By Simran Kalsi,12828902
Legal and Political Context
Enforcement of international human rights obligations falls across a spectrum of parties, ranging from individuals, states, and international organisations encompassing both international courts, tribunals, Non-Governmental Organisations and Governmental organisations.But is it necessary to use force (such as airstrikes that we are referring to in this article, which when used will be a violation of basic human rights such as right to life, private and family life to name a few) to counter the same violation of human rights that is already happening due to another state that used the same method or worse (referring mass chemical weapon attacks on unsuspecting civilians) . The question is whether one violation of human rights can be justified in order to stop another violation of human rights – A trend that is becoming the new international norm.
The touchstone in this area is Article 2(4) of the United Nations Charter which establishes a broad prohibition on the use of force subject to two exceptions, namely where: the Security Council passes a resolution under Title VII; under the doctrine of collective self-defence under Article 51. However, in light of recent shifts in global politics the role of one of the key players in enforcement, namely the United Nations Security Council, has been called into question. The UN Security Council has historically played a key role in authorising the use of force to prevent abuses and uphold human rights. However, the recent rift between Russia and its Western Security Council colleagues has resulted in a failure by the Council to reach agreement on the appropriate response to alleged violations of human rights committed by Russia’s ally, the Assad government in Syria.
This post will consider one of the most significant yet disputed developments in human rights law, namely the emergence of a customary international norm permitting the use of force on civilians to punish and prevent the abuses of human rights again on civilians.
The Nature of Customary International Law
Customary international law is unique in the way that its rules and principles arise not from any codification, statement, or international principle but rather from the actions and beliefs of actors on the international stage. This comprises two elements: ‘state practice’, which is the way in which states in fact act; ‘jus cogens’, which is the belief that these actions are permitted or require by a norm of international law. The position is further complicated by the absence of any international body with the authority to pronounce on whether a customary norm has developed or emerged (though the ICJ and other international courts may do so in the context of a specific dispute which is referred to its jurisdiction), nor are there any established benchmarks (such as, for example, a threshold number of instances of state practice or statements of jus cogens) by reference to which this question can be assessed. Moreover, it does not require universality; states may exempt themselves from a customary norm by reason of ‘persistent objection’.
This means that the question of whether a norm has emerged must be assessed in light of the individual events on which it is based and the international response to these.The following sections will consider the implications of the air strikes carried out in Syria by France, the United Kingdom and United States in response to the chemical attack in April 2018 in the light of these principles of customary international law.
The Nature of the Development
On 7 April 2018 reports emerged that the Assad government had committed a flagrant breach of human rights through the use of chemical weapons on his own citizens in the town of Douma. The Violations Documentation Centre reported that:
“At the start of the chemical attacks, the smell of chlorine reached the center of the city of Douma. We could not determine the area where the chlorine rocket had fallen. Dead bodies were on the streets, the wounded were bleeding badly, and the medical crews were not sufficient for the large amount of cases…
The symptoms shown on patients “do not resemble chlorine attack symptoms. Chlorine alone cannot induce such symptoms because while it does cause suffocation, it does not affect the nerves. There were symptoms indicative of organic phosphorus compounds in the sarin gas category. But the smell of chlorine was also present in the place.”
However, these reports were disputed by the Syrian regime with the support of Russia, claiming that the attack had been fabricated as part of a Western campaign against Assad and Putin. Unsurprisingly, the UN Security Council failed to reach an agreement on the adoption of measures in response to the attack, with the United States and Russia each exercising their powers of VETO to thwart the proposals of the other.
This apparently left no established legal basis for intervention in Syria in response to the attacks. Despite this, a coalition composed of the United States, United Kingdom, and France have acted.
President Trump’s exposition of the United States’ justification for the attack have not been clearly or consistently explained, but appear to emphasise strongly humanitarian reasons and the need to uphold international human rights law and the prohibition on the use of chemical weapons, as well as to deter future human rights violations by the Assad regime and others. The United Kingdom has published a legal case setting out its justification for its involvement in the air strikes, explicitly placing reliance upon on a humanitarian exception to the Article 2(4) prohibition:
“the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention”.
It is noteworthy that this is consistent with the United Kingdoms position in response to the alleged use of chemical weapons in 2013, and is also consistent with France’s exposition of the legal justification for the intervention. Moreover, the fact that many countries (with the unsurprising exception of Russia and its allies) have welcomed the intervention which is a clear evidence of jus cogens.
So, what conclusions can be drawn from these developments?
These events therefore provide a basis for the proposition that a new norm of customary international law permitting the use of force in the case of serious violations of human rights has now emerged. In order to determine whether this is the case, it is necessary to examine the strength of the relevant state practice and jus cogens.
It might be said that a particularly strong evidential basis of state practice and jus cogens would be required to establish the emergence of such a norm, in view of the fact that such a development would be contrary to the UN Charter which is generally regarded as a lynchpin of international law. However, this is not necessarily the case; Article 2(4) prohibits only force which is “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. Since the protection of human rights is entirely consistent with the ‘Purposes of the United Nations’, it might be thought that the use of force to this end falls outside the scope of the general prohibition.
However, the International Court of Justice (ICJ) has considered this argument and explicitly rejected it. In the ‘Corfu Channel Case’ the ICJ held that“ the use of force could not be the appropriate method to monitor or ensure … respect’ for human rights”. As it is highly unlikely that a such a norm would conflict with an express pronouncement of the ICJ, the actions of the coalition in Syria cannot be explained on these grounds.
There is, however, scope for such a development to take place: Article 31(3)(b) of the Vienna Convention on the Law of Treaties, which establishes a regime for the interpretation and application of international agreements such as the UN Charter, provides that: “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. Respected academic commentators including Lowe and Tzankopoulos have expressed support for this analysis in the context of the emergence of a customary norm permitting forceful intervention in response to breaches of human rights. It also assists that the UK at least has set out clearly the scope of the custom which it asserts, based upon three central conditions: the existence of convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief; the circumstances are such that it is objectively clear that there is no practicable alternative to the use of force; the propose use of force is both necessary and proportionate (in the sense that it entails the minimum degree of force necessary to achieve the end in question and has no other purpose). This provides a clear basis for states to object, and thereby lends greater force to the absence of objection for the purposes of establishing jus cogens.
On the other hand, it may well be too early to state that a new norm has emerged. Only time will tell whether the actions of the coalition are considered genuinely consistent with international human rights law. Not withstanding a positive initial, instinctive reaction, it remains possible that the international community will with time as the horrors of Assad’s human rights abuses become less raw, come to denounce the erosion of the Article 2(4) prohibition on the use of force. This is particularly so given that the coalition states had arguably not exhausted all accepted and legitimate routes. In particular, an alternative provision designed to address the situation in which one member of the Security Council vetoes a response is made by the Uniting For Peace (1950) Resolution, which allows the disputed matter to be brought before the UN General Assembly, stating that:
“… if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security”.
With time, or perhaps if action is taken in reliance on an alleged customary exception to the prohibition on the use of force in circumstances which are less compelling than those which arose in Douma, states may come to the view that exhaustion of this route is an additional requirement. This highlights the difficulty in establishing the scope of a customary rule even where the evidence suggests that one has emerged.
For this reason, although the military response taken by France, the United States, and United Kingdom following the attack in Douma is arguably the strongest evidence yet of the emergence of an exception to the prohibition on the use of force in response to human rights violations, only with hindsight can its significance as a crystallisation of a customary norm or merely an anomalous breach of Article 2(4) be fully understood. Either way, the right to life which is a universal human right, is being violated of innocent unsuspecting citizens who are helpless given the above actions taken by international states.
- Henkin, How Nations Behave, 2nd ed (1979, Colombia: Colombia University Press).
- Lowe, International Law: A Very Short Introduction (2015, Oxford: Oxford University Publishing).
- Oppenheim, Oppenheim’s International Law, Volume 1: Peace, 9th ed (1995, Oxford: Oxford University Publishing).
- Shaw, International Law (2014, Cambridge: Cambridge University Publishing).
By Simran Kalsi,12828902