Syria Insta-Symposium: Will President Obama Reveal the International Law Justification for His Attack on Syria?

by Julian Ku

In a surprise announcement, President Obama announced today that he will seek congressional approval for his plan to launch military strikes against Syria.  This is a smart decision, both politically and legally, since it will force many of his congressional critics to reveal their preferences, and take a position on this very difficult issue.  If they approve the strike, the President gets (some) political cover. If they disapprove it, the President gets some political cover as well, and maybe a way to wriggle out of his red line. (But note the President leaves himself an out: “Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective.”)

Interestingly, President Obama also made it clear that he’s “comfortable going forward without the approval of a United Nations Security Council that, so far, has been completely paralyzed and unwilling to hold Assad accountable.”

This sets up an interesting question for international law scholars.  If (as is still more likely than not) the U.S. goes forward with strikes, but without UNSC support, what will the U.S. government’s legal theory be?  Will the U.S. go forward with some version of the “humanitarian intervention” theory lately advanced by the UK and by folks like Professor Jennifer Trahan?  Will it argue, as Professor Hurd argues, that international law has evolved to allow humanitarian interventions of this kind?

Or will the argument lean more closely toward a self-defense theory, that the President alluded to today when he reminded his listeners that:

Make no mistake — this has implications beyond chemical warfare. If we won’t enforce accountability in the face of this heinous act, what does it say about our resolve to stand up to others who flout fundamental international rules? To governments who would choose to build nuclear arms? To terrorist who would spread biological weapons? To armies who carry out genocide?

I think this last point is going to be developed more in the next week as the debate in the U.S. heats up, largely because I think it is the part that is most attractive to members of the U.S. Congress.  I think the “humanitarian intervention” rationale is more legally attractive to international lawyers, but (as Prime Minister Cameron discovered) the rationale is simply not all that attractive to the voting public.

Still, President Obama has also suggested that “international law” matters here, and indeed, he is going to strike in order to uphold the system of chemical weapons regulation the U.S. has supported.  So it will be interesting to see if his advisers reveal an international law justification for this strike, and whether that justification will have any impact on the congressional debate.  I’m guessing no, and no.  But we’ll see.

 

http://opiniojuris.org/2013/08/31/syria-instasymposium-will-president-obama-reveal-international-law-justification-attack-syria/

2 Responses

  1. I suspect that President Obama had in mind his other “red line” and Iran when he mentioned governments that would “build nuclear arms,” apparently as opposed to governments that had built them and were about to use them against an ally of the United States. Will congresspersons ultimately do anything more, as a majority, than to sanctify in advance what the President wants to do?  Will the Obama doctrine regarding “imminent threat” (as opposed to a real threat and as opposed to an imminent armed attack) enter the debate?  As noted in my response to John Quigley, mere preemptive self-defense is not a sufficient claim under international or constitutional law (but I predict that Obama will get majority approval from Congress).
    Yes, it would be important for an informed debate in Congress and elsewhere to have the legal claim(s) of the Obama Administration articulated in far more detail than mere references to a “significant threat” to U.S. “national security” (which does not itself justify use of armed force under international law) or a desire to engage in a retaliatory punitive sanction response to an egregious violation of the laws of war (which also is not justified under present international law bsent some other claims to support legality under the UN Charter).

  2. p.s. today, Kerry made the connection to Iran and North Korea very clear.  Congress should address whether it expects that going to war to stop a country from producing certain types of weapons is acceptable.
    Actualy, the situation regarding Iran is far more complex because of Iranian direct support of Hezbollah and other groups in ongoing armed attacks on Israel and its stated objective re: Israel.  I have an article on 51 self-defense and collective self-defense in such a context that has been accepted for publication by a journal and might obtain a short-fuse expedited review by a few others.  It might be interesting here to address implications of the Obama doctrine and recent decisions regarding potential use of armed force against Iranian nuclear weapons production facilities. 

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