US Syria strike is against International Law, but it's not the first

There are 101 reasons not to use military force now in Syria. This bully presents a problem. Photo: Air Strike / Associated Press

WASHINGTON, August 31, 2013 — If Syrian dictator Bashir al-Assad’s regime murdered over 1400 innocents, including over 400 children, in a poison-gas attack, what response should follow from the rest of the world?

Are there legal grounds for a military response?

SEE RELATED: In Syria, Obama should study the lessons of Operation: Rolling Thunder

Assad’s illegal use of chemical weapons against his own population provides no legal justification in either international or in U.S. law for a military strike against Syria. The world recognizes only two justifications for armed intervention: self-defense, and U.N. Security Council approval.

International law requires that the United Nations Security Council approve military action. The United States, nevertheless, has acted in the past without such approval, when actions were taken to address “imminent threats” or to assist with “urgent humanitarian need.”

President Clinton ordered an airstrike in Kosovo on humanitarian grounds in 1999. His administration justified it on those grounds because there were no strong legal arguments.  Serbia was attacked to halt mass abuses against ethnic Albanians. Conceding the tenuous legal footing of the attack, Clinton’s administration said the intervention should not be taken as a precedent. 

President George W. Bush invaded Iraq about four years later without U.N. authorization. His justification was the imminence of a threat under the assumption that Iraq still had weapons of mass destruction.

SEE RELATED: Syria shows Obama’s shameless hypocrisy on executive war powers

Possession of those weapons would have been in violation of the 12-year old resolution that ended the Persian Gulf War. 

Now President Obama tells us that with “high confidence” in the judgments of the CIA, National Security Agency, and other intelligence agencies, the Assad government launched the August 21 chemical weapons attack that killed 1400 near Damascus.

Intelligence points to a civil, internal effort as the reason for the chemical attack. This significantly reduces a legal justification for U.S. action. There is no legitimate claim that the gassing is an imminent threat to the United States. 

Further, American allies Jordan and Turkey, Syria’s neighbors, have not asked for assistance to defend themselves. 

SEE RELATED: EXCLUSIVE: Syrians warn U.S. that Al Qaeda has hijacked revolution

Syria’s atrocity is both morally and legally indefensible. The use of chemical weapons is clearly illegal under international law. Syria signed the Geneva Protocol in 1925, which says that the use of chemical weapons against a civilian population is prohibited.

Syria did not sign the 1992 Chemical Weapons Convention, the “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.”  Syria cannot claim that because it did not sign this agreement it is therefore allowed to use chemical weapons.

If the U.S. does strike, the court of public opinion, and whether Syria uses chemical weapons again, will ultimately decide whether the strike was justified.

“Justified” does not mean “legal,” though.

David Kaye, a former State Department lawyer said, “using force in a situation like this could be seen as legitimate internationally and the right thing to do; that’s the policy­makers’ call, but that’s different from saying it would be legal. It wouldn’t be, unless you had authorization of the Security Council.”

Obama says that we, as a world leader, must make sure that regimes are held accountable for their illegal acts. The U.S. historically, as a world leader, has taken on a responsibility to protect innocents who cannot protect themselves.

France agrees. In a speech to French ambassadors last Tuesday, French President Francois Hollande said that international law has not kept pace with the emerging international consensus on the need to act to halt mass atrocities. “International law must evolve with the times. It cannot serve as an excuse to allow mass murder.”

The British parliament disagrees. If it went to a vote, the U.N. Security Council, with vetoes from Russia and China, would also disagree.

There are numerous reasons to oppose a U.S. strike. 

First, what is the goal for a military strike? What is a “win?” If it is to send a message to Syrian dictator Assad that he must not to use chemical weapons again, a limited strike that does not threaten his regime will fail.

Money, not an insignificant concern, is another reason not to act. The Pentagon is undergoing extraordinary budget cuts. Estimates for even a short and fast military strike place costs at more than $600 million. 

Gordon Adams, a professor at American University and a former official in the Clinton Administration Defense Department predicts a smaller, but still significant cost:

“This would come in under $100 million, if it goes off as advertised. The most likely scenario for a punitive strike on Syria: land-attack cruise missiles launched from five U.S. Navy destroyers cruising in the eastern Mediterranean. Each of those sophisticated missiles evade radar and explode within feet of their targets, costing about $1.1 million, according to the Navy.

“The ships, missiles and salaries are already paid for, but there may be an incremental cost in the tens of millions for operating the ships outside their routine operating schedule.

“Costs would escalate quickly, and the Pentagon would have to ask for more money if follow-up strikes occurred or the action escalated.”

Beyond money, there are absolute risks involved in launching an attack on Syria. 

Over the past twenty years, limited strikes against illegal actions by mostly Middle-Eastern regimes have failed to end continuing violence or atrocities. Attacking Syria may serve as an expression of moral outrage, but there is an absolute certainty that it will not end Syrian aggression.

What might happen next? Syria and Hezbollah will most certainly respond. Syria has warned that it will defend itself and that there will be “global chaos” if the U.S. attacks. Retaliation from Syria could be targeted at U.S. allies such as Israel, or at U.S. targets in the region, such as the port in Bahrain that houses the U.S. Navy’s Fifth Fleet.

One question hangs over this discussion: Can this type of atrocity be allowed to pass without response? If not the United States, who responds? It is an unfortunate situation that the bully presents. When the bully hits the little kid, if the little kid cannot or will not hit back, someone must step in so the bully does not continue.

Paul A. Samakow is legal writer and an attorney licensed in Maryland and Virginia, practicing since 1980. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.

This article is the copyrighted property of the writer and Communities @ Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

More from Leading Edge Legal Advice for Everyday Matters
blog comments powered by Disqus
Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

Contact Paul Samakow


Please enable pop-ups to use this feature, don't worry you can always turn them off later.

Question of the Day
Photo Galleries
Popular Threads
Powered by Disqus