Syria Strikes: The Politics of Legality and Legitimacy

When, on April 14, U.N. Secretary-General Antonio Guterres said “If the law is ignored, it is undermined,” he could have been talking both to those who condoned the use of chemical weapons in Syria, and to those who resorted to military action to uphold the prohibition on such attacks.

Many discussions have followed the recent British, French, and U.S. strikes on Syria, which followed the Assad government’s chemical attack in Douma. For the most part, the legality of that response has not been part of these discussions. Yet the idea of a rules-based global order is not important just as a formal trait of multilateralism: it is important to both stability and predictability in international security.

In the absence of a clear, not to mention consensual, legal basis for these strikes, the perpetrating countries have unsurprisingly turned to legitimacy as a justification. Such arguments may eventually contribute to the collapse of legal systems, even when the action is meant to uphold norms as fundamental as the prohibition on the use of chemical weapons. But on that particular occasion, the need to act proved a stronger driving force than concerns about the gradual erosion of the international legal regime governing the use of force.

Legal Inconsistencies 

The conditions under which force is permissible have been bedrock principles of the post-1945 international order, and a central tenet of the U.N. Charter. Traditionally, they generate three options for the lawful use of military force: consent from the state on whose territory force is used; individual or collective self-defense; or the U.N. Security Council’s authorization.

Obviously, one should not exaggerate the extent to which these rules were respected during the Cold War and the decade that followed it. But since Kosovo, the institutions and norms of ius ad bellum, i.e. the law that governs when force can be used, have faced particular challenges. One illustration of the strain on these international norms is the fragmentation of the consensus on the conditions under which force is lawful. Tellingly, the three countries that launched the strikes have not agreed on a common legal argument.

Britain has put forward a fourth justification for the use of force, based on its “humanitarian intervention” doctrine: On an “exceptional basis,” a country is permitted to use force so as to “alleviate overwhelming humanitarian suffering.” Such military action will be lawful if: the situation calls for immediate relief; alternatives to save lives are not viable; and the use of force remains necessary and proportionate to this humanitarian goal, and follows no other purpose.

This argument raises a number of issues, particularly in this case, as one may wonder why strikes should occur only after the use of chemical weapons when most violence against civilians in Syria is committed through conventional means. Yet, from a legal perspective, the problem with the British argument runs deeper: How are these three determinations to be made and, more importantly, who makes them? Whether these determinations can be unilateral or should happen only via the United Nations is all the more important given that, in international law, to claim a right for oneself is to give it to all. In any case, this legal approach, which remains a minority view on the international stage, is not supported by either the United States or France.

As it usually does, the debate in the United States had more to do with domestic law — the never-ending debate on the War Powers Act — than with international law. But the most striking fact is that the U.S. administration has not offered any formal legal argument so far. Beyond the moral arguments about the atrocity of the Douma attack, President Donald Trump’s statement underlined security concerns specifically related to chemical weapons, as well as the issue of U.S. credibility. Secretary of defense James Mattis did allude to legality, but only to state “We did what we believe was right under international law, under our nation’s laws” without further elaborating.

France has not offered a legal argument either, although Foreign Minister Jean-Yves Le Drian’s statement makes multiple references to legal norms in order to assert the legitimacy of the strikes. Referring to the 1925 Protocol prohibiting the use of chemical weapons in warfare, the 1993 Chemical Weapons Convention, and the U.N. Security Council resolution 2118, Le Drian stressed the need to put “an end to a serious violation of the law,” and more broadly made the case that the strikes were, as the French representative to the United Nations put it, “a response in service of law.”

In this sense, France seems to be the most mindful of the risk that appearing to act lawlessly may make it easier for other countries to also act without a legal justification. France’s event-specific emphasis on legitimacy evokes its argument at the time of NATO’s intervention in Kosovo in 1999: According to then-Foreign Minister Hubert Védrine, “the way the situation in Kosovo [was] dealt with [was] an exception and not a precedent.”

Given that the legal case is questionable (at the very best), and that the three perpetrators do not even seem to agree on the basis for their joint action, focusing on legitimacy seems convenient. Among international reactions, all that came in support of the strikes opted for legitimacy over legality as well. Of course, invoking an exception may in itself be used as a precedent and does not suppress the risk that, eventually, “‘illegal but legitimate’ implies no legal limits on the use of force.”

Russia’s Veto: Paralyzing Legal Avenues 

Obviously, Russia was not going to miss an opportunity to leverage this fragility. At the Security Council, immediately following the strikes, it called for a vote condemning the “aggression” against Syria “in violation of international law and the U.N. Charter.” But it failed to garner the necessary nine-vote majority, and miserably so: France, the United Kingdom, and the United States didn’t even have to use their veto. Only two member states joined Russia (Bolivia and China), while eight members voted no (including France, the United Kingdom, and the United States), and four sought refuge in abstention.

Russia’s failure did not make the strikes legal, but it helped broaden the discussion about the paralysis of international institutions in dealing with Syria. Indeed, non-permanent members who did not support Russia’s resolution repeatedly pointed to the fact that these strikes took place in the context of prior chemical attacks in Douma, over which the Security Council was deadlocked. The legitimacy argument arose precisely because the use of the veto had closed off most, if not all, legal avenues, including those avenues which didn’t consist of using force. Indeed, between the Douma attack and the strikes, Russia had — once more — cast a lone veto on a draft resolution that sought not to authorize military action, but only to allow for an independent identification of the perpetrators of the attack.

Since 2011, the pace of vetoes has stepped up, with 24 during the last eight years alone, compared to just 25 between 1990 and 2010. Russia is responsible for 66 percent of them, i.e. 16 vetoes in total. Even more importantly, Syria has been the motive for 12 of these — as well as for all of the six Chinese vetoes, all cast together with Russia. The veto just after the Douma attack was the 6th from Russia specifically on the issue of chemical weapons in Syria.

Number of vetoes at the Security Council since 1990

Source : http://www.un.org/depts/dhl/resguide/scact_veto_table_en.htm

Of course, the veto was introduced for a reason — to provide the permanent members with enough confidence in the architecture that they would play the game. But repeated vetoes should not hollow out the system by paralyzing the Security Council’s ability to enforce its own decisions, especially if the vetoing country offers no credible alternative course of action. It should come as no surprise that, as consequences of this situation, there is a revival of proposals about suspending the use of the veto in situations of mass atrocities, or resorting to the U.N. General Assembly to bypass the Russian veto.

Looking Ahead: Reconciling Legitimacy and Legality Ex-Post?

Legitimacy is more fragile without legality than with it. But it is also often determined more by what comes next than by what bestowed it initially. Much has been said already on how little there is to expect in terms of military impact of the strikes. But it remains to be seen whether they will be used as leverage to change the political facts on the ground in Syria.

With Trump’s stated intent to withdraw troops from Syria, the United States may not be the most dedicated to building such leverage. In fact, it already failed to do so after its first round of strikes, back in April 2017. On the contrary, Britain and especially France, have stated their determination to move in that direction. French President Emmanuel Macron attempted to persuade Trump on Syria, while France has been active at the United Nations on a number of issues including Damascus’ chemical disarmament, terrorism, protection of civilians and humanitarian access, as well as supporting a more inclusive and credible political process. In these ways, France has shown that it has more at stake than others when it comes to solidifying whatever leverage was possibly created by the strikes.

The odds of getting the leverage needed to legitimize the military strikes ex-post are still poor. In the meantime, the strikes have already further eroded the authority of the conditions under which the use of force is permissible, and the credibility of the institutions that uphold these principles. In a region like the Middle East, that evolution should be a cause of concern, as shown by the renewed tensions between Iran and Israel.

Thus, it would seem important that diplomacy follows military action with similar determination and concern for credibility in trying to find a broader solution to the Syrian crisis. The multilateral order should remain central in this effort, so as to avoid again finding ourselves forced to choose between legality and legitimacy.

Manuel Lafont Rapnouil, a French career diplomat, is a Senior Policy Fellow and the Head of the Paris Office of the European Council on Foreign Relations (ECFR). His latest publication is Alone in the desert? How France can lead Europe in the Middle East.

Image: UN.org