PUTNEY — Since March 2011, Syria has now been embroiled in a brutal civil war. Press reports suggest that fatalities - primarily among the insurgent forces and the many haplessly embroiled civilians - already number in the many tens of thousands, perhaps more than 100,000.
Those reports have also described the commission of atrocities by both government and insurgent forces. Moreover, there have been several U.N.-confirmed reports of the use of lethal chemical weapons since March, allegedly by the government, but also possibly by the insurgents, leading to many hundreds of civilian deaths.
Indeed, the U.S. government threatened a punitive military strike against Syria for what it firmly considers to have, in fact, been the use of chemical weapons by the Syrian government.
Although Syria is a member of the United Nations as well as being a party to the four 1949 Geneva Conventions dealing with wide-ranging constraints on military activities, it is not a party to 1977 Protocol II, which deals with the pursuit of non-international armed conflicts.
We must consider two issues related to the ongoing Syrian Civil War of 2011: the legality of the use, if true, of chemical weapons within Syria; and the legality of a military strike, if it occurs, by the United States against Syria.
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The alleged use of chemical weapons by the Syrian government against rebel forces within its borders raises the question of whether such use would be an illegal act, something the U.S. government insists to be the case, although without documenting its claim.
Three multilateral treaties specifically address the use of chemical weapons, although, as it turns out, none is potentially applicable to the case at hand.
The 1925 Geneva Protocol simply prohibits the use of chemical weapons by members of this treaty - approximately 137 countries, including both Syria and the United States - against other members of this treaty when at war with one another.
This treaty is in no way applicable to the case at hand.
The United States has a particularly unenviable record regarding this landmark treaty: Unlike all other major nations, this country did not join the treaty until 1975 (having been shamed into it by its actions during the Vietnam Conflict). Then the U.S. was essentially alone in insisting that it was applicable only to chemicals lethal to humans and, furthermore, that it reserved the “right” to respond to a chemical attack with chemical weapons.
The 1993 Chemical Weapon Convention prohibits its members the very possession of chemical weapons (and thus also requiring that any in their possession be destroyed). About 189 countries belong to this treaty, including the United States, but not Syria; thus, the treaty is not applicable to that country.
Although a formal member since the treaty came into force in 1997, the U.S. has yet, as required, to destroy its own extensive arsenal of chemical weapons. And in September Syria has announced that it is going to join the treaty.
But once again, this treaty in no way applies to the case at hand.
The 1998 International Criminal Court Statute establishes for its approximately 122 members - which include neither Syria nor the United States - that the use of chemical weapons in international wars is a war crime (a grave breach), and a 2012 amendment extends this designation to non-international wars.
Thus, once again, this treaty is not applicable to the case at hand. And I would add that it is a point of shame that the U.S. is not a member of this civilizing instrument.
Going for a moment beyond the ostensible specific justification for the United States taking upon itself to “punish” Syria for its alleged use of chemical weapons, the U.S. is committed to carrying out any act of war against another country for only one of two reasons: if it is doing so in its own direct defense, or if authorized to do so by the United Nations Security Council.
Finally, it is clear from the relatively limited employment of chemical weapons (and then generally only in secret) that the existing legal norms against such use and possession are a true reflection of the widely held cultural norms against them, each of those two norms reinforcing the other.
Indeed, it has been suggested by some that chemical weapons have become universally illegal via so-called customary international law and, thus, binding alike on all countries.
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As President Obama considers a military attack on Syria - that is to say, an act of war by the United States against another country - the question arises of the circumstances under which such an act would be legitimate in the light of national and international law.
As to national law, the U.S. Constitution states very clearly that only the Congress shall have the power to declare war. It further mandates that persons cannot be deprived of life, liberty, or property without due process of law.
As to international law (that is, to treaties to which the United States is a state party), the first thing to point out is that the U.S. Constitution states very clearly that all treaties shall be the supreme law of the land.
A number of treaties are thus especially applicable to the case at hand.
To begin with, by joining the 1928 Treaty for the Renunciation of War as an Instrument of National Policy, the U.S. condemned recourse to war for the solution of international controversies of whatever nature.
Then, by becoming a party to the 1945 Charter of the United Nations, the U.S. gave up any right to wage war other than in direct self-defense, unless authorized by the United Nations Security Council.
Moreover, an attack of the sort being considered by President Obama would inevitably lead to Syrian deaths -that is, to so-called extrajudicial killings (summary executions and arbitrary deprivations of life), an illegal act for the U.S. in light of having joined 1949 Geneva Convention IV and the 1966 International Covenant on Civil & Political Rights, among others.
President Obama has based his consideration for going to war on wanting to “punish” Syria for its use of chemical weapons to quell an insurgency.
It thus becomes useful to point out here that none of the three international treaties dealing with chemical weapons is relevant to the case at hand since they provide no legal justification for the U.S. to attack Syria.
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It is ironic, indeed, to have to remind our commander-in-chief and one-time professor of constitutional law that, in accepting the Nobel Peace Prize in 2009, he was proud to note that the United States was instrumental in helping to create the United Nations as the mechanism to govern the waging of war.
And as recently asked rhetorically by two Yale University professors of law, Oona Hathaway and Scott Shapiro, in the International Herald Tribune, would President Obama's employment of force to punish President Asaad for his alleged use of chemical weapons be worth endangering the fragile international order that is World War II's most significant legacy?