Obama’s failure to justify military action against Syria under international law, and its pernicious impact

President Barack Obama has so far failed to offer a well-developed justification under international law for taking military action against Syria.

While not a “slam dunk”, such a justification can be crafted. Yet Obama has remained silent on the issue. One result is that when Vladimir Putin offers the argument that military action against Syria would violate the U.N. Charter’s prohibition against the use of force without Security Council authorization, his argument goes unanswered.

If we take reality into account, and not just textbooks, Putin’s position in essence amounts to an argument that a government can commit war crimes and crimes against humanity on a massive scale, with absolute impunity from military action aimed at protecting civilian populations from the commission of such crimes, so long as it has the political support of a permanent member of the U.N. Security Council which can block Security Council action through the use of its veto.

In the present case, moreover, Russia, whose veto–together with that of China–provides al-Assad with absolute impunity, is itself complicit in the commission of the very war crimes and crimes against humanity of which the Syrian regime is accused.

A key consequence of Obama’s failure to articulate a fully-developed legal justification for military action against Syria is that potential allies in Europe and elsewhere are left to Putin’s version of legality, or that of others who take a wholly literal and mechanistic approach to the U.N. Charter–regardless of the consequences. That lets other nations off the hook, far too easily, without forcing them to look at the realities on the ground in Syria and the compelling legal arguments that support military action to halt al-Assad’s atrocities, which include the use of chemical weapons.

It could be that Obama doesn’t want to complicate the process of securing Congressional approval for military action in Syria. It could be that he doesn’t appreciate how the affirmative use of international law can win supporters and undermine opponents in the international political and military sphere. Whatever the cause of his restraint or delay, if it continues he will have lost critical time on the diplomatic front in using his legal case to build a coalition, as well as valuable and timely opportunities to rebut the utterly cynical legal arguments of Putin and the Russians.

On legal justifications for military action to halt Syria’s commission of war crimes and crimes against humanity, including through the use of chemical weapons, see the following articles by The Trenchant Observer:

U.K. publishes legal justification for taking military action in Syria (full text and link)
August 29, 2013

A strong but narrow legal justification for military action in Syria: The key to building a strong coalition
August 27, 2013

Fine intellectual distinctions involving the use of force are likely to fail in Syria
August 26, 2013

New strategy and accompanying military action needed in Syria; Justification under International Law
August 25, 2013

Syria: Russia and Iran complicit under International Law in the commission of war crimes and crimes against humanity
June 16, 2013

Syrian Options: The White House’s sophomoric understanding of International Law
June 14, 2013

Imagine: The Collapse of International Order, Syria, and Berlin in 1945
February 20, 2013

In Washington, new voices urging no-fly zones; France reportedly supports “liberated zones”, moves towards supply of weapons—Obama’s Debacle in Syria
— Update #84 (September 5)
September 5, 2012

The U.N. Charter, International Law, and Legal Justifications for Military Intervention in Syria—Obama’s Debacle in Syria
— Update #83 (September 1)
September 1, 2012

Continuing massacres in Syria, at Daraya and elsewhere; legal justification for military intervention — Obama’s Debacle in Syria
—Update #78 (August 26)
August 26, 2012

REPRISE: Humanitarian Intervention in Syria Without Security Council Authorization—Obama’s Debacle in Syria
— Update #68 (July 25)
July 25, 2012

REPRISE: Goals to guide the international community in Syria—Obama’s Debacle in Syria
— Update #62 (July 11),
July 11, 2012 (originally published May 29, 2012)

“By all necessary means”: Syria is closer than you think, and the hour is late—Obama’s debacle in Syria
— Update #25 (April 9)
April 9, 2012

Humanitarian Intervention in Syria Without Security Council Authorization—Obama’s Debacle in Syria
— Update #24 (April 8)
April 8, 2012

Limited military action to halt crimes against humanity: A new template to halt terror in Syria, and elsewhere—Obama’s Debacle in Syria
— Update #18 (March 28)
March 28, 2012

The Nuremberg Principles and Syria—Obama’s Debacle in Syria
— Update #5
March 5, 2012, updated March 6, 2012

Military Intervention to establish “no-kill zones” and humanitarian corridors—Syria Update #9
February 24, 2012

U.N. Commission Report on Crimes Against Humanity in Syria; Military Action; Unilateral Humanitarian Intervention in Syria and International Law
February 24, 2012

Repression in Syria, and the spread of universal ideals throughout the world
May 11, 2011

For opposing views, concluding that military action against Syria would constitute a violation of the U.N. Charter and international law, see

Dago Akande, The Legality of Military Action in Syria: Humanitariian Intervention and Responsibility to Protect, EJIL: Talk (Blog of the European Journal of International Law, August 28, 2013.

Rosa Brooks, “So you want to intervene in Syria without breaking the law? Good luck with that,” Foreign Policy (blog), June 20, 2013.

Obviously, there is diasagreement among international legal scholars on the legality under international law of military intervention in Syria.

On U.S. deliberations regarding a potential legal justification for military action against Syria in response to al-Assasd’s use of chemical weapons, see

Colum Lynch and Karen DeYoung, “U.S. explores possible legal justifications for strike on Syria,” Washington Post, August 28, 2013.

For Barack Obama, the United States, and its allies, however, the final choice will come down to whether to offer a legal justification or not. Some argue that military intervention may be “illegal” yet still “legitimate”. This argument is wholly specious. It ignores the nexus between law and legitimacy. Moreover, it opens up a much broader exception in practice to the prohibition against the use of force than does the narrowly-tailored legal justification set forth in the most recent articles by The Trenchant Observer listed above.

The United States will be in a much stronger position, both legally and politically, if it sets forth a strong but narrow legal justification for any military action against Syria.

Let us bear in mind, also, that the United States (and Israel) frequently undertake covert actions which are not even acknowledged as being actions of the state, thereby violating the most fundamental norm of international law of all. Nor do they comply with the requirement of Article 51 of the U.N. Charter that actions taken in purported exercise of the right of self-defense be immediately reported to the Security Council.

So, we don’t live in a perfect textbook world. In the real world, over 110,000 human beings have been killed in a conflict in Syria characterized by the commission by the al-Assad government of war crimes and crimes against humanity on a massive scale over a period of some two and a half years. These atrocities have included the use of chemical weapons on a number of occasions, and on a large scale in Ghouta (Ghuta) on August 21, 2013.

Modern international law, it is submitted, does not require that civilized nations stand idly by while chemical weapons are used again and another 100,000 people are killed in Syria. Military action is required to stop the commission of these crimes, now.

Such action should be justified by a fully-developed legal opinion which explains why such action is lawful, and therefore legitimate, under international law.

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.