Guest opinion: Intervention and legality in Syria
The legality of U.S. military action in Syria has generated debates among Americans and around the globe. The U.S. government has the obligation to satisfy two legal authorities to demonstrate that such action would be lawful.
First, there must be an appropriate exercise of war power under domestic law, which respects the relationship between the president and Congress. Second, an international legal justification must be identified. Although some people believe that only domestic law is relevant, for a civilized nation both legal requirements are equally important. The Iraq war launched in 2003 was an instance where President Bush had strong domestic approval to use force in Iraq, but international legal authority was not achieved. Therefore, in the case of Syria, it is important for the United States to take military action within the confines of international law.
Under the U.N. charter, international law permits military action in two situations. One is self-defense, when a country is attacked or is in imminent threat of attack from another country. The other is collective security, when a country’s action poses a threat to or breaches international peace and security. Under the latter, a country or international community can take military action with the authorization of the U.N. Security Council. There is no doubt that killing thousands of people with chemical weapons is illegal and a breach of international peace and security. Therefore, this matter falls within the scope of the collective security of the U.N. charter.
The Obama administration has made its best efforts to get U.N. Security Council authorization for military action in Syria, but Russia and China have vetoed resolutions and will probably continue to do so.
Recently, the United States joined Russia in pursuing a diplomatic solution to the Syrian chemical weapons crisis. Russia has put forward the Russian disposal plan, in which Syria is now obligated to ban the manufacture, use or stockpile of chemical weapons under the international convention on chemical weapons. Syria has signed the convention and now has 30 days to declare its stockpile of banned chemical weapons and destroy it under international supervision.
This diplomacy might change or at least prolong the issue of military actions in Syria. It will take even longer, depending upon the size of the stockpile, to destroy and verify the sites and destruction. In any case, this diplomatic path seems to be the most viable until tested.
In this situation, the United States has several challenges:
• Accept the disposal plan for Syrian chemical weapons as Russia has proposed (which is already the case).
• Introduce standards for full cooperation from the Assad regime when it comes to verification. (In Libya, Moammar Gadhafi voluntarily declared the possession of chemical weapons and promised to get rid of them in 2004. In November 2011, the Libyan government declared that it found more chemical weapon stockpiles. To this day, all of the stockpiles have not been destroyed.) It is believed that Syria has more stockpiles than Libya, so the process would take a long time.
• Assure the safety of chemical weapons while in storage and during the movement for destruction.
• Establish clear consequences if Syria were to use chemical weapons again.
• Reach an agreement with Russia that if evidence emerges of the Assad regime’s culpability for the Aug. 21 attack, those responsible would face criminal responsibility. (Gadhafi shook hands with Western leaders – President George W. Bush and British Prime Minister Tony Blair – and signed the Conventions on Ban of Chemical and Biological Weapons. However, he was not given the green light to remain in power. The Libyan people got rid of him with the help of U.N. Security Council and NATO. The same could be the case in Syria.)
Diplomacy is one of the options under international law that would avoid the 2003 Iraq scenario. Legal options for military action seem slim, partly due to the veto option embedded in the U.N. charter. The law of war suggests that necessary force can be used to achieve a military objective. If the objective is not achievable by military action, the action is not desired. Given the involvement of fundamentalists within the rebel groups in Syria (as was the case in Libya), the United States faces several legal and political challenges.
It must use this diplomatic effort successfully. First, so that chemical weapons will not be used again. Second, to show the world it is serious about non-use of force when force is not necessary. Finally, to demonstrate respect for international law so it can rely on it and also make other countries rely on it in the future.
Upendra Acharya is an associate professor at the Gonzaga University School of Law.