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The Illegality of the US Missile Strike in Syria - Dr Wole Kunuji

Thursday’s missile strike launched by the US against Syria again brings to the fore the question of the use of force in International Law. Sometime in January we had cause to discuss this same subject in relation to threats by ECOWAS to use force in Gambia (see that intervention at https://www.linkedin.com/pulse/ecowas-use-force-gambia-wole-kunuji-oluwole-kunuji).

Unlike the ECOWAS/Gambian case which was an attempt to use force to restore/uphold democracy however, yesterday’s military action by the United States is said to be aimed at preventing or deterring “the spread and use of deadly chemical weapons.” It must be stated that this is a patently poor excuse for unauthorized military intervention in another State. Article 2(4) of the UN Charter which embodies customary international law on the subject clearly prohibits the “threat or use of force against the territorial integrity or political independence of any State.” The only exception permitted by the Charter to the rule laid down in Article 2(4) is self-defense in accordance with Article 51 of the Charter. The United States did not hinge its action on self-defense. In fact, it cannot claim to have acted in self defense since the Assad regime directed its chemical attack against its own population. Thursday’s action by the US was essentially a reprisal attack which is ordinarily prohibited in International Law except it is carried out in lawful self defense.

Can the US action be excused on humanitarian grounds? In other words, does humanitarian intervention constitute an exception to the rule established by Article 2(4) of the Charter? There is a lot of controversy over this in the literature. And scholars have spent years debating it without arriving at any tangible consensus. However, even if we are to concede such a humanitarian exception to Article 2(4), its inchoateness and indeterminacy carry the potential to create problems of interpretation and application.

As far as International Law is concerned today, only the United Nations Security Council can authorize the kind of action undertaken by the US on Thursday. Article 24 of the Charter confers on the Security Council “primary responsibility for the maintenance of International peace and security.” The Council is equally the only body that is authorized to “determine the existence of any threat to the peace, breach of the peace, or acts of aggression” in any State. Recent events in Syria present the Council with the opportunity to take decisive action against the Assad regime and restore normalcy in Syria. Rather than engaging in actions that are clearly illegal under the UN Charter, we expect the US to step up efforts to build up consensus within the Security Council on the need to decisively and expeditiously put an end to the gross human rights violations and humanitarian crisis in Syria. This is what should be the pre-occupation of the US at this time. Unfortunately, this is what it has failed to do so far.

N.B: This article was first published on Linkedin in 2017.

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