DW: What are the requirements for a military attack in accordance with international law?
Stefan Talmon: An air strike, like any attack against another state, must be preceded by a mandate from the UN Security Council. According to the UN Charter, the five permanent members of the Council must approve measures of a military nature. An exception is the case of self-defense.
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When can an authorization from the UN Security Council be dispensed with? There are exceptions?
In the field of international law, the case of “humanitarian interventions” is discussed, when a State applies violence or other inhumane practices against its own population. It has been reflected on whether other States can intervene to defend the population of their own Government. That was, among others, the argument used to justify the NATO air strikes against Serbia, in the context of the Kosovo conflict, in 1999. At that time, some States used the argument of humanitarian intervention. The justification was later rejected by the majority of the States, so that today we can affirm that international humanitarian intervention, without authorization from the UN Security Council, is not protected by international law.
Has the airstrike on Syria sparked discussions on a reform of international law?
There are always discussions at the expert level, but most of the colleagues who have spoken out so far on the matter qualify the US attack on Syria as contrary to international law.
Does international law contemplate possibilities to act for “moral reasons”?
International law is very neutral. There are positive rules, established after WWII, that determine when the use of force is legal and when it is not. Those rules make up a narrow margin. The use of force was basically centralized at the UN, with the intention of preventing individual states from pretending to do justice on their own.
Professor Stefan Talmon, University of Bonn.
If the United States now contravened international law, could it fear sanctions?
Theoretically, Syria could take the case to the Security Council. But since the United States is one of the five permanent members, no agreement will be reached there to condemn it.
The German Government considers the US attack “understandable” …
From a moral point of view, the attack could be understood. Also from the emotional. An injustice occurs and you want to act against it. But the law lays down clear rules and, before launching attacks, requires clear evidence. Both Syria and the United States are parties to the 1993 chemical weapons agreement. It sets out what to do in the event of a chemical weapons incident: an international investigation must be undertaken and the results must be presented to the conference of the signatory states, which can then recommend measures, but only peaceful ones. If you believe that military measures are required, you should go to the Security Council. Those are the rules.
German Defense Minister Ursula von der Leyen believes that there is already a Security Council resolution authorizing the use of force against Syria in the event of a chemical weapons attack. How about that position?
It is not correct. There is a resolution, Nr, 2118, from 2013. It states that if chemical weapons are used in Syria – regardless of who does it – measures will be applied. To do this, however, the Security Council must be reactivated. Resolution 2118 itself does not provide measures, and less of a military nature. For this reason, that resolution cannot serve as the basis for unilateral action by the United States.
Stefan Talmon is Professor of Public Law, International Law and European Law at the University of Bonn.