Jus ad Bellum/UN Charter/Sovereignty

Hathaway and Shapiro on Syria and the U.N. Charter

By Jack Goldsmith
Thursday, August 29, 2013, 7:05 AM

Oona Hathaway and Scott Shapiro argue in the WP that military force in Syria absent Security Council authorization would violate the U.N. Charter, and they sketch alternatives to intervention.   I agree that intervention in Syria would violate the Charter.  I am not sure that they are right, however, when they state: “The United States is on the precipice.  If it uses force on its own or with a cobbled-together ‘coalition of the willing,’ it will undermine the prohibition on war that has been the bedrock of the post-World War II era.”  This strikes me as an exaggeration.  The Charter’s “prohibition on war” has not in practice been a bedrock principle of the post-World War II era.  During the Cold War, nations often used military force in violation of the Charter.  After the Cold War, when the Security Resolution authorized force in Iraq in 1990, many believed we had reached a golden age where the Charter would finally work as envisioned to prohibit uses of force in the absence of Security Council authorization or legitimate self-defense.  But that belief didn’t survive Kosovo (as Michael Glennon wrote about) and Iraq (2003), among other interventions.   

Western military intervention in Syria would violate the U.N. Charter, and many things might go wrong as a result of intervention.  But “undermining” a bedrock principle of the post-World War II era will not be one of the things that go wrong, for the Charter principle of non-intervention has never been that powerful, especially after Kosovo, and thus there is not much to undermine.  Hathaway and Shapiro note that “[w]hen a nation as powerful as the United States repeatedly breaks the law, that law ceases to be law.”  Perhaps.  But if they are right, the law of the Charter ceased being “law” long ago.