Attacking Syria Would Violate International Law

By: Contributor
6 September, 2013

By Allen Ferguson

In the current round of frenzied debates in Washington about whether the United States should attack Syria, a question conspicuously absent is whether such an attack would violate international law. This is an important question because principles of international law, as well as institutions established to apply them, are the world’s only systematic framework for evaluating the rightness or wrongness of going to war, as well as the rightness or wrongness of how wars are fought. They are the only framework we have for keeping the world from descending into what U.S. Supreme Court Justice Robert Jackson, serving as chief American prosecutor at Nuremberg, described as “a system of international lawlessness” in which “periodic wars . . . are inevitable.” For the reasons outlined below, an attack by the U.S. against Syria would be illegal under international law. That realization should guide Congress and the President in deciding what to do.

The UN Charter — probably the most universally adopted and comprehensive treaties the world has ever known — states both the goal of international law concerning war and peace and the basic rules for pursuing that goal. The goal, in the Charter’s opening words, is “to save succeeding generations from the scourge of war.” To achieve that goal, the Charter requires all members to “settle their international disputes by peaceful means” and to “refrain in their international relations from the threat or use of force” against any nation. The Charter makes only two exceptions to the non-use of force principle: (1) self-defense “if an armed attack occurs against a Member;” and (2) participation in a UN Security Council-approved military action.

No one maintains that either exception to the non-use of force principle is present in the Syrian situation, for Syria has not launched an armed attack against the U.S. or its allies (nor is such an attack imminent), and the Security Council has not approved armed intervention. Therefore, if the U.S. proceeds to attack Syria, it will be breaking (once again) the solemn promises it made in the Charter to resolve disputes peacefully and refrain from the use of force. Such a violations of the Charter would violate international law, for the Charter, more than any other single instrument, sets forth the international law of war and peace today.

There seems to be an unstated assumption in the media and among our political leaders that force is the only possible way to deal with Syria’s alleged use of chemical weapons. But there are international institutions that could address this crisis, which are being ignored. The Charter establishes the International Court of Justice (“World Court”) and says legal disputes between nations should be referred to it. The U.S. and Syria could submit their dispute to the World Court, a legal and peaceful means of resolution, rather than the U.S. using an illegal and violent one. Another forum, which would not require Syrian consent, is the

International Criminal Court (“ICC”) which has jurisdiction over crimes against humanity and war crimes, including chemical weapons use, and can criminally prosecute violators, including heads of state. Assad, if he has used chemical weapons, potentially could be prosecuted before the ICC. Yet, although a majority of the world’s nations have ratified the ICC treaty, the U.S. has not, and has not sought to use the ICC in the Syrian crisis.

Even assuming the Syrian regime has used chemical weapons (a matter in dispute), if the U.S. strikes Syria, it will be violating a fundamental principle of international law in order to punish and deter the violation of a different principle of international law, unilaterally arrogating to itself powers reserved to the Security Council and almost certainly causing homicide.

By the same token, an attack by the U.S. would be an attempt to use violence to stop violence, a dubious proposition for, as Martin Luther King stated, “violence is . . . a descending spiral, begetting the very thing it seeks to destroy.” The Middle East is particularly susceptible to the descending spiral of violence, given its religious, national and ethnic tensions and the fact that numerous parties there are armed to the teeth, largely by billions of dollars worth of U.S. weapons. Further armed conflict in the Middle East would affect, and could threaten, the entire world.

As John F. Kennedy warned in his 1961 speech to the UN General Assembly, “Mankind must put an end to war — or war will put an end to mankind.”

Please contact your representatives in the House of Representatives and the Senate immediately and urge them to vote against any military strike against Syria because, among other reasons, it would violate international law.

Bio: Allen Ferguson holds a law degree from Catholic University of America and a certificate in public international law from the Hague Academy of International Law. He has taught a course he designed, Law and Ethics of War and Peace, at the UNM Law School, UNM Honors Program, and UNM Peace Studies Program.

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