Syria Update, and the Evolution of a Right of Counterproliferation-Oriented Preemptive Self-Defense?
Posted: May 7, 2013 Filed under: Nuclear 26 CommentsWell I’ve been listening to the news about Syria just like everyone else has. Things appear to be getting more complex by the day now, with the allegations by Carla del Ponte that it’s the opposition that has used Sarin gas; and the recent Israeli missile strikes inside Syria, condemned by Syria, Turkey and Iran. For the USG, knowing exactly what if anything to do about this huge political and security mess, and more importantly about the unfolding humanitarian tragedy for ordinary Syrians, has been difficult from the beginning. It now resembles a Gordian Knot, and I don’t envy President Obama his choices.
I thought I’d write down some thoughts about the recent Israeli missile strikes against what Israel claims were sites containing long-range missiles in transit from Iran, through Syria, to Hezbollah in Lebanon, who would then likely have used them against Israel at some point in the future. I really can’t penetrate the question of whether this narrative of the facts is correct. Like the Syrian chemical weapons situation, it’s very difficult to know what the facts are and whose version of them to believe.
But for the moment, let’s assume arguendo that the Israeli narrative is correct, and these military strikes by Israel inside Syria have been targeting, successfully, missiles in transit from Iran to Hezbollah, and that these missiles likely would have been used against Israel at some point. Turkey and others have said that these strikes by Israel are a violation of international law. Are they right?
Readers of this blog will recall that I wrote about the previous Israeli strikes into Syria, conducted for this same avowed purpose, back in January. See that post here. In the comments to that post, and in some other posts and comments to them lately, I’ve written quite a bit about my views concerning both what the lex lata (current law) is on preemptive international uses of force for counterproliferation and other reasons, as well as my views about when and how governments might legitimately consider acting in disharmony with that law. I wrote about the subject of counterproliferation-oriented preemptive self-defense from both a lex lata and lex ferenda (what the law should be) perspective in depth in an article in the George Washington International Law Review a few years ago. Even since then I’d say my views have evolved, and are still evolving.
In terms of the lex lata, I think Turkey is almost certainly right to say that these strikes by Israel inside Syria are in violation of international law. I can’t think of a persuasive justification under current law for striking at missiles in a warehouse in another country, that might at some point make their way to someone who might then shoot them at you sometime in the future. I don’t think this is covered by the customary law on anticipatory self-defense – and that’s even if you’re among those states and scholars (a majority in my opinion) who recognize this right in customary international law. See my recent brief discussion with Jordan Paust on this subject in the comments to this post by Dapo Akande over at EJIL: Talk.
That being said, as I noted in my piece about a similar strike by Israel into Syria back in January, if I put myself into the shoes of an Israel defense official at this moment, knowing what they know about how very likely it is that these missiles would indeed end up in the hands of Hezbollah, and in fact eventually be shot at Israeli cities including Tel Aviv, I have a lot of sympathy and understanding for why they are doing exactly what they are doing. And I would probably do exactly the same thing – a targeted strike on where the missiles are being housed in Syria, which is in the midst of a civil war and largely lawless, before they can be transferred to Hezbollah, and the moment to destroy them is lost.
Now, one thing I don’t want to be trite about is the fact that in this instance it appears that more than forty Syrian soldiers were killed in this attack. If that’s true, then it’s very lamentable. This would form a part of the law of armed conflict analysis of this strike, which is of course legally separate from the use of force law analysis I’ve been discussing so far. We’d have to know more facts about the incident to know if it complied with the law of armed conflict’s rules concerning discrimination and proportionality. And let me be clear about one thing – even in cases where I think it would be legitimate, even if not lawful under the jus ad bellum, to engage in international military force, there are no facts that would in my opinion excuse a violation of the law of armed conflict. So if these strikes violated the law of armed conflict rules on targeting, then they are unlawful and condemnable.
One more point I wanted to address, though, is the possibility that these strikes by Israel against sites in Syria, avowedly purposed in counterproliferation-oriented preemptive self-defense, might be contributing to the evolution in customary international law of a legal right to engage in such strikes. I know that these are contentious waters factually, but the legal principles here are well established. Customary international law can be created in areas like international use of force law, in which there are (thankfully) few data points, as long as there is state practice and opinio juris by acting states supporting the principle, along with general acquiescence by other states. In this way, use of force law is not unlike, say, the law governing shooting satellites into orbit. In both contexts there are relatively few states who have the capability to engage in the relevant state practice. If, therefore, among those states that do engage in the relevant state practice, there emerges consistent practice establishing a certain rule, and if it is accompanied by opinio juris of the acting states and, crucially, by the general acquiescence of the rest of the international community, a new rule of customary law will come into being.
This is the point at which the facts become highly contested in the context of a right of counterproliferation-oriented preemptive self-defense. Have there been sufficient examples of state practice establishing such a right? Has there been sufficient opinio juris expressed by those acting states? Has there been general acquiescence by the international community in the development of this rule? I expect that there are scholars who have written articles on this question – though I don’t know of any myself – engaging in a rigorous analysis of each question, using available empirical facts. And if there aren’t, then someone definitely should write one!
My own impression, based only on me sitting here thinking about it, is that we are likely not quite there yet on a number of vectors, but that such a right is likely emerging as a principle of customary international law. When Israel attacked Osirak in 1981 there was general condemnation of this act in the international community, including in the Security Council. When Israel launched a similar targeted attack on the suspected nuclear reactor at Al Kibar in Syria in 2007, there was nowhere near that level of condemnation. And in fact I think the facts probably support general acquiescence in that instance. Now with these recent strikes in Syria, there are a few regional states that are condemning them, but I doubt we’ll see much more generalized condemnation. In fact, I suspect a lot of silence and general acquiescence on the matter, because I think, like me, most people can understand where Israel is coming from here.
Iraq 2003 is a special case, and I wrote about it extensively in my 2009 book. It was, of course, not just a targeted counterproliferation strike. It was a monstrous, boots on the ground, regime change debacle, that started off with a – completely false as it turned out – counterproliferation objective. I think that this huge difference in context explains a lot of the condemnation associated with Iraq – which, believe me, I share in 100%.
I’m not going to take the time here to go through the empirical record systematically, and do the whole analysis. I’ll just say again that, while I don’t think there is currently a right of counterproliferation-oriented preemptive self-defense in the international lex lata, I do think that such a right is likely evolving through limited, targeted, instances of state practice like those we’re currently seeing Israel engage in in Syria, and the overall acquiescence of the international community in those cases.
Arms Control Law 
Like I said before, what’s good for the goose is good for the gander. Israel gets to bomb other countries as a form of “counterproliferation-oriented preemptive self-defense,” then so does Iran, China, Russia, etc. Can we live with those consequences?
Assuming that those targets were Iranian Fateh missiles, then using the argument that Israel has every right to defend herself against Hizbollah, has a circular logic understanding. Namely, Iran can claim that by sending those missiles to South Lebanon has every right to protect herself against Israel’s promised attack on the nuclear targets.
If international laws don’t have a plausible explanation to address this circular “preventive” (and not preemptive) argument, then we are in trouble with this new thinking across the globe.
Thats a fair point, and perhaps I should be clear that I’m not endorsing the development of such a right. I’m speaking descriptively here, not normatively. I think that such a right is evolving whether its a good idea or not. In some ways I see that its a necessary evolution of the law, in order to fill the gap between law and reality present in the current law. In other ways there are serious concerns, such as the one you raise, about what the scope and contours of the right would be, and whether there would effectively be any law left.
We are, of course, assuming here that international use of force law actually has a constraining influence on state behavior. I’m not convinced at all that it does, qua law. I think that it may, qua the norm underlying the law, which would likely exist even without the legal instrument of the UN Charter.
Just in case you’re wondering, this is the subject on which I have probably the most radical views, from the perspective of the international law scholarly community. On most other issues of international law, I would say I am fairly orthodox in my essential views. I think my views about use of force law were influenced heavily by my MA in international relations theory. And you can see this in my George Washington ILR article I cited to in the post.
“We are, of course, assuming here that international use of force law actually has a constraining influence on state behavior.”
Tony Blair sought legal advice, which he then had to hide, I guess, because it did matter before its fast-tracked evolution.
http://www.independent.co.uk/news/uk/politics/alastair-campbell-reveals-tony-blair-did-hide-iraq-war-legal-advice-7879756.html
At least one other (former) international lawyer does not heap “a lot of sympathy and understanding” on lawlessness.
Glen Greenwald: “No universally applied principle justifies the Israeli attack on Damascus. Only self-flattering tribalism does that.”
http://www.guardian.co.uk/commentisfree/2013/may/06/syria-israel-bombing-moral-relativism
I am fairly certain not even Dan would understand and sympathize with Syrian preemption of the Israeli attack by destroying the airfields where those bombers took off from. Am I being a bit of moral relativist. How could anyone equate the two things.
Glen defends my line of argument:
“But the real moral relativists are those who believe that the morality of an act is determined not by its content but by the identity of those who commit them: namely, whether it’s themselves or someone else doing it.”
A body of law that can ‘evolve’ beyond the absolutes of ‘thy shall not kill’ merely because the serially-lawless has broken it often enough, is either not law, or the meaning of the word ‘law’ has evolved beyond my humble capacity for comprehension.
I have to say that I agree with just about every point that Glen Greenwald makes in that opinion-piece.
Statement by the Coordinating Bureau of the Non-Aligned Movement on
the Act of Aggression Committed by Israel against the Syrian Arab Republic
on 5 May 2013
The Coordinating Bureau of the Non-Aligned Movement condemns, in the strongest possible terms, the act of aggression committed by Israel against the Syrian Arab Republic on Sunday, 5 May 2013 when Israeli warplanes carried out an air missile attack, targeting three sites of the Syrian Armed Forces, namely, northeast of Jamraya, Maysaloun and a paragliding airport in aI-Dimas area in Damascus and its suburbs. This aggression has caused huge destruction to those locations and to the civilian areas surrounding them, resulting in the deaths and injuries of scores of military and civilians.
The Coordinating Bureau of the Non-Aligned Movement considers this act a grave violation of the international law as it infringes upon Syrian sovereignty and constitutes a blatant violation of the purposes and principles of the Charter of the United Nations.
The Coordinating Bureau of the Non-Aligned Movement requests the UN Security
Council to shoulder its responsibilities by clearly condemning this Israeli aggression against the Syrian Arab Republic, taking necessary measures to prevent its recurrence and holding Israel accountable for this act of aggression and its consequences in order to avoid the deterioration of the situation in the region, which might lead to a large scale regional war that would threaten regional and international peace and security.
New York, 7 May 2013
Yes, this certainly goes into the mix of data points regarding acquiescence. Although I think we all know that this sort of quick NAM CB statement is more of a referendum on Israel and its existence generally, than a measured appraisal of this specific incident.
Is anyone aware of efforts to collect samples from the sites to check any U granules’ composition (e.g. from munitions) against that found at Al Kibar (the reactor site)?
Yousaf, this is a point that is well made.
One of the main arguments for claiming that the Al Kibar building was a nuclear reactor was that the IAEA found traces of uranium where the “uranium is anthropogenic, i.e. that the material was produced as a result of chemical processing”.
The IAEA dismissed the Syrian explanation, insisting that Depleted Uranium munitions don’t contain “chemically processed” uranium.
The IAEA is wrong: the USA has fed reprocessed (i.e. “chemically processed”) uranium back into their reactors and then extracted the Depleted Uranium to fashion DU-penetrators i.e. such munitions contain traces of anthropogenic uranium, and that was demonstrated repeatedly during post-Kosovo investigations.
Indeed, the investigators in Kosovo knew that the presence of such contaminants meant that the munitions were of US-manufacture, rather than from any European Merchant Of Death.
And if the US military has such weapons then so does the IDF…… it may be very interesting indeed if the Syrians invite the IAEA to sample the soil around those bombed out bases.
Yousaf, here is from Business Insider:
“Actually, it’s is still not clear whether the center, attacked in January, was hit again or not. Still, the building complex targeted during the night between May 4 and 5 could have been the research center’s back-up structure — used to continue scientific work.
Images of the site seem to show that no penetrating weapons were employed. No ventilation systems — typical of underground bunkers — can be seen, a sign that, quite likely, the target could have been a mysterious facility operating under cover, rather than a military installation.”
Read more: http://www.businessinsider.com/target-israeli-air-force-really-syria-2013-5#ixzz2So05DR1n
Thanks!
Can I just point out that the target of these latest strikes by the IDF don’t fit easily into the characterization of “Counterproliferation-Oriented Preemptive Self-Defense”.
The IDF took out these sites because they were storage areas for the latest model of the Fateh-110 missile, and Israel doesn’t find them worrisome because they are indiscriminate WMD.
Because, actually, these missiles are anything but indiscriminate.
The Israelis admit that they regard the Fateh-110 as a “game-changer” because it is vastly more ACCURATE than the previous generation of battlefield rockets.
That’s an important point, because it reveals that Israel targeted these missiles because they couldn’t stand the idea that
*if* Israel launched bombing raids on Lebanon
*then* Hezbollah would be able to retaliate against Ramat David Airbase.
Or, put another way, Israel didn’t hit these missiles for any reason of “pre-emption”.
Israel hit these missiles to PREVENT Hezbollah from having a similar capability that they themselves already possess i.e. the ability to precisely target the military assets of their opponent.
That’s a “preventive attack”, not a “pre-emptive attack”.
for more on the distinction:
http://walt.foreignpolicy.com/posts/2013/05/02/creative_writing_at_the_wall_street_journal
“May 08 2013
WASHINGTON (Reuters) – Israel warned the United States in recent days that Russia plans to sell advanced ground-to-air missile systems to Syria despite Western pressure on Moscow to hold off on such a move, the Wall Street Journal reported on Wednesday.
The newspaper said U.S. officials had confirmed they were analyzing the Israeli reports but would not comment on whether they believed the sale of S-300 missile batteries was near.
No comment was immediately available from officials at the Pentagon or U.S. State Department.
The government of Syrian President Bashar al-Assad has been seeking to purchase the advanced S-300 missile batteries, which can intercept both manned aircraft and guided missiles, from Moscow for many years.
Western nations have repeatedly urged Russia to block the sale, which they argue could complicate any international intervention in Syria’s escalating civil war. . . .”
= = =
Am I reading the United Nations Charter too simplistically?
-Members of US Congress and of US State Dept. have repeatedly declared that “Assad must go” in order for the Syrian people to be able to establish a democracy (!).
-The above Reuters report suggests that Israel (and implicitly USA) claim the right to arm themselves as they see fit, and also to determine the level of armament/defense capability another sovereign state may possess,
-USA, Israel, and other western states also claim the right to decide who should govern Syria.
But,
The UN Charter
–endorses self-determination of peoples (Article I, (2)) — Syrians should choose their own government rather than have outside nations choose for them — that is the principle Russia has been insisting upon since at least Jan. 2011.
-Prohibits intervention in domestic conflicts (Article 2, (7)); and
Prohibits the threat or use of force (Article 2, (4)).
Hillary Clinton’s State Department began interfering in Syria’s conflict when it was just a relatively low-level protest of poorer regions of Syria against the wealthier and elites. Clinton stated publicly that “once the business class becomes involved, Assad will lose his base of support, and he will either step aside or be removed.” The State Department deployed measures to bring about that scenario, including working through third parties to arm factions seeking to overthrow the government of Syria.
Isn’t that a violation of the UN Charter?
Well, yeah, that’s part of what Dan is trying to point out e.g. that the USA and Israel have taken upon themselves a “right” to decide what weaponry a country like Syria can possess, and if they decide that Syria can’t have *this* weapon or *that* weapon then they have a “right” to take them out in the name of “Counterproliferation-Oriented Preemptive Self-Defense”.
As you say, according to treaty law no such “right” exists, but if everyone remains silent whilst they keep doing this then it becomes a new norm of international behaviour i.e. it becomes int’l customary law that The USA and/or Israel Are Special.
Hi Johnboy, would you mind to email me directly please? Something I want to talk with you about. Thanks.
Thanks Johnboy. I guess I wasn’t sure if the double negatives in the title were legal distinctions or irony.
Chas Freeman made the point you emphasized, that Israel (and USA) ‘make’ law by violating law:
“As the former head of the Israeli Defense Forces’ (IDF) Legal Department has argued:
“If you do something for long enough the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries . . . . International law progresses through violations.”
A colleague of his has extended this notion by pointing out that:
“The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, then the greater the chance these principles have of becoming a valuable part of international law.” ”
http://www.thejerusalemfund.org/ht/display/ContentDetails/i/29130/pid/897
If I recall correctly, Patrick Tyler included the same quoted passage in “Fortress Israel: The Inside Story of the Military Elite Who Run the Country–and Why They Can’t Make Peace.”
Firoangela,
Your take on the UN charter is NOT simplistic. Its unambiguous language was part of the grand bargain that allowed the Security Council be accepted as the arbiter of war and peace despite its grossly unrepresentative structure. That language and its clear-cut outlawing of ‘aggression’ signed on 26 June 1945, is what WWII victors, at the height of their strength, bequeathed to the world.
The Soviet Union disintegrated without a war; USSR gave up occupied territory from East Germany, to Kyrgystan. This, instead of unrestrained vengeance after her defeat in Afghanistan. Bush senior was able to put together a huge coalition (which included Syria) to oust Saddam out of Kuwait. None of this would have been possible without the explicit language of UN charter constraining state behavior. The United States was a direct beneficiary of the, then normal, laws governing the world order, existentially so.
h/t casmii.org http://stopwar.org.uk/index.php/syria/2456-how-the-bbc-helps-pave-the-road-to-war-on-syria
BBC’s “Jonathan Marcus writes that Israel’s airstrikes are ‘designed to send a powerful signal’ (the headline: ‘Israeli air strikes: A warning to Syria’s Assad’). It is worth at this point noting that following the last Israel attack on Syria, in early 2013, Marcus also wrote that this was ‘in one sense pre-emptive, but also a warning’. It was also portrayed as a ‘signal’.
That such attacks are continuously reported as warnings and signals, as seemingly rational, and therefore it seems permissible, actions, goes further to normalise them. We might wonder how many attacks Israel would have to inflict on another country before Jonathan Marcus stops referring to the attacks as ‘signals’ and ‘warnings’?”
————-
I shudder to think how many ‘signals’ and ‘warnings’ the Soviet Union could have unleashed and regarded it as perfectly normal behavior given today’s phrases like ‘coalition of the willing’, and “Counterproliferation-Oriented Preemptive Self-Defense.”
Forget Syria. I am much more concerned for the future of US. What are the cold war victors, wallowing in economic lows, bequeathing to our grand children?
With reference to http://www.bbc.co.uk/news/world-middle-east-22454511
it appears more and more likely that US and Russia will put an end to the Syrian crisis. The flurry of diplomatic consultations in the last few days involving Egypt, Turkey, Qatar, Russia, US, Jordan and Iran suggests a deal is at hand and shall be implemented within weeks. It may well have +ve ramifications for US-Iran relations. Kerry’s appointment of James Dobbins is a good omen.
Folks who wished no more and no less than the destruction of Syria as a way of wounding Iran have been commensurately busy peddling evidence-free tales about chemical weapons, and committing acts of aggression to gin up a wider war to masque the reality that a hopelessly fragmented, jihadi-tinged, Qaeda-affiliated opposition has lost the war having already put intolerable refugee burdens on Jordan and Turkey.
This is Obama’s Eisenhower moment; tell UK, France, Israel and her apologists to butt out of Mid East; If there’s to be WWIII, it will be decided by bigger powers.
Excellent point. As for your comment about Ike, I suggest reading the book Ike 1956, which apparently Chuck Haggle during his nomination process, was handing out copies to certain Members of Congress.
To avoid the negative effects of these verbal gymnastics used to start wars (e.g. Germany v. Czechoslovakia) is why some energetic visionaries worked so hard in 1945 to establish the United Nations and its simple, understandable strictures against elective war.
To maintain international peace and security,
# All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
# All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
http://www.un.org/en/documents/charter/chapter1.shtml
“Counterproliferation-Oriented Preemptive Self-Defense” begone
I think I have trouble seeing beyond imminence, which just isn’t present in such cases. To the extent that I accept any anticipatory action in self-defence (and, like the world court, I tend to prefer sitting on the fence about it where possible), I can only accept it in cases of Caroline-style imminence. And I think that this is true of most states too.
As was oft discussed post the 2002 US NSS, without imminence ‘pre-emption’ is a green light to use force based on a subjective version of an unknowable future; and that can’t be the basis for using military force. The jus ad bellum is open to enough abuse already. Non-imminent pre-emptive self-defence would still further raise the possibilities for abuse. States know this.
While there may have been some tacit acceptance of, say, the Israeli action in 2007, I’m not sure this is enough to equate to opinio juris in support of a non-imminent Bush-doctrine style right (at least on anywhere near the scale required to establish even an evolving customary norm). Particularly as there has clearly been so much explicit rejection from states of the non-imminent version of pre-emptive self-defence post-2002. I don’t really see how a context of counter-proliferation makes any different to that, at least as a matter of customary international law.
With reference to Prof. Joyner’s article in the George Washington International Law Review, JUS AD BELLUM IN THE AGE OF WMD PROLIFERATION.
It seems to me that the ‘slippery slope’ is a powerful argument why international law regulating uses of force should not be deformalized, This very blog is citing the same (WMD related) reasoning for an attack on (alleged) conventional short range missiles.
Also, again in Prof. Joyner’s comment above, we find a good reason why “politically persuasive norms” is a very poor substitute for “legally binding rules.” If we can so easily dismiss the opinion of a 120-member non-aligned Movement not just as a mere “data point,” but categorize it (based on evidence-free assertion) as an example of yet another referendum on Israel’s existence, then we have opened the gates to endless arguments about politics, not law.
@johnboy
Coming back to discussion of Al Kibar and use of penetrating DU or nat U weapons — I saw on moonofalabama blog that Johnboy you mention transuranics — can you pls let me know the source of that?
http://www.moonofalabama.org/2013/02/some-new-bits-on-the-syrian-al-kibar-reactor-.html
The IAEA rejected the Syrian explanation because the IAEA insisted that they found traces of transuranium elements (a.k.a. transuranic elements) in their samples, and then dogmatically claimed that such elements are only found in reactors, ergo, they could not possibly have come from Depleted Uranium munitions.
The IAEA was wrong to the point of utter incompetency.
Not only that, but they had no excuse for being wrong precisly because prior UN-funded reports of DU munitions had unambigously found traces of transuranic elements in US-manufactured DU penetrators.
One such study was carried out by UNEP (UN Environment Program) in Kosovo, and this report:
[url]
contains this statement:
“The UNEP studies in Kosovo showed that the material in the DU penetrators
found there also contained traces of transuranic isotopes such as uranium-236 and
plutonium-239/240 which are created during nuclear reactions. This indicates that at
least part of the material in the penetrators had originated from the reprocessing of
nuclear fuel.”
What the IAEA didn’t know – or chose to deliberately ignore – is that the USA is unique in using spent REPROCESSED nuclear fuel for its Depleted Uranium weapons, and so if you examine a smoking crater and you find traces of transuranic elements then what you are looking at is a building that was demolished by a DU bomb manufactured by the United States Of America.
And – gosh! What A Coincidence! – Israel get its DU munitions from the USA.
============================
This is very interesting if transU elements were detected at Al Kibar — is there a personal or news src for that, Johnboy?
Israel has stated that they used “bunker busters”. DU is used for all “Bunker Busters”, despite that references to DU being used in them has been removed from official documentation. The removal of documentation does not change facts verified by US military officials. To wit:
Former Head Of Pentagon’s Depleted Uranium Project Dr. Doug Rokke On Depleted Uranium (Video) November 16, 2002 at University Baptist Church in Seattle.
“I was told to lie so that depleted uranium could always be used.”
It seems very clear to me that both thermo-nuclear bombs and DU were used by Israel in its attack on Syria May 5, 2013. Numerous veterans agree with my assessment. As pointed out:
“The prohibition has been the ability to conceal their use. Events in Iraq have proven such concealment to have worked effectively and when conclusive proof of nuclear weapons use was offered to the media and world scientific community, it was quickly “contained.”: ”
http://www.veteranstoday.com/2013/05/11/was-syria-nuked/
WHO ‘suppressed’ scientific study into depleted uranium cancer fears in Iraq – http://www.grassrootspeace.org/who_du_report.html