The Military Intervention in Syria by the United States, France and Britain

Introduction

Following the exorbitant loss of life of both civilians and participants in the first and second world war, the United Nations drafted a charter, by which adherence to the provisions under the charter would take member states in the direction of maintaining the international peace so desperately sought by the United Nations. States who disobey the laws set out in this Charter run the risk of undermining all that the Charter set to attain and often when these rules are violated horrible outcomes eventuate. This essay will discuss and critically evaluate whether the interventions made by the United Kingdom, France, and the United States are justifiable under international law, and determine if there are obligations on warring parties who are engaged in conflict in populated areas on both a domestic and international level and finally establish if the war crimes and crimes against humanity committed in Syria can be tried before the International Criminal Court. In order to elicit the most recent and relevant set of facts relating to the Syrian scenario and to better substantiate our points, we will be making use of various internet sources, as well as books and journals, and make reference to different case laws.

Was the military intervention in Syria by the United States, France, and Britain justified under international law?

The initial aspect of our legal opinion relates to the military intervention by the United States, France, and Britain and whether these interventions were justified under international law. Our first focus will be into the United States (hereafter referred to as the U.S) military intervention. Intervention on part of the U.S can be traced back to late 2011 when then-president Barack Obama made a formal declaration for Syrian president Bashar al-Assad to resign, stating that it would be for the benefit of the people of Syria. President Obama consequently issued sanctions by freezing the assets of the Government of Syria subject to U.S jurisdiction and further prohibited U.S persons from engaging in any transaction involving the Government of Syria. In August of 2012, President Obama warned Assad’s regime that the use of chemical weapons on the citizens of Syria would be considered a red line and prompt the US into intervening with military action. A year later the Syrian Government used chemical weapons to brutally kill civilians on 21 August 2013 when trying to attack rebels on the outskirts of Damascus, killing nearly 1500 civilians with many of the deceased being children. The chemical attack built pressure on President Obama to act on his ‘red line’, however throughout the year of 2013, he could not manage to gain approval from the American Congress to approve his strikes based on Obama’s proposal lacking any support. However, in the September of 2014, the president approached congress with a new approach to arm and train the rebels in Syria to fight the Islamic State. The U.S also carried out airstrikes against the Syria in a combined effort with the United Arab Emirates, Saudi Arabia, Qatar, Bahrain, and Jordan. In the April of 2017 another chemical attack was carried by, who the U.S government believes to be, Assad’s regime. Turkish officials believed that Sarin-banned nerve gas was used in these attacks. The attack was believed to have killed over 80 civilians. Newly elected President Donald Trump condemned the attack as horrifying and inhumane. In response to these attacks, President Trump ordered military action against the Syrian Government in the form of airstrikes. The airstrikes were targeted at an air base where it was believed that the chemical attack was launched from. This attack however was sharply criticized by Russia and Iran. Following a suspected chemical weapon attack in April of 2018 aimed at the rebel stronghold in Douma, the US again ordered airstrikes into Syria. Targets were struck in Damascus, Homs, and elsewhere in Syria. The attacks collaborated with both the British and the French governments. These attacks were strongly opposed by both Russia and Iran, both allies of Syria, and both nations warned that there would be consequences to these actions. The Russian ambassador to America found the attack to be insulting the President of Russia and warned that the attacks were unacceptable and inadmissible.

Our next focus is into the military intervention taken by the British government. The United Kingdom’s (hereafter referred to as the U.K) initial involvement in taking action in Syrian came in the form of a failed motion to authorize strikes, in the British House of Commons (parliament) towards the end of August in 2013 responding to the chemical attacks affecting civilians in Syria. In the November of 2015 the U.K, together with France, co-sponsored a French-drafted United Nations Security Council resolution. This resolution, which was passed by the Security Council, urged members of the United Nations to take military action against the Islamic State. This paved the way for the British airstrikes into Syria in December of 2015, aiming at oil fields in eastern Syria. In August of 2016 photographs taken in June of that year were published showing British Special Forces guarding the perimeter of the New Syrian Army base in Syrian’s Homs province. This indicated that the U.K had intervened both with airstrikes into Syria as well as the injection of armed forces. In April of 2018, together with the United States and France launched an attack on chemical weapons sites in Syria. The U.K’s Prime Minister, Theresa May stated: “We would have preferred an alternative path. But on this occasion there was none.” She went further to state that the attacks were for the purpose of deterring the use of chemical weapons by the Syrian government and not about regime change or intervening in a civil war.

Together with Britain and the United States, France too insisted for that Syrian President Bashar al-Assad to step down from the presidency. France’s intervention into Syria can be traced back to 2012 when France provided opposition forces with non-lethal military aid. Following the Assad Government using chemical weapons in the area near Damascus, Paris called for military intervention but gained no support from the United States. In September 2015 France begun airstrikes in Syria, however, these were on a small scale as to prevent strengthening the hand of President Assad by striking down his enemies. Following the 13th of November Paris terror attacks, France significantly intensified the airstrikes into Syria. France cited this was an act of self-defence under Article 51 of the United Nations Charter. These attacks were closely coordinated with the United States military. In that same month, France also drafted a United Nations Security Council resolution urging on fellow members of the United Nations to take all necessary measures to fight the Islamic state. The draft had been passed by the Security Council. In April of 2018 together with the United Kingdom and the United States, France aided in the launching of over 100 missiles into Syria, at what they believed to be Syrian chemical weapons facilities. Following the aftermath of the missile strike the French government widely praised the efforts of the pilots.

According to article 2(4) of the United Nations Charter, member states are compelled to, in their international relations, refrain from the threat or use of force against the territorial integrity or political independence of any state. From the outset, it seems that this article would prohibit any use of force between member states of the United Nations. Furthermore, Article 2(3) requires that all disputes be settled in a peaceful manner as to not endanger international peace and security. With the backdrop of the aforementioned provisions, it is then necessary to determine whether the military intervention by the United States, Britain, and France was justified under International Law. There are only two limited circumstances when a state can lawfully use force: firstly with permission of the United Nations Security Council and secondly in self-defense. In this instance, the Security Council had not yet approved the strike. Article 51 of the UN charter makes provision for the inherent right to self-defense if an inherent attack on a member state occurs. The meaning of the article is clear, the right to self-defense arises if an armed attack occurs. As this right is an exception to the prohibition on the use of force in Article 2(4) and as such should be narrowly construed. The U.S, U.K and France claimed to be acting in individual self-defense against terrorist groups Al-Qaida and ISIS originating in Syria as well as collective self-defense. France’s claim to self-defence is largely due to the terror attacks which took place in early 2015 where two masked gunmen walked into a satirical weekly newspaper killing 12 people. The gunman belonged to a Yemeni branch of Islamist terror group al Qaeda. The United States set out a wide doctrine of self-defense and was of the view that it was lawful to use force in self-defense against non-state actors in a state that had not taken part in their attacks on Iraq (Iraq had written to the United Nations asking for help as Iraq said that ISIS had established a safe haven outside its borders). The United States claimed a right to act in collective self-defence of Iraq, and also in individual self-defense to address terrorist threats from Al Qaida elements in Syria. In a letter to the United Nations Security Council following terrorist attacks in Europe the United Kingdom said that ISIS was actively engaged in planning and directing attacks against the UK from Syria. In accordance with article 51, it reported that it was taking necessary and proportionate measure against ISIS in Syria. The states in question had relied on the unwilling or unable doctrine, which allows a state to use force in self-defense against a non-state actor in a territorial state without that state's consent so as long of the victim state determines the territorial state is unwilling or unable to effectively address the threat posed by non-state actors. However, there was no inclination on part of Syria that it was unwilling to take action against ISIS. Syria insisted it had always been willing to cooperate with other and had on repeatedly called on the international community to cooperate with it. It can be said that the United States had been the unwilling party to cooperate with the Syrian government.

As the attacks had not been consented to by Security Council nor had they been any attempt to cooperate with the Syrian government on eradicating the issue at a smaller level other than airstrikes it is necessary to consider whether the claim for self-defense was justifiable. The use of self-defence is only permitted if an armed attack occurs or is imminent. Aside from the terrorist attacks on Paris in early 2015, no armed attacks have been taken against the UK, US, and France. Albeit that the attacks on France had come from individuals linked to terrorist groups, the retaliation from France cannot be considered proportionate. The airstrikes could thus be seen as a manner in preventing Syrian forces from using chemical weapons as opposed to self-defence. It is therefore our view that the airstrikes were not justifiable under international law. The crux of the United Nations charter was built on the need for states to settle disputes without running to conflict. However, the conduct by these nations goes against the very core of article 2(4) of the UN Charter. It now becomes harder to hold other states accountable for their actions where the so called ‘superpowers’ of the world can manage to do as they please with not even a slap on the wrist. Continued ignorance of the rules set out in the UN Charter could see the degradation of Article 2(4) and in turn have catastrophic consequences. It is the very first line in the United Nations Charter which states the purpose is “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”. This ideal faces a serious threat if the leading countries are given this freedom to do as they please, unaffected by consequences.

What are the obligations of warring parties engaging in armed conflict in populated areas and do these obligations change in the case of non-international armed conflict?

In times of conflict, or war to be specific (both international and civil), forces are often deployed in areas which are highly populated with civilian life. It is probable that civilians will be caught between the conflict and unduly suffer as a result. This section will examine the if there are obligations imposed on warring parties who are engaged in armed conflict in populated areas on both a national and international level.

Warring parties are required to take any precaution necessary to minimize harm to civilians and civilian objects. This requirement stems from the fact that under no circumstances may civilian and civilian objects be the target of attacks. The idea of there being obligations placed on warring parties can be traced back to the Geneva Convention of 1949 where Convention IV and Additional Protocol I contain general rules for the protection of all civilian inhabitants of any territory. Article 51(2) of Protocol I states that the civilian population cannot be the object of attack. Acts or threats of violence for purposes of spreading terror among civilians are strictly prohibited. Aside from immunity from direct attacks, civilians are afforded protection from certain other hostilities in a number of ways. These instances are contained in Geneva Convention IV from Articles 13 to 26. These articles detail rules on the establishment of hospital and safety zones; rules on protecting wounded and sick; and those evacuating from besieged or encircled areas ; rules on protecting hospitals and hospital staff as well as any land and air transport used for the removal of the wounded and sick civilians, the infirm and maternity cases, and for the transport of medical personnel and equipment. Consignments of medical supplies, food and clothing are also to be permitted through occupied territory. Families and children are accorded special protection, this ensures children under fifteen, orphaned or separated from their families as a result of the conflict are not to be left to their own resources; parties to the conflict are to help facilitate family reunions and the transmission of family news amongst those dispersed or separated from their family as a result of the conflict. Furthermore Common Article 3 defines the law relating to non-international armed conflict. In terms of Common Article 3 civilians may be detained in non-international armed conflicts, however it also enshrines basic protection for such persons detained in these conflicts. Such protection includes a prohibition on murder and other forms of violence to life including mutilation, cruel treatment, and torture, outrages upon personal dignity, and the taking of hostages. As illustrated there exists authority, the mentioned articles of the Geneva Convention, of which states involved in conflict need to abide by in order to protect the civilians and the objects of civilians as well as other factors relating to medical supplies and safe zones in times of conflict. It is evident that the Geneva Convention relative to the protection of civilian persons in times of war was instrumental in enshrining protections for civilians in occupied territory as well as the protection of persons who find themselves in the hands of an adverse party.

Non-international armed conflicts refers to a situation of violence that involves an armed confrontation between government forces and one or more organized armed groups or between such groups themselves, occurring on the territory of a state. In situations where non-international armed conflict occurs, International Humanitarian law applies. This will then set limits on how parties may conduct hostilities and it protects all persons affected by the conflict. Article 3 of the Geneva Convention does not utilize the term ‘civil war’, it instead refers to armed conflict not of an international character.

Syria is at present, engaged in a series of armed conflicts. These armed conflicts can be separated into both international and national conflicts. On the international front, the Syrian Government faces conflict against the United States-led international coalition, whereas on a the domestic front the Syrian Government is in conflict with rebel forces adamant on overthrowing the al-Assad regime. Being in a state of conflict against opposition on an internal and international level, Syria is bound by Humanitarian International Law. The provisions of the Geneva Convention thus find application to civilians in populated areas. It is evident that the Syrian Government chose to dismiss these articles in the use of its chemical arsenal on civilians when attempting to attack the rebellion forces. Syria grossly infringed on the rights of civilians under the Convention.

Can war crimes and crimes against humanity committed in Syria be tried before the International Criminal Court?

The International Criminal Court (ICC) is an institution that remains relatively young. It is the world’s first permanent international criminal tribunal. The idea gained attention following World War II after the brutality encouraged the international community to initiate a variety of legal mechanisms in an attempt to punish those who violate the law. The intention of the international community was to create a credible, fair, and effective institution with the means to investigate alleged perpetrators of mass crimes committed during armed conflict. The ICC was founded upon the Rome Statute which was adopted at the UN Diplomatic Conference on 17 July 1998 in Rome. The conference was convened upon the instruction of the United Nations (UN) General Assembly. Although the statute was adopted in 1998, it only came into force in 2002, after the required amount of states, which was 60, had ratified it. Today, 123 states are members of the Rome Statute. The Rome Statute not only established the ICC but it also sets out the court's jurisdiction, powers, and procedures as well as its mechanisms for its cooperation with national criminal justice systems.

The jurisdiction of the ICC is not founded on any authoritative act but is rather based upon its specific acceptance by the states themselves through an international agreement, which in this case is the Rome Statute. The Rome Statute did not allow the ICC to overshadow the jurisdiction of the national courts. Instead, the ICC has a complementary role to national criminal justice systems. What this essentially entails is that a case is usually unable to come before the ICC if it is being investigated or prosecuted by a state which has jurisdiction over the case or if the case has already been investigated and that state has subsequently chosen not to prosecute. The establishment of the ICC does not in any way release the states from their responsibilities and obligations under international humanitarian law or customary international law, to prosecute those who have committed crimes. In fact, national courts maintain their sovereign abilities and their responsibility to prosecute alleged criminals.

This is why the State uses its own discretion to decide whether or not to ratify the statute.

The states present at the conference in Rome agreed upon providing the ICC with jurisdiction over a case if either the territorial state or the state of nationality of the defendant is a state party or has accepted the ICC’s jurisdiction. In other words, there must be a territorial link with the criminal conduct or a personal link with the accused. Essentially, a case may be brought before the ICC, only if it has complied with the two above-mentioned preconditions. However, an exception exists. Where a situation exists in which one or more crimes appear to have been committed, such a situation can be referred to the Prosecutor by the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations (UN Charter). The Security Council is one of the six principal organs of the UN. It is responsible for the maintenance of international peace and security. The Security Council has fifteen members and according to Article 27 of the UN Charter, each member has one vote. Of those fifteen, five are permanent members that hold veto power. Article 27 of the UN Charter also explains that where one of the permanent member casts a negative vote, the resolution or decision will not be approved. Therefore, the Security Council may refer a case to the ICC however, the referral will only be successful should none of the permanent cast a negative vote. In such instances, the jurisdiction of the ICC is not subject to the preconditions of having a territorial link to the criminal conduct or a personal link with the accused. The Security Council essentially has the ability to give the ICC jurisdiction that is complementary to the jurisdiction of states, and not only independent of their acceptance of the Rome Statute but the presence of preconditions as well.

The ICC only concerns itself with the most heinous of crimes which raises concern within the international community. It is worth noting that the ICC does not enjoy jurisdiction over any alleged conduct occurring before 1 July 2002. This is because the Rome Statute took effect on this date and due to the statute not having retroactive jurisdiction, the court may only deal with matters committed on or before this date. Article 5 of the Rome Statute specifically lists which crimes may be tried before the ICC. It further states that the jurisdiction of the ICC shall be limited to the most serious crimes of concern to the international community as a whole. In terms of subject matter, the ICC has the jurisdiction to prosecute crimes of genocide, crimes against humanity, and war crimes.

The crime of genocide can generally be described as the deliberate killing of a large group of people, especially those of a particular nation or ethnic group. Article 6 of the Rome Statute defines genocide as any of the following acts committed with the intent to destroy, either in whole or in part, a national, ethnical, racial, or religious group as such; killing members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group and forcibly transferring children of one group to another group. Article 6 thus provides for five instances which are considered to be genocide if accompanied by the intent to wholly or partially eradicate a group of people. The prosecution of Omar Hassan Ahmad Al Bashir is a prime example of the ICC pursuing matters allegedly involving genocide. He was charged with three counts of genocide, more specifically by killing, causing serious bodily and mental harm, and by deliberately inflicting on each target group, conditions of life calculated to bring about the groups physical destruction. In his instance, the Pre Trial Chamber I found that there were reasonable grounds to believe that Al Bashir acted with the specific intent to partially destroy the Fur, Masalit and Zaghawa ethnic groups.

War crimes can be seen as another category of crimes that the ICC has jurisdiction over. It is provided for in Article 8 of the Rome Statute. For the purposes of analyzing the situation in Syria, it is necessary to note that the definition of a war crime is extremely extensive, and therefore specific emphasis is needed for Article 8(b)(ii),(iv),(v),(ix),(xvii),(xviii). The situation in Syria complies significantly with these provisions. These provisions are intentionally directing attacks against civilian objects which are not military objectives; intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians; attacking or bombarding by whatever means, towns, villages, dwellings, or buildings which are undefended and which are not military objectives; intentionally directing attacks against buildings dedicated to religion, education or hospitals provided they are not military objectives; employing poison or poisoned weapons and employing asphyxiating, poisonous or other gases, respectively. Jean-Pierre Bemba is a perfect example of the ICC pursuing a case against alleged perpetrators of war crimes. Jean-Pierre Bemba was indicted on 23 May 2008 on two counts of crimes against humanity and five counts of war crimes. Bemba had allegedly been criminally responsible for acts of rape, torture, infringing a person’s dignity, murder, and pillage which occurred in Bangui, Bossanga, Damara, and Mongolia, over a period of six months. He was arrested in 2008 and the final charges brought against him were three counts of crimes against humanity and five counts of war crimes. However, Pre-Trial Chamber II only partially confirmed these charges. They held that Bemba would stand trial for two counts of crimes against humanity and three counts of war crimes. Trial Chamber III delivered its judgment and found that Bemba was guilty on all 5 counts. He was subsequently sentenced to 18 years imprisonment. This instance simply shows that the ICC successfully executes their jurisdiction when prosecuting war crimes. Article 7 also grants the ICC jurisdiction over crimes against humanity. Article 7 provides that a crime against humanity is any of the listed acts when committed as part of a widespread or systematic attack directed against any civilians population, with knowledge of the attack. Some of the listed acts include murder, extermination, enslavement, and torture. Jean- Pierre Bemba is also a prime example of the ICC pursuing alleged perpetrators of crimes against humanity. He was ordered to stand trial for two counts of cries against humanity.

Essentially, both war crimes and crimes against humanity committed in Syria may be tried before the ICC despite the fact that Syria is not a member of the Rome Statute. However, the likelihood of this occurring is devastatingly low as there are five countries, all with the power to veto such a referral.

Conclusion

In conclusion, we believe that the intervention carried out by the United Kingdom, the United States, and France was unjustifiable and should not have been without punishment by the United Nations. Furthermore we believe that regardless of the nature of the conflict, whether it takes a domestic or international form, states have certain obligations towards civilians in populated areas. We feel that this had been disregarded by the Syrian government and destructively affected citizens of Syria. Lastly, we believe that the United Kingdom, United States, and France disregarded their obligations in terms of international humanitarian law by continuing with air strikes despite the fact that civilian casualties were a possibility.

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Treaties and International Materials

1. Charter of the United Nations, 24 October 1945, 1 UNTS XVI (UN Charter)
2. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), opened for signature12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV)
3. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 (7 December 1978)
4. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (Rome Statute)