Here’s a thought experiment. Imagine if, a few years ago, in the final years of the Bush administration, a coalition of nations led by Russia, or even worse, by France, had decided it was time to launch limited airstrikes against the United States, to show that no nation can violate international norms of decency, and violate international law agreed upon by treaty after treaty, with impunity. The issue would have been torture, as national policy. We called it enhanced interrogation, but waterboarding is waterboarding, and we had once prosecuted and convicted foreigners for doing the exact same thing. We had also signed the Geneva Conventions banning that, and much more, and even if Bush’s internal legal team, led by John Yoo, had produced a secret opinion telling Bush that those Geneva Conventions were “no more than quaint” now, that didn’t mean they weren’t still in effect. John Yoo wasn’t the controlling authority anyway.
We could have argued that we had to torture certain people, simply to keep us safe, and we sort of did argue that – that Fox television drama “24″ hammered that particular message home week after week – but that was television. In real life torture produces nonsense, or what the one being tortured desperately hopes his torturers want to hear. The one being tortured will say anything to stop the pain. They guess at what you really want to hear, guessing at your deepest fears and anxieties. Anything you might find likely will do, but anything you might find likely isn’t necessarily the truth. It seldom if ever is. Torture doesn’t work, and it’s a moral outrage. It’s also a political statement, a statement that you can do any damned thing you please and everyone else had better watch out. That’s why Dick Cheney kept saying that now “the gloves come off” – we need to show no one should even think about messing with us. That will keep America safe. Any sign of weakness invites attack, and we all could die. He was fine with torture, even if he was careful not to call it that. It was policy.
The events at the Abu Gharib prison messed things up a bit. That was torture for the fun of it. There was no other reason, but we said that was a few bad apples and we punished them – except the entire chain of command, up to Rumsfeld, and above, had let it be known it was just fine to “play rough” with prisoners, as a general principle. There was little specific guidance beyond that. That’s a de facto authorization for torture, an official one. Our hands were never clean, which might have justified other nations intervening to slap us around and set us straight. They couldn’t of course. It’s good to be the world’s only superpower.
At least we didn’t use chemical weapons. Syria did that, and we’re set to punish them for that, and we will. They’re not a superpower, so we can do that, except the grounds for doing that are a bit shaky:
As they move toward military action in Syria, possibly within days and presumably without the backing of a United Nations Security Council resolution, the United States, Britain and France find themselves enmeshed in a debate over practical and moral questions regarding the necessity of a solid legal rationale for armed intervention.
The issue is suffused with memories of the march to war in Iraq more than a decade ago and the later discovery that Saddam Hussein did not possess the banned weapons programs used as justification for that invasion.
In this case, it largely comes down to a question of whether the Western allies can assemble a sufficiently broad coalition of support for their action, given that many experts say that existing treaties, laws and precedents do not offer a simple or clear-cut case for a military strike against President Bashar al-Assad of Syria and his forces.
Nothing is ever clear, but American, British and French officials have emphasized that any strike on Syria will be punitive – only that. Whatever we do will be short-term and not aimed directly at ousting Assad or anything like that. Imagine if a few cruise missiles had slammed into American military facilities in Texas or Kansas to let George Bush know all this torture stuff had to end right now – but he can stay in office. No one would be ousting the whole US government or anything. It would be like that.
That’s a little absurd, but oddly logical, and the logic here is becoming a problem:
Concern about domestic and international pressure to show legal authority or international backing or both helps explain why Prime Minister David Cameron of Britain insisted on going to the Security Council on Wednesday with a request for a resolution – despite the opposition to such a step from Russia, and probably China – and why he promised Parliament a second vote on authorizing military action.
This gets tricky:
To cite the 1925 Geneva Protocol banning chemical weapons, as the British and French do, is legally tenuous, since it has no enforcement provisions and has never been employed to justify a strike, he said. And Syria never signed the 1993 follow-up Chemical Weapons Convention.
Another alternative is the newer doctrine of “responsibility to protect,” derived from the Clinton administration’s invocation 14 years ago of “humanitarian intervention” to justify its bombing campaign to halt Serbia’s ethnic cleansing in Kosovo.
Perhaps using chemical weapons triggers that, but perhaps not. Everyone is making this up as they go along, on a vague hope:
Although President Obama has not yet made clear his own intentions, French and British officials suggest that an intensive missile attack on Syrian government and military installations and airfields, even of short duration, could not only degrade Syria’s ability to deploy chemical weapons but also encourage Mr. Assad to join in serious negotiations in Geneva to find a political solution to the long conflict.
Why would he do that? The attacks would end in a few days.
Ian Hurd, an associate professor of political science at Northwestern, adds additional detail to the legal problems here:
The latest atrocities in the Syrian civil war, which has killed more than 100,000 people, demand an urgent response to deter further massacres and to punish President Bashar al-Assad. But there is widespread confusion over the legal basis for the use of force in these terrible circumstances. As a legal matter, the Syrian government’s use of chemical weapons does not automatically justify armed intervention by the United States.
There are moral reasons for disregarding the law, and I believe the Obama administration should intervene in Syria. But it should not pretend that there is a legal justification in existing law. Secretary of State John Kerry seemed to do just that on Monday, when he said of the use of chemical weapons, “This international norm cannot be violated without consequences.” His use of the word “norm,” instead of “law,” is telling.
No law actually applies here:
Syria is a party to neither the Biological Weapons Convention of 1972 nor the Chemical Weapons Convention of 1993, and even if it were, the treaties rely on the United Nations Security Council to enforce them – a major flaw. Syria is a party to the Geneva Protocol, a 1925 treaty that bans the use of toxic gases in wars. But this treaty was designed after World War I with international war in mind, not internal conflicts.
What about the claim that, treaties aside, chemical weapons are inherently prohibited? While some acts – genocide, slavery and piracy – are considered unlawful regardless of treaties, chemical weapons are not yet in this category. As many as 10 countries have stocks of chemical weapons today, with the largest held by Russia and by the United States. Both countries are slowly destroying their stockpiles, but missed what was supposed to be a final deadline last year for doing so.
There’s not much to work with:
There is no doubt that Assad’s government has violated humanitarian principles throughout the two-year-old war, including the prohibition on the indiscriminate killing of civilians, even in non-international conflicts, set out in 1949 in the Geneva Conventions. But the conventions also don’t mean much unless the Security Council agrees to act. It is an indictment of the current state of international law that there is no universally recognized basis to intervene.
Arguably, the key legal obligation of nations in the post-1945 world is adherence to the United Nations Charter. It demands that states refrain “from the threat or use of force against the territorial integrity or political independence of any state.” The use of force is permitted when authorized by the Security Council or for self-defense (and countries like Jordan and Turkey are considering this route to justify joining an anti-Assad coalition) – but not purely on humanitarian grounds.
This leaves us in an odd position:
If the White House takes international law seriously – as the State Department does – it cannot try to have it both ways. It must either argue that an “illegal but legitimate” intervention is better than doing nothing, or assert that international law has changed – strategies that I call “constructive noncompliance.”
That also might be called lawlessness, but Slate’s Matthew Yglesias has an idea:
I was in a meeting recently in Washington with a whole bunch of important people, when I heard a chilling phrase: Obama had “no good options” in Syria. It’s become a cliché. Aaron David Miller in a CNN commentary said there were “no good options” for dealing with the situation. Michael Tomasky of the Daily Beast wonders if bombing Syria is America’s “best bad option.” This is how Washington talks itself into a war that has little public support and scant basis in facts or logic. It’s completely unclear how much military strikes will weaken Bashar al-Assad’s regime and also completely unclear to what extent a weaker Syrian regime serves American or humanitarian interests. Military engagement has potentially large downsides and essentially no upsides. But we can brush that all under the table with the thought that there are no good options, which makes it pay to endorse some shoddy ones.
Except in this case this is total nonsense. Obama has an excellent option. It’s called “don’t bomb Syria.” Don’t fire cruise missiles at Syria either. Or in any other way conduct acts of war. Condemn Assad’s violations of international humanitarian law. If rebels violate international humanitarian law, condemn them, too.
There’s another way to put that. Use the law, such as it is. Don’t say the law doesn’t matter. Once everyone starts saying that, everything is lost.
Yglesias explains how this might work:
Work at the United Nations to get wrongdoing punished. Insofar as geopolitically-driven Russian and Chinese intransigence prevents that from happening, accept alliance politics as a fact of life. The government of Bahrain has killed dozens of protesters since the outbreak of the Arab Spring, and America has done nothing. We haven’t cut aid to Egypt despite massacres there, and while it’s at least imaginable that we might cut aid at some point, we certainly won’t be green-lighting any cross-border attacks on the Egyptian military. We don’t have to like it when our friends in Beijing and Moscow block our schemes, but there’s no need to be self-righteous about it.
There’s also this:
Obama’s good option would be to reread his administration’s official National Security Strategy, which sagely argues that “as we did after World War II, we must pursue a rules-based international system that can advance our own interests by serving mutual interests.”
In this case, the relevant rules are in Chapter VII of the United Nations Charter, which states that all countries have an “inherent right of individual or collective self-defense” in the case of an armed attack. Bombing Syria would not be an act of U.S. self-defense. Nor would it be an act of collective self-defense in which the United States comes to the aid of an ally. Beyond individual and collective self-defense, military action may be legally undertaken at the direction of the Security Council. In this case, direction will not be forthcoming, which is what makes Obama’s choice easy. He needs to stick with the pursuit of a rules-based international system by, in this case, playing by the rules.
Should we play by the rules? The Bush-Cheney crowd didn’t, but Obama said he would, right there in his official National Security Strategy. He would not be Bush. Now he will be.
So there you have it. Doing nothing would be the good option, and one that Obama cannot take:
What makes it a bad option in the eyes of many is the reality that following my advice will lead to the deaths of many Syrian civilians. That is truly and genuinely tragic. On the other hand, it is by no means clear that bombing military institutions will reduce the number of civilian casualties. Historically, military intervention on the side of rebel groups has increased the pace of civilian deaths, not decreased it.
More to the point, if you put arbitrary framing issues aside, the United States stands by and does nothing in the face of human tragedy all the time. Millions of desperate people in Haiti, Mexico, Nicaragua, and elsewhere would love to escape dire poverty by moving to the United States to work, and we don’t let them. Nobody in Washington is doing anything about the ongoing civil war in Congo.
We’ve been heartless. We ought to be honest and accept that:
One way to look at this – the heartless way – is that the United States is really good at being indifferent to foreign suffering, and that in the case of Syria, we have a pretty strong reason for indifference.
Another way of looking at it – the bleeding-heart, correct way – is that Americans ought to care more about the lives of people outside our borders. That we ought to be more open to foreign immigration and foreign trade to help bolster foreign economies. That when the Office of Management and Budget does cost-benefit analysis for regulatory measures to curb greenhouse gas emissions, it ought to consider the impact on foreigners. That both as individuals and as a government we ought to do more to support charities such as the Against Malaria Foundation or Give Directly that save 10 times as many innocent lives or more than humanitarian military interventions.
If we want to help foreigners we should actually do that, and not bomb them:
To be clear, the mere fact that bombing is rarely an optimal or cost-effective way of helping foreigners is not a reason to avoid doing it – the reason to avoid unilateral bombing campaigns is that the pursuit of long-term peace requires the United States to play by the rules. But if reading the news or watching television and thinking about the poor Syrian civilians is leaving you so conscience-stricken that somehow allowing the civil war to continue is intolerable, then think about all the other suffering you aren’t seeing on television. Try doing something to help some of those people. President Obama himself needs to consider that his and his senior staff’s time and attention are one of the scarcest and most valuable resources on the planet. He needs to be spending that time wisely. If he finds himself pondering a problem for which he thinks he has “no good options,” that means he ought to move on to something else – to problems for which he does have good options but where the issue itself is languishing in obscurity. But for an unsolvable problem like Syria, the good option is the sensible one: Do nothing, and don’t start any unnecessary and illegal wars.
Others see this. In the American Conservative, Noah Millman argues here that, if “we launch an attack on Syria, it will not be under any legal warrant whatsoever” of course:
The entire public justification for an attack is to punish Syria for a crime of war – that is to say, the justification is the need to uphold international law. In other words, an attack would be an open declaration that the United States arrogates to itself the right to determine what the law is, who has violated it, what punishment they deserve, and to take whatever action is necessary to see it carried out.
At the same site, Daniel Larison adds this:
What strikes the U.S. and its allies launch against Syrian forces in the next few days will be contrary to international law. Now most Americans and even some American liberal internationalists probably don’t care about this, but it is a fairly significant flaw in the claim that the forthcoming missile strikes have something to do with enforcing international norms and creating a “rules-based order.” Indeed, it sinks the only argument for this particular attack.
Well, we do want Assad gone, but that may be its own problem, as Joshua Landis argues here:
The opposition is incapable of providing government services: Millions of Syrians still depend on the government for their livelihoods, basic services, and infrastructure. The government continues to supply hundreds of thousands of Syrians with salaries and retirement benefits. Destroying these state services with no capacity to replace them would plunge ever larger numbers of Syrians into even darker circumstances and increase the outflow of refugees beyond its already high level. Syria can get worse.
Most militias are drawn from the poorer, rural districts of Syria. Most wealth is concentrated in the city centers that remain integral (such as Damascus, Lattakia, Tartus, Baniyas, Hama, etc.), which have survived largely unscathed in this conflict, and have not opted to continue the struggle. If the militias take these cities, there will be widespread looting and lawlessness which will threaten many more civilians who have managed to escape the worst until now.
Many in these urban centers have managed to continue leading fairly stable lives up to the present; despite the tremendous level of destruction seen so far, many areas are still a long way from the bottom. It would be preferable to avoid a Somalia-like scenario in the remaining cities and provinces.
We do have to ask ourselves what we want, and a Somalia-like scenario probably isn’t it. We want to make things better, just like we did in Iraq. No, wait.
And then things got very weird:
Former Defense Secretary Donald Rumsfeld, who helped sell Congress and the American people on the wars in Iraq and Afghanistan under former President George W. Bush, believes the Obama administration has failed to justify any potential military intervention in Syria.
“One thing that is very interesting, it seems to me, is that there really hasn’t been any indication from the administration as to what our national interest is with respect to this particular situation,” Rumsfeld said in an interview with Fox News’s Neil Cavuto scheduled to air later Wednesday, as quoted by The Hill.
White House press secretary Jay Carney pressed the administration’s argument earlier this week, telling reporters that failing to respond to a reported chemical weapons attack by the Assad regime in Syria would pose a “significant” threat to U.S. national security.
One of these two isn’t making sense here. Rumsfeld has changed, or he still enjoys being a pain in the ass, or more politely, a contrarian – but he’s one to talk. He saw reason enough to go to war with Iraq, a series of reasons that fell apart, one after the other until there were none left – and he directed what amounted to systematic torture, as policy, even if he didn’t call it that. He’s lucky a coalition of well-armed nations didn’t intervene to stop him – but then that’s something we alone do, when it suits us. And it suits us now, even if it doesn’t make a lick of sense.