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How Will U.S. Legally Justify Military Strikes In Syria?


So what legal justification might the Obama administration use to justify military strikes on Syria? To help us better understand the legal rules behind intervention, we turn to John Bellinger. He was legal advisor for the State Department and the National Security Council in the George W. Bush administration. Welcome to the program.

JOHN BELLINGER: Thanks, Melissa, it's nice to be here.

BLOCK: And would it be fair to say that in the Bush administration you were considered a moderate voice arguing against some of the hardliners?

BELLINGER: Well, I certainly ended up being in the middle on a lot of issues, and I believed in international law.

BLOCK: Okay. Well, what would the justification be under international law for the U.S. and its allies to attack Syria?

BELLINGER: Well, unfortunately there is not a good international law justification. International law does not recognize the right of a state, like the United States, to use force in Syria unless we're acting in self-defense of ourselves, or unless it's authorized by the United Nations through a Security Council resolution. So policymakers might decide that it's the right thing to do, but there's not a clear international legal basis to do it.

BLOCK: Well, we did hear from Lakhdar Brahimi, the U.N. and Arab League envoy to Syria, saying military action has to be taken after a Security Council decision. Is that your view that the Security Council should have to authorize this?

BELLINGER: Well, that's clearly what international law requires; those are the accepted international law rules under the U.N. Charter. The Obama administration is thinking about going unilaterally and would have to, therefore, come up with the best legal basis that it could.

There's an old lawyer's adage in domestic law that when the law is not on your side, argue the facts. And I think if the administration were to use force in Syria without a Security Council resolution, we'd likely see them making factual and moral arguments rather than trying to say that this is permitted and legal under international law.

BLOCK: We have seen cases following that pattern before, right? I mean, the 1999 bombing campaign against the Serbs in Kosovo was not authorized by the Security Council. NATO went ahead anyway.

BELLINGER: That's right. The Clinton administration could not get a U.N. Security Council resolution to authorize the use of force. They were concerned about the humanitarian crisis in Kosovo, and so they went ahead anyway. Russia, China, other countries in the world, of course, felt that that intervention was illegal. Western Europe believed that it was legal. And I think, in retrospect, many people believe that it was morally legitimate because it protected the Kosovo people, but that it was not legal under international law.

Ironically, at the time, the Clinton administration claimed that it shouldn't be used as a precedent for anything because they didn't want other states to use it as a precedent. And ironically it now may be the Obama administration may be using that as the best precedent for intervention in Syria.

BLOCK: Well, in this case, we're talking about the use of chemical weapons. Does their use on its own justify an international response, because they are prohibited under a number of international treaties?

BELLINGER: Well, two things there, Melissa. One is, are they prohibited by Syria because Syria is not party to a number of those different conventions. It's not party to the chemical weapons convention, which is the principal treaty on the subject.

It is a party to something called the Geneva Protocol of 1925, but that prohibits the use of chemical weapons in war. And it's not at all clear, and certainly debatable, whether the use of chemical weapons inside Syria, against Syria's own people, is in a war. Certainly if Syria had used chemical weapons against a neighbor, that would be a violation of a treaty of international law.

But be that as it may, in any case, the violation of the Geneva Protocol or anything else wouldn't create new legal authority for the United States, or any other country, to intervene in Syria. Under international law, two wrongs don't make a right. Now, it might make it morally justifiable.

Again, I think we might well see the Obama administration point to the use of chemical weapons, and possibly even what they may consider a violation of the Geneva Protocol, as a reason to intervene. But it doesn't create a new legal authority to do so.

BLOCK: That's John Bellinger, adjunct senior fellow with the Council on Foreign Relations. He was a former legal adviser for the State Department and NSC in the George W. Bush administration.

Mr. Bellinger, thanks so much.

BELLINGER: Nice to be with you. Transcript provided by NPR, Copyright NPR.