Unless President Obama would like to risk seeing Syria, at some point in the future, renounce its signature on the chemical weapons convention, which it has recently pledged to sign under the threat of attack by the United States, he should rescind the threat of force. This is because Article 52 of the Vienna Convention on the Law of Treaties, “Coercion of a State by Threat or Use of Force,” stipulates: “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”
Whether or not this means that Syria’s signing and ratifying the chemical weapons ban under an illegal threat of force would be invalid, it is clearly the case that the president’s threat of force is illegal under international law.
Article 2(4) of the UN Charter prohibits “the threat or use of force” by states. Thus, both “threat” and “use” are prohibited. The only exceptions are the resort to force as national “self-defense” in response to an “armed attack,” or a threat or use of force pursuant to an authorizing resolution from the UN Security Council.
President Obama and high-ranking officials in his administration have repeatedly threatened to bomb Syria in response to the use of chemical weapons inside Syria. Even assuming that the government of Syria is the party responsible for the use of chemical weapons—a fact that has not yet been established—the use of chemical weapons in Syria does not constitute an armed attack on the United States. And the UN Security Council to date has not authorized the use of force against Syria. Under this set of circumstances, President Obama has illegally threatened to use force.
In his authoritative work, International Law and the Use of Force by States, Ian Brownlie said this about a “promise” by a state to use force (p. 364): “If the promise is to resort to force in conditions in which no justification for the use of force exists, the threat itself is illegal.”
The view expressed by Brownlie was supported in the advisory opinion of the International Court of Justice in “Legality of the Threat or Use of Nuclear Weapons,” where a majority of the court’s judges asserted: “The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force in a given case is illegal—for whatever reason—the threat to use such force will likewise be illegal.”
Furthermore, the Nuremberg Principles stipulate that “Crimes against Peace” include the “planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances.” In his speech from the White House on Tuesday night (Sept. 10), Obama repeated an administration talking point that his threatened attacks on Syria involve plans and preparations to go beyond a “pinprick” attack. Thus, the president’s apparent “planning” and “preparation”—incorporated as they are into the illegal threats—may be “a crime against peace” under the Nuremberg Prnciples.
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Likewise, the Draft Code of Offences against the Peace and Security of Mankind, issued by the UN’s International Law Commission, identified a threat of force in violation of the UN Charter as a crime: “Offences against the peace and security of mankind, as defined in this Code, are crimes under international law, for which the responsible individuals shall be punished.” The threat to use force is then listed as a criminal offense as follows: “Any threat by the authorities of a State to resort to an act of aggression against another State.” An authoritative UN General Assembly Resolution on the “Definition of Aggression” stipulated: “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”
These are not legal abstractions, and shouldn’t be treated as such. While in the past few decades we have witnessed the still ongoing massive transfer of public funds to the war-making machine and away from public infrastructure, public transportation, public education, and universal healthcare, there exists the parallel phenomenon of the transfer of law and legal interpetation almost exclusively to the executive branch to coverup and perpetuate ongoing lawless policies, at home and abroad.
In contrast, the law wielded by the public can preempt the war-making policies that bring about the threat of terrorism—the point of political leverage for nearly any unconstitutional measure or illegal use of force. It can thus act as a deterrent against fraudulent or overblown claims of threats to U.S. national security, including claims about moral imperatives that run cover for deceitful foreign policies that have the effect, if not the intent, of distracting the American public from other pressing concerns.
Herein lies the great utility of the president’s discretion to resort to an illegal threat of force at any time. In this instance, Obama’s threats to bomb Syria have suddenly jerked all heads from the president’s gargantuan violation of the Fourth Amendment rights of nearly all Americans, given the now endemic warrantless surveillance. And it has preempted, at least for now, the possibilities of the West’s détente with Iran, given the recent election there of a more rational and level-headed president, who has convincingly stated that he seeks a new paradigm for negotiations with the United States and Europe.
Instead, a major claim seeking to justify the bombing of Syria is the maintenance of the strategic deterrent against Iran—that is, the threat of force against Iran—to thwart its alleged nuclear weapons program, for which, to date, no confirmed evidence has been published. In this fashion, President Obama can keep the ball of moral claims to threats and force and war in the air to distract us from what is a surprisingly lawless presidency.
There is, clearly, a desperate humanitarian situation in Syria and its neighboring countries that must be addressed immediately by the international community through the UN Security Council, and not by any individual UN member state, including the United States, claiming a moral and legal right to bomb Syria.