Not Even the Brits Can Make the Case Bombing Syria Is Lawful

by Deborah Pearlstein

Good thing nothing much happened while I was away on summer vacation… So as I wrote here last spring, there’s no clear basis under international law for a U.S. use of force in Syria – no UN Security Council resolution, and no apparent claim at this stage that the United States is acting in self-defense. The only theory of legality in play seems to be the one put forward by the British government, right before Parliament voted to reject the use of force in Syria. Namely, that force may be justified as part of an emergent customary norm permitting humanitarian intervention (see, e.g., NATO intervention in Kosovo).

The statement from the UK Prime Minister’s Office says a state may take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”

But it just can’t support U.S. action here. Here’s why.

1. It’s not the law. With great respect to my friends and colleagues who hold a different view, there is no “doctrine of humanitarian intervention.” I admittedly grew up in the school of customary international law that defined CIL as a “general practice of states” followed out of a sense of legal obligation. Set aside for a moment the reality that the use of force without Security Council authorization is far, far from a general practice of states. The primary example relied on here – NATO intervention in Kosovo – was taken in broad recognition of the view that NATO was violating the law in order to undertake it. That is, NATO didn’t intervene because it thought it had a legal obligation to intervene. It intervened despite its understanding that it had a legal obligation not to. Even if one embraces the more modern approach to CIL – that one can (and should) glean the state of customary law from what states say rather than what they do, I have been struck by how weak regularly cited statements of “support” for such a doctrine really are (excepting the UK’s vigorous statement this week). As ever, readers are invited to reopen that debate here.

2. The UK’s requirement – that the purpose of intervention be to “alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons” – doesn’t seem to be a particularly apt description of the U.S. purpose in intervention. Few could doubt the existence of an overwhelming humanitarian catastrophe in Syria today; few could doubt its existence last year either. The U.S. failure to act earlier does make one somewhat skeptical humanitarian purposes are newly dispositive now. Indeed, in his remarkable interview with PBS a few nights ago, President Obama was fairly explicit in discounting the humanitarian rationale: “[A]lthough what’s happened there is tragic, and although I have called for Assad to leave and make sure that we got a transitional government that could be inclusive in Syria, what I’ve also concluded is that direct military engagement, involvement in the civil war in Syria, would not help the situation on the ground. And so we’ve been very restrained…. But what I also said was that if the Assad regime used chemical weapons on his own people, that that would change some of our calculations. And the reason has to do with not only international norms but also America’s core self-interest.” The President’ defense of potential action thus instead focused largely on other concerns. He expressed concern, for instance, that “a breach of the nonproliferation norm [would] allow[], potentially, chemical weapons to fall into the hands of all kinds of folks.” I guess I would’ve thought he thought the weapons were already in the “wrong hands.” What the President may mean is that they might fall into the hands of groups who are actively trying to do the United States or U.S. allies in the region harm – an inclination the current Syrian regime has mostly not shown in this conflict. In this sense, the purpose seems better understood as a modified and stunningly broad theory of anticipatory self-defense. But it stretches anticipatory self-defense to absurd proportions to suggest that State A can use force against State B because there’s a chance State B’s weapons might someday be acquired by Actor C, which might then use weapons formerly owned by State B against State A. In any case, as a policy matter, a military strike that has the effect of weakening the current Syrian government would seem to make it more likely that the weapons will fall into the hands of a group unfriendly to the United States, particularly in the period following any collapse of the current regime. Perhaps then the President meant to reassert his other statement of U.S. interest – the need to ensure that the “international norm against the use of chemical weapons … be kept in place.” This theory – the need to ensure there are consequences for the violation of international law, in particular the international law prohibiting the use of chemical weapons – is likewise understandable. But it is also unrelated to humanitarian purposes. And it is as suspect as the previous rationale as a policy matter as well; to protect the international law prohibiting the use of chemical weapons, the United States would violate international law prohibiting the use of force without Security Council authority. The net benefit to the international legal system, in which the United States surely has an interest, seems rather a wash.

3. Because the U.S. purpose in intervention isn’t primarily about “the relief of humanitarian need,” the United States’ use of force seems unlikely to comply with – or, perhaps better put, be measured by – the conditions the UK statement sets forth. Why would the U.S. use of force be “necessary and proportionate to the aim of relief of humanitarian need” if that is not in fact the principle aim? Indeed, the President’s repeated emphasis on U.S. “core self-interest” is not purely political. Under the legal theory of domestic executive power his administration advocated to justify the use of force without congressional authorization in Libya, the criterion the Office of Legal Counsel used to cabin the executive power it was asserting was that there must be a kind of “national interest” present that has traditionally justified such unilateral executive action without prior congressional approval. What might such an interest be? Classically – individual or collective self-defense. Purely humanitarian purposes? I’m not sure that’s ever been the sole presidential pitch. With Haiti, there was the danger of an influx of refugees; with Kosovo, it was the flouting of UN resolutions and the “tinderbox” bordering our allies in Europe. The President may well be genuinely concerned for the plight of the Syrian people. But he’s caught between a constitutional rock and an international law hard place. And it leaves little room for complying even with the Brits’ generous (and novel) read of the law.

http://opiniojuris.org/2013/08/30/even-brits-can-make-case-bombing-syria-lawful/

13 Responses

  1. There is a possibility that the sarin gas was deployed by al-Nusra, which is an affiliate of al-Qa’ida, which committed acts of war against the U.S., a NATO member. Therefore, military action is justified not only under international law but also under the NATO charter. You can argue as to whether military action is stupid, but it’s not illegal. And if it was, who would stop the U.S.? The UN is split on every issue.

  2. Was it also illegal when Reagan bombed Libya, or when Clinton bombed Serbia? It’s something almost every President has done in the last 40 years, and we were never under threat when they did it.
    If someone is using chemical weapons and nobody does anything, then soon everyone will start using them. Everyone is jumping the gun here. We haven’t done anything yet. We haven’t seen the evidence yet. Just wait it out, and if we start bombing before we know the facts, then by all means get upset.

  3. I’m sure that nonintervention will make the Syrians feel much better while they choke to death on deadly chemicals, and all our legal niceties will make us feel better about watching them writhe on the ground and die. 
    Let the record indicate that while Assad was pouring sarin on populated areas, the Western nations cringed in self-doubt and legal wrangling. This is the true damage of Bush/Cheney: when actual, real, not-imaginary WMDs are used by tyrannical regimes, America’s ability to lead a timely response has been hobbled.

  4. We’re talking about law here? How about using chemical weapons? Is it lawful.
    This is not about legality. This is about humanity and moral. This is a battle worth fighting for. US made mistake on Iraq but it doesn’t mean when the right situation is there, they should not act. 

  5. That’s really cute. Did anyone check how legal it was to murder babies with chemical rockets while you sit on Itunes and order more pop music?  Fuck the law.  Give me the button I will nuke Assad now. Laywers, please everyone meet near Assads palace, your fate is sealed as well.

  6. Response…  Where the hell is our historical memory – or are we truly the United States of Amnesia?  If indeed those who use chemical weapons should be punished then how should the U.S.A. be punished for killing hundreds of thousands in Vietnam with Agent Orange and napalm and causing thousands of birth defects to this day.  Or our use of depleted uranium ammunition in Iraq and Afghanistan.  Or our recent sale of outlawed cluster bombs to Saudi Arabia in violation of an international ban. (See Foreign Policy magazine) Our abominable hypocrisy goes on and on while sleepwalkers like the above commentators yammer away exposing their ignorance.  They should bow their heads in shame.

  7. By this incredibly stupid line of reasoning, there would have been no international justification for intervention in stopping the Holocaust!

  8. Response…The case needs to be made in why international law is important.  Some day we may be the country depending on international law that has a basis in human and sovereign rights.  Obama and the current powers to be seem to have no awareness that the same powers that they hold close to their vest in this administration may be the ones that they may need access to when they are not in power in the next administration.

  9. This author is retarded! The  USA does not need the UNs permission to go to war,never has never will…get a clue! More over, the fact is that besides treaties and trade agreements there is simply no such thing as “international law!” To claim the USA is acting illegally based on a non existent international code of law is just stupid! Whats next Star Trek law? Did the USA also break the laws of the United Federation of Planets as well?  

  10. It seems there is something no one talks about because we are so arrogant I guess.
    Isn’t it possible, if we attack Syria and they did release nerve gas on their own people, we will be the next victims? 

    Sure, it’s very dangerous for the Syrians and likely to result in ruin for them, but what makes us invulnerable?  How do we know they would not respond that way?
     

    I think any act of war should be c

  11. Is it possible Israel gassed the Syrian rebels, trying to get the USA involved?

  12. @Henry: If it was al-Nusra, the Al Qaeda affiliate, they are affiliated with the rebels. Do you understand the craziness of your logic here? It is also likely that they rec’d the gas from Saudi Arabia. To say we can justify our intervention because Al Qaeda was (peripherally) involved is sheer insanity, since the very people we’d be helping are the ones we say are threatening us.
    @Matt: the Syrians have been choking to death on bullets and morters for 3 years, where were you? Is it only chemical weapons killing people that gets your goat? Or does the fact that about 100,000 have died from “conventional” means not have warranted intervention before? The bottom line is this: what do you expect a military strike by the US to do? How will it stop Syria from further kiling? This strike is not about sending a message to Syria, it is about Pres. Obama appearing resolute and following through on his “red line in the sand”. It won’t make a bit of difference, and, will likely end up killing innocents, as all of our military interventions do. You lay out no scenario that explains how military intervention will make the Syrians any safer- it will however, make YOU feel better, and I guess that’s what this is all about isn’t it?
    @Bernie: We did not intervene to stop the holocaust in WWII. WE didn’t even know the extent of it until after we occupied Germany.
    @Steve: Strak Trek. Really?
    @the rest of you who argue for intervention: 426 is the number of children the US claims were killed by the gas we claim was used by Assad’s government. 300+ is the number of kids ikilled by US drone attacks in over 5 countries in the past few years. If it is justifiable that we bomb Syria for their child killing, then, well, who should be retaliating against the United States for ours?
    Oh that’s right. When we do it, it’s ok.
     

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