John Bellinger Responds to Julian Ku on Intervention in Syria

[John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter LLP in Washington, DC and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009.]

Julian invited me to respond to his post about my op-ed on the international law applicable to intervention in Syria.

It is not accurate to say that the op-ed “endorses non-legal intervention in Syria.” Indeed, it does not “endorse” intervention at all.

But I can see how Julian may have been misled, since he linked to a reprint in the San Antonio Express News of my original op-ed in the Washington Post. The Texas paper (perhaps not surprisingly, given views of international law in Texas) entitled my article “International law has failed Syria; it’s time to intervene” — which was quite the reverse of what the op-ed said. The Washington Post more accurately titled my article (in the print editions): “Aiding Syria: Easier said than done — International law presents many obstacles to a quick U.S. intervention.” (Note: Op-ed writers don’t get to approve the headlines given to their articles.)

In fact, I pointed out that the Obama Administration had been prudent to be cautious about intervening in Syria. I said:

Intervention without an international legal basis could make it more difficult for Washington to criticize other countries if they intervene in neighboring states based on less laudable motives. Inserting more arms into an already unstable region risks more bloodshed, and those weapons could fall into the hands of groups hostile to U.S. interests, as happened in Libya.

But I added that “As the violence in Syria increases…the president is likely to feel compelled to provide more than political support and non-lethal aid.”

Julian asks at the end of his post:

If one really thought international legality was so crucial, wouldn’t it be better to seek out a plausible legal theory, rather than simply rely on muddy political formulations? For instance, wouldn’t it be easier just to recognize the Syrian opposition as the government of Syria, and get their consent?

In fact, I suggested exactly this possibility. I said

If the Syrian Opposition Council becomes more inclusive and can legitimately claim to represent the majority of Syrians, and if it excludes terrorist groups and other extremists, the administration may conclude that it is legally permissible to provide military assistance based on the council’s consent.

Of course, there are also other potential legal rationales for intervention, including a possible argument for a No Fly Zone that would extend from Turkey into Syria, based on a Turkish theory of self-defense. But I did not have space to describe these alternative theories.

There are counter-arguments to each of these theories. So I also noted the possibility that

the administration could intervene in a limited way to protect civilians without asserting a legal basis, as the Clinton administration did with its participation in the 1999 NATO bombing campaign of Kosovo, to protect Kosovars from atrocities committed by Serbia.

My concluding paragraph did not endorse intervention. It simply stated that if the violence in Syria continues, the Obama Administration (and other governments) “may” conclude that they need to intervene, whether they can come up with a good legal basis or not.