Syria: a legal basis for war?

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For several years now, the attention of the world has been on the Middle East and in particular the tense situation between the Opposition & the now widely recognised illegitimate government of Bashar Al-Assad in Syria. Now, Western nations such as the US, France and the UK & Gulf nations such as Qatar, Jordan & Saudi are either arming the opposition, providing training or preparing for possible intervention, but would this be legal under International Law?

We must first look to Chapter VII of the United Nations Charter which sets out the UN Security Council’s powers to maintain peace in the International Community. This allows the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and nonmilitary action to “restore international peace and security”. The UN, and NATO have both been reluctant to intervene on a large scale after the somewhat botched mission in Libya. Also, the condition that a threat to the peace of the International Community may not have been reached yet. However, if you look at missile strikes by Syria on other countries, such as Turkey, then it becomes clear a threat may be posed.

Many have all warned against “catastrophic” military action by the West on Syria over fears that it could herald a new “Cold War” and set the most volatile region in the world “on fire”. And considering Russia is vehemently standing by Assad, it is clear that this should worry you. This is not help by their hypocrisy given they don’t think anyone should ‘meddle in the internal affairs of other nations’. I suppose arming Assad isn’t meddling, is it, Putin?

It is, therefore, consequently clear, that nobody is condoning global military action—yet— and it is clear that a UNSC Resolution authorising an attack is unlikely to be drawn up and agreed on because of Russian opposition. China has gone quiet recently so there could be a chance it would abstain.

In terms of the legality of an attack on Syria, especially now that chemical weapons are purportedly being utilised against the Syrian people, it would be complicated but not impossible for any invading nation to say “we are acting legally”.

Article 51 of the UN Charter provides for the right of countries to engage in self-defence, including collective self-defence, against an armed attack. This wording is of particular importance, note the phrase “against an armed attack”, Syria has not attacked the West in any way and this raises the question could the West act in self-defence against Assad? Turkey, however, has had numerous, and wholly legal, opportunities to declare war on Assad’s regime. This would consequently trigger collective NATO action.

Interestingly, the Charter has been cited by the US during the unsanctioned Vietnam War when they said “although South Vietnam is not an independent sovereign State or a member of the United Nations, it nevertheless enjoys the right of self-defense, and the United States is entitled to participate in its collective defense” and to this effect the West & NATO allies also enjoy the right of self-defence and it is therefore implied that an attack against Syria, although it would most certainly mean possible regional or global reprisals, would be legal.

The Law of Armed Conflict states that the following principles must generally be met to justify an armed attack;

Military necessity – the requirement whereby a belligerent has the right to apply any measures that are required to bring about the successful conclusion of a military operation and which are not forbidden by LOAC.
Distinction – the requirement to distinguish between the civilian population and combatants and between civilian objects and military objectives and to direct operations only against combatants and military objectives.
Proportionality – the prohibition of an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Humanity – the prohibition of the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes.
Precaution – in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.
Weapon prohibitions – the prohibition of weapons that cause superfluous injury or unnecessary suffering.

The use of force in the protection of others can be justified and is set out in ROE (which is available here:http://www.iihl.org/iihl/Documents/ROE%20handbook%20ENG%20May%202011%20PRINT%20RUN.pdf); image

To further complicate the issue President Obama has recently declared his red line ’has been crossed with the use of chemical weapons’ and has warned of a ‘response’. He has since decided to arm the Syrian opposition in order to shift the balance of power & secure their survival.

In conclusion, an attack by the West or any other nation would probably be legitimate for one main reason. This being that Syria is conducting armed attacks under the plain meaning of Article 51 through striking its border countries, such as Turkey, on numerous occasions.

On a final note, none of us, whether we are next door to Syria or on the other side of the world should become complacent as to the threat that Assad provides to not only his own people, but the world at large. Especially with Russia on his side. I have no doubt that in the coming months countries around the world will be deciding whether they would act with the US, who is tipped to be the one who will probably start a war (as usual), defend Assad or simply stay on the side-lines in any conflict between Syria & it’s ‘colonial aggressors’.

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