There has been insufficient analysis, by both policy makers and the media, of the legality of the looming use of military force against Syria. As usual, the law seems to be beside the point. But this not only ignores a key factor, but is rather paradoxical given that one of the primary justifications for the strikes is that they are to punish the Syrian government for its violations of international law. Legality should be an important factor in the decision-making process, because if the use of force is itself not lawful, then it represents nothing more than vigilante justice, likely doing far more harm than good to the international legal order.
There is little doubt that the Syrian regime has committed war crimes and crimes against humanity against its own people over the last two years. If it is proven that the Assad regime used chemical weapons in the attack last week, that would constitute a separate and grave violation of international law. All of this screams out for a response by the international community.
The reality, however, is that these crimes do not justify a unilateral use of force, and the contemplated American military strikes would not be lawful. Indeed, the Obama administration, while tossing out platitudes about complying with international norms, has not even tried to make the legal case justifying the use of force.
To assess the legality of the strikes we need to look at the international law legal regime on the use of force, established with the U.N. system after World War II. It prohibits any and all use of force against other states (Art. 2(4) of the U.N. Charter), except for the purpose of individual or collective self-defense (Art. 51), or as authorized by the U.N. Security Council for the purposes of restoring or maintaining collective security (Arts. 39-42). In order for a state to use force in self-defense, it or some other state must have suffered an armed attack (or, under some interpretations, be the target of an imminent armed attack) launched by the target state.
Neither condition is satisfied in the case of Syria. It has not attacked any other state, despite half-hearted arguments claiming that certain incidents with Turkey, many months ago, rise to that level. Nor, obviously, has the U.N. Security Council authorized any use of force against Syria. The fact that Russia and China, both veto-wielding permanent members of the Security Council, oppose any such action means that U.N. Security Council authorization is not likely any time soon.
It bears noting that one reason that Russia and China oppose authorization for even a limited use of force to protect civilians, is because the U.S. and NATO abused such authority in Libya. The Security Council authorized a use of force in Libya for the limited purpose of establishing no-fly zones and to take all other necessary measures to protect civilians. But NATO forces consistently attacked command and control structures and effectively assisted the rebels in overthrowing the Gaddafi regime, arguably in violation of the limited authority granted by the U.N.
While Russia has many other self-interested reasons for supporting Assad and blocking Western interference in Syria, it has a valid point in treating with deep suspicion any proposed Security Council resolutions granting even limited authority to use force in Syria. The U.S. and other NATO countries are thus partially responsible for having recently undermined and weakened the U.N. collective security system.
It is being argued that the principles of Responsibility to Protect (R2P) and humanitarian intervention provide a legal justification for intervention without U.N. authority. U.S. policy makers and other supporters of the strikes have advanced the NATO air campaign in Kosovo in 1999, undertaken to prevent a potential Serb slaughter of ethnic Albanians, as a precedent that would justify intervention in Syria under that principle. But the principle of humanitarian intervention and R2P are not yet established law, and the Kosovo intervention is generally recognized as having been unlawful.
Humanitarian intervention is an "emerging norm" of customary international law, which might serve as a third exception to the prohibition against the use of force, permitting states to intervene militarily in a state to prevent the government there from committing atrocities against its own people. The principle is founded upon the doctrine of R2P, which holds that where a state fails in its responsibility to protect its own people it loses some of its sovereign rights against external interference in its affairs, and the international community takes on some responsibility to protect the citizens of such a state from its own government. The use of force would be permissible in such instances, when employed as a last resort, for the sole purpose of protecting the victim population, and it is proportionate to the threat and the benefits outweigh the likely harm.
If the principle of humanitarian intervention becomes established law, it would provide the basis for the international community to intervene in situations like Syria. But it is not yet established law. Moreover, there are mixed views on whether humanitarian intervention should also require U.N. Security Council authorization, as was the case with the intervention in Libya in 2011. If so, then it would not be an exception to the prohibition at all, but would merely be a specific basis for U.N. Security Council action. But if humanitarian intervention is to become a third exception, Syria is not a good case for trying to advance the process of establishing that norm, because the motives of the U.S. are so clearly mixed.
What about the separate argument that the strikes are a response to the use of chemical weapons? It has been said by American and French leaders that Syria must be punished for breaking a taboo by violating the clearly establishing prohibition against the use of chemical weapons. As already said, if the Asssad regime did employ chemical weapons, that would constitute grave violations of international law. But even if proven, that does not create a legal justification for other states to use force against Syria. There is no "weapons of mass destruction" exception to the prohibition against the use of force.
There is an understandable moral outrage at the crimes committed in Syria, and a profound frustration at the failure of the United Nations and other institutions of the international legal system to help resolve the conflict and protect the people of Syria. But engaging in an unlawful use of force to "punish" and "send a message to" the Assad regime will do little for the Syrian people, and will almost certainly do more harm than good to the international legal order.
Vigilante justice, while purporting to enforce legal norms, typically erodes the normative power of the legal system it seeks to support, and further undermines the rule of law. The ramifications of the Libya operation reflect the harm caused merely by exceeding existing legal authority, while the profound harm to the system caused by the unlawful invasion of Iraq in 2003 are yet to be fully understood. It is simply perverse to justify a deliberate and clear violation of a fundamental principle of international law, on the grounds that one is trying to enforce related international legal norms.
The foregoing discussion has assumed that the limited military strikes on Syria are in fact motivated by a desire to enforce international law, and to protect the Syrian people. But those assumptions are increasingly doubtful. It is certainly difficult to defend these limited strikes now on the basis of humanitarian intervention, given that more than 100,000 people have been killed over the space of two years with no direct response having been taken by the West.
The strikes are more directly in response to the chemical weapons use, and it is also increasingly clear that what is really at stake is American "credibility" in defending the "red line" that President Obama laid down in a speech last August. The policy arguments that are being bandied about in D.C. have far more to do with the potential messages for Iran and North Korea, than they do about protecting the people of Syria. Indeed, the concern now appears to be ensuring that the strikes are sufficiently surgical and limited, so as not to overly disturb the status quo in Syria, because of the risks of Islamist rebels seizing power.
A use of military force for the primary purpose of defending American "credibility," in which many innocent people will be killed, and in which the normative power of the international legal order will again be undermined, is not only unlawful, but is also illegitimate and unjust.