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International Law on Responding to Syria

The use of any chemical weapons in Syria would amount to a “crime against humanity” and there would be “serious consequences” for the perpetrators, Secretary-General Ban Ki-moon said 23 August 2013 , while urging an immediate investigation on this matter. “Any use of chemical weapons anywhere, by anybody, under any circumstances, would violate international law,” Mr. Ban said . “Such a crime against humanity should result in serious consequences for the perpetrator. Once again, I call for an immediate investigation of this latest incident.”

It is not exactly clear, however, just exactly what international law was breached in this instance. Treaties are written international agreements concluded between two or more States. They are also referred to as conventions, protocols, covenants, and attached regulations. They only bind those States that are parties. Customary international law is that law resulting from the general and consistent practice of States followed from a sense of legal obligation (opinio juris). It is best understood as the “unwritten” rules that bind all members of the community of States. Note, however, that customary international law can emerge from rules established in treaties and, as a consequence, bind all States that do not persistently object to the application of that rule. The argument that a norm exists is enhanced proportionally in relation to the number of States that recognize and adhere to the norm. There is also a correlation between the length of time a practice is followed and the persuasiveness that the practice amounts to customary international law.

The Protocol for Prohibition of the Use in War of Asphyxiating, Poisonous of Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol) is a legally binding treaty that prohibits the use of gases and biological weapons against an enemy in times of war. It opened for signature in 1925, and prohibited the use [but not possession] of chemical weapons. A number of States, including the US reserved the right to respond with chemical weapons to a chemical attack. The 1925 treaty may have acquired the status of customary international law, given the rarity with which poison gas was subsequently used.

The Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (CWC), more commonly known as the Chemical Weapons Convention, is a legally binding treaty that came into force in April 1997. The Convention prohibits the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons. As of December 31, 2011, there were 188 States Parties to the Convention, the last being The Bahamas, which became a State Party on December 20, 2009. Eight other States have neither ratified nor acceded to the CWC (two signatory States, Israel and Myanmar, and six non-signatory States, Angola, Egypt, North Korea, Somalia, South Sudan, and Syria). As a non-signatory state, Syria is not bound by this treaty, though it might be argued that so many other states are signatories that it has become a matter of customary international law which would bind Syria. The US Government does not appear to take this approach, since the State Department annual arms control compliance report only considers compliance by signatories.

The 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV) provides protections for civilians during international armed conflicts. The lack at that time of any recent international Convention for the protection of civilians is explained by the fact that it was until quite recently a cardinal principle of the law of war that military operations must be confined to the armed forces and that the civilian population must enjoy complete immunity. The Fourth Geneva Conventions of 1949 does not interfere in a State’s relations with its own nationals, as in the case of Syria.

States are also bound by Customary International Law, which is formed over time by the general and consistent practice of States followed from a sense of legal obligation (opinio juris). Customary International Law obligates States to provide laws of armed conflict [LOAC] protections for civilians. The Hague Conference in 1907 decided not to include a provision to the effect that the nationals of a belligerent residing in the territory of the adverse Party should not be interned, considering that that principle went without saying.

Common Article 3 of the Geneva Conventions of 1949 does not contain a precise definition of the term “civilian” for application in Non-International Armed Conflict [NIAC]. It does, however, require “each Party to the conflict” to treat humanely “persons taking no active part in the hostilities” and it also lists specific acts that are prohibited against such persons. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977 [AP II] is intended to supplement the LOAC related to non-international armed conflict (Common Article 3 conflicts). AP II provides specific protections for civilians during NIACs, but it also does not contain a precise definition of the term “civilian.” Article 4 contains a list of “fundamental guarantees” for “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities…”. Article 13 emphasizes that civilians and the civilian population shall be protected from the dangers arising from military operations and shall not be targeted. Significant portions reflect customary international law. In March 2011, President Obama announced his continued support of AP II and urged the Senate to act “as soon as practicable” on AP II.

The International Criminal Court [ICC] has jurisdiction over Crimes against Humanity. “For the purpose of this Statute, “crimes against humanity” means … acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack…” (Rome Statute, art. 7). The treaty entered into force on July 1, 2002. At of 2012, a total of 121 States had ratified the Rome Statute of the International Criminal Court. Although the U.S. is in favor of a standing permanent forum to address war crimes, the US is not a party to the Statute of the ICC. The United States signed the Rome Treaty on Dec. 31, 2000. However, based on numerous concerns, President George W. Bush directed, on May 6, 2002, that notification be sent to the Secretary General of the United Nations, as the depositary of the Rome Statute, that the United States does not intend to become a party to the treaty and has no legal obligations arising from its previous signature. Although United States is still not a party, the United States has been participating in ICC proceedings in an Observer status since 2009.

In 2005, after the international community failed to stop the genocide in Rwanda, the UN General Assembly agreed on a new duty known as the “Responsibility to Protect (R2P).” This set of principles holds that states are responsible for the protection of their own citizens with the help and support of the international community. If a state fails in its obligation, the international community is obligated to intervene via sanctions and diplomacy, and, if those fail, military intervention.

Syria appears to have violated the 1925 Geneva Protocol prohibiting the use of poison gas, the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977 [AP II], as well as the Rome Statute of the International Criminal Court. US military response would appear to be legal under the “Responsibility to Protect (R2P)”.