Pulling the Trigger on Syria: What Does it Cost?
It is shocking that one of the most gruesome wars in history is happening in an age when media enables the entire world to closely witness attacks on humanity. A new round of chemical attacks in Syria has not only shocked the world, but it has also moved President Trump. And after years of war in Syria, Trump pulled the trigger. On Thursday night at the President’s orders, U.S. warships launched 59 Tomahawk cruise missiles. The Pentagon issued the following statement about the United States’ use of the missiles against the Shayrat Airfield in the Homs governorate:
Statement from Pentagon Spokesman Capt. Jeff Davis on U.S. strike in Syria
At the direction of the president, U.S. forces conducted a cruise missile strike against a Syrian Air Force airfield today at about 8:40 p.m. EDT (4:40 a.m., April 7, in Syria). The strike targeted Shayrat Airfield in Homs governorate, and were in response to the Syrian government’s chemical weapons attack April 4 in Khan Sheikhoun, which killed and injured hundreds of innocent Syrian people, including women and children.
The strike was conducted using Tomahawk Land Attack Missiles (TLAMs) launched from the destroyers USS Porter and USS Ross in the Eastern Mediterranean Sea. A total of 59 TLAMs targeted aircraft, hardened aircraft shelters, petroleum and logistical storage, ammunition supply bunkers, air defense systems, and radars. As always, the U.S. took extraordinary measures to avoid civilian casualties and to comply with the Law of Armed Conflict. Every precaution was taken to execute this strike with minimal risk to personnel at the airfield.
The strike was a proportional response to Assad’s heinous act. Shayrat Airfield was used to store chemical weapons and Syrian air forces. The U.S. intelligence community assesses that aircraft from Shayrat conducted the chemical weapons attack on April 4. The strike was intended to deter the regime from using chemical weapons again.
Russian forces were notified in advance of the strike using the established deconfliction line. U.S. military planners took precautions to minimize risk to Russian or Syrian personnel located at the airfield.
We are assessing the results of the strike. Initial indications are that this strike has severely damaged or destroyed Syrian aircraft and support infrastructure and equipment at Shayrat Airfield, reducing the Syrian Government’s ability to deliver chemical weapons. The use of chemical weapons against innocent people will not be tolerated.
U.S. Ambassador to the United Nations Nikki Haley earlier this week warned the Security Council, stating that “[w]hen the United Nations consistently fails in its duty to act collectively, there are times in the life of states that we are compelled to take our own action.” The much-debated question, whether the United States should consider using force in Syria, resurfaces.
The question of intervention provokes both policy and legal concerns that are necessarily interlinked. At a recent Harvard International Humanitarian Law conference I attended, experts expressed their views on an intervention in Syria. One of the speakers pointed out that for the U.S. government, the ultimate consideration in Syria is not about the legal problem, it is in calculating costs and benefits. One cost is that there is no legal justification and the United States must be careful not to set a precedent. On the other hand, there is also a cost to not acting.
Therefore, even when the legal implications of these operations are calculated as a cost in the balancing act, the scope of the legal questions is of paramount importance.
Strict interpretation of the UN Charter prohibits any U.S. strike on the Syrian government without consent from the UN Security Council. Article 2(4) of the Charter requires the United States and all other signatory states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” The only legal exception to this rule, is Article 51’s justification of self-defense, which at first glance is not met here, as the Pentagon explained its actions as intended to “deter the regime from using chemical weapons again.”
Then, under what circumstances, if any, can the United States determine that the costs of not acting are greater than the costs of placing itself in breach of the UN Charter?
First of all, there is a looming domestic question over whether the president has the power to make this decision. The United States is bound to uphold its treaty obligations not only under international law, but also under domestic law, as UN Charter Article 2(4) constitutes the “supreme law” of the land under Article VI of the US Constitution. There are options for the U.S. government to derogate from these responsibilities, but only when Congress enacts a “later-in-time” statute, which supersedes treaty obligations. However, it was not Congress pushing the buttons to launch missiles on Syria. President Obama in his approach to Syria, argued Professor Marty Lederman, set out an approach that assumes that “under a set of complex conditions that do not amount to ‘war in the constitutional sense,’” a president can initiate the unilateral use of military force against another sovereign. Lederman argues that at the center of this view, two conditions must be met to justify unilateral action by the president: “(i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause.”
Arguably, Syria’s use of chemical weapons constitutes the significant interest under the first category. Trump, in phrasing the attacks as in the “vital national security interest” of the United States, honed in on this argument. Whether the use of chemical weapons historically supports unilateral actions is debatable; there are seemingly no precedents for this justification.
At the international level, when chemical weapons are used, or threatened to being used, Ashley Deeks noted that that there are four possible justifications for the unilateral use of force in Syria: “(1) a “self-defense” theory; (2) a “humanitarian intervention” theory; (3) an intervention based on the consent of the rebels, if and when the U.S. were to recognize the rebels as the lawful government of Syria; and (4) a similar argument to the Kosovo intervention that force is legitimate, without an effort to argue that force was lawful.”
The self-defense argument remains a thin one in justifying actions against the Assad regime. In its actions against ISIS the United States claimed legality on the grounds of collective self-defense. US Ambassador to the UN Samantha Power explained this argument in a letter to UN Secretary-General Ban Ki Moon as necessary because ISIS was attacking Iraq from safe havens in Syria, and the Syrian government was “unable or unwilling” to eradicate ISIS. In addition, the letter claimed preemptive self-defense because the military action was necessary to “address terrorist threats that they pose to the United States and our partners and allies.”
The actions of last night were different. The chemical weapons attack constituted an attack against Syrian citizens, and it did not reach across Syria’s state borders. President Trump stated as a reason for his missile launch that it is in the “vital national security interest of the U.S. to prevent and deter the spread and use of deadly chemical weapons.” It would be a far stretch to argue that the protection of a vital national security interest of the United States could be justified under a theory of “anticipatory collective self-defense.” According to Ashley Deeks, this argument would only work in a narrow set of circumstances, depending on where the chemical weapons are used and the specific conditions. For example, if the weapons are used close to neighboring countries’ borders, and there is a risk that weapons would drift across Syria’s borders and could attack a neighboring state which has asked for U.S. assistance in its defense, there could be an argument for “anticipatory collective self-defense.” There is no evidence that the chemical weapons here were used close to borders, or that there is a threat they might spread across Syria’s borders. As such, justification of Trump’s missile launch based on the protection of the national security interest of the United States under the category of anticipatory collective self-defense seems to draw little legal support.
The second justification, based on a humanitarian intervention theory, has arguably passed its point of application. Humanitarian intervention has been institutionalized, and replaced by the doctrine of the responsibility to protect. The institutionalization factor in this standard means that intervention for humanitarian reasons is now broadly understood to require Security Council authorization. Furthermore, it is also questionable whether the use of chemical weapons, as horrific as the act is, would form an additional trigger for humanitarian intervention. The previous use of non-chemical weapons that have slaughtered thousands of civilians in Syria over the course of the war, does not necessarily constitute less of a war crime than the use of chemical weapons, for legal purposes. Even if the United States had claimed that humanitarian intervention is still an option, it should have done so a long time ago.
With the Syrian government gaining more and more territory, the third intervention justification of the U.S. recognizing the rebels as the lawful government of Syria and consenting to the use of force, also falls outside the scope of possibilities.
Moreover, during the last round of peace talks in Geneva, the representatives of the Syrian regime were still invited to the table.
Back in 2013 when the Syrian regime used chemical weapons, the closest scholars came to finding a justification for intervention was “illegal but legitimate” for humanitarian reasons along the lines of NATO’s unauthorized use of force in Kosovo in the 1990s. This seems again the most likely justification here. Ashley Deeks commented that NATO’s use of force was famous because it used a “factors” approach. NATO countries justified the campaign by providing a long list of factors to illustrate the campaign’s legitimacy, which included Milosevic’s bad acts, violations of Security Council resolutions, failure to cooperate with the ICTY, and hundreds of thousands of displaced persons. The Kosovo Commission in its report concluded that “the NATO military intervention was illegal but legitimate.” While unauthorized by the UN Security Council, interventions in Syria likely meet this “legitimacy test” outlined in the Kosovo Commission Report. Similar to Kosovo, there is a long list of factors to illustrate the legitimacy of interventions in Syria considering the long history of Assad’s bad acts, violations of Security Council resolutions, and millions of refugees. The use of chemical weapons would only increase the evidence for such a legitimacy test.
However, there are three arguments that call the legitimacy of Trump’s launch of missiles into question and that will cause lengthy discussions in the days ahead. First, different from the air campaign by NATO in Kosovo, Trump’s unilateral actions so far seem to lack the support of the broader international community. The responses of U.S. allies and countries in the region which are expected over the next few days will form a critical point in the legitimacy analysis of Trump’s act. Second, it will have to become clear whether the launch of 59 Tomahawk cruise missiles attacking the airfield from which the chemical attack occurred was proportional. On comparison, 112 Tomahawk cruise missiles were used by U.S. and British ships in the opening phase of Libya to strike over 20 targets across the country. It is unclear why 59 missiles were needed to take out one airfield.
Third, as President Obama repeatedly cited in discussions regarding the use of force in Syria, it remains unclear whether the use of force through the launch of missiles will indeed have an impact on the humanitarian situation on the ground.
So what’s the cost of pulling the trigger? The costs of Trump’s decision to use force against the Assad regime are high, as his decision is not supported by domestic or international law. The decision lacks the support of Congress and violates the UN Charter because there was no Security Council authorization. Whether the costs of Trump’s decision to use force in Syria will ultimately outweigh the costs of not intervening, will likely depend on how the legitimacy argument unfolds over the next couple of days. Before pulling the trigger on Syria, Trump could have significantly reduced these costs by conferring with Congress and international allies.
Shane Fischman L’19, President of Penn Law Students for Israel and Penn Law Global Affairs Blog Editor & Rachel Chiger L ’19, President of the Penn Law Chapter of the Louis B. Brandeis Society
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