Emergence of a new norm that justifies the use of force
When Donald Trump ordered air strikes against Syria in April 2017, it was the first – and to date only – action of his administration that attracted widespread support, garnering positive responses even from critics. But, this praise and support for Trump was all the more surprising especially because the strikes were technically an act of aggression against a foreign country and a clear violation of international law. This act is possibly the emergence of a new norm that justifies the use of force to counter the deployment of chemical weapons against civilians – and the latest Western strikes on Syrian government targets have provided new evidence that this is indeed happening.
Despite horrific images of yet another reported chemical weapons attack in Syria, the so-called Franco-British-US ‘humanitarian intervention to protect civilians’ was fundamentally illegal. Under current international law, President Trump lacks the authorization to launch a single missile to stop future attacks. Under the international law, these strikes were absolutely an act of aggression. Article 2(4) of the United Nations Charter clearly states that “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.”
The Charter clearly states that there are only two limited circumstances when the use of force by a state is lawful: (1) with the permission of the United Nations Security Council; or (2) in self-defence. Neither holds true in this case.
First, the United Nations Security Council did not approve the strike. Although it condemned the Assad regime’s use of chemical weapons against civilians, it did not call for an armed response. Second, this was not clearly self-defence. Most experts agree that attacking Syrian children does not constitute a direct threat to the US or its allies.
Whether these strikes have actually diminished or destroyed Assad’s chemical weapons capability remains unclear. But what is certain is that the response to this armed intervention has shown that where chemical weapons are concerned, states are getting increasingly comfortable with the idea of limited use of force without UN authority.
The strongest indication that the international community is willing to at least tolerate this kind of armed intervention is the fact that Russia’s draft Security Council resolution condemning the strikes as illegal only garnered three votes – Russia itself, China, and non-permanent member Bolivia. None of the other non-permanent members (currently Côte d’Ivoire, Equatorial Guinea, Ethiopia, Kazakhstan, Kuwait, Netherlands, Peru, Poland, and Sweden) took the opportunity to criticise what was technically a violation of the UN charter.
The justifications put forward by the US, UK and France for the air strikes in Syria have focused on the need to maintain the international prohibition against the use of chemical weapons, to degrade President Assad’s chemical weapons arsenal and to deter further chemical attacks against civilians in Syria. British Prime Minister Theresa May argued that the UK has always stood up for the defence of global rules and standards in the national interest of the UK and of the organised international community as a whole.
This strike is thus about more than just “gesture politics”. It represents the creation of a new norm in international law that sanctions the unilateral use of force to punish those who use chemical weapons against civilians.
New international law can not only be created through treaties and declarations but also established by state practice, as long as the behaviour is accepted by other states as legal and justified. This process can take decades. But the outlines of one new rule have just been defined.
First, any use of force must be directed against targets that are related to the actual use of chemical weapons. The US struck only after it confirmed that sarin had been unleashed on the Syrian people, and targeted its missiles at the base from which the attacking planes had launched.
Second, any such counter strike must be designed to minimise civilian casualties. 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.
To prevent Russian casualties, the US even warned the Russian military of the attack, which almost certainly ensured that the Syrian officers responsible for the gas attack could flee along with their Russian colleagues.
What remains unclear is the scope of this new principle. When, in February 2017, Human Rights Watch reported that the Assad regime had coordinated chlorine-gas attacks against civilians in Aleppo using crude barrel bombs, the news did not trigger a response from the Trump administration.
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. While it first appeared as if the Trump administration intended to differentiate between sophisticated chemical weapons, such as sarin and military use of industrial chemicals such as chlorine, White House Press Secretary Sean Spicer soon confirmed that the US would use force to punish Assad for any use of chemical weapons.
Whether inspired by Trump’s head or heart, this new logic marks a significant divergence from the previous administration. President Barack Obama shied away from using military force in response to Assad’s first sarin gas attack against civilians in Ghouta in 2013.
At that time, Russian President Putin proposed a new international-legal principle: if a state deploys chemical weapons against civilians, it forfeits the right to use them and must destroy its supplies. The Organisation for the Prohibition of Chemical Weapons received the 2013 Nobel Peace Prize for supervising this process in Syria, and Assad was forced to join the Chemical Weapons Convention.
Now that Syria has broken this agreement and again used chemical weapons (which were either hidden from inspectors or freshly produced), Obama’s stance has offered Trump a viable platform for using military force – he can point to Syria’s violation of the convention it signed four years ago.
Still, establishing a new principle is not straightforward. Germany expressed support and understanding for the strikes while stressing that its military would not offer support to similar operations without UN authorisation, as German law bans wars of aggression.
Russia, meanwhile, has countered the US threat to Assad by stating that it would use armed force in response to further US attacks, whether motivated by the use of chemical weapons or not.
Even the White House has wavered on the reasoning for its missiles. Trump first argued that preventing Assad from using chemical weapons was a “vital national security interest” (seemingly claiming a form of self-defence) before the White House clarified that the use or proliferation of chemical weapons “should be a concern to every nation”.
The US now sustains that action in Syria was meant to support the new principle that the use of chemical weapons against civilians must not go unpunished, regardless of the UN’s position.
This muddled language is typical of a norm-creation processes in which an action that clearly goes beyond existing law is receiving widespread international support.
Though codification of a new norm can take decades, the principle can become accepted practice long before that. Today, it seems that the consensus against the use of chemical weapons is so universal that states have begun to improvise enforcement rules beyond those included in the Chemical Weapons Convention, which has been signed by every country in the world except Egypt, South Sudan and North Korea.
The development of this new norm means that justification is now available to any country that wishes to unilaterally punish another country for its use of weapons of mass destruction. If successfully established, it would undermine the authority of the UN Security Council.
Many states applauding Trump’s actions do not actually want that to happen, so it will probably be a long time before the new norm is written down. In the meantime, the US has made it clear that it will continue to invoke it against Assad and others.
Legally, the claim to enforce international law on chemical weapons by violent means would return the world to the era before the advent of the UN Charter. The Charter allows states to use force in self-defence and, arguably, for the protection of populations threatened by extermination at the hands of their own government. The use of force for broader purposes of maintaining international security is also possible. However, such action is subject to the requirement of a mandate from the UN Security Council. This arrangement tries to balance the need of states to preserve their security in the face of an actual or imminent attack through self-defence when strictly necessary with the need to ensure that force cannot be used as a routine tool of international politics. Hence, international law since 1945 precludes military strikes in retaliation – to teach other states a lesson, as it were – or by way of reprisal. Reprisals are acts that are in principle unlawful, but they can be excused because they aim to force a state back into compliance with its international obligations.
The conditions under which force is permissible have been bedrock principles of the post-1945 international order, and a central tenet of the UN Charter. Traditionally, they generate three options for the lawful use of military force: consent from the state on whose territory force is used; individual or collective self-defence; or the UN Security Council’s authorization.
Obviously, one should not exaggerate the extent to which these rules were respected during the Cold War and the decade that followed it. But since Kosovo, the institutions and norms of jus ad bellum, i.e. the law that governs when force can be used, have faced particular challenges. One illustration of the strain on these international norms is the fragmentation of the consensus on the conditions under which force is lawful. Tellingly, the three countries that launched the strikes have not agreed on a common legal argument.
Britain has put forward a fourth justification for the use of force, based on its “humanitarian intervention” doctrine: On an “exceptional basis,” a country is permitted to use force so as to “alleviate overwhelming humanitarian suffering.” Such military action will be lawful if: the situation calls for immediate relief; alternatives to save lives are not viable; and the use of force remains necessary and proportionate to this humanitarian goal, and follows no other purpose.
This argument raises a number of issues, particularly in this case, as one may wonder why strikes should occur only after the use of chemical weapons when most violence against civilians in Syria is committed through conventional means. Yet, from a legal perspective, the problem with the British argument runs deeper: How are these three determinations to be made and, more importantly, who makes them? Whether these determinations can be unilateral or should happen only via the United Nations is all the more important given that, in international law, to claim a right for oneself is to give it to all. In any case, this legal approach, which remains a minority view on the international stage, is not supported by either the United States or France.
As it usually does, the debate in the United States had more to do with domestic law — the never-ending debate on the War Powers Act — than with international law. But the most striking fact is that the US administration has not offered any formal legal argument so far. Beyond the moral arguments about the atrocity of the Douma attack, President Donald Trump’s statement underlined security concerns specifically related to chemical weapons, as well as the issue of US credibility. Secretary of Defense James Mattis did allude to legality, but only to state “We did what we believe was right under international law, under our nation’s laws” without further elaborating.
France has not offered a legal argument either, although Foreign Minister Jean-Yves Le Drian’s statement makes multiple references to legal norms in order to assert the legitimacy of the strikes. Referring to the 1925 Protocol prohibiting the use of chemical weapons in warfare, the 1993 Chemical Weapons Convention and the UN Security Council resolution 2118, Le Drian stressed the need to put “an end to a serious violation of the law,” and more broadly made the case that the strikes were, as the French representative to the United Nations put it, “a response in service of law.”
In this sense, France seems to be the most mindful of the risk that appearing to act lawlessly may make it easier for other countries to also act without a legal justification. France’s event-specific emphasis on legitimacy evokes its argument at the time of NATO’s intervention in Kosovo in 1999: According to then-Foreign Minister Hubert Védrine, “[T]he way the situation in Kosovo [was] dealt with [was] an exception and not a precedent.”
Given that the legal case is questionable (at the very best), and that the three perpetrators do not even seem to agree on the basis for their joint action, focussing on legitimacy seems convenient. Among international reactions, all that came in support of the strikes opted for legitimacy over legality as well. Of course, invoking an exception may in itself be used as a precedent and does not suppress the risk that, eventually, “’illegal but legitimate’ implies no legal limits on the use of force.”