Sunday, 8 September 2013

Is a raid on Syria violating international law?

We are living through an event that will shape the future of international law.  The use of chemical weapons in Syria has placed United States president Barack Obama in an invidious position.  The leader of the so-called free world has previously stated that the use of chemical weapons is intolerable, and requires response.

An attack on Syria without the backing of the United Nations Security Council (UNSC) may undermine the enforceability and usefulness of international law and is possibly in contravention of the United Nations Charter [PDF original or HTML summary] if it goes ahead without required UNSC authorization.

The primary responsibility of the UNSC is to maintain international peace and security, and “to save succeeding generations from the scourge of war”.  The Charter was incorporated in the aftermath of world war two in 1945, with a backdrop of global war-related destruction and many lives lost. It was ironically signed in the United States, in San Francisco on 26 June 1945.  It is critical in international law for a number of reasons, primary among these is that member countries agree to only conduct military action under certain circumstances, typically requiring several countries to approve action by way of vote.  For a recent list of UNSC sanctioned military action, see here.

The UNSC has five permanent members occupy voting rights - the United States, Russia, China, France and the United Kingdom.  In addition, to make a total of 15 members, there are 10 non-permanent members (rotating on two-year terms).  The five permanent members have the right to veto any proposed action and it is likely that any United States military action on Syria will be vetoed by either Russia or China - unless there is compelling evidence of chemical weapons abuse.

For these reasons, the rhetoric used by United States’ officials is that of the Syrian regime violating “international norms and for this to require a "limited, narrow act" in response.  This is the slightly grey area; if the United States perpetrate a limited, narrow act in response to alleged chemical weapons use, does this violate the norms and principals set out in the UN Charter?   Or put differently, does a limited strike, in retaliation to the use of chemical weapons, constitute an act which requires UNSC approval? 

Some member countries have adopted a more cautious approach and will await the outcome of the United Nations chemical weapons inspectors who are expected to publish a report on the chemical weapons use in the coming weeks, although it does appear as if several member countries are intent on a response, United Kingdom and France key amongst these.    

The United States Congress is due to vote on the use of force imminently – it is unlikely that UNSC authorization will be obtained.  However, forceful action appears to be on hold pending a decision by US Congress. Accordingly, the outcome of that vote may shape the future enforceability of the UN Charter and international law; or at the very least its interpretation in light of the unique circumstances.