How President Obama Undermined His Legal Case for Syria Action

All signs point to limited Western military action against the Syrian government sooner rather than later. U.S. Secretary of State John Kerry cleared the way with his remarks today. He called the attack a "moral obscenity" and described as "indisputable" evidence that the Assad regime launched it.  It appears that the United States and other Western powers are reconciling themselves to action without UN approval. CBS News reports that the administration will make a legal case based on violations of key treaties rather than UN approval:

Obama ordered up legal justifications for a military strike, should he order one, outside of the United Nations Security Council. That process is well underway, and particular emphasis is being placed on alleged violations of the Geneva Convention and the Chemical Weapons Convention.

British foreign secretary William Hague also alluded to ways around a paralyzed Security Council.

In this context, the remarks that President Obama made on CNN at the end of last week become puzzling. In the course of that interview, the president discussed the legality of a potential military response [emphasis added]:

CUOMO: The red line comment that you made was about a year ago this week.

OBAMA: Right.

CUOMO: We know since then there have been things that should qualify for crossing that red line.

OBAMA: Well, Chris, I’ve got to — I’ve got to say this. The — when we take action — let’s just take the example of Syria. There are rules of international law.

CUOMO: Uh-huh.

OBAMA: And, you know, if the U.S. goes in and attacks another country without a U.N. mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it, do we have the coalition to make it work, and, you know, those are considerations that we have to take into account.

The United States has almost always insisted that it can use force in defense of vital national interests (and not just immediate self-defense) with or without UN approval. Successive U.S. national security strategies have made that point clear. In its own version, the Obama administration nodded vigorously at international standards but left plenty of ambiguity:

While the use of force is sometimes necessary, we will exhaust other options before war whenever we can, and carefully weigh the costs and risks of action against the costs and risks of inaction. When force is neces-sary, we will continue to do so in a way that reflects our values and strengthens our legitimacy, and we will seek broad international support, working with such institutions as NATO and the U.N. Security Council.

The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to standards that govern the use of force. Doing so strengthens those who act in line with international standards, while isolating and weakening those who do not. 

The president wasn’t nearly as careful in his remarks, a point that several Security Council members may soon note.

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