Military Action in Syria as a New Form of Belligerent Reprisal

Friend of ACL Colonel Liron Libman has written a really interesting and valuable contribution to the discussions we’ve been having here the past few days regarding a potential use of force against Syria. I’m extremely pleased that he has allowed us to post it here.

Liron was previously the head of the International Law Department of the Israeli Defense Force.

——————————————————————————————

Military Action in Syria as a New Form of Belligerent Reprisal

By: Liron Libman

The recent chemical attack attributed to the Syrian regime has taken the toll of more than 1,400 civilians, including hundreds of children, according to a US government intelligence report. As the possibility of a military response is discussed worldwide, different opinions are expressed as to the possible legal justification for such a use of force.

Of course, the best justification would be a UN Security Council resolution, under Chapter VII of the UN Charter, authorizing the use of force against Syria for a specific purpose and stipulating the conditions and limitations on such a use of force. However, it is probably unrealistic to expect such a resolution, especially when considering the fact that two years of bloodshed in Syria have not produced even a declaratory Security Council resolution denouncing the regime for International Humanitarian Law (IHL) and Human Rights Law violations.

The question remains, then, can a military response against the Syrian regime be legally justified, without Security Council authorization?

The obvious candidate for such a justification is the doctrine of humanitarian intervention, as illustrated by the UK government communique about its legal position on the justification for a military intervention in Syria (released, of course, before Parliament voted against UK participation in the operation).

However, 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 the prohibition on the use of force against a state and its limits, it is difficult to fit the current situation into the humanitarian intervention mold. The rhetoric on both the cause for action, and the purpose of the intervention planned, is focused on the use of chemical weapons: the cause is the use of such weapons by the regime, and the purpose is to prevent or to deter the regime from further use of these weapons, prohibited by international law.

More than 100,000 people have died in the Syrian internal conflict to this point, many of them civilians. As many people wonder, is it allowed under international law to target your civilian population, as long as you butcher them with conventional weapons, such as tank shells and napalm bombs? Since the answer is negative, why is a military response deliberated only now? And how will the destruction of the Syrian regime’s chemical weapon stockpiles, or even the deterrence of the Syrian regime from repeating such an attack, protect Syrian civilians from deliberate attacks using conventional weapons in the future?

Indeed, this brought Prof. Fidler to suggest that perhaps we are currently witnessing the emergence of a new and independent exception to the prohibition on the use of force in international law – enforcing a fundamental rule of international law (the prohibition on the use of chemical weapon) by deterrence of violators.

What comes to my mind is the interesting analogy between such a rational in the jus ad bellum and an old rule of jus in bello: Belligerent reprisals.

Reprisals, in the words of the UK Manual of the Law of Armed Conflict (section 16.16), are:

“….extreme measures to enforce compliance with the law of armed conflict by the adverse party. They can involve acts which would normally be illegal, resorted to after the adverse party has itself carried out illegal acts and refused to desist when called upon to do so.”

The similarities between the possibly emerging rule (hereinafter- “the new rule”) and reprisals are:

1. Both are mechanisms designed to enforce IHL.

2. Both are based on the use of force against violators of IHL during hostilities in order to deter them from further violations, and thus may actually save lives, as opposed to enforcement ex post facto by holding perpetrators accountable, which cannot bring back to life even a single victim.

3. Both are based on the use of force in a way that exceeds the usual use of force during an armed conflict: in reprisals the act taken is usually illegal under IHL, and therefore outside of the regular lawful “toolbox” a belligerent possesses. In the “new rule” the act is taken by a third side, not a party to the ongoing armed conflict, therefore tilting the balance of power between belligerents.

Certainly, belligerent reprisals are a very problematic measure, rarely used. The ICRC’s Customary IHL study states (rule 145):

In the course of the many armed conflicts that have marked the past two decades, belligerent reprisals have not been resorted to as a measure of enforcing international humanitarian law, the main exception being the Iran–Iraq War, where such measures were severely criticized by the UN Security Council and UN Secretary-General… The reticence of States to resort to reprisals can be explained by the fact that they are ineffective as a means of enforcement, in particular because reprisals risk leading to an escalation of violations.

The ICRC further quotes Kenya’s Laws of Armed Conflict (LOAC) Manual:

reprisals are an unsatisfactory way of enforcing the law. They tend to be used as an excuse for illegal methods of warfare and carry a danger of escalation through repeated reprisals and counter reprisals.

However, one can see the advantages of the “new rule” compared to traditional reprisals:

1. It is not by itself a violation of IHL, “just” a violation of the jus ad bellum, thus, arguably, less problematic from a humanitarian perspective.

2. The enforcer is not the adversary, naturally to be suspected of ulterior motives other than preserving IHL, and more susceptible to motives like revenge. Rather, a third party not involved in the armed conflict. It is easier to trust such a third party to act with caution, impartially and proportionally.

If accepted as a new version of reprisals, one may borrow some important conditions from the old rule (all conditions taken, mutatis mutandis, from the UK manual, mentioned above, section 16.17):

1. It must be in response to serious and manifestly unlawful acts for whom the government of that state is responsible.

2. It must be for the purpose of compelling the violating government to observe the law of armed conflict – effectively serving as an ultimate legal sanction or law enforcement mechanism. Thus, if a party to an armed conflict breaches the law but then expresses regret, declares that it will not be repeated, and takes measures to punish those immediately responsible, then any action taken in response to the original unlawful act cannot be justified under this rule.

3. Reasonable advance notice must be given that military force will be used (is President Obama’s “red line” declaration enough?).

4. Other reasonable means of securing compliance must be exhausted before this measure can be justified (means like diplomatic pressure, economic sanctions, UN Security Council’s intervention).

5. The force used must be in proportion to the original violation.

6. It must be publicized. Since this measure is undertaken to induce compliance with the laws of armed conflict, any action taken must be announced as such and publicized so that the relevant government is aware of the reason for the otherwise unlawful use of force against it and of its own obligation to abide by the law.

7. As this measure will entail state responsibility, it must only be authorized at the highest level of government.

8. Action may not be taken or continued after the target government has ceased to commit the conduct complained of. However, when dealing with a pattern of unlawful attacks, it seems reasonable to demand positive evidence of a policy decision to abandon this course of action. The fact that a specific unlawful attack has ended and another one of a similar type has not yet began, is not enough.

As Prof. Fidler carefully notes, this is a preliminary “thought experiment” addressing unfolding events, not a statement of existing law. I hope I have added something to this experiment.

Advertisements

35 Comments on “Military Action in Syria as a New Form of Belligerent Reprisal”

  1. Cyrus says:

    Sounds to me like a very transparent attempt to justify the violation of international law on an ad hoc basis, cloaked in legalese.

  2. […] My Friend, Prof. Dan Joyner, has kindly agreed to post a piece I wrote on this issue in Arms Control Law Blog […]

  3. lironsblawg says:

    Cyrus,
    Seems to me you have a very strong view of what is right and what is wrong, so why waste time on legal discourse (or “legalese”, as you call it)?
    Certainly, the view that any use of force without UNSC authorization will be illegal can be supported by the plain language of the UN Charter. However, the view that international law is constrained by such a formalistic reading, disregarding practice and institutional problems is not the only view.
    In any case, my purpose was not to “justify” anything, but to add what I hope is a useful analogy to a new idea in the “marketplace of ideas”. I clearly indicated this is not a statement of existing law.

    • Jay says:

      Lironsblawg,

      It would be helpful if you could point out the precise nature of Cyrus’ argument that you found to be “formalistic reading”.

      I am confident that there is no need to lecture anyone here on the difference between “lawyering” and “legal”. Certainly a new framework for dealing with such humanitarian disasters can be built, by consensus, in international law. However, as of this writing, scholars of international law, including the special UN representative Mr. Brahimi, have unequivocally stated that a UNSC resolution is a requirement for a legal strike.

      Scholars of international law, including one or two on this site, have proposed thought experiments, have written discussion pieces, and have put arguments forward to suggest a framework. Nonetheless, none of these scholars, including those attempting to suggest a framework, are likely to suggest that a legally sound basis exists at this time. Care must always be taken to avoid mistaking a thought experiment with an an actual theory!

      The piece written by Mr. Libman is a good place to start with your own though experiment. One may ask, “what basis for a military strike exists now that did not exist when there were 10,000 casualties in Syria?” “Or 20,000?” “50000?” The answer is: no new basis! It should be kept in mind that Syria is not a party to the CW ban.

      The main challenge faced by the international community, absent a framework with clearly defined goals and basis for intervention, is exemplified by the Libya syndrome. The vote of the UNSC, explicitly provide to protect the civilian population, and implicitly guaranteed to member states as non-offensive, was used, in the view of a number of member states, for regime change!

      These may be dangerous precedences! Ask yourself, the next time Israeli jets bomb a Palestinian area and a number of civilians are killed, should R2P be invoked to justify a “limited” military action agains a few target in Israel?

      • Jay,
        You wrote: “Care must always be taken to avoid mistaking a thought experiment with an actual theory”. I absolutely agree. As I specifically stated, what I suggested was a possible road to explore, not a description of existing law.
        The fact that 100,000 casualties in Syria did not bring international military intervention, until the chemical weapons attack, is exactly the reason Prof. Fidler and I think that humanitarian intervention is not a good explanation to unfolding events.
        What I tend to see as “formalistic” is the view that practice cannot change the interpretation of the Charter. Prof. Haines, mentioning the “uniting for peace” resolution, reminded me what the ICJ said on article 12 of the Charter in the “wall” advisory opinion (see there).

    • Cyrus says:

      Its not a question of “feelings” about “right and wrong.” I have many feelings about many things I consider to be bad, doesn[t mean I get to twist the law in order to fulfill my idea of what should be done. But like I previously said, why all the rush to come up with exceptions? Is there a worldwide problem of unrestrained CW use? No. In fact we’re not even sure who used what chemicals in Syria, and yet we’ve already justified the attack there? Come on, this is unseemly.

  4. Professor Steven Haines says:

    I can sympathise with the thinking behind this proposal but I must refrain from giving it my support. It would, of course, be fine if mandated by the UNSC but that is not likely, of course. I do believe that some attempt ought to be made in the context of this current Syrian crisis to take the whole situation to the General Assembly under a Uniting for Peace form of reference. This has not been attempted and I believe it should be. The one problem that we are always going to have with the UNSC is the likely veto of both Russia and China….a UNGA vote could provide a means of achieving a degree of UN legitimacy. Whether we call the resultant application of force a form of humanitarian intervention quoting the so-called doctrine of R2P, a ‘measure short of war’ or a variation on a theme of ‘belligerent reprisal’ as suggested here, would be immaterial. But it must be achieved through a UN process. The ICISS R2P report eventually led to the ‘doctrine’ being incorporated in the World Summit Outcome and subsequent UNSCRs (in particular influencing those dealing with Libya) – but it actually reinforced the centrality of the Security Council in granting approval. Let’s try to remain within the UN process for this rather than dream up yet more ‘doctrines’ to justify a breach in the law as it stands.

    • Dear Prof. Haines,
      Thank you for your comment. An attempt to bring the situation to the GA under the “Uniting for Peace” resolution may be a good idea. I agree that military intervention without SC authorization should be a last resort. Since President Obama has delayed any operation anyhow, perhaps there is time to try this path. It is interesting to note, that the “uniting for peace” resolution itself is a good example of practice “evolving”, going very far, some would say, contrary, to the plain language of the Charter (article 12). This was acknowledged by the ICJ in the “wall” advisory opinion (para. 24-35, especially para 27-28).
      However, the question remains, if the path you suggest is exhausted without any results, are we to prefer protecting procedural international law over material international law prohibiting the use of chemical weapons?

      • Professor Steven Haines says:

        I have been grappling with this problem ever since I became involved in the discussions with the International Commission on Intervention and State Sovereignty in 2001. I was very much in favour of a way forward that would resolve the dilemma of a UNSC’s inability to produce a mandate in the face of humanitarian catastrophe. Unfortunately, as I argued in a piece I wrote for International Affairs – Chatham House – in 2009 (in a special edition marking the 10th anniversary of Kosovo), I believe that state practice since 1999 has taken the law in the opposite direction with the eventual World Summit outcome document reinforcing the central role of the UNSC……and the Libya case further reinforced that as well. Of course, for customary law to evolve there must be, by definition, a development of practice that challenges the legal status quo. If Syria had resulted in a further decision to deploy force without a UN mandate then, arguably, that would indicate another departure that might lead to a development of a customary nature. Interestingly, with the UK parliamentary vote and Obama’s decision to give Congress a say, followed by the pressure currently being applied in France that may force Hollande to go to the National Assembly, I am beginning to get the impression that domestic democratic processes may tie the hands of executives in future. This is, of course, unsatisfactory in many ways but I wait for the trend to play out. Ultimately, we have no sure legal way of enforcing material international law absent a UNSC mandate. I shall have an interesting time discussing this with my students when term starts at the end of the month! .

    • Cyrus,
      I am willing to accept your comment that the “keys to paradise” is a myth. It is obvious, from what you wrote, that you have personal experience from that time and place. However, to my understanding, it is a war crime to enlist children under 15, even as volunteers.

  5. Don Bacon says:

    The recent chemical attack attributed to the Syrian regime has taken the toll of more than 1,400 civilians, including hundreds of children, according to a US government intelligence report.

    This is a stenographic repeat of US propaganda.
    # There has been no evidence presented of a chemical attack. The US report includes only “assessments” with no proof. Kerry in his remarks kept saying “we know” but he didn’t know anything except speculations and assessments.
    # “Attributed to the Syrian regime ” — should be “alleged by the US” plus “regime” is an indicator of negative bias. All enemies of the US are “regimes.”
    # “the toll of more than 1,400 civilians, including hundreds of children” — The US draft resolution says 1,429, British Intelligence has said 350, the pro-rebel Syrian Observatory said 502 — nobody knows, it’s all allegations based on specious reports from anti-government terrorists.

    The coming report of the UN investigation, although the team was hustled out in four days and couldn’t stay longer, is needed to provide some facts. The US has already denigrated the UN team, declared that chemical evidence is unreliable, mandated that the UN team leave soon after it arrived, and said that the evidence won’t matter — which gives us some indication that real evidence won’t favor the US position.

    • Dear Mr. Bacon,
      I understand the facts are disputed. I used the neutral word “attributed”, and stated the source for the factual background in an attempt to remove myself from a personal determination of the facts. I am more interested in the legal questions, presuming the allegations against the Syrian Regime are right. Only time will tell who is right. Another question is what is the burden of proof needed for military intervention in such a situation.

      • Don Bacon says:

        I used the neutral word “attributed”

        What’s a “neutral word”?

        attribute
        1. To relate to a particular cause or source; ascribe: attributed their failure to a lack of preparation.
        2. To regard as the work of a specified agent, place, or time:

        This subject has come up before — “I’m only talking about the law and not the facts so it’s okay if I make up stuff.” And then the made-up stuff gets picked up, and repeated as fact.
        “A lie can travel halfway round the world while the truth is putting on its shoes.”

        I happen to have an obligation to truth. I wish that all others shared it.

  6. Denis says:

    Whew! Breathtaking stuff. Just the idea of an IDF colonel who has been described online in 2011 as advising the Israeli army on “how to proceed without taking International Law into account” writing a piece like this on how to proceed by dodging International Law gives one faith in the internet.

    I would note three specific problems with this analysis, based on the following assertions.

    1. “The recent chemical attack attributed to the Syrian regime . . .”

    Yeah, well, hold on a sec’, not so fast. That is not a fact, that is speculation based, apparently, on propaganda being disseminated by Government of Israel. Col Libman’s entire essay hangs on this speculation. If Col Libman were being objective here he would also be analyzing the alternative factual scenario: that the insurgents are the ones who gassed Gouhta, and he would ask whether a different “red line” or legal analysis is required for them. It is distressing to some of us more fair-minded people watching this Iraq deja vu unfold how one-sided the red lines and media analyses are with Assad viz a viz the insurgents.

    UK MP Geo. Galloway, for instance, has offered an alternative speculation: al-Qaeda is responsible for the attack and GoI supplied the CWs. There is other speculation pointing to Saudi Prince Bandar as providing the insurgents w/ CW. OK, almost any speculation is more plausible than Col Libman’s speculation that Assad would slit his own throat and invite a US attack by gassing his own people, and just two days after UN inspectors arrive to investigate other CW allegations.

    If GoI or Saudi are complicit, then does Col Libman intend that his theory of international law will lead to punishing Israel and/or Saudi, or is this theory limited to punishing errant Alawis?

    With respect, assuming that any CW event actually took place, there is reason to be skeptical of a piece by an IDF colonel, given that it is GoI, by all accounts I have seen, that is the basis of Col Libman’s story that Assad’s rockets were responsible for the attack. The “evidence” made public so far, and cited by Obama, is based on “intel” that GoI has provided NSA about a telephone intercept between Syrian officers discussing the attack post facto. The Guardian and LA Times, for instance, report that this story was leaked by Mossad to the German paper Focus. The Times of Israel fills in the details, based on an Israel Channel 2 report I cannot access, that the CW shells were fired by the 155th Brigade of the 4th Armored Division of the Syrian Army under the command of the president’s brother, Maher Assad.

    There is no question that GoI is pumping this thing up by disseminating to the public “intel” that cannot and has not been verified. Before Congress votes after Sep09, we can see significantly more GoI pressure, maybe even another attack.

    The real qui bono in taking out Syrian CWs – regardless who is in control of them – is GoI, which has systematically been using USG to wipe out all of the governments in the ME that possess CW, the poor man’s deterrent to GoI nukes: Libya, Iraq, now Syria. Of course, these Syrian CWs have to be neutralized at any cost (to Syrians) as a pre-condition for GoI/USG attacking Iran.

    Given all this speculation in an as yet factual vacuum, it seems to me that the more useful and pertinent legal question is:

    Is it ever legal for a third party (USG) to retaliate against one of two non-ally belligerents based on speculation propagated by a fourth party (GoI) who stands to benefit immensely from the retaliation?

    If you are Bush/Cheney and their neocon buddies the answer is obviously “yes.” But what if you are a second term president, are more circumspect, and are less driven by Israel’s agenda for hegemony and have no political need to placate AIPAC?

    2. “The force used must be in proportion to the original violation.”

    What is Col Libman suggesting here? That a third party self-appointed enforcer of international norms must take a Newton’s Third Law approach and insure that the reaction is equal and opposite to the action? Does this mean that to be kosher, a punitive strike must take out 1400 Syrian civilians, assuming, arguendo, that 1400 were killed in Ghouta?

    3. “Action may not be taken or continued after the target government has ceased to commit the conduct complained of.”

    Col Libman’s choice of the term “target government” in the present context is a little bit unsettling, but probably not for an IDF guy. However, in the context of this “rule,” the issue is whether or not the “target government” ever committed the conduct complained of in the first place. [Those pesky facts again!]

    Consequently, I would hope that as a corollary of this rule, Col Libman is proposing that a precondition to any retaliatory attack is that it be first ascertained beyond any doubt by the relevant international body – which I would take to be the UN General Assembly – that Syria is, in fact, the perpetrator of the Ghouta attack.

    In summary, I was taught that in analyzing legal problems: horse, then cart. Applying this rule to the present context, I would suggest that the facts are the horse and Obama’s cruise missiles are the cart, in which case the horse is too feeble to pull the cart.

    • Denis,
      I regret your use of ad hominem remarks. They are usually indicating a lack of better arguments, while I actually think you make 1.5 good points – I will get back to that. However, I wish to thank you for keeping in safe anonymity – this way, you spare me the temptation of a reprisal 🙂
      Another interesting observation, is that you seem to have different standards as to establishing facts, when it comes to my background, quoting some unidentified source without any substance to support the claim. Indeed, I admit serving more than 20 years in the IDF, and I’m proud of it. My understanding of my past mission, as a military legal advisor, was to support IDF operations in defense of the state of Israel within the rule of law, including international law. I have actually wrote extensively about my views on this matter here:
      http://www.mllwr.org/archive/volume-50-2011/50_12_libman/
      As to the matter at hand, I haven’t made any unequivocal personal determinations of the facts. I used the USG statement of the facts as a starting point for legal analysis, without endorsing it in any way.
      I know the facts are disputed and you can write, if you want, a piece of your own, weighting the different pieces of evidence against each other and trying to establish what really happened. However, this is not the subject I chose to write about, why insist playing football against a guy playing soccer?
      I think in academic and scholarly discourse it is a totally legitimate to analyze even hypothetical situations, or to make factual presumptions as to facts, as long as these presumptions are transparent. I have no duty to analyze other factual presumptions.
      Of course (and this is the 0.5 good point you make) if one is responsible for real-life decisions, especially the life and death ones, he has to establish very carefully the facts (the “horse” in your words) before determining the law (the “cart”). I have been there and done that, and I am very happy now to be relieved from that burden, just to fly on the wings of thought.
      The other good point you make concerns proportionality: as mentioned in my post, I used the conditions stipulated in the UK Manual, mutatis mutandis. It does seem that the proportionality mentioned there is the “tit for tat” one (although not as simplistic as you described it). On second thought, I think the “means – end” perception of proportionality is more appropriate in this context, that is: a military action will be proportional if it is a rational mean to achieve the purpose, if no other equally effective and less harmful course of action exists, and if the harm anticipated from the military action does not outweigh the value of deterrence from further violations. No comparative body count here.

      • Denis says:

        Col. Libman, you have been very gracious and thorough in responding to the comments here, including mine. In my rejoinder I will attempt to be as thorough as you have been, although I regret that I am incapable of being as gracious. I address just the main points/accusations of your response to my comment.

        “I regret your use of ad hominem remarks.”

        I made no ad hominem remarks, nor did you identify any. Dan has made it clear that he removed the posts with ad hominem remarks.

        You are throwing accusations of “ad hominem” around in the same, irksome way Uncle Abe Foxman throws around accusations of “anti-Semite.” One would hope that such tactics would be beneath a person of your statute.

        “Another interesting observation, is that you seem to have different standards as to establishing facts, when it comes to my background, quoting some unidentified source without any substance to support the claim.”

        The context of my comment regarding your background was the striking juxtaposition of that 2011 remark with your present attempts to find ways to work-around existing international law in order to justify acts of war against Assad. I did not think it was necessary or desirable to present the link or the context in which that 2011 comment was made, but since you have demanded them . . .

        The comment was made by Mario Franssen who was announcing the success of numerous organizations boycotting a conference because you were scheduled to speak – May25.2011. Franssen was announcing that your lecture had been cancelled as a result of the boycott. As I say, I did not think this background material was pertinent to your post or my comment, and I still don’t, but you have demanded the identity of my source and the substance, so there you go.

        The link is http://www.intal.be/fr/blogs/mariof/belgium-says-no-israeli-colonel

        “Indeed, I admit serving more than 20 years in the IDF, and I’m proud of it. My understanding of my past mission, as a military legal advisor, was to support IDF operations in defense of the state of Israel within the rule of law, including international law”

        Well, friend, it is clear that our differences have their origin with our disparate military histories. You made colonel; I only made corporal (but I made it twice!). You retired after 20; I escaped after three. Sounds like you spent your time at a desk writing legal theory; I humped a radio in Vietnam for a Marine recon team. You are proud of your military service and what you did; I am not particularly proud of mine or what I did.

        Or should I say I not proud of having been duped by a gaggle of glib bureaucrats and military officers – most of them lawyers – concocting “legal theories” as to why tens of thousands of Americans should die in Vietnam while killing millions of Vietnamese. The carnage I witnessed in combat and in the Philadelphia Naval Hospital while recuperating from wounds led me to detest war and those who promote it or justify it. You seem to have a wholly different attitude.

        In “my day,” Rusk, McNamara, Westmoreland, Clark Clifford, Maxwell Taylor, Rostow, the Bundys – very bright men like you – were tasked with coming up with ways to sell the VN war and to circumvent international law in order say the war was “within the rule of law”. Halberstam famously referred to those 1960’s – 1970’s governmental war-mongers as the “best and the brightest.”

        Such B&B’s are with us still. The next generation had their own – aka neo-cons. John Yoo, for instance, who became famous for the same type of theorizing the Bundys et al. did in the 1960s and you are doing now: writing legal opinions/theory that legitimize violations of the Geneva Conventions. Work-arounds. Other B&B’s of the Bush/Cheney era include Feith, Bolton, Perle, Wolfowitz, . . . the “thinkers” who did not directly take the country into Iraq, but who greased the skids intellectually in order to serve Israel’s interests, mostly.

        As to the matter at hand, I haven’t made any unequivocal personal determinations of the facts. I used the USG statement of the facts as a starting point for legal analysis, without endorsing it in any way.

        Yes, sir, I can see that. That is precisely the problem. That is the way B&B’s operate. In the ‘60’s the B&B’s conveniently accepted the attack on the Maddox in the Gulf of Tonkin as “the USG statement of the facts,” and away they went.

        In the run up to Iraq, the neocon B&B’s conveniently accepted yellow cake, aluminum tubing, CBW manufacturing trucks, and hidden nukes as “the USG statement of facts,” and away they went.

        Today’s B&B’s are conveniently accepting as a “fact” the USG version of the Aug21 Ghouta attack, and away you are going. The result will be the same: acts of war masquerading as reprisals leading to regime change justified under some perverse faux-theory of international law.

        I think in academic and scholarly discourse it is a [sic] totally legitimate to analyze even hypothetical situations, or to make factual presumptions as to facts, as long as these presumptions are transparent. I have no duty to analyze other factual presumptions. . . . I am very happy now to be relieved from that burden, just to fly on the wings of thought.

        If this were an academic discourse about climate change or navigation rights to Arctic seaways, I might agree with you. But your flights of thought embrace an imminent threat to human lives and they toy with regional conflagration. In my opinion what you are doing is an intellectualized thumping of war drums that is characteristic of B&Bs, and to do so without ascertaining to the best of your ability what the facts actually are is – however intellectually satisfying – dangerous, unnecessary, unproductive, and immoral, IMO. I say that as one who as seen and smelled the carnage that results from concocted casus belli supported by “novel” B&B legal theories that undermine the substance and spirit of the Geneva Conventions.

        Being blessed with high intelligence carries a commensurate moral responsibility, and being an academic, no matter how free thinking, does not obviate that responsibility. That was my problem with the original B&B’s, and it hasn’t changed.

        Other than that, we’re pretty much on the same page.

  7. Wow, I see no way to begin to deal with this incredible post…without being banned, anyway…

    I’ll just point out that the notion of the US as “neutral party enforcing the law against chemical weapons use” in this instance is simply bizarre…

  8. Johnboy says:

    The biggest problem that I have with this thesis is that it assumes that “the West” is correct in “attributing” this CW attack to Assad’s government.

    It is therefore just a small hop, skip ‘n’ jump to painting Russia’s likely UNSC veto as being just plain bloody-minded obstructionism on the part of Putin i.e. as an attempt by Russia to protect a guilty-as-sin Assad from the righteous wrath of a morally-pure USA.

    Hang on a second.

    Perhaps instead of chattering amongst ourselves it might pay to actually listen to what the RUSSIANS are saying in case, you know, it turns out that they aren’t moustache-twirling cardboard villians.

    Russia is opposing this because they are adamant that the Syrian Government didn’t do it.

    Russia is opposed because
    (a) they are convinced that the rebels did this and
    (b) they insist that they have the evidence to prove it.

    So this isn’t a situation where guilt is a given, and when the inability of the USA to get a UNSC Resolution authorizing force is simply the result of bloody-minded superpower-politics.

    No. It’s more than that.

    The USA are insisting that Assad did it.
    The Russians are equally insistent that the rebels did this.

    Q: Under those circumstances is there **any** justification for going BANG! on the Syrian Army?
    A: No, not until both the USA and Russia present their evidence to the UN Security Council.

    Well, gosh, there are stories doing the rounds that the Russians have indeed presented their evidence to the Council behind closed doors, but the USA very noticeably has not.

    As far as I’m concerned that ends the discussion: either the USA puts up or it shuts up.

    • Johnboy says:

      Just so I make myself clear here: I have a serious problem with arguments that have at their core an assumption that a Russian veto is a sure sign that the UN Security Council is somehow “broken”, and therefore a way *must* be found to get around the need for a UNSC authorization.

      Sorry, but this is a Design Feature, it is not a Flaw.

      The UN Charter was deliberately designed this way i.e. an authorization of the use of force requires unanimity amongst the P5, and if one of the permanent members objects then that objection is *supposed* to mean something.

      And what it is supposed to mean is this: Do Not Do This.

      Russia did not object to the resolution authorizing force against Libya, and that is a very important point that appears to be completely missing in the latest blatherings.

      Russia’s lack of objection to going BANG! on Libya means that Russia’s objection to a US sponsored resolution to go BANG! on The Next Dude On Obama’s Hit List is not ideologically-based.

      It is not a reflex reaction against all things USA. It is not the result of bloody-minded big-power politics. It is not being vetoed merely because Putin likes to jerk Obama around.

      Russia objects to anyone going BANG! on Syria because they insist that ASSAD DID NOT DO THIS.

      Again, that’s an important point i.e. the Russians aren’t insisting that Obama lay off Assad because “he’s one of our boys” but because they insist that “the rebels did this, not Assad”.

      Here’s a crazy thought: maybe they’re right. Maybe he didn’t do it.

      • Johnboy,
        As I already answered, I do not want to debate the facts. However, I do think you are missing something in your reasoning about Russia’s motives. Indeed, there is a difference between their position on Syria and their stand on Libya. However, it does not necessitate the conclusion that the Russian position is “pure”: perhaps a certain port in Syria giving the Russian navy its only foothold in the Mediterranean has something to do with it? I think, to be fair, that every nation has its interests affecting its positions. Unfortunately, we do not have an impartial tribunal with the jurisdiction to decide. The SC itself is a political body.

      • Johnboy says:

        Liron, I understand your reluctance to debate the facts, and fair enough too.

        But I want to underline the point that I have already made i.e. the ability of a P5 state to gridlock the use of force is not a “bug”, it is part of the feature-set of the UN Charter.

        It is quite deliberate, and its meaning is clear: if a P5 state does not want force to be used against another member state of the UN then Force Should Not Be Used Against That Member State.

        As for your argument regarding Tartus, no, I don’t agree with your reasoning.

        If Russia wanted “hands off our man Assad” then that’s all it needs to say

        [Like, say, the USA does when it veto’s resolutions pertaining to a certain little colonial expansionist power, even though said resolution does no more than repeat US policy].

        But the Russians say much more than “don’t pick on our boy”.

        They say – loudly, often, and to everyone – that Assad’s government didn’t do this.

        Not that “this is premature”
        Not that “the US needs to let those inspectors do their job”
        Not that “it is unclear what happened”

        They are saying – loudly, often, and to everyone – that they KNOW that the rebels did this, and that Assad is being stitched up.

  9. Dan Joyner says:

    FYI I’ve had to exclude a few comments here that I felt were excessively ad hominem. Please remember that this is a classic logical fallacy, and that you should deal respectfully with the actual substance of arguments. Thanks.

  10. Nick says:

    What the current argument suggests is that the US involvement requires that two conditions must be met before we strike: (1) must be an enemy state *and* (2) the killing of innocent people must occur rapidly, as is the case for CW in Syria. A few past cases that this policy has been applied:

    Iraq gassing of Iranian battlefields and their own villages, killing innocent people ; (1) at that time Saddam was a friend so the condition was not satisfied, no action.

    Israel using cluster bombs during the 2006 offensive killing 100s of innocent people, including 100s of children in Lebanon. Neither conditions 1 or 2 were satisfied. 1 is obvious and condition 2 was not met because the killing took place over a month.

    Syria up to last Wednesday was one of the few countries that had met condition 1 but not 2. The CW attack, if happened as was explained by Kerry, then makes Syria a target.

    • Nick,
      Actually, “traditional” belligerent reprisals are done against an adversary. In the scenario I described, the military action will be taken by a third side, not a party to the conflict. Of course, the ideal situation will be that the third party will act with the permission of the SC. Realistically, you are probably right that a friendly third state will not volunteer to strike its ally, however, that cannot be a normative rule.
      By the way, cluster munitions, in 2006 and today, are not universally banned weapons. Indeed, under a certain pattern of use they may have adverse effects on civilians, so there are good reasons to limit the circumstances that this weapon should be used. Nevertheless, that is very different from the total and customary law ban on chemical weapons.

  11. Fiorangela says:

    I’m not a lawyer, but maybe some of the legal talent that frequents this blog could put into a legal framework the response of Ayatollah Khomeini and Iranian leadership — and their people — when Iran was subjected to gas attacks by Saddam Hussein. (This morning CW expert Amy Smithson said on C Span that US companies delivered 650,000 metric tons of CW precursor to Saddam. Syria is said to possess 100,000 metric tons of the stuff.)

    The Iranian response was to file a complaint with the United Nations. Their letters were ignored.

    For over a year, as Saddam gassed Iranian civilians, the UN and the United States ignored the pleas of the Iranian government to restrain Iraq from use of CW that had been proscribed since 1925 and had not been used since WWI.

    The Iranian government under Ayatollah Khomeini DID NOT USE chemical weapons in retaliation for Saddam’s gas attacks.

    Put that into a legal format, Prof. Libman or Prof. Haines or Prof. Joyner.

    Men and states and governments that hold to principle DO NOT USE proscribed weapons, even when their own citizens are killed by them, and even when all the mechanisms of law, which as Patrick Tyler has pointed out in “Fortress Israel”, are systematically eroded by Israel as a tactic to reduce the power of the law to maintain peace.

    This may veer off-topic but it must be said: For John Kerry to wag his finger at Iran and threaten to attack Syria as a warning to Iran not to use CW is an obscenity.

    • Johnboy says:

      “The Iranian government under Ayatollah Khomeini DID NOT USE chemical weapons in retaliation for Saddam’s gas attacks.”

      Well, to be fair Colonel Liron Libman isn’t suggesting that the USA retaliates by dropping CWs on Bashir Assad.

      Indeed, the novel contribution that he is making is that any reprisal by the USA would be “more legal” (or at least “more legitimate”) because it will involve precision bombing i.e. the initial resort to CW is an ILLEGAL method of warfare, but the response from the USA will involve precision bombing which – in and of itself – is not prohibited by int’l humanitarian law.

      I don’t necessarily agree that this makes any difference, but I do understand that this is the argument that he is making.

      • Denis says:

        JB, just one thought: huh?

        An unprovoked attack on State B by State A “not prohibited by int’l humanitarian law” if A’s attack is precise?

        What international law defines the legality vel non of an unprovoked attack on the basis of precision or type of bomb?

        Change of subject …..

        In support of your comments above re: the Russians, Putin was also the voice of reason demanding analysis before action following the Mar19 CW attack. It took them months of analysis by they eventually released a huge report proving that the insurgents, not Assad, was responsible for that attack. This is precisely why the Israelis and USG are trying to push this thing so fast — before evidence can accumulate that the insurgents were responsible.

        Pepe Escobar, who has reported from Syria many times, has written a very informative RT piece and has a helpful interview with Scott Horton, including comments re: Susan Rice and Samantha Powers trying to shut down the UN investigation. Both of these are at Horton’s site, if you have a few minutes.

        http://scotthorton.org/2013/08/30/83013-pepe-escobar/

      • Thank you Johnboy,
        Indeed, you understood the idea: it is replacing the IHL violation integrated in belligerent reprisal with a use of force by a non-beligerent, within the framework of IHL. Ideally, with SC approval. However, even if a unilateral act without SC approval is to be considered illegal, perhaps that is a “better” illegality than a belligerent reprisal by IHL violation or than not deterring further certain grave violations of IHL.

      • Johnboy says:

        No, sorry, Denis, but it appears you don’t understand the argument.

        The Good Colonel is talking about the concept of “reprisal” under international humanitarian law, and he points out (correctly) that in most cases that involves a tit-for-tat use of illegal weapons i.e. if YOU use chemical weapons against ME then I am justified in doing the same to YOU.

        One violation of jus in bello therefore begets another violation of jus in bello, with all the attendant risks that this escalates to all-out, no-holds-barred warfare between the two belligerents.

        What Col. Libman is pointing out that in this case the reprisal would not involve tit-for-tat i.e. it takes a completely different form i.e. a precision bombing attack from the air, which in and of itself is not a violation of acceptable wartime conduct .

        Again, I’m not agreeing that this makes any difference to the illegality of the USA intervening in a civil war (which falls under the concept of jus ad bellum, not of jus in bello).

        I agree with you that an attack by the USA against a country that is not threatening the USA is illegal. All I’m doing is pointing out that you appear to be misunderstanding the argument that is being presented in this article.

    • Fiorangela,
      I am not familiar with the facts. However, if indeed the US supplied Chemical weapons to Saddam Hussein I find it repugnant. However, I would not rush to crown Iran as the prince of IHL obedience. After all, didn’t they send children “armed” with keys to paradise to clear minefields at the same war? Drafting children less than 15 years old is also a war crime.

      As to the book you mentioned, I am not familiar with it. Perhaps I will take a look at it one day.

      • Cyrus says:

        The “children with keys” thing was debunked long ago. And children were not drafted, though many young and old volunteered, including people from my highschool.

  12. Dear Mr. Bacon,
    To my humble understanding (I am not a native speaker of English) if one wish to state an undisputed fact, the simple way is to write: “The recent chemical attack by the Syrian regime”. Using the word “attributed to”, as I did, creates a certain distance or a certain question mark. Perhaps I am wrong, however, I really don’t want to debate linguistic.
    Nevertheless, calling the suspicion that the chemical attack was done by the Syrian regime a lie, is going far beyond differences reasonable people may have at this point, or perhaps you are hiding from the world an unequivocal proof that Assad did not do it?

  13. I could cite here any number of articles posted by, among others, Gareth Porter, on how the “intelligence” cited by Obama has been almost completely discredited. Google them for yourself.

    Craig Murray elsewhere points out how there is no way the Israelis could have had better SIGINT into Syria than the GCHQ station on Cyprus. In short, there WAS NO “Israeli intercept”.

    THAT was a LIE. Plain and simple.

    Beyond that, there is overwhelming evidence going back months that the Syrian insurgents have had not only access to Sarin and other chemical weapons, but also CIA TRAINING in the handling of those weapons. The ostensible reason was to enable the insurgents to handle in the event they captured any from Syrian forces.

    If anyone still believes that explanation now, as Pepe Escobar says, they should move to Alice in Wonderland…

  14. Denis,
    To my understanding, “Argumentum ad hominem”, is an argument made personally against an opponent instead of against his argument. You decided to start your first comment about my post with such a remark. I think it is self-evident, and other readers may judge. I don’t think Prof. Joyner thinks differently. As he wrote, only remarks that were excessively ad hominem were excluded, while your comment, as I have already pointed out, has some good points relating to the matter at hand.
    You have revealed your source for the Ad hominem remark, thank you. I have never met that person and he doesn’t add any substance to the general claim against me. Actually. That person said very clearly that “we oppose any initiative which offers a stage to a representative of the Israeli army”, so I really did not take it personally. Indeed, the organizers of the event in Belgium, where I was supposed to speak, apologized that they received threats and were not able, in the time limits, to secure the event so they were imposed to delay it. As I see it, that was a violent act by people not willing to listen or let others listen to other views, perhaps because they were afraid some of them might be convincing. Denis, for your credit I will say you are better than that, after all, you are conducting a dialog.
    You have described very vividly your experience from military service and war. It sounds very genuine and really got into my heart. Indeed, we are all influenced by our personal experiences. Perhaps I was spared some of the harsh sights of war that you have experienced. However, as a military legal advisor, I was not just writing “legal theory” at my desk. I had to give legal advice to real situations, and I made my best efforts to base them on established facts, sometimes by going to the field and witnessing myself. Furthermore, as a father, I witnessed the fear in my children eyes when running to the shelter and hearing Hamas rockets explode. Not an experience I recommend.
    I totally agree with you that all intellectuals have a moral responsibility, although there is a difference between the responsibility of decision-makers and their advisors, and the responsibility of non-governmental researchers. All must remember that these are life and death issues. However, it is not always clear what course of action would save lives, in the long run.
    We all want to learn the lessons of history, but the real question is which situation is the relevant historic analogy. It is not always clear. While history shows that in some cases, military force was used under false pretenses and caused unnecessary suffering, in other cases, the reluctance to use force against dictators, when needed, did not prevent war, but only delayed it and aggravated its results. Only time will tell.
    In this case, I really don’t know what’s best and insist I was not advocating a military action at this stage. Living in the Middle East, in a country neighboring Syria, I have reasons of concern, not less than you and any other commentator here.
    All the Best,

  15. Dear friends,
    As the Jewish New Year’s Eve is approaching, I will not be able to respond to new comments in the coming days. Thank you for your feedback so far. I wish you all a happy new year, a year of peace and understanding.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s