As U.S. officials work to convince the world that Bashar al-Assad’s regime used chemical weapons in Syria, the Obama administration is confronting questions about whether it has a legal right to respond with force.
The United Nations Security Council would need to authorize military action or the U.S. would have to be acting in self-defense for a strike to be legal under international law even if it may be justified, according to lawyers including Philip Carter.
“The bottom line is that under hard international law, there is no good legal argument” for a U.S. or allied strike on Syria without UN authorization, Carter, a former Pentagon official, said in an interview.
Having decided they can bypass the UN, where Russia has made clear it would veto a resolution authorizing force against Syria, U.S. administration officials are asserting a moral case. Much as President Bill Clinton’s administration justified the 1999 bombing of Serbia as necessary to defend Kosovo, Obama and his aides are saying Syria violated international standards by gassing its own people.
President Barack Obama, a former constitutional law professor, said in an Aug. 28 PBS interview that Syria’s use of chemical weapons violated “an international norm.” Failing to respond could indirectly threaten the U.S. and its allies in the Mideast, and the U.S. must act “to make sure” that chemical weapons are not “loose in a way that ultimately could affect our security,” he said.
Administration officials, who asked not to be identified discussing internal deliberations, have said that in building their case they see parallels with the U.S.-led military action to aid Kosovo.
The Clinton administration justified the Kosovo campaign on humanitarian grounds without asserting a legal case, because government lawyers concluded it wasn’t legal -- even if it was justified.
There’s a humanitarian argument that the international community has “a right and sometimes the duty to intervene in cases of slaughter and genocide,” as it did in Kosovo, according to Carter, a senior fellow and counsel at the Center for a New American Security in Washington. That “Responsibility to Protect” doctrine hasn’t been accepted as international law.
“There’s no case for individual self-defense and a shaky case for collective self-defense” on behalf of the citizens of another country under existing law, Carter said.
David Kaye, who was an attorney in the State Department’s legal office during the Kosovo campaign, said in an interview that his colleagues “refused to give an opinion” finding that the use of force in Kosovo was legal.
“They worked with the policy makers to identify a whole bunch of factors that they might use in arguing for the legitimacy of the use of force, but they would not give them a pass and say this is legal or consistent with the UN charter,” said Kaye, who served 10 years as a State Department lawyer under Presidents Clinton and George W. Bush.
A U.S.-led military strike to punish and deter the use of weapons of mass destruction by Syria may be morally justified and even widely regarded as legitimate, according to nine lawyers and legal scholars consulted.
Even so, “Syria’s violation of international norms does not lift the obligation on the U.S. to comply with the UN charter,” John B. Bellinger III, a former legal adviser to Secretary of State Condoleezza Rice and the National Security Council under Bush, said in an interview. “Under international law, two wrongs don’t make a right,”
Bellinger, a partner at Arnold & Porter LLP in Washington, said he has sympathy for the Obama administration’s challenge.
“I imagine a President Bush, McCain or Romney could not have sat by idly while this happened,” Bellinger said, citing leading Republicans. “And I can imagine being the legal adviser and advising that there simply is not a legal basis under international law, and if you insist that you are going to do it, we have to make the best factual case and moral argument to justify intervention.”
While Senator John McCain, an Arizona Republican who ran against Obama in 2008, has called for action and said he thinks there is precedent and justification for a strike, not all lawmakers agree that the president can act without a vote of authorization by Congress.
In an Aug. 28 letter, 116 of the 435 members of the House of Representatives -- including 18 Democrats -- called on Obama to seek congressional approval for any military response in Syria, and some have said they oppose action.
Officials including Secretary of State John Kerry and Defense Secretary Chuck Hagel last night conducted a conference call with congressional leaders of both parties “to brief them on the administration’s thinking and seek their input on the U.S. response to the Assad regime’s use of chemical weapons near Damascus” on Aug. 21, according to a White House statement.
The War Powers Resolution, enacted in 1973 over President Richard Nixon’s veto, requires congressional approval for a president to engage in hostilities other than defensive or emergency measures. It gives presidents flexibility to act quickly, while requiring consultation with Congress.
If military action exceeds 60 days, “then he needs to come to Congress,” Senate Foreign Relations Committee Chairman Robert Menendez, a New Jersey Democrat, said yesterday on CBS News. “I personally would like to see him come for congressional approval, but I also think that time is of the essence here.”
Benjamin Wittes, a senior fellow focusing on national security legal issues at the Brookings Institution in Washington, said that the Obama administration is operating without a Senate-confirmed top legal adviser at the Departments of State or Defense, or permanent leadership in the Justice Department’s national-security division.
“If you’re trying to decide the legality of a resort to force in Syria, it might help to have permanent leadership at the State Department legal adviser’s office,” Wittes wrote on the Lawfare blog he founded.
Obama’s argument that the U.S. would be defending “an international norm” against the use of chemical weapons is undercut by the lack of any legal mechanism in the Geneva Convention or the Chemical Weapons Convention for one country to punish another that uses such weapons on its own people, according to Christopher Swift, a national-security lawyer.
The president “talked about international norms -- not international law -- because there is no consensus that international law supports this,” Swift, an adjunct professor at Georgetown University in Washington, said in an interview.
Syria signed the 1925 Geneva Convention that bans the use of asphyxiating gases, although it is one of five countries that hasn’t signed the wider Chemical Weapons Convention of 1997.
The U.K. yesterday issued a position paper asserting that the government could act against Syria without UN approval under a doctrine of “humanitarian intervention,” the same argument it made about Kosovo. Hours later, the House of Commons rejected a motion put forward by Prime Minister David Cameron seeking an endorsement in principle for military strikes.
For Obama, like Clinton before him, asserting a humanitarian right to intervene risks setting a precedent that other countries could invoke to justify military action of their choosing.
Asked about that risk in 1999, Secretary of State Madeleine Albright called the U.S.-led campaign in Kosovo, which had the backing of the North Atlantic Treaty Organization, “unique” and “sui generis.”
Kaye, a law professor at the University of California-Irvine, said, “The lawyer’s role is to tell the policy makers what the law is and what the consequences of particular action might be as a matter of law: Would there be accountability for U.S. forces? Could other countries see the action as illegal?”
“It’s not for the lawyers to say, ‘Is this right? Is it moral? Is it wise?’” Kaye said. “That’s policy, and that’s the president’s call.”