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.”
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.