Striking Syria Is Completely Illegal

The fundamental rule of international law is that states cannot attack other states, even for humanitarian reasons

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Kevin Lamarque / Reuters

In all the debates swirling around whether the U.S. should launch a unilateral military attack on Syria, as the Obama Administration is now seeking to do, one key point is getting very little attention: it would violate international law.

The fundamental rule of contemporary international law is that states cannot attack other states. The U.N. Charter embodies this rule and makes only two exceptions to it: a state can attack another state if it is authorized to do so by a Security Council resolution, or if the attacking state is acting in genuine self-defense.

Neither of these exceptions applies in the case of the U.S. and Syria. But a third basis for the legality of intervention has been suggested: “Customary international law,” a somewhat mysterious concept that comes down to the idea that, if enough of the international community has over time come to treat certain actions as legal, then those actions eventually become legal, even if states have not (yet) formally bound themselves to that conclusion via treaties. And so an argument is also being put forth that the American government should have the legal right to use force in order to alleviate a humanitarian crisis. This was also the position taken by the British government in a memo released last week. The memo argued that “the doctrine of humanitarian intervention” allows military action without U.N. authorization, if “the international community as a whole” agrees that a humanitarian crisis exists, that “there is no practicable alternative to the use of force if lives are to be saved,” and “the proposed use of force … is the minimum necessary to achieve that end and for no other purpose.”

Leaving aside practical questions, the problem with this argument is that it is trying to establish a new customary norm for which there is no precedent. The closest thing to a precedent is NATO’s Kosovo bombing campaign in 1998, but that was based not on humanitarian intervention but on the security interests of NATO members. Even if one ignores that problem, a history consisting of one arguable precedent can hardly be claimed to constitute the customary practice of states.

Indeed, the legal argument for attacking Syria on humanitarian grounds comes down to the claim that, by doing so, the U.S. will be helping to bring about a new customary norm of international law that does not yet exist. The paradoxes involved in this argument are considerable, as it requires asserting that we are violating international law to punish Syria for violating international law, but we are doing so in such a way so as to — eventually — change international law so that our violation won’t be a violation in the future.

(MORE: Senator Rand Paul: Why I Voted No on Syria)

There are many dangers to this kind of cart-before-horse jurisprudence. One problem with customary norms, as opposed to treaty obligations, is that they are so poorly defined. Is the norm here that unilateral military action is allowed to avert a humanitarian crisis caused by the use of chemical weapons, since the use of such weapons against a government’s own people is itself a breach of international law? If so, does that mean the Syrian government is allowed to produce a humanitarian crisis as long as it does so using only conventional weapons? (This rather odd principle seems to be asserted by the British government memo referenced above.)

In any event, the Obama Administration has not yet put forth any formal argument for why it would not be violating international law by attacking Syria. If it wants to base such a claim on the enforcement of an “evolving norm” of customary international law, it should do so explicitly. To its credit, the Administration went to considerable lengths to make the 2011 bombing of Libya legal by getting approval from the U.N. beforehand. An attack on Syria now would be correctly viewed by the rest of the world as yet another depressing precedent for the principle that great powers pay attention to international law only when it’s convenient for them to do so.

(MORE: Fareed Zakaria: Obama’s Slippery Slope in Syria)

SEE ALSO:  The Big Surprise of Martin Luther King’s Speech 

117 comments
Leftcoastrocky
Leftcoastrocky

"Former U.S. president Bill Clinton admitted that if the U.S. had gone into Rwanda sooner following the start of the 1994 genocide, at least a third or roughly 300,000 lives could have been saved."


But that would have been Illegal, Mr. President.

reboundnetwork
reboundnetwork

It's illegal, period. There are millions of ilegal immigrants working and trying to make a living in the United States, a lot of them are good, hard working people, but even so it is ILLEGAL so they are kicked out of the country without regard to whether they are good people, have kids, and contribute to the country or not.

So, how is it okay for the United States to attack another country if it is ILLEGAL? This means the United States, the United Nations, and all the other countries in the world should look for an ALTERNATIVE INTERVENTION because declaring war on anoher nation is not only completely illogical, but it is wrong, and ilegal.

Why is it illogical? Because who would make peace by making war? Our responsability for Syria is trying to help them by diplomatic means, by negotiation, by economic sanctions, by helping the millions of refugees with food, wáter, and medical assistance, and trying to establish a liberal and democratic gobernment.

WAR is no longer aceptable in the 21st century. We are not Savages who need to intimidate others in uniforms with guns and bombs, what kind of mentality is that? Uncle Sam mentality is out-dated and wrong. Imperialism has to be abolished from its roots.

apps9154
apps9154

Ok lets break this Syrian debate down. The U.S. of A wants to destroy the government of Syria in the interest of Israel. Its the last country  in the middle east that is a allied with Iran and is a country that connects Iran with Palestine. It is that simple. The U.S does not have proof that the chemicals were Syrian government. Also Syria has never denied that they do have chemical weapons like the U.S is say they do. But they said they would not use them in their country only on people on the out side if someone attacks them. There also has been reports that the Syrian rebels have chemical weapons as well. Its possible that the Syrian government bombed a rebel chemical weapons depot, which released the stored chemicals. It just does not add up. Why would the Syrian government use chemical weapons on some rebels that they had surrounded???? Why would the Syrian government do this knowing that they are on 24/7 news??? Syria also accepted the Russian proposal to get ride of Syria's chemical weapons. A statement just came out from the U.S that they need to bomb Syrian as a example to Iran and their nuclear program so that Iran wont use their power against Israel. The U.S still wants to bomb Syria??? Killing innocent people.

Chosun1
Chosun1

I'm not for attacking Syria.  The USA, the UK, France, etc. don't have a dog in the fight there.  Indeed, both sides of the fight would love to fight against the USA, the UK or France.  With that said, as a law professor who teaches "international law" subjects myself, I don't take issue with the concept that a proposed strike on Syria would be "illegal".  Nevertheless, in the final analysis, all I can say is "law schmaw!"  Really, the idea that international laws related to war mean a hill of beans is something that means something only in the world of academics and confused diplomats.  At the end of the day, self interest of the politicians making the decision to fight is all that really matters.  Have a nice day.

politicsguy
politicsguy

In an ideal world, this would not be an issue. The UN Security Council should in theory support this military engagement. Russia and China, the two doubtful nations on the council, are morally blind when it comes to humanitarian causes and thus they are the two impediments from attaining Security Council approval, which would legitimize action. Thus, I understand the British argument when they speak of a large international consensus legitimizing illegal military actions in the face of tremendous humanitarian violations. This is an example where a philosophical ideal and legal practice come into conflict. It is our job to decide which, the philosophical ideal or legal pragmatism, will take precedence. 

kinnohhikari
kinnohhikari

Call it anyway you like, the US wants to force its opinions on how the world should be run, and this is just another demonstration on the firepower it has built up over the last 40 years.  Any incursion into another country has always been on the bsis of expenditure of the weapon base and then the need to replenish what has been used.  The USa has shifted to actions which involve bombing either with planes or drones, and has understood the painful lesson of trying to have feet on the ground.  War has moved to another level.  First we had Afghanistan, the Iraq, (Why is our oil under someone elses dirt), the the same with Libya, (both Iraq and Libya, were selling oil in gold not US dollars, which cripples the USA), then Yemen... the supposed attack on the ship.. the Cole being the justiication there, now its Syria,, get rid of Syria and your on the border of Iran.. its been a long trip which cost a lot of innocent women and childrens lives..  Say anything you like and anyway you like. this is an illegal act and cannot be justified in anyway.

The USA has never done anything for any countries benefit.. just for its won ends.   It lied at the UN in regards to weapons of mass destruction.. it's still lying.

politicsguy
politicsguy

@kinnohhikari I agree with your statement that the United States has an insatiable demand for more R&D and weaponry, which further bolsters the Military Industrial Complex (MIC). But I still believe we do have a moral responsibility to try and give the people of Syria their country back. The people need to control their nation and not fall victim to genocidal and despotic leadership from an entitled few. As Americans we have a responsibility to our brothers and sisters in Syria to help them control their country. We're all human and we are all in the same boat. 

Adam_Smith
Adam_Smith

Speaking as a non-lawyer, I believe it is very clear that any military attack on Syria under current circumstances is a direct violation of the UN Charter -- a treaty to which the United States is legally bound. It would take a lawyer, one exceptionally skilled in the abuse of language and logic, to conclude otherwise.


politicsguy
politicsguy

@Adam_Smith I understand your argument but is there really no legitimacy to what the British are saying? I believe we do have a responsibility to the people who are harmed in Syria, even if it means breaking international law. 

atiladelmosat
atiladelmosat

Cual es la clase de gobierno que se esta administrando al pueblo de los EEUU, el de destruir los sueños de todos los pueblos con un ataque sin piedad contra el pueblo de los EEUU,  ahora contra Siria  después otros  mas otros es la orden que recibe la burra ,esclava del pentágono,siendo también cáncer del planeta  la humanidad,  verguenza de la madre patria Africana o es el aborto del continente Africano

Bobbytheman
Bobbytheman

How about defying the sovereignty of another country by killing their citizens with drones? And how about locking up the citizens of another country in a prison without a trial for year and years? Is there anything illegal about those things?

united_we_stand
united_we_stand

Striking Syria would be immoral, belligerent, an act of aggression towards Russia, China, India, and others, and worst of all would be rewarding the rebels for gassing there own people. To argue the action is illegal is to support the notion we live under a one world government body which makes the laws we live under.  There are much better arguments against war. See Rand Pauls article here from the other day. J Kerry admitted at least 25% of the rebels are al queda and islamic extremists. The will be the new power structure in syria if we aid them. This proves Al Queda is what its always been; a CIA front. Otherwise you must believe the USA is too dumb to know not to arm and empower al queda 

jdk47
jdk47

This article poses a real dilemma for me. For years, Paul Campos could be reliably counted on to be absolutely 180 degrees wrong on just about everything. Now, I find myself in agreement with something he wrote. Now I have to rethink my position and question whether I have been looking at the issue askew and maybe I should be supporting this strike on Syria.

Sibir_Russia
Sibir_Russia

@MikeBrown 

Russia may take the initiative of a military strike against Syrian rebels.
Chief editor of "National Defense", a member of the Public Council of the defense Ministry Igor Korotchenko: «If the UN Security Council will be established that the use of chemical weapons is an operation rebels, insurgents, it is obvious that Russia may take the initiative of a military strike against areas controlled by insurgents»  According to him, such a decision may be after the UN Security Council will authorize the use of military force against the rebels, who have used chemical weapons.

Proof of possible chemical weapons use in Syria should be submitted to UN security council, should be convincing - Putin
Russia needs evidence regarding anyone’s guilt in the use of chemical weapons in Syria for further decisive actions, Russian President Vladimir Putin said in an interview with the First channel and Associated Press Agency. "We will be persuaded by a deep objective study of the issue and the presence of evidence that would be obvious and clearly show, who used it and what exactly was used. After that, we will be ready to act in the most decisive and serious way," he said. 

SwiftrightRight
SwiftrightRight

@Sibir_Russia @MikeBrown At this point I hope they do. After reading what is publicly available from both Russia and the US I am leaning toward the Russia side. It just does not make sense that Assad would gas people while he is winning.

But more importantly (and less discussed) is the fact that the Syrian chemical arsenal is built to be a deterrent to the Israeli atomic arsenal. Why would Assad risk his only deterrent force in a two bit attack on rebels?

OIbhagui
OIbhagui

@jeremyweate @Chxta When I say "your" of course I mean Nigerian corrupt former office holders who have used "legal rights" to frustrate EFCC

OIbhagui
OIbhagui

@jeremyweate @Chxta If u follow every "legal rights" in the world, there's enough technicality to evade all, like your politicians are doing

eduazeez
eduazeez

@Chxta:so you think Assad killing his kinsmen is tolerable.I wan't Assad and his co-travellers gassed like he did to those poor people.

GBDOlivares
GBDOlivares

@TIME @TIMEIdeas Everyone already knew that, but everybody also knows that USA do not care about rules or real consequences.

Sibir_Russia
Sibir_Russia

Lavrov talked with Kerry about Syria

On the official website of the Russian foreign Ministry published a Message for the media "On a telephone conversation with Minister of foreign Affairs Sergey Lavrov with the us Secretary of State John Kerry".

The text says:

"September 5 on the initiative of the American telephone conversation was held between Minister of foreign Affairs of the Russian Federation Sergey Lavrov with the us Secretary of State, John Kerry, during which was the subject discussed the situation around Syria.

John Kerry reiterates the arguments made in the statement of us President Barack Obama on 31 August and in the speeches of other representatives of the Administration in the course of the hearings in the Senate and House of representatives of the Congress, with the justification of «limited» military action without UN sanctions against Syria.

In this connection Lavrov stressed that the Russian Federation has been consistently and firmly committed to the agreements of the June summit of «Group of eight» in Lough erne.

This means that the expert opinions on cases of possible use of chemical weapons in Syria must be submitted to the UN Security Council for subsequent decision-making.

The use of force in circumvention of this mechanism we reject.

As a result of negotiations, reached an agreement on launching the available channels for the exchange of information at the expert level".

Sibir_Russia
Sibir_Russia

For those who do not know, or had forgotten…

The G8 leaders met in the U.K. during June 17–18, 2013, for their thirty-nineth summit. They released a joint communique, which focuses on foreign policy challenges, particularly in Syria.

From the Foreign Policy section of the communique:

http://www.cfr.org/global-governance/g8-leaders-lough-erne-communique-2013/p30956

87. We condemn any use of chemical weapons in Syria and call on all parties to the conflict to allow access to the UN investigating te am mandated by the UN Secretary - General, and drawing on the expertise of the Organisation for the Prohibition of Chemical Weapons (OPCW) and World Health Organisation (WHO), in order to conduct an objective investigation into reports of use of chemical weapons. The UN team should make their report and deliver it to the UN Security Council for their assessment. We are determined that those who may be found responsible for the use of chemical weapons will be held accountable.

Treaties must be respected.

eagle11772
eagle11772

Yet The Obamaniac allows, and is PROUD, that 2,000,000 future American babies are killed each year without a chance of being born, because he claims that that is a sacrosanct "woman's choice" !

eagle11772
eagle11772

LOL  This is a joke.  Since WHEN did The Obamaniac ever care about legality ? !  LOL  REALLY want to stop The Obamaniac from bombing more Middle Eastern Arabs ?  IMPEACH THE BUM !  If you don't, then I guess you agree with this power-mad warmonger.