The Guardian reports: The United States and its allies are unlikely to build a clear case under international law for a military strike against Syria, and may instead make novel arguments about chemical weapons prohibitions, legal experts have said.
Britain is putting forward a resolution to the United Nations security council on Wednesday, condemning the alleged chemical attack in Syria last week and “authorising necessary measures to protect civilians” in the country.
However, Russia, which has a veto on the council, is widely expected to oppose any military action against Syria at the vote in New York. Western powers will therefore need to find another basis – outside of a security council resolution – under which to justify a strike against Syria.
The only other universally agreed basis for military action under international law is self-defence, and it would be hard for the US to argue that the Syrian conflict poses an imminent national security threat.
In Geneva, the UN special envoy to Syria, Lakhdar Brahimi, said on Wednesday that while inspectors had uncovered some evidence of a chemical attack, “international law says that any US-led military action must be taken after” agreement at the 15-nation security council.
“At this point the weight of international opinion would be that military action would not be legal,” said Ian Johnstone, a professor of international law at Tufts University. “However, I do think that there could be a case where violation of the law would be excused on the grounds of humanitarian necessity.”
Barry Pavel, a former director on the national security council under the Bush and Obama administrations, said that without UN or even Nato support, the US and its allies would seek to justify of a strike on “policy, political, moral and legal grounds”.
Pavel, who spent 18 years at the Pentagon is is now a vice-president at the Atlantic Council, said Obama would be expected to make a speech, answering questions about the legal basis of military action, prior to any strikes.
US, British and French political leaders have so far described the expected assault on Syria as a form of punishment or deterrence over its purported use of chemical weapons in the suburbs of Damascus, which resulted in hundreds of deaths.
Senior US officials have repeatedly said that President Assad’s forces “flagrantly violated” international law governing the use of chemical weapons, indicating that may form the basis for a justification of any future attack.
Defence secretary Chuck Hagel recently told reporters that any military action would occur “within the framework of legal justification”, but stopped short of saying it would be sanctioned under international law.
Professor Matthew C Waxman, from Columbia law school, said that even if the US and allies believed an attack on Syria was justified, they would “undoubtedly face some tough questions about the legality” of an intervention.
He said the US might forgo even attempting a technical justification for military action under international law which, in practical terms, would need the support of China and Russia, and instead build a moral case that use of force was “justifiable and legitimate”. [Continue reading…]