Shivam Dwivedi, International Investment Treaties and Framework, Ministry Of Finance, Government of India
The Organisation for the Prohibition of Chemical Weapons (OPCW) released the first report by the organization’s newly formed Investigation and Identification Team (IIT), recently on April 8, 2020. The report focuses on chlorine and sarin attacks in Ltamenah, Syria, in March 2017 and concludes that the Syrian Government’s forces were responsible for three attacks involving the use of chemical weapons which resulted in the deaths of civilians. The attack was reportedly an attempt to recapture one of the remaining rebel strongholds close to the capital. This was not the first time that the Syrian regime has been reported to have used chemical weapons, as earlier in 2013, similar use of chemical weapons resulted in the death of over 1000 Syrians.
During a meeting at the United Nations (UN) in 2018, the then U.S. Ambassador Nikki Haley expressed regret regarding the deadlock in the Security Council with respect to the use of chemical weapons. This was possibly due to Russia’s categorical use of their veto power against resolutions to prevent holding the Syrian regime accountable for reported violations. Simultaneously, she commended the General Assembly’s endorsement of the creation of an international, impartial and independent mechanism to collect evidence for future prosecutions of crimes committed in Syria.
The debate on the lawfulness of unilateral military intervention is not un-envisaged, the first instance being in 2013 when President Obama seriously contemplated responding to Assad’s use of chemical weapons with the use of strikes. In light of the factual circumstances relating to the same, it is important to re-evaluate the legality of unilateral humanitarian intervention under the U.N Charter, rejecting institutional changes as a practicable way ahead to resolve humanitarian crises. It is also crucial to consider its legality within the framework of the responsibility to protect doctrine while tracing a justification for humanitarian intervention in Syria.
In a Lawfare article, it was highlighted that the U.S could only use force against Syria if the Security Council authorizes it, or if such exercise of power is taken in individual or collective self-defence. It was also pointed out that the U.S. Government has not recognized a right of humanitarian intervention under international law. However, by endorsing the responsibility to protect doctrine at the UN, the U.S government has in fact tacitly consented to recognizing humanitarian intervention as such a right under international law.
The concept of the Responsibility to Protect Doctrine is derived from the positive notion of “sovereignty as responsibility.” The concept does not undermine sovereignty but rather reinforces it. The Doctrine is applied specifically and only to four crimes and violations; namely genocide, war crimes, ethnic cleansing and crimes against humanity. The abysmal state of human rights, especially in lieu of repeated use of chemical attack against innocent civilians creates a compelling justification for humanitarian intervention by the states where such attacks take place.
Mr. Kofi Annan, as the Secretary General of the UN, in the Millennium Report of 2000 recalling the failures of the Security Council to act decisively and efficiently in Rwanda and the former Yugoslavia, put forward a challenge to Member States:
“If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica, to gross and systematic violation of human rights that offend every precept of our common humanity?”
Similarly, the responsibility to protect doctrine would justify unilateral humanitarian intervention in such cases of use of chemical weapons. Although there seems to be an absence of an unequivocal indication or authorisation by the Security Council with respect to the legality of a potential use of force under such circumstances, it is abundantly clear that the use of chemical weapons is a gross violation of the objectives on which the UN has been founded indicating the core objectives of the UN Charter itself.
From a technical point of view, two elements must be considered in addressing the responsibility to protect doctrine. The first element is an inclusion in the Articles on State Responsibility, adopted by the International Law Commission (ILC), of a provision that contemplates the right to adopt countermeasures by states other than the ‘injured state’ in situations where the wrongful act consists of a breach of an international obligation which is owed to the international community as being part of the ergaomnes obligations. These ergaomnes obligations are referred to in Paragraph 33 and Paragraph 34 of the judgment by the International Court of Justice in the Barcelona Traction Case of 1970.
The ILC’s codification of the law on state responsibility under Article 48(1)(b) makes it evident that the breaches of international law are not the exclusive concern of the state which suffers direct injury. On the other hand, it assumes that they are a collective concern of the international community as a whole and, therefore, any state other than the injured state(s) can be an agent for the enforcement of the international responsibility arising from the breach of such obligations. The situation in Syria and any other state where chemical weapons may be used in the future, arguably constitutes a serious breach of these obligations under peremptory norms of international law justifying humanitarian intervention.
Therefore, a tactful military response in such a situation should be legitimate and proportionate to the threat of further humanitarian disaster posed by regimes/ actors using such chemical weapons. The proportionality doctrine as established in para 243 of U.S.A v. Nicaragua requires the use of force to be limited to cases where it is absolutely necessary in order to protect the life and security of innocent victims. States also need to ensure that the legitimacy of the international legal system is not undermined by permitting such uses of force to exceptional circumstances such as in lieu of unacceptable atrocities. If the use of force exacerbates the plight of the victimized population, it would be unreasonable and ultra vires the objective of enforcing fundamental rights.
Would Unilateral Humanitarian Intervention be permitted under the U.N Charter?
Contrary to the popularly held notion that unilateral humanitarian intervention is not permitted under the UN Charter, in an Article entitled “Is Unilateral Humanitarian Intervention Compatible With The Charter”, it was argued that speaking de lege ferenda, principles of interpretation or customary international law could, in the future, make it possible for intervening states to bypass the Security Council.
Other influential scholars have also argued that although NATO’s intervention in the past in various instances constituted a breach of the U.N Charter, such breaches could be conceived as evidence of an emerging doctrine on humanitarian intervention that legitimizes the use of force in order to impede the commission of atrocities on the face of failure of the Security Council due to procedural obstacles during times of crises (Cassese 1999: 23). In fact, scholars have counter-argued that the UN’s inefficiency in Rwanda and Bosnia Herzegovina have been compared to NATO’s air strikes on Bosnian-Serb forces which have been credited for resulting in Dayton Peace Talks.
It is significant to note, that opponents of unilateral intervention have themselves conceded to the failure of the Security Council in preventing humanitarian disasters resulting from the use of veto power. As a consequence, institutional and procedural reforms have been advocated in order to respond to future catastrophes. With all due consideration, it is true that institutional changes are impracticable given the procedural requirement of unanimity among the permanent members of the Security Council. Under the prevailing circumstances, there is no evidence which suggests that such action would be agreeable to the permanent members. Given the impartibility of achieving institutional changes at this juncture, speaking de lege ferenda, a creative reading of the Charter that advocates unilateral intervention for just humanitarian causes in the future or through changes in customary international law may be required.
Opponents to unilateral humanitarian intervention have also cited the possibility of abuse as a ground for considering unilateral intervention as a lawful act. However, the mere possibility of abuse does not seem to be a sufficient justification for outlawing it. Drawing an analogy with the right to self-defence, although it has been abused over time, it is still a right that is essential for a state’s survival and existence and the mere possibility of abuse would not hypothetically justify abrogating Article 51.
It is regrettable that opponents of unilateral humanitarian intervention seem to provide vague alternatives to resolve concerns emerging out of the current framework. If the international community fails to reform the UN Security Council and act during situations where there is a use of chemical weapons, unilateral humanitarian intervention may be legalized either by developing customary international law or by re-interpretation of the Charter through practice in order to ensure that the attacks causing devastating human catastrophe are not repeated in the future.
Shivam Dwivedi is a Legal Associate with the International Investment Treaties and Framework (IITF), Investment Division, Department of Economic Affairs, Ministry of Finance. You can find him on LinkedIn.
Views are personal.
Photo Credits: Aaref Watad/Twitter
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