Update on Syria and Goings on at the UN

I was listening to NPR this morning and just laughed out loud when I heard US ambassador to the UN Samantha Power criticizing Russia for holding the Security Council “hostage” and preventing Council action on Syria. Here are her remarks in a WSJ piece:

“The U.S. ambassador said to “stand back would endanger not only international peace and security but the very international system that we have working these decades to build.” She said that for Russia as Syria’s “patron,” to block agreement on the council went against the “spirit” of the U.N. charter.”

Yes, that must be really frustrating for the US to have to deal with another permanent member of the Security Council, who appears willing to protect a state under its patronage from any and all Security Council action against it. I mean, Ambassador Power is completely right, here. That does fly in the face of the UN Charter system and is an abuse of the veto prerogative given to permanent members of the Security Council under the Charter.  It’s a good thing the US never does anything like that. Here are a few links that in no way demonstrate the hypocrisy of the US position. Here, here, here, here.

Whatever. Everyone knows that politics is no place to find principle and consistency.

WRT the substance of what has been going on re Syria, I’ve kind of been waiting like everyone else has to see in more detail what the Russian proposed, and American agreed-to-in-principle deal for disarming Syria will look like. As I said previously, I’m certainly for the idea in theory, but I’m still pessimistic about it being carried through to completion.

From a legal perspective, I’m concerned that, maybe without really even noticing it, we’ve switched legal paradigms now for dealing with what was originally a grave violation of the law of armed conflict – the use of chemical weapons. In the immediate aftermath of this event, I supported a limited use of force against Syrian military targets in order to send a clear message of the unacceptability of this violation of a longstanding norm of international law.

Now with the new Russian disarmament plan, we seem to be moving away from the original idea of punishing and deterring use of CW, which I see rooted essentially in the law of armed conflict and to a lesser extent international use of force law WRT the response, to more of an arms control law paradigm of compelling Syria to sign the CWC, and work with OPCW and/or UN inspectors to verifiably disarm Syria’s CW stockpile.

As many commentators have already noted, the machinery of arms control law has never been used in quite this way in the past – i.e. as a response to an unlawful use of WMD, inside a continuing war zone. Typically, the machinery of arms control law has been used in a more preventative way, to ensure that WMD are not used in the future. I certainly understand that there is some overlap here with the idea of deterring Syria from using WMD in the future. But I don’t think the overlap is complete. Deterrence and prevention are not the same thing. You deter someone from doing something by convincing them that the cost of doing that thing exceeds its benefits. This is what I think president Obama’s credible and continuing threat of the use of force against Syrian military targets has accomplished. I really see the disarmament process through the machinery of arms control law in this case, as being rather tangential, and essentially epiphenomenal.  It is serving the role of a secondary sign of evidence that Assad has gotten the message, and will agree to make whatever public gestures are required of him, to avoid the actualization of that threat.

The disarmament process in and of itself would never be able to give full assurance that Assad would not be able to hide CW, or reconstitute his CW program, in order to allow his further use of CW. So again, I don’t see the use of arms control law machinery in this case as the independent variable producing confidence that he will not use CW again. This role, I think, has been and must continue to be played by the credible US threat of force, in a limited but effective way, to punish any future uses.

So in all, I think the diplomatic process and the use by Syria of the CWC/OPCW process for declaring and disarming itself of CW is a good thing. I’m still pessimistic, though, that the process will be followed through to successful completion under the circumstances in Syria. If it does, it would be a case of first instance for a state in such a situation.  But I actually think that the most important element of the response to Syria’s CW use – deterrence – has already been accomplished through President Obama’s credible threat of the use of force. And for that reason, I hope that the promise of action in the event of future CW use remains in place.

Just briefly on the wrangling going on between the US and Russia regarding the structure and content of a potential Security Council resolution on Syrian disarmament, I think all international lawyers who work in the security area are struck by the déjà vu of the 2003 wrangling that ultimately produced UNSC Resolution 1441. My mentor professor Michael Byers wrote a great article on that process and its result, which you can see here. I also wrote about it at length in chapter 7 of my 2009 book.

I think the takeaway from this revisitation at the moment is that Russia learned its lesson through the unfortunate experience of Resolution 1441, and its subsequent use by the US as a justification for war in Iraq, about having any ambiguity in UNSCRs regarding use of force authorization. I expect they will stand pretty strong on the wording this time to make sure no such ambiguity exists this time around.

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12 Comments on “Update on Syria and Goings on at the UN”

  1. Don Bacon says:

    Moving away from bombing Syria is a good thing for several reasons, one of them being that Syria has never been proven to have used chemical weapons.

    news report:

    Contrary to the general impression in Congress and the news media, the Syria chemical warfare intelligence summary released by the Barack Obama administration Aug. 30 did not represent an intelligence community assessment, an IPS analysis and interviews with former intelligence officials reveals.

    The evidence indicates that Director of National Intelligence James Clapper culled intelligence analyses from various agencies and by the White House itself, but that the White House itself had the final say in the contents of the document.

    So DNI Clapper never endorsed “what we all know.” There are many other reasons, including that the UN report did not show that the rockets for which they determined trajectories carried sarin. That argument is strengthened further by the fact that not one of the environmental samples from the Moadamiyah site came back as positive for sarin.

    But it was enough for Obama today: “It’s an insult to human reason and to the legitimacy of this institution to suggest that anyone other than the regime carried out this attack.”

  2. Nick Ritchie says:

    The CWC and OPCW are being used as a politically acceptable legal, normative and diplomatic tool of coercive disarmament, which is preferable to unilateral military force as direct means of coercive disarmament. IF Syria can verifiably divest itself of chemical weapons and IF the multilateral cooperation necessary achieve that end yields sufficient goodwill to begin a process of national dialogue and a winding down of the violence plaguing the country, then all to the good, but they are bigs ifs.

  3. Cyrus says:

    The problem is that in his speech, the US president justified a military attack on another sovereign nation without UNSC authorization on the basis of US Exceptionalism, which I am sure you’d agree, is not a justifiable basis for violating international law, regardless of alleged good motives.

  4. masoud says:

    I still don’t understand how you can advocate for unilateral US military action as a response to an alleged breach of the laws of war by Syria.
    Would you similarly advocate a strike by North Korea against the US as a response undisputed chemical weapon’s use by the US Army against Fallujah.?
    How about an Iranian strike against Israel for it’s use of it’s undisputed chemical weapons use in Gaza and Lebanon?
    How do you weigh the seriousness of the use of chemical weapons against the crime of international aggression?

    Do you agree with Obama’s views on American Exceptionalism? How do you think the Exceptional nature of America(or the lack thereof), should impact one’s views on these matters?

    • Dan Joyner says:

      Hi Masoud,
      These are very fair points. I definitely do not accept any theory of American exceptionalism. And if the idea of punitive/deterrent military strikes in response to CW use is to be a principle of international law, e.g. on one of the bases argued for by David or Liron last week, then I certainly think it should be a principle accessible by all states to justify action. This is one consideration that should go into deciding whether this should be a valid principle of law. The same sorts of considerations apply when thinking about the right of humanitarian intervention generally. If it is a rule of international law, it has to be a rule for everyone. This is why, I think, there has been relatively little in the way of official acknowledgment by the US and many other powerful states (excluding the UK which is more up front about it) of an actual rule of law justifying humanitarian intervention – because while they do want to be able to use this principle themselves from time to time, they don’t want it to be a general principle of international law accessible by all states.

  5. Denis says:

    Dan: “Here. Here. Here. Here.” Well said, and well linked. USG hypocrisy has no outer limit. Neither does USG duplicity, but that point is missing from this post.

    I must continue to push back against your unwarranted and underlying assumption that Assad or the SAA were responsible for the “sarin attack.” You have advocated an attack on Syria before based on the USG/GoI allegations. I, personally, think that is not a very wise position. For one thing, it leaves you looking like a sucker if this thing turns out to be fabricated. Like Bush famously said: “Fool me once and . . . uh, . . . shame on you. Fool me again and . . . never mind.” Or something like that.

    Eventually I might join your flock of hawks, but for now I am going to step back for a month or so until more evidence is in. At the moment the evidence is building that Obama, Kerry, Hagel and all the anti-Assad parrots are wrong: this was not a sarin attack by Assad that killed 1400 people. I have linked to some of that evidence previously: the scores of bodies in the vids Obama has shown to Congress were almost certainly not victims of sarin — that is not a political conclusion, it is a pharmacological one.

    Other scientists are also expressing doubts and pointing out these sorts of scientific inconsistencies. Dan Kaszeta, a former officer of the U.S. Army’s Chemical Corps, is one CW expert who has raised serious doubts about source of the attack and the validity of the UN report. This very helpful article by Sharmine Narwani and Radwan Mortada cites Kaszeta.

    http://english.al-akhbar.com/blogs/sandbox/questions-plague-un-report-syria

    At the moment nobody knows what it was or who perpetrated it. The UN report is so full of holes, questionable pseudo-data, and inconsistencies as to make one worry that ,like IAEA, the UN, OPCW, and WHO are turning into a propaganda machine. A careful reading of the UN report leaves one with far more questions about the validity of the report than with answers about what happened.

    It is becoming clear to some that this was more likely an attack by the insurgents using some combination of neurotoxic agents, including a minor component of low level sarin, or else a complete false flag using bodies of Alawite women and children kidnapped by the insurgents from Latakia on Aug05, with sarin planted via a controlled release in Ghouta, which was practically deserted at the time.

    I personally think it is a huge mistake to just blindly go along with whatever Obama says without expressing skepticism where it is justified. Surely we have learned something from the deadly Iraq debacle.

    • Dan Joyner says:

      Hi Denis,
      I certainly understand what you’re saying. And in general I am very much someone who wants to have legal principles met through the careful production of evidence, as I hope all my writing on Iran shows. But don’t you also think its true that in some circumstances in life, you don’t necessarily have the luxury of waiting for all the facts to come in, however long that may take, before you have to decide to act? I think that when there is a case of ongoing mass atrocities, a la Rwanda for example, its not an occasion on which you should demand a full scientific process on causes and facts to be carried through to fruition before you act. Sometimes you have to act with imperfect information, in order to save lives. This is how I viewed the issue of a quick, though limited, military response to what seemed pretty clearly to be an attack by regime forces on civilians using CW. I know the scientific jury is still out now, but as you know the UN report is pretty convincing, at least in delineation of circumstantial evidence, that it was the regime that did it. Anyway, I mostly wanted to draw that distinction between times when its prudent to wait for all the evidence to come in, and times when its not. I’m sure reasonable people can disagree on which circumstances fall into which category.

      • Cyrus says:

        But you can’t act for the sake of acting. If you don’t know who used the chemical weapons, whom will you launch an attack against, and why?

  6. Don Bacon says:

    David Koplow, Georgetown Law, contends that the US and Russia are in violation of the CWC.

    The CWC entered into force on April 29, 1997 and made April 29, 2012 the final deadline for completing the chemical weapon destruction operations, even with the single allowable five-year extension. Neither the United States nor Russia met that deadline. The U.S. Army, responsible for leading the American chemical weapon destruction program, accomplished approximately ninety percent of the goal by the specified dead-line, but noted that it will take until the fourth quarter of 2023—-some eleven and a half years beyond the supposedly “final” date—-to eliminate the remainder. . . .Russia is now moving considerably faster and projects to complete the remainder of its chemical weapon destruction operations by about 2015.

    p. 57
    http://www.fletcherforum.org/wp-content/uploads/2013/02/Koplow_37-1.pdf

    Perhaps there will be a move to invoke Chapter VII?

  7. Don Bacon says:

    So President Obama delivered his speech full of the same-old, same-old but even more outlandish (one reviewer counted 45 lies) and on Iran he said: “Instead, we insist that the Iranian government meet its responsibilities under the Nuclear Non-proliferation treaty and U.N. Security Council resolutions.” IOW suspend enrichment.

    In response to Obama’s morning speech (coming immediately after the President of Brazil lambasted the US for spying on her) President Rouhani, who had been scripted to shake hands with Obama at lunch, apparently decided his breakfast was sufficient and said “هیچ” (no) to ‘let’s do lunch.’

    So we’re back where we were on Iran, and incidentally on the same day that the US plan for Syria blew up as the anti-Syria forces have amalgamated and also stated their opposition to the Saudi-selected (with US support of course) new Syria government, the Syrian National Coalition.

    Perhaps Russia can sort it out.


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