He confounded his Congressional foes when he asked them if they wish to go to war with Syria. A military attack is war, and absent self-defense, it cannot today be carried on without U.N. Security Council approval.
It is Congress that, under our Constitution, has the power to declare war. If they declare it, the Commander-in-Chief wages it. If they now say no to war, his hands will be tied, just like those of the British prime minister. But even if circumstances allow Obama to attack Syria under U.S. law, there remains the question whether international law would permit it.
The possibility of a war of revenge has been mentioned to punish Syria. Such a use of force has no support in international law. But what about the doctrine of responsibility to protect, known in U.N. circles as R2P and given muted support rhetorically in recent years?
While R2P is generally assumed to authorize the use of force by the Security Council, would it also support a permanent member in doing so in the face of veto by one or more other permanent members? In short, do we, the U.S., acting alone if necessary, have a responsibility to protect Assad’s victims from his cruelty.
R2P applies to atrocities amounting to crimes against humanity. Does the use of poison gas against one’s own civilians rise‑or sink‑to the level of a crime against humanity? The secretary of state, in his speech on Aug. 30, blurred this question by using the bland term “norm” to describe what Assad had breached by his gas attacks. He said there is a “norm” against the use of poison gas. He was, in my view, too timid in this choice of words.
The secretary should, in my opinion, have boldly charged Assad with a violation of law. While Syria has not ratified the Chemical Weapons Convention that entered into force in 1997, it did, in 1968, accede to the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare.
If Assad should deny that he is waging war against his domestic enemies, let him shout that at the graves of his thousands of victims.