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.
The U.S. and NATO could have shortened the fighting and removed the Assad regime’s threat, as they did in the 2011 Libya intervention. At the outset of the Syrian civil war, the rebels enjoyed significant gains in territory and population despite their lack of air, armor, and centralized command, and their dependence on light-infantry units. The Assad regime succeeded in halting the rebels’ momentum by relying on heavy armor, artillery, and air supremacy. Western imposition of a no-fly zone, combined with military aid to the rebels, could have blunted the regime’s advantages and allowed the popular uprising to succeed.
For the last two years, Russia and China have systematically protected Assad by vetoing proposals in the U.N. Security Council to impose heavy sanctions. Since the outbreak of the civil war, Russia has delivered heavy arms to Syria such as air and naval defense systems, large stocks of ammunition, aerial missiles and bombs, and perhaps helicopters and aircraft. While the U.S. and its NATO allies imposed arms embargos on Damascus and declared that Assad should step down, they limited their support for the rebels to non-lethal economic and humanitarian aid. Regional powers have filled the vacuum, with Saudi Arabia and Qatar apparently providing arms and funds to the rebels.
Mistaken worries about international law have kept the Western democracies, led by the United States, from stepping in to restore stability and prevent the further massacre of civilians. According to reports in the Wall Street Journal, the Obama administration refused to send any direct military aid — not to mention taking more aggressive steps such as attacking Syrian air-defense units — because administration lawyers argued that the lack of U.N. Security Council authorization renders any U.S. aid illegal. While an international agreement, the Chemical Weapons Convention, bars the production of chemical weapons, Syria has not joined the treaty, and the law does not permit the use of force as a sanction.
Defenders of the administration might argue that fealty to the U.N. avoids any wider great-power conflict. U.N. Security Council approval of the Libyan intervention implied that neither Russia nor China would attempt to block Western attacks on the Qaddafi regime. Without such a guarantee, U.S. military aid or action in Syria might risk direct conflict with other countries: Syria and Iran might respond to U.S. force by launching attacks on Turkey and Israel to impose higher costs on the West. Russia might counter a NATO no-fly zone by sending sophisticated ground-to-air defense systems to Assad. Moscow might arm Damascus with top-shelf anti-ship missiles to hamper U.S. naval operations in the Eastern Mediterranean. Russia and China might send ships carrying arms, or Iran might continue its airborne aid, risking direct military conflict with U.S. forces. The risk of escalating the Syrian civil war into a broader conflict involving the great powers — which could end the long peace that has prevailed since 1945 — could far outweigh the gains of replacing Assad with a regime that respects the human rights of its population and disavows a revisionist agenda toward its neighbors.
Nevertheless, the more concrete benefits of removing the Assad regime outweigh the more speculative harms of Russian or Chinese resistance or great-power conflict. This calculation turns on both the costs of using force and the likelihood of Russian or Chinese military hostility, since the benefit of a peaceful Syria and the harm of a great-power conflict can be estimated and will not change under different scenarios.
Deploying air assets to Syria would certainly entail substantial risks to Western air forces and would require real intensity to tilt the balance toward the rebels. Syria in 2013 can field a far more sophisticated air-defense network and a larger air force than Libya could have in 2011. Syria appears to have about 450 Russian-made aircraft and more sophisticated Russian surface-to-air missiles (SAMs). According to U.S. military officials, Syria has an air-defense network that is five times as effective as Libya’s, covering one-fifth the territory. Nevertheless, Syria’s air defenses should prove no match for the U.S. and its allies. In 1982, the U.S.-equipped Israeli air force confronted the Syrian air force in the Bekaa Valley and destroyed 87 Russian-made MiG’s and 19 SAM batteries while losing a few helicopters and two aircraft. In 2007, Israeli air units slipped through Syrian air defenses undetected to destroy a suspected nuclear-reactor site without any loss of aircraft.
Even assuming the possibility of more losses over Syria than over Libya or Serbia, the benefits of regime change in Syria would still easily outweigh the costs. Removing the Assad regime would end the ongoing and indiscriminate attacks on civilians and remove a destabilizing agent in the Middle East that has supported terrorism in Iraq, sought conquest in Lebanon and Israel, and served as a vital link between Iran and terrorist groups. International law, properly understood, should allow nations to wage war that benefits global peace and security and preserves civilian life from indiscriminate attack.
There is a chance that events could spiral out of control and lead to a confrontation with Russia and China or regional powers such as Iran. Despite that dire scenario, the probability of a direct conflict remains low. Russia, for example, also opposed the NATO air war in Serbia, where Russia’s strategic and political interests were even stronger, but did not resist. While it might have an interest in increasing the costs of Western intervention by supplying Assad with arms, the Kremlin would gain little by interposing Russian military units against a no-fly zone. Russia is reducing the size of its conventional military, as its budget has fallen along with oil and gas prices; meanwhile, it seeks Western cooperation on strategic-weapons and commodity sales. China also seems highly unlikely to pursue any military response because its foreign policy is rooted in general support for territorial sovereignty against international activism, and the country would have little incentive to risk military confrontation to defend the sovereignty of Syria in the Middle East. Unlike Russia, China does not have the capability to project military power in the region, and it appears to be focusing its current buildup on denying access to the U.S. in the seas around East Asia instead.
While removing the Syrian regime would bring benefits both inside and outside Syria, the aftermath could cancel those gains. An equally or perhaps even more oppressive government could succeed Assad. Or central authority might crumble, causing more civilian death and destruction and the possible dispersion of Syria’s conventional and WMD arsenals beyond its borders. Arguably, the first scenario has developed in post-Mubarak Egypt, while the second may have occurred after the fall of Qaddafi in Libya. The problems of a failed state could replace the threat of a rogue nation. As in Iraq and Afghanistan, the great powers might spend blood and treasure in an attempt to rebuild Syria in the image of a market democracy, which would increase the costs of the use of force and create another obstacle to intervention. Western nations could alternatively allow Syria to devolve into more compact, ethnically homogeneous units that would not require an expensive military occupation and civilian reconstruction. Smaller, more numerous nations would improve the lives of the people living within, and would reduce the threat to the peace of the region without.
Others might calculate these probabilities, costs, and benefits differently. They depend on the prediction of uncertain events and the evaluation of hidden motives and resources. But it seems clear that the real choice is between the improvement to global welfare from a change of regime in Syria and the expected harm of a great-power conflict. Here, the chances of the latter seem too low to veto the modest Western action needed to bring about the former.
— John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He served in the Bush Justice Department from 2001 to 2003 and is the co-editor of Confronting Terror.