By Alper Ali Riza
When action in the UN Security Council against the use of chemical weapons is blocked, the use of force is probably permitted in international law to deter and disrupt further use of chemical weapons. But I paint with a broad brush.
In August 2013 Britain explained the legality of humanitarian intervention in the context of the use of chemical weapons. She stated that such humanitarian intervention would not be in breach of international law if there is convincing evidence that massive violations of humanitarian law required international protection to deter further such violations because the government of the state targeted is either unable or unwilling to protect its own civilian population from attack by state agents using chemical weapons.
Provided there is no alternative, and the force used is necessary and proportionate and there is no evidence of ulterior purpose, the fundamental principle of the UN Charter that prohibits the use of force against the territorial integrity of states gives way to a higher norm within the hierarchy of peremptory norms of international law that prohibit the use of chemical weapons.
The limited one-off strike on chemical weapons assets in Syria in the early hours of Saturday morning was proportionate. Whether it was necessary at the fag-end of the Syrian civil war is problematic but only marginally so since the war is still going on in northern Syria and deterring the use of chemical weapons where many rebel Syrians and their families have escaped is necessary.
Humanitarian intervention is the corollary of refugee protection under the 1951 UN Refugee Convention, which provides international protection for refugees who escape and seek assistance outside their country on the grounds that it is unable or unwilling to protect them –normally because it is persecuting them.
But if international protection is available for people who manage to escape in fear of persecution, it follows that in extreme cases international protection should also be available to those who do not manage to get out, if their persecution takes the extreme form of chemical attacks.
The integrity of the system of international refugee protection requires states to take measures to prevent chemical and biological attacks because their use gives people no choice but to leave their country, causing huge irregular movement of people that can be a threat to peace and security.
Indeed the refugees generated by the conflict in Syria has destabilised liberal democracies in the whole of Europe over the last seven years, which would not have occurred if it were made clear to the regime in Syria at the outset that there were limits to the ill-treatment it could inflict on its people.
Refugee protection under the 1951 Convention was borne of the terrible events of World War II. The war was also the reason for limiting the use of force by states under the UN Charter to self defence and measures authorised by the UN Security Council in respect of threats to peace, breach of the peace and acts of aggression.
There are, however, respectable arguments that humanitarian intervention in extreme cases to deter the use of chemical weapons would not be in breach of international customary law even though it is not mentioned the UN Charter where it is obviously conducive to peace and security.
Many relatively new independent states understand their status as states very well but not their obligations as states to protect and not persecute their citizens. Syria protested that the attack on her chemical weapons assets was a flagrant violation of her independence and territorial integrity, but has been wholly oblivious to her obligation not to deploy chemical weapons against her own people whatever political differences exist between different political, religious or ethnic groups. The facts speak for themselves: on a conservative estimate over five million displaced and more than half a million dead should be Syria’s primary concern rather than a minor incursion in her air space directed at chemical weapons assets.
Of course the principle of humanitarian intervention can be abused by strong states against weak ones, but in this day and age when information about what is happening in other countries is instantly accessible, it would be difficult for strong states to get away with abusing the right to humanitarian intervention. In any case the problem in Syria is not that she is weak. She has after all active super power support in Russia and strong regional power support in Iran.
The problem of humanitarian intervention in Syria is that there is a clash of interests and values. President Vladimir Putin expressed this clash very well in his letter to the American people on September 11, 2013. His argument about different countries having different values as well as his claim that it is dangerous for America and her allies to see themselves as exceptional is valid.
However, his letter assumes there can never be a case in international law for humanitarian intervention – which is far too literal a view of international law. He also claimed that the use of chemical weapons could not be attributed to the Syrian regime which is difficult to believe.
There have been many occasions when the regime in Syria has been accused of using chemical weapons on civilian targets that cannot all be provocations.
On at least one previous occasion a UN inspectorate found the case against the regime proved. As for the alleged attack last week, the French president was satisfied on the evidence made available to him that the Syrian regime was responsible and that is good enough for me.
It is a strong pointer because the credibility of France is very high given they are were dead against the war in Iraq in 2003 precisely because of lack of evidence.
There is the problem of motive – why use chemical weapons if the civil war is as good as won? It is a good question but regimes like the one in Syria are not motivated in the same way as individuals. An already brutal regime has been brutalised to the point where lack of motive is not significant enough to displace clear evidence of capability and opportunity.
Although Russia was emboldened by the paralysis of America and Britain in Syria she did not intervene on the side of the Assad regime in Syria until asked to do so by the Syrian government in self-defence against the various groups opposed to the regime at a time when the regime was losing the civil war. President Donald Trump criticised Russia and Iran for being birds of a feather with Syria but that is not a fair criticism because America was not critical of Russia’s involvement in Syria against Islamic state.
Where the Russians went wrong is taking part in carpet bombing of populated areas and, more recently, in protesting too much about the chemical attack attributed to Syria. The claim that this was staged by Britain, one of the most civilised countries in the world, when they knew the Syrian regime had a proclivity to use such weapons is absurd. It was in marked contrast to the measured terms of President Putin’s letter in 2013.
The Iranians have not engaged in megaphone diplomacy over the deployment of chemical weapons by the Syrian regime in the same as undignified way as Russian ministers and ambassadors. Listening to the measured and restrained tone of the Iranian ambassador on BBC TV last night was refreshing compared to the shrill and flippant statements coming out of Moscow.
I always thought Russia a serious country until the behaviour of her officials since the Sergei Skripal story broke. America, France and Britain may have chosen the wrong battleground under a dangerous president against a wrong adversary. They are playing Russian roulette in which pistol is loaded in one chamber out of six and spun like a roulette wheel. It is then clicked back and fired by the gambler at the temple of his head. If the hammer of the gun hits the loaded chamber the gambler dies. If the gun is aimed at someone else and he dies, it is murder on account of gross recklessness.
It is called Russian because it was played by Russian officers in World War I and was written about by Russian novelists. In their cups some Russian soldiers were even prepared to play Russian roulette with five chambers loaded.
It is reckless to gamble that there will not be a nuclear confrontation with Russia over Syria.
Alper Ali Riza is a queen’s counsel in the UK and a part time judge