The chemical weapon attack of 4 April that appears to have killed some 86 civilians in Khan Sheikhoun is the latest military action to provoke global outrage over Syria.
Back in 2013, in response to chemical weapon attacks, and under intense pressure from the US and Russia, Syria acceded to the Chemical Weapons Convention and turned over most of its chemical weapons for destruction – mainly Sarin, VX, and sulphur mustard.
But not all. Because of its widespread use for lawful purposes, chlorine was not included in the eradication programme, even though it is banned under the Convention as a weapon. In August 2016, chlorine was used against civilians in Aleppo.
With regard to this week’s attack, the facts remain under dispute. All official parties accept that the attack was by Syrian military aircraft. But while the US, UK and France believe the evidence makes clear that those aircraft fired chemical weapons at targets, Russia maintains that they fired conventional weapons at a chemical weapons depot operated by rebel forces.
The US, driven by a self-described ‘emotional reaction’ from its leader, undertook a cruise missile strike against the airfield from the Syrian aircraft were believed to have been based. The US strike, in turn, has occasioned high-pitched support and opposition from around the world.
Bill English announced that “we can understand the US taking action to prevent that kind of chemical attack occurring again, and we support action as long as it is proportionate”.
The day before, the UK had said that the strike was ‘an appropriate response’ to the regime’s ‘barbaric chemical attack’. The Netherlands had said that “In the current circumstances this is a proportionate response, and the Dutch Government considers this understandable”. Australia had said that “This was a calibrated, proportionate and targeted response”. As the sun swept once more around planet Earth, New Zealand took its turn to speak up.
Other countries have different views. Russia and Iran called it an ‘act of aggression’. Sweden noted that the missile attack “raises issues of how this can be compatible with international law”. Brazil condemned the ‘unilateral use of force’ without authorization from the UN. South Africa did not believe that “bombing the already suffering people and crumbling infrastructure of Syria will contribute to a sustainable solution”.
In the cruise missile attack, political motivation and legal justification clash.
Although not explicitly advanced by the US, the legal convention today is that the doctrine of ‘Responsibility to Protect’ allows the international community to intervene militarily if a state is proving unable or unwilling to protect its own citizens.
But the doctrine states clearly that such military action by outside powers can be legally undertaken only with explicit UN authorisation. This was not of course, done, in the case of the US missile strike. As such, it amounts to an unlawful act.
Civilian protection, however, is not the only argumentation advanced for military intervention by the US. Regime change of the Assad Government figures in US public explanations, by senior Administration officials – on again, off-again. The US is not alone in this respect: Germany and France jointly called on the international community “to campaign together for a political transition in Syria”. Australia may have got it wrong when its PM stated that the United States have “made it clear that they are not seeking to overthrow the Assad regime”.
The ‘R2P’ doctrine does not explicitly empower intervening states, even in an authorised action, to overthrow the regime. The illegal invasion of Iraq in 2003, based on false allegations by the US, UK and Australia of a nuclear weapons programme in that country, resulted in the overthrow of the regime there.
A ruling dictator, however odious they may be before contemporary human standards, may not be overthrown by other UN member states under prevailing international law. Yet we are edging toward that political precipice. There is probably a need for clarification of this matter by the International Law Commission. Our Government should think more carefully before speaking or acting without caution on Syria, as the consequences may be very serious.