past few years. surely eventually their own people will bedisgusted and remove Mr. Assad

irena mangone 30 August 2013

Thanks Justin , well put.

JR, Sydney 30 August 2013

Am I naive enough to believe that a US strike on Syria could possibly be benign? If they located a chemical weapons storage/manufacturing site and bombed it - warning civilians beforehand to evacuate to avoid the toxic fallout? Would that not be a just strike?

AURELIUS 02 September 2013

In his Angelus address last Sunday. Francis called for a global day of prayer and fasting Sept. 7, the vigil of the birth of the Virgin Mary, the “queen of peace,” he remarked, to pray for Syria and the Middle East.

Bernstein 05 September 2013

I suspect what we need to pray for currently is God's proper direction of the US Congress as it votes whether to support Obama on his supposedly limited strike or not. I myself see the US holding fire as a sign of strength, not weakness. Sadly, this has become mixed up with the idea that America needs to project a strong image. This is fallacious.

Edward F 06 September 2013

The Western powers and a compliant media have been cheer squading for the fall of Assad. They are responsible for the carnage. Life teaches us that there are no clear cut solutions to many geo-political and religious conflicts. It is a case of lesser evils which the West has ignored whilst pretending to care.

Michael Webb 22 January 2014

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