Striking at Syria would be illegal. Should we do it anyway?

In yesterday's New York Times, Yale law professors Oona Hathaway and Scott Shapiro engage the question of whether the U.S. ought to unilaterally strike at Syria despite the absence of a U.N. Security Council authorization.  Hathaway and Shapiro suggest, though they don't quite declare, that the answer is no.  Striking without U.N. approval, they note, would violate the U.N. Charter to which the U.S. is a party and thus would be illegal.  Doing so would set a precedent that would make it easier for other nations, in the future, to take unilateral military action, perhaps with less justification than the U.S. (in light of Syria's use of chemical weapons on its own people) now can claim.  This in turn would threaten to return the world to the pre-U.N. status quo in which nations (at least powerful nations) routinely struck at other nations on trumped-up grounds.  "The question Congress and Mr. Obama must ask now," write Hathaway and Shapiro, "is whether employing force to punish Mr. Assad’s use of chemical weapons is worth endangering the fragile international order that is World War II’s most significant legacy."

I think this is the right way to put the question, although there is some nuance here that, to their credit, Hathaway and Shapiro seem to recognize.  The temptation for many Americans, including many lawyers, will be to question whether international law is really the sort of law that imposes an obligation of obedience on its subjects, particularly in the face of a pressing moral crisis like Assad's use of chemical weapons.  But international law is law; as a party to the U.N. Charter, the United States has an obligation to respect its authority just as Americans have an obligation to respect the authority of our Constitution and laws.  (Indeed one could argue that the U.N. Charter has more binding force than most domestic laws.  After all, the U.S. voluntarily became a party to the charter, but among U.S. citizens, only naturalized citizens and government officials have affirmatively sworn allegiance to the U.S. government and its laws.)

The fact that international law, including the U.N. Charter, is legally binding on the United States does not end the debate, however.  Even valid law cannot impose an absolute, indefeasible obligation to obey its commands; sometimes the demands of morality outstrip those of law.  This is why I like the way Hathaway and Shapiro have put the issue, as a choice between the arguments for obeying the law (preserving "fragile international order") and the arguments for disobeying it in the name of morality (punishing Assad's use of chemical weapons -- and, one might add, possibly deterring their future use).  It's important to recognize that the presence of valid law implies a choice, not a blind duty of obedience.  If the law generally is good law, of course, then in the vast majority of cases the choice is an easy one, so easy perhaps that it doesn't seem like a choice at all:  Of course we should obey the law.  But in some extraordinary cases the choice becomes very hard, because obeying the law is likely to bring dire moral consequences.  The Syria situation seems to me like such an extraordinary case.  There is much to be said for disobeying the law in this instance in the name of preventing a greater evil.

One consideration that Hathaway and Shapiro don't emphasize, however, is the importance of being willing to take one's medicine when one willfully disobeys the law in the name of a greater moral good.  The modern tendency is to equivocate around inconvenient legal obligations -- to mount sophistic arguments for why one isn't really disobeying the law at all.  But the choice between obeying the law and serving a higher moral cause must be a real choice, with real teeth attached to it.  If one decides to disobey the law in the name of morality, than one must be prepared to suffer the legal consequences of one's actions.  Without the very real threat of legal consequences for disobedience -- even for justified disobedience -- people would be far too ready to engage in unjustified disobedience, wrongly confident in the strength of their own unilateral moral judgment.  The threat of legal sanctions for disobedience is necessary to make would-be disobeyers think at least twice before deciding that morality justifies their actions.

It is highly unlikely, however, that the U.S. would suffer any formal legal sanctions for striking Syria without Security Council authorization.  This is true for the same reason that the Security Council is highly unlikely to provide authorization in the first place:  At least one Council member would veto any such resolution.  (The U.S. itself holds such a veto as a permanent Security Council member.)  The absence of any real threat of sanctions for disobeying the law serves, to my mind at least, as a reason against disobeying the law and striking Syria unilaterally; we (that is, we collectively -- the United States, as represented by our government) are that much more likely to be overconfident in our own judgment and insufficiently respectful of the value of international law without the prospect of significant punishment for disobeying that law.

At the same time, the blatant procedural flaws within the Security Council -- the presence of five powerful permanent members (China, France, Russia, the UK, and the US) with absolute power to veto Council resolutions -- strengthens our reasons to act unilaterally by undermining the procedural fairness of the law.  I have argued in my scholarly work that the authority of law rests in large part on the fairness of its procedures -- on the capacity of those procedures to avoid or resolve disputes in a way that can be perceived as relatively impartial and thus can be accepted by those subject to the law.  The stacked deck that is the Security Council flies in the face of this essential impartiality, weakening the U.N. Charter's claim to be validly binding law in the first place.

All of which makes this, for me, a very close case.  The U.N. Charter is law, binding upon the U.S. and other nations, and it is law that, as Hathaway and Shapiro note, serves a vital dispute-avoiding purpose.  But it is law that is rather saliently compromised by procedural dysfunction within the institutions charged with carrying it out.  And, in this instance, it is law whose claim to our obedience is strongly opposed by a forceful moral argument that action must be taken in Syria -- although we should be wary of being overconfident about our own moral judgments in this respect.

In the end, I lean toward doing the following:  Striking against Syria in a militarily appropriate fashion, unilaterally if need be, and doing so in full acknowledgment that the action is a violation of our legal obligations under the U.N. Charter.  But there is no good, clean choice here -- especially since people are likely to die either way.  Thank God I'm not the President.