Why Bombing Syria is Probably Illegal, No Matter How Congress Votes
If the United States bombs Syria, whatever else happens, the international norm to respect the processes of international institutions and conventions will be dealt a serious blow. The irony is that this norm-busting will be launched in the service of enforcing a noble international norm.
A week ago, it seemed that an American attack on Syria was all but inevitable. Now, with President Obama turning the question over to Congress, transmitting mixed messages on his willingness to engage in military action and preparing for Tuesday night’s address to the American people, the forecast is hazier. The American public seems sceptical, with only 36% supporting strikes, and members of Congress are a harder sell than many anticipated. And there is a third knock against even a limited and “proportionate” cruise missile strike: its legality under international law.
Looking at the United Nations charter, there are only two circumstances in which member states may make war against other countries: (1) when a state directly threatens another’s security; or (2) when the Security Council votes to authorize force. Neither condition obtains in the present Syrian bloodbath. As lethal and as inhumane as the Syrian regime has been in its assault upon the Syrian people, Bashar al-Assad has not threatened its neighbors. And since Russia stands firmly against any attack on Syria, its veto forecloses the possibility of a Security Council resolution.
On what basis, then, is Obama staking a legal claim for a strike on Syria? He has been bandying about several claims that would not survive moderately robust Socratic questioning in a law-school classroom.
First, Obama is trying to deflect attention from his ultimatum to Syria by internationalizing it:
I didn’t set a red line. The world set a red line. The world set a red line when governments representing 98 percent of the world’s population said the use of chemical weapons are abhorrent and passed a treaty forbidding their use, even when countries are engaged in war.
The American president is referring to the Chemical Weapons Convention (CWC), an agreement concluded in 1997 with 189 signatories that prohibits countries from possessing or using chemical weapons. But Syria, along with six other United Nations members, is not a signatory to the CWC. The Geneva Protocol of 1925 also bans chemical warfare, and Syria is bound by that prohibition, but nothing in either agreement gives any signatory the authority to retaliate militarily against countries harboring these weapons. So while Obama is correct that “the world set a red line” of some sort against chemical weapons, he is being disingenuous in arguing that his red line is a logical corollary of the international norm. No international agreement gives the United States the power to unilaterally enforce the terms of the Geneva Protocol with military strikes.
This is why the Obama administration trumpets the support of several countries for its pending campaign in Syria. It released a joint statement last Friday signed by Australia, Canada, France, Italy, Japan, South Korea, Saudi Arabia, Spain, Turkey and the United Kingdom calling for “a strong international response to this grave violation of the world’s rules and conscience that will send a clear message that this kind of atrocity can never be repeated”:
Those who perpetrated these crimes must be held accountable. Signatories have consistently supported a strong UN Security Council Resolution, given the Security Council’s responsibilities to lead the international response, but recognize that the Council remains paralyzed as it has been for two and a half years. The world cannot wait for endless failed processes that can only lead to increased suffering in Syria and regional instability. We support efforts undertaken by the United States and other countries to reinforce the prohibition on the use of chemical weapons.
The statement explicitly recognizes that American efforts will circumvent the “failed processes” of the United Nations, implicitly confessing that the “strong international response” will buck international law. Notice that the “other countries” joining America in the military intervention go unnamed. (There may be zero.) Remember that the parliament in the UK has rejected a proposal from David Cameron, the prime minister, to deploy its military against Syria, and that France is deeply unsettled on the question. Finally, note that nothing in the joint statement signed by America’s allies suggests that military intervention is the favored method of reinforcing the chemical weapons ban. This is weak tea, not a broad international coalition favoring military action in Syria.
The last-straw attempt to legitimize American military action without UN backing is to advance it as a humanitarian intervention on the model of the Kosovo war of the late 1990s. There are, I think, circumstances in which humanitarian interventions are justifiable, and the nightmare of the Syrian civil war—witness the awful videos showing victims of the August 21st sarin gas attack—makes it plausible case on the surface. But here is the problem. As legal philosopher Fernando Teson argues, launching cruise missiles into Syria cannot plausibly eliminate al-Assad’s capacity to deploy more chemical weapons against his people. The Obama administration has pitched the anticipated strikes as a symbol of the world’s revulsion against the Syrian leader’s use of chemical weapons. The cruise missiles will deliver a promised punishment to Assad for crossing a red line. They will be targeted, narrow strikes, limited, as Obama says, by both “time and scope” and will, in Denis McDonough’s words, “underscore that [Assad] should not think that he can get away with this again”. These constraints might be wise, given the largely communicative aim of the mission, but they disqualify the campaign from the status of an emergency humanitarian intervention.
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