Reconciling the Irreconcilable? An Appraisal Into the Competing Views on the Use of Force in a Postulated US Attack against Syria and Why US May Justify its Attack

“A sovereign attacks a nation, either to obtain something to which he lays claim or to punish the nation for an injury he has received from it or to forestall an injury which it is about to inflict upon him, and avert a danger which seems to threaten him … Must we await the danger? Must we let the storm gather strength when it might be scattered at its rising? … one is justified in forestalling a danger in direct ratio to the degree of probability attending it, and to the seriousness of the evil with which one is threatened.”

Emer de Vattel (c. 1758), The Law of Nations[1]

The international legal system diverges from these general legal features only in terms of degree of organization and centralization of the use of coercion. In national systems, coercion is organized, relatively centralized, and, for the most part, monopolized by the apparatus of the state. In the international system, it is not. Individual actors historically have reserved the right to use force unilaterally to protect and vindicate legal entitlements. Political and jurisprudential such as these must be kept in mind in an examination and rational interpretation of Article 2(4) of the United Nations Charter … the Charter acknowledged the inherent limits of its structure in the prevailing international politics by reserving to states the right of self-defense.

W. Michael Reisman[2]

 “Does it follow, then, that America is entitled to more security than other nation-states? Its leaders … must seek a carefully calibrated balance between two roles. Exclusive dependence on multilateral cooperation could become a prescription for strategic lethargy in a world in which threats to national and eventually even global security are evidently on the rise and potentially menace all of mankind. Yet primary reliance on the unilateral exercise of sovereign power, especially if accompanied by a self-serving definition of the emerging threats, could bring self-isolation, growing national paranoia, and increasing vulnerability to a globally spreading anti-American virus.”

Zbigniew Brzezinski[3]

 “ The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to standards that govern the use of force. Doing so strengthens those who act in line with international standards, while isolating and weakening those who do not.”

National Security Strategy, May 2010[4]


 “…what is relevant is not so much what arguments happen to be chosen at some particular time or in some particular dispute, but what rules govern the production of [such] arguments … express arguments and doctrines about international law are only a contingent of a socially shared manner of envisaging international relations…“

Martti Koskenniemi[5]

A. Introduction

In his statement of August 31, 2013, (hereinafter cited as “August 31, Statement”) President Obama took the position that U.S. should take military action against Syrian regime and would pursue such action only upon authorization by U.S. Congress.[6] Further, he also stressed that he would not seek approval from United Nations Security Council (“UN Security Council”) that he deemed as being paralyzed and unwilling to held Syrian President Assad accountable.[7] Nonetheless, the intended military action was never materialized solely because U.S. and Russia was finally able to reach agreement on disarming Syria’s chemical weapons capabilities.[8]

Within that background, this article seeks to address the following questions:

1)    What are the justification for such military action scenario and why?

2)    How such preference of use of force as a policy instrument be seen and could be understood in light of the prevailing rules and norms of international law that govern the use of force?

This article shall begin by presenting a brief milieu into the Syrian turmoil in order to establish context and historical insight of the conflict that led US to take the policy of unilateral military action against Syria. Nonetheless, it is important to be stressed from the beginning that this article extrapolates its arguments out of hypothetical situation, i.e., of a US military action scenario against Syria and therefore, this article would not review the US-Russia’s deal that successfully halt the use of chemical weapons by Syrian regime and pushed for its total annihilation.

B. Syria’s Political Turmoil and The Use Of Chemical Weapons

The Syria’s political mayhem began in 2011 when peaceful protest that was inspired by revolutions in Egypt and Tunisia emerged to challenge the dictatorship of President Bashar al-Assad and his regime.[9] Only within a year the protest escalated into a civil war as the Government began to response with kidnapping, torturing, and employing lethal force against the protesters.[10] The protesters then responded by organized themselves into rebel groups and it did not take long before external forces from the region joined them.[11] As of January 15, 2014, the death toll has exceeded 100,000 and approximately more than 2.3 millions of people have fled their homes, seeking refuge in neighboring countries.[12]

On July 22, 2013, in the midst of the Syrian civil war and the influx of foreign fighters, spokesman of Syrian Foreign Ministry warned that they would deploy chemical weapons against any foreign intervention while assuring that the weapons would never be used against the Syrian people or civilians in under any circumstances.[13] It turned out not to be the case. Numerous reports and findings confirmed that the employment of chemical weapons in the civil war had caused a massive toll of civilian casualties.[14] In receiving the Final Report of United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic (“UN Mission”),[15] UN Secretary General noted that chemical weapons were employed on a relatively large scale, resulting in numerous casualties, particularly among civilians and including many children.[16]

On April 18, 2013, Britain and France presented their findings to the United Nations asserting that they have evidence and convinced that chemical weapons have been used in Syria.[17] The report by France and Britain in part aimed at countering accusation by the Syrian Government that it is indeed the opposition forces that used the chemical weapons.[18] An Israeli official was also recorded to state that they are convinced that chemical weapons have been used in Syria.[19] Nevertheless, Israeli Prime Minister Benjamin Netanyahu declined to affirm the statement.[20]

On August 30, 2012, White House released its assessment on the allegation of the Syrian Government’s use of chemical weapons.[21] Based on the intelligence gathered, Obama Administration assessed that Syrian government carried out a chemical weapon attack in the Damascus suburbs on August 21, 2013 and assessed that the regime had utilized chemical weapons on small scale against the opposition for multiple times in 2012.[22] Countering US findings and assessments, Russian scientist rejected the allegation against Assad and suggested that it was indeed the opposition that employed chemical weapons in the conflict.[23]

C. Obama Administration’s Policy Under The August 31, 2013 Statement

On August 31, 2013, President Obama delivered his statement outlining the policy preferences that his Administration pursued.[24] The Statement might be inexorably prompted by the deteriorating condition in Syria as well as the Administration’s assessment over subsequent security threats that the conflict could pose to U.S. if no decisive and firm action was taken, either by the UN or U.S. itself.

The August 31 Statement basically outlined his policy preferences on the Syrian conflict and the rational of such preferences. The positions taken as are follow. First, that U.S. should take military action against Syria without waiting for authorization from UN Security Council. Second, President Obama would ask Congress to grant authorization for the use of force in order to effectuate the military action against Syria.

It was envisaged that the military action would be one that is “limited in duration and scope.”[25] President also stressed that there would not be boots on the ground. Henceforth, the action would definitely be one that is limited, preventive in nature, as it does not have to wait for the perceived threats or injury against U.S. to be materialized (“preventive self-defense”). President also mentioned the reason why he would not wait for a UN Security Council authorization. The sole reason might be of his assessment that UN Security Council “has been completely paralyzed and unwilling to hold Assad accountable.” In that regard, he was referring to series of Russia’s efforts in thwarting the adoption of draft resolutions, which would authorize the use of force against Syria with their veto power.[26]

Thus, taking into consideration the prevalent reasoning as purported by President Obama, I would then analyze the rational of the positions taken by the Administration. I shall focus primarily on the rational to opt for a military action against Syria.

D. The Rational For A Preventive Military Action

Here, I would try to address why Obama Administration opted for a preventive military action against Syria rather than pursuing other policy measures. In that regard, I will try to bring up analysis upon the prevailing US National Security policies, in particular the National Security Strategy of the Obama Administration, in order to reveal and explain the rational that contextualize the specific preventive military action intended against Syria. I will begin by outlining the perceived threats as explicitly expounded in the Statement and then continue by dissecting the corresponding U.S. national security policies that influence the preference for a preventive military action in order to contain and overcome such threats.

1. The Perceived Threats

In his Statement, President Obama stressed that the use of chemical weapons against civilian is “an assault of human dignity … [and] it also presents a serious danger to our national security.”[27]  President then elucidated the scenarios on how the Syrian regime use of chemical weapons against their own citizens could present serious danger to U.S. national security. First, attacking civilian with chemical weapons would “making mockery of the global prohibition on chemical weapons.”[28] Second, such weapon employment would endanger “friends and our partners along Syria’s borders, including, Jordan, Turkey, Lebanon and Iraq.”[29] Third, that such use would escalate the use of chemical weapons. Fourth, that it could also trigger the proliferation of chemical weapons to terrorist groups that would not hesitate to “do our people harm.”[30]

2. The National Security Policies

I would like to make reference to the conception of national security as suggested by Laura K. Donohue as the working conception used throughout this article. She conceives national security as “the articulation of U.S. interests, the object of which is the protection of the American political entity, which is itself ordered by the Constitution. Its aims are thus essentially political in nature. The military may be required for the survival of the state as broadly conceived, but it is only one (albeit important) means to the ends.” [31] In light of such conception, the inclusion of the term “policy” in the phrase “national security” would encompass any policies that are directed to the fulfillment of the objective element in the conception of national security. I preferred this conception because I concur with Laura’s assertion that to understand about national security, that is look to the object that is to be secured and the reason for its preservation – the purpose for which such object exits.[32]

National security policies bear a strategic importance for it articulates, as clearly as possible, how a nation perceived its vital interests and what it would do to defend them. Beside of merely a standpoint, such articulation of national security policies serves as a message to external parties of how U.S. will deal with matters that affect its national security and interest. U.S. national security policies can be seen, among others, in its statement of National Security Strategy or its national security doctrines.

It is also noted by an author that long before it achieved its position of pre-eminence, one characteristic feature of US foreign policy has been the declaration of so-called ‘doctrines’. These doctrines have, inter alia, the function of setting binding standards for cases when the use of force can serve as a means of US foreign policy.[33] The doctrines of US security policy formulate authoritative principles for the use of force which claim validity beyond the area of jurisdiction of U.S.[34] She also analyzed that doctrines of US security policy since 1945 are marked in particular by the desire to give influence to single

Central to any of U.S. national security policies or doctrines is the use of force as an instrument of  foreign policy. The 2010 National Security Strategy of the Obama Administration explains its position regarding the use of force in this way, “The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to standards that govern the use of force. Doing so strengthens those who act in line with international standards, while isolating and weakening those who do not.”[35]

In the Syrian turmoil, it is clear that based on the August 31, 2013, use of force is the instrument chosen for securing the national security interests of U.S. and to prevent immediate security threats as perceived by U.S. from into being. President Obama stressed in his speech that he would not seek UN Security Council resolution affirmed that U.S. is ready to do what ever action at its disposal for its survival and to stop the employment of chemical weapons by the Assad regime in the Syrian turmoil.

E. Contextualizing and Evaluating the Preventive Military Action under International Law

1. Contrasting Perspectives on the Rules and Norms Governing Use of Force

As far as international law concerned, any resort to use of force against Syria by any external power would be contrasted with the prevailing rules and norms of international law governing the use of force. Such measure would be immediately dealt with questions such as, whether the action is lawful in light of international law? Is the action an act of self-defense? Is it authorized by the UN Security Council? The propounding of such questions depicted how the lawfulness of the action are evaluated and contextualized under the banner of international law.

This shows that the consideration of what are legitimate or lawful under domestic law is not always in conformity with how the action in question is evaluated under international law. The imperative to assess the lawfulness and/or legitimacy of a nation’s resort to use of force in its international intercourse risen out of inevitable fact that rules governing international relations is necessary for an international order. As this article concentrates on a postulated attack against Syria by the United States, I would focus the discussion on the  jus ad bellum dimension of such attack. To that end, I would address the contemporary perspectives on the rules and norms that govern the use of force and how that perspectives could contextualize and evaluate the intended preventive military action by U.S. against Syria.

The 9/11 Attack had truly shifted the way pundits and government officials interpret the rules and norms that govern the use of force under international law. The prevailing perception upon such rules and norms can be divided into two towering standpoints. Nonetheless, it is important to establish that the rules and norms as referred to in this article are the provisions as stipulated primarily in Article 2(4) and Article 51 of the UN Charter and the corollary interpretation that came out of interpretation efforts.

Article 2(4) read as follows,

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles … All Members shall refrain in their international relations from the threat or use of force against the 
territorial integrity or political independence of any state, or in any other manner inconsistent with the 
Purposes of the United Nations …

Article 51 read as follows,

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The first standpoint understood Article 2(4) and Article 51 as categorical prohibition of the use of force. While the second standpoint, using a “permissive interpretation” method on the articles, as allowing preventive self-defense, whether conducted in unilateral or multilateral manner.[36] The former regards that any resort to use of force would be lawful only if it was exercised as a self-defense (Article 51) or if authorized by the UN Security Council. While the latter understands and interprets the articles in permissive ways that as long as the resort to use of force is consistent with the purposes of the UN Charter that it would be legitimate.[37]

For many scholar, the meaning of Article 2(4) is clear: categorical prohibition of the use of force except in self-defense and by the authorization of the Security Council.[38] They, in addition to the text, focus on other elements of treaty interpretation such as context, object and the purpose of the UN Charter.[39] This group of scholars, in particular, note that the negotiating history of the Charter supports the contention that the conjunction “or” in the phrase “or in any other manner inconsistent with the purposes of the UN” was meant to supplement rather than qualify, the prohibition on the unauthorized use of armed force.[40]

Contrary to such position, some scholars contend, that based on the text of Article 2(4), that using force might be legitimate if it is consistent with the purpose of the UN. They are concerned with threats that exist in the real world, and see that, in extremely exceptional situations, the use of force could be consistent with the purposes of the Charter and that is might not be illegal.[41]

In that context, Michael Reisman argued that, “the security system of the United Nations was premised on a consensus between permanent members of the Security Council. Lamentably, that consensus dissolved early in the history of the organization. Thereafter, for almost all cases but those in which there was a short term interest in collaboration, the Security Council could not cooperate as originally planned.”[42] He further argues, “Hence, appraisals of state resort to coercion can no longer simple condemn them by invoking Article 2(4), but must test permissibility or lawfulness by reference to a number of factors, including the objective and contingency for which coercion is being applied.”[43] Henceforth, the second group of scholars gives weigh to the extraordinariness of the surrounding circumstances, in the word of Reisman “the objective and contingency for which coercion is being applied,” that trigger the use of force as factors that are consistent with the fulfillment of the purposes of the Charter.

 2. Unilateral Preventive Use of Force under the UN Charter

Having established the towering standpoints on how the rules and norms governing the use of force currently perceived, one that allows for permissive interpretation thus allowing then next stage is to place the question to bridge and placing context in the intended U.S. preventive military action against Syria is whether the U.N. Charter then provides ground for preventive self-defense? According to international legal doctrine, there are two answers to this question, because there are two possible readings of Article 51 as it relates to preventive self-defense.[44]

Some think that the right of preventive self-defense is contained in Article 51.[45] Scholars who support this assertion believe that the adjective “inherent,” which modifies the right of self-defense, implies the existence of a customary right of prevention self-defense, which is thereby preserved in Article 51. International Court of Justice (“ICJ”) in Nicaragua[46] affirmed such notion, “The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a “natural” or “inherent” right of self-defense, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter.”[47] Scholars that support this view include Anthony Clark Arend, Robert Beck, Derek William Bowett, John Alan Cohan, Myres McDougal, Robert O’Brien, Julius Stone, Oscar Schachter, and Sir Humprey Waldock.[48] On the other equation, a group of scholars such as Ian Brownlie, Yoram Dinstein, Michael Glennon, Louis Henkin, Phillip Jessup, Hans Kelsen, Lassa Oppenheim, Bruno Simma, Hilaire McCoubrey, and William Burke-White, place importance on the terms “if an armed attack occurs,” hence, advocating a restrictive reading of Article 51.[49] The latter group unequivocally argue that the use of force in self-defense is only possible is response to an armed attack and therefore prohibits preventive self-defense.[50]

Both ICJ and the UN Security Council have strictly prohibited the invocation of the preventive doctrine. Following Israel’s attack on Iraq’s Osiriq nuclear reactor, the UN Security Council adopted Resolution 487 (1981) which “strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct, and calls upon Israel to refrain in the future from any such acts thereof.[51] In Nicaragua decision which then re-affirmed in its Oil Platforms decision of 2003,[52] ICJ negated the right to preventive self-defense arguing that only armed attack and it alone that can justify the use of force in self-defense under Article 51 of the Charter.

3. Evaluating the Postulated Military Action against Syria

In light of the descriptive and analytical efforts above, it is inevitable that U.S. policy to pursue military action against Syria would always be seen through different lenses when it is brought vis a vis the prevalent conflicting views on the use of force, particularly the preventive self-defense. One group of thought would justified the postulated U.S. military attack against Syria if it can be shown that such attack is necessitated by the objective and contingency for which the attack is being applied. Further, this group would also justified the attack if the attacker could show how its attack consistent with the purposes of the UN Charter. While the other group which advocated a restrictive reading would not tolerate any attack if, in fact, there is no armed attack occurs against the U.S. For this group, only armed attack and it alone that justifies any use of force as a self-defense.

In evaluating the intended U.S. military action from the angle of international law proves to be harder than to assess it from the optic of domestic justification. In spite of the towering standpoints, international law provides no redress to this matter since it would be dealt with the question of who gets to decide whether it is consistent with international law (UN Charter) or not? Is it the UN Security Council or ICJ? U.S. certainly would veto any resolution that would delegitimize its military action against Syria in UN Security Council. While any state that look to recourse through ICJ by bringing U.S. to ICJ, would be confronted with the fact on how to get U.S. consent at the first place. It seems irreconcilable that U.S. would give its consent to be tried before ICJ on the action it considered as lawful and legitimate.

G. Conclusion

The postulated U.S. military action against Syria, in fact, shown how perplexing it is the issue of use of force in relation with international politics and international law. The U.S. predilection in using force abroad had substantiated and brought the issue of right of an individual state to use of force abroad that had been long subjected to debate into the realm of 20th and 21st Century politics and world order.

Under its domestic standing, U.S. grounds its legitimacy and legality of use of force abroad. While international law, as far as the term concerns, is not something that spectators see as always in line with what the U.S. do, especially in relation with U.S. policy to use force abroad to secure its interests Nevertheless, U.S. has generally upheld and promoted the ideal of international law and its many facets with amazing success. International law is trapped within the problem of interpretation when faced with this particular question of whether an attack against Syria by U.S. would be lawful or not.

The problem of interpretation expose and add nuance to the inherent defect of international law, which is that it lacks legal enforcement mechanism. There is no enforcer of international law. Yet, even with this ‘defect’ international law might be still proved to be the gentle civilizer of nations in their international relations and is important in many other facets of the life of international community. Nonetheless, the present international system as envisage under the UN Charter, still inadequate to correspond to the need of individual state to resort to resort to use of force when they perceived their nation’s survival and national interest is in great danger.

[1] Book III, Ch. I(5); Ch. 3 (42, 44), trans. Charles G. Fenwick, in J. B. Scott, ed., The Classics of International Law (Washington, DC: Carnegie Institution, 1916), 280-340.

[2]  Reisman, W. Michael, “Criteria for the Lawful Use of Force in International Law” (1985). Faculty Scholarship Series. Article 739, P. 279.

[3] Zbigniew Brzezinski, The Choice: Global Domination or Global Leadership, (New York: Basic Books, 2005), P. x.

[4] President Barack Obama, National Security Strategy (2010) (hereinafter cited as “NSS 2010”) the NSS can be accessed in the following link (last accessed January 14, 2014)

[5] Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, (Cambridge: Cambridge University Press, 2005), P. 8.

[6] President Barrack Obama, Statement by the President on Syria, August 31, 2013, (“August 31 Statement”) could be accessed in the following link (last accessed January 14, 2014).

[7] See August 31 Statement.

[8] The agreement named as Framework for Elimination of Syrian Chemical Weapons (hereinafter cited as “Syrian Framework Agreement”). The text is provided by New York Times on this following link Remarks by foreign ministers of US and Russia about the Framework Reportage on day to day account on how was the deal reached (all links on this note, last accessed on January 14, 2014).

[9] Washington Post, 9 Questions About Syria You Were too Embarassed to Ask, Washington post (last accessed January 14, 2014)

[10] Huffingtonpost, Everything You Need to Know about Syria’s Turbulent History and Why It Matters Today, (lat accessed January 14, 2014).

[11] ABC News, Everything You Need to Know about the Syrian Civil War, (last accessed January 14, 2014). Some of the external forces which joined the fight in Syria are associated with al-Qaeda. For a brief look into the identity of the forces see

[12] Congressional Research Service, Armed Conflict in Syria: U.S. and International Response see also CBC news (last accessed January 14, 2014).

[13] New York Times, Syria Threatens Chemical Attack on Foreign Force, (last accessed January 14, 2014).

[14] See also New York Times, New Chemical Weapons Allegations in Syria Conflict (last accessed January 14, 2014).

[15] The Mission was established under the UN General Assembly Resolution 42/37 C and UN Security Council 620 (1988). The purpose of the Mission is to ascertain the facts related to the allegations of use of chemical weapons, to gather relevant data, to undertake the necessary analyses for such purpose, and to deliver a report to the Secretary General. See Final Report of the Mission on the following link (last accessed January 14, 2014).

[16] Ibid.

[17] See Washington Post, Britain, France Claim Syria used Chemical Weapons, (last accessed January 14, 2014).

[18] Ibid.

[19] See New York Times, Israel Says it has Proof that Syria has used Chemical Weapons (last accessed January 14, 2014).

[20] Ibid.

[21] See Press Release, White House, on Government Assessment of the Syrian Government’s Use of Chemical Weapons (August 30, 2013) (last accessed January 14, 2014).

[22] Ibid.

[23] See Think Progress, How We Get Here: The Timeline of Syria Chemical Weapons Saga, (last accessed January 14, 2014).

[24] NSS 2010, supra note 4.

[25] Ibid.

[26] See Think Progress, Flashback: How Russia has blocked international action on Syria, (Last accessed January 14, 2014).

[27] NSS 2010, supra note 4.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] see Donohue, Laura K, “The Limits of National Security, 48 Am. Crim. L. Rev. 1573, P. 1587 (2011).

[32] Ibid., P. 1584.

[33] Heiko Meiertons, The Doctrine of US Security Policy: An Evaluation under International Law, (Cambridge: Cambridge University Press, 2010), P. 3.

[34] Ibid.

 [35] 2010 NSS.

[36] Beomchul Shin, International Law and the Use of Force: Shaping the UN Charter’s Regime and Its Evolution, (Korea: Kida Press, 2008), P. 3.

[37] Ibid.

[38] Ibid., P. 7.

[39] Ibid.

[40] Ibid.

[41] Ibid.

 [42] Reisman, supra note 2, P. 280.

[43] Ibid.

[44] Bellier, Stephanie, “Unilateral and Multilateral Preventive Self-Defense,” 58 Me. L. Rev. 508, P. 515.

[45] Ibid.

[46] ICJ, Military and Paramilitary Activities (Nicaragua v. U.S.), 1986 I.C.J. 14 (June 27), P. 176.

[47] Ibid

[48] Bellier, supra note 44.

[49] Ibid

 [50] Ibi.

[51] S.C. Res. 487, U.N. Doc. S/RES/487 (June 19, 1981).

[52] ICJ, Case Concerning Oil Platforms (Iran v. US), 2003 I.C.J 90 (November 6).

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s