Obama wants to launch a military strike against Syria but there is one small problem: he needs a U.N. mandate to do it.
The U.N. Charter clearly prohibits the use of military force against states unless there is a claim for individual or collective self-defense (Article 51) or pursuant to an authorization of the Security Council (Articles 39 and 42). The U.S. does not have a case for self-defense and its allies have no legal arguments to justify collective self-defense in the case of Syria.
Since it is unlikely that Washington will get the Security Council’s blessing to launch a military strike, U.S. officials are exploring a range of options to provide a legal basis for military action against Syria.
The Obama administration is arguing that they want to intervene in Syria in order to defend the norm against chemical weapons. It is true, the use of chemical weapons is a grave violation of the Geneva protocol and the Chemical Weapons Convention but the U.S. has no legal or political mandate to enforce the convention – only the U.N. does.
The U.S. has been hinting that it may use the Kosovo precedent to bypass the U.N. In 1999, the U.S basically said “we know we can’t get support from the Security Council, Russia will veto; therefore, we won’t ask the Security Council, we’ll ask the NATO high command.” So they went to NATO and the NATO high command said, “Yes, we approve the use of military force in Kosovo.” The problem is, the UN Charter is clear on what constitutes a legal use of military force – and permission from NATO is not on the list.
It is also being argued that the principles of Responsibility to Protect (R2P) and humanitarian intervention provide a legal justification for intervention without UN authority. Still the responsibility to protect doctrine, which was approved by the world’s leaders at a 2005 summit, requires Security Council approval for military intervention.
So, unless the Security Council authorizes military action, the U.S. and its participating allies would be in violation of international law in using military force against Syria.
And let’s be clear. Any U.S. attack on Syria will not only be unlawful, but it will kill more innocent civilians and make a horrific war even worse.