NEW HAVEN — The world is in a bind. Syria has violated basic norms of international law and humanity by using chemical weapons on its own people. The United Nations, which is supposed to secure international peace, is paralyzed by the intransigence of Russia and China, which hold vetoes on the Security Council.
It is no surprise that both liberal interventionists and neoconservative realists are advocating American military intervention, even if it is illegal. As President Obama said Saturday, If we wont enforce accountability in the face of this heinous act, what does it say about our resolve to stand up to others who flout fundamental international rules?
But this question ignores the obvious: If the United States begins an attack without Security Council authorization, it will flout the most fundamental international rule of all the prohibition on the use of military force, for anything but self-defense, in the absence of Security Council approval. This rule may be even more important to the worlds security and Americas than the ban on the use of chemical weapons.
Obama cannot justify an attack on Syria based on any direct threat to the United States. Nor does there appear to be a direct threat to Turkey, a member of NATO, which might justify an assault based on collective self-defense. The sad fact is that Syrias president, Bashar Assad, is visiting horrors, for now, mainly on his own citizens, though the conflict has caused 2 million refugees to flee to other countries.
Some argue that international law provides for a responsibility to protect that allows states to intervene during humanitarian disasters, without Security Council authorization. They point to NATOs 1999 intervention in Kosovo. But in 2009 the U.N. secretary general, Ban Ki-moon, rejected this view, finding that the responsibility to protect does not alter, indeed it reinforces, the legal obligations of Member States to refrain from the use of force except in conformity with the Charter, a position he affirmed Tuesday. (The Independent International Commission on Kosovo found that the intervention was illegal but legitimate.)
Others say it is legalistic, even naive, to rely on the U.N. Charter, which has been breached countless times. What is one more, especially when the alternative is the slaughter of innocents? But all of these breaches add up and each one makes it harder to hold others to the rules. If we follow Kosovo and Iraq with Syria, it will be difficult, if not impossible, to stop others from a similar use of force down the line.
Consider the world that preceded the U.N. The basic rule of that system, one that lasted for centuries, was that states had just cause to go to war when legal rights had been violated. Spain tried to justify its conquest of the Americas by saying it was protecting indigenous civilians from atrocities committed by other indigenous peoples. The War of the Austrian Succession was fought over whether a woman had a right to inherit the throne. The United States largely justified the Mexican-American War, including the conquest of California and much of what is now the Southwest, by pointing to Mexicos failure to pay old tort claims and outstanding debts.
For all its obvious failings, the U.N. system has made for a more peaceful world than the one that preceded it. No leader may claim the right to collect debts or gain thrones by going to war. States may fracture into smaller pieces, but they dont get conquered. Gunboat diplomacy is also out of the question.
The desire to respond to the atrocities in Syria with force is natural. The slaughter of civilians is impossible to watch without feeling morally impelled to act. The dysfunctional Security Councils refusal to act leaves us feeling helpless in the face of evil.
But the choice between military force or nothing is a false one. Most of international law relies not on force for its enforcement, but on the collective power of nations to deprive states of the benefits of membership in a system of states. Obama can cut off any remaining government contracts with foreign companies that do business with Assads regime. He can work with Congress to do much more for Syrian rebels and refugees including providing antidotes to nerve agents, which are in short supply. He can use his rhetorical power to shame Russia and China and hold them to account.
For all their wisdom, the U.N. founders showed incredible lack of foresight in freezing in place a system in which five nations hold permanent veto power in the Security Council. Unfortunately, thats unlikely to change, despite almost uniform consensus that the configuration makes little sense. The question is whether we can manage to live with these shortcomings. If not, we have to think very hard about what the alternative might be and recognize that it could be far, far worse.
The question Congress and Obama must ask now is whether employing force to punish Assads use of chemical weapons is worth endangering the fragile international order that is World War IIs most significant legacy.
The New York Times
Oona A. Hathaway and Scott J. Shapiro are professors at Yale Law School.