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How President Obama Undermined His Legal Case for Syria Action

All signs point to limited Western military action against the Syrian government sooner rather than later. U.S. Secretary of State John Kerry cleared the way with his remarks today. He called the attack a "moral obscenity" and described as "indisputable" evidence that the Assad regime launched it.  It appears that the United States and other Western powers are reconciling themselves to action without UN approval. CBS News reports that the administration will make a legal case based on violations of key treaties rather than UN approval:

Obama ordered up legal justifications for a military strike, should he order one, outside of the United Nations Security Council. That process is well underway, and particular emphasis is being placed on alleged violations of the Geneva Convention and the Chemical Weapons Convention.

British foreign secretary William Hague also alluded to ways around a paralyzed Security Council.

In this context, the remarks that President Obama made on CNN at the end of last week become puzzling. In the course of that interview, the president discussed the legality of a potential military response [emphasis added]:

CUOMO: The red line comment that you made was about a year ago this week.

OBAMA: Right.

CUOMO: We know since then there have been things that should qualify for crossing that red line.

OBAMA: Well, Chris, I've got to -- I've got to say this. The -- when we take action -- let's just take the example of Syria. There are rules of international law.

CUOMO: Uh-huh.

OBAMA: And, you know, if the U.S. goes in and attacks another country without a U.N. mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it, do we have the coalition to make it work, and, you know, those are considerations that we have to take into account.

The United States has almost always insisted that it can use force in defense of vital national interests (and not just immediate self-defense) with or without UN approval. Successive U.S. national security strategies have made that point clear. In its own version, the Obama administration nodded vigorously at international standards but left plenty of ambiguity:

While the use of force is sometimes necessary, we will exhaust other options before war whenever we can, and carefully weigh the costs and risks of action against the costs and risks of inaction. When force is neces-sary, we will continue to do so in a way that reflects our values and strengthens our legitimacy, and we will seek broad international support, working with such institutions as NATO and the U.N. Security Council.

The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to standards that govern the use of force. Doing so strengthens those who act in line with international standards, while isolating and weakening those who do not. 

The president wasn't nearly as careful in his remarks, a point that several Security Council members may soon note.

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The Multilateralist

Military Action in Syria as Reprisal

To this point, most of the discussion about the legality of possible military action in Syria has focused on the concept of humanitarian intervention. The New York Times this weekend reported that some administration officials may be looking at the Kosovo conflict—when NATO attacked Serbian forces without UN authorization—as possible precedent for military action without United Nations approval, which presumably will not be forthcoming.

But both the general concept of humanitarian intervention and the specific example of Kosovo suggest a level of involvement for which Western governments have no appetite. When an outside force intervenes on humanitarian grounds, there is an implied committment to comprehensively address whatever is producing the humanitarian crisis. NATO did just that in Kosovo; it bombed Serbian military and government targets until Slobodan Milosevic eventually yielded control of the disputed province. At that point, the Western alliance dispatched a large and muscular force to police Kosovo and shepherd it slowly toward independence.

The analogue in Syria would be for Western governments to strike until the military balance turns and the Assad regime falls, and then to arrange an international force to help stablize whatever new regime emerges. Even with the horror of the apparent chemical attack fresh, that level of outside involvement appears highly unlikely. Even the more outspoken Western leaders, such as French foreign minister Laurent Fabius, have rejected the idea of dispatching ground forces.

Humanitarian intervention along the Kosovo lines remains a very distant possibility. There's another concept with deep roots in international law that might offer a more viable pathway for action: reprisal. In essence, the doctrine allows one party to respond to another's clear violations of international law by engaging in violations of its own. According to the International Committee of the Red Cross's elaboration of the doctrine, there are several strict conditions: a reprisal must be done for the purposes of inducing compliance with the law, it must be a last resort, it must be proportionate,  and it must be approved at the highest levels of government. 

The concept doesn't apply seamlessly to the Syria situation; any right of reprisal normally accrues to a party to the conflict, not to outsiders. And Western forces seeking to punish the Syrian regime presumably would not try to violate the rules of armed conflict themselves in their strikes (by, for example, targeting pro-Assad civilians). But in a broader sense, Western governments would be violating international law in order to defend it. More specifically, they would be skirting the rules on when you can use force in order to defend a key norm of how parties may fight: the ban on the use of chemical weapons.

Conceiving of a strike against the Assad regime as a reprisal rather than a humanitarian intervention has several attractions. It doesn't imply a committment to defeating his regime; it doesn't suggest a desire to side with his opponents;  and it doesn't commit Western governments to end all abuses in the Syrian conflict or to nation-build in its wake. Instead, the message to the regime is simple, direct, and limited: if you use these hideous weapons, you will pay a price.