Our Oped in the New York Times last week on Syria raised many questions. In this blog I will continue to address those issues, that could not properly be elaborated in the original piece because of the need for brevity. There are also some issues that have arisen since.

 

First, the issue of legality and efficacy. Both are critically important and we didn’t mean in any way to downplay the vital importance of international law. The legality of President Obama’s proposed action does not appear to be disputed by lawyers. It is illegal, because acting without the authorization of the UN Security Council, in a situation other than self-defense, would be unlawful. However, without doubt, and following the doctrine expounded by Sir William Harcourt, there can also be instances in which ethics can override law, and therefore there can be justifications for an intervention “to snatch a remedy beyond the reach of law.” The doctrine of necessity may play a role here, but exactly how it could be invoked in support of punitive strikes is not clear. Our view: the Syrian case does not reach the threshold of demanding an action outside the law, either from ethics or necessity.

 

The fact that President Obama has painted himself into a corner and made it a question of American credibility, has no bearing on the rationale for action in Syria. Our view: let Syria not be the victim of a problem that the U.S. Administration has created for itself. Damage to American credibility is a separate question, though clearly a very serious one.

 

Our argument was, once the issue of legality has been put to one side, the central question is efficacy. As we made clear, we believe that U.S. military strikes are very unlikely to achieve a reasonable goal. They would be reckless and foolish.

 

As an aside, legality is also inextricably linked with efficacy. Acting with UN Security Council backing would make any action far more effective. Acting without it risks polarizing the international politics of Syria. Although relations between the U.S., Russia and Iran are already quite bad, they could certainly get a lot worse. Acting outside the law also risks undermining the international norm that the U.S. purports to uphold: it is paradoxical, to say the least, to aspire to uphold an international legal principle (against chemical weapons), by flouting another international legal principle (collective action against threats to international peace and security and war crimes).

 

Second, what should be the diplomatic response? The short answer is, reconvene the Geneva Conference, and bring Iran to the table. The U.S. position of demanding the removal of President Assad is unhelpful and should be abandoned. The U.S. position of not talking to Iran is equally unhelpful. Meanwhile, U.S. allies Qatar and Saudi Arabia are proving to be a liability, and should be obliged to pursue any interests they may have through negotiations. All need to be at the table. All issues also need to be on the table, including accountability for war crimes.

 

Which leads to the third point: the issue of an international court for war crimes in Syria. I have been well known for criticizing the ICC on Sudan and Libya. It is true that an ICC arrest warrant against President Bashar al Assad would only complicate the situation, driving him and his government further into a corner. But note that we stipulated only an international tribunal outside Syria, and did not specify that it should be the ICC, and we would not presume that a prosecutor would immediately reach for the top–at least not on the chemical weapons issue. Our thinking behind this is that a war crime ought to be punished, as a matter of principle. Indeed there is an international consensus on this, including from Iran—which is still hospitalizing many soldiers who were gassed in the Iran-Iraq war 25 years ago. The best way to establish an effective judicial process is to build a consensus among the key actors—globally, in the region, and within Syria—on such a process. Only then will the perpetrators of crimes be compelled to cooperate.

 

The use of chemical weapons last month was an unparalleled opportunity for diplomacy to build a consensus and momentum around law and peace in Syria. It is profoundly regrettable, not only that this opportunity has been squandered, but the standing of law and the prospects for peace now stand diminished, not enhanced.

 

Also, a point we didn’t raise: could U.S. military action make it impossible in practice for Syria to use chemical weapons again, by dint of destroying or disabling them, or destroying enough of the command and control infrastructure to put them beyond use? This is a technical military discussion, and we don’t know the details. But some questions need to be answered.

 

Can chemical weapons be safely neutralized without the cooperation of the Syrian army? Or might attack lead to greater danger of chemical weapons incidents, compared to the existing situation of Syrian command and control? For sure, a Syrian commander has used chemical weapons, but it is not clear who gave the order and why. It is possible that the high command did not authorize their use, and that one consequence of the attack has been to tighten controls. Or it is possible that the high command calculated that the incident would pass without major outcry. If so they got it wrong. On either of these scenarios, we should consider that concerted political action—including by Syria’s own sponsors and allies—could make it exceptionally costly for the regime use chemical weapons again. Meanwhile, air strikes aimed at destroying chemical weapons facilities or degrading command and control systems, surely has risks about which we can only speculate. And would not the only truly effective way of removing WMD be to occupy the country and search them out, as in Iraq?

 

A political concern is, do the leaders of Syria, the region and the world believe that the U.S. has war aims limited to preventing the use of chemical weapons? Around the world, publics are skeptical because of the precedent of the erroneous American claims about weapons of mass destruction in Iraq a decade ago. But the case of Libya in 2011 is equally pertinent, when President Obama insisted that intervention was justified by the threat to civilians in Benghazi, and would be limited to enforcing the responsibility to protect. The Russians and Chinese did not use their veto in the UN Security Council on that occasion, and later regretted it, when it became clear that the NATO intervention was a barely-concealed exercise in regime change.

 

And in the Syrian case, the U.S. policy has been — since August 2011 — “a democratic Syria, without Bashar al Assad.” The U.S. policy debate has not been on the merits of regime change, but how to achieve it.

 

So, we remain unconvinced by this argument: because: (a) President Obama has not made his case in these terms; (b) the on-the-ground consequences are unclear; and (c) most of the rest of the world—including those the U.S. most needs to convince—won’t believe it.

 

Which brings me to the final consideration: unilateral bombing of Syria, in the face of active opposition by key international players, is extraordinarily reckless. This is not, as in Kosovo, Iraq or Libya, action in the face of serious misgivings by other powers that ultimately remained neutral. No-one intervened to protect Slobodan Milosevic, Saddam Hussein or Muammar Gaddafi—at most America’s critics and rivals complained from the sidelines. Syria would be very different. It would be is an intervention that  profound political hostility and distrust from the U.S.’s rivals. Russia, Iran and Hezbollah would be expected to respond by intensifying their own engagement, and thus escalating the civil war. The humanitarian and human rights consequences for Syrians could be appalling, and the possibilities of the conflict escalating to other theatres should not be ruled out.

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