Syria: The case for inaction

[Ulenspiegel]

JMA,

the legal situation is far from clear as the action of Assad's forces would not have been against another state actor but own population.

Actions against own population are from a more legal point of view very complex. They are according to an expert in this field not allowed, however, only could be punished under current legislation with UN mandate, which is of course in this case blocked by Russia and China.

http://www.swp-berlin.org/fileadmin/...013A54_slr.pdf

(sorry, article is in German)

So the ugly conclusion of the author is that without Russian and Chinese cooperation there is no firm legal ground to support punitive actions against Assad.

BTW, before such action I would prefer hard evidence and a clear statement what "we" would do if rebels were the culprits, a case that would open another can of legal worms.

[JMA]

BTW, before such action I would prefer hard evidence and a clear statement what "we" would do if rebels were the culprits, a case that would open another can of legal worms.

Not a good idea.

We have just seen Obama get embarrassed by the 'red line' that he drew. Any card player will know never to show your hand.

Identifying which rebel group or faction were responsible and then know exactly who they are and where to find them is sure to embarrass all the intelligence agencies. The best plan of course would be to 'misdirect' a few cruise missiles onto AQ supporting rebel positions

[John T. Fishel]

Gentlemen--

Under US law a treaty ( and the UN Charter is a treaty) has the same status as a statute passed by Congress and signed by the President. It is superceeded by the next law on the subject. An authorization for the use of force passed by Congress, a use of force under the War Powers Act, use of force under the inherent powers of Article II of the US Constitution all override the UN Charter for the US and therefore are legal under US law.

More important, a law that is not enforceable is not a law - at least in analytical terms. International law is never enforceable without the the express consent of the states concerned (even if after the fact of military defeat). Of international institutions, only the UN Security Council has the authority to enforce international law (plus the power to do so) with the caveat that it must not have the formal opposition of a permanent member of the UNSC and it must have a total of 9 positive votes. If this does not happen then the UNSC is unable to act. It does not make action by others impossible but only without UN sanction. is such action illegal? I am sure that many international lawyers would argue it is. But I return to the point I made in the first sentence of this paragraph: A law that cannot be enforced is not a law. Liewise, a law that is not enforced is not a law.

As far as chemical weapons are concerned we have the Geneva Convention (Protocol?) of 1925 banning them and the more recent chemical weapons convention. These are the relevant "laws" on the books. If neither the UNSC nor any state or group of states chooses to enforce them, then they are no longer law and we are back to the international anarchy among states of 1648 - which we really never left, only mitigated.

Cheers

JohnT

[slapout9]

Gentlemen--

But I return to the point I made in the first sentence of this paragraph: A law that cannot be enforced is not a law. Liewise, a law that is not enforced is not a law.

Excellent statement.

[Ulenspiegel]

If a nonenforcable law is no law, an approach I can live with, then we have as conclusion no law in case of Syria, as long as there is no consensus within the UNSC, and therefore no legal basis for action. Correct?

[Fuchs]

http://www.swp-berlin.org/fileadmin/...013A54_slr.pdf

I find it odd that a tribunal ruling is weighted so heavily in this document. The criminal tribunal about war crimes in Bosnia was hardly set up and empowered to settle differing interpretations of international law.

The Nurembourg trials get similar respect elsewhere, even though their rulings' standards - if applied to later conflicts - demand the incarceration or execution many, many never incarcerated Western politicians, such as the entire Neocon gang.
In effect, such rulings only seem to carry much weight if the court was set up to rule on the IL question itself, not too rule on actions.