Published on September 4th, 20130
International Law and the War against Syria
By Jo Jakobsen
The United States will soon launch a military attack against Syria. In recent days, observers, policymakers, scholars, journalists, students, and many others have debated the question of whether or not this attack will constitute a breach of international law.
This article does not attempt to provide an answer; rather, it seeks to substantiate a claim that all this debating – and, indeed, the answer to the question itself – is rather irrelevant in the prevailing circumstances. International high politics, especially when war is looming, is primarily about great-power interests and relative capabilities, not laws and legislation.
The American military strike on Syria is put on hold for a few days, maybe even a week or two, as the U.S. Congress is asked by President Obama to convene and give him the formal green light (that he does not strictly need) to attack the Assad regime. By running things through Congress first, the President postpones a still much-likely war, which gives observers of the Syrian debacle ample time to continue the debates about whether or not an American strike constitutes a breach of international law.
The present article does not seek to answer that question. Indeed, for all practical matters, nobody in the world has the authority to give a clear-cut answer, which really symbolizes the more general problem concerning international law. What this article does seek to do, though, is to substantiate a claim that all this debating about the lawfulness of an attack on Syria is, in fact, rather irrelevant in the prevailing circumstances. International high politics, as it is, is primarily a game that involves the intersection of the interests and capabilities of great powers – it is not first and foremost the realm of laws, regulations, and juridical arguments, especially when war is looming.
To set things straight: I do not claim that international law is unimportant. To the contrary, international law is highly important, and it has been highly important for centuries. What I do contend, however, is that if we get too hung up on the issue of the legality of the U.S. move we easily end up losing sight of the bigger picture, of which U.S. (but also, albeit to a lesser degree, Russian, and French, and British, and Turkish, and Israeli, and Iranian, and so forth) interests and power constitute key parts.
International law is not like domestic law. It is not anything like domestic law at all. This point needs to be understood if one is to acquire an adequate grasp of the Syrian situation, and indeed of international politics in general. When we discuss international law, we should keep three basic things in mind. These three things, which I will explicate further below, are: (1) The international system is anarchic. (2) International law is decentralized, relatively incoherent, unclear, and almost always open to interpretation. (3) When push comes to shove, the interests of the key states, and the distribution of power among them, usually determine outcomes.
First, the international system is anarchic. This is the sentence which every undergraduate student of international relations has to scribble down in his or her notes on the very first lecture of the semester. In scholarly circles, it is a non-contentious argument accepted by all schools of thought as a necessary point of departure for understanding international politics. That the international system is anarchic basically means that there does not exist any overarching global authority that is unambiguously in control of passing laws, enforcing them, and judging whether or not its subordinates – the states – are in breach of them. There is no world government, in other words. And there most likely will never be one.
That the international system is anarchic does not, however, mean that the international system lacks structures providing order of some sorts; and it does not mean that fights among nations can be observed everywhere (in fact, interstate wars, like the one that will likely start in a few days, are very rare events); and it does not in any way mean that international law in itself is irrelevant. It just means that the international system is organized and functions in a different manner than its key constituent parts, the states themselves.
Reasonably well-functioning states, such as America, such as Norway, such as Iran (yes, Iran!), and even such as pre-civil war Syria are entities each of which harbors certain key institutions which ensure a relatively high degree of order, predictability, and consistency in relations between individuals and groups in society. Power is vested in a central authority, the state – that is the most important thing that makes states different from the international system.
Furthermore, in states, there is often – although more so in well-developed countries than in poor dictatorships – a separation between state powers. We all know, or should know, this: legislative power is vested in our state’s national assembly; executive power – the power to enforce the rules – is enjoyed by the government; while judicial power rests with the courts. This analytical distinction is useful when we try to grasp why the international system is different.
The international system, for its part, does not in effect entail any such entities. The United Nations is, in all practical terms, not a world government, nor will it ever become one. The international system does not entail one single body tasked with making “international law”; in fact, international law is a hotchpot of treaties made and signed primarily by the states themselves – sometimes only by pairs of states, sometimes by more, very rarely by all.
Neither does the international system harbor military forces, a world police force, or other such institutions that could, theoretically, be tasked with enforcing international law. And lastly, the international system does not contain an international court that can settle the question of whether or not a state is in breach of international law.
Regarding the latter point: The international system does actually contain a court that goes by the name of the “International Court of Justice” (ICJ). The name is confusing (sometimes the ICJ is even referred to as the “World Court”), and I suspect that such slightly hyperbolic labeling, together with the common mistake of conflating international law with domestic law, is part of the explanation of why so many people these days seem obsessed with the question of the possible “lawlessness” of American action against Syria. The mandate and role of the International Court of Justice, a UN entity, apart from providing advisory opinions on various matters relating to international law, is to settle disputes between states. That is, disputes between states that have voluntarily submitted their case to the ICJ. As should be clear, the International Court of Justice is largely irrelevant in the upcoming war between the United States and Syria.
And irrelevant to this situation are also all other international courts that states have set up, often on specific issue areas. The closest thing we have to a world court is, in fact, the United Nations Security Council (UNSC). That body – of which the U.S., Russia, China, France, and Great Britain are the five permanent, veto-wielding members (the ten additional members are states that serve on a rotational basis) – is tasked with making decisions related to international peace and security. Indeed, if we stretch the concepts a little bit, we might say that the Security Council, with regard to interstate war and peace, is the world’s prime (quasi-)legislative, (quasi-)executive, and (quasi-)judicial authority.
The UNSC has the power to decide whether, say, North Korea, should be allowed to develop and test ballistic missiles and uphold their nuclear activities; and whether or not the U.S. should be allowed to hammer Syria with Tomahawk missiles. As it is, North Korea is not allowed to do these things, not because they are “illegal” per se (there is no international law explicitly forbidding the development of ballistic missiles; and North Korea is not a current member of the Nuclear Non-Proliferation Treaty), but because the United Nations Security Council has ruled that it cannot do these things considering that they, allegedly, threaten international security. But there is no such ruling against America’s soon-to-be-effectuated attack on Syria; and it never will be, because the U.S. has the formal power to veto such a ruling.
That doesn’t mean that a U.S. attack is “legal” (it would have been formally legal if the UNSC had passed a resolution effectively stating that it was legal, but Russia, and likely also China, would veto any such a resolution); it just means that the illegality of the U.S. move will have to be substantiated by reference to other elements of international law. This brings me to the second of the points – which I have already briefly touched upon above – that need to be understood to comprehend in full this issue about the legality or non-legality of a U.S. armed attack, namely the fact that international law is decentralized, relatively incoherent, unclear, and almost always open to interpretation.
International law is not like domestic law. For starters, the legislative function itself is decentralized, meaning that the states themselves carry the responsibility for creating rules regulating relations among them. Primarily they do this by way of formulating, signing, and ratifying formal treaties (custom is another main source of international law). This necessarily means that international law is highly fragmented; there exist thousands of such treaties, specifying what signatory states can and cannot do on a plethora of different issue areas, including trade, investment, fisheries, human rights, the use of outer space, war, patent rights, jurisdiction on the high seas, alliance formation, and the development and use of so-called weapons of mass destruction.
Adding to this complexity is the principle of consent. As it is, states are only bound by rules to which they have consented. As I referred to above, North Korea is not necessarily in breach of international law even if it develops and tests ballistic missiles and nuclear bombs. The country is, for example, not a member of the Nuclear Non-Proliferation Treaty (though it used to be, and it did cheat on its obligations before leaving the NPT in 2003), which is the most relevant body of international law on the nuclear issue; and the Comprehensive Test Ban Treaty, which is supposed to ban testing of nuclear devices, has not yet entered into force, and North Korea has not signed it in any case.
But with regard to North Korea, the key members of the UN Security Council are in agreement that North Korea’s activities are a detriment to international security, so the country is, irrespective of their status vis-à-vis the treaties mentioned above, in breach of international law.
What, then, about the Syrian regime’s use of chemical weapons against their own population? Does this constitute a breach of international law? Maybe. The most relevant treaty in this respect is the 1992 Chemical Weapons Convention (CWC), which outlaws the use (and production and stockpiling) of chemical weapons. The CWC, like the Nuclear Non-Proliferation Treaty, is signed and ratified by most of the countries in the world. But Syria is not among this group of countries, hence the country is not bound by the convention. International law, to repeat, is based on the principle of consent.
However, cases are seldom clear-cut when we discuss international law. As some commentators and legal experts have debated in recent days, there does exist other pieces of international legislation that might, but only might, be of relevance here. Most notable is the 1925 Geneva Gas Protocol – of which Syria is a party – which outlaws the use of chemical weapons in war. But this primarily concerns interstate war. Syria’s is (as yet) a civil or intrastate war.
This does not necessarily mean that the Assad regime is legally in the clear when it gasses its own people, it just works to indicate that international law is often about interpretation, just as domestic law is. With the key difference, however, that within states there exist a judiciary that is tasked with interpretation of the legislation and adjudicating in cases where a breach-of-law is alleged. The international system, though, does not contain an analogous unambiguous judicial authority.
So the case against Syria is not clear-cut. Some commentators point to a possible case of necessary and justified pre-emption, arguing that a U.S. attack on Syria might be “legal” to the extent that it decapitates Syria’s ability to fire chemical (or other types of) weapons against its neighbors, such as Israel, Jordan, and Turkey.
Turkey, for its part, is a member of NATO, the defense alliance of which the U.S. serves as linchpin. Turkey, moreover, has earlier been shelled by Syrian forces, and last year Syria downed a Turkish fighter jet allegedly flying in international airspace. The UN Charter, a key piece of international law, certainly allows for self-defense, including collective self-defense (which in this case would be enforced by Turkey and its NATO allies).
But so far, Turkey has not formally invoked the relevant Article 5 in the NATO Treaty. And doing so, and attacking Syria on that basis, would in any case stretch the concept of “self-defense” quite far. But again, it is partly a question of what is the correct interpretation of international law, but mostly it is about the power and interests of the key actors on the international stage, a topic on which I will dwell more in a moment.
Or one could, as many arguably do, contend that the grave humanitarian situation in general and the use of chemical weapons in particular, call for and justify intervention by the international community. The need to protect civilians provided, for example, the justification for attacking Muammar Gaddafi’s Libya in 2011. Key to that operation, however, was a UN Security Council Resolution (which is a rarity when it comes to armed intervention against sovereign states).
One should note, though, that the ad-hoc alliance which actually attacked Libya (remember that the task of executing or enforcing UN decisions in practice falls to those states that happen to be willing to do that; there does not exist any world police or military force) to a large degree overstepped their fairly limited mandate and effectively sought and obtained regime change, which they were not legally entitled to do, and which infuriated countries like Russia and China. But once again: it all comes to the what is the “correct” interpretation of international law; and as it happens, the “correct” interpretation of international law is quite often a function of interests and the distribution of power in the international system.
Hence it was that NATO – the Western defense alliance –, led by the United States, proceeded to attack Yugoslavia in 1999. The war, which the alliance justified by citing concerns for regional stability and the need to stop ethnic cleansing and potential genocide in Kosovo, was not based on any mandate from the UN. The bombing campaign was criticized by many, including the UN Secretary General. Russia, moreover, proceeded to propose a UN Security Council Resolution condemning the bombing.
Of course, that was mainly a symbolic act; three of the five veto-wielding powers in the Council are members of NATO. In other words, there does not exist any formal judgment on the legality or non-legality of the war against Yugoslavia. Yet again, it boils down to interpretation, legal and scholarly debate, and, most importantly, major-power interests and relative capabilities.
The United States and its (mostly) European allies attacked Milosevic’s Yugoslavia in 1999 because: (1) doing so was in their perceived interests; (2) they had the capability to do so; (3) there was nothing or nobody stopping them in the act; and (4) they knew they could do so with impunity (if we disregard the possible issues relating to legitimacy and reputational risks, which we can safely do in this instance).
It should be pointed out that most states do follow the somewhat elusive thing called international law most of the time, on most issue areas. They do this for a lot of reasons: to boost predictability in international affairs in general; to ensure their actions carry legitimacy; to bolster their future credibility; because it is the “right thing to do”; and simply because much of international law correspond to their perceived national interests.
But in general, when an issue in international politics becomes important enough – when the chips are down and push comes to shove – the interests of the system’s leading players take precedence over international law. That is why Yugoslavia was attacked (and the debate is still ongoing about whether or not the intervention was “legal”); that is why the U.S. and Great Britain went to war against Iraq in 2003 (even in that case, the U.S. and British governments claimed that the war was supported by UN Resolution 1441, though counterclaims were and are rife); that is why Israel, in the last year, without having “asked” anybody for permission to do so, has bombed targets in Sudan, Egypt, Lebanon, and – as should not be forgotten – Syria; and that is why America, in a few days’ time, will likely launch their Tomahawks against the Assad regime.
A snap-shot of the prevailing “mood” among commentators, political scientists, legal experts, UN officials, and high-level politicians suggests that the highly probable U.S. attack should be deemed “illegal.” The issue, alas, is not perspicuous – and the administration in Washington will no doubt spend a lot of energy in the days, weeks, and months ahead attempting to conjure up evidence substantiating their view of this attack as justified and (relatively) lawful.
The United States, as do most states, clearly values the legitimacy that follows from acting, or being perceived as acting, within the porous confines of international law. But acquiring that legitimacy has just as much to do with interests, power, and argumentative and agenda-setting capacity as it has to do with law per se. And if the U.S. fails in its attempt to legally justify the whole shebang, it does not really matter all that much. As we have heard over and over again in the last few days, the reputation of the world’s most powerful nation, America, is at stake, and this means that action has to and will be taken irrespective of that elusive thing called “international law.”
*Cover photo by Freedom House, instruction photo by U.S. Army, Syrian leader photo by Freedom House, black and white soldiers photo by California National Guard, wounded soldier photo by Abdullatif Anis, ruin photo by Freedom House, Helicopter photo by California National Guard, Tomahawk launch photo by Dvids Hub, Navy photo by U.S. Navy, Thunderbirds photo by Ken Lund, binoculars photo by Amit Sharma, B52 photo by Airwolf Hound.