Obama talking with his hands 370.
(photo credit: REUTERS/Kevin Lamarque)
US President Barack Obama may earn a new nickname as the international law
At least two hot debates are going on right now in the US
One is whether to use force in Syria in response to what
most have said was a significant and indiscriminate use of chemical weapons by
President Bashar Assad’s forces against Syrian rebels and civilians.
second is how this could be justified under international law (the initial
problem being that technically the Syrian war is an entirely internal matter
which could be viewed as no one else’s business).
According to most
commentators, many of Obama’s predecessors, most notably his immediate
predecessor George W. Bush, viewed international law as a hindrance or a
technicality which deserved not much more than lip-service.
presidents had this view wishing to justify humanitarian intervention, while
others took this view from the perspective of placing hard US interests before
any legal principles.
But this is the US president who had then-US State
Department legal adviser Harold Koh draft a detailed legal basis for the
targeted killing of Osama bin Laden as opposed to merely pumping his fist on
television, knowing that most Americans would viscerally approve without needing
to know a detailed legal basis.
While more than one president has sought
international legitimacy and support, Obama possibly topped any prior president,
in at least verbal commitment, to international law governing US foreign and war
powers policy, telling CNN that he may not order intervention in Syria because
of international law.
Politicians, commentators and academics have been
Some of those pushing for US intervention say that this
statement was a paper tiger.
They note that when Obama set out his “red
lines” for Syria, the crossing of which could lead to a serious US response
(read by most as the use of force, at least air or cruise missile strikes), he
did not mention international law, only the use of chemical weapons, and that
this is a mere excuse for avoiding a battle that he wants to avoid.
of those against intervention say that there cannot possibly be justification
under international law for the US to intervene without UN Security Council
authorization (a nonstarter due to Russian/Chinese vetoes) because it is an
internal conflict of one UN member state which has not attacked any other UN
Without such an armed attack, no right to self-defense or
collective defense can be invoked, they say.
Some have suggested that US
intervention in Kosovo in 1999 on humanitarian grounds (the more recent US
intervention in Libya had at least partial UN Security Council approval and
widespread international support) could be an international law precedent for
doing the same in Syria.
But other commentators have noted that US
officials took pains at the time to argue the uniqueness of the Kosovo
situation, wanting to avoid its being used as a precedent, preferring to view it
as an extreme case to which international law would turn a blind eye in order to
intervene without changing the rules of the game.
A former top legal
adviser to the British government and another to the US State Department
recently wrote that intervention could be justified on several grounds: Syrian
attacks on Turkey could trigger collective selfdefense obligations by other NATO
states, Syrian chemical weapons use could accidentally cross Syrian borders
impacting other states, potential transfer of chemical weapons to Hezbollah
could lead to further national security threats, recognizing the Friends of
Syria group as the sole representative of the Syrian people as France has could
sidestep any violation of sovereignty issue, the humanitarian situation is
sufficiently dire and extreme (which has some veil of UN legitimacy under a
similar 2005 doctrine endorsed by parts of the UN called “R2P” or responsibility
to protect) as the Kosovo case.
One academic has spurred significant
debate suggesting a novel approach, that Article 52 of the UN Charter could be
interpreted to authorize regional groups to maintain “peace and security” even
without UN Security Council authorization (critics say that Article 53 of the
charter still subordinates Article 52 action to UN Security Council
authorization.) With all of the other reasons that Obama cited or has previously
cited for a cautious approach to Syria, it is likely that, despite his
statement, if international law were his only concern, he could find a
justification for attacking.
Yet, even if international law is not “the”
reason for avoiding attack, or even if the US uses a creative interpretation to
justify an attack, Obama’s invocation of international law so explicitly on such
a dramatic point of war and foreign policy creates a new a precedent of its own
with unpredictable consequences, one of which could be giving law even greater
primacy in world affairs than in the past.