• By
  • Jess Bravin
European Pressphoto Agency
The convoy of UN inspectors, headed by Professor Ake Sellstrom, leaves a hotel in Damascus on Aug. 30, 2013. (EPA/STR)

The West’s halting response to the Syrian regime’s alleged chemical weapons attack on its own people results in part from the collision of conflicting strands in modern international law.

The international legal structure was developed in the late 1940s to prevent recurrence of Nazi Germany’s two great crimes: a war of aggression against other nations, and campaigns of genocide and repression targeting Jews and others it considered inferior.

Treaties such as the 1948 Genocide Convention, the 1984 Convention Against Torture and the 1992 Chemical Weapons Convention deny states the discretion to inflict grievous injury on people, even within their own borders.

There seems little doubt the alleged killing of nearly 1,500 people, including hundreds of children, violates those tenets of international law. Although Syria hasn’t ratified the Chemical Weapons Convention, precedent suggests that certain outrageous acts can run afoul of “customary” international law—such as Japan’s mistreatment of prisoners of war in World War II, for which Japanese officials were punished although Tokyo hadn’t joined the Geneva Convention.

But if countries seek to punish Syria for its violations, they run into the other post-World War II legacy—the restrictions on one country using force against another.

The United Nations Charter provides for states to take military action against one another in only two circumstances: self-defense against an “armed attack,” or when the Security Council authorizes armed force “to maintain or restore international peace and security.”

In the current case, the U.N. Security Council hasn’t authorized any military action against Syria and is unlikely to do so because Russia, a permanent Security Council member, is a Syrian ally.

And with no claim that Syria has attacked the U.S., France or any other nation considering a punitive response, many international law experts say there is no legal basis for armed intervention.

Even for a relatively limited strike of cruise missiles, President Barack Obama “must have Security Council authorization,” said Mary Ellen O’Connell, professor of international law at Notre Dame. “That’s a major use of military force, and the U.S. has no grounds of self-defense.”

That doesn’t mean Syrian leader Bashar al-Assad necessarily gets off scot-free.

“Just because the U.S. can’t use military force against Assad doesn’t mean that what Assad is doing is lawful,” Ms. O’Connell said. The Syrian ruler “will be in a tough position when he finally faces a court of law.”

Washington and its allies have other tools as well, she said, and would have greater justification for assisting anti-Assad groups if the regime used chemical weapons.

“You can apply effective sanctions on Syria. You can certainly send humanitarian assistance without any limitation to help the victims, you can provide better protection to refugee camps,” she said.



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