Can Obama Bomb Syria? The Legality of a Unilateral U.S. Strike

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Is Syrian President, Bashar Al-Assad’s alleged chemical attacks on Syrian citizens a risk to the United States, requiring a self-defense bombing? Image by Fabio Rodrigues Pozzebom / ABr

The Right to Self-Defense Under International Law

Under the United Nations Charter, Member countries must obtain Security Council authorization before commencing a military attack against another country. Article 51 provides an exception to the general rule. A country or a group of countries can take military action without the UN’s approval to defend against an armed attack on a country or countries. Countries have an inherent right to defend themselves and do not have to give up this right in order to seek authorization from the Security Council.

If such is the case, Members must advise the Security Council of what they have done or are doing in order to comply with the UN Charter.

It also can be argued, customary international law is still in effect and countries have rights under that law even though these actions are not specifically set out in the UN Charter. Under customary international law, countries can take action in “anticipatory self defense.” If an attack against a country is imminent, that country can defend itself from that attack. They need not wait until their territory is attacked before taking action.

Is Syria a Threat to the U.S.?

The problem with the situation in Syria is that Syria does not appear to be an imminent threat to the United States, any more that it has been during the last few years. Obama seems to want to send a message to Assad that while it is okay to kill innocent civilians with rockets, mortars and bullets, once the Syrian president used chemical weapons, if in fact “he” used them, he should be punished for it. There is no provision in international law to use force against another country to teach a leader a lesson. The requirement of self defense in the justification for the use of force seems totally absent.

Obama’s Use of Force without Congressional Authorization

Unlike what just took place in the United Kingdom, Obama has made no attempt to recall Congress and ask for a resolution authorizing the actions he is contemplating against Syria. This is despite receiving a letter from over 100 members of Congress, both Republicans and Democrats, urging him to seek Congressional approval prior to any Syrian strike.

Under the Constitution, both the executive and legislative branches have authority over acts of war. Under Article II, Section 2, the president, as commander in chief, has the authority to deploy troops while Article I, Section 8 grants the power to declare war to Congress.

The War Powers Act was passed in 1973 after Congress overrode President Nixon’s veto. The legislation was passed after Congress and the American people thought the president had too much power in conducting the war in Vietnam.

The War Powers Act requires the president to “consult” with Congress after troops are deployed and troops can only be deployed for a period of up to 60 days without an authorization from Congress.

The War Powers Act envisages real wars, not the lobbing of cruise missiles into a country for a few days to punish that country’s leader for crossing some red line the president decided to draw. If the U.S. bombs Syria, the action may take only a few days. If this is in fact the case, the War Powers Act only states Obama is required to tell Congress what he is doing and why. Obama has already briefed Congress and will undoubtedly advise of more details, either in a brief to Congress or on a television show.

Commander in Chief’s Authority

As in customary international law, the president has the authority as commander in chief to repel an attack or an imminent threat from another country without first going to Congress. However, President Obama has made it clear that he simply wants to punish Assad for using chemical weapons.

The United States has not been attacked by Syria, nor is Syria an imminent threat. Although Syria denies having chemical weapons, reports of WMD in Syria have spread for years. The fact that citizens of Syria were hit with chemical weapons in August 2013 does not make their possession any more of an imminent threat to the United States than they were before they were used.

U.S. Bombing Syria: Breach of International Law

Unless an imminent threat can be shown, an attack on Syria would be a clear breach of international law. And as far as dispensing with Congressional approval, the War Powers Act was simply not designed to cover situations such as a two or three day military strike to make a point. American legislation contemplated real wars in which troops would have to be withdrawn after 60 days unless the action was approved by Congress.

Resources:

United Nations. Charter of the United Nations. (2013). Accessed August 30, 2013.

American International Law Review. Anticipatory Self-Defence Under International Law . (2003). Accessed August 30, 2013.

Library of Congress. War Powers. (2013). Accessed August 30, 2013.

Washington Post. Obama issues Syria a ‘red line’ warning on chemical weapons. (2012). Accessed August 30, 2013.

CNN. Official: U.S. may take unilateral action against Syria. (2013). Accessed August 30, 2013.

U.K. Telegraph. Syria crisis: No to war, blow to Cameron. (2013). Accessed August 30, 2013.

U.K. Telegraph. Francois Hollande: France is ready to act, despite British vote. (2013). Accessed August 30, 2013.

ABC News. Growing Bipartisan Coalition Urges Obama to Seek Congressional Authorization for Syria Strike. (2013). Accessed August 30, 2013.

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