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Exclusive to the Trib: Syria, international law & the use of force

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By John Bolton
Saturday, Sept. 7, 2013, 9:00 p.m.

Barack Obama's surprise decision to seek congressional authorization to strike Syria's Assad regime has resolved an intensely-debated constitutional issue but replaced it with uncertainty about what Congress will do.

Curiously however, Obama seemingly worries more about another overhanging uncertainty: does he need, and can he get, international legal authority to use force in Syria? So important for him is this issue, it might have been one motivation for going to Congress: to buy time for diplomacy to satisfy his compulsion to meet what John Kerry once called “the global test.”

Although I believe on policy grounds that Obama is wrong to use force in Syria, he should not worry about international “legal” approval. America needs no external authorization to do what it decides is in its best interest. Nonetheless, Obama consistently dwells more on the legal than the policy issues, and many criticisms of Obama's direction, couched in legal terms, are actually policy objections. We would do well to sort out the legal from the political.

Obama has carefully argued that Syria's use of chemical weapons violates “international norms” but not “international law.” Indeed, Syria is not party to the Chemical Weapons Convention, and the 1925 Geneva Protocol applies to international conflict rather than civil wars. Instead, Obama contends that since so many nations have ratified the CWC, it is, in effect, binding.

This is a dangerous approach for the United States, given the number of almost-universal treaties we have wisely not joined, such as the Landmines Convention, the Comprehensive Test Ban Treaty, the Rome State creating the International Criminal Court and others. Sloshing treaties into “norms” would ultimately negate our Constitution's explicit mechanism for treaty ratification.

As in Libya, although Obama avoids saying so explicitly, he is relying on the amorphous “responsibility to protect” theory. First promulgated almost invisibly in the enormous “Outcome Document” for a September 2005 United Nations summit, “R2P” evolved from the “duty of humanitarian intervention,” another diaphanous concept. The name change is significant, given that George W. Bush gave “intervention” a bad name. Now, the international nannies don't “intervene,” they merely “protect.”

Anyone reading Paragraphs 138-139 of the Outcome Document (almost 40 single-spaced pages long) will strain to discern its meaning. Few if any leaders who approved it actually read the R2P language, and fewer still understood it. During contentious U.N. negotiations R2P was far from being an important agenda item. Significantly, State Department lawyers were absolutely clear that the final wording was not legally binding. And critically, along with numerous other caveats, any exercise of R2P must come “through the Security Council.” Over the past two-and-one-half years, Russia and China have repeatedly frustrated council action on Syria and are ready to veto again to prevent authorizing military force.

For Obama even to worry about international authorization external to the United States is misbegotten, albeit highly revealing. Whether in global politics or an individual's daily life, asking “what authority do I have to act?” is a quintessentially European question, one posed by those who are static, risk-averse and introverted, which sadly describes much of Europe today.

Throughout American history, in stark contrast, the question has been “what prohibits us from acting?” We presume that individuals or nations are free to act in their own interest unless an express prohibition precludes it. David Crockett famously said, “Be always sure you're right, then go ahead.” He wasn't looking for anyone else's authorization. America has always been a “go ahead” nation, at least until the Obama presidency.

Nor does the U.N. Charter's exhortation that nations “shall settle their international disputes by peaceful means” preclude unilateral U.S. action. Article 51 provides that every member has the “inherent right of individual or collective self-defense.” Obviously, if a right is inherent, the holder can decide entirely for itself when and under what circumstances to exercise it. If that were not so, the right would hardly be “inherent.”

U.N. acolytes object that such a reading essentially leaves use-of-force decisions to each member state's discretion. So be it. It wasn't for nothing that large swathes of the charter were drafted by John Foster Dulles and other clever American lawyers. And, of course, the U.N. Charter has been violated so many times by so many members that one wonders how much “legal” (as opposed to political) obligation still binds the remaining members. As previously noted, since the Security Council will not act on Syria, the charter poses no inhibition to unilateral U.S. action.

Indeed, rather than buying time, perhaps a different foreign-policy logic underlay Obama's unwise decision to seek congressional authorization rather than acting on his own constitutional authority: the near certainty no international authority would be forthcoming.

And what a strange and disturbing conclusion for Obama to make, that if he couldn't satisfy his preference for a Security Council resolution, he would have to settle for one from Congress.

John Bolton, a former U.S. ambassador to the United Nations, is a senior fellow at the American Enterprise Institute. His exclusive column to the Trib appears the second Sunday of every month.

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