Sunday, September 8, 2013

Syria, International Law, and Humanitarian Intervention

   As long ago as the mid-19th century, the British philosopher and uber-ethicist John Stuart Mill saw the need for a doctrine of humanitarian intervention in international law. It was “grave error,” Mill wrote, to assume that the same doctrine of non-intervention applicable to civilized nations also applies in relations between “civilized nations” and “barbarians.”
   Mill’s formulation provided a convenient rationalization for British and French imperialism and for the United States’ turn-of-the-century war of conquest against Spain. But a doctrine can be misused without being wrong. The 20th century’s history of humanitarian violations teaches the need to accept the doctrine as part of customary international law — and for the United States, as the dominant global power, to play its part in putting the doctrine into practice even without formal multilateral support.
   On that view, President Obama’s proposed strikes against Syria for its use of chemical weapons in its civil war passes international law muster, notwithstanding the United Nations Charter’s seeming limitations on the use of force. Just as the U.S. Constitution is not a suicide pact, the U.N. Charter cannot be interpreted as a one-sided disarmament pact by civilized nations against modern-day barbarians such as Syria’s Bashar al-Assad.
   International law is not the only or the most important issue for Congress to consider as it takes up a proposed resolution authorizing use of military force in Syria. President Obama owes it to members of Congress, not to mention the American public, to use his TV interviews and televised address this week to lay out in detail the evidence supporting the accusation that Assad’s regime launched a chemical weapons attack on Aug. 21 against rebel strongholds in the Damascus suburbs. As part of that evidence dump, the administration should explain its casualty count — 1,429 deaths — that is not only implausibly precise but also significantly higher than estimates from other, western sources.
   Most important, the administration needs to do a better job than it has thus far of showing that it has a strategy other than teaching Assad a lesson. Without putting boots on the ground, the administration still must show that some number of cruise missile strikes against Syrian military targets, combined with other U.S. actions, help the stated goal of replacing a dictatorial regime with a more representative, more inclusive government. And it needs to show that no other steps — such as economic sanctions or resort to the International Criminal Court, as advocated by New York Times columnist Thomas Friedman — would be effective.
   In addressing these issues, however, Congress can rest comfortably with the United States’ obligations toward international law. True, the simplest legal answer for this and other humanitarian crises would be to fall back on the U.N. Charter’s Chapter VII, which permits the use of force when authorized by the Security Council (Article 42) or in individual or collective self-defense (Article 51). Almost 70 years later, however, the U.N. Charter cannot bear the full weight of addressing modern-day humanitarian crises.
   The United Nations was founded, after all, by the victorious powers in a world war against nations that were committing both aggression and humanitarian violations on unprecedented scales. The five major powers, allies in that war, were each granted the power to veto any actions by the U.N. Security Council, the enforcement arm created to distinguish the new international organization from the toothless League of Nations.
   Wars of aggression have gone almost out of style since then, but genocide has become more common: think Cambodia, Rwanda, Serbia. At the same time, the World War II allies divided first into ideological camps and now into geostrategic rivalries. President Obama is correct to point out that, “for a whole host of reasons,” those divisions leave the Security Council “paralyzed” in many situations. “And yet,” he adds, “we’ve got all these international norms that we’re interested in upholding.”
   One of the clearest of those norms is the prohibition against the use of chemical weapons that dates from the Geneva Protocol on Gas Warfare, adopted in 1925. Obama is correct to say that this is the world’s “red line,” not his. Obama’s critics are correct to question his failure to take more decisive action toward Syria up to now. The mistakes of the past, however, will not be corrected by another.
   The critics are also right to question the precedential effect of the United States’ acting without the formal approval of the Security Council or a regional body such as NATO or the Arab League. Secretary of State John Kerry was right to answer, however, that the Arab League is, for various reasons, as paralyzed as the Security Council and that the United States does have support of individual nations with more direct interests. As for precedents, Rwanda shows the costs of inaction, Kosovo its potential benefits.
   The other precedent being established — seeking congressional approval for humanitarian intervention against actions that do not immediately threaten U.S. national security — has benefits as well. The president’s need to make the case to Congress strongly enough to overcome the public’s residual isolationism guards against too-easy resort to a doctrine that, for the good of international law, must be carefully cabined. The coming debates on Capitol Hill will test whether Obama can make that case and whether Congress can judge it, free of partisanship, with an eye to the United States’ interest in a better international order.

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