President Obama has convinced the Senate that military intervention in Syria is just and necessary, but, pending House approval, he also must convince the world that our actions will be justifiable under international law.
Opponents of intervention believe the United States has no basis under international law to intercede. They point to the recent U.N. Security Council vote that rejected collective military action and the fact that Syria presents no imminent threat — the touchstone for preemptive force under Article 51 of the U.N. Charter.
Even President Obama conceded Wednesday that there was no such threat.
"We may not be directly, imminently threatened by what's taking place in a Kosovo or a Syria or a Rwanda in the short term," he said, "but our long-term national security will be impacted in a profound way and our humanity is impacted in a profound way."
The case President Obama must now make to the world is a sophisticated one, but one that is deeply rooted within international law since human rights goes to the very heart of why the United Nations was created.
Here is the legal argument the president needs to make:
The use of chemical weapons have been banned since 1925 by the Geneva Protocol and customary international law, and their use was banned again almost globally in 1993 during the Chemical Weapons Convention.
Although Syria declined to partake in the convention, it is still bound by generally accepted "customary international law," and it also is a member of the U.N., which has classified "using poisonous weapons or weapons calculated to cause unnecessary suffering" as a "war crime." (War crimes, unlike genocide, do not require the targeting of a specific group.)
Syria has used such weapons to killed at least 1,429 of its own people, and has therefore committed war crimes in violation of humanitarian law (applies during times of armed conflict) and human rights law (applies during peacetime).
The charter of the United Nations makes it clear under Articles 55 and 56 that member states "shall promote universal respect for human rights," and as members of the United Nations, they "pledge themselves to take joint and separate action" to do so.
Therefore, the U.S. is permitted and morally bound to take action to further impede Syria's ability to continue committing those human rights violations.
At first glance, this argument may seem vastly oversimplified, but in law, the use of words is crucial and every word is carefully deliberated upon by the legislative bodies that choose them. A single word can change the entire legislative intent or purpose of what a law was designed to achieve.
When breaking down the very specific language of Article 55, it says: "The United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms "
The article does not say that the U.N. may promote universal human rights, but instead says that it shall promote universal human rights.
It is implicit that protecting human rights is not an option, but rather a covenant to which its members are morally bound.
The word universal means that members are committed to shielding all human rights in all places. It is not meant to be selective.
Consider Article 56: "All members pledge themselves to take joint and separate action "
Member states pledge themselves to take joint action to promote human rights.
The word pledge implies a promise as opposed to an option.
If members do not act jointly, they pledge to act separately.
"It is implicit that using chemical weapons against civilians is a clear violation of humanitarian and human rights law and a war crime," says Winston Nagan, a professor of international law at the University of Florida. "The charter does not get specific as to how member states shall uphold human rights, but it does clearly say that they pledge to take joint and separate action to do so. There are still broader obligations in the U.N. charter that cannot be completely obliterated by the Security Council."
So, when President Obama said that "the world had set a red line," he was technically correct.
The United Nations, our treaties and the institutions of international law are only as strong as we make them. If we fail to uphold our own covenants and promises then they will have no meaning.
This is why President Clinton and British Prime Minister Tony Blair used force to stop ethnic cleansing in Bosnia.
As Mr. Blair put it, "I didn't feel we could simply stand aside from that if we had the means, which we did, to intervene and stop it It was important — not just that NATO delivered a series of demands, and the realization of them — but also that type of ethnic cleansing was not allowed to continue unchecked."
President Obama has a sound legal and moral argument to present to the world.
This argument is sound because under international law, U.N. member states have pledged to universally uphold human rights — even if upholding those rights means the U.S. must act alone.
• Jeffrey Scott Shapiro is a former Washington, D.C. prosecutor.