Brown University Seminar — Part II

This five-part blog post is drawn from Michael G. Karnavas’s Seminar at the Brown University International Organization (BRIO) February 27, 2014.  The complete piece is available on Michael’s website.

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III. LEGAL FRAMEWORK

SyriaWith the context of the Syrian conflict in mind, I then discussed the legal framework which governs the use of force in this scenario. There are many legal provisions in the UN scheme as well as treaty and customary law which govern the use of force. I briefly took the students through these legal provisions in order to engage them in an analytical process so they could reach their conclusions—or at least cause them to look beyond any preconceptions they may have had coming into the seminar.

As a result of diplomatic negotiations, Syria agreed to join the OPCW, and subsequently ratified the Chemical Weapons Convention on October 14, 2013.[1] Under the Chemical Weapons Convention, each member state agrees never, under any circumstances:

(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(b) To use chemical weapons;

(c) To engage in any military preparations to use chemical weapons;

(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.[2]

Additionally, each state party must destroy all of its chemical weapons stockpiles, abandoned weapons, production facilities, and must not use riot control agents as a method of warfare.[3]  Shortly after Syria signed the Chemical Weapons Convention, the Security Council passed Resolution 2118[4] which, as discussed above, requires Syria to destroy its chemical weapons stockpiles. In the event of non-compliance, the Security Council has threatened to “impose measures under Chapter VII of the UN Charter.”[5]    

The Chemical Weapons Convention and Resolution 2118 set out Syria’s obligations in regard to the use of chemical weapons but makes no mention as to the potential use of force as an enforcement mechanism. Similarly left out is any note of referral to the International Criminal Court. As discussed above, the UK government proposed a resolution that would involve military intervention. However, any action in the Security Council regarding the use of force has been halted by two P-5 members, Russia and China.[6] In responding to Syria’s use of chemical weapons by military force, would the United States violate international law, absent Security Council authorization? Would armed intervention in response to the violations have a lawful basis under international law, either as self-defense, humanitarian intervention or military reprisal?

To begin the legal analysis, I started with central tenets of the United Nations Charter.

1. UN Charter

It is widely recognized that the central tenet in the UN Charter is the prohibition on the use of force codified in Article 2(4), which is also reflective of customary international law.[7] Under Article 2(4): “All Members shall refrain in their international relations from 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 United Nations.”[8] This does not mean that all use of force is prohibited. The UN Charter explicitly provides for two clearly defined exceptions to this general prohibition: (1) self-defense and (2) Security Council authorization.

Article 51 of the UN Charter affirms as customary international law the “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations,” but only until the Security Council has taken its necessary measures to maintain international peace and security.[9] The “trigger” for legal use of force in self-defense is the occurrence of an “armed attack.” If Syria’s breach would allow chemical weapons to fall into the hands of dangerous people, as suggested by President Obama, would this trigger a broad theory of anticipatory self-defense? There is an argument that pre-emptive (as distinguished from anticipatory) self-defense is lawful under the customary international law stemming from the Caroline affair.[10] Under this type of self-defense, the use of force can only be justified if it is necessary to avert an imminent attack, and use of force is proportional to that necessity.[11] Today, there is no recognized right of preventive or anticipatory self-defense where it would be permissible to use force in order to prevent an armed attack, where an armed attack is not imminent.[12] In the most extended form of self-defense, the armed attack must be imminent.

Outside of self-defense under Article 51 or customary international law, it seems that other potential uses of force must be channeled through the Security Council. Article 24(1) of the Charter gives the Security Council the “primary responsibility for the maintenance of peace and security.”[13] Under Article 39 of the Charter, the Security Council may impose binding measures under Chapter VII.[14] The triggering language for these measures is the determination that there has been a “threat to peace, breach of the peace, or act of aggression.”[15] Chapter VII measures explicitly include the use of military force as authorized by the Security Council under Article 42.[16] Presently, there is no legal framework to cover situations of Security Council deadlock.

One of the main purposes of the UN is to regulate the use of force in the maintenance of international peace and security.[17] It appears that under the UN collective security scheme outlined in the Charter, the Security Council has the monopoly on the use of force. However, in determining the legality of the use of force for the purpose of intervention, an analysis that only relies on Article 2(4) and the corresponding exceptions may be overly simplistic.[18] The maintenance of international peace and security is only one of the purposes of the UN. One other purpose, of a more humanitarian nature, is stated in the preamble: “to save succeeding generations from the scourge of war . . . to reaffirm faith in fundamental human rights, in the dignity and worth of the human person. . . .”[19]

An analysis of the above legal provisions of the Charter shows conflicting principles. There are clear prohibitions on the use of force with just two exceptions. The Charter contains elements of human rights and humanitarian principles. However, there is no explicit right of intervention for humanitarian purposes. In a strict legal application of the UN Charter, there seems to be no explicit justification for the use of force outside the self-defense model or Security Council authorization. If the Security Council is deadlocked by the veto of another P-5 member, are there other justifications for the use of force? Could collective intervention by a coalition of the willing be lawful?

2. Reprisals and Countermeasures

The rhetoric coming from the US (Obama administration and others) justified the use of force based on punishment in the form of a reprisal or countermeasure. Since Syria was in breach of the international law norm of the prohibition of the use of chemical weapons, could the US take action in the form of a countermeasure or reprisal? The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (“Draft Articles on State Responsibility”), is non-binding but reflective of customary international law.  It precludes wrongfulness in respect to countermeasures taken in response to an internationally wrongful act.[20] However, countermeasures involving use of force are generally prohibited:

Countermeasures shall not affect:

(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;

(b) obligations for the protection of fundamental human rights;

(c) obligations of a humanitarian character prohibiting reprisals;

(d) other obligations under peremptory norms of general international law.[21]

This prohibition on armed reprisal is codified in both the Draft Articles on State Responsibility as well as the UN Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.[22] However, the Draft Articles on State Responsibility may provide other leeway for force as they also preclude wrongfulness for measures taken in distress—if there is no other reasonable way, in a situation of distress, of saving lives—or necessity: if it is the only way for a state to safeguard an essential interest against a grave and imminent peril.[23]

In the humanitarian law context, the International Committee of the Red Cross (“ICRC”) has outlined reprisals in its 2005 Customary International Humanitarian Law Rules.[24] Rule 145 states that “where not prohibited by international law, belligerent reprisals are subject to stringent conditions.”[25] According to the ICRC, state practice has established this rule as a norm of customary international law applicable in international armed conflicts subject to stringent conditions:[26]

(i) Purpose of reprisals: Reprisals may only be taken in reaction to a prior serious violation of international humanitarian law, and only for the purpose of inducing the adversary to comply with the law….

(ii) Measure of last resort: Reprisals may only be carried out as a measure of last resort, when no other lawful measures are available to induce the adversary to respect the law….

(iii) Proportionality: Reprisal action must be proportionate to the violation it aims to stop….

(iv) Decision at the highest level of government: The decision to resort to reprisals must be taken at the highest level of government….

(v) Termination: Reprisal action must cease as soon as the adversary complies with the law.[27]

Although the ICRC allows for reprisals taken in reaction to a serious violation of international humanitarian law, the applicability of this rule is limited to international armed conflicts. The Syrian conflict, although it has involved insurgents from outside groups, most likely does not qualify as an international armed conflict but rather a non-international armed conflict. Additionally, neither the US nor the UK has been subject to an armed attack by Syria. It is fairly clear then that an armed intervention with the intent of punishing a regime for a breach of an international norm would be unlawful.

3. Aggression

If the use of force outside the UN collective security framework is unlawful, military intervention would constitute a breach of the international obligation for states to refrain from the use of force.[28] Further, it may even constitute an international crime—the crime of aggression, even though it could not be charged at the ICC until 1 January 2017, at the earliest.[29]  At the 2010 Kampala Review Conference, the Rome Statute of the International Criminal Court was amended to include the crime of aggression.[30] Under the new Article 8bis of the Rome Statute, the crime of aggression is defined as:

the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.[31]

Unlawful military force may constitute an act of aggression as defined by the Kampala amendments:

An “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.[32]

Acts which constitute aggression include the invasion or attack by the armed forces, military occupation, annexation by the use of force, bombardment, blockades, and attacks by armed groups under the control of a state.[33]

After looking at all these various provisions, it seems that neither humanitarian intervention, nor armed reprisals or countermeasures are lawful under present international law. However, the law is constantly evolving, and legal discussions have focused on whether it would be permissible to act outside the law, or if customary international law has indeed produced a new norm permitting armed intervention to relieve humanitarian crises.

Next:  Evolution of legal theory in practice.


[1] Organization for the Prohibition of Chemical Weapons, OPCW Member Mtates, http://www.opcw.org/about-opcw/member-states/ (last visited Mar. 4, 2014).

[2] Convention on the Prohibition of Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature Jan. 13, 1993, S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 317, art. 1.

[3] Id., art. 1, paras. 2–5.

[4] S.C. Res. 2118, U.N. Doc. SC/RES/2118 (Sept. 27, 2013).

[5] Id., para. 21.

[6] Al-Jazeera, UN deadlocked on Syria resolution, Al-Jazeera, Aug. 28, 2013, available at http://www.aljazeera.com/news/middleeast/2013/08/201382818144594213.html.

[7] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, para. 73 (June 27). The International Court of Justice confirmed the customary international law nature of the principle of the prohibition of the use of force expressed in Article 2(4) of the UN Charter.

[8] U.N. Charter art. 2(4).

[9] U.N. Charter art. 51.

[10] See Donald R. Rothwell, Anticipatory Self Defence in the Age of Terrorism, 24 U. Queensland L.J. 337, 339 (2005). In 1837 the British seized the Caroline which had been used by American rebels for armed raids on Canadian territory. The ship was set on fire and sent over Niagara Falls, resulting in the death of two US nationals. It was asserted by the US Secretary of State that  Britain would need to show “a necessity for self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” The second element would be that the use of force in self-defense must not be excessive, and “must be limited by that necessity and kept clearly within it.”

[11] Id.; see also United Kingdom, Parliamentary Papers Vol. LXI (1843); United Kingdom, British and Foreign State Papers Vol. 30 (193).

[12] See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, para. 92 (June 27). Although anticipatory self-defense was not discussed in the case, the International Court of Justice did not extend the right of self-defense under Article 51 of the Charter, a claim advanced by the United States, to enable the US to provide assistance to rebels in a non-international armed conflict.

[13] U.N. Charter art. 24(1), although primary does not mean exclusive. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 148, para. 26 (July 9).

[14] U.N. Charter art. 39.

[15] Id.

[16] U.N. Charter art. 42.

[17] U.N. Charter art. 1(1).

[18] See Sir Daniel Bethlehem, Stepping Back a Moment—The Legal Basis in Favour of a Principle of Humanitarian Intervention, Blog of the European Journal of International law, EJIL: Talk! (Sept. 12, 2013), http://www.ejiltalk.org/stepping-back-a-moment-the-legal-basis-in-favour-of-a-principle-of-humanitarian-intervention/.

[19] U.N. Charter Preamble.

[20] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Supplement No. 10, A/56/10, (2001) (“Draft Articles on State Responsibility”), art. 22.

[21] Id., art. 50; Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), A/8082, (Oct. 24, 1970), Principle 1.

[22] Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), A/8082, (Oct. 24, 1970), Principle 1.

[23] Draft Articles on State Responsibility, arts. 24, 25.

[24] Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law Volume I: Rules, International Committee of the Red Cross, 513 (Cambridge 2005). (“Customary International Humanitarian Law Rules).

[25] Id., Rule 145.

[26] Id. at 513.

[27] Id. At 515-18.

[28] Draft Articles on State Responsibility, art. 1.

There is an internationally wrongful act of a State when conduct consisting of an action or omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

[29] See Article 15 bis5(3): The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority”of States Parties as is required for the adoption of an amendment to the Statute.

[30] ICC Assembly of States Parties, The Crime of Aggression, RC/Res.6 (June 11, 2010) (“Kampala Resolution”), available at http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf.

[31] Id., Annex I. para. 2.

[32] Id.

[33] Id., paras.  2(a)–(f).

 

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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