Will We Bomb Syria To Punish Assad?


The current situation in Syria, and the possibility of the US and allies using force against the Assad regime, requires world leaders to be clear about their motivations. In the early days of discussion about intervention in Syria, it appeared that world leaders were considering using force for humanitarian reasons. However, more recent language suggests that they in fact see intervention as a punishment for last week’s chemical weapons attack. Such a rationale is not only blatantly in disregard of international law – it suggests a worrying shift in the way leaders are justifying using force.

As I wrote earlier this week, using force against another country is legal only if it is in self-defence, or is authorised by a resolution of the UN Security Council for the maintenance of international peace and security. A resolution like this would impose strict limits on how force is to be used, ensuring it is proportionate to the aim of ensuring world peace and security. The UK had earlier announced that it would propose such a resolution to the Security Council this week. However, given the probability that Russia will veto a resolution to authorise the use of force, those considering intervention will need to find a different basis for doing so.

One way that leaders may seek to justify the use of force is for humanitarian reasons – protecting civilians from further harm. While not necessarily legal, there is a precedent for humanitarian intervention, such as that used in Kosovo in 1999 by NATO allied forces; later found to be “illegal but legitimate”.

It appears in this vein that the UK sought to justify intervention. The motion that was defeated by the House of Commons, this morning Australian time, rested entirely on humanitarian terms. In fact, the motion has attracted the ire of many international lawyers, for claiming, incorrectly, that humanitarian intervention would be the legal basis for using force.

But the UK’s clarity around a humanitarian aim – even if it was incorrect in law, and ultimately defeated by parliament – is unusual. When we examine the reasons that many world leaders are giving for a potential use of force, they are often not humanitarian reasons of protecting the civilians from future actions, but retribution for the alleged use of chemical weapons by the Assad regime.

Australia’s Foreign Minister Bob Carr has asserted, “A government that uses chemical weapons against its own people has to be made to pay a price”. Prime Minister Rudd said that he was motivated by “a core imperative”, of “not allowing a message to be conveyed to the international community that the use of chemical weapons against anybody … is acceptable”. President Obama has argued that “we do have to make sure that when countries break international norms on weapons like chemical weapons that could threaten us, that they are held accountable”.

IMAGE: Freedom House, (Narciso Contreras/POLARIS)
IMAGE: Freedom House, (Narciso Contreras/POLARIS)

The chemical weapons attack is tragic, but it is also an event that is now past. An intervention based on punishing the perpetrators, or avenging the deaths of those civilians, is focused on an incident that has already happened. And while it is true, as US Secretary of State John Kerry said, that the use of chemical weapons is a “moral obscenity”, this is not enough to justify an act of intervention. In modern times, punishment is not an acceptable reason to use force against another country.

If the aim is punishment, or holding those alleged perpetrators of crimes to account, then there are international criminal legal responses available to do this. The International Criminal Court exists to try individuals accused of war crimes and crimes against humanity (although as I have argued earlier in the week, there are other problems with this possibility). This is the proper avenue for addressing the crimes that appear to have been committed.

In contrast to a punitive approach for conduct already committed, humanitarian intervention should be forward-looking; focused on protecting the civilians that are still in danger. If this is the rationale given, it will not make the use of force legal, but it does exist within an established pattern of past intervention like that in Kosovo, and is not widening the use of force further to include punishment of acts that offend our morality.

There is another possible justification: Obama’s comments that “America’s core self-interest” is at stake, and his emphasis on regional allies in Turkey, Jordan, and Israel, seem to point towards a rationale of collective anticipatory self defence, where the US will intervene to protect their allies and strategic interests.

At a minimum, these global leaders are not being clear about their motivations in using military force. Is the motivation forward-looking, concerned with preventing more attacks and with ensuring the protection of civilians? Is it to protect national interests of great powers? Is it in anticipatory self-defence? Or is it to punish Assad? Clarity is required on this, and the answer may push the use of force in a new direction.

We wait to see whether there will be an intervention in Syria, and what the official reasons given are. But make no mistake, an intervention on punitive grounds is clearly prohibited by international law, is not an acceptable reason for using force, and is a truly concerning shift by the world’s leaders.

Dr. Sophie Rigney is a Senior Research Fellow at Melbourne Law School, and is co-appointed as a Fellow at the University of London. She was previously a defence lawyer at the International Criminal Tribunal for the Former Yugoslavia in The Hague. Dr Rigney researches international law, Indigenous international law, and post-conflict justice.