Clearly if the Assad government in Syria used chemical weapons in the armed conflict against the rebels in his country that is a wrong under international law. The remaining question is whether a preemptory military action by the United States, based on a judgment by the president alone, against Assad's regime is equally wrong?
One of the positive legacies from World War I was the establishment of the international rule prohibiting the use of chemical weapons in the conduct of wars. This rule was formalized by treaties. It was made a part of the Geneva Protocol of 1925 (to which Syria is a party) and later it was the basis for the Chemical Weapons Convention (to which Syria is not a party). But my understanding is that there are no specific penalties under these treaties for the use of chemical weapons, other than a reference to sanctions that might imposed by the international community. In recent times, it is considered by the international community to be a very serious war crime that subjected those who committed such acts to being brought before the International Criminal Court.
This ambiguity about the imposition of penalties for using chemical weapons did not cause them to be used in warfare, with a few recent exceptions. Saddam Hussein used mustard gas and sarin gas in his war with Iran in the 1980s and against the Kurds in 1988. A cult group in Japan used sarin gas in a 1995 Tokyo subway attack. Amy Goodman, an American broadcast journalist, recently charged that in her view America engaged in chemical warfare by using napalm and Agent Orange in the Vietnam War. None of these incidents were used as the basis for imposing war crime penalties against the perpetrators under the international protocol banning the use of chemical weapons.
Former President George H. W. Bush invaded Iraq for its invasion of Kuwait and not the use of these weapons. Former President George W. Bush invaded Iraq based on its alleged possession of weapons of mass destruction and alleged ties to the terrorists who attack America on 9/11. This later preemptory invasion of Iraq has created both constitutional and international troubling issues that underlie today's question of whether the United States should engage in military action against Syria.
Whether America can do this is not the question because it has the superior military might to do it. But such might does not necessarily make it right. Also it is not a question of a need to do this as a matter of national self-defense from an actual attack of this country or a imminent attack set in motion that can only be stopped by such action. Neither is it so because President Obama and Secretary of State John Kerry say the president simply has the power to do it under the circumstances. Nor can It be argued that humanitarian considerations warrant such action because if this is the justification, international action should have been taken against Bashar Assad for the killing of more than 95,000 of his people in the current conflict instead of waiting until now with the alleged killing of under 1,500 by chemical weapons.
What distinguishes America as a civilized and democratic nation is its governance by the rule of law and not by any person, or group of persons. In the case of any action to be taken regarding Syria, this means we do it under our Constitution and international law. At this point, Obama took the right step by sending this matter to Congress for its debate and deliberation.
Obviously, the drafters of the Constitution did not anticipate the possibility of limited military action against other nations such as the past missile and air strikes against Libya and now those contemplated against Syria. They simply covered two situations. One was the power to declare war and to fund a military force to carry it out and to repel invasions which they gave to Congress. The other was to make the president the commander-in-chief to conduct such actions.
Presidents, like George W. Bush took advantage of this constitutional lack of detail by simply having a Justice Department lawyer write an opinion that as the commander-in-chief he had the power to invade other countries to go after real or perceived enemies. A very bad precedent empowering the president to govern based on his whim and not the law. Obama's referral of the Syrian matter is the right thing to do. It should now set the correct precedent for future presidents to seek congressional authority for such use of military force.
Obama put it this way: "...[O]ur power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people. And that's why I will seek authorization for the use of force from the people's representatives for president." And if Congress does its job, the world will hear all the facts, all the possibilities of action, including the involvement of the international community and compliance with international law, will be debated, and the people's representatives will deliberate over the right and wrong of taking a action.
This is how the founders would have wanted it done.
Robert "Frank" Jakubowicz is a regular Eagle contributor.