President Barack Obama and UN Secretary General Ban Ki-moon. Image credit: White House/Pete Souza
Several posts at Just Security have focused on international legal questions raised by US military operations in Syria. A key issue is the legality of the position that the United States can use force in another country that is “unwilling or unable” to quell a terrorist threat against the United States or its allies. On the day that U.S. airstrikes in Syria began, U.N. Secretary-General Ban Ki-moon issued an important statement that Sarah Knuckey and I described at the time as “telegraph[ing] a surprising level of permissiveness if not support for current US airstrikes.”
In a nearly 6400-word article in The New Republic discussing the travails of the UN across a range of issues, Jonathan Katz provides extraordinary details about the division of opinion within the Secretary-General’s staff in drafting his statement. Below is an excerpt from Katz’s article.
Two items to keep in mind when reading the excerpt:
1. The significance of the Secretary-General’s statement
Katz quotes from the statement issued by the Secretary-General but not the line that is most relevant for the central international legal question. That is, the quotation omits these words by the Secretary-General:
“I am aware that today’s strikes were not carried out at the direct request of the Syrian Government, but I note that the Government was informed beforehand. I also note that the strikes took place in areas no longer under the effective control of that Government.”
It is those words and the second sentence in particular that indicated much greater alignment with the United States and support for the notion that such situations could permit military intervention without a territorial state’s request.
2. A split between UN legal vs. political advisors
The split within the Secretary-General’s staff appeared to include legal advisors declaring the U.S. actions illegal versus political advisors not making legal claims in support of the intervention. Indeed, one UN official in the latter camp is quoted as saying, “All right, well, sure, it’s against international law;” “the fact that [bombing them] is against the law? Screw that!”
I do not mean to suggest here whether the political advisors could have international legal claims to back up their policy recommendations. Indeed, they might have overlooked some legal options. For example, Under-Secretary-General for Political Affairs Jeffrey D. Feltman argued that seeking Syria’s permission would legitimize Assad and his suspected commission of war crimes. A recent post by Professor Claus Kress argues that those types of concerns may, indeed, translate into a justification for US strikes under international law.
Here’s the excerpt from Katz’s article in TNR:
U.N. Department of Political Affairs, headed by Jeffrey D. Feltman, a former top U.S. State Department official on the Middle East, pushed back. Yes, the political advisers retorted, at an ideal United Nations, the Security Council would authorize legal action against ISIS. An ideal United Nations would have dealt forcefully with the Syrian war years ago, before ISIS gained a foothold. But nobody thinks this is the ideal United Nations—not even the people who run it. The year before, Russian President Vladimir Putin had written in The New York Times that he would block any U.N. action not approved by his ally, Syrian President Bashar al-Assad. And while Assad would thrill at bombs falling on his enemies in ISIS, the political staff argued that seeking his permission would alienate the Arab allies assisting in the attack and legitimize a strongman suspected of war crimes.
The question was, how should the United Nations respond? Ban’s staff split into two camps. On one side were the United Nation’s lawyers, led by his chief counsel, Miguel de Serpa Soares. Syria was still a sovereign country and U.N. member state, the legal team reminded their colleagues. Bombing its territory required authorization from the Syrian government or the U.N. Security Council. But as the last-minute backchannel notice made clear, the White House was not seeking either. Thus, the lawyers said, there needed to be a public statement that the United States was violating the U.N. Charter. They promised to stop short of what the last secretary-general, Kofi Annan, had done a year after the U.S. invasion of Iraq in 2003. Annan’s words—“it was illegal”—had secured his legacy at the United Nations. It had also destroyed what was left of his relationship with the Bush administration.
The U.N. Department of Political Affairs, headed by Jeffrey D. Feltman, a former top U.S. State Department official on the Middle East, pushed back. Yes, the political advisers retorted, at an ideal United Nations, the Security Council would authorize legal action against ISIS. An ideal United Nations would have dealt forcefully with the Syrian war years ago, before ISIS gained a foothold. But nobody thinks this is the ideal United Nations—not even the people who run it. The year before, Russian President Vladimir Putin had written in The New York Times that he would block any U.N. action not approved by his ally, Syrian President Bashar al-Assad. And while Assad would thrill at bombs falling on his enemies in ISIS, the political staff argued that seeking his permission would alienate the Arab allies assisting in the attack and legitimize a strongman suspected of war crimes in the more than three-year-old civil war. If Ban condemned the U.S. attack, he could undermine a crucial military effort and give political cover to Obama’s domestic opponents, Assad supporters, even the Islamic State militants themselves.
“All right, well, sure, it’s against international law,” a senior U.N. official who took the U.S. position that night recalled, exasperated. “[But ISIS] are literally selling every woman they catch of a different religion into slavery and rape. The fact is that they’re doing it in Iraq but being supplied and coming from Syria. Then the fact that [bombing them] is against the law? Screw that!”
…
Befitting the world’s farthest-flung bureaucracy, most of the staffers’ argument took place over email. After a few hours, they reached a compromise that would back the United States and delivered their agreement to the secretary-general. But the final decision would be Ban’s alone. …Ban decided to accept his staff’s recommendation. Confidants told me that he trusted the United States’ intentions in Syria. He would not publicly quibble the next day when Samantha Power, U.S. ambassador to the United Nations, argued in a letter, addressed to Ban but meant for the Security Council, that the bombing constituted “collective self-defense” (of, nominally, Iraq) under Article 51 of the U.N. Charter—the same argument past U.S. administrations used to justify arming the Nicaraguan Contras and escalating the Vietnam War.
In the end, all Ban could do was what he always does: issue a statement. It had to be carefully worded, neither condemning the airstrikes nor asserting their legality. His aides knew this comment would likely be the most reported thing Ban said all day, yet the delicacy of the position required attracting as little attention as possible.
(“I think it is undeniable,” he would say, “that these extremist groups pose an immediate threat to international peace and security.”) With the next day’s schedule already set, he would read it at his morning press conference ….