A US Attack On Syria Would Violate The UN Charter
In Washington, President Barack Obama’s plans to punitively attack Syria for alleged chemical weapons use are falling apart before an increasingly recalcitrant Congress. After the president’s heavily debated submission of his use-of-force resolution to Congress — which the White House insists is simply a courtesy rather than an actual requirement — a bipartisan coalition of doves has rejected the president’s argument that military intervention is the only valid option available after Syria allegedly crossed the “red line” on weapons of mass destruction use the administration had set for the region.
Without Congress’s approval, the president’s options become increasingly unpalatable. Citing former President Bill Clinton’s intervention in Kosovo — in which President Clinton engaged in air strikes against the Serbian military without Congress’s explicit approval before deployment and despite the House’s rejection of a use-of-force resolution in four separate votes a month after hostilities began — President Obama asserts he can commit the military to the intervention as a reflection of his authority as supreme commander of the nation’s defenses.
There’s one huge difference, though: the Clinton intervention in Kosovo was supported by the United Nations. Prior to the intervention, the U.N. Security Council passed resolutions 1160 (1998), 1199 (1998) and 1203 (1998), all calling on the Serbian government to stop hostilities in Kosovo and to allow U.N. personnel free access for the purposes of investigating violations of international humanitarian laws. Even though the U.N. resolution authorizing force came after Clinton’s, it was issued with the understanding that a Serbian failure to adhere with the previous resolutions was the sole rationale for the Security Council’s — and by extension the Clinton administration’s — actions.
The United States, standing alone
President Obama has no such backing from the U.N.. With the results of the U.N. chemical weapons inspections yet to be released, and with Russia threatening to veto any Security Council resolution condemning Syria, the United States risks being in violation of the United Nations Charter with its plans to attack Syria. The United States, following its intelligence assessment on a reported chemical attack in the suburbs of Damascus on Aug. 21, feels that a punitive act against the Syrian regime’s actions is not only prudent, but in keeping with the expressed purposes of the U.N. toward preserving the peace.
The Obama administration asserts that the inspectors’ report, due in two weeks, is irrelevant on the basis of its own intelligence. Citing what it says is positive proof, the administration argues it has the needed legal justification to proceed and that U.N. tests will only confirm whether chemical weapons were used and not who used them.
“By the definition of their own mandate, the U.N. can’t tell us anything that we haven’t shared with you this afternoon or that we don’t already know,” said Secretary of State John Kerry during a recent press hearing.
Many, including some members of Congress, are urging the administration to slow down and wait for the report.
“I would strongly encourage the Obama administration and any other countries considering a military strike to wait for the results of the U.N. secretary general inspection,” said Amy Smithson, an expert on chemical and biological warfare at the Monterey Institute of International Studies. “If the U.N. analysis of samples turns out to reveal the use of classic warfare agents believed to be in the Syrian government’s arsenal, like sarin and VX, then the neon light already pointed towards [Syrian President Bashar al-Assad] glows even brighter. The point is: Don’t count the inspectors out.”
Assad ridiculed the accusations of his regime possessing chemical weapons, using them on Syrian citizens and then allowing chemical weapons investigators to examine the site of the reported attack. Other members of the Security Council are either waiting for the inspectors’ report or — recalling America’s previous insistence on action against Iraq – are wary and cautious of trusting the U.S. again.
“The actions of the Assad regime are morally reprehensible and they violate clearly established international norms,” said U.S. Ambassador to the U.N. Samantha Power on Thursday. “The use of chemical weapons is not America’s red line. As President Obama said yesterday, this is the world’s red line. 189 countries, representing 98 percent of the world’s population, and all 15 members of the U.N. Security Council, agree that the use of chemical weapons is abhorrent and we have all collectively approved a treaty forbidding their use even when countries are engaged in war.”
“Unfortunately, for the past two and a half years, the system devised in 1945 precisely to deal with threats of this nature did not work as it was supposed to. It has not protected peace and security for the hundreds of Syrian children who were gassed to death on Aug. 21. It is not protecting the stability of the region. It is not standing behind now an internationally accepted ban on the use of chemical weapons. Instead, the system has protected the prerogatives of Russia, the patron of a regime that would brazenly stage the world’s largest chemical weapons attack in a quarter century — while chemical weapons inspectors sent by the United Nations were just across town. And even in the wake of the flagrant shattering of the international norm against chemical weapons use, Russia continues to hold the Council hostage and shirk its international responsibilities, including as a party to the Chemical Weapons Convention.”
The United States and the United Nations
If the administration attacks Syria without U.N. approval, the nation will be in abeyance of the U.N. Charter, as defined in Article 2.4:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
With the U.N. thus far only authorizing unarmed observers to Syria, U.S. intervention, in terms of international law, would be an unprovoked act of war against Syria, warranting U.N. intervention against the United States.
In this lies the rub. The U.N., as it is currently structured, cannot punish or act against the United States. As a permanent Security Council member, the United States has the expressed right to veto any proposed Security Council resolution — including any punitive actions against itself. This was seen in the 1984 International Court of Justice case The Republic of Nicaragua v. The United States of America, where the ICJ ruled that America’s support of the Contras harmed the Nicaraguan government in defiance of international law.
The ICJ ruled that the U.S. had violated Nicaraguan sovereignty, illegally used force against Nicaragua, intervened in the internal affairs of Nicaragua, infringed on the nation’s freedom of the high seas and killed or wounded Nicaraguan citizens.
The United States vetoed all Security Council enforcement of the judgement seven times, rendering the judgement ineffectual in actual intent and essentially nothing more than just a reprimand.
This came despite the Reagan administration’s open admission that it was indeed working to overthrow the Sandinista government and had lied about this to the ICJ for the sake of defending its case.
As host nation to the United Nations, the U.S. offers not only police and military protection of its permanent missions and personnel but also the majority of the organization’s funding and peacekeeping strength. The U.N. has neither the political will nor the practical strength to force the U.S. to comply with international law. This creates a problem — if a party of a law is free to disregard the law, then was it a law in the first place?
When the United Nations was formed after World War II in the ashes of the failed League of Nations, it was created with the intent that through the cooperation of the world’s nations, global peace could be achieved and a third World War could be avoided. In reality, the United Nations — the Security Council, specifically — has become a private negotiation backroom for the five permanent Security Council members — the U.S., the United Kingdom, France, China and Russia. Ultimately, international politics as defined by the U.N. has devolved from gestures of global harmony to the bargaining and trading of favors and barbs between the Big Five concerning the fate of the rest of the world.
In the final analysis, the United States’ reaction to the United Nations is really a reaction to the other permanent Security Council members. While there sometimes may be a sense of fair-play and respect in America’s dealings with the U.N., the U.S. government, historically, sees adherence to U.N. policies and rulings as a voluntary act.
A fine mess
The U.N. stalemate now centers around the U.S. and Russia, an ally of Syria. “The Russian side is not blocking the deliberations of other countries within the framework of the United Nations Security Council,” said Dmitri Peskov, the Kremlin’s spokesman, at this week’s G-20 summit, despite the fact that Russia explicitly vetoed a Syrian resolution three times. “It is trying to encourage its partners, including its partners in Washington, to objectively consider the situation and not to make decisions before the verdict of the U.N. experts who are working in Syria.”
The fine reality is that, with regard to Syria, the Obama administration is in a “damned if you do, damned if you don’t” situation. If the administration cancels intervention in Syria, it basically makes its “red line” rhetoric irrelevant and significantly softens the weight the United States carries in directing Middle Eastern affairs. It also exposes the administration to allegations that it was blind to the humanitarian disaster unfolding in the region. If the administration intervenes without U.N. support, it risks military engagement with Iran and Russia while exposing Israel to attacks that the Lebanese militia Hezbollah has threatened to carry out. The U.S. would also have to defend itself against charges of “international bullying” by unilaterally attacking a sovereign nation outside the wishes of the international community.
The greatest potential blowout, however, is if the administration attack Syria without congressional approval. If this happens, it’s almost assured that future negotiations between the White House and Congress — particularly on gun control, the budget, the debt ceiling and immigration — would become impassable minefields. Not only would the president lose support in his own party, but it’s reasonable to expect congressional Republicans to use the opportunity to turn their back on the president.
The administration has roughly indicated it will not proceed in Syria without congressional approval. Deputy National Security Adviser Tony Blinken said Friday that “it’s neither [President Obama’s] desire nor intention to use that authority absent Congress backing him.”
“After the events of Aug. 21 we reached out to Congress and we had conversations with members of Congress across the country,” he said, “and the one thing we heard from nearly all of them was that they wanted their voice heard and their votes counted.”
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