Op-ed : Salvaging the Legal Case to Attack Syria

David J. Scheffer

The prospect of Syria disarmed of weapons of mass destruction is real following the August 21 chemical weapons attack that killed nearly 1500 civilians near Damascus.  The Russian-American Framework for Elimination of Syrian Chemical Weapons and the U.N. Security Council resolution supporting it buy time to strengthen the legal rationale for an attack on Syria in the event the disarmament deal craters and Russia blocks Security Council enforcement of it. 

President Barack Obama made a compelling argument to act forcefully in order to confront the egregious use of chemical weapons in Syria and thus enforce international law.  Not many leaders have dared to invoke “international law” as a call to arms.  But sometimes procedure is as important as the principles being defended. 

Obama’s legal case to attack Syria—enforcement of an international norm banning the use of chemical weapons—lacked the backing of a Security Council “Chapter VII” resolution.   Since the U.N. Charter’s adoption after World War II, such approval defines lawful uses of force.

Obama’s legal case to unilaterally strike Syria bore too much resemblance to a forceful reprisal, albeit on behalf of Syrian victims, to punish Syrian President Bashar al-Assad and deter his regime (and others) from using chemical weapons.  But forceful reprisals are typically illegal under international law.   Washington could cloak a reprisal attack with individual self-defense (which Israel uses following rocket attacks), but that would be a stretch.

Some international lawyers would applaud the good deed of enforcing such universal law banning chemical weapons use, with the bonus of protecting civilians.  The latter goal conforms to the principle of “responsibility to protect” (R2P) that vests in the international community the right to protect civilian populations at risk of atrocity crimes.

But R2P, endorsed at the UN in 2005, requires Security Council approval for any use of military force to confront atrocity crimes endangering civilians not protected by their own government.   Russia, burned with R2P’s role in NATO’s strike against Libya in 2011, doubtless would block any such resolution.

There is time to explore an alternate rationale—collective self-defense—that could be employed if the diplomatic initiative fails.   It also would remain consistent with Obama’s aim to enforce an international norm. 

The principle, enshrined in UN Charter Article 51, permits a nation to aid another nation under armed attack without prior Security Council approval, provided its use is reported immediately to the Council.  NATO members are obligated to act under collective self-defense when any member (such as Turkey) suffers an armed attack. 

The use of chemical weapons within Syria poses the risk that such weapons will be used against targets in neighboring countries, particularly if the framework agreement is undermined. 

Another consequence of Syria’s civil war and chemical weapons attacks is the massive outflow of Syrian refugees, totaling more than two million desperate women, children, and men.   Sovereign borders have been breached, domestic economies are under siege, medical needs proliferate, militia and defector soldiers roam the refugee camps, and governments prepare to defend their borders from imminent military threats, including chemical weapons. 

Massive refugee flows are a modern form of attack with daily surges of cross-border humanity. There also have been shellings into Turkey, Jordan, and Lebanon.  The chemical weapons threat joins such mayhem as the “armed attack” elephant in the room.

Frontline states (Turkey, Jordan, and Israel) should invoke collective self-defense and request preparations for limited strikes against chemical weapons and associated targets in Syria if the disarmament deal craters and the Security Council fails to act.  

Collective self-defense offers, in the last resort, a means to an end in Syria.

David Scheffer is a law professor at Northwestern University and Bosch Berlin Prize Fellow in Public Policy at the American Academy in Berlin.  His recent book is All the Missing Souls: A Personal History of the War Crimes Tribunals.