Legal Considerations Instrumental to Syria Reversals

Last Tuesday, President Obama gave a national address from the East Room on the international crisis in Syria – taking, in the words of Jon Stewart, that long stroll down “I Killed bin Laden Lane.” Though the address was originally scheduled to secure congressional and public support for military action, the president instead turned his focus to the promise of a nascent diplomatic solution. The day before, Russian Foreign Minister Sergei Lavrov endorsed an off-hand proposal by Secretary of State and suit connoisseur John Kerry, who suggested that Syria could avoid an attack by “turn[ing] over every single bit” of its long unacknowledged chemical weapons stocks to the international community. Seemingly born of accident, this was but one of many reversals since the August 21 chemical attacks in which legal constraints informed the calculus of strategic actors.

Indeed, the prospect of retaliatory strikes against Syria raised profound legal questions on both the domestic and international levels. The Constitution, of course, contemplates two kinds of military conflicts: those initiated by Congress through a formal declaration of war (or its functional equivalent) and those commenced by the president pursuant to his Article II powers. The latter are by no means a novelty, but the situation presented in Syria – where the action in question did not affect American property, personnel, or security interests in any imminent way – tested its current boundaries. In Grenada, for example, President Reagan justified strikes on the basis of risk to American lives and property; similarly, the strikes President Clinton ordered on al Qaeda in the wake of the African Embassy and U.S.S. Cole bombings clearly constituted self-defense. Thus, to be on precedential ground in the case of Syria would require some augmentation from international law.

Here, too, there was no help to be found. Article 2(4) of the U.N. Charter prohibits “the threat or use of force against the territorial integrity or political independence of any state,” excepting those cases in which a state acts in lawful self defense (pursuant to Article 51) or Security Council action (made pursuant to Chapter VII). Since the beginning of Syria’s Civil War, Russia and China have thwarted UNSC action by means of their veto power. Consequently, some have suggested that American involvement in NATO’s bombing campaign of Kosovo, which occurred without congressional authorization or Chapter VII resolution, could provide a rationale for strikes against Syria. However, a closer examination of this campaign renders the analogy inapt. First, the involvement of NATO made the U.S.’s actions at least arguably consistent with Article 51, since it was aiding in the lawful self-defense of Turkey, another NATO member. Second, although political constraints in the case of Kosovo similarly hampered UNSC action, it is clear that even Russia saw the imposition of force by international actors as fait accompli.

Other options exhausted, the president was left with a novel and somewhat haphazard construction of domestic and international legal authorities to justify intervention without authorization. As relayed by White House Counsel Kathryn Ruemmler, unilateral strikes would be permissible under domestic law because of the “important national interests” of limiting regional instability and enforcing the international norm against the use of chemical weapons. It is worth noting that an international norm is invoked as a domestic law justification, since Syria is not a party to the Chemical Weapons Convention and therefore did not violate binding international law. Furthermore, Ruemmler conceded that while striking Syria “may not fit under a traditionally recognized legal basis,” she maintained that doing so would be “justified and legitimate under international law.” The conceptual stretching implicated by these assertions is obvious and is a far cry from legalistic formalism. These claims evidence the comparatively illegitimate and undesirable legal options which would motivate any president – particularly one with a professed commitment to international law and aversion to American unilateralism – to reconsider while standing on the precipice of a solitary action bearing uncertain consequences.

After the Senate Foreign Relations Committee’s divided endorsement and Lavrov’s proposal, the president used his speech to request a delay in Congress’s consideration of the force authorization. While the proximate cause for such a reversal was Secretary Kerry’s remark, he did not conceive the idea of turning Syria’s chemical weapons over to the international community. In fact, the administration had previously considered such a possibility, only to be deterred by an evident lack of Russian political will. Proponents of executive war powers often cite the branch’s functional and institutional advantages over legislatures; since the executive acts with a single voice, the argument goes, he is capable of acting more swiftly, decisively, and secretly in the face of changing threats. The Syrian case would seem to provide some evidence for this conclusion: Congress quickly grew divided over the scope of the authorization, and President Assad used the intervening time to bolster his position in Syria by moving potential targets into areas concentrated with civilians. Assad also sowed uncertainty among the American public by finally agreeing, with propagandistic motives, to an interview with Charlie Rose. However, Congress’s slowness turned out to be a virtue in this case. President Putin proved far more receptive to idea of ceding Syria’s chemical weapons after an overt threat of force, engaging with Obama on the issue during the G-20 Summit. This context informed, if not precipitated, Kerry’s remark and Lavrov’s subsequent overture, resulting in an agreeable solution by means of a credible but slightly-less-than-imminent threat of force.

While the U.S. and Russia have come to an agreement in principle on the transfer of Syria’s chemical weapons stocks and its accession to the CWC, the means of accomplishing these goals are still unclear. Russia and Syria have objected strongly to a French proposal to execute the agreement pursuant to the aforementioned Chapter VII, which would permit the use of force in the event of noncompliance. As a result, Congress is considering another Syria resolution, one that would still authorize force in the absence of UNSC action. The president, similarly, has kept military assets in place to maintain a credible threat of force. In the event Syria does accede to the CWC, however, it would possess a reasonable argument that its accession was void. As HLS professor Jack Goldsmith notes, Article 52 of the Vienna Convention on the Law of Treaties voids a treaty “if its conclusion has been procured by the threat or use of force.” Syria is a party to this treaty, and although the U.S. is not, it considers many of its provisions to constitute customary international law. Thus, if the UNSC cannot reach a meaningful resolution, the U.S. may be ironically flouting one norm of customary international law in order to preserve another.