International law cannot justify attack on Syria

For the second time in a little over ten years, Britain and America (this time with the assistance of France) seem about to launch hostilities against an Arab country on the basis of the possession or use of chemical weapons.

To be sure, they argue that this case is different. In the Iraqi case, no weapons were to be found. Here, there are claims of an actual chemical attack. Surely this justifies a response? Well it’s a little bit more complex.

Chemical weapons are horrific and indiscriminate and are therefore largely used to strike fear in populations rather than to achieve particular military goals. After World War I – when both sides made widespread use of chlorine, phosgene and mustard agents – the world largely recoiled from their use. This resulted in the 1925 Geneva Gas Protocol prohibiting the use of chemical or biological weapons. Syria is a party to this treaty, although not to its 1993 successor which, unlike the 1925 treaty, contains detailed enforcement mechanisms. 

This did not stop continued violations in the years since. In the 1930s, new neurotoxic organophosphates ('nerve gasses', although actually liquid) were developed by German scientists. Mussolini used chemical weapons against Ethiopia in 1935, the Soviets used them in Afghanistan, and the US helped Saddam Hussein use them against Iran. (He also, of course, turned them on his own, Kurdish, population.) In the aftermath of the Cold War, a new Chemical Weapons Convention was drafted but, as noted above, Syria is not a party.

There is, however, no general right to intervene to prevent the use or stockpiling of chemical weapons. It will be remembered that the purported justification by the US in Iraq was that that country had breached earlier UN Security Council resolutions specifically forbidding it to keep or build chemical weapons. 

There can also be no question of the US and its allies acting in 'self-defence' (permitted by Art.51 of the UN Charter), given that this is clearly a civil war.

Certainly, if either side has used chemical weapons in Syria, this would seem to be a 'threat to the peace, breach of the peace, or act of aggression' within the meaning of Art.39 of the UN Charter (which would entitle the UN Security Council to authorise military action to prevent it). The problem is that the UN Security Council is split down the middle: three powers with vetoes (power to block resolutions) oppose the Syrian Government (US, UK, France), while two (Russia, China) support it. Russia and China, in particular, are nervous of anything that looks like intervention in Syria.

Apart from having their own interests in the region, they are wary of giving anything that might look like a nod to Western military ambitions – with some cause. While they supported the resolution demanding a no-fly zone in Libya to protect civilians, they were less than impressed when NATO members took this as a mandate to remove Gadhafi from power completely.

More basically, it is by no means clear (a) that there has been a chemical weapons attack in Syria (b) if so, what agents were used or (c) who used them.

Determining any of these propositions involves complicated chemical analysis and assumes that there has been no opportunity for tampering with samples or for the chemicals to degrade in the meantime. (Hence, the importance of a clear chain of custody for any alleged samples.)

The US and its allies have made clear that while they may seek a Security Council resolution, they do not consider themselves bound by any such resolution (or the lack of one), or the findings of the UN team already investigating alleged chemical attacks.  

This is worrying. Both sides seem to have access to chemical weapons and both have been accused of their use. Previous UN investigations were inconclusive on alleged use of chemical weapons (although one investigator, Carla Del Ponte, noted that any evidence pointed to the insurgents as the likely culprits). In addition, in June, rebels were arrested in Turkey carrying chemicals which initial reports (later denied by Turkish authorities) claimed included the nerve agent sarin. These factors suggest more reason, one would think, to wait for the UN to report.

As a result, while an attack on Syria may be imminent, it is difficult to see how – at least from an international law standpoint – it is justifiable.

Justin Glyn SJ is a student of philosophy and theology in Melbourne who holds a PhD in international and administrative law.

Soldier with gas mask image by Shutterstock.