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A Tomahawk Missile On The Way to Syria. Was it legally fired?

The Trump Strike On Syria And International Law.

Contradicting his earlier words on dealing with Syria, President Trump last night launched nearly 60 Tomahawk Cruise Missile against Syria’s Shayrat military airbase. The attack was (supposedly) in retaliation for Syria’s Sarin nerve agent attack that killed scores of people, including many women and children. The Shayrat airbase is believed to have been the home base for the Syrian planes involved in this heinous breach of international law.

The Trump Administration’s strong response was also in contrast to its prior softening of our position toward Assad which arguably emboldened Syria to launch the chemical attack in the first place. Given our own potential culpability in encouraging the chemical attack I think it appropriate to ask what international law says about this use of force and whether it was legal under international law.

Probably the most fundamental principle of international law is stated in Article 2(4) of the United Nations Charter:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state

This requirement is not aspirational. The use of the word “shall” makes it a mandate.

Of course the U.N. Charter does provide for exceptions. There are two circumstances when nations are justified in using military force. First, when the U.N. itself authorizes force, second, in either individual or collective self defense.

Force Authorized By The United Nations.

Article 43 of the U.N. Charter permits the use of force in circumstances when the United Nations itself calls for it.

All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

The United States has claimed authority under this provision before. In the first Persian Gulf War (in 1991) Security Council Resolution 678 authorized member states to use “all necessary means” to remove Iraq from Kuwait. In the Second Persian Gulf War (in 2003) the United States claimed Security Council Resolution 687 and Security Council Resolution 1441 combined to authorize use of force against Iraq for its failure to follow U.N. mandates to dismantle its weapons of mass destruction programs.

There have been a number of Security Council Resolutions pertaining to Syria’s use of chemical weapons against its people. Probably the most powerful of these, Security Council Resolution 2118, declares the Syrian use of chemical weapons “a threat to international peace and security” and condemned “in the strongest terms” the Syrian use of chemical weapons. Similarly, Security Council Resolution 2209 affirmed that “the use of chemical weapons constitutes a serious violation of international law” and reiterates “that those individuals responsible for any use of chemical weapons must be held accountable.”

However, neither of these provisions authorized force. Instead, they suggested the possibility that the Security Council might authorize force in the future. They both stated that the Security Council “decides in the event of future non-compliance . . . to impose measures under Chapter VII of the United Nations Charter.” Chapter VII relates to U.N. responses to breaches of the peace, and while it includes Article 43 discussed above, it also includes other provisions. Further, it is clear from these provisions that use of force is not authorized under Article 43 until such time as the Security Council actually does “impose measures under Chapter VII,” which to date has not happened.

Context is also important. At the time of the Security Council Resolutions discussed above the United States was pushing for authorization to use force, but could not get a consensus to do so. The compromise Resolutions passed were strongly worded condemnations, but they deliberately avoided any language that could be interpreted as authorizing force. Given that history, these resolutions cannot be used to declare that the United States attack on Syria last night was permissible under international law.

Force Authorized For National and Collective Self Defense.

Article 51 of the U.N. Charter (also part of Chapter VII) makes clear that nations have the right to defend themselves against an attack by others:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.”

The collective defense provision alone authorized the United States to assist Kuwait in its liberation from the Iraq’s 1990 invasion of it. Likewise, the United States was arguably authorized to take self defense actions against Afghanistan after a terrorist organization supported by that nation’s Taliban government launched the 9/11 attacks.

However, there can be no credible claim that the United States acted in self defense, collective or individual, in the strike against Syria last night. While we could be seen as defending Syrian rebels, the Article 51 authority extends only to “when an armed attack occurs against a Member of the United Nations.” In fact, Article 51 could (in theory) be used by Syria and Russia to collectively retaliate against the United States for the attack on Syria.

What This Attack Was Really All About.

For all the drama, this attack against a single airbase, is not very militarily significant. It will not fundamentally alter the balance of military power in the multi-sided battle of the despotic Syrian regime vs. Syrian rebels vs. ISIS terrorists. Unless followed up with more significant action, this attack was more for show than effect.

First, Trump needed to back off his own clear mistake of encouraging this chemical attack by expressing tolerance for the continuation of the Assad regime. This was an effort to cleanse the “Blood On Our Hands” that I wrote about yesterday. Trump belatedly realized the clumsy efforts of his administration had sent Assad the wrong message, and Trump tried to correct his blunder last night.

Second, Trump has been desperate for anything to distract from his Russia-gate problems. He has tried any numbers of absurd distractions, to include false allegations that Obama wire tapped him. What better way to rebut the core allegation that he is overly chummy with Russia and Putin than by attacking a Russian ally? For Trump this attack on Syria undermines the allegations against him.

As convenient for him as these reasons may be, they do not serve as a basis under international law to attack another sovereign nation.

Update: For an analysis of whether the Trump airstrike violated American law, click here.

Written by

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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