Inter arma enim silent leges, said the Romans—in times of war, the law falls silent. But ours is a chattier society. Rather than keep silent, our laws speak loudly about war. We just don’t follow them—as the U.S. military intervention in Syria is about to show.
Press reports say that President Obama has ordered his lawyers to supply him with a legal justification for a military assault on Syria, and unnamed officials have cited the Geneva Protocol, the Chemical Weapons Convention, the Kosovo precedent, and the so-called Responsibility to Protect doctrine. They have not cited the United Nations Charter, which flatly bans military interventions without Security Council approval, which the United States cannot obtain because of Russian and Chinese opposition.
The Geneva Protocol of 1925 (which Syria ratified) and the Chemical Weapons Convention of 1993 (which Syria has not ratified) ban the use of chemical weapons, but do not authorize countries to attack other countries that violate these treaties. The United States has no more authority to attack Syria for violating these treaties than it does to bomb Europe for giving import preferences to Caribbean banana producers in violation of international trade law. At one time, countries could use military force as “countermeasures” against treaty violators, but only against violators that harmed the country in question—and Syria has not used chemical weapons against the United States—but in any event, that rule has been superseded by the U.N. Charter.
The Kosovo precedent refers to the 1999 military intervention in Serbia, launched to stop a campaign of ethnic cleansing against people living in that region of Serbia. Then, too, the United States failed to obtain approval from the Security Council but attacked anyway. It’s odd to claim the Kosovo attack as a precedent, as it was widely regarded as illegal at the time and afterward.
But most people, or at least Westerners, believed that the Kosovo intervention was morally justified because it stopped a massacre, and efforts were made to carve out an exception to the U.N. rules, so that a “humanitarian intervention” would be lawful even without Security Council approval. That effort failed because people believed it would be too easy for countries to use humanitarian intervention as a pretext for attacking countries for other reasons. After all, humanitarian conditions are bad in nearly all countries that someone might like to invade. Instead, an international conference hammered together a compromise that all countries have a “Responsibility to Protect” their own citizens and citizens of other countries. But this idea was never sanctified in a treaty and is not law.
The most honest thing to do would be to admit that the international law on the use of force is defunct, as professor Michael Glennon has argued. Virtually all major countries have broken the rules from time to time, even the saintly European countries that joined in the Kosovo intervention. The U.S. has ignored the U.N. rules on numerous occasions—Vietnam, Grenada, Panama, Kosovo, the second Iraq War, and the 2011 war in Libya, where it secured an authorization to stop massacres of civilians but violated its terms by seeking regime change. But the U.S. government does not repudiate the U.N. rules because it wants other countries to comply with them.
On the domestic front, things are hardly better. The Constitution gives Congress, not the executive, the power to declare war, and at present writing, the administration seems unlikely to ask Congress for authorization lest it say no. This too would be a repeat of the Libya intervention, which lacked congressional authorization. To avoid the impression that the president can go to war whenever he wants, pretty much in clear violation of the founders’ intentions, the executive branch has invented a number of largely phony limits on executive military action. At one point the theory was that the executive may send military forces anywhere in the world in order to discharge its responsibility to protect Americans or American property, a theory that was used to justify the use of military force without congressional authorization in Somalia in 1992–1993. One might wonder whether such a theory imposes any limits; one might ask, “In what country are there no Americans or American property that could be protected?” Syria, it turns out.
No one alleges that the Syrian government poses a threat to Americans or American property, so the Obama administration can’t fall back on that theory, and doesn’t seem inclined to. But the executive branch claims the authority to use military intervention to protect the “national interest,” and it is not hard to find a national interest at stake. Ironically, the Justice Department’s Libya opinion identified “maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security” as one of the national interests justifying military intervention without congressional approval. Don’t expect a repeat of that argument in the Syria opinion. The other national interest was that of promoting regional stability—also not a good one here either, since no one seems to think that lobbing some cruise missiles onto Syrian soil will promote regional stability. Most likely the government will argue that there is a (heretofore ignored) national interest in deterring the use of chemical weapons as well as in protecting foreign civilians from massacres. With “national interest” so capaciously understood, it is clear that the president will always be able to find a national interest justifying a military intervention, so there are no constitutional constraints on his power to initiate military intervention.
Congress tried to bring the executive under control back in 1973 by enacting the War Powers Resolution, which can be read to implicitly authorize the use of military force as long as the president reports back to Congress and withdraws forces after 60 days unless Congress gives authorization in the interim. In 2011 President Obama ignored a Justice Department opinion that he must end the use of force in Libya, instead obtaining a compliant legal opinion from White House Counsel Robert Bauer and State Department Legal Adviser Harold Koh, who argued that the bombings and killings in Libya did not amount to “hostilities” and so did not trigger the withdrawal provision in the War Powers Resolution. In another indication of the administration’s respect for Congress, earlier this month the administration refused to call the coup in Egypt a coup so as to evade a statute that requires a cutoff of foreign aid to countries in which a military coup overthrows a democratically elected leader.
One can be cynical or realistic. I prefer the latter. The Romans had it right: It is not realistic to put legal constraints on war powers. Law works through general prospective rules that apply to a range of factual situations. International relations and national security are too fluid and unpredictable to be governed by a set of legal propositions that command general assent secured in advance. Laws governing war make us feel more secure but they don’t actually make us more secure. So while it is satisfying to fling the charge of hypocrisy at the president and his lawyers, and we might disagree about the wisdom of an attack on Syria, let’s just hope that when they invoke the law, they don’t actually believe what they are saying.