The Airstrikes Against Syria in Response to the Alleged Use of Chemical Weapons

On 17 April 2018, Mr Paolo Gentiloni Silveri, President of the Council of Ministers, reported before the Senate of the Republic on the developments of the situation in Syria (5th Meeting, XVII Legislature). In doing so, he also summarized the Government’s position on the airstrikes against Syria conducted by the United States, France, and the United Kingdom on 14 April 2018, presented as a response to the chemical weapons allegedly used in Douma by the Syrian army a few days before. Mr Gentiloni firstly commented upon the credibility of these allegations:

Eventually, the Joint Investigative Mechanism (which is a partnership between the Organisation for the Prohibition of Chemical Weapons and the United Nations) determined that in the last years, at least three times, the Syrian army resorted to using chlorine gas.

Moreover, it confirmed the use of nerve gas in the attack in KhanShaykhun that occurred exactly one year ago. You will recall that on that occasion there was a response by the United States. But the same body – the Joint Investigative Mechanism – determined that Daesh as well, on a couple of occasions, resorted to using chemical weapons in the Syrian context.

With respect to the decision to conduct airstrikes, Mr Gentiloni mainly reiterated the position that had already been taken by Italy in the case of the response by the United States to the Khan Shaykhun chemical attack.[1] He said:

This is the background against which the Government, a few hours after the events of the 14 April, assessed the response that had been decided by the United States, France, and the United Kingdom – the two European States most militarily involved in Syria. The Government considered it as a motivated response. Since in these circumstances even words matter, I want to underline that this adjective is the same one that the Government used exactly one year ago to describe the response to the use of chemical weapons in Khan Shaykhun.

Mr Gentiloni, however, further qualified the military action:

A motivated and, I would add, targeted and circumscribed response. The response is targeted and circumscribed because, at least for now, there are no indications that there were civilian casualties or significant collateral damage during this military operation, which, as you know, was targeted and circumscribed to three chemical weapons facilities. The fact that no incidents occurred with the Russian or the Iranian army demonstrates for sure that there was a coordination between the forces which conducted the airstrikes and the other forces on the battlefield, so as to avoid clashes between them and prevent civilian involvement.

The adjectives used to qualify the armed attack (“motivated”, “targeted” and “circumscribed”) are similar to those already used to describe the reaction to the Khan Shaykhun episode (“motivated” and “proportionate in time and manner”).[2] They clearly mirror the requirements of a law-abiding use of force, although Mr Gentiloni did not made explicit reference to international law nor, more specifically, to any legal basis for the action, so that Italy’s position on its lawfulness can only be presumed. This contrasts with the stance taken by the United Kingdom, the only State that put forward a legal argument by framing its own conduct in terms of humanitarian intervention.[3] However, neither the United States nor France have been clear about the legal justification of their behavior: the former said that the aim was to prevent and deter the proliferation and further use of chemical weapons and thus might have made an indirect reference to humanitarian intervention (without expressly naming it),[4] whereas the latter also stressed the violation of international law and UN resolutions by the Assad regime, which perhaps frames such conduct as an armed reprisal.[5] Both doctrines are, in any case, widely regarded as unlawful since they do not fit within the framework of the law on the use of force as enshrined in the Charter of the United Nations.[6] Similarly, convincing grounds can hardly be said to exist for extra-Charter (customary) exceptions. Nonetheless, some have maintained that there is an emerging customary norm allowing States to intervene in similar cases or, at least, that in exceptional circumstances, such as the one at hand, the unlawful use of force may be condoned because of its legitimacy.[7] In this respect, the frequent reference by Italy to the idea of a “motivated” and “understandable” military responsemay play a role in the consolidation of such a development, which evidently erodes the function of law.

The same absence of legal arguments characterizes the position that Mr Gentiloni took soon thereafter, when he said that Italy’s constant approach to the Syrian crisis excludes a military solution, as only negotiations with the incumbent Government aimed at political transition can be effective. Similarly, no legal considerations were put forth when the President of the Council of Ministers addressed the issue of the logistical support to the attack. He stated:

Italy did not participate in the airstrikes that I have tried to describe. In fact, we explicitly attached conditions to our logistic support, which we traditionally give to our allies and in particular to the United States on the basis of the bilateral treaties signed in 1954 and 1995. Our support, which was provided primarily through the air base located in Aviano in the province of Pordenone, was made contingent on no military action being conducted from the Italian territory directly against Syria, and that is what happened. That is what we have maintained from the beginning, that is what happened in the early hours of the 14 April.

On the political-diplomatic plane, since the beginning we have insisted with our partners and allies, with all our interlocutors, on the necessity that the attackand- response dynamics would be carried out so as to prevent any escalation, that is to say, that the circumscribed and limited character [of the reaction] would ensure that no escalation could follow from these events.

In this case, too, a legal assessment would have been appropriate. Assuming that the airstrikes were unlawful, the international responsibility of Italy could be triggered for providing assistance in the commission of an internationally wrongful act. More precisely, tanker aircrafts, drones for reconnaissance missions and escort fighters supposedly took off from air bases located in Italy.[8] Arguably, this kind of support contributed in a direct way to the airstrikes, thus facilitating the commission of the internationally wrongful act.[9]

[1] See the statement delivered by Amb. Sebastiano Cardi, Permanent Representative of Italy to the United Nations, on 7 April 2017 at the 7919th Meeting of the UN Security Council, which reads as follows: “Italy understands the reasons for the United States’ military action, which was proportionate in time and manner and a response to a prolonged sense of impunity that is completely unacceptable. It is also a deterrent to the risk of any further use of chemical weapons in Syria, in addition to the cases already ascertained by the United Nations, for which there already should have been a prompt and meaningful response, including in terms of accountability, which the Council must continue to seek”. The statement is available here. The same stance was repeatedly taken by the Minister of Foreign Affairs and International Cooperation, Mr Angelino Alfano, on several occasions, namely, by intervening before the Senate, through a joint declaration of the G7 Foreign Ministers, and by means of an official press release of the Ministry: see Pertile, “The Use of Chemical Weapons at Khan Shaykun and the US Attack on a Syrian Airfield”, IYIL, 2017, pp. 502-505.

[2] See previous note.

[3] The position of the Government of the United Kingdom is expressed in a policy paper published on 14 April 2018, where it was stated that “the UK is permitted under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering” and that “[t]he UK considers that military action met the requirements of humanitarian intervention in the circumstances of the present case”. The policy paper is available here.

[4] See the statement delivered by the US President, Mr Donald Trump, on 13 April 2018, available here.

[5] See the statement delivered by the French President, Mr Emmanuel Macron, on 14 April 2018, available here.

[6] On humanitarian intervention, see Corten, “The Law Against War: The Prohibition of the Use of Force in Contemporary International Law”, Oxford, 2012, pp. 548-549, and Gray, “International Law and the Use of Force”, 3rd ed., Oxford, 2008, p. 51; on armed reprisals, see the same sources: Corten, p. 223, and Gray, p. 150.

[7] Similar arguments were raised by Cassese and Simma, respectively, with reference to the NATO bombing in Serbia. See Cassese, “Ex Iniuria Ius Oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?”, EJIL, 1999, p. 23 ff.; Simma, “NATO, the UN and the Use of Force: Legal Aspects”, EJIL, 1999, p. 1 ff. Monica Hakimi used the expression “informal regulation” to refer to the practice of condoning military operations such as the airstrikes against Syria. See Hakimi, “The Jus ad Bellum’s Regulatory Form”, AJIL, 2018, p. 151 ff.

[8] “Gentiloni: Siria, l’Italia non parteciperà ad azioni militari”, Corriere della Sera, 12 April 2018, available here.

[9] Commentary to Article 16, Responsibility of States for Internationally Wrongful Acts, YILC, 2001, Vol. II (Part Two), para. 5. See also Jackson , “Complicity in International Law”, Oxford, 2015, pp. 153-154.

Mr Paolo Gentiloni Silveri, Senate of the Republic, 17 April 2018.

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