Legal perspective: Syria gas evidence must be sound

The Security Council can do this only if it has determined that there is a threat to peace, breach of peace or act of aggression, and it aims to maintain or restore international peace and security. The Security Council has not yet determined that the situation in Syria can be classified as the abovementioned categories of threats and aggression. Therefore, this option is not available.

As an exception to the general prohibition on the use of force, Article 51 allows states to use force in self-defence until the Security Council takes measures for maintaining international peace and security. However, Syria has not attacked any state and therefore, no state can claim the need to act for self-defence.

Consequently, international lawyers have to look into a third option: the responsibility to protect (R2P) to justify military action.

Responsibility to protect is not a settled principle of international law, but an emerging practice. The 2005 General Assembly resolution 60/1 mentioned it, while the 2009 resolution 63/308 decided to continue its consideration.

General Assembly resolutions of this nature are not binding, but are reflective of opinion of those states who vote for them. A very large number of states have supported Resolution 60/1 and it has some weight. Although not every instance is seen as legal, there is evidence of state practice of intervening on humanitarian grounds.


Resolution 60/1 has clearly laid out the contents of R2P and a procedure to be followed for acting on it. Paragraph 138 spells out the responsibility of states to protect its population from the following four crimes: genocide, war crimes, ethnic cleansing and crimes against humanity.

The procedure of resorting to R2P and what it entails is explained in paragraph 139. Countries should first use appropriate diplomatic, humanitarian and other peaceful means through the United Nations, in accordance with Chapters VI and VII of the Charter. If peaceful means are proven inadequate, timely and decisive collective action should be taken under Chapter VII and Chapter VIII through the Security Council and in cooperation with relevant regional organisations.

Therefore, both the Charter and R2P give the Security Council a central role in the use of force against other states and protecting populations.

The alleged use of chemical weapons against civilians in Syria could be seen as a war crime and crimes against humanity and hence, form the basis of a humanitarian argument to justify military action. For this, two points must be established: first, that chemical weapons were used; and that the Syrian government used them. The US secretary of state outlined evidence of the Syrian government using chemical weapons that killed 1,429 people. But the evidence was not revealed, just asserted by John Kerry.

The most appropriate forum is the Security Council for determining these points, not one extremely powerful state. The UN inspectors, who are in the field, will submit their report to the Security Council, and if the use of chemical weapons is established, it is for the Security Council to determine who is responsible.

The US should also submit the evidence to the Council. But given the 2003 Iraq experience, the evidence must be sound. If the Council determines that the Syrian government was responsible, necessary measures, including proportionate military strikes, can be taken. If the Security Council is blocked by a possible Russian veto, states can form a coalition of the willing and take proportionate measures based on humanitarian grounds.

But it cannot be reiterated enough that whether chemical weapons have been used and who are responsible must be determined by the Security Council. Letting a few powerful states to determine these points is too dangerous and would seriously undermine the international legal order.

The author is a senior lecturer in law at the University of Hull, UK.

Published in The Express Tribune, September 1^st, 2013.