Legality & Morality of April 2018 Strikes on Syria

Legality & Morality of April 2018 Strikes on Syria

Hunter Fitzpatrick
1 June 2018

Law & Morality - Mutually Inclusive?  Mutually Exclusive? Somewhere between?

Any time there are violent actions committed by countries, there comes attention.  When the countries involved include those towards the more powerful end of the spectrum, there comes worldwide attention.  It is no different with the April 2018 strikes by the United States, France, and the United Kingdom directed towards Syria, which is being propped up by Russia and Iran, in response to its chemical weapons attacks (CWA).  In order to determine the rightness of such actions, it is important to look at the environment in which those actions were taken, the justifications proffered, the standards of behavior, and the various lenses through which we look at all of these.  As an up-front warning, there will be images further on, detailing chemical weapons attacks, that some readers may find disturbing.

In order to tackle the first issue, a timeline of events becomes important.  There are at least 27 events that a U.N. investigative team has confirmed as coming from the regime of Bashar al-Assad, but some of the most important are:

• 23 July 2012 - Syrian Foreign Minister spokesman Jihad Makdissi confirms Syria has chemical weapons (CWs), claims they will only be used defending against "external aggression", not domestically - either way, this is in clear violation of international law.
• 23 December 2012 - First use of CWA, allegedly by Assad regime. 
• 21 August 2013 - Another CWA attack, outside Damascus.  US intelligence services confirm extensive regime preparation of the rockets used, and gather photographic evidence confirming effects on ground:
  
  
• End of August 2013 - President Barack Obama and British PM David Cameron move towards taking action against Syria for these strikes
• 10 September 2013 -  Despite having declared CWAs a red line before the Damascus CWA in August, the Obama administration does not respond, after losing the support of the British government.
• 2013-2017 -  Despite a UNSC resolution to form a plan to eliminate Syria's stockpile of chemical weapons, a declaration that all CWs had been shipped out of the country to begin the process of elimination by August 2014 (which garnered the OCPW a Nobel Peace Prize), and a declaration that all CWs had been eliminated, CWAs continue.  This includes at least five attacks during the mid-April 2014 period of "peak disarmament", finding further undeclared high-level chemicals several months after the supposed disarmament, and more attacks merely seven months after the supposed elimination of all CWs, many of which came in the form of barrel bombs, as pictured below:

• 20 January 2017 - Donald Trump assumes the office of the United States President
• 24 & 25 March 2017 - Sarin, then chlorine, used in Ltamenah, and specifically targeted a hospital, confirmed by OCPW
• 30 March 2017 - US Ambassador to the UN Nikki Haley says that Assad may have to remain in power in order to bring Syria back to peace, a stance which is later reversed after following events.
• 4 April 2017 - Another Sarin CWA by government forces, at Idlib province.  Later confirmed with "incontrovertible evidence" by OCPW.
• 6 April 2017 - Trump administration responds to also-declared red line of CWA by striking Shayrat airbase with 59 Tomahawk missiles

• 12 April 2017 - Russia blocks UN Security Council resolution condemning Syria's CWA
• 7 April 2018 - Another chlorine CWA by government forces, this one in Douma, again confirmed by OCPW despite it being barred access by Russian & Syrian forces.  Also confirmed by French sources.
• 9 April 2018 - Airstrike conducted at Tiyas Military Airbase, US denies and Israel declines to comment
• 10 April 2018 - During emergency meeting of UNSC, Russia again blocks any resolution to hold Syria accountable for its CWA
• 14 April 2018 - The US, UK, and French governments coordinate in order to strike precise targets: the Barzah Center for Research in Damascus, and also a chemical weapons storage facility and a general equipment storage facility, both in Homs.  Later, Russia demands an emergency meeting of UNSC in order to condemn the attacks, but only got the support of Bolivia and China.

Legality

One way of looking at this is through a lens towards Syria with a punitive bent.  For example, their admission of having chemical weapons for the express purpose of using them could well be utilized towards justification of conducting a strike in self-defense.  This self-defense concept has been included in many sets of laws, both national and international.  Some examples of the former can be seen in both of the Authorizations for the Use of Military Force (AUMF), or the second Article of the Constitution, both recently cited by SECDEF Mattis in regards to this issue.  Some examples of the latter can be seen in Article 51 of Chapter VII of the UN Charter itself.  Furthermore, the concept of the legitimacy of defense of others, as shown in the existence of the UN Office on Genocide Prevention and the Responsibility to Protect (emphasis added),  would certainly qualify in this case, as Syrian military forces are repeatedly massacring their unarmed civilians.  Another way to legitimize these actions for the UN is to approach from an international public order argument based on defending the credibility of prohibition of CWA.

However, another way of looking at these actions is through a lens towards the protection of international peace above all other things, including intra-national unrest or genocides.  Virtually all of the rest of the articles in Chapter VII that was previously cited begin their clauses with "The Security Council...", and given that the Security Council did not validate the actions taken before they were taken, this would seem to be a cut-and-dry illegal action.

This does, of course, take the legitimacy of the international legal system - via the United Nations in this case - to be assumed.  However, should we actually take that stance?  Consider several points:

• Saudi Arabia - which consistently ranks in the bottom handful of countries for women's rights, (134/145 in the World Economic Forum's report) was voted to serve on the UN's Women's Rights Commission for four years, 2018-2022.  It has also been largely responsible for many tragedies in Yemen's civil war and at home, yet was also voted to be reinstated on the UN Human Rights Council (because it was one of four countries from its region selected for four seats).
• Syria is currently embroiled with the metaphorical and very literal fallout of being a confirmed user of chemical weapons against their civilian population, yet is currently leading the UN Disarmament Council.  This was "merely" bureaucratic, as they are alphabetically next in the system, after Switzerland, but certainly does not speak to a greater strength in choosing candidates than the previous.
• In all of the recent examples regarding Syria, Russia has consistently vetoed any measure actually holding Syria accountable for its CWA, including a solid dozen times in April 2018, effectively neutering the UNSC from any actions.

Given all of these data points, I would accept one point, but simultaneously push for a different stance.  I will admit that the strikes were probably illegal, if based on a UN-centric view of legality.  Having said that, however, I push for a different stance to be adopted.  Simply put, it is only logical that there is no use for UN Security Council decisions.  There is not a single issue in the world that requires them.  Generally speaking, either there is something that Russia will veto, or something that the US, UK, and/or France will veto.  In the rare instance in which all parties agree about something important...there is no need for such a body to exist, as the existing governments would already work together.

This is not to entirely disregard any work that the UN itself can do - it can perform admirably in fact-finding missions (when it actually searches for facts) and in providing a platform for voices to be heard.  But, when it comes to actually engaging in decisive military actions, they have proven their abject, miserable failure to be effective time and again (especially as anything other than a "baby-blue flag of convenience for an American-led alliance").

As a final note, the Just Security website has compiled a rather intensive map of all countries' reactions to these strikes on Syria, which is offered simply as a data set, without further interpretation.

Morality

Clearly, there is a significant moral disruption when a government chooses to repeatedly attack its non-combatant civilian population with the most heinous weapons that have been developed in the history of mankind.  Setting aside that intra-national debate of morality and re-focusing on the inter-national issue of strikes instigated by other nations, we can turn to an understanding of the theories that shape much of the current understanding of moral or immoral military actions - just war theory.  One of its preeminent scholars, Dr. Michael Walzer, explains some of its main tenants - which generally break into those regarding jus ad bellum (justifications for war), and jus in bello (just ways of conducting war) - below:

These tenants that come out (and their appropriateness in this regard) are:
1) Just Cause - yes, because the strikes were conducted in order to protect innocents
2) Right Authority - debatable; not authorized by the UNSC who may or may not be the penultimate threshold, but jointly decided by legitimate states
3) Right Intent - yes, because it was conducted only after illegal and immoral actions were used to murder civilians with the intent to stop such actions
4) Proportionality -yes, because the strikes were limited to precise buildings, even conducted at night to reduce the chance of harming workers in those buildings (who arguably could have been legitimately targeted for their role in CWAs)
5) Last Resort - arguably, because softer measures of appeasement had not worked in the preceding years, and even a more limited strike in 2017 did not cause the behavior to cease
6) Reasonable Hope of Success - arguably, because the strikes should have damaged a CW system that was supposedly already limited after measures towards CW elimination, and perhaps the increased damage could have shown Assad that further use was not worth the consequences
7) Aim of Peace - yes, because the strikes were an exact number and duration, and did not target any capability of Syria to wage peace
8) Proportionality of Means - certainly, because they were conventional weapons with a limited blast radius and precise guidance systems utilized against structural targets, not chemical weapons chucked out of the sides of helicopters over civilians
9) Non-combatant Immunity - utmost, especially in light of the non-combatant targeting that these strikes were trying to cease

Conclusion

One way to simplify this is to look at arguments for and against.  There is a loud and somewhat popular legal claim against the strikes, although it is largely conducted by a body that cannot be held in the highest esteem.  Simultaneously, there is also a somewhat strong legal claim for the strikes, and it has motivated actual action.  On the other hand, there is a very strong moral claim for the strikes, based in protecting legitimacy of rules against CWA, future self-defense, and preventing the catastrophic suffering of civilians.  At the same time, there is not much of a moral argument against the strikes, as Syria has proven itself to be an immoral actor.

Given these facts, it would seem to behoove any legal-minded nation to recognize the uncertainty of proceeding, but also behoove any moral-minded nation to move forward to protect the innocent.