Published by The Lawfare Institute
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Published by The Lawfare Institute
Over the weekend, the United Kingdom joined the United States in warning publicly about Syria’s intentions regarding its chemical weapons. Foreign Secretary William Hague told reporters that the U.K. was concerned both about recent evidence that the regime could use chemical weapons against Syrian rebels or citizens, and about the possibility that these weapons could fall “into the hands of other people.” This comes on the heels of Leon Panetta’s statement last week that President Obama “has made very clear that there will be consequences if the Assad regime makes a terrible mistake by using these chemical weapons on their own people.” Virtually everyone agrees that a decision by Assad to use chemical weapons against rebels or civilians – or a failure to maintain Syrian government control over those weapons – would produce frightening outcomes. But what, precisely, would the U.S. Government’s justification be for using force in Syria to prevent these outcomes? Somewhat ironically, the U.S. may have a stronger legal case to act if Syria transfers (or loses control of) its chemical weapons stock than if Syria uses them against individuals within Syria. Let’s start with the case for using force in the event that Syria either loses control of its weapons or transfers them to a group such as Hezbollah. The Bush Administration famously – and controversially – asserted in its 2002 National Security Strategy that it reserved the right to use force pre-emptively, particularly where terrorists were attempting to acquire and use weapons of mass destruction. The Obama Administration’s 2010 National Security Strategy took a lower-key approach to use-of-force issues, avoiding any discussion of anticipatory self-defense. Nevertheless, the U.S. Government long has asserted that the UN Charter allows states to use defensive force in advance of an actual armed attack, as long as the threat is “imminent” and force is necessary. As we know from John Brennan’s Harvard Law School speech, the United States thinks states should broaden their definition of “imminence” to reflect the contemporary capacities and techniques of terrorist organizations. If Hezbollah obtained a stock of chemical weapons, the United States almost certainly would treat that as an imminent threat, given that Hezbollah previously has conducted attacks against the United States (most recently in the person of Ali Mussa Daqduq). But what if the United States sought to use force because evidence suggested that Assad was preparing to use chemical weapons against his own citizens? (This is the context in which Panetta made his statement.) Over at Opinio Juris, Julian Ku has argued that using force to stop such an attack would violate the Charter. But that can’t be the end of the story for U.S. government lawyers. Either those lawyers have advised the President that there is a legal basis for the United States to use force here, or they are now scrambling hard to figure one out. Former UK Foreign Office Legal Advisor Daniel Bethlehem has responded to Julian’s post, and I largely agree with Daniel’s thoughts about possible legal bases for external action (though I think he may overstate the acceptability of providing weapons to an organized rebel group in a civil war). I want to flesh out some of his options and offer another one: (1) The USG might believe that a Syrian use of chemical weapons is likely to affect neighboring (and friendly) states such as Turkey and Jordan. Depending on where Assad used the weapons and what the atmospheric conditions were, it might be the case that the chemical weapons could drift across national boundaries – and be deemed an armed attack on that neighboring state. This might set up a theory along the lines of “anticipatory collective self-defense,” particularly where the relevant neighboring states already have asked the United States to intervene on their behalf. This is, as far as I’m aware, an untested theory. (2) The USG might be contemplating an “anticipatory humanitarian intervention (HI)” argument, which also would be novel (particularly because the USG has not to date accepted the legality of HI without Security Council authorization). To the extent that HI has currency, it arises in the context of genocide, war crimes, or crimes against humanity (which might be met by the use of chemical weapons, depending on the facts). But HI usually is discussed where those offenses are manifest and ongoing. This would be a new form of HI – one that takes place in the context of an imminent use of chemical weapons (or of WMD more generally). (3) Life gets somewhat easier for USG lawyers if the United States chooses (as France has) to recognize the National Coalition of Syrian Revolutionary and Opposition Forces as the sole legitimate representative of the Syrian people. (The Washington Post is reporting that the United States might do so at the Friends of Syria meeting in Morocco on Wednesday.) In the wake of such recognition, the United States could rely on the consent of the Coalition to use force against Assad (and his chemical weapons) without running afoul of Article 2(4). But if a large number of states continue to recognize Assad as the sole representative of the Syrian people, this legal theory will prove highly contested. (4) NATO’s use of force in Kosovo was famous for its “factors” approach. Without trying to legally justify the air campaign, various NATO countries (including the United States) took pains to illustrate the campaign’s legitimacy by citing a long list of Milosevic’s bad acts. At the same time, the long list of factors (violations of previous Security Council Resolutions, failure to cooperate with the ICTY, hundreds of thousands of displaced persons, etc.) allowed NATO states to ensure they were setting a narrow precedent. The idea is that there are some truly critical, well-justified uses of force that states must take, notwithstanding the language of the Charter, but they are few and far between. The USG may believe (and probably rightly so) that it would receive little criticism if it used force to stop an imminent use of chemical weapons by a dictator against his citizens, notwithstanding international legal rules.
Ashley Deeks is the Class of 1948 Professor of Scholarly Research in Law at the University of Virginia Law School and a Faculty Senior Fellow at the Miller Center. She serves on the State Department’s Advisory Committee on International Law. In 2021-22 she worked as the Deputy Legal Advisor at the National Security Council. She graduated from the University of Chicago Law School and clerked on the Third Circuit.
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