Syrian Options: The White House’s sophomoric understanding of International Law

News reports suggest that President Obama has decided to provide arms to the insurgents in Syria, but the exact nature of the arms and possible other actions involving the use of military force remain under consideration.

See:

Mark Mazzetti, Michael R. Gordon and Mark Landler, “U.S. Is Said to Plan to Send Weapons to Syrian Rebels,” New York Times, June 13, 2013.

Karen DeYoung and Anne Gearan, “U.S., citing use of chemical weapons by Syria, to provide direct military support to rebels, Washington Post, June 14, 2013 (01:17 AM EDT).

DeYoung and Gearan report at length on statements from Ben Rhodes, President Obama’s foreign policy spokesman and aide. They then explain that according to “unnamed” administration officials,

The (arms) shipments, to begin in a matter of weeks, will be undertaken by the CIA. The agency has been the primary U.S. government interlocutor with the opposition’s Supreme Military Council, led by Gen. Salim Idriss. Such covert action requires a signed presidential finding.

That method avoids what the administration previously has said are legal restraints on supplying arms for attacks against another government without approval by an international body such as the United Nations, according to U.S. officials who spoke on the condition of anonymity about intelligence matters.

The appalling degree of ignorance of international law found in the White House is revealed by the “explanation” contained in the second paragraph quoted above, which asserts the U.S. has to send the arms secretly (while shouting from the rooftops that it is doing so!) through the CIA to avoid “legal restraints on supplying arms for attacks against another government without approval by an international body such as the United Nations…”

They don’t grasp the legal analysis. They don’t even understand that following their own line of reasoning, it is the Security Council alone which, acting under Chapter VII of the U.N. Charter, can authorize “enforcement action” to implement its resolutions, allowing actions that might not otherwise be permitted, as occurred in the case of Libya.

The White House is saying, in effect, that an action doesn’t violate international law if it is not acknowledged. The sophomoric assertion that if the supply of weapons is done covertly, it doesn’t violate international law, is simply appalling.

This is wholly specious reasoning, because it is the action that violates international law, not whether it is secret or not, which anyone who remembers Nicaragua’s case in the World Court might be able to point out to the president.  The domestic analogy would be to assert that a crime is not committed if it is done in secret.

More to the point, the reading of international law in this statement is like the reading by a first-year law student of some statute, who then immediately advises a client that he or she can’t do something he or she wants to do (however important the business objective), without thoroughly reasearching the different legal arguments that might support the action the client wants to take.

Indeed, that is where Obama is very much like a first-year law student, because he has never really practiced law in the way an experienced attorney has.

In fact, there are strong arguments that can be made to support military intervention in Syria in order to bring to a halt the commission of war crimes and crimes against humanity. It would require some effort on the part of the State Department’s lawyers, who are the principal people in the government who have a deeper appreciation of what international law is all about and how it works, to fully develop those arguments.

Coincidentally, the nominee to be the new State Department Legal Adviser, Avril D. Haines, has just been stolen by John Brennan to become the Deputy Director of the CIA. Consequently, the State Department’s Office of the Legal Adviser, where the international legal expertise resides, is currently in transition. The previous Legal Adviser, Harold H. Koh, has returned to Yale Law School from where he came.

We shall return to this issue of covert operations as we explore the legitimacy of humanitarian intervention to bring to a halt the wanton commission of war crimes and crimes against humanity by the Syrian government.  If such intervention is legal, it is irrelevant whether it is covert or not.  If it is illegal, on the other hand, secrecy does not prevent the United States from incurring state responsibility for its actions.

The covert route is the lazy person’s route, because you don’t have to think through the international law issues and implications. However, we need to think through those implications and present a strong legal justification for our actions, if they are to be accepted as legitimate by the other nations in the region and by the world.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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