Unilateral US Action in Syria is Illegal

Unilateral US military action in Syria, even with full US Congressional authority, is illegal.

action-unilateral-syriaThe world’s attention is now focused on whether the United States Congress will grant authorization to President Barack Obama to conduct “targeted military strikes” in Syria, purportedly because the Syrian government crossed President Obama’s “red line.”

While obtaining US Congress authorization may legalize military strikes that President Obama conducts in Syria within the US legal system, such authorization has no bearing on the legality of US military engagement in Syria from the standpoint of international law.

Thus, even with 100% backing from Congress, and assuming the American public authorizes Obama to conduct air strikes on Syrian military targets, such actions would remain illegal within the framework of international law.

The international law framework on the use of force

(a) Principle of Non-Use of Force

The United Nations Charter is the legal document establishing the UN as the international organization with the stated goal of taking

 “effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”

Pursuant to this goal, all members of the UN vowed in Article 2(4) of the Charter to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”

All UN member states, by virtue of their membership, have agreed not to take, or even threaten to take, any unilateral military action against any other state. This is rooted in the fundamental principle of sovereign equality, or the understanding that each state is equal and independent, with the right to govern its people, regardless of the political system or ideology the state adheres to, without interference from other states.

To underscore the importance of sovereign equality and the non-use of force, the UN approved the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States on October 24, 1970, which reiterates that “the strict observance by States of the obligation not to intervene in the affairs of any other State is an essential condition to ensure that nations live together in peace with one another.” This Declaration clearly sets forth that:

“No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic or cultural elements, are in violation of international law.

(b) Exceptions to the Principle of Non-Use of Force

Under international law, there are two exceptions to the rule of non-interference and non-use of force. The first is the inherent right of a state to individual or collective self-defense in the event of an armed attack. The second is recourse via the UN system.

For the UN to properly address threats to international peace and security, UN member states agreed, via Article 24 of the UN Charter, to “confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under their responsibility the Security Council acts on their behalf.”

To fulfill this mandate, the UN Charter grants the Security Council the authority to call upon members of the UN to impose economic sanctions on parties concerned. Where more persuasive action is needed, the Security Council also has the power to take actions deemed necessary to maintain or restore international peace and security, including taking military action.

As a member of the UN and a signatory to the UN Charter, the US is bound under international law to respect all the terms of the Charter, including the procedure for enforcing measures on states that threaten international peace and security.

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Since the Syrian government has not and is not about to attack the US, the US obviously cannot invoke the right to self-defense. The only action that can be taken against Syria is one that has been approved by the UN Security Council, and the US is prohibited from unilaterally engaging in any military action against Syria. Notably, the US has already violated international law, specifically Article 2(4) of the UN Charter, when President Obama and Secretary of State Kerry threatened to use force against Syria in their televised speeches.

Importance of international law framework

But why exactly is it important for the US to abide by international law?

The UN Charter was signed in San Francisco in the destructive aftermath of World War II to unite the world and prevent the occurrence of another world war and save “succeeding generations from the scourge of war… and for these ends… to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest.”

The UN and its organs were founded at a time when the world realized how dangerous it was for states to have unfettered power to use force on other states. The UN thus seeks to regulate the use of force by providing a legal framework to govern the use of force that would be binding on the international community.

The UN Security Council has the authority to deal with situations perceived as threatening international peace and security. The framers of the UN Charter recognized that the five states chosen to be permanent members of the UN Security Council – China, France, the Union of Soviet Socialist Republic (now Russia), the United Kingdom and the US – were the world’s most powerful states, with both the economic and the military capacity to start another world war.

While inclusion in the Security Council serves to cement the status of these five states as world military powers, it also limits the individual power of these states to engage in unilateral military actions, as each permanent member is given the right to veto any proposed use of force that any of them disagree with.

Any decision to engage in the use of force must have the unanimous backing of all five of the permanent members of the UN Security Council. Requiring a unanimous decision also serves to counteract against suspicions that a military intervention is undertaken to serve a particular personal state interest.

In the case of Syria, it cannot be denied that Russia and China, the two permanent members advocating caution before taking military action against Syria, have provided voices of reason and served to balance out interests in a highly polarized debate.

A unilateral military action undertaken by the US without a mandate from the UN Security Council would severely damage the very authority of the UN Security Council as the international body with the primary responsibility for the maintenance of international peace and security. This undermines the UN system’s regulations on the use of force and sets a very dangerous precedent on how states can work around the UN Security Council in employing unrestrained use force by invoking humanitarian grounds to justify such attacks.

The views expressed here are the author’s own and do not represent the official views of Gisha.

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Karen Pimentel Simbulan is a lawyer from the Philippines, taking up further studies on International Conflict Management at the Willy Brandt School of Public Policy in Germany. She is currently an international law research volunteer at Gisha – Legal Center for Freedom of Movement, a human rights organization in Israel advocating for the freedom of movement of Palestinians in the Occupied Territories. 

  • Jeane Peracullo

    Excellent article which lays out another reason why American politicians should abandon their mentality that USA is the world’s avenger.

  • SteveAbbott

    The point that is not sufficiently well emphasised here, is that while a US strike or even a threat of military force against Syria is illegal under international law, such a strike would actually make a retaliatory or defensive strike against the US by Syria, be considered both morally and legally justified. Let me emphasise that I do not consider any such strike to be morally justified under any circumstances, but that is precisely why such a strike by the US against Syria, or any threat thereof, is not morally or legally justified. Furthermore, if you can find sufficient people in the US, who feel justified in overriding this absolute principle, then you will surely find sufficient in the rest of the world, who would feel the retaliatory strike is also justified. Do unto others…