The early hours of August 21, 2013 saw a drastic turn in the Syrian conflict as a chemical weapons attack on civilians living in the agricultural belt around Damascus took place. Three days after the attack, medical charity Medecins Sans Frontieres confirmed that three hospitals it supports in Damascus had treated about 3,600 patients with “neurotoxic symptoms” on the day of the attack; 355 of these had died.[1] Ever since there’ve been mutual accusations of the use of chemical weapons by the countering parties, namely Assad’s regime and the rebels,[2] which also caused a split of views and stances on the international plane. Yet, despite the absence of the forthcoming United Nations [hereinafter UN] report on the attack,[3] the parties to the conflict and the international community are all of no doubt that the attack has taken place. 10 days after the beginning of the political turmoil within the ‘concerned’ international community President Obama issued a statement on Syria accusing the Assad’s regime of the attack on its own people and calling for a targeted military strike to deter the regime from using the chemical weapons ever again.[4]

NB The following deliberation examines some excerpts from President Obama’s statements of August 31, 2013[5] and September 10, 2013[6] which call for a targeted military strike and is aimed at looking at this suggestion through the prism of international law.

One should note that the call for a strike is based on President Obama’s premise that the UN Security Council is not capable of taking action in respect to what’s happening in Syria:

“I’m comfortable going forward without the approval of a United Nations Security Council that, so far, has been completely paralyzed and unwilling to hold Assad accountable.”[7]

President Obama suggested that the alleged use of chemical weapons by Bashar al-Assad’s regime flouts “fundamental international rules”[8] and is “a threat to global peace and security.”[9]

The logic is intuitively clear and somewhat correct from a legal point of view: internationally wrongful acts should trigger international responsibility.[10] Yet, there are some important implications to this end. However credible any claimed evidence is, the aforementioned qualification of the alleged attack as a threat to global peace and security and the allegation of Assad regime’s accountability bear no significance from a legal perspective. Here’s why.

According to Article 39 of the UN Charter “the Security Council shall 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.”[11] To put it in plain terms, the UN Security Council is the only entity empowered to determine the existence of any threat to peace and take further action under international law. Therefore, any other determination done by States or other actors does not bear any legal significance to the international community, does not trigger international responsibility and is of a purely political rather than legal character. Hence, given that the attack hasn’t yet been qualified by the UN Security Council as a threat to peace President Obama’s statement should be treated as conjectural in nature.

President Obama justifies his suggestion of the military strike by the inability of the UN Security Council to take action and enforce the prohibition on the use of chemical weapons:

“What’s the purpose of the international system that we’ve built if a prohibition on the use of chemical weapons that has been agreed to by the governments of 98 percent of the world’s people and approved overwhelmingly by the Congress of the United States is not enforced?”[12]

“If we won’t enforce accountability in the face of this heinous act, what does it say about our resolve to stand up to others who flout fundamental international rules?”[13]

Once again, one might find the morals behind the suggestion to conduct a military strike clear and congenial, yet, the “resolve to stand up to others who flout fundamental international rules” in this case will flout them as well.

Article 2(4) of the UN Charter establishes a ban on “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 UN.” The approach comprises not only war but also measures short of war[14] and applies to the military strike suggested by President Obama. Contemporary international law provides two grounds justifying the use of force: the right to self-defense enshrined in Article 51 of the UN Charter and the use of force authorized by the UN Security Council aimed at maintaining or restoring international peace and security as prescribed by Article 42 of the UN Charter:

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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-defence 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.[15]

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.[16]

As it has been mentioned above, the UN Security Council neither has qualified the use of chemical weapons in Syria as a threat to peace nor has it approved any military action under Article 42 of the UN Charter. Moreover, the United States do not enjoy the right to [preemptive] self-defense in this case as has been confirmed by President Obama himself:

“That’s my judgment as Commander-in-Chief. But I’m also the President of the world’s oldest constitutional democracy. So even though I possess the authority to order military strikes, I believed it was right, in the absence of a direct or imminent threat to our security,[17] to take this debate to Congress.”

Therefore, since neither of the two exclusive grounds have yet been met the suggested military strike on Syria will constitute a violation of Article 2(4) of the UN Charter.

Hopefully, the suggested military strike will not occur as the story took a sharp turn on September 10, 2013 as President Obama looked at the Russian initiative to peacefully push Assad’s regime to give up his chemical weapons, but in light of the aforementioned analysis President Obama’s stance on Syria seems to be somewhat hypocritical. Such actions as the suggested military strike justified by the inability of the UN Security Council to take action is what in fact makes the “international system that we’ve built” fail. The usual scenario goes as follows. A disregard of international obligations by states triggers deliberations in the UN Security Council which, given the veto power and opposite views of stakeholders on the matter in question, is unable to reach consensus. A stakeholder pursues action proprio motu violating its international obligations, whereas the UN Security Council is incapable of preventing such violations due to the veto power of the violator. It has been going on this way since forever and the international community is of a strong concern that something has to be done, yet unfortunately to international legal order no one has come with a reasonable solution to this problem.

Written by Jan Guardian