U.S. President Barack Obama was recently quoted as saying that the use of chemical weapons in Syria would prompt some sort of American response. “We have been very clear to the Assad regime, but also to other players on the ground, that a red line for us is we start seeing a whole bunch of chemical weapons moving around or being utilized,” President Obama said. “That would change my calculus. We cannot have a situation where chemical or biological weapons are falling into the hands of the wrong people.” While this tough talk is aimed at deterring the use of such weapons, there may soon come a time where the Syrian regime calls this bluff and mobilizes these weapons in a last-ditch effort at remaining in power.
In that scenario, what are President Obama’s legal options? It is clear that President Obama is referring not to potential crimes against humanity on behalf of the Syrian regime, but rather to the United States’ self-interest in the non-proliferation of weapons of mass destruction as the regime further weakens. Because the Syrian conflict is considered a Civil War, there are issues of state sovereignty that arise when discussing potential intervention, namely that states are free to govern themselves and internal armed conflicts are just that: internal (at least until war crimes are so heinous that the United Nations Security Council approves external intervention).
Chapter VII of the United Nations Charter lays out Security Council procedures on maintaining world peace. Article 51 lays out the rules of self-defense, providing for an inherent right of self-defense “if an armed attack occurs against a Member of the United Nations…” In this scenario, preventive U.S. intervention aimed at procuring under-protected weapons of mass destruction would likely be seen as unlawful under international law, even though unstable weapons of mass destruction in an unstable region of the world can be construed as an indirect threat to world peace.
One recent comparable scenario was the civil war in Libya last year. When the threat to world peace finally became unbearable, the United Nations passed Security Council Resolution 1973 authorizing external intervention, leading to a cessation of violence not long after that. The first, and best, option for the United States would be to rally the Security Council into passing a resolution condemning the Syrian government and allowing for a response similar to the response in Libya, plus the additional ceasing of any loose weapons of mass destruction that could pose a threat to world peace. Unfortunately, Russia and China both possess a veto power over any resolution, and both have consistently supported the Assad regime in Syria, which makes it quite likely that a resolution would be vetoed.
The next option for the United States would be to form a “coalition of the willing,” similar to President Bush’s actions in Iraq in 2003 and President Clinton’s actions in a stand-off with North Korea in 1994. In this scenario, the United States and other willing countries, likely including NATO allies, would essentially disregard the U.N.’s ban on the use of force and intervene to take control over loose chemical weapons. While this strategy gained international scorn in Iraq, the United States could justify this action through self-defense, even though it would still be unlawful under Article 51 of the U.N. charter since no armed attack occurred on any of the intervening nations.
While it is clear there are no perfect options, this doomsday scenario is another example of how international law can be ineffective, and considering President Obama’s strong feelings towards the use of weapons of mass destruction, international law would likely take a back seat to securing loose chemical weapons and ensuring that rogue organizations do not have access to such dangerous weapons.