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Is a preemptive strike on Syria’s WMD legal?
By YONAH JEREMY BOB
30/01/2013
Analysis: Not all use of chemical weapons an immediate, massive disaster.
 
As news reports are rampant with the possibility of an Israeli or US strike on Syria’s chemical weapons, it is important to recall the law of armed conflict principles which come into play.

There is a range of views on preemptive strikes.

Some hold that preemptive strikes are never permitted, as the UN Charter requires an existing “armed attack” for one to use force and carry out self-defense measures.

In the post-September 2011 world, a growing group of nations take the view that if an attack is “imminent,” a preemptive strike can be justified.

One paradigm case is with nuclear weapons, where even a small “dirty bomb” can cause unimaginable carnage, and many would justify attacking a state’s nuclear weapons capability prior to an attack, which Israel has done in the past.

But Syria’s chemical weapons pose unusual issues.

According to former ambassador to Canada and former Foreign Ministry legal adviser Alan Baker, there would be a basis for a preemptive strike if “Syria was uncovering the wraps on its chemical weapons and getting ready to use them, with indications they would be used against Israel.”

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But what if Syria only meant to use chemical weapons against its own people, such as the Syrian rebels? “If they were using them against their own people, then maybe Israel can’t use the self-defense argument” to initiate a preemptive strike, said Baker.

“There would be no case for anticipatory self-defense according to customary international law if the threat is not against us,” he said.

Baker elaborated on a “Canadian philosophy” of there being a “right to protect” others, namely that if a nation is “of the view that a people are under threat, it could be the interest and right of any state to protect that people.”

The US and its allies invoked such a “humanitarian approach” in the former Yugoslavia in the mid-1990s and most recently in Libya in 2011.

In both those cases, however, especially in Libya, the intervention was based on a widespread and multinational collective intervention with some degree of UN support.

Regardless, Israel has never undertaken such a mission nor claimed such a right.

Baker said that Israel has “never been in a position with its neighbors where it was necessary,” while citing some accounts of Black September in Jordan 1970 which state that Israel had threatened to intervene if Jordan’s regime allowed itself to be taken over by Palestinian nationalists.

All of this creates a difficult dilemma: What if it is clear that chemical weapons are about to be used or transferred, but unclear whether the intent is to use them against other Syrians or to use or transfer them to terror groups for use against Israel? In a situation of “ambiguous intelligence,” Baker said, there might be a justification for “our intervention. The tendency and percentage of likelihood” of an attack on Israel “would need to be pretty high in terms of intelligence indications” to justify a preemptive strike in such a situation.

Do the calculations change if Bashar Assad is toppled, and the Syrian rebels, who some have said have associations with al-Qaida, take over? If the rebels took over, the “question would be the degree to which the threat is realistic. If Israel’s military people, on the basis of their own intelligence and considerations, come to the conclusion that there is a danger” the weapons could “fall into the hands of terrorists,” and that this will lead to their “use against Israel, then a preemptive strike would be justified,” said Baker.

In other words, what is poorly understood by partisans in the debate over preemptive strikes who have not had to deal with anything beyond theoretical considerations, is that much of the legal conclusion will derive from the indications of intelligence about the threat.

Those who say preemptive strikes can never be justified appear to ignore scenarios where intelligence is certain of an imminent and disastrous attack.

And those who invoke preemptive strikes the second there is any change in status of the chemical weapons appear to ignore the possibility that intelligence may show that the threat is not against Israel.

The other dimension that differentiates chemical weapons from nuclear weapons is that not all chemical weapons use, in any quantity, is necessarily an immediate, massive disaster.

In 1988, Saddam Hussein killed 5,000 people in an instant when 20 aircraft dropped mustard and sarin gas on the Kurdish-Iraqi city of Halabja. In 1995, 13 Japanese were killed when sarin gas was released into the Tokyo Metro.

Both incidents were terrible tragedies, but the gulf in the number of fatalities shows that different amounts and capabilities of delivery for chemical weapons can impact how disastrous its use can be.

Baker said that while Israel could strike preemptively to stop an “immediate, overwhelming and overpowering” threat, there might be scenarios where a limited chemical weapons transfer or use might not be significant enough to justify a preemptive strike, or might require limiting the nature of the preemptive strike.

For example, a massive threat may justify a massive use of airpower, whereas a more limited threat might only justify a narrow and targeted air strike or a limited strike by a small group of covert operatives on the ground.

Again, intelligence would be crucial in evaluating the threat and the legality of various responses.

As the world gets more complex with more complicated actors, and smaller states’ acquisition of non-conventional weapons becomes viewed as a greater threat, the interplay of intelligence and law on the issue of preemptive strikes will only become more important.
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