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Syria strikes violated international law - are the rules of foreign intervention changing?

Written by Jan Lemnitzer, Assistent Professor, Center for War Studies, University of Southern Denmark

When Donald Trump ordered air strikes against Syria in April 2017, it was the only one of his actions that earned him widespread praise at home and abroad. Remarkably, this happened regardless of the fact that the strikes were clearly illegal under international law. I argued at the time that we might be seeing 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 having no justification under existing international law, last weekend’s strikes were welcomed by the EU and NATO as well as a number of other countries, among them Germany, Spain, Canada, Australia and Turkey. This time, the US did not act alone, but together with France and the UK, both permanent members of the UN Security Council.

The statements of the three countries show that this is not about a group of states simply ignoring international law. Rather, they believe that in carefully defined circumstances, the limited use of force can be justified even without UN authorisation.

‘Humanitarian intervention’ or not?

The US, UK and France claimed that the strikes were carefully planned to minimise the risk of civilian casualties, and that all targets had a direct link to the Assad regime’s chemical weapons programme. They also pointed out that Russia had repeatedly blocked the UN Security Council from authorising measures to destroy the Syrian regime’s chemical weapons.

So far, Russia’s repeated use of its veto has effectively protected Assad from serious intervention with a UN mandate. What the Security Council has achieved is to establish a clear paper trail documenting the systematic use of chemical weapons by the Assad regime; a set of reports published jointly with the Organisation for the Prohibition of Chemical Weapons prove this beyond reasonable doubt. This is a key fact that makes it easier for states concerned about Western military adventurism to accept the air strikes as justified.

While the British statement refers to the concept of “humanitarian intervention”, it is important to highlight that this is in essence about upholding the ban of a specific type of weapon, not about civilian suffering in Syria in general. Hundreds of thousands of Syrians have perished during the brutal civil war, but the strikes were launched specifically to punish the Assad regime for its use of chemical weapons and to deter future attacks. The US explicitly added that future strikes will be launched if chemical weapons are used again.

Backfired

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.

This shows that the international community is clearly more concerned about Assad’s attempt to normalise the use of chemical weapons and Russia’s willingness to prevent the UN Security Council from taking action against it than it is about the potential for abuse if military interventions without UN authority are tolerated or even praised.

This is a big blow to Russia, which may have thought the lack of a legal justification gave it an opening to rally international condemnation against the US, the UK and France. But in the end, all Russia did was highlight how isolated it is in its unwavering support for the Assad regime.

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.

Perhaps this is a response to the establishment of the Responsibility to Protect doctrine at the 2005 World Summit. While that principle was never meant to justify action without Security Council approval, it has established the idea that state sovereignty is not unlimited when it comes to the protection of civilians. Together with the limited nature of the strikes and their focus on chemical weapons, that makes it possible to see them within the framework of international law while technically breaking the UN Charter.

This new norm is unlikely to ever be put into a treaty – but the response to last weekend’s airstrikes has shown that it is well on its way to being accepted.

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