Photo Credit: Brendan Smialowski/AFP/Getty Images[1]

By: Scott Stedjan

President Obama surprised many in the foreign policy world last week when he decided to seek Congressional authorization for a military strike against Syria. Some in Congress welcomed the decision, while others, such as Congressman Peter King (R-NY) argued that “President Obama is abdicating his responsibility as commander-in-chief and undermining the authority of future presidents.”

Whether the President is required to seek Congressional approval for a limited strike on Syrian targets in response to the use of chemical weapons against a civilian population is a subject for another piece. Regardless of the answer to that question, President Obama was wise to seek Congressional authorization. The situation in Syria has vexed me like no other international issue in a very long time. I sympathize with the majority of Americans who are skeptical that American military power will lead to any positive outcome in Syria. At the same time, I am a strong believer in the value of international norms and the principle of the Responsibility to Protect. I do not want to live in a world where its leaders fail to stand up to atrocities and demonstrate that there are consequences for the mass murder of civilians through poison gas. Yet, I also do not want to live in a world where deadly military force is used to punish bad behavior with no other clear objective.

Congress should come back from its annual August recess prepared with questions for the administration. There are some questions we know they will ask – how much will this cost, whether Congress can enact a limiting principle, and whether the intelligence is solid. Because a strike on Syria is a precedent setting event, there are three additional larger questions that must be asked.

1) Would an attack on Syria, absent a U.N. Security Council authorization, be legal under international law?

The question of whether an attack without Congressional authorization is legal under the Constitution’s separation of powers formula is a separate question than whether international law permits an attack on Syria. Yet, Congress should still care about the answer to this question because the long-term legitimacy of the U.S. in the region and beyond depends on whether U.S. action is seen as legal and appropriate.

Under the Chapter 7 of the United Nations Charter, military force can only be used in two circumstances: 1) when military action is authorized by the Security Council; and 2) when states invoke their inherent right of individual or collective self-defense, until the Security Council has taken measures necessary to maintain international peace and security.

While the Charter permits the use of force in only these two circumstances, States have expansively interpreted their rights under the Charter. Traditionally, when a State is not directly threatened it could act under the principle of collective self-defense. According to the International Court of Justice, invoking collective self-defense can only occur outside a Security Council authorization if a State is subject to an armed attack and that State asks for outside assistance. In the case of Syria, the traditional rule does not apply because it is the civilian population, not the State, who was subjected to an armed attack.

The principle of the Responsibility to Protect (R2P) has emerged to fill the gap when a State is committing atrocities against its own people and those people have no legal means to seek outside assistance. In September 2005, all Member States of the United Nations agreed that when any State fails to meet the responsibility to protect its populations from genocide, crimes against humanity, ethnic cleansing, or serious war crimes, all States are responsible for helping to protect people threatened with such crimes. Yet, the member states also agreed that such intervention must occur within the framework of the United Nations Charter, meaning that Security Council authorization is still required for an R2P intervention.

It is clear that the government of Syria, even prior to the use of chemical weapons, manifestly failed to protect its population from war crimes and the case for an R2P intervention is compelling. However, the Security Council is deadlocked and there is little to no hope that the veto-wielding Russian Federation will change its mind and approve an intervention in Syria. Congress must ask the President whether in such a circumstance an attack outside the Security Council is appropriate and why?

2) Is the use of force justified or wise if the objective is to punish wrong behavior and uphold international norms?

Even if an attack on Syria under an R2P justification is appropriate, it is not clear whether the goal of the Obama administration is to actually stop the killing or whether it is simply to punish the Assad regime for past acts. The recent rhetoric coming from the White House seems to suggest that the goal is punishment. The legislation the President sent to Congress asked for authorization to “deter, disrupt, prevent and degrade the potential for, further uses of chemical weapons and other weapons of mass destruction.”

On a moral and legal level, it is unclear whether punishment is ever a justification for the use of force. The UN Charter’s provisions on the use of force are forward looking and address self-defense and in no place authorizes punitive war. However, Georgetown law professor David Luban argues that until the Second World War, rulers routinely treated the punishment of affronts as a legitimate reason to make war. Whether punishment should reemerge as a justification for the use of force is an important question that Congress must grapple with.

On a practical level, Charli Carpenter recently wrote in a Foreign Affairs piece that “R2P requires policymakers and military planners to weigh just cause against the question of whether there is a reasonable prospect of success at reducing civilian bloodshed.” She argues that the type of intervention required to reduce civilian bloodshed normally requires more blood and treasure than punitive air strikes. Congress must ask whether the means selected are capable of achieving the ends. Congress should ask how a limited missile strike would deter Assad from using chemical weapons again. Chemical weapons can be deployed in a variety of ways, and unless the United States and its allies actually destroy the stockpiles, there is no way to be sure that the regime will not use the weapons again. According to media reports, destroying stockpiles is currently not being discussed because of the potential humanitarian and environmental consequences. If that is the case, Congress must ask how a strike can actually enforce the norm against chemical weapons use.

Further, what will the United States do if Assad uses chemical weapons once again after the limited strike? President Assad is in a fight for his survival and may decide to use all means available to survive. If a limited strike does not deter Assad from using chemical weapons in the future, will enforcing the norm require the United States to get deeply engaged in the conflict? Similarly, what will the United States do if Assad choses to not use chemical weapons any longer, but steps up his direct attacks on civilian populations. Is the norm against chemical weapons use more important than the norm against directed attacks on civilian populations?

3) Are there alternative ways to uphold norms?

International and U.S. custom requires that the use of force be the last resort. Congress must ask whether military intervention at this point is the only means available to protect populations from further violence or to enforce the norm against the use of chemical weapons.

Article 36, a U.K. organization that works on the impact of banned weapons on civilians recently argued that “affirmation and enforcement of weapons bans need not take the form of military intervention.” Such reaffirmation can take the form of condemnation at the international level. It could take the form of an arms embargo, sanctions, or other bilateral or multilateral measures.

In terms of protecting populations, Michael Shank and Congressman Raul Griljalva argue in a CNN piece that other paths have not been exhausted. They argue that the international community could still reach a diplomatic solution through engaging Russia, Iran, Lebanon, and Hezbollah, and others. These entities have entry into the President Assad’s inner circle and could impact his calculations. They also argue that if the diplomatic track fails to work, the U.S. could engage the U.N. Security Council in a conversation about the International Criminal Court and an indictment of Assad for committing war crimes and crimes against humanity.

I am not convinced that a diplomatic path could work, nor whether the Security Council would welcome an investigation and prosecution of Assad for war crimes. But Congress has the duty to ask that question and to hold off giving the President the legislative authority until they are satisfied with the answers.

Deciding whether to use force is one of the most important duties of elected officials. I hope Congress comes to this debate prepared and face it with the seriousness it deserves.

Scott Stedjan is a student at the Dickinson School of Law at Penn State University. He serves as the Editor-in-Chief of the Penn State Journal of Law and International Affairs (JLIA).