President Barack Obama and his advisers are hesitating to punish Syria’s use of chemical weapons because of concerns about international law. This latest tragedy in Syria’s civil war shows the damage done by a legalistic approach to international security: Earlier intervention by the United States might well have ended the Assad regime, forestalled the deaths of more than 100,000 civilians, and prevented the opening of the Pandora’s box of chemical weapons.
Under the administration’s reading of the U.N. Charter, however, the United States may resort to force only in self-defense or when authorized by the Security Council. President Obama delayed war in Libya until the Security Council approved, and it so far has refused to stop the killing in Syria on the same grounds. In his quest to be the anti–George W. Bush, whom he accused of waging an illegal war in Iraq, Mr. Obama has refused to provide aid to the Syrian rebels, impose a no-fly zone, or attack regime targets, allowing the civil war to kill civilians, displace millions, and further destabilize the Middle East.
It is time for the United States to stop hiding behind such obsolete, formalistic views of the laws of war and embrace a pragmatic approach in keeping with long American practice. Instead of blindly following the U.N. Charter’s ban on war, the United States can argue that protecting international peace and security takes precedence. The U.N. Charter aims to prevent the great-power wars that destroyed Europe in 1914 and 1939, but which have largely disappeared during the “long peace” of the post-war world. International law should not outlaw force that promotes
international peace and security by stopping civil wars, humanitarian catastrophes, rogue nations, terrorist groups, or failing states.
Even France, which opposed the 2003 U.S. invasion of Iraq because of its lack of U.N. authorization, realizes that international security can no longer depend on a complete ban on all war. “International law must evolve with its times,” French president François Hollande said this week. “It can’t be a pretext for allowing massacres to be perpetrated.” President Obama has put the United States in the unaccustomed position of embracing the U.N. more tightly than France.
To stand in the way of this pragmatic approach to international law, the White House has bound itself to a misreading of the U.N. Charter. As historian Marc Trachtenberg has shown, the U.S. delegation to the U.N. drafting conference did not understand the Charter to limit Washington’s freedom to use force. Senators, for example, were concerned that the new treaty prohibited the Monroe Doctrine. But in a May 1945 meeting, delegate John Foster Dulles said that “at no point would the member states give up their right to use force in all circumstances.” Under his logic, the United States could still wage war to advance the United Nations’ goal of maintaining world peace and security. Leo Pasvolsky, the key State Department official on the U.N. negotiations, confirmed that “there was certainly no statement in the text under which we would give up our right of independent action.” He later explained to the delegation that “if the Security Council fails to agree on an act, then the member state reserves the right to act for the maintenance of peace, justice, etc.”
Removing the Assad regime, and thus ending the Syrian civil war, would restore regional and global security. In the short term, the fighting in Syria has cost at least 100,000 civilian lives, driven about 1.4 million refugees into neighboring countries, and displaced 4 million Syrians within the country. It has prompted terrorist groups such as Hezbollah to fight on the side of the government and drawn in regional powers such as Turkey, Saudi Arabia, and Iran. Assad’s use of nerve gas against the rebels not only crosses the line between civilization and barbarism, it also portends the killing of even greater numbers of civilians.
Going further back, Syria’s authoritarian regime has long oppressed its population by arresting and executing thousands of political opponents, most conspicuously when Bashar’s father, Hafez Assad, killed between 10,000 and 25,000 civilians in Hama in 1982. Syria has long pursued efforts to destabilize the region — attacking Israel in 1967 and 1973, occupying swaths of Lebanon during its civil war, supporting insurgents in Iraq during the U.S. occupation, and acquiring chemical weapons and seeking nuclear weapons. Unrest has spread beyond Syria to Lebanon and Jordan. With one of the largest confirmed stockpiles of chemical weapons in the world, Syria has now demonstrated its capability and desire to use one of the most barbarous means of war to win.