Editorial: Punishing Syria: Justifiable Or Legal?
Under the theory of jus ad bellum, or the theory of just war, there are moral reasons for disregarding the law. It has been reported that the Obama Administration is looking to the 1999 U.S.-led NATO air attack on Kosovo as a precedent for taking military action in Syria absent Security Council approval. The bombing of Kosovo was justified under the humanitarian principle that there exists a "responsibility to protect," and it was later termed an "illegal but legitimate" use of force by the Independent International Commission on Kosovo.
However, the "responsibility to protect" doctrine, including its use in Kosovo, has been widely objected to by other states, which prevents it from being considered as customary international law. The International Court of Justice Statute defines customary international law in Article 38(1)(b) as "evidence of a general practice accepted as law." Humanitarian intervention has been rejected by other states in cases where far more lives were lost than in Syria. India's claim of humanitarian intervention in the civil war between West and East Pakistan (Bangladesh) was not endorsed by a single country. Vietnam's military intervention into Cambodia that ended Pol Pot's murderous reign was rejected by a majority of the U.N. General Assembly, including a negative vote by India. In 1987, in the case of Military and Paramilitary Activities in and Against Nicaragua, the International Court of Justice concluded that binding customary law prohibits coercive military intervention into the internal affairs of another state.
When considering a resolution authorizing a strike against Assad in the event diplomacy fails, Congress will have to decide whether to follow established international law or to conclude that "illegal but legitimate" use of force is preferable over not taking any action. Attempts will be made to build the case that air strikes against Syria are legitimately part of our self defense, even though we did not experience an armed attack.
Or it might be argued that the norm prohibiting chemical warfare has morphed into customary international law, and that military force therefore is justifiable without Security Council approval. Conceivably, a resolution will be offered in Congress that requires Security Council approval before any strike is authorized.
The Obama Administration and Congress can and will argue about whether independent military intervention in Syria is justified, but it is not obvious that they can argue that it is legal.