Responding to Chemical Weapons Use in Syria.

• Author: Scharf, Michael P.

Introduction The International Law Prohibiting Unauthorized Humanitarian Intervention What Made the 2018 Airstrikes Different? Conclusion Introduction

Wouldn't it be ironic if Donald Trump were to go down in history as "the human rights president"? Given Amnesty International's conclusion that President Trump's policies mark a "new era of human rights regression," (1) such a proposition may seem far-fetched. But this essay suggests that the April 14, 2018 airstrikes that he ordered on Syria, to prevent its use of chemical weapons, may have crystallized an emerging customary norm of humanitarian intervention, thereby representing a historic development in international human rights law.

Since 2011, Syria has been engulfed in a protracted civil war that began as part of the wave of Arab Spring protests against Middle East tyrants. (2) The Syrian conflict has seen the rise and fall of the ISIS terrorist organization, (3) the largest refugee migration since World War II, (4) and the repeated use of chemical weapons against a civilian population. (5) With all that, Syria has become a dynamic laboratory for the creation of new customary international law. Elsewhere, I have explored how the use of force by the United States and its allies against ISIS in Syria has fundamentally changed the international law of self-defense against non-state actors. (6) This essay, in turn, examines whether the April 2018 airstrikes against Syria may have constituted a tipping point (7) in the evolving customary international law (8) of humanitarian intervention.

The International Law Prohibiting Unauthorized Humanitarian Intervention

In the 1986 Nicaragua Case, the International Court of Justice observed that "[r]eliance by a State on a novel right or an unprecedented exception to the principle [of non-intervention] might, if shared in principle by other States, tend toward a modification of customary international law." (9) In the years since the 1999 NATO airstrikes on Serbia to prevent the slaughter of the Kosovar Albanians, (10) international law has been moving in fits and starts toward recognition of a limited right of humanitarian intervention.

Under the conventional view of international law, use of force against another State is legally justified only in three instances: (1) with permission of the territorial state, (2) with the authorization of the U.N. Security Council, or (3) when it constitutes self-defense in response to an armed attack. (11) Humanitarian Intervention without Security Council approval was not viewed as a valid justification. (12) However, the 1999 NATO intervention in Serbia saw a major application of armed force for humanitarian purposes without Security Council authorization, but with widespread support by the international community. According to one scholar, the NATO intervention was "a case that expanded, rather than breached, the law, similar to the Truman proclamation about the continental shelf." (13) Others have described the NATO intervention as "a watershed event" and "an important transition point in the shift from one international order to the next." (14) Moreover, the NATO intervention led to the ICISS's articulation of the Responsibility to Protect doctrine, a concept that has been described as the "most dramatic normative development of our time" (15) and a "revolution in consciousness in international affairs." (16) The 2001 ICISS Report characterized the responsibility to protect as an emerging principle of customary international law, (17) and the 2005 High-level Panel Report described it as an "emerging norm," (18) an assessment shared by the Secretary-General. (19)

Yet, a major roadblock prevented humanitarian intervention without Security Council authorization from ripening into a norm of customary international law on the basis of the 1999 NATO action: the participating NATO States were not comfortable with the idea that the bombing campaign would create a new rule of customary international law justifying a broad notion of unilateral humanitarian intervention that could be subject to abuse. (20) Thus, in July 1999, U.S. Secretary of State Madeleine Albright stressed that the air strikes were a "unique situation sui generis in the region of the Balkans," concluding that it was important "not to overdraw the various lessons that come out of it." (21) And UK Prime Minister Tony Blair similarly emphasized the exceptional nature of the Kosovo operation and the limited precedent it created. (22)

The reason for the reluctance of the United States and United Kingdom to acknowledge a precedent that could ripen into customary international law was explained by Michael Matheson, the Acting Legal Adviser of the U.S. Department of State at the time of the intervention, in the following terms:

"About six months before the actual conflict, at the time when NATO was considering giving an order to threaten the use of force, the political community of NATO got together and had a discussion about what the basis of such threat of force would be. At the end of the discussion, it was clear that there was no common agreement on what might be the justification. There were some NATO members who were prepared to base it on a new doctrine of humanitarian intervention; but most members of the NATO Council were reluctant to adopt a relatively open-ended new doctrine. So at the end of that week, the NATO political community said, here is a list of all of the important reasons why it is necessary for us to threaten the use of force. And at the bottom, it said that under these unique circumstances, we think such actions would be legitimate. There was deliberate evasion of making a "legal" assertion.

And this same process occurred in the U.S. Government. There were some who wanted to articulate that humanitarian intervention is now the basis for U.S. action. There was another theory from the Department of Defense, which wanted to adopt sort of an expanded idea of self-defense based on the general interest of the United States in the region; but on reflection, nobody was really prepared to throw all the eggs into either of those baskets. So we ended up with a formulation similar to that of NATO, where we listed all of the reasons why we were taking action and, in the end, mumbled something about its being justifiable and legitimate but not a precedent. So in a sense, it was something less than a definitive legal Rationale--although it probably was taken by large...