As a legal matter, the Syrian government’s use of chemical weapons does not automatically justify armed intervention by the United States… Syria is a party to neither the Biological Weapons Convention of 1972 nor the Chemical Weapons Convention of 1993… Syria is a party to the Geneva Protocol, a 1925 treaty that bans the use of toxic gases in wars. But this treaty was designed after World War I with international war in mind, not internal conflicts.
[And] the conventions also don’t mean much unless the Security Council agrees to act. The United Nations Charter… demands that states refrain “from the threat or use of force against the territorial integrity or political independence of any state.” The use of force is permitted when authorized by the Security Council or for self-defense — but not purely on humanitarian grounds.
Of course ethics, not only laws, should guide policy decisions… if the White House takes international law seriously — as the State Department does — it cannot try to have it both ways. It must either argue that an “illegal but legitimate” intervention is better than doing nothing, or assert that international law has changed — strategies that I call “constructive noncompliance.” In the case of Syria, I vote for the latter.
Hurd is right about a great many things: that Syria’s obligations under treaty law are weaker than people want to think; that there are legal tensions here that the US cannot and shouldn’t try to wish away; and that a decision must be made between doing something and doing something lawfully; and that the robustness of international norms around both R2P and chemical weapons are at stake in how the US and UK frame the discussion.
But I think Hurd is both under-stating the case about Syria’s international legal obligations, and over-stating the case about US options in framing a potential military intervention. International law indeed is “changing” – but the relevant changes he describes apply to Syria’s responsibility to its civilians, not to the US’ right to reinterpret the UN Charter. And ultimately, as he points out, even Syria’s violations of law don’t make it lawful for the US to intervene without a Security Council resolution – however ethically right such an intervention may be. The two are really separate legal questions so I’ll address them separately below. Continue reading