Bombing Syria is illegal

August 27, 2013
Bomb Syria, Even if It Is Illegal
By IAN HURD, New York Times

EVANSTON, Ill. — THE latest atrocities in the Syrian civil war, which has killed more than 100,000 people, demand an urgent response to deter further massacres and to punish President Bashar al-Assad. But there is widespread confusion over the legal basis for the use of force in these terrible circumstances. As a legal matter, the Syrian government’s use of chemical weapons does not automatically justify armed intervention by the United States.

There are moral reasons for disregarding the law, and I believe the Obama administration should intervene in Syria. But it should not pretend that there is a legal justification in existing law. Secretary of State John Kerry seemed to do just that on Monday, when he said of the use of chemical weapons, “This international norm cannot be violated without consequences.” His use of the word “norm,” instead of “law,” is telling.

Syria is a party to neither the Biological Weapons Convention of 1972 nor the Chemical Weapons Convention of 1993, and even if it were, the treaties rely on the United Nations Security Council to enforce them — a major flaw. Syria is a party to the Geneva Protocol, a 1925 treaty that bans the use of toxic gases in wars. But this treaty was designed after World War I with international war in mind, not internal conflicts.

What about the claim that, treaties aside, chemical weapons are inherently prohibited? While some acts — genocide, slavery and piracy — are considered unlawful regardless of treaties, chemical weapons are not yet in this category. As many as 10 countries have stocks of chemical weapons today, with the largest held by Russia and by the United States. Both countries are slowly destroying their stockpiles, but missed what was supposed to be a final deadline last year for doing so.

There is no doubt that Mr. Assad’s government has violated humanitarian principles throughout the two-year-old war, including the prohibition on the indiscriminate killing of civilians, even in non-international conflicts, set out in 1949 in the Geneva Conventions. But the conventions also don’t mean much unless the Security Council agrees to act. It is an indictment of the current state of international law that there is no universally recognized basis to intervene.

Arguably, the key legal obligation of nations in the post-1945 world is adherence to the United Nations Charter. It demands that states refrain “from the threat or use of force against the territorial integrity or political independence of any state.” The use of force is permitted when authorized by the Security Council or for self-defense (and countries like Jordan and Turkey are considering this route to justify joining an anti-Assad coalition) — but not purely on humanitarian grounds.

Of course ethics, not only laws, should guide policy decisions. Since the Rwandan genocide and the Balkan mass killings of the 1990s, a movement has emerged in support of adding humanitarian intervention as a third category of lawful war, under the concept of the “responsibility to protect.” It is widely accepted by the United Nations and most governments. It is not, however, in the charter, and it lacks the force of law.

This was evident in Kosovo in 1999, when NATO bombed Yugoslavia without United Nations authorization. Then, as now, Russia and China were unwilling to grant Security Council approval. America and its allies went ahead with what the Independent International Commission on Kosovo later called an “illegal but legitimate” use of force. In that case, NATO accepted implicitly that its act was illegal. It defended it in moral and political language rather than legal terms.

Norms and institutions of international criminal law, including 11 years of experience with the International Criminal Court, have strengthened since then. Special tribunals for Cambodia, Rwanda and the former Yugoslavia reflect a growing consensus that perpetrators of atrocities should be punished.

But if the White House takes international law seriously — as the State Department does — it cannot try to have it both ways. It must either argue that an “illegal but legitimate” intervention is better than doing nothing, or assert that international law has changed — strategies that I call “constructive noncompliance.” In the case of Syria, I vote for the latter.

Since Russia and China won’t help, Mr. Obama and allied leaders should declare that international law has evolved and that they don’t need Security Council approval to intervene in Syria.

This would be popular in many quarters, and I believe it’s the right thing to do. But if the American government accepts that the rule of law is the foundation of civilized society, it must be clear that this represents a new legal path.

Ian Hurd, an associate professor of political science at Northwestern, is the author of “After Anarchy: Legitimacy and Power in the United Nations Security Council.”