What’s on the other side of the red line?

By Julie Inglese

President Barack Obama would like the United States to become an aggressor in Syria’s civil war. The Syrian government's “alleged” use of chemical weapons to kill hundreds crossed a redline that U.S. President Barack Obama claimed a year ago would be the game changer.

Obama is trying to go through the formal measure of getting Congress to okay the attack, but does that make it legal?

Putting aside whether attacking Syria is the right thing to do, let us look at what the law is and predict what the legal and institutional consequences of law breaking might be.
MSNBC reported on a news conference from the United Nation where U.N. Secretary General Ban Ki-Moon said, “the use of force is lawful only when in exercise of self-defense . . . or when the Security Council approves such action.” These statements are in line with Article 2(4) of the U.N. Charter. Everyone living in the U.S. knows that this attack would not be self-defense, and Foreign Minister Sergei Lavrov explained in a news article by Bloomberg that with Russia sitting in the drivers seat at the U.N., the Security Council is unlikely to condone an attack on Syria.

But a third basis for the legality of any action has been suggested – the doctrine of humanitarian intervention under customary international law.  Paul Campos has captured the concept nicely in a recent article for Time. Customary international law, norms that countries follow out of a sense of legal obligation even though the norm has not been codified in a treaty, is accepted by most countries as being a primary source of international law.  The British government released a memo recently that made a customary international law argument that humanitarian intervention allows force from an outside country without approval from the Security Council, if “the international community as a whole” agrees that a humanitarian crisis exists, that “there is no practicable alternative to the use of force if lives are to be saved,” and “the proposed use of force . . . is the minimum necessary to achieve that end and for no other purpose.” Therefore, the U.S. may have the legal right to attack Syria to alleviate a humanitarian crisis.

The world will have different views on of this argument, but one thing of importance is that there is very little precedent to establish this customary international law.

Since there is a chance that a unilateral attack on Syria would break international law it is important to consider the consequences of going through with the attack. The U.S. has not signed onto a treaty that provides enforcement for international law, so should the U.S. even consider if a unilateral attack on Syria would defy it?

Although there is no bright line rule for what will happen if the U.S. breaks the law, one thing is predictable: the next time another country is considering breaking an international law they would remember that the U.S. did not follow the rules. Also, it would be likely to cause an uproar from U.N. member states and spark distrust towards the U.S.. Breaking international law is a great way to show how little the U.S. respects the U.N.

In addition, Common Dreams has explained that Syria pledged to sign the chemical weapons convention because of pressure from the U.S. If the U.S. would like to see this actually happen and for it to be legal under international law, then the U.S. must end its threat of attack. This is because Article 52 of the Vienna Convention on the Law of Treaties on“[c]oercion 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.” The invalidation of the signing by Syria of the chemical weapons convention is a large consequence that can have large implications for the future of the Syrian government and people a like. Therefore, it is important to consider this topic when discussing if the U.S. should attack or even threaten to attack Syria. 

It is imperative that these questions be discussed and addressed before the U.S. takes any further action in Syria.