After the U.S. bombing of Syria on Tuesday, Obama administration officials issued a number of self-serving and misleading statements seeking to justify its actions as complying with international law.
Yesterday the New York Times reported that “senior Obama administration officials said on Tuesday that the airstrikes against the Islamic State – carried out in Syria without seeking the permission of the Syrian government or the United Nations Security Council – were legal because they were done in defense of Iraq.” The same report said that “Iraq had a valid right of self-defense against the Islamic State because the militant group was attacking Iraq from its havens in Syria, and the Syrian government had failed to suppress that threat.”
By way of response:
First: It is noteworthy that the statements issued by the Obama administration vaguely appeal to “international law” and “self-defense” without citing specific rules of the United Nations Charter, including its cardinal rule, Article 2(4), which prohibits the threat and use of force by states in the conduct of their international relations. This permits administration officials to engage in public diplomacy about the legality of the Syria bombing with little accountability to the public.
Second: Although Samantha Power, U.S. ambassador to the United Nations, claimed in her words “a fundamental principle in the United Nations Charter that gives countries the right to defend themselves, including using force on another country’s territory when that country is unwilling or unable to address it,” there is no rule in the Charter that would permit one country (in this case Iraq) to invite a second country (the United States) to bomb a third country (Syria) at the discretion of the first and second countries and without Security Council authorization.
Third: The right of “self-defense” under international law exists as the single, narrow exception to the Charter’s overarching prohibition of the threat or use of force. While citing self-defense, the administration neglects to explain in any detail how the narrow exception in this instance trumps the overarching cardinal rule, which itself goes unmentioned.
Fourth: The self-defense exception in the Charter (Article 51) may be exercised by a state only in response to an “armed attack.” As the U.S. Lawyers Committee on Vietnam observed in 1967, “armed attack” refers to a situation where “military forces cross an international boundary in visible, massive and sustained form … leaving no choice of means and no moment for deliberation.” Thus, “self-defense” and “armed attack” have established meanings in international law that U.S. actions and subsequent statements have not recognized. While the ISIS militants have infiltrated and control much territory in Iraq and Syria, the nature of that insurgency has left and still leaves opportunities for the world community acting through the United Nations to respond to that crisis in a manner short of yet another U.S.-led war in the region.
Fifth: Syria’s foreign minister on Tuesday publicly denounced the U.S. bombing of Syria, saying that the United States should not repeat the “fiasco in Iraq by undertaking the same kind of blind military attacks.” This statement would be at odds with any forthcoming explicit or implied administration claim that the government of Syria invited the United States to bomb targets inside Syria.
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Sixth: UN Charter Article 2(4) states: “All [UN] members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” If the United States in fact bombed Syria without an invitation from Syria and indeed with Syria’s disapproval, then the U.S. bombed Syria in violation of “the territorial integrity or political independence” of Syria, and thus in violation of the UN Charter.
Seventh: The foundational purpose of the United Nations and the UN Charter was “to save succeeding generations from the scourge of war.” Furthermore, Article 2(4) prohibits the threat and use of force in any manner “inconsistent with the Purposes of the United Nations.” These key stipulations undermine any assumed lawfulness of U.S.-waged perpetual war, the newest phase of which was begun yesterday by President Obama.
Eighth: According to the Times, the Obama administration also asserted that the legality of its decision to bomb Syria was grounded in Congress’s 2002 authorization for the Bush administration’s 2003 invasion of Iraq. Although the Obama administration is not the Bush administration, Syria is not Iraq, and 2002 is not 2014, this, nevertheless, is what the president asserted as a legal basis in U.S. domestic law for the Syria bombing.
Ninth: The supremacy clause of the U.S. Constitution – Article VI, paragraph 2 – makes U.S.-ratified treaties, including the UN Charter, “the supreme law of the land” in the United States. Because no branch of government is permitted to violate the Constitution, neither the Congress nor the president has legal authority to violate the UN Charter. Therefore, the 2002 congressional authorization to invade Iraq – since it was issued without UN Security Council authorization and in the absence of an armed attack by Iraq on the United States – was issued in violation of the Charter, and thus the Constitution. The 2002 congressional resolution, therefore, in addition to the reasons mentioned above, cannot serve as the legal basis today for Obama’s decision to bomb Syria.
Tenth: UN Charter 39 states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression, and shall make recommendations, or decide what measures shall be taken … to maintain or restore international peace and security.” The Lawyers Committee on Vietnam observed that “the essential meaning of this rule of international law is that no country shall decide for itself whether to use force—and, especially, whether to wage war through an intervention in a foreign conflict.” In short, Article 39 “confers the competence to use force upon the Security Council, thus making force the instrument of the world community and not of individual states.”
There are a lot of problems in the world, and the rampaging atrocities of the Islamic State in Iraq and Syria currently rank highly among them, in addition to runaway climate change and the waging of perpetual war by the world’s most powerful state.
The crises in Iraq and Syria are appropriately addressed not by the United States alone, which, by virtue of its military and intelligence policies, supported the conditions in which ISIS was created and proliferated, but by the world community acting through the UN Security Council (the makeup of which needs to be reformed), the General Assembly, the International Court of Justice, and the International Criminal Court, which generally speaking are more vital than often recognized, despite chronic hostility, including in this instance, from the United States.