If Syria Used WMD, It Violated International Law. But So Would a US Intervention.

by on 2013-08-28 in Duck- 14 Comments

In the New York Times yesterday, Northwestern University political scientist Ian Hurd lays down the law on Syria and intervention:

As a legal matter, the Syrian government’s use of chemical weapons does not automatically justify armed intervention by the United States… Syria is a party to neither the Biological Weapons Convention of 1972 nor the Chemical Weapons Convention of 1993… 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.

[And] the conventions also don’t mean much unless the Security Council agrees to act. The United Nations Charter… 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  — but not purely on humanitarian grounds.

Of course ethics, not only laws, should guide policy decisions…  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.” In the case of Syria, I vote for the latter.

Hurd is right about a great many things: that Syria’s obligations under treaty law are weaker than people want to think; that there are legal tensions here that the US cannot and shouldn’t try to wish away; and that a decision must be made between doing something and doing something lawfully; and that the robustness of international norms around both R2P and chemical weapons are at stake in how the US and UK frame the discussion.

But I think Hurd is both under-stating the case about Syria’s international legal obligations, and over-stating the case about US options in framing a potential military intervention. International law indeed is “changing” – but the relevant changes he describes apply to Syria’s responsibility to its civilians, not to the US’ right to reinterpret the UN Charter. And ultimately, as he points out, even Syria’s violations of law don’t make it lawful for the US to intervene without a Security Council resolution – however ethically right such an intervention may be. The two are really separate legal questions so I’ll address them separately below.

First: did Syria’s use of chemical weapons put it in violation of international law? I should begin by pointing out that Syria is still only suspected of having used these weapons, and the UN investigation into the source of the attack is still ongoing. However, let’s assume for the sake of argument that the attack came from the Syrian government and not from insurgents aiming to provoke a Western intervention. As a “legal matter,” Hurd is right to point out that Syria is not technically in violation of the Chemical Weapons Convention (CWC) or the Rome Statute of the ICC (which also codifies the chemical weapons taboo), being a non-signatory to both treaties, as states are only bound by treaty obligations they agree to. Syria is, however, in violation of the International Covenant on Civil and Political Rights and Common Article 3 of the Geneva Conventions which outlaws arbitrary killing of one’s citizens  in peacetime or of noncombatants – even in civil wars. Moreover, despite not being bound by current treaty law on chemical weapons, Syria is arguably in violation of the international customary law prohibiting their use. The CWC is so widely ratified, the prohibition on use so frequently cited in war crimes jurisprudence, the behavior of most states so consistently in compliance that this “norm” is in fact considered by the International Committee of the Red Cross to have the status of customary law. Indeed, the fact that Syria is bending over backward to deny its use of the weapons strongly suggests that it too considers itself beholden to these rules.

But as Hurd secondly points out, none of this really matters to the question of the legality of a US strike against Syria, since military strikes against other states are governed by a completely different set of rules: the UN Charter which in almost ll circustances renders dispute resolution by force unlawful (Article 2). Except in cases of self-defense (Article 51), only the Security Council can legalize the use of armed force (Chapter 7), so I see only three ways at best in which a strike against Syria for internal, humanitarian reasons could be considered “legal.” First would be the highly unlikely event that both China and Russia could be persuaded to abstain from a veto in the Security Council. Second would be a Uniting for Peace Resolution in the General Assembly – also unlikely and arguably a weaker legal position given the non-binding authority of the GA. Third, states subject to significant refugee flows as a result of the crisis could undertake an intervention on the basis of “self-defense.” Note that this argument would be agnostic in terms of chemical weapons per se so it would be a very different kind of intervention; and it implies that Turkey or Jordan would take the lead, not NATO [as an organization or other Western] powers. By contrast, if Western powers led the attack without the Security Council or the General Assembly, it is hard to argue that it would be legal – regardless of what Syria has done inside its borders.

That said, there are a number of reasons to think an intervention might be considered normatively legitimate in empirical terms, despite its technical illegality. There is the precedent of Kosovo, where NATO failed to seek a UN resolution but where Russia also failed to pass a resolution condemning the air war – a sign Nicholas Wheeler has argued demonstrates the existence of a humanitarian intervention norm despite its absence in law. There is the Responsibility to Protect (R2P) doctrine, affirmed in numerous soft law instruments and in the behavior and rhetoric of the Libya intervention. There is the inter-subjective horror of chemical warfare shared by international society and the sense that this is a crime not just against individual human beings but against all humanity. Whether or not a majority of the global community would react to affirm the use of military strikes even without a Security Council authorization to enforce this taboo is something we can only know in hindsight. However the refusal of the Security Council to condemn NATO’s illegal air war in Kosovo because it was widely seen as an enforcement of the anti-genocide taboo suggests this could be the case. In each of these cases, however, it would not change the fact that the war itself would be a violation of the UN Charter. It is only an question of whether international normative sentiment would be sufficient to trump international law.

That’s an empirical question. The important policy question is whether it suits US interests to affirm international law, or to trump it on ethical grounds when warranted. I agree with Hurd’s claim that the US can’t easily find legal cover for a strike. But of the remaining two options – admit this is an ethically appropriate but unlawful strike, or claim the “law has changed” – I don’t agree with Hurd that the latter is the right course of action. The law on chemical weapons may have changed to the point that it supercedes the absence of Syrian treaty obligations; but R2P remains an incipient norm, not a law, and remains in tension with codified UN Charter law which binds the US. Trying to pretend otherwise will only undermine US moral authority, and sounds too much like other creative re-interpretations of international law by the US in recent years around torture, extrajudicial execution, and detainee status.

If the goal is to affirm international norms, the far better way to frame a potential military strike is in terms of ethics and norms, not law. The US could argue (I’m not saying I agree) that the chemical weapons norm is so strong and so vital to global security interests that enforcing it justifies the unlawful use of force. I am not saying that this is the right policy – in a future post I will analyze more clearly why the US might consider other options for “norm enforcement and affirmation” before jumping to military strikes if the goal is to enforce the chemical weapons norm rather than to protect civilians per se. But I will say that, as Hurd points out, the US can’t have its cake and eat it too on this legal question.

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  • hattip

    You are a little confused here: UN “treaties” are not “international laws”, and the UN is not a legislative body. The may pass “rules” and oust members who do not obey them, but the UN is in no way an international government.

    broadly speaking, treaties are not “International laws” per se–they are agreements.

  • http://duckofminerva.org/ Dan Nexon

    Treaties are sources of international law and compliance with treaties is an international legal obligations.

  • TT

    Wow, really disappointed by Hurd’s conclusions on this one. Thought he would be a bit less imperialistic than this. Bombing is really the least compelling option in my opinion. Basically comes down to, we will do this because we can do this and no one can stop us. if US wasn’t a superpower would it still be able to take this course of action.

  • MrsPedantic

    I know it is pedantic but…Turkey is a NATO member.

  • Charli Carpenter

    In defense of Hurd, I am certain he did not come up with the title – in my experience those are usually created by editors with no input from authors and not necessarily in accord with the written piece. I read this op-ed not as an defense of bombing per se, but as a defense of robust military intervention to protect civilians that should have happened long before, with which under certain circumstances I completely agree. I think the bigger question for me is whether this particular intervention is going to do that given that the aim seems not to be civilian protection per se but rather punitive strikes to protect an international norm.

  • Charli Carpenter

    I see why that looks inconsistent. Will modify wording to clarify. The point is that a “self-defense” claim could only come from a state under direct impact of refugee flows, not a regional organization.

  • MJ Peterson

    The situation with treaties is a bit more complicated. The basic rule is that treaties create obligations for the states that become parties to them. A bilateral treaty thus obligates 2 states. A Multilateral treaty can obligate anywhere from 3 to 205 (approximate total of recognized independent states today). In some circumstances, however, a treaty rule can become so widely respected even among non-parties that it evolves into a rule of customary international law. At that point, the rule has a legal existence separate from the treaty. Proving when that has happened requires careful work, but there is considerable legal doctrine about how to go about that.

    Hattip is correct that the usual run of UN General Assembly resolutions are not treaties; they are recommendations. Some GA resolutions to recommend the text of a multilateral treaty to states, but it takes on the legal character of a binding agreement only as states formally ratify OR some particular rule aquires status as a customary rule. R2P has not been codified in a treaty, and I expect the Libyan intervention will set that process back a couple of decades. I think the don’t use chemical weapons (as distinct from riot control substances) is a customary law. Whether enforcement in a particular instance should be by foreign military action is an entirely separate question, as other comments on this have correctly noted.

  • Stephanie Carvin

    My problem with this assessment is that it is about enforcing norms for norms sake. Is this really about “norm enforcement and affirmation”? Is that what this is about?

    It seems to me that it is about enforcing the norm because the thought of a battlefield where chemical warfare becomes a regular occurrence is just too practically awful to ignore. While you hint at this – it really is the main headline.

    I have a serious concern in that we are allowing legal ‘tick-boxing” to overcome practical judgement in this case. If 15 men sitting around a table in New York say it is okay to strike, then somehow it is fine. If 15 men do not, then it’s not okay. This seems to be an incredibly poor way to decide how to respond to the attack.

    Rather than seeing who signed what and what “norm” is law, isn’t it better to simply think through the ramifications of an intervention/strikes? Why is it that so many of us are willing to answer the question of intervention by seeking the false certainty of law? Maybe it helps us to lay in our beds at night, happy with our scientific conclusions, when we should, in reality, be seeking the uncertainty of debate.

    While thinking through the legal dimensions gives us a framework for action – is it one *really* suited to thinking through the very practical and real issues resulting from the active and aggressive use of chemical agents?

    I think a better argument against a US military strike is that it won’t work. And I honestly have no idea if it will or won’t. But this legal-masturbation by individuals who do not have any kind of accountability seems to miss the point of the debate entirely. We are derelict in our discussion.

    So tell me, how many warheads can dance on the tip of a pin?

  • Charli Carpenter

    Stephanie, we’ve missed you!

    I think the question of whether we operate within or violate international law has the potential to matter greatly in practical terms – though whether it does or not depends on your estimate of a) how much difference the UN Charter regime makes and b) how much we damage it by acting outside it when we please. And as for the ramifications of the strikes they will be different, I think, depending on whether they are perceived to be legal / legitimate or not.

  • taytelbaum

    “Third, states subject to significant refugee flows as a result of the crisis could undertake an intervention on the basis of “self-defense.” Note that this argument would be agnostic in terms of chemical weapons per se so it would be a very different kind of intervention; and it implies that Turkey or Jordan would take the lead, not NATO [as an organization or other Western] powers.”

    But command can only be stationed elsewhere when and where taken.

  • “Concerned Human”

    Let us not loose sight of basic fundamentals here. The fact
    that either engaging groups in Syria may/may not have used chemicals during
    this war at this stage is secondary albeit still serious. Instead – let us
    focus on what is in my view “the main point of concern”.

    It would not be argued by any sides and supported by
    hospitals, doctors and the UN that 100,000 people have been killed thus far during this conflict – most of them being innocent civilians. The question we must then ask is what is the UN doing about this important point and just as
    important – what is the world doing? Is the use of chemical munitions such a
    game changer – no! Where do we draw the line – 100,000 or 1,000,000 million

    Lets say that no chemical weapons were ever used in this
    conflict, and after 3 years 1 million people were killed? Would this high
    number constitute a stronger reason for International or UN intervention? Is there a treaty that outlines ” one state shall not kill 1 innocent person or 100,000 innocent people?
    So the question is – what will it take for the UN to take action in a war that has
    already crossed the threshold of killing too many innocent people? (Keep in mind that the UN cannot do anything themselves in terms of physical interventions as they don’t have the military expertise nor the capacity – their blue helmets are not a formidable fighting machine. So the UN can do what they do best – draft resolutions, watch from the sidelines and strongly condemn as they always do….)

    Lets not get tunnel versioned and hung up on chemical
    warfare. The reality is that the line has already been crossed too many times
    by the regime and we can all agree on that point. The fact is that the use of
    chemical weapons were introduced is an “aggravating factor” not one that should determine involvement or action on the part of the World. (A bit like a charge of murder or premeditated murder. At the end of the day its still murder and a law has been broken)

    In my view the UN has once again miserably failed in preventing war crimes against the innocent population at the onset of the war- exactly what the UN was designed/intended to do – and its failed. As it did many times in its history and despite its many lessons learned. (And as recently demonstrated at the end of the war in Sri Lanka – too many innocent people were killed – this despite the UN knowing and being informed of this.)

    During the Syrian conflict – If the previous and current
    infringement of basic human rights and international treaties during this war
    do not constitute enough grounds for some form of resolution and intervention – what will, seriously….
    Then we might as well just all sit back and watch the dictators of this world do as they please and slaughter people as they wish. What will be next – a nuclear bomb? Which red lines will that cross?

  • Sonja

    We can’t ignore that the success of the Geneva Protocols after WWI (the fact that, with a few violations, chemical weapons were not used extensively in WWII) was due, in part, to deterrence. Even countries that were party to Geneva continued to stockpile chemical weapons to assure the capacity to retaliate. Of course, WWII ended with a much worse weapon than chemical (nuclear). But we need to remember that the only time nuclear weapons were ever used was when there was no possibility of retaliation. The combination of weapons treaties AND deterrence has prevented the use of these “non-conventional” weapons. However, in Syria, at this time, there is no deterrence without US involvement.

  • emwatcher

    “There is the precedent of Kosovo, where NATO failed to seek a UN resolution but where Russia also failed to pass a resolution condemning the air war”

    Wow, this certainly turns logic on its head. If the U.S. fails to get Security Council authority to use force, the inability of SC members that oppose unilateral U.S. action to pass a condemnatory motion (given the U.S. veto) ergo authorizes unilateral action.
    Joseph Heller and Lewis Carroll would be impressed. Doesn’t this set the bar a little high?

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