In April 2017, the US attacked Syrian forces. The justification for the attack was the use of chemical weapons by the Syrian forces that killed 80 civilians — the same people President Trump banned from entering his country through an executive order.
The decision to strike was made at Trump’s Mar-a-Lago estate in Florida, which has been trumpeted as the winter White House. Chief of Staff Reince Priebus, Trump’s daughter Ivanka Trump, and his chief strategist Steve Bannon were also present.
The strike happened quite recently, but is already on its way to the Orwellian memory hole. While much can be said about the morality, character, and justification of one nation attacking another, let us see if this US strike against Syria was legal.
The raison d’être of any law, domestic or international, is to save the weak from the aggression of the strong. There are strict limitations to justify attacking a sovereign nation within international norms.
Article 2 of the United Nations Charter clearly forbids the use or threat of force against a sovereign nation. An attack on a sovereign nation becomes legal when the UN Security Council approves such an attack.
Another situation in which attacking another sovereign nation is in harmony with international law is when such an attack is done in self-defence after being attacked; as enshrined in article 51 of the UN charter.
I will touch upon the issue of R2P (Responsibility to Protect) but will not discuss pre-emptive attacks since those are completely illegal and merely the creative work of legal experts in service of the aggressive power. They have no basis or place in international law.
The Trump administration did not invoke self-defence. Assad did not use chemical weapons on the United States but on Syrian civilians, which brings me to another justification touted by the strong nations: R2P, the responsibility to protect.
The excuse was used by President Clinton to justify the seventy eight day bombing NATO carried out during the Kosovo War. However, it must be pointed out that an intervention aiming to stop human misery requires a Security Council authorisation. The Trump administration neither has it nor does it seem interested in having one.
I have been teaching political science in US colleges for the last 2 years. Every textbook teaches the powers of the Executive, the Legislature, and the Judiciary. The Constitution of the US has outlined the powers that can wage war. They are clearly not in the president’s column. The power to wage wars belongs to the US Congress.
When the US Constitution was being drafted, two major blocks — the Federalists led by Alexander Hamilton and the Anti-Federalists led by Patrick Henry — quarrelled over how much power the President should have.
The federalists wanted more powers for the President whereas the anti-federalists were worried about this very thing. Thomas Jefferson strongly advocated against vast presidential powers. These were the leaders who had rebelled against the monarchical powers of the British King. They were heavily influenced by the writing of John Locke who advocated that people were born with natural rights.
The raison d’être of any law — domestic or international — is to save the weak from the strong. There are strict limitations on justifying attacks on a sovereign nation
In the end, there was a compromise and the first ten amendments were added to the US constitution to appease the Anti-Federalists. These amendments collectively known as the Bill of Rights guarantee awesome rights to the Americans.
The Bill of Rights guarantees liberty, which means freedom from one’s own government. The office of the President of the United States functions under a check by the Congress and the Judiciary. The president’s war declaration powers are very limited at best.
However, some very creative legal minds including John Yoo, Harold Koh, Jack Goldsmith and so forth have opined that the president has enormous powers to wage wars, especially when the intent of such wars is the national security of the United States. National security is a favourite term of the US government.
Congress enacted the War Powers Resolution at the end of the Vietnam War. The law permits the president to indulge in hostilities and the Congress would deliberate over whether or not to grant authorisation after hostilities started.
If Congress decides not to authorise an already waged war, the president must terminate the war and any deployment of troops within 60 days of the start of the war. Hence, the president can wage a mini war without Congressional authorisation. It would be interesting to see the US Congress bringing a war to an end.
Secretary of State Rex Tillerson tried to justify the Syrian attack by invoking the Chemical Convention Treaty. Interestingly, the US is violating the biggest treaty, namely the United Nations Charter, which clearly forbids attacking a sovereign nation.
Unfortunately, Secretary Tillerson doesn’t realise that treaties can’t be cherry picked like cereals at Walmart.
Published in Daily Times, July 3rd, 2017.