Analysis: The international law president vs the Damascus regime

US President Barack Obama may earn a new nickname as the international law president. At least two hot debates are going on right now in the US administration. One is whether to use force in Syria in response to what most have said was a significant and indiscriminate use of chemical weapons by President Bashar Assad’s forces against Syrian rebels and civilians. The second is how this could be justified under international law (the initial problem being that technically the Syrian war is an entirely internal matter which could be viewed as no one else’s business). According to most commentators, many of Obama’s predecessors, most notably his immediate predecessor George W. Bush, viewed international law as a hindrance or a technicality which deserved not much more than lip-service. Some presidents had this view wishing to justify humanitarian intervention, while others took this view from the perspective of placing hard US interests before any legal principles. But this is the US president who had then-US State Department legal adviser Harold Koh draft a detailed legal basis for the targeted killing of Osama bin Laden as opposed to merely pumping his fist on television, knowing that most Americans would viscerally approve without needing to know a detailed legal basis. While more than one president has sought international legitimacy and support, Obama possibly topped any prior president, in at least verbal commitment, to international law governing US foreign and war powers policy, telling CNN that he may not order intervention in Syria because of international law. Politicians, commentators and academics have been in shock. Some of those pushing for US intervention say that this statement was a paper tiger. They note that when Obama set out his “red lines” for Syria, the crossing of which could lead to a serious US response (read by most as the use of force, at least air or cruise missile strikes), he did not mention international law, only the use of chemical weapons, and that this is a mere excuse for avoiding a battle that he wants to avoid. Some of those against intervention say that there cannot possibly be justification under international law for the US to intervene without UN Security Council authorization (a nonstarter due to Russian/Chinese vetoes) because it is an internal conflict of one UN member state which has not attacked any other UN member states. Without such an armed attack, no right to self-defense or collective defense can be invoked, they say. Some have suggested that US intervention in Kosovo in 1999 on humanitarian grounds (the more recent US intervention in Libya had at least partial UN Security Council approval and widespread international support) could be an international law precedent for doing the same in Syria. But other commentators have noted that US officials took pains at the time to argue the uniqueness of the Kosovo situation, wanting to avoid its being used as a precedent, preferring to view it as an extreme case to which international law would turn a blind eye in order to intervene without changing the rules of the game. A former top legal adviser to the British government and another to the US State Department recently wrote that intervention could be justified on several grounds: Syrian attacks on Turkey could trigger collective selfdefense obligations by other NATO states, Syrian chemical weapons use could accidentally cross Syrian borders impacting other states, potential transfer of chemical weapons to Hezbollah could lead to further national security threats, recognizing the Friends of Syria group as the sole representative of the Syrian people as France has could sidestep any violation of sovereignty issue, the humanitarian situation is sufficiently dire and extreme (which has some veil of UN legitimacy under a similar 2005 doctrine endorsed by parts of the UN called “R2P” or responsibility to protect) as the Kosovo case. One academic has spurred significant debate suggesting a novel approach, that Article 52 of the UN Charter could be interpreted to authorize regional groups to maintain “peace and security” even without UN Security Council authorization (critics say that Article 53 of the charter still subordinates Article 52 action to UN Security Council authorization.) With all of the other reasons that Obama cited or has previously cited for a cautious approach to Syria, it is likely that, despite his statement, if international law were his only concern, he could find a justification for attacking. Yet, even if international law is not “the” reason for avoiding attack, or even if the US uses a creative interpretation to justify an attack, Obama’s invocation of international law so explicitly on such a dramatic point of war and foreign policy creates a new a precedent of its own with unpredictable consequences, one of which could be giving law even greater primacy in world affairs than in the past.