The Legality of President Obama’s “Red Line” on Syrian Chemical Weapons

New evidence that Syria has used chemical weapons against insurgents have spurred new calls here in the U.S. for military action in Syria.  Here is the LA Times (hardly an interventionist paper):

An American or multilateral response should of course be proportional to the offense. That means considering whether chemical weapons were used against civilians or militants, and whether a “whole bunch” were used, as Obama put it, or much less. But there’s no doubt that an operation to secure or destroy the regime’s chemical weapons would be consistent with this country’s stated commitment (one that all too often has not been honored) to protect civilians from the worst ravages of war.

The editorial was plainly drafted carefully with some knowledge of the legal issues that would apply to such an operation.  First of all, there is that pesky U.S. Constitution, Article I, Section 8 which many folks think grants the the U.S. Congress the exclusive power to authorize U.S. military force.  I don’t think the editorial envisions President Obama seeking congressional authorization, so it is probably assuming he would act under his inherent Commander-in-Chief powers. (When George W. Bush was president, newspapers like the LA Times used to worry about the unilateral exercise of this type of power, but these days, not so much.)

Second, there is the international law governing the use of force. I raised this question back in December, when President Obama drew his red line, suggesting that the self-defense justification under the U.N. Charter can’t work here.  This post drew two very good responses from experts in the field, one from Daniel Bethlehem (formerly the chief legal advisor to the UK’s Foreign Office) and the other from Ashley Deeks (former legal advisor to the U.S. State Department, now UVA Law Prof).

My earlier post offered a simple no-frills reading of the U.N. Charter, building on the simple no-frills reading of the U.N. Charter critics of the Iraq War were fond of making in the Bush years. This was a useful strawman, since I pointed out it would lead to a “silly result.”  Still, I am not totally sold on the more sophisticated rationales offered by Daniel and Ashley.  As far as I know, Syria has not threatened (at least recently) to attack its neighbors. I don’t count its skirmishes with Turkey, which seem in any event to have settled down. It has certainly not threatened use of chemical weapons against Turkey, Israel, or anyone other than the Syrian rebels.  I am just not buying self-defense here, unless we really are back in 2002 and President Bush’s doctrine of preemptive self-defense for WMDs has achieved international consensus.

What is it about chemical weapons that changes the legal calculus? Sure, I realize the use of chemical weapons here is a plain and blatant violation of the law of armed conflict, and really horrible in every way possible.   But as horrible as it is, I wonder why chemical weapons would be the trigger since the casualties from the non-chemical weapons in Syria has been much worse. And what is it about chemical weapons that would per se justify humanitarian intervention, while the mass bombings or killings of thousands of civilians would not?

I am guessing the answer here is going to come from a different path that has nothing (formally) to do with chemical weapons.  Since the U.S. has recognized the Syrian opposition as the legitimate government of Syria, I suppose consent for an intervention can be had without too much trouble. But, this opposition doesn’t exactly have widespread recognition, and doesn’t really control most of the country. Still, it probably is the least difficult legal path.

When President Obama said using chemical weapons would “cross a red line,” he must have had something in mind, unless it was a total bluff.  A unilateral U.S attack is very possible, and may even be desirable.  But legality is going to have to be finessed in ways that critics of the Iraq War should not be happy with.