03 Sep Syria Insta-Symposium: Does the U.N. Charter Matter to the U.S. Senate’s Deliberations on the Use of Force? Nope
The legality under international law seemed to play an important role in the U.K. Parliament’s deliberations over whether or not to support a strike on Syria. The UK government issued an (admittedly bare bones) legal opinion which advanced a version of humanitarian intervention. So now that the U.S. Congress has taken up the same question, how important is the U.N. Charter’s limitations on the use of force under Article 2 to the Congress’ deliberations?
As I suggested earlier, the short answer is that the UN Charter’s Article 2 will not be a serious impediment to the U.S. Congress’ decision whether to authorize the use of force. The Obama Administration, as far as I can tell, has not even bothered to offer a statement as to why such a strike would be legal under international law, much less a full-blown legal opinion. And if today’s U.S. Senate Foreign Relations Committee hearings are any indication, there is zero interest among even skeptical Senators in discussing the UN Charter.
Based on my skim of the transcript, this is the sole serious discussion of the Charter, raised by Sen. Udall of New Mexico:
We are on shaky international legal foundations with this potential strike, and we need to know whether we exhausted all diplomatic and economic sanction options to affect Syria’s behavior. We need to increase our attention on the source of Assad’s ability to continue to ruthlessly kill his own people, and that is support from nations including Russia and China, who are cynically trying to hold the moral high ground. Assad would not be able to maintain his grip on power if he were not being supported from outside. The full force of international outrage should come down on those nations that are refusing to allow the U.N. to act and find a solution.
Here is Secretary of State Kerry’s response to Sen. Udall’s broad point:
SEC. KERRY: So we have no illusions. Yes, is the U.N. Security Council having difficulties at this moment performing its functions? Yes. Does that mean the United States of America and the rest of the world that thinks we ought to act should shrink from it? No.
Well, that was easy. Indeed, the only reference to “violating” international law in the transcript is to Syria’s violations, and not to any potential U.S. violation. Like the President, the Senators seem comfortable going forward without a U.N. Security Council resolution, even if that is (in the opinion of most scholars) a clear violation of the Charter. Unlike the UK government, none of the decisionmakers on this side of the pond seem to care. Does this mean we don’t need to pay attention to the Charter anymore? It sure seems like it.