Now What? Responding to Alleged Chemical Weapons Attack in Syria

As media are reporting, high-level discussions in Washington, D.C. and elsewhere are focusing on how governments should respond to the incident in Syria involving an alleged chemical weapons attack by the Syrian regime. These discussions include consideration of military strikes against Syria. Earlier, in light of conclusions that the Assad government had used chemical weapons on a small scale, deliberations about arming Syrian rebels raised questions of international law and other sources of law (EU law, US law). See, for example, Pierre-Emmanuel Dupont’s Arms Control Law post on this issue.

At present, the debate about direct military strikes is dominated by non-legal questions, such as (1) clarifying what happened and who is responsible (on which see Jean Pascal Zanders’ posts on Arms Control Law and The Trench), (2) further danger to US credibility given existing controversies about President Obama’s “red line” statements, and (3) whether military intervention would be prudent or effective. However, as suggested by gathering momentum for military action, legal issues are on the agenda internationally and within governments contemplating the use of force. So, here are some preliminary, general thoughts on these legal questions.

International Law

In terms of international law, two critical, linked issues are (1) the principles on state responsibility (did a chemical weapons attack occur, and was the Syrian government responsible?), and (2) the rules on the use of force (does a chemical weapons attack attributable to the Syrian government provide a justification for other states to use force against Syria?).

The cleanest scenario would be for the evidence to show that the Syrian government used chemical weapons, and, then, for the Security Council to authorize UN member states to respond with military force to this threat to international peace and security.

For many reasons, this scenario is unlikely to be the one that plays out. At the moment, it appears as if definitive attribution of this attack to the Syrian government will prove time-consuming, difficult, and politically contentious, leaving enough room and time for differences among members of the Security Council to produce opposition to a resolution authorizing the use of force against Syria.

The next strongest basis for using force, the right to use force in self-defense, is not an option because the attack in question was not perpetrated against another state. Nor, at the moment, would an argument of anticipatory or pre-emptive self-defense be persuasive as a justification for using force.

That leaves the more controversial option of justifying a use of force under the “responsibility to protect” (R2P) principle, or (to the extent it is considered distinct from R2P) under the older idea of humanitarian intervention. This option is controversial because, among other things, whether a state can rely on these grounds to use force without Security Council authorization remains hotly debated, indicating that no consensus exists in international law on this question. The Syrian conflict, and the humanitarian debacle associated with it, has revealed the depth of disagreement about, and the difficulties associated with, the R2P principle in international law.

However, even given this controversy, the large-scale use of chemical weapons by a government against civilians in a civil war constitutes an atrocity of sufficient gravity that states can, with some force, argue that international law permits military action against that government without authorization of the Security Council. This argument will agitate the long-standing legal controversy in this area, but the controversy cuts both ways in that its existence means neither position is beyond the legal pale. Potentially effective ways to manage the controversy in order to tip opinion in the direction of using force without Security Council authorization include (1) producing clear and convincing evidence of Syrian government responsibility for a chemical weapons attack, (2) making good faith efforts to try to obtain Security Council authorization for a use of force, and (3) ensuring serious multilateral support for, and participation in, military action against Syria.

US Law

In terms of US law, military strikes by US armed forces would bring questions of constitutional war powers into play, as well as the War Powers Resolution (WPR). Most recently, controversies about the application of constitutional war powers and the WPR erupted in connection with the US air campaign against Libya. To much debate, the Obama administration argued that US military activities against Libya did not constitute “war” under the Constitution or “hostilities” under the WPR. Whether the administration would use the same reasoning with respect to military action against Syria depends on many factors, including the scope and seriousness of US military efforts.

However, we know enough to understand that Libya and Syria are not comparable. To date, US reluctance to get involved militarily in Syria flows, in part, from a realization Syria presents a harder target, and a more difficult operational context, than Libya. These differences would probably require more extensive, much riskier military activities than the US was able to undertake against Libya. Legally, it would be harder to sustain the position that such activities do not constitute “war” under the Constitution or “hostilities” under the WPR. Further, very limited military actions designed to permit re-use of the legal positions taken in the Libya incident could undermine the international legal case that military force is justified in responding to a large-scale atrocity committed with chemical weapons.

To avoid constitutional and statutory problems, the President could seek congressional authorization to use force, but the wisdom of US military intervention into the Syrian conflict has been, and currently is, at issue in Washington, D.C., even in light of the alleged chemical weapons atrocity. Given this, and the nasty political climate between the White House and Congress, it is difficult to believe that Congress would declare war on Syria absent some development that would dramatically change the political calculations inside the Beltway.

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55 Comments on “Now What? Responding to Alleged Chemical Weapons Attack in Syria”

  1. Not a single word on funding, arming, training, and supporting by massive propaganda the al-Qaeda and al-Nusra terrorists by the U.S. and its allies, from Saudi Arabia, to Qatar, UAE, Jordan, Turkey, France, and Britain. The author writes as if one side is totally innocent and really “humanitarian,” while the other side is completely evil. Not so. In fact, had it not been for the SAudi-led intervention, this bloody carnage would have ended a long time ago.

    The so-called humanitarian intervention in north Africa and the Middle East has brought nothing but misery and destruction to the people of these regions.

    • David P. Fidler says:

      You are correct that my post does not contain a single word about the matters you identified, and it does not contain a single word about many issues related to the Syrian conflict that deserve attention.

      • Mr. Fidler:

        I was not looking for an acknowledgment of something that was glaringly obvious. The point of the comment was that, it seems to me you are advocating a new war, and trying to find “justification” for it. If you care to answer, address this aspect. If you care to answer address this issue: What did the so-called humanitarian intervention in Libya achieve, aside from effective partitioning of the country, bringing chaos and misery to the people, making lawlessness a norm, at least in the western part of the country, and making Libya a transition point for arms for terrorists in Syria, Mali, etc., that even US officials have acknowledged?

      • David P. Fidler says:

        My post looked at the legal questions that are now on the table given that a number of countries and experts are advocating military action against Syria. Many people do not like this advocacy and the legal questions it raises, but they are part of the crisis now, and have actually been for some time. Those advocating for military action against Syria apparently believe such action would be justified in light of what has happened recently, and international legal arguments will be constructed to support these beliefs–and they will probably track the options my post briefly described.

        Your criticisms of the Libya intervention reflect long-standing opposition to humanitarian intervention, even humanitarian intervention approved by the Security Council, as happened with Libya. My guess is that any military intervention in Syria after the chemical weapons attack will not have Security Council approval, making matters even more fraught legally and politically. But, whether prudent, just, or illegitimate, I sense momentum is developing for some kind of military action against Syria, forcing us (again) to address many questions, including legal ones, and, perhaps, even the question whether international law matters at all in these kinds of crises.

  2. David,

    Nothing in the UN Charter suggests that a government doing something really bad provides an exception to the prohibition on the use of force in Art. 2(4), so I don’t see how it can be be enough to say that the “controversy cuts both ways” in order to justify using force against Syria. Doesn’t the burden of proof fall on those who believe such force would be legal to show the existence of a customary exception to Art. 2(4)? And what state practice and opinio juris exists to support such an exception?

    • David P. Fidler says:

      Absent some development that would make Security Council authorization more likely, any state wanting to take military action against Syria in connection with the chemical weapons attack would, I think, have to use the R2P/humanitarian intervention argument. As your comment indicates, any such argument will be controversial as a matter of international law. But, the continued (and long-standing) existence of this controversy means that this possible legal argument has not gone away. People were making the R2P/humanitarian argument for military intervention in the Syrian conflict in light of Security Council stalemate well before the recent chemical weapons attack.

      Any state moving in this direction would have to make the case that international law permits such military action, and I would imagine that we would see the same kinds of arguments made to support the NATO intervention in Kosovo. The Kosovo episode generated controversy and led to the effort to develop the R2P principle, an effort that has not put this larger controversy to rest, as I think the Syrian conflict illustrates. The controversy “cuts both ways” in the sense that the international legal arguments can still run for and against any military action taken without Security Council authorization. Large-scale use of chemical weapons by a government against civilians is a development that states would use to bolster the legal case for such military action. And, if this happens, the international legal community will, again, as after Kosovo, debate and argue without consensus emerging.

  3. Johnboy says:

    I have a (very hypothetical, I admit) question regarding this.

    First, the hypothesis: Suppose that
    (a) a foreign country shouts R2P!!! R2P!!! over these chemical weapons attacks, whereupon
    (b) that foreign country goes Whammer Jammer!!! on Syria, only to admit later that
    (c) Oooops! My Bad. It turns out the rebels had played me for a sucker!

    Now, the question: what are the legal repercussions for the leadership of that foreign country for falling for that False Flag operation?

    Is that leadership guilty of a War of Aggression against Syria?
    Is that foreign country liable for serious war reparations to Syria?

    After all, if you are going to claim R2P then there really should be some serious repercussions for Jumping The Gun, not to mention the need for some ground rules for determining when someone has, indeed, Just Jumped That Gun.

    Otherwise shouting R2P!!!! R2P!!!! becomes a catch-all loophole that anyone can use whenever they want to Go The Thump on somebody, and the prohibition contained in Article 2(c) is reduced to a dead-letter.

    • David P. Fidler says:

      Your question underscores the importance of determining with clear and convincing evidence that the Assad government is, under international law, responsible for the attacks. The more serious the US and other countries are about using military force, the more serious they will be in determining who is responsible for the chemical weapons attack. The Obama administration does not want to repeat the “intelligence failure” experienced in the Iraq war when the US could not find the WMD so critical to US rationales for attacking Iraq.

      • yousaf says:

        What if it was a mistake ? — or a covert op to force a mistake in order to concoct a reason for military strikes:

        http://www.lowyinterpreter.org/post/2013/08/26/Alleged-chemical-weapons-use-in-Syria-Who-what-and-why.aspx

      • David P. Fidler says:

        Yes, we don’t have the full story about what happened, and perhaps we never will. These questions go to what threshold does international law on state responsibility impose for attribution of this act to the Syrian government? Other questions in this realm are less legal, and, for me at least, cluster around trying to make sense of what happened and why. None of the “rational actor” explanations seem to make sense of this episode, so perhaps we have to consider some well-outside-the-box possibilities, including, perhaps, that the Syrian government did it in order to provoke outside intervention that would be limited in nature (and thus ineffectual) and would give the government (and its allies) a needed rallying cry (Western imperialism) to finish off the rebels.

    • Don Bacon says:

      On Libya, the US first claimed R2P, got a limited UNSC resolution which it then exceeded, going whammer-jammer, achieving regime change after claiming that was not the objective, crowed about it (“We came, we saw, he died”), and there were absolutely no repercussions. None, despite the fact that Libya is now in chaos and Americans are advised to stay out.

      We can say that the rebels played the US for a sucker, but it’s more likely that chaos was the desired objective in the first place, given the US proclivity for destabilizing every MENA country that it can. Divide to rule, that’s the ticket. It’s the law — of the jungle.

      Speaking of the law, none of this would be possible if the US had government lawyers who had some respect for law. But it doesn’t. Instead we have government lawyers who disrespect the Constitution and the law, and instead provide US criminal politicians the bases they need to do whatever they choose to do.

  4. Dan Joyner says:

    This is a great post, David, and represents well the legal difficulties of this situation. I wrote a piece about Kosovo in 2001, and have dramatically changed my view of the humanitarian intervention issue since that time. I still doubt that there is a formally established right of humanitarian intervention in customary law. But at the same time, I have a hard time condemning small scale uses of international force when circumstances seem to warrant them, as in the present case. For me, its the limited nature of the use of force that makes the legal problems seem manageable. I think that as the nature of a military intervention expands and becomes more serious and sustained, so the legal problems do and should multiply. As you know, in the pre-Charter era, a distinction was often made in custom between “war” and “uses of force short of war.” The UN Charter is often said to have done away with that distinction, but it is sometimes argued, and I have alot of sympathy for this argument, that there are times when justifiable military force falling below a certain threshold of intensity and duration, will legally fall below the prohibited standard in Article 2(4). To me, limited and targeted air strikes in answer to a use of chemical weapons by a government against civilians persuasively falls into that category.

    • Dan:

      I am disappointed that you take such a position. Limited and targeted air strike? Since when we have had anything like that that stayed “limited and targeted?” As Don Bacon pointed out, we were told and promised the same for Libya, and we all know what happened.

      There are forces at work that will not allow “limited and targeted” stay so, even if one can somehow justify them. Israel wants a long civil war in Syria so that Golan Height will never be mentioned by anyone. Saudi Arabia, Qatar, and UAE want Assad to go because they want to confront the “Shiite Crescent,” i.e. Iran/Assad/Iraq/Hezbollah. US hawks also want the same. There are simply too many different types of forces at work to allow a “limited and targeted” airstrike.

      And this is while it is not even clear who used what. Based on what I have read and seen on video clips, it looks to me a crude provocation by the “rebels.” At this point in Time, the Syrian regime had no incentive to use CW. It has the upper hand in the battle fields, and is slowly taking back significant territories.

      • Jay says:

        I am extremely disappointed!

        Without a security council resolution authorizing force, the US and allies do not have a leg to stand on. Syria is not a party to the Chemical Weapons Convention. Syria is a party to the Geneva convention, but the legal language has not historically been applied to situation in Syria – I suggest a light reading of Eric Croddy (2005).

        Good lawyers not having law on their side like to argue the facts – as you well know. However, I tend to draw a red bright line so as to not get confused between legal and “lawyering”!

        Is it unpleasant, perhaps extremely unpleasant, to watch the suffering. However, as Mr. Brahimi said earlier today, the law is clear – a legal strike requires a security council resolution. Perhaps an inconvenient fact, but no amount of lawyering will change that.

    • Johnboy says:

      DJ: “To me, limited and targeted air strikes in answer to a use of chemical weapons by a government against civilians persuasively falls into that category.”

      Can I just point out that this requires some persuasive evidence that these CW attacks were perpetrated by the Assad government.

      And can I also point out that at this point in time the USA is insisting that
      (a) there is no doubt – none whatsoever – that there was a CW attack, but is
      (b) rather more coy regarding any evidence that would demonstrate that Assad is responsible.

      Apparently the USA thinks that demonstrating that (a) is true leaves it free to act *as* *if* (b) is also true. Without, you know, *actually* going to the trouble of proving that (b) is true.

      So my question to you is the same as the one I posted previously: in this “sympathetic view” of yours what are the legal ramifications for going the thump under false pretences?

      Because it is pretty undeniable that the USA has a track record of going the thump under false pretences.

    • Don Bacon says:

      “In the present case” there is no proof of wrongdoing by Syria. Are elective wars now to be based upon YouTube videos?

      SecState Kerry, in his remarks yesterday, never said that that Syria conducted a chemical weapons attack on August 21. It was all emotion and innuendo. What’s lawful about that?

      Next, you watch, the US will come up with audio tapes purporting to indicate Syria military leaders plotting the attack. The CIA is working on them as we speak. How long can you go, America, in justifying yet another destabilizing, killing war?

  5. thirdnews says:

    Dan Joyner, I’m curious how the manner of this week’s deaths negates our lack of intervention on the first 100,000k?

  6. Thanks David for this great and timely post. While I agree that the international community must respond to the alleged chemical weapons’ use, and that the UN (SC) rout is the strongest and possibly the only option, I do not see that the use of humanitarian intervention (HI} must be on the table. As far as I am concerned the humanitarian intervention issue is dead and buried when dozens of countries rejected it during hte Kosovo crisis; the reason why the notion of responsibility to Protect (R2P) was emerged was simply because HI was not accepted as a norm of international law. I see R2P as a political concept which may, or may not, fit on to the notion of erga omnes obligations of states and the duty of the international community to act to uphold such norms (as stated in the Wall Advisory Opinion). The other possible legal ground concerns regional action, which is against unilateral military action as it involves several states and the organisation they participate in.
    I don’t particularly agree with your proposition that a grave crimes committed in a civil war situation may give rise to unilateral lawful use of military force. There is no evidence to support that. The evidence we have suggests that the UNSC considers such grave violations of international law as a threat to peace and security, and thus authorises peacekeeping, peace enforcement, under the auspices of the UN or regional organisations such as the AU.
    I am not a fun of war but if it is true that the Syrian Government has used chemical weapons there must be a consequence for it. Whether that consequence is war or something else must be decided by the UN SC. If the Council fails to do something about this that will witness again the ineffectiveness of the international order to respond to such dreadful things similar to other cases in the Middle East, Africa, etc. In any event, there must not be a rush to bombard Syria; any action ought to be based on solid evidence and legal authorisation from the UN SC.
    Be that as it may, great articulation of most of the issues and controversies.
    Best regards

    • David P. Fidler says:

      THE HUMANITARIAN INTERVENTION DEBATE

      You have articulated one of the strongly held positions in this debate–that international law does not recognize humanitarian intervention as a legal option absent Security Council authorization, even in cases involving egregious acts producing large-scale atrocities in violation of other rules of international law. My reading of state practice on this issue in international law is that the humanitarian intervention option has never been that clearly foreclosed. We are replaying what is a familiar (and seemingly never resolved) controversy in international law in connection with the Syrian chemical weapons incident. All the arguments in this string of post/comments have been made before, for example, during the Kosovo crisis and in the development of the R2P principle–and, yet, here we go again.

      BUT WHAT IF THE JUSTIFICATION FOR MILITARY ACTION IS NOT HUMANITARIAN INTERVENTION?

      If there is a new wrinkle to this debate emerging from the Syrian incident, it might be that the justification for military action is not humanitarian intervention but enforcement of the chemical weapons prohibition in international law. In other words, the rationale for military action here is not “>100,000 dead + a chemical weapons attack on civilians'; rather, the justification might be simply the chemical weapons attack on civilians.

      Imagine that the Syrian conflict was in its initial stages, without more than six digits dead, and this chemical weapons attack occurred at this early moment. I suspect that the US, France, Britain, and Turkey would be making arguments about the need for, and legitimacy of, military response even without SC authorization. Or, the international legal prohibition on chemical weapons use is too important to leave to the vagaries of SC politics.

      Given the rhetoric surrounding this episode, from the drawing of the chemical weapons “red line” to the intense focus on the violation of the chemical weapons taboo, are we watching a new exception to Article 2(4) emerge that is not based on the humanitarian intervention basis? Food for thought, or, more likely, food for another food fight among international lawyers . . . .

      • Johnboy says:

        “are we watching a new exception to Article 2(4) emerge that is not based on the humanitarian intervention basis? ”

        The alternative, of course, is that we are watching the USA preparing to carry out an illegal act.

      • David P. Fidler says:

        At least in my reckoning (based on what’s in the news), it would be the US, France, Britain, and Turkey (and perhaps other countries who have not been so vocal) preparing to support and carry out the military response, not just the US.

      • yousaf says:

        That would not make it any more legal.

      • David P. Fidler says:

        Correct, particularly if you believe that the only justification for a military strike is SC authorization. If, however, one believes that international law leaves room for military actions in circumstances that do not require SC authorization, whether the military action would be unilateral in nature or supported by a number of countries is legally relevant.

      • One of the reasons why the issue is “seemingly never resolved” despite overwhelming opposition against it the position held by the US, is chiefly because the United States and its handful of allies do not respect the formal interpretation of international law which is clearly non-interventionist. We might have lawyers that do legal gymnastics, but what you are saying can be summed up as follows:,since the US and its allies don’t defer to any authority, it is legal what they do. That is what I think it essentially comes down to. An etiquette for cannibals. Because allowing one to act unilaterally, is to allow all. And so the question of use of force for a range of things happening in the world at this very moment, becomes subject to interests and partisan interpretations, and it will come to rest ultimately on power. To enforce an international norm such as the prohibition against chemical weapons would require going through the UNSC, precisely to check unfettered power. And war is not a default option against the use of CW. Why should it be? It shouldn’t be! It does beg the these questions though: how should hypothetical states respond to the cluster bomb shipments from the US to Saudi Arabia right now? Or the Israeli use of white phosphorous in Gaza in 2008-9?

        With regard to the by and large fraudulently applied “humanitarian intervention” doctrine or R2P-doctrine, it is clear in international politics, that its a tool in the hands of powerful states to marginalize the sovereignty of weaker enemies out of (universally) alleged human rights concerns. To sacrifice the principle of sovereignty out of dubiously alleged human rights concerns, reduces sovereignty to the prerogative of the states that have the most and best means of violence. Now, the “new wrinkle” generously confirms, that the US and its flux of allies are not interested in pursuing, and are not planning, a “humanitarian intervention”, but something altogether different, alleged to be the enforcement of the prohibition of CW use.

      • (2/2)

        Finally, I’d like to add, that if the UN SC fails to act in accordance with its obligations to respond properly, the UN GA can assert its duty by calling for the implementation of collective actions short of war.

    • Don Bacon says:

      I agree that the international community must respond to the alleged chemical weapons’ use

      What’s legal about responding to an “alleged chemical weapons’ use?” Nothing, that’s what. Are alleged criminals routinely to be punished now? A new twist on the law?

  7. yousaf says:

    The overall cynical strategy here seems to be to create a stalemate — either the rebels winning or Assad winning would be bad for USG:

    http://www.nytimes.com/2013/08/25/opinion/sunday/in-syria-america-loses-if-either-side-wins.html

    Seems to be replay of Iraq-Iran war: wear both sides down by alternatively helping one or the other.

    • David P. Fidler says:

      This string of post/comments has, largely, concentrated on international legal issues, but, as this op-ed in the Times demonstrates, other ways of thinking about this crisis carry more weight in policy circles, whether in D.C., Downing Street, or Damascus. Echoes, perhaps, of the cold words of the Athenian envoys to the leaders of Melos . . .

  8. Dan Joyner says:

    Several folks have responded to my comment above, and I’ll just respond here. This is a difficult question of law, and one that has implications for consistency in application to other comparable cases that may arise in the future. There is a school of thought shared by some international lawyers that Article 2(4) of the UN Charter should be viewed absolutely; to prevent all uses of force, in whatever circumstance, and undertaken for whatever reason, that are not taken in self defense as very limitedly defined by Article 51, and not authorized by the UNSC. To me, that is just an unrealistic, and ultimately legally unpersuasive interpretation. I’ve written about this at some length previously (e.g. http://docs.law.gwu.edu/stdg/gwilr/PDFs/40-1/40-1-Joyner.pdf) as have others. I do understand that moving away from that bright line, absolutist rule, opens Pandora’s box with regard to drawing legal lines around allowable uses of force. Sometimes these lines are argued to include humanitarian intervention (as I discussed here: http://ejil.oxfordjournals.org/content/13/3/597.full.pdf), counterproliferation-oriented pre-emptive strikes (as I discussed here: http://armscontrollaw.com/2013/05/07/syria-update-and-the-evolution-of-a-right-of-counterproliferation-oriented-preemptive-self-defense/), and the newer argument that David has mentioned about responding to uses of WMD. These are all contentious arguments, because they are rightly questioned for their potential use/abuse in other circumstances by “less well meaning” states. And I think those are important arguments. But in the end, I don’t think those arguments are sufficient to support what is simply an impractical absolutist view of Article 2(4). Sometimes international force has to be used in the real world. It is a challenge for states and international lawyers to create and refine rules that draw lines between lawful and unlawful international force. But I don’t think the answer to that challenge is to cling stubbornly to the intellectually pleasing, but ultimately unrealistic, absolutist interpretation of Article 2(4).

    • thirdnews says:

      You are right, Dan, the answer is not to “cling” to feel good legalese, but your limited/targeted air strikes solution is a substitution for a morality fix.

      The Syrian Civil War 100k death toll does not have less meaning because we refuse to attach an emotionally-provocative term to ‘bullet’, or ‘bomb’. Possibly, there was a case for intervention previously, but our involvement exasperates a proxy war.

      I have yet to understand how dropping bombs will selectively kill only the guilty, and miraculously spare children, and the many who are just trying to stay out of the fight. -They live in a very real world; citing and interpreting laws just ain’t

    • Don Bacon says:

      The problem, the Pandora’s Box problem, is that when a possibility exists to skirt a law then people, being human, will concoct all sorts of self-serving, baseless reasons for doing so, as in the current case of alleged, unproven, factless, chemical weapons use.

      I grew up in central Massachusetts. Working as a teen in my Dad’s Worcester print-shop, I was often tasked to walk down an alley to get coffee. Dead ahead of me on these treks was the Worcester County courthouse, with a slogan chiseled on its face previously stated by Chief Justice Rugg of the Massachusetts Supreme Court. I remember it well, I saw it so0 often.
      “OBEDIENCE TO LAW IS LIBERTY”
      Here ‘s a photo.

    • Johnboy says:

      Dan, I have to say that I am really struggling to understand your argument while (I think) is this:
      IF international law says that Going the Thump is illegal
      BUT the United States believes that A Good (if limited) Thumping Is In Order
      THEN international law has to be altered to accommodate the USA’s desire that Limited Thumpings Should Be Legal.

      Why, exactly, does the law have to be accomodating?

      What’s wrong with leaving that as “an illegal act”, and then leaving it up to the President to decide that Realpolitik trumps the Law to such an extent that he has to break the law to achieve the result he requires.

      That’s then his responsibility – which is why he holds the position that he has – but a responsibility that can’t be fig-leafed over.

      I’d much prefer a situation where the POTUS receives this advice:
      “We can do this, Mr President, but if we do then you will be a war criminal. Your choice.”
      than this:
      “Ignore the legalities, Mr President, because by our very actions we make it legal”.
      much less this:
      “Don’t let it worry you, Mr President, we’ll simply have int’l law changed”

      Because as far as I can tell just about the only thing that still acts as a break on most US Presidents is their desire to leave a mark on the history books, and “President Plod, Unindicted War Criminal” is not a chapter heading that most of them would like to see.

    • Dan Joyner says:

      I read over Blix’s remarks. I really disagree with any comparison of the current Syria situation to the Iraq 2003 situation. As I said above, to me the intensity of the proposed use of force has significant implications for considerations of legality. In 2003 the considered (and ultimately adopted) course of action was a full scale invasion and regime change operation. In the current case, you’re talking about sending a few cruise missiles targeting Syrian military installations, in a one-off display of force, to send a very consise message to the Assad regime that the use of CW against civilians will not be tolerated. The violence that the 2003 Iraq use of force did to Article 2(4) of the UN Charter is in an entirely different league to the violence potentially done by the proposed Syria use of force. I really think one is comparing apples to oranges when one tries to analogize these two situations and the legal analysis of them.

      • Heh, “limited”…

        You’ll find out. And you’ll find out I was right, “crazy conspiracy theorist” or not…And I’m quite sure you’ll ignore that fact once Israel is on the ground in Lebanon as well,

      • Johnboy says:

        Dan, I think you misread Blix’s remarks. IMHO he nails it in his first sentence:
        “The indications are certainly in the direction of the use of chemical weapons. Also, the circumstantial evidence points to the Assad regime carrying out the use of such weapons.”

        He is correct to point out that
        (a) determining that a CW attack has occurred is not at all the same thing as
        (b) determining that Assad is responsible for that attack.

        He continues:
        “As we’ve seen before, the political dynamics are running ahead of due process.”

        That is exactly right: Assad is going to be punished for a crime that has occurred, even though those that are going to dish out that punishment have not yet provided the proof of his guilt.

        Due process: that’s all that the Russians and the Chinese are demanding, and it is a perfectly reasonable thing to demand.

      • “a few cruise missiles”?

        U.K. Said to Examine Short Syria Submarine, Air Ops
        http://www.bloomberg.com/news/2013-08-28/u-k-said-to-examine-short-syria-submarine-air-ops.html

        Quote:

        The U.S. is planning to use Tomahawk cruise missiles against HUNDREDS [my emphasis] of Syrian targets, including some of Assad’s elite military units, if a strike is launched.

        End Quote

  9. Dan:

    The issue is not “feeling good” about opposing war, or have an impractical moral absolutism. In my view, the issue is the long track record of the countries that want HI in Syria, on the one hand, and holding responsible countries such as SA and Qatar that have funded the terrorists in Syria, on the other hand. These terrorists marginalized the true democrats in Syria.

  10. homayoune says:

    I would say, is it logical that a party to a dispute be at the same time prosecutor, judge and executioner? If your fundamental stance regarding the basis of the international relations is realism and “might makes right” you obviously wouldn’t find an intellectual objection to it. You can even easily explain other extreme state of affairs in the course of history. But is it possible to advance such an argument as a jurist? maybe as a strategist, but what about a lawyer?

    I dont have a training in law, but I believe that at least as a whole, the law strongly aims to be systematic and logical. When US, an adversary of Syria, is presenting an “evidence” of breach of humanitarian laws by her ennemy, isn’t it logical and rational to have these evidences examined and scrutanized in a court, in this case, according to the letter and spirit of the UN Chart, the Security Council. Otherwise what is the need of the international laws and in this particular case the UNSC?

    Since the end of the Cold War, the US feels herself bound by limitations that she mainly attributes to the international laws, the institutions that herself immensely helped create after WWII and ultimately to the logic and reason. She senses that her goals are increasingly hitting the wall of the post-WWII legal framework. And because of that she is increasingly trying to Shoulder her way out of it by either mis-interpreting those laws or simply ignoring them. Should in this case an independant lawyer or a jurist become party to this destructive enterprise?

    • Your comment connects to the part of this controversy dealing with the determination of responsibility for the chemical weapons attack. Having an independent court or judicial body review evidence to determine responsibility is an ideal type, but, for better or worse, we sometimes do not have this option in international law. For example, with the evidence it claims it has collected, where does the US government (or any other government) take the evidence for international judicial review?

      The Security Council is not a judicial body, and at least one member of the Security Council, Russia, has made it clear it does not believe the Syrian government is responsible. The UN inspectors currently in Syria do not have the mandate to assign responsibility, and they too are not a judicial entity. As far as I recall, Syria has not accepted the compulsory jurisdiction of the International Court of Justice (ICJ), meaning that it could only be brought before that court under some treaty relevant to this problem under which it accepted such jurisdiction. Syria is a party to the Geneva Protocol of 1925, but this treaty does not refer disputes to any international judicial body. Likewise, Syria is not a party to the Statute of the International Criminal Court (ICC), and the only way it could be brought before the ICC is through a referral by the Security Council–unlikely given Russia’s support for Syria. Syria is not a state party to the CWC, so allegations of chemical weapons use cannot be run through the OPCW’s investigative process (as, perhaps, a surrogate for a judicial inquiry).

      Further, conclusions that Syria has violated international humanitarian law (e.g., by using heavy weapons against civilians and civilians areas) have routinely been made by many states and non-governmental organizations without much controversy despite the lack of international judicial review of these accusations. Some people called for military intervention in the Syrian civil war on the basis of these violations before the chemical weapons incident, and these calls often did not demand independent judicial review of the allegations and evidence.

      So, this issue is, legally, more complicated than the US and other governments acting as prosecutor, judge, and jury because they want to ignore inconvenient international legal rules.

  11. homayoune says:

    Thank you for your reply.

    The UNSC is responsible “for the maintenance of international peace and security”. The current decision-making rules in this body is the way the WWII victors (US/UK/USSR) originally wanted it to be. Today, looking at the situation in Syria, it is obvious that a US military “intervention” will seriously harm and jeopardize peace and security not only in the region but also in the world. Therefore the legal decision to intervene should come from the UNSC. This is not the “ideal” way of functioning for the UNSC, it is the “normal” and lawfull way of functioning for this body.

    As far as the judicial body of the UN is concerned (the International Court of Justice) one of its two roles is “to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies”. Even if we consider the public display of humanitarian concerns by the US as the only reason for her intentions, a positive approach towards international law, and I insist these are laws that US was instrumental in establishing them, would be for her to seek at least an advice from the ITC before any action. This might not give her legality but, in case of favorable ruling, it will at least kind of legitimize its actions and at the same time fortify the International Institutions created to maintain peace and security in the world.

  12. homayoune says:

    “On advisory opinions by the ICJ, whether the evidence supports claims that Syria used chemical weapons is a factual question not a legal one”

    What about the following question:

    In your legal opinion can a military intervention in Syria for R2P reason while there is no UNSC agreement and a vote over there will be vetoed by 2 permanent UNSC member, be based on international law?

    • Certainly a legal question could be formulated around the legality of military intervention for R2P/humanitarian intervention purposes undertaken without the authorization of the Security Council.

  13. Fiorangela says:

    re: “Given this, and the nasty political climate between the White House and Congress, it is difficult to believe that Congress would declare war on Syria absent some development that would dramatically change the political calculations inside the Beltway.”

    + + +
    I disagree.

    Congress will show itself willing to go to war over emotion-stirring photos — damn the evidence; “Syria was too late in acquiescing to inspections.”

    Obama lacks the courage to resist a Congressional call for war.

    Congress is not in the business of studying the evidence and the law; Congress is in the business of staying in power.

    The voice of the does not sustain Congress in power, the force of lobby money does.

    + + +

    In my opinion, the best option for a rational as well as legally colored (or maybe just tinted) action regarding Syria rests in the military — isn’t that what the Beltway is telling us about Egypt?

    Nuremberg Principles have addressed the scenarios under which a warrior must refuse to carry out illegal orders.

    Just because Congress declares a war does not necessarily make that war legal.

    + + +

    Incidentally — over the past dozen years the US has waged war under the AUMF. What is its legal status in the present situation?

    • http://www.counterpunch.org/2013/08/27/forcing-obama-into-prolonged-syrian-war/

      “. . .Labeled the ‘surgical strike project”, according to one Congressional staffer, the organizers, as of 8/26/13 are blitzing US Congressional offices with “ fact sheets” making the following arguments in favor of an immediate sustained air assault. They are being supported by the increasingly anguished cries from neo-cons in Congress such as John McCain, Lindsey Graham . . ..

      The lobby’s missive details calculations why the project will succeed and turn out to be a political plus for Obama who is increasingly being accused, by this same team, of dithering. Bandar is arguing that Syrian threats to retaliate against Israel is only political posturing because Syria has never and will never launch a war against Israel, has no military capacity to do so and for the reason that Israel could level Damascus and the Baathist regime knows this well. . . .

      One of the most common phases being uttered by AIPAC to congressional offices this week are the words, “Assad’s massive use of chemical weapons”.

      Bandar has reportedly agreed that Israel can call the shots but that the air assault will be led by the US and involve roughly two dozen US allies including Turkey, the UK and France. The German weekly ‘Focus” reported on 8/26/13 that the IDF’s 8200 intelligence unlit bugged the Syrian leadership during the chemical weapons attack last week and that Israel ‘sold” the incriminating information to the White House.

      A group from Israel arrived in Washington on 8/26/13. It included the Director of the Political-Security Staff in the Defense Ministry, Jaj. Gen. (res) Amos Gilad, Director of Planning Branch Maj. Gen. Nimrod Shefer and IDF intelligence Research Department Director Brigadier General Ital Brun. After some intense discussions, the shared some of their tapes with US officials.

      The Bandar/AIPAC arguments being, pushed by this delegation and being spread around capitol hill as part of “Israel sharing its sterling intelligence” can be summarized as follows:

      The US must avoid half measures to pursue a limited punitive response to the CW use. What is needed is a sustained Bosnia style bombing campaign until Bashar al-Assad is removed from office. Giving in to that temptation would be a mistake.”

      + + +

      Still willing to put your trust in Congress?

      I say, it’s time to call out the Marines to remove the foreign infiltrators from the US Capitol.

  14. Don Bacon says:

    VP Biden, going overboard as usual: “Chemical weapons have been used. Everyone acknowledges their use. No one doubts that innocent men, women and children have been the victims of chemical weapons attacks in Syria. And there is no doubt who is responsible for this heinous use of chemical weapons in Syria: the Syrian regime.”

    The US is sure that a chemical weapons attack occurred — but doen’t know what the chemical was. At State today:

    QUESTION: — beyond a shadow of a doubt that chemical weapons were used, do we know what kind – what type of chemical weapons were used? Is it sarin? Is it nerve gas? Is it even worse than that?

    MS. HARF: I don’t have —

    QUESTION: What is it?

    MS. HARF: I don’t have additional details about that, Said. Again, the intelligence community will be sharing as many additional details as we can in the coming days.

    It looks like a slam-dunk, doesn’t it, as soon as the intelligence community comes through as they always have done.

  15. Don Bacon says:

    When should a violation of international law bring legal action, and when should it bring military action? Several people (mostly Africans) have been referred to the International Criminal Court for such transgressions, and their countries were not subjected to military action. They were not attacked with Tomahawk missiles which kill innocent people. Why is Syria different?

    The United States regularly commits atrocities in other countries, and nobody has raised a finger. But an alleged atrocity in Syria, even without proof, is considered to be a “threat to international peace and security. ” Why is that? Why is Syria different?

    Practically we know why it’s different. Syria is an ally of Iran, a long-time US enemy, and is a bridge to Israel’s enemy Hezbollah. But that’s politics, it’s not law. So legally, why is Syria different?

  16. Fiorangela says:

    The Franklin Lamb report noted by talking…. includes this claim:

    “Reportedly, striking military targets not directly related to Syria’s chemical weapons arsenal, hinges on three factors:
    —completion of an intelligence report assessing Syrian government culpability for the chemical attack;
    —continuing consultation with allies and Congress; and
    —the Department of States International Law Bureau preparing the justification under international law.

    As to #1, the Saudis and Israelis were first to report the news of use of chemical weapons in Syria; Saudi intelligence is said to have uncovered the Feb. instance, and Israeli intelligence revealed the latest instance.

    As to #3, apparently the “Department of State’s International Law Bureau” was initially created to monitor international NARCOTICS trafficking, then was expanded to cover other sorts of international crime.

    The Bureau has geographically defined sections; among other things, the Africa/Middle East Program (INL/AME)

    “INL/AME coordinates and works closely with various agencies including the Drug Enforcement Administration (DEA), Department of Defense (DOD), Department of Homeland Security (DHS), Agency for International Development (USAID), and Department of Justice (DOJ). INL/AME also coordinates with international partners and international organizations to maximize the impact of our efforts.

    INL/AME’s programs focus on developing law enforcement, justice sector, and corrections institutions that are responsive to the people they serve and promote shared interests in addressing transnational crime. Through partnerships with host government institutions, our programs enhance partner capacity to preserve justice and the rule of law, fight the production and trafficking and of illicit narcotics and the effects of drug addiction, tackle corruption, combat gender based violence, protect and secure borders, build correctional systems that respect human rights and counter the fostering of radicalization, and provide basic security services for their people.”

    http://www.state.gov/j/inl/ame/index.htm

    n view of Dr. Lamb’s reporting, and mindful of the spineless yet war-lustful nature of Congress & the Admin, look for a “none of the above” with respect to David Linder’s analysis, and for an expansionary interpretation of some facility of the INL/AME that will be utilized to support an attack on Syria.

  17. […] I follow-up on a thought I raised in a reply to a comment on my August 23rd post on international and national legal issues associated with possible military action against Syria in […]


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