Interpretation of international law

Maintaining a workable international legal order requires the most powerful countries to set the correct precedent. If the U.S. is indeed justified in using force in Syria, then it ought to offer a legally tenable defence for its participation in the conflict

October 24, 2014 02:11 am | Updated December 04, 2021 11:28 pm IST

The United States’ supposed grand strategy to thwart the rampaging Islamic State (IS) is seemingly in a shambles. Reports indicate that IS has not only foiled the U.S.-led attacks thus far, but has also perpetrated massive defeats on the Iraqi army. What’s more, the Syrian rebel coalitions that were working closest with the U.S. are also apparently beginning to turn against America.

The attacks in Syria against IS — an extremist Sunni organisation — and Khorasan — a mysterious, and far lesser known, network — began in the middle of September through a series of carefully planned air strikes; they were, to illustrate the magnitude of the assaults, the largest single operation by the U.S. military since NATO’s intervention in Libya in 2011.

Invoking Article 51 The on-going acts of aggression on Syrian territory, by many accounts, might only be the tip of the iceberg. The consequence, however, of a prolonged battle, analysts say, could backfire miserably on the U.S. It could, for instance, further strengthen the militantly oppressive regime of the Syrian President, Bashar al-Assad. But, all of these practicalities apart, what has been most telling about the American attacks, are the almost-mundane inevitability of them all. As the journalist Glenn Greenwald observed, it seems “Empires bomb who they want, when they want, for whatever reason.”

Officially, although it seems to matter so little, the U.S. has sought to justify its attacks by invoking Article 51 of the United Nations Charter. “States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense … when, as is the case here, the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks,” wrote U.S. Ambassador to the U.N. Samantha Power in a letter to the U.N. Secretary General, Ban Ki-moon. “The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself. Accordingly, the United States has initiated necessary and proportionate military actions in Syria in order to eliminate the ongoing [IS] threat to Iraq .…”

While the attacks against IS have been sought to be justified as an act in exercise of collective self-defence of Iraq, the legal justification offered for strikes on Khorasan is different: those strikes are a response to what Ms. Power described as “terrorist threats that [Khorasan] pose to the United States and our partners and allies.”

Treaty and customary law The international law on the use of force by states is governed both by treaty — the U.N. charter, to which the U.S. is a founding signatory — and customary law. The latter is a set of rules that acquire binding status by virtue of extensive practice by a number of states acting out of a sense of obligation over a sustained period of time. In this case, Ms. Power’s statements might look like legal justifications, but, in fact, they are almost completely shorn of reasonable basis under both treaty and customary law.

Insofar as treaty law is concerned, Article 2(4) of the U.N. Charter states that members shall refrain in their international relations from “the threat or use of force against the territorial integrity or political independence of any state .…” Therefore, any armed attack by a state in a foreign territory is prohibited unless otherwise permitted by the charter.

Article 51 of the U.N. Charter represents the general exception to this rule. It preserves every nation-state’s “inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations,” until the Security Council intervenes. Provided however that any such response ought to be immediately reported to the Security Council.

Here, given that the Assad government has offered no express authorisation to the U.S., the attacks are, without question, in violation of Syria’s sovereignty. Therefore, the aggressors ought to necessarily look towards the exceptions to the prohibited use of force under the U.N. Charter in justifying their actions.

" International law may not have changed as much as to justify attacks against non-state actors purely because the host state is unwilling or unable to quell such an actor. "

The International Court of Justice (ICJ), as Kevin Jon Heller, a professor of criminal law at The School of Oriental and African Studies (SOAS), London, has pointed out, has taken a staunch view on the subject; it has held that Article 51 of the U.N. Charter permits acts in self-defence against non-state actors (such as IS and Khorasan) only in limited circumstances. In both Nicaragua v. the United States (1986) and the Advisory Opinion in the case of the Palestinian Wall (2004), the ICJ ruled that an action is justifiable under Article 51 only where the non-state actor’s armed attacks are attributable, in one way or another, to the state whose territorial integrity is being infracted. In this case, therefore, the U.S. will have to show that the acts of ISIS, and Khorasan, are attributable — either explicitly or implicitly — to the Syrian government.

America’s purported justification for the attacks, flowing from Ms. Power’s letter, however involves no such analysis. Instead, it merely states that because Syria is unwilling or unable — it doesn’t tell us which — to prevent the use of its territory for attacks by IS and Khorasan, the U.S. is justified in invoking its collective right of self-defence.

‘Unwilling’ test The problems with such an explanation are various. First, the “unwilling or unable” test that the U.S. seeks to invoke, as much as it would like us to believe otherwise, has no valid basis in international law. It neither finds any mention in Article 51 nor has it been accepted by a sufficient number of nation-states for it to acquire the status of customary law. As Prof. Heller has observed, international law has evolved tremendously since 9/11, but it may not have changed as much as to justify attacks against non-state actors purely because the host state is unwilling or unable to quell such an actor.

Second, even if one were to assume that the “unwilling or unable” test has acquired legal imprimatur, the attacks by the U.S. in Syrian territory remain on flimsy ground. Syria has offered no explicit consent for such attacks, and has certainly not stated that it is either unwilling or unable to counter the threat of IS. Quite to the contrary, the Syrian Foreign Minister, Walid al-Muallem, who is also the country’s Deputy Prime Minister, has said, “Any strike which is not coordinated with the [Syrian] government will be considered as aggression.” In furtherance of the same statement, Mr. al-Muallem told the U.N. General Assembly that the attacks by the international community must be within “the frame of full respect of national sovereignty and in conformity with international conventions.” These statements, as are self-evident, are expressions neither of unwillingness nor inability. As the French President, François Hollande, put it at a press conference following the U.S.’s initial air strikes in Syria: “We’re very concerned with the aspects of international law. We’ve been called in by the Iraqis; we’re not called on in Syria.”

Illegalities Third, and possibly most frighteningly, as Mr. Greenwald has reported, it isn’t merely the fact that the U.S. has failed to show any evidence of an imminent attack on its homeland, which is worrying. It is that the Khorasan Group, that the U.S. originally referenced, might well be a figment of its imagination. Thus far, America has failed to display any proof that the Khorasan actually exists.

To make matters worse, the White House has also confirmed that a standard that President Obama announced as part of a supposed U.S. drone policy, which would see the country launch drone strikes only when there was a “near certainty” that there would be no civilian casualties, would not apply to air strikes against IS.

Just as it failed to do with Russia’s military intervention in Ukraine earlier this year, it is quite clear that the international law against the use of armed force — embodied in Article 2(4) of the U.N. Charter — has fallen short of constraining, or even as much as defining, the ongoing attacks by the U.S. in Syria. It is possible that most civilised nations consider the American attacks as legitimate and necessary, even if illegal. But, if that were the case, shouldn’t such illegality matter more when it assaults the very foundation of our international legal order? And do not these attacks further negate any semblance of legitimacy that international law still enjoys? Sovereignty, once upon a time, used to be inviolable.

If the lack of a global uproar against the American intervention in Syria represents a tacit acceptance of the necessity for these attacks, the question still remains: why is international law so weak as to be incapable of producing a lawfully tailored solution to counter the Islamic State’s most gruesome threats, including a potential genocide of Yazidis?

Asking these questions at a time such as this might appear, to some, imprudent. But it is important for countries that often seek to occupy a moral high ground when other countries indulge in illegal military interventions to set good examples. Maintaining a workable international legal order requires the most powerful countries to set the correct precedent; if the U.S. is indeed justified in using force in Syria, then it ought to offer a legally tenable defence for its participation in the conflict.

When Barack Obama assumed office as the U.S. President, many believed that his administration would correct the policies of the disastrous Bush regime. But the Obama administration might well have created far more dangerous dogmas, as its vacuous defence of the attacks on Syrian soil shows. If countries treat these justifications by the U.S. as edicts, the already parlous state of international law could suffer far greater dents.

(Suhrith Parthasarathy is an advocate in the Madras High Court.)

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