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Robert S. Taylor: On the Syria Strikes and Future of Non-UN Humanitarian Action

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Why did President Bashar al-Assad use sarin gas earlier this month after years of refraining? Was the U.S. response legal? How should international lawyers think about the future use of military force for humanitarian purposes with our without United Nations? I asked Bob Taylor who served the U.S. Department of Defense with great distinction as Principal Deputy General Counsel (2009-2017) and twice as Acting General Counsel (January-October 2013, July 2015-June 2016). He is currently a visiting scholar at Harvard Law School. Taylor’s views are below.

President Donald Trump’s careless indifference to Syria’s Bashar al-Assad up to (and initially immediately after) the chemical attack made the chemical attack far more likely than it would have been had we had steadier leadership not dazzled and blinded by affection for Vladimir Putin. But the fault for the use of chemical weapons is Assad’s and that kind of conduct cannot be allowed by the world community to stand.  The United Nations has the responsibility and authority to act but cannot do so because of the Russian (and Chinese) veto. Still the United States should have pursued an authorization for the use of all necessary means in the Security Council,forced Russia to use its veto, and then acted with the advanced approval of our allies and others. That’s how enduring legitimacy and international support can best be harnessed.

The very limited and precise action taken by the United States was not legal under international law as it currently exists. That said, like the bombing in Kosovo during the Clinton administration and acts by other states (such as the Vietnamese action in Cambodia to end the inhuman reign of the Khmer Rouge ), the U.S. airstrike in Syria was an appropriate response to an intolerable abuse of humanity. Indeed, the sharp course correction in the administration’s approach to Syria, and Russia, was overdue, and critical to the possibility of sparing the Syrian people, and the region, from continued disintegration.

Where do we go from here? There should have been more meaningful consultation before the airstrikes, but most of all there should be a concerted effort to develop a workable framework to allow the world community to fulfill its obligation to protect, when the United Nations is unable to carry out that responsibility. I am sympathetic to the calls on the administration to explain its legal basis for action, but I believe that the need for any such explanation to rationalize what appears to be a purely unilateral action would make the rationalization unpersuasive. Far better to start fresh, and to develop procedures and standards that provide an alternative to action by the UN Security Council for the world community to come together to fill its obligations.  That alternative must be real, and capable of acting promptly.

 

Image: The UN Security Council holds a vote on a draft resolution demanding the Syrian government cooperate with an investigation of the suspected chemical attack in Idlib province on April 12, 2017 in New York City. Russia voted against the resolution and there were two abstentions on the vote–Spencer Platt/Getty

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16). You can follow him on Twitter (@rgoodlaw).