On April 7th, 2017, the American Arleigh Burke-class destroyers USS Ross and USS Porter fired a volley of 60 Tomahawk cruise missiles at Shayrat Airbase in Shayrat, Syria. One of those missiles was aborted and crashed into the water, while the remaining 59 continued on their way and reportedly all impacted their designated targets at the base. The attack has been both praised and condemned worldwide, with some making the claim that the strikes violated international law. Whether or not the strikes were the right choice is not the issue here today; the issue is legality. Were the strikes actually outside the bounds of international law? Or was the US government acting within its legal right?
The Charter of the United Nations states:
Article 2
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.
That’s a rather clear statement. It essentially means that internal affairs are to be handled by the state they occur in, and that the only time the UN may have any say in a state’s internal affairs is when they fall under efforts to enforce any measures authorized under Chapter VII. Chapter VII deals with threats to international peace and the responses to said threats. It states, in part:
CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Thus if measures in Article 41 (complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations) do not prove sufficient to curtail violations of the UN Charter and the resolutions of the UN Security Council (UNSC), Article 42 comes into play. Article 42 states that the UNSC must consider Article 41 inadequate or Article 41 must prove to be inadequate before Article 42 is activated. That means that there would need to be a pattern of violations on the part of the Syrian government to justify military action by outside powers. Flagrant disregard for a clear UNSC resolution, for instance, could possibly justify a military response.
In late September 2013, the UNSC passed Resolution 2118, which states the following:
s/res/2118 (2013)
Resolution 2118 (2013) Adopted by the Security Council at its 7038th meeting, on 27 September 2013
1. Determines that the use of chemical weapons anywhere constitutes a threat to international peace and security;
21. Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter;
Again, the UNSC has explicitly warned all actors in the Syrian conflict that further violations of international law regarding chemical weapons use would not be tolerated. As per Resolution 2118, any further violations will invoke measures under Charter VII. Over the next several years, violations of many types continued to occur throughout Syria. The majority were found to be carried out by regime forces.
s/2016/738
Third report of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism
54. The Leadership Panel examined the existing information regarding the two impact locations in Talmenes on 21 April 2014. There is sufficient information for the Panel to conclude that the incident at impact location No. 2 was caused by a Syrian Arab Armed Forces helicopter dropping a device causing damage to the structure of a concrete block building and was followed by the release of a toxic substance that affected the population.
56. The Leadership Panel examined the existing information regarding the two impact locations in Sarmin on 16 March 2015. There is sufficient information for the Panel to conclude that the incident at impact location No. 2 was caused by a Syrian Arab Armed Forces helicopter dropping a device that hit the house and was followed by the release of a toxic substance, matching the characteristics of chlorine, that was fatal to all six occupants. The remnants of the device are consistent with the construction of a barrel bomb.
a/hrc/34/64 (2017)
Report of the Independent International Commission of Inquiry on the Syrian Arab Republic
17. Throughout 2016, Syrian air forces launched air strikes using chlorine bombs in eastern Aleppo city. There is no information to support the claim that the Russian military ever used any chemical weapons in the Syrian Arab Republic. While civilians exposed to chlorine may exhibit symptoms similar to those exposed to vesicants, such as sulphur mustard, chlorine gas was identified as the most likely agent in several cases.
52. The Commission investigated numerous incidents of allegations of improvised chlorine bombs dropped from helicopters, which resulted in civilian casualties. In none of the incidents reviewed did information gathered suggest the involvement of Russian forces. Given that the incidents reported were all the result of air-delivered bombs, it is concluded that these attacks were carried out by Syrian air forces. The use of chlorine by Syrian forces follows a pattern observed in 2014 and 2015 (see S/2016/738).
53. In addition to violating the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (see annex I, para. 40), the use of chemical weapons in residential areas, including chlorine bombs which are incapable of distinguishing between civilian and military targets, constitute war crimes (ibid., paras. 41-42).
Thus, the Syrian regime is in violation of Resolution 2118, which opens the regime and its assets up to Chapter VII enforcement. Since measures under Article 41 have already proven to not be working, Article 42 comes into effect. In that sense, the strikes were in line with some aspects of international law. However, unilateral action is not the right way to handle the situation. While another investigation would undoubtedly have turned up more of the same information, it would also undoubtedly have been vetoed at the Security Council like previous resolutions have been. And while that may sound like a dead-end for any resolution on Syria, as we have examined before, there are protocols in place to work around a UNSC veto. Furthermore, while this may not have been a blatant violation of international law, it was also not authorized by the current AUMF, which only covers fighting Al Qaeda and their affiliates/allies. So in that sense, Donald Trump broke the law with his airstrikes. Take from that what you will.
“Furthermore, while this may not have been a blatant violation of international law, it was also not authorized by the current AUMF, which only covers fighting Al Qaeda and their affiliates/allies. So in that sense, Donald Trump broke the law with his airstrikes.”
Under the War Powers Act, the President can order military action for up to 60 days without going to Congress for authorization. So was the strike unauthorized by Congress? Yes. Does that mean it was illegal? No.
When I raised Resolution 2118 with Stephen Zunes on Twitter (he wrote an article claiming the strike was illegal under international law), he responded that clause 22 of the resolution — “Decides to remain actively seized of the matter” — forbids any action by an actor other than the UNSC. I have found varying interpretations of what this phrase actually means, so maybe you can clarify if clause 22 of Resolution 2118 bars unilateral military action.
I have heard elsewhere that the strike did not fall under the guises of the War Powers Act, but yes, typically it does allow a president to launch strikes on an emergency basis.
“Decides to remain actively seized of the matter” goes at the end of almost every UNSC resolution and simply means “no other body of the UN may take up this issue until we are done with it”. It has nothing to do with action from outside actors.