US Debates Regarding the Legality of Intervention in Syria

The aim of this post is simply to point readers to debates within the United States regarding the legality of intervention in Syria. Unlike in the UK,  there are two separate legal issues that are being discussed in the US. First, domestic constitutional law questions have loomed large regarding whether the President can order military action without the approval of Congress (see discussion by Julian Ku at Opinio Juris and coverage by CNN). So when the Speaker recently wrote to President Obama saying “it is essential you address on what basis any use of force would be legally justified” we can assume he was not referring to justification under international law. Indeed he went on to ask “how the justification comports with the exclusive authority of Congressional authorization under Article I of the Constitution.” Secondly, the justification for using force under international law is also getting some attention in the US. Indeed, US administration lawyers have been engaged in these discussions prior to the recent chemical attacks. Indeed, it was reported in July by the Wall Street Journal that provision of support by the US, to the rebels was slowed by “a string of cautionary opinions from administration lawyers over the last two years” with “the so-called Lawyers Group of top legal advisers from across the administration argu[ing] that Mr Obama risked violating international law”.

It is not clear what legal basis, if any, will be put forward by the Obama Administration for the strikes being contemplated. The Washington Post reports that:

“A senior Obama administration official said the United States is exploring a number of possible legal arguments to justify an armed response to what officials believe is the worst chemical weapons attack since 1988,  . . . As part of that effort, U.S. officials are examining international agreements, including the 1925 Geneva Protocol and the 1992 Chemical Weapons Convention, both of which ban the use of chemical arms. “The fact that there is a long-standing international norm around the use of chemical weapons, that provides legitimacy for the international community to respond,” the administration official said.  . . . [T]he administration is also studying the possibility that U.S. force could be used in support of Syria’s neighbors, including American allies Jordan and Turkey, if those governments invoke the right to self-defense against Syria.”

So perhaps the collective self defence I argument I noted in my earlier posts is not off the table. There has, of course, been a lot of commentary on these legal questions in US blogs and in the US media. Lawfare has very helpfully collected all of its posts on the Syria issue in a single post. Bloomberg has a piece with various views on the international law question from the US perspective. An admittedly not very thorough trawl of commentary in the US media and blogs suggests that unlike the UK, where there is some division of opinion (see this BBC piece with views from a number of people, including from me), there seems to be little division in the US as to the international law question. From what I can see, most American academics who have commented on the issue, and it seems legal advisers, take the view the international law does not provide a legal basis for using force.

Oona Hathaway and Scott Shapiro, both at Yale Law School, have written an op-ed, also in the Washington Post arguing that military force should not be used without UN Security Council authorization. They argue that international law does not permit such a use of force and reject the “illegal but legitimate” mantra from Kosovo. They say:

“When a nation as powerful as the United States repeatedly breaks the law, that law ceases to be law. If the United States is able to decide for itself — or with the help of friendly states — when international law may be enforced with force, everyone else may do the same. When Russia intervened in Georgia in 2008, it cited humanitarian concerns and the “responsibility to protect” peacekeepers and Russian citizens. The international community quickly rejected these arguments, as well as claims that Russia was acting in self-defense. But if the United States may intervene in Syria without Security Council authorization for humanitarian purposes, why couldn’t Russia intervene in Georgia?”

This summarises the case against a doctrine of humanitarian intervention very well. However, it seems that other think, as I hinted in my previous post, that not having a legal basis for action does not necessarily mean that action should not be taken.

I would be very interested to know whether a similar debate is taking place in other countries, particularly in France which seems set to join any military actions. Readers, please let us know.