Neither Humanitarian Intervention Nor Self-Defense in Syria: A New Justification for the Use of Force in International Law?

As matters hurtle toward a military strike against Syria, the debate about the prudence and legality of such a strike is in full frenzy–and Arms Control Law has participated in this debate earlier and over the past few days.

Here, 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 response to the chemical weapons attack, namely that the international legal justification for using force against Syria is not really humanitarian intervention.

So, to continue this thought experiment, what might be emerging here is, in essence, a claim that use of chemical weapons on a large-scale provides an independent basis in international law for countries to use force against the government perpetrating such an illegal action.

As we have seen in the debate, including my August 23rd post, commentators have tried to slot a military response to the Syrian chemical weapons incident into existing exceptions to the prohibition on the use of force in international law, including arguments that such a military response:

  • Can only be legal if authorized by the Security Council;
  • Could, perhaps, fall under a broad concept of self-defense; and
  • Can be justified as humanitarian intervention not requiring Security Council authorization.

However, Security Council authorization is unlikely, and arguments from self-defense (even broadly interpreted) and humanitarian intervention encounter serious problems as justifications for the use of military force against Syria as a response to the chemical weapons incident. As between a self-defense argument and the humanitarian intervention argument, the humanitarian intervention argument appears to have more support, with the humanitarian intervention in Kosovo undertaken without Security Council authorization often considered the best precedent. The resolution the U.K. has introduced at the Security Council apparently seeks authorization for “all necessary means to protect civilians,” which links to the humanitarian intervention framing of the problem.

Although I understand the framing of the issue in this manner, especially given existing international law on the use of force, the humanitarian intervention argument does not fit this crisis well. The humanitarian intervention exception to the prohibition on the use of force is very controversial even when used to prevent or stop humanitarian atrocities. Even many supportive of the humanitarian intervention in Kosovo acknowledged it did not, or should not, constitute a strong precedent for a humanitarian intervention exception to the prohibition on the use of force in international law.

The path to the use of force against Syria is hard, however, to pave with humanitarian intentions. From the “red line” laid down by President Obama through the present crisis, the focus has been on the use of chemical weapons by Syria in its civil war. Although we do not know what the anticipated military strike will involve, public statements of the U.S. and other governments indicate that the military response will be limited in scale and duration, designed to deter any further use of chemical weapons, and is not intended to change the course of the Syrian civil war or effect regime change. Put another way, based on what we are being told, this military intervention appears surgically focused on shoring up the international legal prohibition against the use of chemical weapons.

Preventing any more use of chemical weapons would have positive humanitarian consequences in removing one type of weapon from the battlefields of Syria, but, as many have already argued, the currently stated purposes and objectives of the military response will not alleviate the humanitarian disaster the Syrian civil war has become. As has already been asked, is death and suffering from chemical weapons worse, as a humanitarian matter, than death and suffering from conventional weapons?

The anticipated military strikes will not, apparently, degrade the Syrian military’s ability to use heavy conventional weapons against civilians and civilian areas, which have been the source of much human death and suffering in this conflict to date. Nor apparently are the strikes designed to change the Syrian government’s and military’s strategies, tactics, and choice of weapons, except with regard to chemical weapons. Humanitarian protection, as an objective or outcome, is deliberately limited to use of a specific type of weapon. Put differently, but for the use of chemical weapons, we would not be debating humanitarian intervention any differently than we have since the Syria civil war started. More simply, it’s fundamentally about the weapon not the human suffering.

Following this thought, justifying military action against Syria flows most directly, then, from the importance of protecting the “chemical weapons taboo” in international law–the complete prohibition in armed conflict of the use of any chemical weapons. This prohibition contains within it not only the purpose of limiting the suffering war causes but also the core interests of states in eliminating chemical weapons from armed conflict. These core interests have coalesced multilaterally in a manner that makes this prohibition one of the most important rules in international law, an importance developed on the journey from the trenches of World War I, to the Geneva Protocol of 1925, and to the CWC of 1993–as enhanced by actions to prevent chemical terrorism (e.g., Security Council Resolution 1540).

Looking at the way the move to military action against has developed, the anticipated military response appears most deeply rooted in this prohibition and its fundamental importance in international relations. This prohibition is, then, the basis for justifying the legitimacy and legality of a use of force against Syria in the absence of a Security Council resolution.

But. wait, I hear people saying (or perhaps shouting), international law has not recognized such an exception to the prohibition on the use of force–there’s no state practice or opinio juris supporting this notion, nor does any treaty, including the Geneva Protocol or CWC, create any such exception. All correct arguments, but my point is that we are perhaps seeing unfold a rapidly emerging acceptance of a new exception to the prohibition on the use of force grounded in a critical rule of international law, the importance of which depends on its protection or, if you will, its enforcement, including through military means against violators. Otherwise, we are left with the contorting legal gymnastics necessary to make what is about to happen “humanitarian intervention” or “self-defense.”

This thought experiment has not addressed every issue, problem, pitfall, or potential “you can’t be serious” response raised by what it has suggested, but, being a speculative enterprise, pushing this idea farther at the moment might aggravate more than illuminate.

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62 Comments on “Neither Humanitarian Intervention Nor Self-Defense in Syria: A New Justification for the Use of Force in International Law?”

  1. Cyrus says:

    Well, if such new exceptions to the law can be unilaterally carved out by powerful states for themselves, then I think it is about time to be honest and stick a fork in the UN Charter’s prohibition on the use of force. At some point, these exceptions overwhelm the rule, and state practice in the last few years also does not support the UN Charter claims. But what’s good for the goose is good for the gander — can the US really accept Russia or China playing by the same rules? How about Iran?

    • Yes, the issues you raise are concerns related to any new exception to the prohibition on the use of force. Whether the US and its allies frame the expected military actions as humanitarian intervention, self-defense, or enforcement of the chemical weapons taboo, the “goose/gander” issue exists with what is going to happen. Perhaps, enforcing the chemical weapons taboo relies on an exception least subject to potential abuse, reducing the “goose/gander” problem. Teasing out a potentially new exception to the prohibition on the use of force also connects to concerns about the Security Council’s role in the UN Charter, underscoring long-standing concerns about the inability of the Security Council to act in the face of serious threats, be they humanitarian crises or the large-scale use of chemical weapons. For many, the UN Charter has had a fork stuck in it for a long time on many issues well beyond the prohibition on the use for force.

      • Cyrus says:

        But doesn’t this also imply a “purposive” reading of international law, to make it correspond to certain predetermined preferable outcomes on an ad hoc basis? And if it is purposive, then it just comes down to who has the power to define those purposes– so ultimately this becomes about power, not principle.

      • David P. Fidler says:

        All exceptions–accepted and controversial–have a purpose and correspond to a predetermined preference. Security Council authorizations, when given, address “threats to international peace and security;” self-defense permits military responses to armed attacks; humanitarian intervention to human rights atrocities. These purposes have been defined (as is usually the case with international law) through a mix of power politics and diplomatic negotiation of rules and principles. An exception based on the chemical weapons prohibition would be grounded in a multilaterally agreed principle that does not exist only by virtue of power politics. And, in terms of purpose, it would be less elastic than “threats to international peace and security,” self-defense, and humanitarian intervention, which have all proved, in their own ways, malleable and ad hoc in application largely because of power politics.

  2. Rene says:

    I disagree with the claim that the planned “military response [is] designed to deter any further use of chemical weapons, and is not intended to change the course of the Syrian civil war or effect regime change.”

    From what you read in the media, the strike will be against Syrian missile forces and fighters (and some command/control bases) because they are *potential* platforms for launching chemical weapons. Well, if you eliminate the government’s missiles, fighters, and command/control centers, then you’ve essentially eliminated the government’s edge in this war. For without these, the government is no more capable to fight than the well-armed rebels. In fact I think this is precisely the goal of the chemical weapon brouhaha: to provide a pretext to change the course of the civil war and ultimately to precipitate regime change.

    • You’re almost right. The US and Israel really don’t care much about “regime change”. What they want is Syria’s military rendered incapable of being an effective actor against Israel in an Iran war. This will enable Netanyahu to start an Iran war -something he cannot do now because if he did, Israel would have to cope with Syrian, Hizballah AND Iranian missiles. This would result in the Israeli population sitting in bomb shelters for most of every day, hurting the economy, and ticking off the electorate who might then vote the Likud fanatics out of office – something Netanyahu does not want.

      But if they can convince the US and NATO to take out Syria, then Israel can try to take out Hizballah in Lebanon again, more effectively than they did in 2006. This will clear the way to an Iran war – a “cheap war” for Israel once it need not worry much about Syria and Hizballah.

    • Yes, we will have to see how much pre-strike statements match up with actual military actions taken. One of the arguments made against broad readings of self-defense and the humanitarian intervention exception is that they are ripe for abuse as pretexts for other objectives–and any exception for responding to violations of the prohibition against use of chemical weapons faces the same problem.

  3. ” Although we do not know what the anticipated military strike will involve, public statements of the U.S. and other governments indicate that the military response will be limited in scale and duration, designed to deter any further use of chemical weapons, and is not intended to change the course of the Syrian civil war or effect regime change.”

    Yeah, right…like Libya was just supposed to be a “no-fly zone”…how did that work out in Libya for Gaddaffi?

    Limited? Surgical?

    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

    And what happens if Syria RETALIATES? In ANY way? Does anyone really believe the war will not escalate instantly?

    Despite Professor Joyner’s dismissal of me as a “crackpot conspiracy theorist”, the reality is that this war has been in the cards since day one. The entire purpose of the Syrian crisis is to provide cover and justification for an attack on Syria to degrade its missile arsenal so that it cannot be an effective actor against Israel in an Iran war.

    The entire purpose of this crisis is to enable Israel to do what it could not do in 2006 – – and to use the air campaign against Syria to cover Israel so it can attack Hizballah in Lebanon through the Bekaa Valley via Syrian territory while the Syrian military is pinned down by US/NATO air attacks for the same reason – to degrade Hizballah’s missile arsenal so it can not be an effective actor against Israel in an Iran war.

    I’ve said this for the last eighteen months and it will be proved true probably by end of the year. At which point Professor Joyner had better be ready to acknowledge that I was right.

    • Again, we will have to see how much reality matches rhetoric as the strike takes place and in its aftermath. Those who have little time of day for international law usually read these kinds of crises through geopolitical lenses, which reveal motivations connected to larger strategic problems or ambitions.

  4. Ian says:

    A rather bizarre, contrived article. The move to attack Syria is purely a matter of politics and not principle. To your point about the use of conventional weapons; if the US and its proxies of Saudi Arabia and Qatar did not provide weapons and foreign fighters then there would be no humanitarian crisis.

    The US and its allies can stop supplying weapons and tell their insurgents to attend the Geneva Conference – but this will not happen because the politics are to destroy Syria to protect Israel.

  5. Let’s not forget that there is next to ZERO evidence that the Syrian government is responsible for ANY chemical weapons attack. Meanwhile, the Syrians have pointed out that last year Turkey arrested members of the Syrian insurgency on Turkish soil with two liters of Sarin gas – obtained from Libya – the results of Obama’s LAST “intervention”.

    This is a powerful argument against legitimizing ANY such “intervention”, regardless of whether it involves chemical weapons or not – because it may result in the DISPERSAL and proliferation of chemical weapons rather than their containment.

    In other words, there is no “military solution” to the use of chemical weapons, whether in attempts to destroy them or, as the Obama administration is claiming, to “punish” those who use them.

    Since the Obama administration has been deliberately obstructing the UN investigation into the alleged chemical use, it is clear that it does not care about the use of chemical weapons by the INSURGENTS – which is much better documented than use by the Syrian military.

    This undercuts the notion that international law needs to be “updated” by “emergency military interventions” to “enforce” an international chemical weapons ban.

    Not to mention the current revelations from the CIA that the US deliberately assisted Saddam Hussein in the use of chemical weapons against Iran in the Iran-Iraq war. Does the word “hypocrisy” ring a bell?

    If you’re going to ban chemical weapons, then ban their POSSESSION, not just USE. Since this has been an utter failure in the case of nuclear weapons, specifically Israel, India, Pakistan and North Korea, due to the geopolitical biases and machinations of the major powers, I would say it’s a pyrrhic endeavor to do so for chemical weapons as well.

    As long as international law is IGNORED by the major powers for their own geopolitical gain, it’s nothing more than an academic exercise.

    And it CANNOT be used RETROACTIVELY to justify the present military intervention. Nor can the present military intervention be used to RETROACTIVELY justify some expanded interpretation of the use of military force.

  6. yousaf says:

    We don’t know who ordered and carried out the CW attack:

    http://m.apnews.com/ap/db_308671/contentdetail.htm?contentguid=JbHHmUar

    • Right, the argument in favor of a “chemical weapons” exception to the prohibition on the use of force does not eliminate the requirement of establishing responsibility for a chemical weapons attack. We might learn more today about what the US, UK, France, and Turkey have in terms of intelligence.

  7. homayoune says:

    If I understand correctly, your argument is:

    there is a small opening in the current framework of the international legal system that authorizes a powerful state to take, unilaterally or within a coalition, military actions against another state which she accuses having violated CW customary prohibitions, even when this is disapproved by UNSC, .

    Then, if we generalize this, as a legal rule perhaps, we might say that any state accused of breaching any principle, treaty or convention important to safeguard, say Israel and the 4th Geneva convention for example, can be found in violation of a fundamental international prohibition, say collective punishment of civil population under occupation, by an outside power, say Iran, which then can legally and legitimately correct this dangerous precedent by the use of force against the military capabilities of the accused state without having breached any international law.

    • What you describe, conceptually, is basically the humanitarian intervention rationale for alleged violations of international humanitarian law on a large scale. My thought experiment on the chemical weapons prohibition does not generate the hypothetical argument about international humanitarian law you raise. It already exists as an argument in international law (with all the controversies that come with it), and has existed for a long time, as evidenced by the history of debate about humanitarian intervention (and then R2P) in international law. In other words, we do not need to generalize from my thought experiment to analyze the scenario you describe.

      Further, my thought experiment on the chemical weapons prohibition does not mean that a use-of-force exception exists, or should exist, for violation of “any principle, treaty or convention important to safeguard.” My proposition was that the prohibition on the use of chemical weapons has achieved, multilaterally and through instruments of international law, a status of sufficient importance that enforcing the prohibition is critical, including by military force when a state has used chemicals weapons on a large-scale against civilians. I understand that people might differ on whether the prohibition on use of chemical weapons has achieved that kind of status in international law, but a case can be made that this prohibition is one of the most important legal principles connected with managing international and non-international armed conflict–an importance that should not be entirely subject to the geopolitics of Security Council processes.

      We can, of course, think of non-military means of enforcing the prohibition on chemical weapons use, but some of these options also depend on Security Council agreement. For example, we could imagine the Security Council agreeing to refer the allegations of chemical weapons use by the Syrian government to the International Criminal Court for investigation and, if warranted, prosecution. This option could provide a way for the norm against use of chemical weapons to be enforced without resort to military force, but, in the present circumstances, it is difficult to see Russia and/or the US/UK/France showing sufficient interest in such an option.

      • Cyrus says:

        I’m pretty sure that everyone would agree that enforcing a prohibition on the use of chemical weapons is an important goal, however the question is how one can go about making ad hoc exceptions to what are supposed to be major international rules, namely not to start wars to resolve disputes. If we go around making exceptions like this for sake of the l cause-du-jour, there will be more exceptions than rules left! It seems like even now, the existing rules (which require UNSC authorization for use of force) are already being ignored anyway…

      • Although I don’t think the international legal prohibition on the use of chemical weapons is merely the “cause-de-jour,” my thought experiment does run headlong into the critique you describe–the problem is the exceptions to the prohibition on the use of force, so, dude, why are you talking about yet another exception, even if your exception is less elastic than either self-defense or humanitarian intervention have proved?

        But, for me, this critique, and the (usually) accompanying view that only the Security Council can authorize force in circumstances not involving self-defense to an armed attack, takes us back to the long-standing disagreement about whether international law includes such an absolutist rule–a bigger debate in which my thought experiment is not even a footnote.

  8. Don Bacon says:

    the Syrian chemical weapons incident

    No proof of a chemical weapons attack has been offered.
    Obama, on PBS didn’t offer any proof, only a “conclusion”.:
    # We do not believe that, given the delivery systems, using rockets, that the opposition could have carried out these attacks. We have concluded that the Syrian government in fact carried these out.
    #And nobody disputes – or hardly anybody disputes that chemical weapons were used on a large scale in Syria against civilian populations.
    #We have concluded that the Syrian government in fact carried these out. And if that’s so, then there need to be international consequences.

    http://www.pbs.org/newshour/bb/white_house/july-dec13/obama_08-28.html

    • As I said in a previous reply to a comment, the argument in favor of a “chemical weapons” exception to the prohibition on the use of force does not eliminate the requirement of establishing responsibility for a chemical weapons attack. We might learn more today about what the US, UK, France, and Turkey have in terms of intelligence. I know as little as everyone else about what actually happened.

      • Don Bacon says:

        But you say “the Syrian chemical weapons incident” and there is no proof of that. There is some thought, for example, that it was a thermobaric weapon.

      • If we get sufficient information to evaluate what actually happened, we’ll be able to analyze it more accurately, If the death and injuries reported by NGOs and others turn out to have been caused by a thermobaric weapon, then my thought experiment on the chemical weapons prohibition will have proved a waste of time, a conclusion readers of this blog might have already reached without the need for more information.

      • Cyrus says:

        The justification for any intervention based on CWC use would revolve a great deal around finding objective, reliable and verifiable evidence of that CWC use. That presents a significant proof problem. How confident are you that such information can be obtained, in any scenario and not just Syria, which is deemd sufficiently accurate and free from manipulation or distortion, as to justify the use of force?Who decides this?

      • Yes, the “who decides?” issue is important and difficult–always has been, always will be. In this situation, the US/UK/France/Turkey appear to have concluded the Syrian government is responsible. Syria and Russia are equally vociferous in denying any such responsibility. China does not care because it seems opposed to military action no matter what the evidence reveals. I have no magic solution to this conundrum, and I understand the conundrum does relate to the proposition in my thought experiment and might, in the view of some, undermine its credibility.

        We don’t have authoritative mechanisms in international law to make the “who decides?” issue go away. Although perhaps not entirely on point, here is what I wrote in a reply to a similar-ish comment on the “Now What?” post from Aug. 23rd:

        “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.”

  9. Don Bacon says:

    This was an interesting exchange at State yesterday, that the President of Syria is responsible for any atrocities that may be committed by Syrian troops. It’s a responsibility not shared by western heads of state. Bush, Obama and others should be thankful for that.

    QUESTION: How can you hold [Assad] accountable regardless of where the command and control is? If the command and control doesn’t rest within him or his people below him in the food chain, how do you hold him responsible?
    MS. HARF: Well, let’s be clear. The commander-in-chief of any military is ultimately responsible for decisions made under their leadership, even if command and control – he’s not the one that pushes the button or said, “Go,” on this. And again, I don’t know what the facts are here. I’m just, broadly speaking, saying that he is responsible for the actions of his regime. I’m not intimately familiar with the command and control structure of the Syrian military. I’m just not. But again, he is responsible ultimately for the decisions that are made.
    QUESTION: So it doesn’t matter to you whether he personally gave the order? It doesn’t —
    MS. HARF: He is responsible at the same level —
    QUESTION: It doesn’t matter —
    MS. HARF: — either way.

    • Don Bacon says:

      One test of the viability of international law should be: Is it applied consistently?

      Obviously, given the above, compliance with international law regarding humanitarian intervention does not have a consistent meaning.

      • Nor, according to its critics, has the Security Council proved consistent in addressing “threats to international peace and security” and the relationship of such threats to international law, all of which forms part of the critique of the legitimacy of the role the UN Charter gives the Security Council. Yet, even in light of those concerns, most people acknowledge that international law provides the Security Council with authority to address what it perceives are threats to international peace and security. We live with the legal inconsistencies that Security Council politics produces.

        Similarly, inconsistency in the application of humanitarian intervention does not, in the view of its proponents, eliminate the possibility under international law of using force for humanitarian purposes without Security Council authorization. In international law (for those on this side of the argument), humanitarian intervention is an option not an obligation. So, we live with the legal inconsistencies that international politics produces.

        So, with both sides of this debate operating with alleged inconsistencies, we can conclude (being overly dramatic and binary here) that either international law is a joke (if consistency is the mark of international law’s viability) or we live in a very messy world.

  10. Dan Joyner says:

    Hi David, I’ve just read this, and I think its a very valuable contribution to thought about the development of law in this area. You are being very honest and rigorous here in really zeroing in on the intent element underlying the likely military strike, and I agree with your assessment. It is something quite different from humanitarian intervention as that concept has been classically applied to situations like Rwanda, Somalia, and Kosovo. So as an instance of state practice and opinio juris, when this strike does come I think it supports exactly what you say it does, which is not the classic idea of humanitarian intervention, but rather the development of a more discrete right to use force to respond to and deter the use of chemical weapons. And overall I still think that this would be a prudent and practically valuable deveopment in the law.

    • When discussing my thought experiment with a colleague, he said, “Well, it’s actually enforcing the chemical weapons prohibition plus a bit of humanitarian intervention–protecting civilians from further chemical attack.” In other words, perhaps we are looking at a hybrid justification for using military force without Security Council authorization. The chemical weapons element might, for some, legitimize military intervention for limited humanitarian reasons when, otherwise, they might have been skeptical about humanitarian intervention as traditionally understood. So, even with the hybrid justification, the key factor is the use of chemical weapons. But, as discussed in this blog and elsewhere, others would not be convinced that the violation of two critical principles of international law on armed conflict–the prohibition of chemical weapons use and the immunity of civilian populations from military attack–creates an exception to the need to get Security Council authorization of the use of military force.

      • yan says:

        What are the rationales for permitting state action on humanitarian grounds in violation of the normal procedure of first going to the security council before taking military action? To save lives quickly because the UN would take to too long because of its being too large a body to act quickly, or because a state was in a logistically better position than the UN body to render humanitarian aid? If these are the policies behind the exception, I find it difficult to understand how lobbing a few missiles at a country in order to degrade its military capacity or to prevent it from using chemical weapons falls under the legal category of the humanitarian aid exception. Since missiles in this situation would almost certainly not facilitate the rendering of humanitarian aid more quickly or efficiently than if the UN were to decide to do the same thing after being convinced of the need to militarily punish and/or impede the Syrian government for its war crimes, it doesn’t seem to be justified under that exception.

        Adding into the mix a legal justification based on the desire to prevent the future use of chemical weapons seems to me to be insufficient, on its own, with the humanitarian aspect of the mix removed, to justify what the United States and its allies are wanting to do.

      • The argument in favor of an exception to the prohibition on the use of force for humanitarian intervention is that, as historical practice illustrates, Security Council politics can block action to address humanitarian crises. So, the exception exists, proponents believe, because responding to humanitarian crises is too important to leave exclusively with the Security Council. While the British government’s legal opinion relied primarily on a humanitarian intervention justification, supported by responding to the use of chemical weapons, the US legal position appears to focus primarily on responding to the use of chemical weapons, supported by a collective self-defense rationale. So, in a manner echoing my thought experiment, the US is not relying on the humanitarian exception to the the prohibition on the use of force, but is primarily basing its justification on backing up the prohibition on the use of chemical weapons.

      • yan says:

        “[J]ustifying military action against Syria flows most directly, then, from the importance of protecting the “chemical weapons taboo” in international law–the complete prohibition in armed conflict of the use of any chemical weapons. This prohibition contains within it not only the purpose of limiting the suffering war causes but also the core interests of states in eliminating chemical weapons from armed conflict.”

        It is hard to see how the rationales of ‘limiting the suffering war causes’ and ‘the core interests of states in eliminating chemical weapons’ would be furthered by giving a right to states to UNILATERALLY act with military force against states which use chemical weapons. UN action, it seems to me, would be the best way to use force to achieve these ends. The interest in eliminating chemical weapons is one shared by the entire international community, unless the use of such a weapon is directed toward a particular state–in which case, self-defense and defense-of-others are already sufficient rationales for military intervention by individual states without first obtaining UN agreement. Leaving the right to make this decision with states who are not either defending themselves or others will generally increase the amount of wars in the world, which is contrary to the policy of limiting the suffering of war which the ban on the use of chemical weapons seeks to curtail. States will be inclined to put their interests above the interests of the UN if they are permitted to make the determination for themselves as a matter of law that a particular actor has used chemical weapons.

        So if you are correct that we are witnessing the emergence of a new rationale for unilateral military action, something should be done to oppose it or counter it.

      • David P. Fidler says:

        As is evidenced by the debate, an exception to the prohibition on the use of force connected to the prohibition on the use of chemical weapons is controversial, so you are not alone in worrying about it. The counter argument is that the Security Council option will produce no action or response to the large-scale use of chemical weapons by a government against civilians. For many people, allowing Russia and/or China to block ANY response in the Security Council is unacceptable given the importance of the prohibition on the use of chemical weapons. An exception permitting military action against perpetrators of chemical weapons attacks is also very unlikely to be an expansive exception because it is triggered by use of chemical weapons, something that happens far less often than crises that trigger humanitarian disasters or self-defense concerns.

      • Ian says:

        It would seem that the use of the UN Security Council for approval of military action is critical because the decisions made by the US in this case are ones of politics and not of principle. The US government has expressed its desire for a change in government in Syria and has encouraged Saudi and Qatar to supply weapons and fighters – against the UN Charter.

        If unilateral military action is allowed then these political motives will be disguised with so call humanitarian concerns – given the US support for Saddam’s use of chemical weapons and the US use of depleted uranium, etc it would seem that politics generally trumps principle.

        In addition, it will offer a mechanism for one side in a conflict to engage the US by carrying out false flag operations drawing in others into an internal conflict – external interference that is prohibited without consensus by the Security Council.

      • yan says:

        Yes, I understand that there is another side to this argument. However, as the situation in Syria demonstrates, permitting states to unilaterally act seems to include leaving the determination of what the facts on the ground are which may justify a unilateral action to the state that wants to do the action. Knowing states to be self-interested actors, this is the equivalent of leaving the fox in charge of the hen-house. Avoiding that situation is one of the primary reasons international law has evolved in the first place. Under your proposed rule, states will ‘determine’ using their own discretion, what the facts are, without subjecting that determination to verification to the international community, before they are allowed to act.

        If the concern is really the use of chemical weapons, states which believe that such weapons have been used could present that evidence at the UN in order that the international community be able to make an evidentiary determination. If the UN subsequently makes a determination that chemical weapons have been used, but then refuse to act, a rule permitting states to act unilaterally has greater justification.

        Otherwise, it seems to me, that history teaches us that states will be able to manufacture any story they want in order to justify their wars. This is a much greater danger, and a danger perenially encountered, than the use of chemical weapons. In view of that, I do not think the policy which justifies a CW exception makes much sense.

      • yan says:

        By the way, there is a good article on this subject over at the asil website right now: http://www.asil.org/insights130830.cfm

      • David P. Fidler says:

        A few more thoughts:

        You write: “Yes, I understand that there is another side to this argument. However, as the situation in Syria demonstrates, permitting states to unilaterally act seems to include leaving the determination of what the facts on the ground are which may justify a unilateral action to the state that wants to do the action.”

        Why is it acceptable for Russia, China, and Syria to make unilateral factual determinations but not the US and other countries? My point here is not to deny that the US has a higher burden of proof to justify military action; rather, it is to underscore that unilateral determinations of fact are happening on both sides of this debate–and I see no reason to privilege a Russian conclusion on the facts over an American one.

        You write: “Knowing states to be self-interested actors, this is the equivalent of leaving the fox in charge of the hen-house.”

        We have numerous foxes and hen houses here. Let’s at least acknowledge that other states beyond the US are acting in self-interest here, and in ways that are unsavory, especially for civilians living in the Syrian hen house.

        You also write:

        “Avoiding that situation is one of the primary reasons international law has evolved in the first place. Under your proposed rule, states will ‘determine’ using their own discretion, what the facts are, without subjecting that determination to verification to the international community, before they are allowed to act.”

        Yes, international law does function to ameliorate friction from states acting according to self-interest. But, as said above, Russia and Syria are also “determining” the facts according to their own discretion and interests, and are acting to deny and block approaches that might shed light on what happened. Russian and Chinese determinations, whether on fact or policy, have made it clear that the Security Council–as surrogate for the “international community”–cannot review and evaluate evidence impartially. Again, if the US seeks to use force, it has a serious burden of proof to shoulder, but, as I have written elsewhere in this string and blog, we don’t, in this situation, have any mechanisms credibly available for subjecting claims and evidence to impartial and authoritative scrutiny. Why? Because other countries have made their own factual determinations without subjecting them to any process of verification.

        You also write: “If the concern is really the use of chemical weapons, states which believe that such weapons have been used could present that evidence at the UN in order that the international community be able to make an evidentiary determination. If the UN subsequently makes a determination that chemical weapons have been used, but then refuse to act, a rule permitting states to act unilaterally has greater justification.”

        The British did table a resolution to the Security Council, but Russia and China refused to engage in serious deliberations, let alone be amenable to making an evidentiary determination. Now, the resolution raised many issues on which states could disagree, so it is not all about the evidence. But, Russia has prejudged the evidence as much as people are accusing the US of unilaterally deciding for itself what happened. Further, we will hear from UN inspectors whether chemical weapons were used (which Russia does not deny), but that finding will not include a determination of who is responsible. So even that evidentiary finding will have, I suspect, no impact on the unilateral determinations of all the major players in this crisis.

        We could flip this scenario around a bit as follows: If Russia believes chemical weapons have been used by rebels on a massive scale (as it has argued), and if Russia is committed to the comprehensive ban on use of chemical weapons in any armed conflict (as it claims it is), why hasn’t Russia brought its evidence forward for vetting in connection with a Security Council resolution to ban all assistance to rebel forces? Such a move would have a politically charged aspect to it, but Russia has a responsibility here, with the evidence it claims it has, to do more than nothing.

      • Ian says:

        The Russians did provide the UN evidence for rebel use of chemical weapons with appropriate chain of custody of samples. The US simply chooses to ignore the evidence as it chooses to ignore the Turkish arrests of Al Qaeda members with nerve agents – because these pieces of information do not fit the narrative of regime change.

        Professor Fidler, you can discuss nuanced arguments around various interpretations of the Law but as you point out each side has their own interests. The US and its allies are fundamentally already in breach of the UN Charter and International Law because they have been funding weapons and fighters to interfere in the internal affairs of another country, There is no Security Council ability to deal with these actions! The Chemical Weapons attack, no matter who carried it out, is simply an excuse to impose the US and Israeli interests on Syria.

      • David P. Fidler says:

        Ian,

        My suggestion is for the Russians to take their evidence and claims to the Security Council. They and the Syrians have made factual claims, with supporting evidence, up to this point. Not entirely without reason, lots of people are skeptical about information coming from these governments too. But, to use the approach people are applying to the US, let’s have that evidence before the Security Council and considered at that level. I don’t claim that the US will change its mind, but it would at least connect Russian and Syrian claims of evidence with the principles at stake here in a more significant way. And wouldn’t that be a Security Council debate for the ages?

        In terms of the assistance to rebels controversy, as I think I said in response to another comment early in this string or the one from the Aug. 23rd post, my “thought experiment” did not directly address that question. For every international lawyer arguing the US/Saudi/Qatar are violating international law by providing assistance to rebels, you’ll find an international lawyer arguing that Syria is in violation of international law in how it is conducting its part of the armed conflict, violations which Russia, as a principal arms supplier to Syria, might be aiding and abetting. There is no Security Council ability to deal with these international legal problems either. So, are we looking at all parties to this problem running amok through international law for geopolitical reasons linked only to self-interest?

        In terms of your question about posting of comments and replies, I try to approve and, where relevant, respond to comments on my posts. If you have had comments/replies not posted, let me know specifically what they are. I don’t see any from “Ian” that have not been approved or that have gone into the automatic “spam” filter.

      • Ian says:

        Professor Fidler, I guess in law you can isolate various elements to examine their legal aspects but in reality of course there is an holistic whole that provides the complete picture. The conflict only escalated once the US and allies interfered – a clear violation of lnternational Law. The response of the Syrian government has certainly been harsh – but they are fighting an armed insurgency. I believe that in Iraq the US completely destroyed towns like Falluja where there was resistance by the inhabitants – not foreign invaders like the Syrians are facing. As for Russia – they are in compliance with UN arms sanctions on Syria or are you claiming that is not the case/

        Russia provided its proper forensic evidence for a rebel chemical attack to the UN Secretary General:

        http://news.xinhuanet.com/english/world/2013-07/10/c_132526745.htm

        The US and allies simply dismissed it and ensured that it was pushed out of the media.

        The US has not presented any real evidence or facts , as the Intelligence report is full of caveats and relies on Youtube. A number of commentators have indicated that the symptoms displayed are not completely consistent with nerve gas – no foaming from the nose, no defecating, vomiting, etc. The US report skimmed over this with a caveat, but this is a serious issue. There would also be lots of people killed in their homes but no video was provided.

        Let’s see and review the evidence – the rush to military action smacks of a desperate attempt to influence the outcome of the war rather than for humanitarian reasons. As I indicated in my previous posts the US has used chemical agents and still has the world’s largest stockpile.

      • David P. Fidler says:

        Ian,

        I am not trying to minimize the importance of looking at this crisis holistically. My “thought experiment” addressed the development involving the alleged use of chemical weapons on a large scale against civilians. Nothing that happened in the Syrian armed conflict up to that point, and the controversies about the conflict, justify or explain what happened with chemical weapons–whoever is responsible. So, given its significance, it is right and proper to focus on this issue. We can debate the other issues too, including some of the statements people have made on both sides about the Syrian civil war before the alleged chemical weapons attack, but I zeroed in on one really important development that dramatically changed this crisis.

        We have news reports that Russia provided evidence to the UN, but my argument is that Russia has more responsibility here as to evidence than whining that the US pushed its evidence out of the media spotlight. Remember, the UN inspectors’ mandate does not include assigning responsibility for any chemical weapons attack. My suggestion is for Russia to take the evidence to the Security Council in support of a resolution to end assistance to the rebels. Let me say again, people have good reasons to be skeptical of Russian and Syrian claims about evidence and attribution in this case. My suggestion is one way to try to use existing mechanisms before military action is taken, because after that “red line” is crossed, we’ll be in a much more dangerous situation.

      • yan says:

        Hello David,

        What I am proposing is fairly simple: let any state actor that has evidence, on whatever side of this issue, bring its evidence to the security council for an evidentiary determination. If the evidentiary determination is that the Syrian government has used chemical weapons, and that the rebels have not, the question remains as to whether the security council will take military action. If it does not take military action at that point, it is reasonable for a state to act unilaterally.

        But first, let us have an evidentiary determination from the SC or the member states. Doing things this way minimizes the ability of states to act on manufactured evidence, and avoids the eventuality of the SC doing nothing because of the self-interest of states that oppose action.

        Shoot first, ask questions later, is not the way to a stable international community.

      • yan says:

        You indicate that there are problems with procedures in the SC or at the UN generally such that evidentiary determinations are being blocked. If that is so, then these procedures need to change so that state actors cannot readily or easily block them. Evidentiary determinations should be a special case, because as everyone knows, truth is the first casualty in war. If a state disagrees with an evidentiary finding, it can still avoid joining any subsequent resolutions made in light of those findings, or block SC military intervention, if such intervention is being contemplated, if it is one of the 5 permanent members. I certainly agree with you that neither side should get a pass in regard to being able to make its own evidentiary determinations when it wants to justify or prevent military action.

        It seems to me that making it easier for the SC to make these evidentiary determinations is a better way to do things than creating a new right for a state to unilaterally intervene with military force based upon its unilateral determinations in regard to the evidence. I don’t think even President Bush would have imagined that this was a legal possibility. If he did, he could have attacked Iraq without going to the SC at all, since Iraq had used chemical weapons. If my idea were in place, he would still have had to have gotten an evidentiary determination from the UN before attacking. In the case of Iraq the outcome would be the same, no doubt, since the use of chemical weapons by Iraq is undisputed.

      • David P. Fidler says:

        Yan,

        The gist of your last two comments is that this episode sheds light on a potential need to revise or reform Security Council processes in order to permit better vetting of information. I have two briefs thoughts on that proposition.

        First, the Security Council was never designed to be an objective fact finder. To move in that direction would fundamentally change it because improving its ability to review facts and determine accountability runs head-long into the veto the five permanent members have. Second, we know from previous efforts to reform the Security Council how very difficult major changes are to make because, again, of the manner in which five countries get extraordinary status and influence in that body.

        For me, the only way to move this crisis to a more objective fact-finding and attribution-assigning process is for the Security Council to refer the chemical weapons incident to the ICC for investigation and, if warranted, prosecution. This idea has its own problems, but it would be one way to use the Security Council, avoid military strikes, and not abandon the importance of the prohibition on the use of chemical weapons.

      • yan says:

        Well, thank you in any event for the blog. Lots of things to think about here. You know a lot more about how the SC works than I do. From my limited understanding, I think your assertion about the SC never having been intended to be an objective fact finder is probably entirely correct. It seems to me that the Syria situation [and Iraq, Kosovo, Grenada, Georgia, etc.] reveals that this should be remedied. It also seems to me that it wouldn’t be that difficult to remedy. The UN is on an independent fact-finding mission right now. It could also conceivably create committees, or have stand-by committees, prepared to evaluate the allegations of various states and make fact determinations. Having a stand-by committee agreed to before these crises happen seems good because states would have more difficulty objecting to the process once the crisis occurs: they already agreed to submit their evidence to the commission. In the alternative, your suggestion to use the ICC is very good, in my opinion. However, if this would necessitate a litigation-type process, that would not be so good, because the process might take too long, or be opposed for purposes of slowing down the process. There needs to be some kind of process which is reasonably efficient and which has more credibility in its determinations and likely objectivity than the process of states throwing unsubstantiated allegations at each other in the SC.

      • David P. Fidler says:

        Yan,

        Final thoughts: The UN fact-finding mission’s mandate is only to determine whether chemical weapons were used, not who did it. But, here, all five Security Council members appear to have already concluded that chemical weapons were used. So, the UN mission’s importance is perhaps not as great as people think, especially because it cannot answer the question that everyone is fighting over–who did it? Will this crisis, when it is over, stimulate interest in approaching future allegations of chemical weapons use differently? Perhaps, but we should not underestimate how strongly the five permanent members of the Security Council, and other states, protect their discretion and freedom of action when it comes to security matters and the use of force.

      • Ian says:

        While the UN investigators are not mandated to give an opinion on who carried out the attack their information can be quite helpful, especially as the OPCW is carrying out their process; which you suggested previously was not the case.

        They can identify whether this was a military agent like sarin or a homebrew toxic chemical (more likely to be made by the rebels), whether the rockets were the actual delivery vehicles or were placed by the rebels. They can also analyse the victims samples to see what did kill them. The fact that none of the victims in the videos are vomiting, defecating or foaming from the nose is inconsistent with sarin use.

        Previous Russian analysis of samples collected in the north of Syria identified a crude sarin like product, inconsistent with military product but something that Al Qaeda has produced in Iraq. Remember – Turkey arrested two Al Qaeda operatives with 2kg of sarin like material.

        Your comment about the members of the Security Council protecting their discretion and freedom of action may be true in the case of the USA and its allies – perhaps you can enlighten us when Russia and China have acted in this way? In any event acting outside the Security Council defeats the purpose of the UN – which the US does not seem to care about as long as its strategic interests are served.

        Given that the USA has instigated foreign wars since WWII that have been responsible for over 3 million civilian deaths perhaps the US should take heed of the UN Charter.

      • David P. Fidler says:

        Ian,

        The UN inspectors are using OPCW facilities, but the findings that emerge will not, technically or legally, be issued by the OPCW. Nevertheless, as you say, the UN inspectors’ findings might be probative for the “who decides” question. However, the Russian findings, US findings, and Syrian findings have not been subject to, and will not be run through, the facilities of the OPCW. So, we still may very well have disputes about what happened, let alone who did it.

        My comment about the five permanent members of the Security Council connects to the fairly uncontroversial observation that these five value the veto because it protects their strategic interests from Security Council decisions. That’s how the Security Council is designed, and how it functions. I doubt Russia or China would be any more willing than the US to relinquish its veto power because it preserves their freedom of action on their strategic interests. In terms of post-World War II state practice, if I recall correctly (and please correct me if I am wrong), the Soviet Union/Russia has cast more vetoes than any other permanent member of the Security Council. I don’t want to read too much into these kinds of statistics (especially given the shift from the Soviet Union to Russia), but the numbers indicate that, in all likelihood, these vetoes were not always issued to protect the integrity of the UN or the UN’s purposes. It is not a secret that the US does not, and has never, subordinated its determination of its national interests, especially on national security matters, to the UN. Neither has Russia nor China.

      • yan says:

        No, we should not underestimate that. However, their credibility and moral authority will be damaged if they should act in a manner contrary to evidentiary determinations signed off on by the majority of the UN, or the SC, or whatever body is used to make these determinations. From what I have seen, shame, for lack of a better word, is an important factor in the effective enforcement of international law. By contrast, your proposed rule would allow nations to unilaterally make and then act on their own determinations by waging war. This is a step backwards for the rule of law among nations.

  11. Don Bacon says:

    The US lap-dog Ban Ki-moon originally forecast that the UN investigation in Syria would take a fortnight or longer, but yesterday he was ordered by President Obama to remove the team from Syria post-haste. Reportedly the team will leave Syria on Saturday. The US doesn’t want the truth to get in the way of its illegal war plans.

    • I don’t know what the truth is concerning this episode. If readers are mainly interested in posts by people who know the truth, then I’m not going to be a very interesting or illuminating blogger on this topic and probably others. Sorry about that, folks.

  12. homayoune says:

    “…but rather the development of a more discrete right to use force to respond to and deter the use of chemical weapons.”

    My intention wasn’t to attribute a R2P case scenario and counter-argue based on that. The example of Geneva 4th Convention was just what it was, an example. My argument is, since you are constructing an evolving normal based on the states real world practice and since you question the legal mandate of the UNSC in those cases, there is no reason to limit the scope to the CW issue. You can include here any kind of customary, or even treaty or convention based, state behaviour related to the war and peace. In the sentence I took from Dan’s reply for ex., he could have easily substituted CW to Nuclear and put Iran as a target and still satisfy your argumentation:

    “…but rather the development of a more discrete right to use force to respond to and deter the existence of nuclear capabilities”

    • Cyrus says:

      This was exactly my point in the first comment — once we say that CWC use is a good reason to carve an exception to the prohibition on the use of force, why not other exceptions? Who gets to decide what exceptiosn should be recognized, when? (After all, lets remember that the same entity that wants to bomb Syria for chemical weapons use today, was helping Saddam develop and deploy his chemical weapons not so long ago.) This process of carving out exceptions then becomes an excercise in power politics more than anything else, as new exceptions are found which conveniently enough also happen to promote whatever geo-political ambitions are behind it. Sure, this was true of existing int’l law, but do we really need to make it worse?

      In fact, is this proposed exception to the prohoibition on the use of force, a solution without a problem? Do we know who has used CW in Syria yet? No. Is there some worldwide trend towards using CW? No.

    • We may have lots of reasons to limit the scope to rules of international law that have the kind of status in armed conflict that the prohibition on chemical weapons has achieved. Not every “kind of customary, or even treaty or convention based” rule related to war and peace has the status of the prohibition on the use of chemical weapons. The prohibition on the use of chemical weapons in armed conflict is part of a more comprehensive regime that prohibits not only the use of chemical weapons but also their development, possession, stockpiling, and transfer. We do not have the same prohibitory regime in international law for nuclear weapons–perhaps ironic, but international lawyers have to handle irony sometimes too. My thought experiment did not include in the exception I posited the legality of the use of force in response to the possession of chemical weapons. My proposition addressed the use of chemical weapons not the existence of chemical capabilities.

      Could people make an argument that the mere possession of WMD capabilities entitles other states to launch military attacks without Security Council authorization? I think people have already made these arguments (see Iraq war) without needing my thought experiment’s proposition as an entry point. And, concerning nuclear weapons, most of these arguments attempt to utilize broad, preventive self-defense arguments in the absence of Security Council authorization (see discussions about potential military strikes against Iran). I don’t think the proposition in my thought experiment related to chemical weapons use in an ongoing armed conflict makes Iran more or less of a target than it might already be.

      • homayoune says:

        This was a really lawyerly and smart reply which, obviousely as you can guess, can’t satisfy my intellectual curiosity (particularly when you are mentioning “status” which doesn’t seem to have, as far as I know, any objective definition in international law.) But, let’s rest our case here for the sake of not repeating circular arguments, from my side at least.

        Thanks for the replies.

      • Thanks for engaging in such a substantive, constructive way. You’re right too about “status,” which would deserve its own consideration generally and with respect to what my thought experiment posited.

  13. The main issue remains that, regardless of the “thought experiment” intentions, it’s based on 1) a real world case in which the target of the military intervention has not even been proven to have engaged in chemical weapons use, and in fact those who probably DID engage in such use are EXCLUDED from the discussion, and 2) the fact that any military intervention in order to prevent or “punish” the state which deploys chemical weapons will almost inevitably cause even MORE casualties, civilian and military, than the chemical weapons did due to the comparative nature of kinetic vs chemical weapons.

    In other words, this is strictly an emotional exercise. The prohibition against chemical weapons itself was an emotional exercise, as any military expert will tell you. And now the argument is being made that an extension to the circumstances justifying kinetic war – which is far more damaging than chemical weapons – must be made AGAIN for emotional reasons based on ONE incidence of the deployment of such weapons WITHOUT even identifying WHO deployed them.

    I call this an epic fail in reasoning, whether hypothetical or not.

    And by the way:

    EXCLUSIVE: Syrians In Ghouta Claim Saudi-Supplied Rebels Behind Chemical Attack

    http://www.mintpressnews.com/witnesses-of-gas-attack-say-saudis-supplied-rebels-with-chemical-weapons/168135/

    And I reiterate again that Syria has pointed to the arrest in Turkey of insurgents with Sarin gas allegedly from Libya’s stockpiles – apparently as a result of Obama’s LAST intervention.

    Given the utter ridiculousness of the concept that Assad’s military would order a chemical attack on the DAY that UN inspectors arrive and 17 kilometers from their hotel…well…

    And now we have the US claiming its sole evidence for Assad’s use is an ISRAELI SIGINT intercept? Seriously?

    • David P. Fidler says:

      This string has gone back and forth on the evidentiary and attribution issues to the point I don’t have more to say than I already have. I guess one last thought would be as follows:

      Given that Russia and Syria claim to have evidence that rebel forces used chemical weapons against civilians on a massive scale, and given the legal and humanitarian controversies associated with assistance to rebel forces, let’s have Russia bring its evidence to the Security Council in connection with a resolution in which the Security Council orders all assistance to rebels forces end immediately. Such a step would magnify attention on what Russia and perhaps Syria have said and provided (e.g., to UN inspectors). Such a step would demonstrate Russian seriousness about, and commitment to, the humanitarian and legal problems it sees with aid to rebel forces and the prohibition against use of chemical weapons in armed conflict. Moving in this direction would show Russia proactively defending important principles and turning the political tables on the US and pro-intervention countries. So, let’s have a look at what the Russians and Syrians have as evidence and apply the same scrutiny to that evidence now being applied to US, UK, and other countires’ factual claims. This proposal seems one way to push the evidentiary issue forward, even if it would not ultimately resolve the issue at hand (which as a number of people have pointed out isn’t about evidence at all on either side of the debate).

      • I agree Russia should do this. It would be interesting to see how the US reacts. Russia HAS provided some evidence of Syrian insurgent chemical attacks to the UN, according to some reports I’ve seen. I’ve seen nothing reported about the results of that action, however. I suspect they’ve been “blown off the front page” by the current situation.

        It will be interesting to see if we EVER hear about the results of the UN inspectors in Syria. It’s not clear how much actual investigation they got to do since they spent most of their time dodging snipers…and of course the US was VERY interested in getting them out of their after the latest alleged attack.

        Meanwhile, there are numerous stories today in the press from chemical weapons experts who are not convinced about either the agent, the extent of the attack, or the perpetrators.

  14. In other words, how much “conspiracy theory” does one need before legitimate suspicions are raised?

  15. […] as Prof. David P. Fidler recently wrote here at Arms Control Law, regardless of the general debate over the existence of a humanitarian intervention exception to […]

  16. yan says:

    Prof Fidler,

    I am wondering if your opinion has changed over the last few weeks in regard to the desirability of a new exception in international law countenancing the unilateral use of military force, now that clearer evidence of US motives for military action has emerged. I speak particularly of the plainer statements that a war against Syria is a proxy war against Iran and Hezbollah, and that the AUMF before Congress permits military action for an extended period of time, and not just for the purpose of a limited strike tailored predominantly to punishment for the use of chemical weapons.


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