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Middle East

Why It’s Not Surprising Syria Is Destroying Its Chemical Weapons

by Kevin Jon Heller

A couple of weeks ago, Mother Jones blogger Kevin Drum said he was surprised that Syria has, by all accounts, voluntarily given up its chemical-weapons capability:

I don’t really have any comment about this, except to express a bit of puzzlement. As near as I can tell, Bashar al-Assad is really and truly sincere about destroying his chemical weapons stocks.1 But why? I very much doubt it’s because he fears retaliation from the United States. And given his past behavior, it’s hardly likely that it’s driven by feelings of moral revulsion.

So what’s his motivation? For reasons of his own, he must have decided that he was better off without chemical weapons than with them. Perhaps it has to do with the internal political situation in Syria. Or maybe Russia got fed up for some reason. But it’s a bit of a mystery, and not one that I’ve seen any plausible explanations for.

I don’t think it’s a mystery at all. Here is the explanation:

Forces loyal to Syrian President Bashar Assad have firmly seized the momentum in the country’s civil war in recent weeks, capturing one rebel stronghold after another and triumphantly planting the two-starred Syrian government flag amid shattered buildings and rubble-strewn streets.

Despite global outrage over the use of chemical weapons, Assad’s government is successfully exploiting divisions among the opposition, dwindling foreign help for the rebel cause and significant local support, all linked to the same thing: discomfort with the Islamic extremists who have become a major part of the rebellion.

The battlefield gains would strengthen the government’s hand in peace talks sought by the world community.

Both the Syrian government and the opposition have said they are ready to attend a proposed peace conference in Geneva that the U.S. and Russia are trying to convene, although it remains unclear whether the meeting will indeed take place. The Western-backed opposition in exile, which has little support among rebel fighters inside Syria and even less control over them, has set several conditions for its participation, chief among them that Assad must not be part of a transitional government — a notion Damascus has roundly rejected.

“President Bashar Assad will be heading any transitional stage in Syria, like it or not,” Omar Ossi, a member of Syria’s parliament, told The Associated Press.

The government’s recent gains on the outskirts of the capital, Damascus, and in the north outside the country’s largest city, Aleppo, have reinforced Assad’s position. And the more the government advances, the easier it is to dismiss the weak and fractious opposition’s demands.

As I have pointed out before, the US’s obsession with chemical weapons was manna from heaven for Assad. There is still no hard evidence that Assad personally ordered the Syrian military to use chemical weapons, and it would have been suicide for anyone associated with the Syrian government to risk US military intervention by using them again. Assad thus essentially traded his strategically useless chemical-weapons capability for the right to wage a ruthless counter-insurgency with impunity. That trade has obviously worked — there is almost no chance at this point that the rebels will overthrow Assad’s government, and it is equally unlikely that Assad will ever step down as part of some kind of negotiated peace agreement. Why would he? He is winning the war, and the West has essentially lost interest in the mass atrocities he has committed, and continues to commit, against innocent Syrian civilians. Indeed, the Syrian military is now routinely using incendiary weapons to kill civilians, yet the West remains silent.

But at least Assad no longer has chemical weapons. Success, right?

Carsten Stahn Guest Post: On Intervention, Narratives of Progress, Threats of force and the Virtues of Case-by-Case Assessment–A Rejoinder to Koh (Part III)

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project. An earlier post on this appears here.]

Harold Koh and Daniel Bethlehem deserve credit for having launched this important and timely debate. Koh has formulated an excellent reply to critiques to his post which stands in the best tradition of debate over the prohibition of the use of force. As we all known, Article 2 (4) has been declared dead and rejuvenated too many times. It is thus legitimate to have struggles as to the proper way forward. I see merit in the need to map ‘current law onto modern reality’.  But I would argue that some of the underlying elements of his existing proposition of an ‘affirmative defence are rooted in tensions that are unlikely to be solved through discourse over the creation a new substantive exception to the prohibition of the use of force. A case-by-case assessment may be ultimately better than an abstract rule to accommodate the problems inherent in a formulation of a doctrine that has been controversial for centuries.  I would like to highlight three aspects that may require deeper reflection in the debate: (i) narratives regarding ‘progress’, (ii) the relationship between ‘threat of force’ and ‘use of force’, and (iii) the choice of the appropriate methodology for the way ahead.  

1. Observational standpoints and narratives of progress

Firstly, it is important to clarify observational standpoints. Koh presents change to the rule a ‘progress’ and adherence to it as stalemate. I have doubt whether the debate can be adequately addressed, let alone resolved, based on the dichotomy between a progress-adverse ‘absolutist’ view, represented by the illegal per se rule, and a modern ‘reformist ‘view’ which would argue that the rule is not ‘black and white’. It is an oversimplification to divide scholarly opinion into these two camps. Most international lawyers would acknowledge that the Charter is a ‘dynamic instrument’. It is a given, and not a point of controversy’ that it should be interpreted in light of its objectives and purposes. There are cases in which Art. 2 (IV) does not prohibit the use of force, such as intervention by invitation which raises difficult issues of the legitimacy consent in the context of civil war (as noted by Jordan Paust). The ICJ recognized in Nicaragua (Judgment, 27 June 1986, para. 175) that conventional and customary law on the use of force are not necessarily identical in content.  Even proponents of a strict interpretation of Article 2 (4) recognize ‘shades of grey’ and options for development. There may thus more agreement than divide.

In my view, Koh takes a shortcut by criticizing international lawyers for having ‘become more comfortable stating rules than in figuring out how international law might help to push unfolding events towards the right resolution’. The roots of the controversy lie deeper. Koh’s position is based on a specific approach towards international law. His argument is based on the premise that international law is an instrument of problem-solving and a tool to facilitate decision-making processes over war and peace. This approach advocates different prerogatives than a more systemic vision of international law that regards norms and institutions as the centre of a normative system that protects collective interests and values and constrains behavior. This tension has been inherent in approaches to international law for decades.

The main problem with Koh’s position is not so much the normative content of the proposition, i.e. the claim that use of force may in some circumstances be in the spirit of Charter principles and help ‘protect human rights. The fundamental difficulty of Koh’s argument is that it reduces the options for accountability of military action.  It shifts the balance from a centralized enforcement system to a decentralized system where nations become the arbiters over the legality of their claims to intervention. This causes fears and anxieties among many UN members. Koh’s plea for new abstract regulation would give formal recognition to the claim that the Council is an option à la carte than can be turned on and switched off in ‘hard cases’ where there is no agreement. Giving up this constraint weakens leverage for compliance and the need to justify choices of behavior before a collective forum, in circumstances in which international law is most important in debate. This is a position that many nations will be reluctant to sacrifice for the gain of greater clarity on the rule.

One of the main dilemmas of ‘humanitarian intervention’ has been the question of ‘agency’, i.e. that action is carried out in the name of others. It has been inherent in humanitarianism since it its inception. R2P mitigated this dilemma through recourse to collective response schemes.  Koh’s suggested new rule turns a ‘blind eye’ to this. It fails to engage with the question how intervening nations could claim authority to speak for others/victims.  In the African Union, this dilemma has been mitigated by an institutional solution, i.e. consent under Articles 4 (h) and (j) of the Constitutive Act which recognizes

‘the right of the Union to intervene in a member State pursuant to a decision of the Assembly in respect of grave circumstances, namely; war crimes, genocide and crimes against humanity’.

Koh’s suggested norm does not address such institutional safeguards.  It simply uses institutional support as one optional parameter to support the claim for legality. He suggests that the claim for exemption from wrongfulness would be  ‘strenghtened’ if intervening nations could demonstrate ‘that the action was collective’. This may simply not be enough. (more…)

Putting the Cart Before the Horse? Top Panel of International Criminal Law Experts Proposes “Extraordinary” Criminal Tribunal for Syria

by Julian Ku

As one commenter to Ken’s post on the draft UN Security Council Resolution notes, there will be no Security Council referral to the ICC on Syria. Currently there is one paragraph in the draft resolution expressing the Security Council’s “strong conviction that those individuals responsible for the use of chemical weapons in the Syrian Arab Republic should be held accountable;”  That’s not much, but it might be enough of a hook for some future UN Security Council or a future Syrian government to set up a hybrid ad hoc criminal tribunal to hold “accountable” those users of chemical weapons.

So it is worth noting that friend of blog Michael Scharf of Case Western Reserve University Law School alerts us to a proposed “Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes” that he, and a panel of blue-ribbon international criminal law experts, have released under the auspices of the Public International Law and Policy Group (PILPG).  The panel of experts is both distinguished and experienced on questions of international criminal law, and on the nitty-gritty details of setting up international criminal tribunals.  They will be discussing next week at a press conference in DC and it should get quite a bit of attention among US and UN policymakers.  It is a discussion draft, and it is not an attempt to demand the UN or Syrian governments establish something exactly along these lines.  Rather, it is an attempt to get the ball rolling among lawyers and policymakers.

One move in the proposed draft stands out.  The proposed tribunal is not exactly an international criminal tribunal, and indeed, it is not necessarily even a hybrid tribunal (with a mix of international and domestic judges) although its closest analogue appears to be Cambodia. Rather, it could be simply a special court set up under Syrian law to prosecute high-level offenders for violations of international law.  One advantage to this approach?  I don’t think it would require UN Security Council action to set up such a tribunal.  So that is a useful nod to political realities and Russia’s current position.

One (really big) disadvantage to this approach? We would need a new Syrian government to set up and carry out this proposed statute.   And to get that new Syrian government, would we have to promise some sort of immunity to the old Syrian government that committed all those horrible crimes we want to prosecute?

Obviously, there is a lot to sort through, and I do salute Prof. Scharf for getting the conversation rolling in a useful and politically realistic way.  But there are not just legal, but enormous political issues that need to be dealt with before key details of such a tribunal could be determined.

Brief Thoughts on the Russia-US Deal (and No, I’m Not in Favor of Force)

by Kevin Jon Heller

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.

Putin & Assad: 1; Obama: 0; Syrian People: -1

by Kevin Jon Heller

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.

Does the Washington Post Editorial Page Have ANY Standards Left?

by Kevin Jon Heller

Apparently not, because yesterday’s war propaganda editorial by Sebastian Junger beating the drum for attacking Syria is just spectacularly awful. I’ve been out of the fisking game for a while, but the editorial simply can’t pass unmentioned.

Every war I have ever covered — Kosovo, Bosnia, Sierra Leone and Liberia — withstood all diplomatic efforts to end it until Western military action finally forced a resolution. Even Afghanistan, where NATO troops stepped into a civil war that had been raging for a decade, is experiencing its lowest level of civilian casualties in more than a generation.

When you’re citing Afghanistan — now in its 12th year of conflict, with tens of thousands of civilian casualties, millions of refugees, 3300+ dead US soldiers, and a price tag nearing $500 billion — as an example of successful Western military action, you should probably just stop, delete your file, and go play with your kids.

(But I do like the slogan for the US: “Year 12 in Afghanistan: Lowest Civilian Casualties Ever!”)

That track record should force even peace advocates to consider that military action is required to bring some wars to an end. And yet there’s been little evidence of that sentiment in American opposition to missile strikes against military targets in Syria.

Obama has specifically disclaimed any intention to end the Syrian civil war through military action. But whatever…

From Apology to Bazinga!: International Legal Rhetoric in Obama’s Speech and Putin’s Op-Ed

by Chris Borgen

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)

Obama’s “Credible Threat” of Military Action Against Syria

by Kevin Jon Heller

In his speech yesterday, Obama predictably took credit for the latest developments regarding Syria’s use of chemical weapons:

In part because of the credible threat of U.S. military action, as well as constructive talks that I had with President Putin, the Russian government has indicated a willingness to join with the international community in pushing Assad to give up his chemical weapons. The Assad regime has now admitted that it has these weapons, and even said they’d join the Chemical Weapons Convention, which prohibits their use.

Such shameless credit-mongering is more than a little difficult to swallow. Had Syria’s new willingness to give up its chemical weapons materialized two weeks ago, when Obama was still rattling his sabre and promising to attack Syria without congressional authorization, it would have been reasonable to conclude that the “credible threat of US military action” was the decisive factor in Assad’s capitulation. But now? Just days after Obama acknowledged that it would be very difficult for him to attack Syria against the will of both Congress and a large majority of the American people? Sure, he hedged a bit, insisting that he has the authority to attack Syria anyway. But I doubt many people (especially Assad) take Obama’s hedge seriously — defying the will of Congress would at a minimum lead to the extremist House holding him in contempt, and it could well lead to a foolish and ultimately doomed attempt to impeach him. The last thing Obama needs is to spend the final few years of his presidency dealing with either possibility — especially given that attacking Syria would accomplish next to nothing from a military standpoint and runs the risk of dragging the US far more deeply into the Syrian civil war than Obama wants.

The idea that the latest diplomatic developments are attributable to the US’s “credible threat” of military action in Syria, then, is anything but credible. Indeed, I’d like to suggest an alternative explanation, one that leads me to be relatively optimistic about the fate of the Russian proposal: this is a diplomatic dream come true for Assad. (And Russia, for that matter.) Although I think there is little doubt left that Syria’s military used chemical weapons against civilians, there is still no evidence that Assad ordered their use. The new Human Rights Watch report specifically concludes that the Syrian government is responsible for the Damascus attack, but it does not claim that Assad himself was responsible for them. And a German newspaper has claimed that “high level national security sources” in the German government believe that Assad “did not personally order last month’s chemical weapons attack near Damascus… and blocked numerous requests from his military commanders to use chemical weapons against regime opponents in recent months.”

I have no idea whether the German report is true, and I’m skeptical of the claim that Assad actively blocked the use of chemical weapons. But I find it very difficult to imagine that Assad was behind the Damascus attack. Had the attack occurred last year, when it looked (at least for a time) like the rebels might actually be able to overthrow the government, I would have had no problem believing that Assad was behind it. He’s clearly a monster, and I’m sure he would use any weapon in his arsenal as a last resort. But why now? Why would Assad use a weapon that has very little tactical military use when it seems clear that the rebels are slowly losing the war? Assad may be a monster, but he’s not an irrational one. He had to have known that using chemical weapons so openly would be of little military benefit and would run the risk of international condemnation and even military intervention. So I find it unimaginable that he would have used them anyway.

If Assad was not responsible for the attack, and if he thinks he is going to win the civil war, the Russian proposal for avoiding US military intervention is a fantastic solution to his international problems. Assad gives up weapons he has no intention of using anyway, and in exchange he reaps the diplomatic benefits of giving them up and avoids being attacked by the US. And, of course, he remains free to keep on killing innocent civilians with conventional weapons, which the US has made clear it has no intention of using force to stop. As I said, a dream come true for Assad.

Obama can claim all he wants that he’s responsible for the possibility of Syria giving up its chemical weapons. In reality, it’s just as plausible that Assad has played him like a fiddle.

What Does Putting Syria’s Chemical Weapons Under “International Control” Mean? (And Some Thoughts on Russia’s Use of International Legal Rhetoric)

by Chris Borgen

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]

Can the General Assembly Provide a Way Around the Security Council on Syria?

by Julian Ku

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.

Syria Insta-Symposium: Geoff Corn–The President, Congress, Syria: What If?

by Geoffrey Corn

[Geoffrey Corn is the Presidential Research Professor of Law at South Texas College of Law in Houston. His prior articles addressing war powers include: 123.]

It seems almost abundantly clear that President Obama has resolved the question of “what if” the United Nations Security Council is unwilling to authorize military action against Syria for use of chemical weapons. The U.S. will act without such authorization, unilaterally if necessary. Why? Well, we know there are numerous overt and sub rosa motives being discussed, but ultimately because of a U.S. conclusion that the UNSC has proven ineffective. To bolster the credibility of this assertion, which is obviously dubious to certain other permanent members of the Security Council and countless other states, international law experts, and observers, the President has asked Congress to endorse his planned punitive strike with express statutory authorization.

Many have hailed this decision to submit the matter to Congress as a positive manifestation of the President’s respect for the Constitution’s allocation of war powers. But in reality, while Congress may be developing what it views as an authorization to use military force, this is not exactly how the President views their effort. Instead, he, like predecessors who have also sought express statutory authority for military actions, views it much more as support for the use of military force. Just as President George H.W. Bush emphasized when he, in 1991, requested congressional authorization to use military force to implement UNSC Resolution 678 and oust Iraqi forces from Kuwait, President Obama insists that while he wants this authorization, he does not need it. Of course, President Obama assertions of ‘desire’ versus ‘necessity’ follow the pattern of all modern presidents. However, by seeking authorization, the President does seem to be assuming a greater degree of risk than had he acted on his own asserted Article II authority. Thus, ironically, while the request for authorization will enhance strategic and constitutional legitimacy should Congress support the President, the risks associated with a down vote invokes the parable that, “it is easier to seek forgiveness than ask for permission.”

So, “what if” a majority of at least one house votes against his request, preventing enactment of an AUMF?  (more…)

Syria Insta-Symposium: The Significance of Chemical Weapons Use Under International Law

by Krista Nelson

[Krista Nelson, PhD, JD, is a recent graduate of Yale Law School]

The Obama administration’s advance toward air strikes stems from the Syrian government’s alleged use of chemical weapons, but under international law does it matter if civilians are being killed with chemical weapons rather than conventional means? And how does the prohibition on chemical weapons interact with international law on the resort to force?

From the law of armed conflict (LOAC) perspective, the use of chemical weapons in Syria was not a game-changer. LOAC is concerned with harm to civilians in armed conflict, whatever the means or methods. Certain weapons are a concern largely because a) they do not distinguish between people who can be attacked and those who are off-limits, and thus they violate the principle of distinction; or b) they cause more harm than necessary to permissible targets, which is not the main issue in the present case. In Syria, the principle of distinction seems to have been thrown out the window long ago; reportedly, thousands of civilians have been killed (even directly attacked) using conventional means. Of course, LOAC does not look kindly on weapons that cause particularly gruesome harm to innocent people, but the first and foremost problem is that civilians are being attacked with any weapons at all.

By contrast, the use of chemical weapons is a critical problem under arms control law. But arms control is not just concerned with use, which is the focus of LOAC – it covers other activities like weapons development, production, stockpiling, proliferation; and it applies in peace as well as conflict. Moreover, arms control has diverse aims with respect to weapons, ranging from reducing suffering or protecting civilians in conflict to preventing conflict from breaking out in the first place and shaping balances of military power.

Current Obama administration statements draw more from arms control than LOAC, citing various concerns from the particular suffering chemical weapons caused to the proliferation of other weapons of mass destruction. The administration suggests that the use of chemical weapons links the Syrian conflict to U.S. national security interests – a claim supported with arguments that Syria’s alleged use of chemical weapons is bound up with other weapons (e.g., nuclear weapons), other actions (e.g., proliferation), and other countries (potential victims as well as perpetrators of weapons-related violations).

What arms control law does not provide is a trigger for the resort to force, the Obama administration’s preferred course of action and the main international legal controversy. Arms control provides no clear avenue around the international legal requirement of a UN Security Council resolution or a self-defense justification, neither of which the Obama administration claims to have. Indeed, one particularly relevant arms control treaty – the Chemical Weapons Convention – provides a framework for addressing non-compliance that points to multilateralism, UN Security Council participation, and conformity with international law. Chemical weapons use may be a game-changer for President Obama, but the rules of the game have not disappeared.

Statements on Syria bear less resemblance to justifications for NATO’s 1999 campaign over Kosovo (where an ethnic cleansing was taking place, triggering what has been called a “humanitarian intervention”) than to the 2003 Iraq War, which was justified with a mix of humanitarian and strategic ideas including emphasis on weapons of mass destruction. Unlike the present situation, attempts were made to justify the use of force using a UN Security Council resolution from the previous decade, as well as the notion of preemptive self-defense.

Perhaps the Obama administration thinks that combining expansive arms control concerns, including some humanitarianism, may effectively push against the rules on the resort to force. If the broad provisions of the proposed authorization for the use of military force are any indication, the U.S. government may tap into diverse concerns, looking for international legal justifications under the biggest umbrella it can find.

That approach would be a different and perhaps bolder challenge to rules on the use of force than humanitarian intervention or President Bush’s preemption. It is true that the significance of chemical weapons use varies in international law, but existing law does not seem to justify the role the Obama administration has assigned it. If the Obama administration has its way, the use of chemical weapons may punch above its international legal weight.