The (Il)legality of the Use of Force in Syria

The past week has seen a major turn in relation to the ongoing civil war in Syria. Following an attack on civilian population near Damascus, which resulted in over 1400 deaths, allegations have arisen regarding purported use of chemical weapons in the attacks. The alleged use of chemical weapons (in particular sarin) in Syria, triggered off the strong reaction amongst various Western States, led by the US, who called for an urgent need for military intervention in Syria.

Whilst the results of an attack are tragically marked by high levels of human suffering and certainly invite moral considerations of intervention, the legality of a proposed military intervention is questionable.

The use of chemical weapons is prohibited in international law by the Chemical Weapons Convention    1992 (http://www.opcw.org/chemical-weapons-convention/), to which Syria is not a party. This however, does not mean that Syria may ‘get away’ with the use of chemical weapons. The prohibition is well-established under customary international law, especially under customary International Humanitarian Law which absolutely prohibits the use of chemical weapons in armed conflict, both of international and non-international character (see Rule 74, CIHL Study: http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule74, confirmed by the ICTY in Tadic (Jurisdiction) at para.499.). Given that Syria has been involved in non-international armed conflict when the use of chemical weapons took place, such conduct amounts to a breach of IHL. Furthermore, the attack in Damascus amounts to a war crime and crime against humanity, both falling under the jurisdiction of the ICC, and the situation in Syria may be referred to the ICC.

However, what may not be forgotten in the debate on intervention in Syria is that the use of force is prohibited in international law, bar two exceptions: when the use of force is in self-defence or when it is authorised by the UN Security Council under Chapter 7 of the UN Chapter. In context of the current situation in Syria, neither of the exceptions is applicable. The option of humanitarian intervention, alike one in Kosovo in 1999, has also been considered, despite being highly problematic, especially in terms of its compliance with international law.

At the moment of writing (2 September 2013), the military intervention in Syria appears to be illegal under international law, despite convincing political or moral arguments in favour of military action. Finally, what appears to be intriguing is the timing of intervention. The civil war in Syria has been continuing for over 2 years, with reports of killings, inhumane treatment of civilians and multiple human rights abuses (committed by both sides to armed conflict) being featured nearly daily in the world news. However, it appears to be the alleged use of chemical weapons that, once again (cf. intervention in Iraq in 2003) has grasped the attention of international community and motivated its (re)action- results of which are yet to be seen. 

Olga Jurasz

Lecturer in Law

School of Law, Open University

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