Syria has raised several questions that pertain to morality, legality, and strategy in international relations. Discussed extensively on the Duck, Opinio Juris, The Monkey Cage, and
Editor's Note: as per my earlier announcement, I am phasing out of the Duck of Minerva. But my blogging won't officially end for around another two weeks. That means that, although administrative inquiries should be sent to other team members, I have not gone cold turkey on the writing front.
I remain uncertain as to the wisdom of any kind of US-centered military action in Syria. But if the Obama Administration is going to act, then it needs a broad Authorization for the Use of Military Force (AUMF). Indeed, today has seen significant concern about the breadth of the proposed AUMF. Jack Goldsmith writes that:
(1) Does the proposed AUMF authorize the President to take sides in the Syrian Civil War, or to attack Syrian rebels associated with al Qaeda, or to remove Assad from power? Yes, as long as the President determines that any of these entities has a (mere) connection to the use of WMD in the Syrian civil war, and that the use of force against one of them would prevent or deter the use or proliferation of WMD within, or to and from, Syria, or protect the U.S. or its allies (e.g. Israel) against the (mere) threat posed by those weapons. It is very easy to imagine the President making such determinations with regard to Assad or one or more of the rebel groups.
(2) Does the proposed AUMF authorize the President to use force against Iran or Hezbollah, in Iran or Lebanon? Again, yes, as long as the President determines that Iran or Hezbollah has a (mere) a connection to the use of WMD in the Syrian civil war, and the use of force against Iran or Hezbollah would prevent or deter the use or proliferation of WMD within, or to and from, Syria, or protect the U.S. or its allies (e.g. Israel) against the (mere) threat posed by those weapons. Again, very easy to imagine.
As the history of the 9/11 AUMF shows, and as prior AUMFs show (think about the Gulf of Tonkin), a President will interpret an AUMF for all it is worth, and then some. The proposed Syrian AUMF is worth a lot, for it would (in sum) permit the President to use military force against any target anywhere in the world (including Iran or Lebanon) as long as the President, in his discretion, determines that the the target has a connection to WMD in the Syrian civil war and the use of force has the purpose of preventing or deterring (broad concepts) the use or proliferation of WMDs in, to, or from Syria, or of protecting the U.S. and its allies from the mere threat (again, a broad concept) of use or proliferation of WMDs connected to the Syrian conflict.
Congress needs to be careful about what it authorizes.
Two kinds of military intervention are being discussed and conflated by political elites (like Nicholas Kristof) and international diplomats. The first is an enforcement operation to punish a state for violating a widespread and nearly universal global prohibition norm against the use of chemical weapons. This is what Kristof refers to in the title of his Times op-ed, "Reinforce a Norm in Syria." The second is a humanitarian operation to protect civilians against a predatory government. This is what Kristof means when he compares proposed military strikes in Syria to intervention that happened in Bosnia and Kosovo and (tragically) didn't happen in Rwanda.
Well, it's useful to clarify which we are talking about since both kinds of operation involve very different tactics and different kinds of legal and moral reasoning. I discuss both at Foreign Affairs this morning:
[If punishing norm violators is the goal], the appropriate course of action would be to, first, independently verify who violated it.... Second, the United States would have to consider a range of policy options for affirming, condemning, and lawfully punishing the perpetrator before resorting to force, particularly unlawful force... Third, should the United States decide on military action, with or without a UN Security Council resolution, it would need to adhere to international norms regulating the use of specific weapons in combat.
But such a strike should not be confused with military action to protect civilians.
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.
The US and UK are apparently preparing for air strikes against the Syrian Assad regime, claiming there is little doubt that it is responsible for horrific chemical weapons attacks. Syria has allegedly crossed President Obama's 'red line.'
Britain's Foreign Secretary William Hague claims that "We can not in the twenty first century allow the idea that chemical weapons can be used with impunity, that people can be killed in this way and that there are no consequences for it."
Several problems here:
This rush to judgment is happening before the UN has established beyond reasonable doubt who is responsible. Do we really need to be reminded that WMD-related claims are worth subjecting to a decent standard of proof before going to war?
There is a greater amount evidence from the UN to date that Syrian's rebels, or at least some of them, may have also used chemical weapons, which has been substantiated though not conclusively found by a formal investigation. If so, they did it in the twenty first century, killed people and so far the US and its allies have not applied punishment.
Editor's Note: This is a guest post by Tim Dunne. He is Research Director of the Asia-Pacific Centre for the Responsibility to Protect at the University of Queensland and the past editor of the European Journal of International Relations. tl;dr warning: ~2400 words.
In a recent lively and provocative post, Stephen Walt argues that liberal imperialists are like ‘neocons’ only more human rights-friendly. They are alike in the sense that both ‘are eager proponents for using American hard power’. And combined, these two sets of protagonists have been responsible for bad foreign policy decisions ‘to intervene in Iraq or nation-build in Afghanistan, and today’s drumbeat to do the same in Syria’.
To help cleanse the US policy community of liberal imperialist tendencies, Walt offers ’10 warning signs that you are a Liberal Imperialist’. If you fail the test, as I did, then you have the option of (1) coming out as an interventionist (2) engaging in a form of realist immersion therapy by reading texts about why interventions fail. ‘And if that doesn’t work, maybe we need some sort of 12-step program’.
The question I want to pose is whether failing the test commits you to being a liberal imperialist? Or does the particular identity construction creak and crack under scrutiny, such that it is possible to adopt a liberal position on intervention that does not ascribe to the folly and naiveté that is attributed to it?
To help address this question I’m going to offer an alternative 12-step program that critics of liberal thinking on intervention may want to enroll in. My principle reasoning is that Walt’s ‘warning signs’ lump together – and obfuscate – critical debates and distinctions within liberalism, which is why many liberals opposed the 2003 Iraq War just as they oppose a military escalation in Syria today. Some even plausibly argue that Libya came dangerously close to an illiberal intervention on the grounds that the mandate of protecting civilians morphed into the goal of regime change. Yet what no liberal countenances is ‘another Rwanda’ in which the great powers (individually and collectively) failed to take the decisive action that was being called for by the UN force commander on the ground in Kigali. Avoiding the twin problems of indifference and recklessness has been the driver of the intervention agenda that the UN has embarked upon since the turn of the new century. And this agenda has been drive forward by the search for an effective capacity to respond to mass atrocities that is anti-imperialist. I develop this point in stages 9-11 of the recovery plan.
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