The Mysterious Case of Preemptive Force in Syria

By: Matthew Thran 

On April 07, 2018 France, Britain and the United States launched a combined missile attack against the Shayrat Airbase in Syria.[1] The stated reason for the missile attack was to “show Western resolve in the face of what the leaders of the three nations called persistent violations of international law.”[2] Specifically, the attack was in response to a suspected chemical attack, perpetrated by the Syrian government, which occurred on April 07, 2018 in the town of Khan Sheikhoun, within Syria.[3] The Organization for the Prohibition of Chemical Weapons was not able to access the sites of the suspected chemical attacks until April 21, 2018, two weeks after the suspected attacks, and the missile strikes.[4]  The Chemical Weapons Convention, which Syria and other nations are a party to, prohibits the use of Chemical Weapons.[5] Despite the OPCW, the implementing party for the Chemical Weapons Convention, not having made a finding on whether a chemical attack occurred France released their own justification for the missile attack.[6] The French report stated, "After examining the videos and images of victims published online, [French intelligence services] were able to conclude with a high degree of confidence that the vast majority [of chemical attacks] are recent and not fabricated."[7] However, Syria has staunchly denied ever using chemical weapons during the civil war.[8] Despite Syria’s protestations to their use of chemical weapons the OPCW and the UN have found that Syria has used chemical weapons on at least four separate occasions during the civil war.[9]

It is necessary to determine whether there was a legally cognizable excuse for the United States, France, and Britain to launch a premeditated attack against another sovereign nation. As members of the United Nations France, Britain, and the United States are all bound by the provisions of the United Nations Charter.[10] Article two of the United Nations Charter states that all members must settle their disputes in a peaceful manner so that the international peace and security are not endangered.[11] Additionally, article two states, “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, or in any other manner inconsistent with the Purposes of the United Nations.”[12]

Despite the prohibitions on the use of force, article 51 of the UN Charter provides for the use of force in self defense.[13] Article 51 states:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.[14]

Article 51 requires that an armed attack occur before a nation can use force in self defense.[15] There was no attack on France, Britain, or the United States prior to their missile attack on Syria.

In addition to article 51 the United Nations Security Council has the authority to authorize the use of force against a nation. Article 39 of the United Nations Charter allows the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”[16] Article 42 provides that the Security Council may authorize the use of land, air, and sea forces as necessary to restore peace and security to the international community.[17] The Security Council did not authorize the use of force prior to the missile attack conducted by France, Britain, and the United States.

After the missile attack against Syria, there was an emergency session held for the UN Security Council. At the session, Russia attempted to pass a resolution condemning France, Britain, and The United States for violating international law and the UN Charter. Russia could not get the requisite amount of votes to pass the resolution, but that is not indicative of the legality of the acts taken by the United States, France, and Britain.[18]

The International Court of Justice has dealt with the issue of preemptive use of force in numerous cases. In Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 14, ¶ 212 (June 27) [hereinafter Nicaragua], the ICJ held that an armed attack only includes, “the most grave forms of the use of force”. Additionally, in G.A. Res. 2623 (VII) (Oct. 24, 1970), the United Nations stated that less grave uses of force that do not constitute armed attacks may involve deprivation of peoples’ self-determination, organizing or encouraging mercenaries to enter another State, and assisting or organizing terrorist attacks in another state. Under definitions put forward by both the International Court of Justice and the United Nations the United States, France, and Britain were not justified in using force against Syria.

Despite the attack likely having no basis in international law, there is some precedent for taking military action without United Nations authorization. In 1999 NATO began a bombing campaign against Serbia.[19] There was no United Nations resolution authorizing the bombing campaign in Kosovo but there was widespread support from the international community and the attacks were carried out by NATO rather than by independent nations.[20] There was no legal justification for the Kosovo attacks but because the international community largely supported the action there were never any consequences for the action. In the present case, Russia and China are both vehemently against intervention in Syria and the illegal attacks are likely to cause international strife.

[1] Helene Cooper, Thomas Gibbons-Neff & Ben Hubbard, U.S. Britain and France Strike Syria Over Suspected Chemical Weapon Attack, The New York Times (April 13, 2018), https://www.nytimes.com/2018/04/13/world/middleeast/trump-strikes-syria-attack.html.

[2] Id.

[3] Syria Chemical Attack: Experts Finally Visit Douma Site, BBC (April 21, 2018), http://www.bbc.com/news/world-middle-east-43850979.

[4] Id.

[5] Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and Their Destruction, Jan. 13, 1993;

[6]  Id., Ledyard King & Oren Dorell, French Report Lays out the Evidence: Assad Forces Conducted Chemical Attacks on Civilians, USA Today (Apr. 14, 2018), https://www.usatoday.com/story/news/world/2018/04/14/french-report-lays-out-evidence-assad-forces-conducted-chemical-attack-civilians/517187002/.

[7] King & Dorell, supra note 6.

[8] Syria Chemical Attack: Experts Finally Visit Douma Site, supra note 3.

[9] Id.

[10] U.N. Charter art. 2.

[11] Id. ¶ 3.

[12] Id. ¶ 4.

[13] Id. art. 51.

[14] Id.

[15] Id.

[16] Id. art. 39.

[17] Id. art. 42.

[18] Ray Sanchez & Laura Smith-Spark, After Syrian Airstrikes Comes Finger-Pointing and Condemnations, CNN (Apr. 14, 2018), https://www.cnn.com/2018/04/14/politics/syria-strikes-russia-us-response-intl/index.html.

[19] James Rubin, Syria is not Kosovo, The New York Times (Sept. 04, 2018), https://docs.google.com/document/d/1yrW9GC7E6SnJ4gqOPcymtzK2edPBb5Qco3D_mae6uV8/edit.

[20] Id.