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International Law? U.S. Military Action Is Actually Prohibited By The UN (Forbes.com) September 11, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

While everyone seems focused on whether President Obama needs congressional authority under the U.S. Constitution to bomb Syria, there is surprisingly little discussion whether such an attack would be proper under international law. What that tells us, in part, is how little a superpower such as the United States frets over the niceties of international law.

The reality is that much of international law isn’t really “law” in the sense that most Americans understand the term. There is no world constitution to frame international law, no powerful supreme court or legal system to define and enforce it, and no global police force to arrest and detain those who violate the law. It would be more accurate to say that international law is a set of norms that countries agree to follow, at least when it’s in their interest to do so.

But isn’t there a law against the use of chemical weapons? As with much of international law, the answer is yes and no. Most of international public law is a matter of treaty and there is a 1925 Geneva Protocol outlawing the use of poisonous gases in war (not domestic conflict). There is also an expanded 1993 Chemical Weapons Convention, but Syria is not a party to that treaty. This illustrates one of the real problems with international law: countries most likely to violate it don’t agree to it in the first place. Some argue that using chemical weapons violates “customary international law,” a fairly soft concept and one that would be tough to use as a basis for missile strikes by one country against another.

This raises another big problem with international law: who may enforce it? Even if Syria had signed a treaty agreeing not to use weapons, could one country on its own take military action against another because of a treaty violation? Here the answer is “no.” Although the U.S. is sometimes referred to as the world’s police force, it usually intervenes only at the invitation of the host country, or as part of a pact of self-defense with other countries in the region. Neither of these is the case with Syria, and so the U.S. may not unilaterally enforce an international treaty or norm. There has been discussion of the need to establish an international right of humanitarian intervention in a country, but those talks are a long way from reaching an actionable policy or law.

To put an even finer point on it, U.S. military action in Syria is actually prohibited by the United Nations Charter. There are only two circumstances in which the U.N. Charter permits the use of military force by one nation against another: a case of self-defense, or when authorized by the Security Council “to maintain or restore international peace and security.” Russia has already said it does not support action against Syria, so its veto (or that of China) in the Security Council would stop that alternative cold. The U.S. makes noises that it is concerned about its own security whenever a leader uses weapons of mass destruction (Saddam Hussein in Iraq), but a case of self-defense would need to be stronger for chemical weapons thousands of miles away.

So, the bottom line is that if you want to undertake military measures against Syria for its use of chemical weapons on its own people, international law is part of the problem, not part of the solution. President Obama and Secretary of State John Kerry are left with the thin argument that what they propose is “legitimate” even if it isn’t actually “legal.” And how do they establish such legitimacy? Presumably by getting other world powers to agree, by persuading Congress to pass a resolution, from the E.U. statement of concern (but no authorization of military force), etc. This is how NATO authorized bombings in Kosovo in the 90’s—the major world powers agreed (or agreed not to disagree) that this was the humanitarian and right thing to do, even though it violated international law.

Such are the vagaries of international law, when what is illegal may nevertheless be legitimate, and when what may well be best is in direct contravention of international law.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/09/11/international-law-u-s-military-action-is-actually-prohibited-by-the-un-charter/

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