Opinio Juris: The Missing Link in Trump’s strike on Syria

O
n 7th April, the United States announced the firing of 59 tomahawk missiles each armed with 1000 pounds of explosives at the Al Shayrat airfield in Syria. The firing which was the first direct attack by the Trump administration against the Assad regime was targeted at Syrian radar equipments, jets, bunkers, fuel sites and other military equipment at the airfield.

According to Syrian officials at least seven people were killed and nine were injured in the attack. The purpose of the use of force according to the United States was as follows:

  1. To deter Syria from using chemical weapons against civilians in the ongoing Civil War in the aftermath of the Khan Sheikoun chemical bombing in the rebel held Idlib province that killed around 80 people including 20 women and 30 children.
  2. To provide an appropriate response in the wake of the ‘international community’ failing to act against Syria.

Syria acknowledged the armed attack on its territory while vehemently denying the use of chemical weapons in Khan Sheikoun in North Western Syria. Syria was joined by Russia which claimed that the use of chemical weapons cannot be attributed to the Syrian government. A week since the attack, the official position of the two counties remains unchanged. Interestingly, the attacks took place while the Organization for the Prohibition of Chemical Weapons (OPCW), the implementing body of the Chemical Weapons Convention (CWC) was in the midst of its fact finding mission regarding the alleged State sponsored chemical attack and was yet to reach an objective determination regarding the veracity of the allegations against Syria. A former CIA official Philip Giraldi questioned the official line of Syria employing chemical weapons as a ‘sham’. Congresswomen Tulsi Gabbard also made a pointed reference to the same. Irrespective of who is involved in the Khan Sheikoun chemical attacks, the US use of force against the Syrian government requires deeper analysis.

While it has been argued that Trump’s strike in Syria, irrespective of its legality has created a new norm in international law since it is evidence of a new State Practice it is argued that it is not the case as it is doubtful whether the United States as a country had the sufficient opinio juris necessary to trigger the emergence of new norm.

Customary International Law (CIL) and the Use of Force

The prohibition on the use of force is a well accepted principle in international law. Article 2 (4) of the United Nations Charter codifies this principle in no uncertain terms. Use of force is permitted only with the authorization of the United Nations Security Council unless it is for the purposes of self-defence within the purposes of Article 51 of the Charter. Article VI Clause 2 of the US Constitution, more famously known as the ‘Supremacy Clause’ stipulates that all treaties made under the authority of the Constitution are part of the Supreme law of the land. Self defence as a ground for the use of force can be pressed into operation only when a State has faced an armed attack or risks an imminent threat of an armed attack. There is near unanimity that the Trump’s administration’s use of force did not fall in this category despite some initial half- hearted attempts to classify the use of force under this head (on the ground that Syria’s use of chemical weapons threatens American interests in the Middle East). The final position of the administration was one of deterrence and response to a humanitarian crisis in the wake of the unprecedented use of chemical weapons by the Assad regime.

This compels one to examine whether a new norm pertaining to the unilateral use of force (without necessarily involving the UNSC) for the purposes of deterring a party from violating the Chemical Weapons Convention (CWC) or reprisal against a State Party which has already violated the Convention (by the alleged use of Chemical weapons against its citizens) has emerged in CIL in the wake of Trump’s strike against Syria.

For a customary norm to emerge in CIL, it is essential that two principal criteria should be satisfied for the same: Firstly, there should be evidence of consistent state practice (which is an objective condition) and secondly, there should be evidence of a belief in the necessity and legality of the action (or omission) concerned. This condition is subjective in nature and is referred to as Opinio Juris sive necessitatis or simply opinio juris.

The latter is to be determined from the conduct of the State and its belief in the legality of its actions. In other words, a state must take recourse to a particular course of action accepting it as law guided by a conviction in the legal and necessary requirement of such action.

While State Practice is comparatively easy to establish, it’s not the case with opinio juris. Opinio juris may in cases be intrinsically bound with State Practice but is widely regarded as an independent second requirement for the emergence of a new customary norm. Past conduct amidst internal debates and controversies surrounding a course of action can be used as a determinant of the necessary opinio juris for a particular conduct.

United States and use of Force

The factual veracity of the chemical attacks alleged against the Syrian government assume significance in this context. Given the admissions by former Secretary of State Colin Powell of being mislead by rogue elements in the CIA with respect to his February 2003 UN Speech regarding Iraq possessing weapons of mass destruction and more recently claims by the Trump campaign that CIA’s assessment of Russia breaking into the mails of the Democratic party being incorrect one can draw a safe conclusion that the intelligence gathering framework of the country is not above suspicion. Since the US invasion of Iraq was based on faulty intelligence, a decision to use force in Syria should have been based on independent impartial international evidence. Trump’s refusal to wait till the OPCW investigation into the veracity of the claims points fingers to the administrations indifference to objective fact finding. This assumes significance since the Assad government continues to deny (rightly or otherwise) the use of chemical weapons. Russia’s unconditional support in this regard bolsters Syria’s claim. Bolivian ambassador to the United Nations Sacha Llorenti Soliz brought this fact to the knowledge of the UN Security Council on the day the US attacks took place. The Powell fiasco aided by a murky intelligence apparatus colour the evidentiary framework for the use of force, especially so when use of force is unilateral. Unilateral use of force in the Jus ad bellum framework requires a greater burden of proof on one exercising such a claim which was not discharged in this case.

Significantly enough, this is not the first instance of chemical warfare by the Syrian government. In August 2013, a Sarin gas attack was launched by the Assad government in Ghouta resulting in the deaths of around 1400 people. While the latest chemical attack took less than 100 lives, the previous attack which had many more causalities did not provoke a military response from the US. In fact, attempts to secure the permission of the Congress failed to evoke a positive response compelling the Obama administration to abandon the idea. Instead, the administration found common cause with Putin in goading Syria to join the Chemical Weapons Convention (CWC) and a deal under which the latter would be required to dismantle its arsenals of chemical weapons. Interestingly, the Obama negotiated deal required UNSC sanction before Syria is held accountable for any violation. This was the outcome of a belief that treaty violations should necessarily require independent resolution at the hands of the UN without resorting to the unilateral use of force.

While it could be argued, that the Khan Sheikoun incident is the first major violation of the CWC by Syria, the refusal of the Congress and the Obama administration to use force in Syria in August 2013 is evidence of a belief that armed response is not necessarily the appropriate response to a humanitarian crisis involving the use of suspect means of warfare. This obviates the contention that there exists a common unanimous line of reasoning in the various branches of the US government as regards the country’s approach to Jus in bello violations.

While Trumps strike had no backing from the Congress the latter being formally informed of the bombing two days after the eventuality, subsequent voices from the Congress approved the strike. Senior members of the Congress including the likes of Nancy Pelosi were unequivocal in their assertion that any future escalation of the conflict would require authorization of the legislative body. This settles the contention that “one off” strikes by the President create no acceptable precedent regarding use of force and Congress remains the final arbiter in the use of force. This is consistent with Article1 Section 8 Clause 11 of the US Constitution which grants “War Powers” exclusively to the Congress. Even if the President is authorized to undertake limited “one off” strikes, they should be undertaken under appropriate Congressional authorization. Strangely enough, most instances of Presidential use of force by Presidents Bush and Obama (except Libya) were justified under a 2001 Congressional authorization which permitted military use against those who plotted 9/11. Since the 2001 resolution pertained to Al Qaeda, it cannot aid the Trump administration in Syria given the reality that the Al-Nusra Front (the Syrian affiliate of the Al Qaeda) is engaged in efforts to topple Assad. Conflicts between the Congress and the President over the War Powers Resolution are not unknown with President Nixon staunchly opposing attempts by the Congress to legislate on the issue in the wake of the Vietnam War.

Attempts by the Attorney General’s office to carve out a “national interest” exception to the use of force (and readily employed by Obama in Libya) and used earlier in Bosnia and Haiti were premised on the logic that the credibility of the UN and the UNSC would be jeopardized if US does not resort to the use of force. In addition, geographical proximity to the USA was a ground for US “national interest” deployment in Haiti.

The “national interest” logic was employed by the Trump administration in the Syria bombing without any explanation as to how they correspond to US State practice in Bosnia, Libya or Haiti to ascertain the development of the necessary opinio juris for the creation of a new norm. Neither is the United Nations protected or UNSC resolutions honoured by US force of force against Syria. On the contrary, it is reasonable to conclude that the unilateral US air strikes have further eroded the credibility of the UNSC and the possibility of a Chapter VII resolution pursuant to an objective determination by the OPCW. The argument advanced by the Trump administration that American interests in the Middle East would be jeopardized if Assad resorts to the use of chemical weapons is a convenient ruse given the fact that Assad seems to have no broader interest other than securing the control of his beleaguered country from the clutches of non state actors who control large swathes of the Syrian landmass.

Scholars have argued that US use of force without UNSC approval had a precedent in the Yugoslav bombings carried out during the Clinton Presidency. However, US took care to ensure that the bombings were a ‘sui generis’ case involving a broader coalition of 19 nations. This implied that the precedent would have a limited ambit. NATO unilateralism was criticized by the then Secretary-General of the United Nations, Kofi Annan. Additionally, there was no fixed pattern for humanitarian intervention conducted by the Clinton administration in general as evidenced from Rwanda’s case where 800000 Rwandans Tutsis and moderate Hutus were killed in a brutal genocide. US was unable to agree on a common framework to the use of force in the African country which cast aspersions on its subsequent eagerness to enter the Balkan conflict.

While attempting to justify humanitarianism in the attack against Syria, Trump referred to the plight of “beautiful babies” losing their lives in the protracted conflict especially so in the wake of the Chemical attack. However, the same administration was the brain behind an executive order that prevented the entry of citizens of seven Muslim majority nations including Syria from entering the United States. Here again there is no consistently displayed by the administration towards Syrian victims of the Civil war displaying the absence of opinio juris in creating a uniform norm of humanitarian conduct.

Tracing the history of US use of force one can observe that there exists no consistent pattern that could prove necessary opinio juris necessary for the creation of a new norm. While State practice pertaining to the use of force has existed, the same has been guided by policy considerations based on political expediency lacking uniformity of approach or consistency of objectives. A conviction in the legality and necessity of certain actions though claimed is negated by diverse situational geo-political considerations regarding the use of force. In line with the ICJ ruling in the North Sea Continental Shelf Case, wherein it was held that frequent and habitual performance of an act is in itself not sufficient to establish the creation of a norm unless there existed a belief in the legal necessity of such conduct; a legal conviction on the use of force for a treaty violation like the CRC is not established by Trump’s unilateral bombing of Syria in light of domestic and international norms of use of force.

Abraham Joseph

Advisory Board Member

Abraham Joseph is a PhD candidate in International Criminal Law from NLSIU, Bangalore and an Assistant  Professor in Ansal School of Law, Ansal University, Gurugram.

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