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Tam Hunt: U.S. Hypocrisy on International Law?

President Barack Obama on Wednesday announced a major new front in the war on terror. He stated his administration’s resolve to attack the terrorist group, now known as the Islamic State (IS or ISIS), wherever it exists, including in Syria, a new front in the never-ending war on terror.

The U.S. has already been hitting IS in Iraq for the last month, launching over 150 strikes. Obama’s speech was meant to announce a new multiyear effort to root out the IS threat from its stronghold in Syria as well as Iraq.

International law is widely acknowledged to be a central part of the modern world order, touted by western leaders both left and right. “Order” requires law, and there is a large body of treaties, charters and related precedent that constitute “international law.” The U.N. Charter, created in 1945 by the U.S. and its allies in the wake of World War II, is the basis for most international law. When Russia appeared to be involving itself militarily in Crimea and Ukraine, western leaders, including President Obama, frequently cited international law as the basis for their critiques.

It is thus with great irony, after scouring U.S. media for any mention of international law in relation to Obama’s planned strikes on ISIS in Syria, that almost the only mention of international law in this context comes from statements by Russia’s foreign minister, who stated (accurately) that U.S. attacks in Syria without United Nations support would constitute aggression, a major crime under international law.

(Whether Obama has secured the required domestic legal authorizations is another, also quite controversial, matter that is outside the scope of this column.)

The key component of the international legal order that the U.S. created with its allies after World War II, which includes the United Nations as the primary institution for deliberating and enforcing international law, is the principle of sovereignty. Sovereign nations may be not invaded or attacked without provocation or without Security Council authorization. These are the only two circumstances where the U.N. Charter allows one nation to take up arms against another.

Syria, whether we despise its leaders or not, is a sovereign nation. Syria has strenuously objected to Obama’s announced plans to strike ISIS in Syria. So if Obama does strike inside Syria without U.N. support or Syrian permission the U.S. is clearly an aggressor under international law. Moreover, the U.N. Charter is, by operation of the Supremacy Clause of the U.S. Constitution, the “supreme law of the land” because the U.N. Charter is a treaty ratified by the U.S. Senate. So Obama would be breaking U.S. law as well as international law.

So why does Obama and the U.S. media ignore international law? Strangely, it seems that right-wing complaints about the mainstream media are in some ways correct: Obama does seem to enjoy a free pass, at least when it comes to foreign affairs. (We shouldn’t forget, however, The New York Times’ shameful free pass for President George W. Bush in the run-up to the Iraq War, however — remember Judith Miller and her stories about the non-existent WMD.)

Bush got a lot of justifiable flack for his arguments for war in Iraq, and particularly for the idea that Iraq was a threat that needed to be dealt with at that time even though he didn’t argue that it was an immediate threat. This type of war was described as “preventive war” and was a new argument for major military action. Preventive war is far more tenuous than arguments for preemptive war, which is actually allowed under normal international law when the threat of attack is imminent.

Fast-forward to 2014 and Obama’s arguments for striking ISIS in Syria and Iraq. The arguments are almost identical to Bush’s and rely largely on the idea of preventive war. Obama stated in his Wednesday night primetime address:

"If left unchecked, these terrorists could pose a growing threat beyond that region, including to the United States. While we have not yet detected specific plotting against our homeland, ISIL leaders have threatened America and our allies. Our intelligence community believes that thousands of foreigners, including Europeans and some Americans, have joined them in Syria and Iraq. Trained and battle-hardened, these fighters could try to return to their home countries and carry out deadly attacks."

But there has been nary a peep from our media about these new arguments for preventive war.

As a lawyer, I understand arguments. That’s my job. Lawyers in private practice are paid to defend their clients or to otherwise advance their clients’ interests in a way that doesn’t rely on principle so much as it relies on arguing whatever will achieve the objectives, even if those arguments are contradictory. Similarly, Obama seems to be ignoring any mention of international law in the context of Syria because he knows it’s a losing argument — despite the fact that he was happy to invoke international law vociferously in criticizing Putin’s actions in Ukraine just months ago.

Admittedly, a U.N.-approved approach to attacking ISIS in Syria would be tricky because both Russia and China have since 2011 vetoed five attempted Security Council resolutions that may have opened a path for military action against Syria. However, things are different when it comes to ISIS instead of Bashar al-Assad as the target in Syria. Russia and China have both supported two recent Security Council statements (lacking the force of resolutions) condemning ISIS as “responsible for thousands of abuses against the Syrian and Iraqi people” and arguing that ISIS “must be defeated and that the intolerance, violence and hatred it espouses must be stamped out.”

It is not entirely unreasonable to think that Russia, China and Syria may support carefully prescribed U.S. airstrikes against key ISIS targets in Syria because none of these entities is a friend of ISIS and, as demonstrated by at least three recent U.N. Security Council statements, China and Russia recognize the brutality of ISIS and the need to take some kind of action against ISIS.

But nowhere in Obama’s recent statements is there any acknowledgement of the need for U.N. support of any kind. It seems that Obama has given in to the chorus of support for war outside the international legal system, yet again, even though he campaigned as a candidate who would not only end the Iraq War but would “end the mindset that got us into the Iraq War.” Well, Obama did ultimately end the Iraq War, after another two years of war, but based on a schedule set entirely by Bush. And now he’s restarting the Iraq War. He is also winding down the Afghanistan War, 13 years after it began, but has waged it heartily for five years now.

I won’t discuss Libya here, but it is quite telling that the three places the U.S. has invaded in the last decade or so — Iraq, Afghanistan and Libya — are in a shambles. War is clearly not the solution to the acknowledged problems in these countries, whether it is approved by the U.N. or not (for the record, the U.N. did approve military action, of some kind, in both Libya and Afghanistan, but not in Iraq).

One thing is clear: Obama has, with this most recent military action, cemented his membership in the bipartisan “war party.” My next piece will examine the roots of the war party in the U.S. and why almost every president seems to give in to the war party before too long.

— Tam Hunt is a lawyer based in Santa Barbara. Click here to read previous columns. The opinions expressed are his own.

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