Are We Going to War with Syria?
On April 13, 2018, the President of the United States, Donald Trump, ordered the military to strategically air strike a scientific research center, chemical weapons storage, and a chemical weapons equipment storage facility and command post located in Homs, and Damascus, Syria. Despite the United States’ touted success of the strikes, the question we must now ask ourselves is, “what exactly have we achieved”? After all, Assad remains the leader of Syrian Regime. We must, however; be mindful that given the complexity of Syria, the goal should not be to decapitate the Syrian Regime.
It was foreseeable that the United States would engage in direct actions against the Syrian Regime due to the ongoing use of chemical weapons. President Bashar al-Assad has been accused by the international community of killing thousands of innocent Syrian civilians during the existing civil war with chemical weapons, despite being cautioned by the international community and the United Nations Security Council to discontinue these war tactics. Furthermore, Russia and Iran have both been accused of providing material support for the war in Syria.
America’s action was not unilateral. Our allies, France and the United Kingdom, also played a role. Therefore, it has been much more accepted considering the mood of the international community as it relates to the Commander-in-Chief of the United States. Does this mean we are at war with Syria? No. Since the use of force was a one-time event, we have not entered into hostilities with Syria. However, if the United States continues to introduce Force, we may be having a different conversation. Now, let’s analyze the legality of the President’s use of force in Syria in the context of international and domestic law.
The Humanitarian exception provided the President with the legal right to introduce force on a limited basis in Syria with respect to international law. I’ll explain:
The United Nations (UN) Charter of 1945 which the United States is a party to was created to control the conduct of Member States. Article 2(4) states that 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. However, Members may deviate from this rule under two exceptions:
- Through the consent of the state whom you are using force against- Here, we have clear and convincing evidence the Assad Regime did not provide the United States government with consent to air strike the three facilities in Syria or to introduce force.
- Through UN Security Council Resolution under Chapter 7 to give authority to use force-While this approach would have been the most reasonable alternative since five out of the six permanent Members believe that President Assad’s use of Chemical weapons is a humanitarian crisis, but with Russia having a permanent veto power and is materially supporting the Assad Regime, such Resolution would have never seen the light of day.
We must also analyze Article 51 of the UN Charter which states:
“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-defence 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."
Here, there is no evidence that the United States or any of the U.S. Troops in Syria were attacked. In this case, only Syrian civilians were attacked by the Assad Regime. Such rule not apply.
On the other hand, the U.S. government should have used the emergent exception-Humanitarian intervention since the use of chemical weapons by President Assad would been sufficient to introduce force in Syria. The U.S. could have also argued that chemical weapons are so threatened to world security, an intervention was required. However, this approach may be seen as problematic by legal scholars because it creates unpredictability on how and when force should be used.
In conclusion, under international law, the Humanitarian exception provided the President with the legal right to introduce force on a limited basis in Syria.
While Article 1, Section 8 of the Constitution grants Congress the sole authority to declare war, however, Article 2 Section 2 of the United Constitution makes it clear that the president is the Commander-in-Chief of the Army and the Navy of the United States. General James Mattis, Secretary of Defense cited such right provided the president legal authority introduce force in Syria without Congressional approval. I agree. But not for the reasons incited in his press conference.
Regardless, this overlap of duties and responsibilities often create conflict as to who truly has the power to declare war. While this is a shared power, the president should not enter into war with other nation without the approval of Congress. The Framers created a level of ambiguity when constitutionalist aim to interpret this constitutional right. According to the Hill, a number of lawmakers, especially Democrats are questioning the president’s authority to launch an attack on Syria without congressional approval.
The President of the United States could have waited for congressional approval and more likely than not would have been approved for the purposes of limited strikes against Syria since it a Republican-led Congress.
In the Prize cases of 1863, the Court made it clear that the President has the authority to enter into force without congressional approval in the event of self-defense. Therefore has the power to direct the Army and Navy of the United States, as well as the militias of the individual states in some circumstances. If the country is at war with a foreign nation, the president is not only permitted, but is obligated, to use force against any such threats. This obligation to protect the country during war does not come with the requirement that the president wait for prior legislative approval. Unfortunately, in the case at bar, this rule would not apply since the United States is not at war with Syria.
Another piece of legislation that is worth mentioning is the War Powers Resolution Act which was enacted in 1973 as a legislative response to the Vietnam War. Such measurement was put in place to prevent the President alone from taking the country to war. The Act can trigger a 60-day time limit on the use of U.S. forces under section 1544(b). Unfortunately, no president has complied with it, including President Trump.
Many legal scholars have also argued that the president’s introduction of force in Syria was lawful under the Authorization for Use of Military Force( AUMF). This legislation was put in place in response to the September 11, 2001 terrorist attack which gives the President legal right to use military force against “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.
Does this mean we are at war with Syria?
NO. Since the air strike was a one-time event, we have not entered into war with Syria. However, if the United States continues to introduce force, we may be having a different conversation.