By Francesca Cocomero
On 4 April, a chemical gas attack in Khan Shaykhun, a town in Syria’s Idlib Governorate, killed more than 80 civilians. Shortly thereafter, images of victims showing symptoms associated with exposure to nerve gas, namely suffocation, foaming at the mouth, convulsions, constricted pupils, and involuntary defecation, as reported by Doctors Without Borders (MSF), led UN High Representative for Disarmament Affairs Kim Won-Soo to comment that, if confirmed, this could constitute the worst chemical attack in Syria since the war began in 2011.
The news sparked strong reactions by throughout the international community, which gathered in the UN Security Council Chamber on 5 April to discuss which steps to take next. At the same time, the Director-General of the Organization for the Prohibition of Chemical Weapons (OPCW) officially announced that the OPCW-United Nations Joint Investigative Mission (JIM) had started to gather and analyze information from all available sources to establish facts surrounding allegations of the use of toxic chemicals in the country. At first, all Member States cohesively placed blame for the attack on Syrian government forces, expressing unanimous outrage for what was called “a new low, even for the barbaric Assad regime” by US Ambassador to the UN Nikki Haley.
However, the 4 April attack is not the first time in which chemical attacks committed in the country have been accredited to the Syrian government as a blatant act of aggression against its own population. In August 2013, the government was has also been blamed for two chemical attacks launched on the opposition-controlled Damascus suburbs of Eastern and Western Ghouta. At least 1,400 people died, including many women and children. Victims of the attacks reported marked symptoms consistent with exposure to nerve gas.
The establishment of the JIM on 7 August 2015 has been an essential investigative and accountability tool for the use of chemical weapons in Syria. The JIM’s third report, released on 24 August 2016, has asserted that the Syrian regime is responsible for the chemical attacks carried out in the villages of Talmenes and Sarmin in the Idlib Governorate, in April 2014 and March 2015 respectively. Similarly, the report also found the Islamic State (ISIL) responsible for a chemical attack carried out in the city of Marea, 50 miles from Aleppo, which reportedly included the use of mustard gas.
In light of this well-documented evidence, and appalled by the deadly consequences of the latest chemical attack, the international community was quick to react in the emergency session of the UN Security Council on 5 April. As the US Ambassador to the UN Nikki Haley warned, when the international community proves unable to act collectively, states are compelled to “take their own action”. Shortly after her statement, the United States publicly announced that 59 Tomahawk cruise missiles had been fired at Al Shayrat airfield in Syria, from where the planes carrying the alleged chemical weapons are said to have been launched. The unilateral response implemented by the US represents an unprecedented step in its engagement in the Syrian civil war.
Many Member States have hailed the US response as the end of “an era of impunity” for the Syrian government. In the words of the British Prime Minister Theresa May, the Assad regime’s “destructive folly” has met an appropriate response. Similarly, German Chancellor Angela Merkel and French President Francois Hollande stated that “President Assad alone bears responsibility for this development,” adding that that US President Donald Trump had responded to a war crime. President Trump received support also from Israeli Prime Minister Benjamin Netanyahu, who firmly stated that the use of chemical weapons will never be tolerated, and from the Japanese Prime Minister Shinzo Abe, who “highly appreciated” the Trump administration’s commitment to maintaining global order at a time in which the threat posed by weapons of such destruction is “growing more serious in East Asia”.
On the other hand, the Russian representatives have claimed that interest in the attack has been entwined with the “anti-Damascus campaign” some members of the Security Council have been harboring and ultimately rejected the draft resolution presented by the United Kingdom, United States and France, which condemned the use of chemical weapons by the Assad regime. In the same vein, Syrian government representatives have argued that Syria is a victim of aggression perpetrated by both Security Council Member States and the terrorist groups operating under their instructions, describing the recent US attack on the Shayrat military airbase as a “blatant aggression” against a sovereign state.
In this regard, many issues have recently been raised concerning the legality of the US attack, as well as why this reaction has been elicited now in comparison to other previous uses of deadly chemical weapons throughout the conflict. Indeed, the latest US response is the very first such attack in the country on the internationally-recognized government by a foreign military since the beginning of the conflict. As the International Peace Institute’s (IPI) Ameya Naik has pointed out, in Syria the UN is confronted with an uncooperative head of state, who is strongly supported by veto-wielding members of the Security Council, namely Russia and China. In more than six years, the UN has struggled to negotiate a stable and long-lasting political solution aimed at protecting civilians and providing humanitarian assistance to besieged areas and, now, even to ensure accountability for the atrocities caused by the use of chemical weapons. According to Naik, while the veto may explain why no robust action has been taken in Syria, it does not provide exhaustive explanation on why so many states continue to accord the Assad regime a “presumption of legitimacy”, notwithstanding its extensively documented history of repression.
The answer to this question probably lies in that, being the UN an organization of sovereign states, there is a general and understandable hesitation to ensure any dilution in their right to independence from outside interference. Based on this assumption, Naik further affirms that “the only remaining basis on which international action in Syria could even be contemplated is if sovereignty was deemed to be compromised by non-compliance with international norms”, as in the case of a chemical attack. Attempts to suggest such a link have been made by the internationally-recognized norm of the “Responsibility to Protect” (RtoP), which calls on the international community to intervene, including by means of military force, among other peaceful tools, in order to protect populations from mass atrocity crimes.
Paul Williams, Co-Founder of the Public International Law & Policy Group (PILPG), has suggested that the RtoP norm could serve as a legal basis to justify the US attack on the Syrian airbase. Although it must be noted that the United Nations Charter does not contain any provision authorizing the unilateral use of force of one state against another, unless this use of force has been conducted in accordance to the right of self-defense, or specifically authorized by a Security Council resolution, Williams emphasizes that the failure of the Security Council to officially grant this authorization “does not obliterate the principle of the Responsibility to Protect”. According to Williams, given the nature of the Syrian crisis, the already verified extent of Syrian President Assad’s atrocity crimes, and the fact that the parties have failed to negotiate a political solution to the conflict since 2012, the international community should be allowed to use military force to prevent the Assad regime from continuing to carry out such henous crimes against the Syrian population.
Additionally, in light of the current legal constraints enshrined in the UN Charter, it has also been questioned whether the US strike could be likely to change international law in the long term. While codification of a new norm can take decades, the widespread international consensus about the US’ unilateral intervention and the general agreement against the use of chemical weapons could allow a new principle to be accepted into practice becoming part of customary law, according to Jan Lemnitzer, Assistant Professor at the Center for War Studies at the University of Southern Denmark. However, Lemnitzer also points out that the development of a norm justifying a country’s wishes to unilaterally punish another for its use of weapons of mass destruction could have adverse effects on the credibility and authority of the UN Security Council.
After over six years, the conflict in Syria has already claimed the lives of more than 450,000 people, internally displaced over 6.3 million civilians, and forced more than 5 million Syrians to flee their country as refugees. Furthermore, human rights groups continue to report on the use of banned weapons in areas of the country where civilians are still besieged. This is the time to call on all parties to uphold their RtoP populations from horrific atrocities. This includes calling on the UN Security Council to overcome infighting and internal divisions to allow legal and timely responses to the crises and refraining from exercising veto powers in situations of atrocity crimes.
Source for above photos: Reuters via BBC News