For a brief moment a few weeks back, law and policy elites in the US gave serious consideration to whether there was a legal basis for a military strike in Syria, either under the auspices of civilian protection or norm protection. White House rhetoric quickly shifted away from humanitarian intervention and toward “norm enforcement” and with it the policy debate shifted from whether or not military strikes were the best tool toward that end (for now, the answer is ‘not until diplomatic options have been exhausted.’)
In either case, the conventional wisdom among diplomats, law specialists and political scientists (including at the Duck) seems to have settled on the argument that a military strike, however justifiable at whatever point for whichever reason, would have definitely been and would in the future be illegal under the UN Charter unless the authorized by the Security Council. When Kerry talks about that option remaining on the table, people understand that he is essentially saying the US is willing to go against the UN Charter, if needed, to enforce its perceived security interests and wider normative obligation – just as NATO bent UN Charter rules to avert a genocide in Kosovo in 1999.
After more thought however, we wonder if US acceptance of this narrative on the essential illegality (though potential legitimacy) of unilateral intervention in Syria isn’t an interesting puzzle for two reasons. First, in the Syrian case, there may in fact be a scenario in which the letter of the UN Charter could conceivably be invoked in support of military force without Security Council authorization – namely the doctrine of collective self-defense. Second, while this argument is probably a legal stretch, the US has never shied away from at least attempting precisely such legal stretching to justify bending not only the UN Charter but also breaking even more iron-clad rules such as the norms against torture and extrajudicial execution. We think the fact they are not moving to do so in this case indicates something interesting both about the configuration of international norms today and the nature of their regulative effects over even the most powerful states. Continue reading