01.09.13 |

[Marty Lederman is a Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. This is the second part of a two-part posting.]

In my previous post, I explained that the difficult and unresolved constitutional question has (thankfully) been avoided—at least for now—by virtue of President Obama’s decision to seek congressional authorization for his proposed use of force in Syria.

That decision does not, however, affect the question of whether such an operation would violate Article 2(4) of the U.N. Charter. To be sure, if Congress approves the operation, the statute in question will supersede the constraints of the Charter for purposes of U.S. domestic law. But the U.S. remains a party to the Charter for purposes of international law, and international law is indifferent as to whether the U.S. legislature has or has not approved a particular use of force.

I think the vast majority of commentators on OJ and elsewhere—see, e.g., Dapo Akande on EJIL:Talk! –are correct: The use of force in Syria would violate Article 2(4) of the Charter. On the merits, I don’t have a great deal to add to what others have said, for there’s not much of an argument on the other side. (One of my colleagues has suggested to me that perhaps there is a “plain meaning” and purposive reading of Article 2(4) that might be available—namely, that since the Charter prohibits use of force “against the territorial integrity or political independence of any state,” any use of force that is motivated by an aim other than violating the territorial integrity or political independence of a state (such as preventing future uses of chemical weapons) does not violate Article 2. (Jordan Paust has suggested likewise in comments to several posts here.) My understanding, however, is that no nation, including the United States, has ever adopted this reading of Article 2(4), which would radically narrow the scope and effect of the prohibition. I would not expect the U.S. to float such a reading with respect to Syria.)

What about the “humanitarian intervention” rationale advanced by the U.K.? It almost certainly will not even be the subject of debate in this country. The U.S. has long been resistant to that theory, not only because it is almost impossible to defend on its merits—even if such a norm of humanitarian intervention had developed as a matter of custom (and it hasn’t), the U.K. offers no basis at all for why such a custom would be a defense under the Charter, a binding treaty—but also for fear that it would be exploited by other nations in a manner that we could not endorse and that would significantly undermine the Charter. So, for example, after the U.S. agreed to join the operation in Kosovo in 1999, the State Department Acting Legal Adviser, Michael Matheson, was at pains to publicly emphasize that the U.S. “had not accepted the doctrine of humanitarian intervention as an independent legal basis for military action that was not justified by self-defense or the authorization of the Security Council.”

It is therefore not surprising that the President’s proposed AUMF for Syria does not so much as mention a humanitarian intervention rationale. Instead, it expressly identifies a single “objective of the United States’ use of military force in connection with this authorization”—namely, “to deter, disrupt, prevent, and degrade the potential for, future uses of chemical weapons or other weapons of mass destruction.”

Even more striking is that the draft AUMF does not even suggest that the use of force for such an objective (deterring, and degrading the potential for, future uses of chemical weapons) would be consonant with the Charter. There is no effort, in other words, to explain why, or even assert that, the operation would not violate Article 2(4).

There are surely compelling reasons why perhaps Congress should be wary of approving an operation that would breach the Charter. Over in the U.K, such concerns are a central component whenever such a use of force is contemplated. The public and parliamentary debates over intervention in Iraq in 2003, and in Syria this week, for example, were dominated by discussion about compliance with the Charter. Such questions rarely play much of a role in U.S. public and legislative debates, however—I don’t recall the question being raised at all, for example, during the long and contentious debate concerning authorization of the Iraq War in 2003. Thus I’ll hazard to predict that the forthcoming congressional debate in the U.S. on the proposed Syria AUMF will be virtually silent on the question of whether the operation would or would not violate the Charter.

Indeed, I doubt the Executive will even offer an argument that the operation would not violate the Charter (just as it did not do so in 1999 respecting Kosovo). This is in part because there is no good argument; but, more importantly, it is a function of the fact that the question of Charter compliance is unlikely to sway many votes in Congress, in any event. If Congress and the President decide to go forward with the Syria operation, it will be with the full knowledge that we will be violating the Charter. If past such debates are any precedent, this will not give the lawmakers much pause, especially in light of the widespread view that the operation would be Charter-compliant were it not for Russia’s threat to use its veto, without justification, to prevent what the UNSC would likely otherwise approve.

Thus, although neither Congress nor the President is likely to say it publicly in so many words, an affirmative vote on the Syria AUMF, if it occurs, will almost certainly reflect the view that sometimes there are national and international interests even more important than technical treaty compliance—particularly where, as here, the treaty-prescribed process itself has been obstructed without good cause. In this respect, André Nollkaemper is undoubtedly correct when he writes that “[t]he failure of the Security Council to take its responsibilities and to act therefore is for more than one reason deplorable. Not only does it leave the people in Syria without protection, but it also induces unilateral action that, whichever it proceeds inside or out, leaves the international legal system worse off.”

In his extremely interesting and important post, Nollkaemper wonders whether the United States will, or should, publicly characterize any strikes on Syria as “part of an attempt to reconstruct the law on the use of force,” rather than as a simple deviation from the law of the Charter. That is to say, might the United States make an argument of the following nature?: “Present international law may prohibit it, but international law is not static and can change by its being breached. The unlawful act may contain the seeds of a new rule allowing for humanitarian intervention.”

Whatever the merits of such a public justification, I doubt we will see Congress, or the President, offering any such explanation. Such a “reconstructionist” account might be plausible—indeed, likely—if merely a customary norm were at stake. But I would be surprised if the United States were willing to suggest that a treaty obligation might evolve by virtue of planting the “seeds” of a new customary norm, either in favor of humanitarian intervention without Security Council approval (a rationale that the United States has disclaimed), or even intervention for purposes of reinforcing a categorical prohibition on the use of certain weapons or methods of warfare. This is, however, a very interesting question, and I’d be interested to hear what other OJ posters think of the prospect of the U.S. articulating such a “reconstructivist” account of what is permissible under the Charter.

Finally, a few words are in order in response to Michael Dorf’s recent post arguing that the United States should not violate the Charter. First, Michael argues that “the need to maintain U.S. credibility in light of President Obama’s earlier statement that the use of chemical weapons would be a ‘red line’” would not be an adequate justification for the use of force in violation of the Charter. I agree. One can certainly believe there is a significant value in maintaining U.S. credibility when it has threatened to act; but I don’t see the case for that being an adequate reason to breach a treaty. As far as I know, however, although such face-saving is a prominent topic of discussion among cable talking heads, it has not been “a big chunk of the justification for force offered by the Administration”—or any part of the justification, for that matter. Not in the official statements of the President and the Secretary of State, in any event.

Second, Michael is simply not convinced by the justification the Administration has offered for the use of force—namely, that the missile strikes “will cause enough damage to the Assad regime that it will be deterred from further use of chemical weapons.” “When the use of military force is at least as likely to widen suffering as it is to curtail it,” he writes, “the moral justification for that use of force [in violation of a legal obligation] can hardly be said to be strong.” That is certainly correct. And any member of Congress who concludes that the use of force will more likely cause more harm than good should not vote to authorize it. But my sense is that the President and the Secretary genuinely believe that such strikes are much more likely than not to accomplish the goals they have set forth—and they are prepared to make the case in support of that view. I have no expertise that would allow me at present to decide who is right about this predictive question. And I think it’s a bit premature for Michael simply to assume that the use of military force “is at least as likely to widen suffering as it is to curtail it.” But he correct that that is the right question that we all should be asking.