US Bombing Syrian Troops Would Be Illegal

by Marjorie Cohn 22 June 2016

Violating U.S. and International Law

Under the War Powers Resolution (WPR), the President can introduce U.S. troops into hostilities, or into situations

“where imminent involvement in hostilities is clearly indicated by the circumstances,”

only

  1. after a Congressional declaration of war,
  2. with “specific statutory authorization,” or
  3. in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

None of three conditions that would allow the president to use military force in Syria is present at this time.

First, Congress has not declared war.

Second, neither the 2001 Authorization for the Use of Military Force (AUMF), which George W. Bush used to invade Afghanistan, nor the 2002 AUMF, which Bush used to invade Iraq would provide a legal basis for an attack on Syria at the present time.

Third, there has been no attack on the United States or U.S. armed forces.

Thus, an armed attack on Syria would violate the WPR.

Even if a military attack on Syria did not run afoul of the WPR, it would violate the United Nations Charter, a treaty the U.S. has ratified, making it part of U.S. law under the Constitution’s Supremacy Clause. Article 2(4) of the Charter says that states

“shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”

The Charter only allows a military attack on another country in the case of self-defense or when the Security Council authorizes it; neither has occurred in this case. Assad’s government has not attacked the United States, and the Council has not approved military strikes on Syria.

Indeed, Security Council Resolution 2254, to which the cable refers, nowhere authorizes the use of military force, and ends with the words,

“[The Security Council] decides to remain actively seized of the matter.”

This means that the Council has not delegated the power to attack Syria to any entity other than itself.

If the U.S. were to mount an armed attack on Syria, the Charter would give Assad a valid self-defense claim, and Russia could legally assist Assad in collective self-defense under Article 51 of the Charter.

Moreover, forcible “regime change” would violate Article 1 of the International Covenant on Civil and Political Rights, which the U.S. has also ratified.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. A member of the national advisory board of Veterans for Peace, Cohn’s latest book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website at http://marjoriecohn.com/ and follow her on Twitter at @marjoriecohn.