This article has been authored by Radhika Aggarwal , a second year student of Rajiv Gandhi National University of Law, Punjab.
As the Arab Spring spread across Syria in March 2011, Syria's government, drivenby President Bashar al-Assad, encountered animmense threat to its power. Dissidents called for an end to the Assad regime's authoritarian tactics. The Assad regime deployed police, military, and paramilitary troops to put down demonstrations. In 2011, rebel groups emerged, and by 2012, the uprising transformed into a full-blown civil war. The conflict has been a breeding ground of innumerable human rights violations, it saw the rise and downfall of the Islamic State of Iraq and Syria (ISIS), the largest displacement of civilians both internally and externally since the Second World War, the deployment of chemical weapons on civilians on a regular basis and multiple air-strikes by domestic and international players on civilian territories. Hence,a major violation has been in the form of targeting non-combatant civilian populace. The non-military residents have been subjected to state-sponsored attacks in the form of chemical airstrikes, attacks by the national army and even the use of rape and other forms of sexual assaults. All things considered, the battleground in Syria reeks of the worst forms of crimes against a civilian population, not only by international players and fanatic extremist groups, but by the state’s own administration. It must be noted that International humanitarian law disallows all modes of military action which neglect to segregate between those involved in actual military combat and those who are not, such as the non-combatant civilian population.The main aim of this restriction is to shield the non-military personnel populace, individual citizens and their property.The prolonged and cataclysmic nature of this conflict may have solidified a growing customary humanitarian intervention norm, marking a watershed moment in international law.
1. Chemical Attacks and Unilateral Humanitarian Interventions in Syria
Russia has been a strong supporter of the Assad dictatorship since the 1970s, retaining its only naval station outside of the former Soviet Union in the Syrian Mediterranean port of Tartus. As a result, Russiarepeatedlyvetoed resolutions of the Security Council denouncing Assad's brutal measures against civilians, as well as preventing the Council from launching inquiries into Syria's utilization of chemical warfare and submitting the issue to the International Criminal Court.It should be noted that the utilization of chemical weapons, regardless of whether against combatants or non-combatants, is completely prohibited by international humanitarian law and must be denounced consistently.President Obama had consistently stated that Assad's deployment of chemical weapons would be a "red line" and a catalyst for further US participation in the Syrian civil war if crossed.The Assad administration then employed chemical weapons on a large scale in the opposition-held Ghouta district of Damascus in 2013, killing multiple civilians.As a result, President Obama attempted to rally backing from Congress and international allies for a targeted military strike on Syria.The Obama administration never used military force and instead settled with an agreement mediated by Russia, wherein the Assad administration consented to hand over its chemical weapons and subject to international assessment. These events reinforcedthe prevalent positionthat unless sanctioned by the Security Council, there exists no right of military interventions on humanitarian grounds in foreign territories.
In the first direct US action against Assad, the American administration launched a flurry of ballistic missiles at Syria's Shayrat airbase, suspected of being the command center of a chemical bombing inIdlib. Unlike previously, the move was largely endorsed by domestic political players and foreign allies including, Britain, the European Union, Saudi Arabia, Jordan, Turkey, etc. Despite the absence of legal support, the action was widely regarded as crucial and balanced. Then, in 2018, one year after the airstrike on Shayrat Airbase, the US, France and the UK dispatched fresh airstrikes of retaliatory nature following a chemical bombardment by the Assad regime in the rebel-controlled Douma province.
2. The Position in International Law
Customary international law constitutes general practices acknowledged as law. The prerequisite that a particular act is"acknowledged as law" is frequently alluded to as "opinio juris". By and large, the motivation behind international law is to manage the ties among States and, consequently, it is binding upon States. This is likewise valid for international humanitarian law, regardless of whether non-customary or customary, as it manages military confrontations emerging between States. Nonetheless, a specific element of international humanitarian law is that it also controls armed crises happening between a State and an armed rebel organization or between such rebels. The principles that manage such contentions are applied to all parties, regardless of whether a State or a resistant organization. State practice shows that many standards of customary international humanitarian law relevant in non-international military confrontations tie States just as armed rebels. Also, the United Nations’ Charter clearly forbids the use of armed measures against a state except in self-defense, with the prior endorsement of the Security Council and with the prior consent of the state on which the attack is to be carried out. In other words, unilateral humanitarian intervention using armed means is strictly against international law. Moreover, the International Court of Justice (ICJ)in the case of Nicaragua v. United States, upheld the position that custom does not allow any nation to resort to armed unilateral humanitarian intervention, even on the grounds of protection of Human Rights. Clearly, the actions of the U.S., U.K., and France in 2018 were against international law, although, their actions were widely endorsed. This leads to the question, whether unilateral humanitarian intervention using armed means be allowed to retaliate against and deter future use of weapons of mass-destruction (WMDs) against non-combatants when the Security Council is unable to authorize such an action owing to recurrent use of veto powers by a permanent member to block such an action? The argument is that armed humanitarian intervention to retaliate against the use of chemical weapons is not aimed at jeopardizing a nation's integrity or introducing political change, but is rather trying to save humanity and uphold the blanket ban on WMDs. The development of customary international law can be understood as a constant course of claims and reactions. On account of the 2018 airstrikes, the case was unequivocal. The U.S., France, and U.K. explained a right to philanthropic intercession in consequence of Syria's utilization of WMDs against regular people.All things considered, the three states went about as custom pioneers-the main states to start a modus operandibelieving that it will be acknowledged as another standard of customaryinternational law by the global players. Custom pioneers have no assurance that their activity will indeed prompt the development of a custom.Now and then, as here, there is far-reaching support for the case, which can cultivate standardization of the new principle. Other times, there is inescapable judgment, which would hamper such a development. Furthermore, regularly there is a lot of quietnesses, which can be deciphered as one or the other passive consent or detachment.
There were a few conditions that made the 2018 airstrikes unique. To start with, formost of the decade, Syria had been displaying one of the most striking humanitarian crises on earth. The direness of the Syrian emergency prepared the groundwork for the accelerated evolution of customary international law.Furthermore, the collectiveness of the strike guaranteed that the display of armed power was not seen as a tactic forterritory expansion or shift in power. Third, the partaking nations affirmed the lawfulness of the 2018 airstrikes and accepted a typical legitimization,which was philanthropic mediation as opposed to referring to just genuine contemplations that render the utilization of power ethically tenable.Fourth, the hidden compassionate need was to stop the utilization of WMDs against a non-military populace a "jus cogens" standard. As opposed to focusing on infrastructure, as had been the situation of past humanitarian interventions, the recipient of the 2018 strikes were synthetic weapons creation base and storerooms. States were more worried about the Assad system's endeavor to standardize the utilization of biological weapons and Russia's ability to keep the Security Council from making a move against Syria than they were about the potential for misuse if future humanitarian interventions without Security Council approval are overlooked.Lastly, many nations communicated endorsement, while just a small number went against the airstrikes. Russia's resistance was subverted by its contention that Syria's role in the chemical assault had not been adequately demonstrated. Its draft Resolution censuring the 2018 airstrikes was adequately crushed by the Security Council.The airstrikes, albeit unlawful at the time were not castigated by the Security Council or the global players, raises the question of whether a new customary law has emerged allowing armed action against states in case of repeated international humanitarian law violations, particularly, in the form of constant chemical warfare being used against non-combatant civilian populace. Since no current cases are pending against the 2018 strikes neither in the International Court of Justice nor in the International Criminal Court, a conclusive response to the conundrum is neither required nor feasible, although, it does open the gates for the U.S. and other states to conduct future armed interventions against the war-torn nation’s deployment of chemical weapons, should it become crucial
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