The Legal Case Against Syria

President Obama has a legal basis for bombing Syria – he should use it.

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JOHANNESBURG – President Obama and his political team continue to lay the international legal and moral groundwork to justify a retaliatory military response based on the U.S. intelligence community’s “ high confidence” that Syrian president Bashar Assad launched a chemical nerve agent attack in a Damascus suburb on August 21 that killed 1,429 people, including “at least 426 children.” In doing so, the White House has been doing a bit of legal gymnastics – carefully choosing its words to characterize the regime’s “ repugnant” actions as a violation of “international norms” rather than a direct contravention of international law (a treaty, for example).

[ See a collection of editorial cartoons about Syria.]

“This kind of attack threatens our national security interests by violating well established international norms against the use of chemical weapons,” President Obama told reporters on Friday. “So, I have said before, and I meant what I said that, the world has an obligation to make sure that we maintain the norm against the use of chemical weapons.”

The president added that it is

not in the national security interest of the United States to ignore clear violations of these kinds of international norms, and the reason is because there are a whole host of international norms that are very important to us. You know, we have currently rules in place dealing with the proliferation of weapons of mass destruction. We have international norms that have been violated by certain countries and the United Nations has put sanctions in place, but if there's a sense that, over time, nobody's willing actually to enforce them, then people don't take them seriously.

White House spokesmen Jay Carney reiterated Obama’s normative sentiments. “This is a violation of a long-held international norm that bans the use of chemical weapons on a widespread scale,” he said. “I'm not going to lay out a legal case here because we are evaluating potential responses.”

[ See editorial cartoons about President Obama.]

Instead of laying out a technical, legal basis (conventional or normative) for military intervention, Secretary of State John Kerry has taken a broader tack, arguing that the Assad government’s chemical attack on its own citizen violated moral norms. “The indiscriminate slaughter of civilians, the killing of women and children and innocent bystanders by chemical weapons is a moral obscenity,” Kerry said. “By any standard, it is inexcusable. And despite the excuses and equivocations that some have manufactured, it is undeniable.”

Such moral and normative equivocating may be unnecessary (and perhaps even unhelpful) as a far more specific, international legal justification exists.

Syria has justified stockpiling 1,000 tons of chemical weapons – including the nerve agents Sarin and VX – on self-defense grounds, with frequent references to neighboring Israel’s nuclear weapon capabilities. The regime thus remains one of five countries (including Angola, North Korea, Egypt and South Sudan) to have abstained from signing the U.N.’s Chemical Weapons Convention (Israel and Burma have signed but have not yet ratified it). But there is a more than plausible argument that the Convention’s provisions nonetheless apply as international customary law thereby giving the Obama administration concrete, legal authority to launch a retaliatory strike against the Syrian government.

[ Weigh in: Is Obama making the right call in going to Congress?]

International customary law refers “to international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties.” The U.N.’s Chemical Weapons Conventions fits neatly within this definition. To date, 189 countries, representing roughly 98 percent of the world’s population (a fact that Obama referred to in his address on Saturday), have signed and ratified the Convention.

In unequivocal terms, Article I of the arms control agreement states (emphasis added):

Each [nation] to this Convention undertakes never under any circumstance: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; (b) To use chemical weapons.

Where there has been “serious damage to the object and purpose” of the agreement, “in particular [to] Article I,” the Convention calls on member states to take collective action to deter rogue states from carrying out chemical attacks.

[ Read Michael Shank: Treading the Irresponsible Path to Unilateralism.]

In pressing his case to Congress and other nations for military intervention in Syria, President Obama would be wise to cite international customary law – with specific reference to Article I of the U.N.’s Chemical Weapons Convention – to establish a more palatable legal justification for an international community that remains leery ( see British Parliament last week) of relying solely on the U.S.’s stated moral and legally normative bases to attack a state.

Drew F. Cohen is a law clerk to the chief justice of the Constitutional Court of South Africa. Follow him on Twitter at @DF_Cohen or email him at dfcohen@law.gwu.edu.