For the non-twitterati, Omar al-Bashir has — unsurprisingly — cancelled his trip to the UN. That decision reflects an underappreciated “soft power” aspect of the ICC: even an unexecuted arrest warrant limits the freedom of a suspect facing charges. There may be no reasonable prospect of Bashir being arrested anytime soon. But there is also no reasonable prospect that he will be traveling outside of Asia, Africa, and the Middle East anytime soon either, making it much more difficult for him to function as an effective head of state. With luck, his political party will eventually decide he’s more trouble than he’s worth — at which point he may well end up in the ICC’s dock. (A lesson Mr. Milosevic learned the hard way.)
Archive of posts for category
I’ve been surprised how quiet the Obama Administration has been in terms of treaty actions in its 5 years in office — you can pretty much count on one hand the number of treaties that have gone through the Senate Advice and Consent process (and nothing at all has happened this Congress). Now, some of the blame for this certainly rests with a recalcitrant (some might say new-sovereigntist) minority of U.S. Senators (see, e.g., UNCLOS and the UN Disabilities Convention fights). Still, the reality of the last few years has been that major U.S. treaty actions by the Executive are also fairly uncommon occurrences. So, the news today that John Kerry will sign the UN Arms Trade Treaty (ATA) for the United States is quite noteworthy given the paucity of such signatures of late.
The mainstream news media attention on the U.S. signing has (understandably) focused on the domestic opposition to the ATA, most notably the hostility of the National Rifle Association. As a result, the legal issues associated with treaty signature have gotten sparse attention. Indeed, in looking at today’s Washington Post, readers get no real sense that U.S. signature of the ATA will not actually commit the United States to comply with its provisions, nor the fact that the ratification which would involve such a commitment requires the advice and consent of the U.S. Senate (something that seems very unlikely at present). This is not to say that signature has no real world effects — it does. But the media has done little to explain them so I’ll flag the two that are most important. First, U.S. signature of the ATA serves a signaling function, letting the world know that the United States supports the treaty and will look to begin the domestic processes necessary to join the ATA (although I can tell you from my former life in the State Department that those processes can take years without anyone really batting an eye). Second, signature has one major legal consequences for the signing State as described in Article 18 of the Vienna Convention on the Law of Treaties:
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty …
Now, the United States is not a party to the VCLT, but the VCLT is widely accepted within the U.S. Government as codifying customary international law. Article 18 in particular has been specifically treated as customary by the likes of former Secretary of State Colin Powell and John Bolton, most visibly in U.S. attempts to indicate an intention not to become a party to the Rome Statute or the Kyoto Protocol (see also Treaties and Other International Agreements, 2001 Digest of United States Practice in International Law 212-213 for more on Powell’s views).
If, as I believe, Article 18 is customary international law binding on the United States, that raises the interesting question of what obligations exactly will the United States assume by signing the ATA? Simply put, what acts by the United States would defeat the ATA’s object and purpose? Is there any content to Article 18 in this context — which may then legitimate the NRA’s very vocal objections to U.S. signature — or is the signature limited to its signaling value without any real restrictions on U.S. behavior going forward? I’d welcome reader input on one or more examples of things that would clearly cross the Article 18 line or thoughts on what acts the ATA does regulate but which cannot be said to trigger the object and purpose requirements associated with treaty signature.
Ryan has a fascinating but problematic post today at Just Security in which he takes international-law scholars to task for opportunistically flip-flopping on whether the US is involved in an armed conflict with al-Qaeda. Here is the crux of his argument, taken from the post’s introductory paragraph:
Those arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict. In fact, a pattern has emerged over the years: opposition to different actions has alternated between arguing that the US is—or is not—involved in an armed conflict with Al Qaeda. It sometimes seems as though the preferred argument depends on how that threshold question—whether we’re in a war—affects the interests at stake.
I thought about writing a letter to the editor in response, but there is no guaranteed that Just Security would publish it — and there would be no way for anyone other than a Just Security member to join the discussion (Facebook and Twitter, as I’ve said, being inadequate media for dialogue.) So I thought I would reply on Opinio Juris and invite interested readers to comment here.
The basic problem with Ryan’s post is this: it conflates inconsistency of outcome and inconsistency of principle. In Ryan’s view, “war” with AQ is a simple binary: either the US has been or has not been at war with AQ. As he puts it:
What might have been a better path over the past twelve years and, more importantly, the way forward? At the very least: a consistent position that one legal situation (war) or the other (not a war) exists.
Ryan thus equates inconsistency of outcome with inconsistency of principle: if scholars have taken inconsistent positions about war/not war between the US and AQ, that must be because they have adopted inconsistent legal principles (opportunistically, no less) concerning the existence of war.
But that is a flawed understanding of international humanitarian law. The basic principle of conflict qualification, as I have pointed out many times before, is this: the existence of non-international armed conflict is a fact-specific determination, one that depends on the organization of the non-state actor and the intensity of hostilities between the non-state actor and a state. Conflicts evolve over time in terms of both organization and intensity, so peace can turn into NIAC and NIAC can turn into peace. And, of course, there are many other types of conflict: NIAC can turn into IAC (Libya when the West intervened on behalf of the rebels); IAC can turn into NIAC (Afghanistan with the toppling of the Taliban); IAC can turn into occupation and occupation can turn into NIAC (Iraq); IAC and NIAC can exist alongside of each other (which would be the case if the US started bombing Syria); and so on. The qualification matters, because the type of conflict affects everything from targeting rules to the detention regime (as Ryan well knows, having written very intelligently about detention of civilians).
Because conflict qualification, especially concerning the existence of NIAC, is an inherently fluid and fact-specific determination, it is impossible to infer inconsistency of principle with regard to the nature of the conflict between the US and AQ from inconsistency of outcome. It is completely possible to take a principled approach to conflict qualification and yet not conclude that “one legal situation (war) or the other (not a war) exists.” Indeed, I’d go further and suggest that the most unprincipled approach to conflict qualification is the one that the US has adopted. The USG has never made an effort to take conflict qualification seriously; it has simply assumed the existence of a global non-international armed conflict between the US and AQ since bin Laden “declared war” in 1996. (Hence the USG’s ability to claim with a straight governmental face that al-Nashiri was able to commit war crimes prior to 9/11 and prior to the AUMF.) The only principle behind the US position is expediency — the USG’s desire to have its “war” with AQ governed by IHL instead of by IHRL.
Let me be clear: I am not defending all of the scholars that Ryan mentions in his post. I have vast disagreements with some of them, and some of them may well be arguing opportunistically. But I suspect that, if we examined many of their positions, we would find that their supposed inconsistency actually reflects a good-faith effort to take conflict qualification far more seriously than the USG ever has. Specifically, I’m willing to wager that most of those positions were based on (1) a rejection of the idea that the US can be in a global NIAC with AQ, an idea that to the best of my knowledge no non-American scholar accepts; and (2) an insistence that although the US and AQ can be involved in NIACs in specific geographic areas — Afghanistan, Pakistan, Yemen, etc. — the existence of such NIACs has to not only be determined based on the situation on the ground (organization and intensity), but also needs to be re-assessed over time.
Let me end with a couple of examples. In “Turn 1,” Ryan chides Allain Pellet for claiming that it was “legally false” the US and AQ were at war after 9/11 and takes Antonio Cassese to task for calling it a “misnomer” to describe the US/AQ conflict as a “war.” Dig deeper, however, and both Pellet and Cassese were absolutely correct. Pellet’s article was written 10 days after 9/11, nearly three weeks before the US began bombing Afghanistan. At that point there was no armed conflict between the US and AQ. One attack, no matter how horrible, does not a (non-international) armed conflict make. And Cassese was not denying the possibility that the US and AQ could be involved in a non-international armed conflict; he was denying that the US and AQ could be involved in a “war” — a term that has always been reserved for armed conflict between states. So his claim, too, was accurate.
Emerson is right — “[a] foolish consistency is the hobgoblin of little minds.” The problem is not with international law scholars who have “flip flopped” on the qualification of the armed conflict between the US and AQ; the problem is with the USG’s insistence that it has be either/or. When it comes to IHL, very few complex legal issues admit of simple binaries.
Just Security is officially up and running. The lineup of contributors is amazing: the Editors-in-Chief are Steve Vladeck and Ryan Goodman; the Executive Editors are Mary deRosa, the ACLU’s Jameel Jaffer, Fionnuala Ni Aolian, and Beth Van Schaack; and the Founding Editors are too numerous too mention but all extremely well known. (I won’t play favorites by naming some of them.) Here is Steve and Ryan’s description of the blog:
Welcome to Just Security! We are delighted you found your way here, and we hope that you will return regularly. If you’re reading this, chances are that you’re interested in the topic that defines our blog: U.S. national security law and policy (or you’re related to one of us). We thought we’d open things up by saying a few words about this project in general, as well as our plans for today and beyond.
We have assembled an extraordinary group of some of the most important and influential minds on U.S. national security law and policy. They include former top attorneys from the Department of State, Department of Justice, and National Security Council; outstanding civil society attorneys from the United States and abroad; some of the most prominent law professors in the field; and other leading voices.
Our Board of Editors will provide both immediate reactions to and more reflective analyses of important U.S. national security issues. We hope to become a ready resource for decision-makers, analysts, and practitioners who address difficult U.S. national security law issues, and an invaluable reference for those simply trying to stay abreast of the daily developments in this ever-moving field.
Just Security is obviously intended to be the progressive counterpart to the very conservative — though always excellent – Lawfare, and there is little doubt the blog will be successful. It’s a must-add to one’s RSS reader.
I do, however, feel compelled to register my objection to one aspect of Just Security: the absence of comments. (Which is also one of the worst aspects of Lawfare.) The blog touts three ways it will “engage with [its] readers”: letters to the editor, which may or may not be published; Facebook; and Twitter. None are capable of genuine dialogue — although I suppose that letters to the editor can at least create some give-and-take, depending on how quickly and how often they are posted. Facebook, however, is useless; I have regularly left Facebook comments on Lawfare for a long time, and I have yet to receive a single response. And we all know that it is impossible to make substantive points via 140-character tweets.
I understand why blogs don’t want comments, moderated or otherwise. All blogs attract trolls, and dealing with trolls is no fun. But I think the occasional nasty comment is a small price to pay for the genuine dialogue that comments make possible; I have had some amazing debates with readers here at Opinio Juris over the years, and those debates would not have happened if our blog followed the Just Security/Lawfare model. I hope Ryan and Steve will reconsider.
Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn’t much point in disagreeing with his basic thesis; no one knows at this point — not him, not I — whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in his article. Some are unfair; others are simply wrong.
If anyone ought to be prosecuted for war crimes, it’s this reviled leader, who almost certainly directed poison gas attacks against civilians. But as Joshua Keating explained in Slate, it’s not going to happen. This, just the latest blow to the ICC, illustrates once again why the prospect of international justice through global courts is ever receding—and why the court’s own days may be numbered.
This assertion falls into the unfair category. As Alana Tiemessen pointed out on twitter, the ICC can hardly be blamed for the failure of the Security Council (for now) to refer Assad to the Court. And, of course, the assertion simply ignores the fact that the Security Council has referred controversial situations to the Court in the past. Posner could have acknowledged Darfur and Libya. He could have acknowledged how the Darfur referral has made it considerably more difficult for Bashir to function as Sudan’s head of state. (See, e.g., the ongoing controversy over his desire to travel to the US to attend the UN General Assembly, which will never happen.) If Posner wanted to say something critical, he could have pointed out that the real problem is the Security Council’s failure to back up its referrals, either financially or in terms of enforcement. But that would have simply highlighted the fact that the problem is the Security Council, not the ICC.
Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.
Both unfair and wrong. Posner simply elides the difference between aggression, crimes against humanity, and war crimes with regard to retroactivity…
According to Reuters, the US is dropping hints that it will grant Omar al-Bashir a visa to travel the UN for the annual meeting of the General Assembly:
A senior State Department official said Bashir would “not receive a warm welcome” if he were to travel to the U.N. meeting. The official said Bashir had applied for a visa to attend the opening of the annual U.N. General Assembly.
“I am not going to speak to the specifics of this case, but typically as a host nation the United States is generally obligated to admit foreign nationals, but visas broadly speaking can be restricted,” the official added.
I completely agree with Julian that denying Bashir a visa would violate the UN-US Headquarters Agreement. But to say, as one intelligent commentator did on twitter earlier, that “the USG really has no choice in the matter”? Isn’t this the same USG that just a week ago insisted that it was willing to violate Art. 2(4) of the UN Charter by attacking Syria in order to supposedly “uphold” international law? So the USG can violate the UN Charter’s prohibition on force — a peremptory norm, no less — in order to uphold the customary prohibition on chemical weapons, but it cannot violate an agreement with the UN in order to uphold the customary prohibition — also a peremptory norm — against genocide? Even though the US has always led the charge to describe Bashir as a genocidaire and has supported the ICC’s efforts to prosecute him?
The mind reels.
On both twitter and the blog, readers seem to have inferred from my previous post that I’m somehow disappointed that the US-Russia chemical-weapons deal does not automatically allow force for noncompliance. I suppose that’s my fault; I tend to assume when I write that readers have at least some prior knowledge of my politics. So let me be clear: I am categorically opposed to the US using military force against Syria in the absence of Security Council authorization. (And I’d be very skeptical of it with authorization, but at least it wouldn’t be illegal.)
So what do I think of the US-Russian deal? For what it is, and assuming Assad complies, it seems like a good idea. Anything that reduces Syria’s stockpiles of chemical weapons is positive. Although I don’t think Assad ordered the Damascus attack, I have no doubt he would use chemical weapons if (as seems unlikely at that this point) the rebels ever threatened to overthrow his regime. And of course someone in the Syrian military used chemical weapons, so it would be great if that could not happen again. I also have little doubt that the rebels would use chemical weapons if they could, so anything that limits that possibility, as well, is a good thing. I also hope that the deal will put pressure on other states in the region — Israel and Egypt, in particular — to ratify the Chemical Weapons Convention and destroy their own stocks of the weapons.
That said, my central critique of the US obsession with chemical weapons still stands: they are only a very minor part of the conflict. The real problem is the systematic violence the Assad regime has unleashed against its own people with conventional weapons — and the equally unconscionable, if less intense, violence inflicted on those same people by the rebels. This deal not only does nothing to address that violence, it significantly distracts attention from it. When was the last time the media focused on anything in Syria other than chemical weapons? Just this week, Human Rights Watch published reports on a mass execution of 248 people by Syrian forces in May and on the Syrian military’s widespread use of cluster munitions, which are no less indiscriminate than chemical weapons, while the Commission of Inquiry published a report documenting the Syrian military’s numerous — and deliberate — attacks on medical facilities. How much attention have those reports received in the media?
My hope, of course, is that a successful resolution to the chemical-weapons problem will free up the relevant parties, and the media, to focus on the need to find non-military ways to pressure the Assad government and the rebels to stop killing innocent civilians. But I’m not holding my breath. I imagine 95% of the coverage we will see in the coming months will focus on whether Syria is actually complying with the US-Russian deal. In other words, business as usual. Meanwhile, Syrian civilians will continue to be killed through conventional means in large numbers.
That’s the tally in light of the deal that has been reached regarding Syria’s chemical weapons. The US position was that any agreement had to permit the use of force against Syria in case of noncompliance. But the US-Russian deal simply calls for the Security Council to consider the consequences of noncompliance under Chapter VII; it does not commit the Council to any particular course of action. And we know what would happen to a resolution authorizing force:
Under a “framework” agreement, international inspectors must be on the ground in Syria by November, Mr. Kerry said, speaking at a news conference with the Russian Foreign Minister, Sergey V. Lavrov.
Under the agreement, Syria must submit a “comprehensive listing” of its chemical weapons stockpiles within a week.
American and Russian officials also reached a consensus on the size of Syria’s stockpile, an essential prerequisite to any international plan to control and dismantle the weapons.
“If fully implemented,” Mr. Kerry said, “this framework can provide greater protection and security to the world.”
If President Bashar al-Assad of Syria fails to comply with the agreement, the issue will be referred to the United Nations Security Council.
Mr. Kerry said that any violations would then be taken up under Chapter 7 of the United Nations Charter, which authorizes punitive action. But Mr. Lavrov made clear that Russia, which wields a veto in the Security Council, had not withdrawn its objections to the use of force.
Obama not only failed to muster a credible threat of force, he has now failed to ensure that Syrian noncompliance will result in real consequences. Score one for Putin and Assad.
The real losers in the deal, however, are the Syrian people. If the agreement holds, Assad will have effectively been given the green light by both the US and Russia to continue killing his citizens. He just won’t be able to use chemical weapons to do it.
In From Apology to Utopia, Martti Koskenniemi mapped how international legal rhetoric can be used to “apologize” for power—to provide a fig leaf over the rude exposure of realpolitik—and how it can be utopian—making rules for a world that does not actually exist. This week we have had two examples of international law and high politics: President Obama’s speech on Tuesday and Vladimir Putin’s op-ed in today’s New York Times. And while many in the U.S. seem most concerned about Putin’s apparent skepticism toward American exceptionalism, I suggest that more attention should be focused on what his op-ed and President Obama’s speech show about how Russia and the U.S. use international legal rhetoric in pursuit of their goals.
As President Obama’s speech tried to make the case for U.S.-led military action in Syria (if the current diplomatic initiatives fail), Vladimir Putin’s op-ed argued why the U.S. should not intervene. In looking at these two texts—attempts by an American President and a Russian President to speak to the American public, and, at times, to the world—we can compare and contrast how the language of international law is used by both leaders.
Putin’s argument plays on American fears and worries but it is framed in the rhetoric of international law. There are some scare lines, such as: “A strike would increase violence and unleash a new wave of terrorism.” There is a description of a “reeling” Afghanistan where “no one can say what will happen after international forces withdraw.” And, he adds, don’t forget the divisions in Iraq and Libya. It is not in “America’s long-term interest” to have U.S. military intervention be “commonplace.” Well, that last part is true enough.
There are also some parts that are a bit hard to swallow, like his implying that his policy is based on a concern over the security of Israel or blaming the ongoing civil war on the West supplying arms to the opposition (which staying silent on Russia’s arming of the murderous Assad regime). I half-expected Putin to follow-up some of his arguments with “Bazinga!”
But all of these various points, be they persuasive or not, are placed in a frame of international legal rhetoric. Putin’s op-ed is an excellent example of Russia’s strategy of using the language of international law to try to persuade publics around the world of the wisdom of its own foreign policy, while implicitly or explicitly critiquing the policies of other states. Near the beginning of his essay, Putin explains… (Continue Reading)
What Does Putting Syria’s Chemical Weapons Under “International Control” Mean? (And Some Thoughts on Russia’s Use of International Legal Rhetoric)
With the focus now on the Russian proposal to bring Syrian chemical weapons under “international control,” questions that remain include how would this actually work? Who would take control?
One likely participant in the implementation would be the Organisation for the Prohibition of Chemical Weapons (OPCW), the implementing body for the Chemical Weapons Convention (CWC). From the OPCW website:
As of today the OPCW has 189 Member States, who are working together to achieve a world free from chemical weapons…
To this end, the Convention contains four key provisions:
1. destroying all existing chemical weapons under international verification by the OPCW;
2. monitoring chemical industry to prevent new weapons from re-emerging;
3. providing assistance and protection to States Parties against chemical threats; and
4. fostering international cooperation to strengthen implementation of the Convention and promote the peaceful use of chemistry.
See their annual reports here.
Although Syria is not a signatory to the CWC, given the OPCW’s expertise, it is a fair assumption that they would be involved in some capacity in any international control of Syria’s chemical weapons. The OPCW has already been involved in attempts to address the Syrian crisis: the UN-led group of monitors that investigated the chemical weapons attack in Damascus primarily consisted of OPCW technical experts.
As for the new proposal… [Continue Reading]
As Samantha Power (the new U.S. Ambassador to the U.N.) demands unilateral action and rages against the deadlocked Security Council, it is worth thinking again about the odd structure of the UNSC and its veto power for P-5 members. In this light, I would point our readers to an interesting piece by Andrew Carswell forthcoming in the Journal of Conflict and Security Law entitled “Unblocking the Security Council: The Uniting for Peace Resolution.” Essentially, there is some (very thin in my view) precedent from the Korean War era for the General Assembly to provide authority for the use of military force. This might allow the U.S. to seek GA endorsement of a strike against Syria due to the deadlock in the Security Council. As a practical matter, it is far from clear that a majority of the current GA would actually support the U.S. but even if it did, the legal significance of a GA act is uncertain to say the least. Still, something worth discussing.
Unfortunately, the full article is not quite done but it will be out shortly. This link may provide (for a limited time) access to his almost complete draft. His abstract is below the jump.
As readers of the blog no doubt know, Syria is is one of seven states that have not ratified the Chemical Weapons Convention (CWC). (The others are Angola, Egypt, Israel, Myanmar, North Korea, and South Sudan.) To consider Syria’s use of chemical weapons as a rationale for attacking the country, the USG obviously needs to assume that the use of such weapons is prohibited by customary international law. I have no doubt that they are; after all, the CWC has been ratified by 96% of the world’s states, and nearly all international scholars accept the idea that so-called “law-making” treaties like the CWC can generate custom. As Brownlie says in his Principles of International Law, “the number of parties, the explicit acceptance of rules of law, and, in some cases, the declaratory nature of the provisions produce a strong law-creating effect at least as great as the general practice considered sufficient to create a customary rule.”
The key is “the number of parties.” I have never seen a scholar suggest — much less an actual international court or tribunal — that whether a treaty gives rise to custom depends on the percentage of the world’s population that lives within the territorial confines of the parties to the treaty. Yet that is exactly what the Obama administration seems to be arguing. Here is what Obama said a few days ago to reporters in Sweden (emphasis mine):
“My credibility is not on the line. The international community’s credibility is on the line,” he said.
“America and Congress’s credibility is on the line, because we give lip-service to the notion that these international norms are important.”
Mr Obama, who has previously said the use of chemical weapons would cross a “red line”, told reporters it was not him who set this line but the world, “when governments representing 98% of the world’s population said the use of chemical weapons are abhorrent and passed a treaty forbidding their use even when countries are engaged in war”.
I thought Obama’s emphasis on population might have been an aberration, a slip of the tongue or a inartfully-written phrase. But Samantha Power said the same thing yesterday at the Center for American Progress (emphasis mine):
In arguing for limited military action in the wake of this mass casualty chemical weapons atrocity, we are not arguing that Syrian lives are worth protecting only when they are threatened with poison gas.
Rather, we are reaffirming what the world has already made plain in laying down its collective judgment on chemical weapons. There is something different about chemical warfare that raises the stakes for the United States and raises the stakes for the world.
There are many reasons the governments representing 98 percent of the world’s population, including all 15 members of the U.N. Security Council, agreed to ban chemical weapons.
Is the Obama administration promoting a new theory of custom, one in which the customary status of treaty depends upon the percentage of the world’s population represented by states that have ratified it, not the number of states themselves? It certainly seems to be. But why? Why not simply point out that the CWC has been ratified by 96% of states instead? Surely that must be enough to generate custom — perhaps even jus cogens!
May I venture a cynical answer? If the Obama administration had gone the black-letter route, arguing that Syria is bound by the CWC’s prohibition on the use of chemical weapons because 186 states have ratified the CWC, that would mean the US is bound as a matter of custom by a number of treaties that it has refused to ratify. The Convention on the Rights of the Child, for example, has been ratified by 190 states — 98%. So, too, the Biodiversity Convention. Even the much-maligned Kyoto Protocol has been ratified by 189 states, also 98%.
But now apply Obama’s new “98% of the world’s population” test for customary international law. Which treaties the US has refused to ratify reflect custom under that test? None of them — because the US represents 5% of the world’s population. Indeed, no treaty that does not include the US could ever cross the 98% threshold.
Magic! And convenient magic at that.
PS. I am not claiming it is 100% certain — or even 98%… — that Obama and Power are articulating a new view of the relationship between treaties and custom. It’s completely possible they are making nothing more than a political argument. But I assume that lawyers vet these speeches — especially given the surprisingly central role IL has played in the debate over Syria. I also assume that Obama and Power are aware that the CWC, which both have specifically invoked (not simply “norms” against the use of chemical weapons), does not directly bind Syria. So I think it’s fair to at least speculate that, in defending the supposed “red line” drawn by the CWC — itself illusory, as the CWC does not permit the use of force in response to breaches — it’s not an accident that neither Obama nor Power said “96% of the world’s states” but strangely emphasized 98% of the world’s population instead.