In the name of security

“This norm against using chemical weapons,” explained Obama in his TuesdayRemarks Before Meeting with Members of the Congress, “is there for a reason: Because we recognize that there are certain weapons that, when used, can not only end up resulting in grotesque deaths, but also can end up being transmitted to non-state actors.” By appealing to international law, Obama emphasized that what is at stake in the proposed intervention in Syria is an age-old question: can certain measures of war be taken off the table?

The idea that some measures of warfare are absolutely and uncompromisingly prohibited is a familiar one. Traditionally, it was associated with the rule against torture. Alongside war crimes and crimes against humanity, systematic violation of the right not to be tortured has at times been said to prompt justification for any country to provide a remedy. Some seventeenth-century international law sources, such as the work of Dutch jurist Hugo Grotius, specifically say that such a remedy can be granted through war. By and large, twentieth-century international lawyers have preferred a remedy of punishment by trial.

If torture is no longer the paradigmatic example of a prohibition that is binding on all of humanity, the United States is at least partially responsible. During the “War on Terror,” it has flouted this prohibition often enough for it to lose some of its purported firmness. To name only one famous example, one Canadian citizen, Maher Arar, was allegedly sent by American agents to be tortured in Assad’s Syria. While the Canadians compensated Arar, government lawyers representing Obama’s administration had memorably blocked Arar’s legal battle for accountability.

Be that as it may, the Obama administration is now telling American citizens that the prohibition of chemical and biological weapons has risen to the highest position among prohibitions, the one previously reserved for the prohibition of torture. Fair enough. According to this argument, a failure to respond militarily to an egregious violation of the norm, through international cooperation or alone, would strike a deadly blow to this single success of the human rights movement. The United States, according to this argument, has taken the position of a “trustee of humanity,” as one scholar recently put it.

Even if the President is persuasive in fixating on his “red line,” he is wrong to think that one of the reasons for the prohibition of chemical weapons is that it keeps them from being transferred to non-state actors. It is hard to believe he intended this comment seriously. While the potential transfer of chemical weapons to non-state actors may be a reason for concern, it can hardly be the rationale for the international legal prohibition. Chemical weapons are no better or worse when they are held by a state. What matters is what one does with them. The reason for the norm against them is not who has possession over them. It is that it is impossible to conduct a defensive war with such weapons. If anything separates them from other modes of killing in warfare, it is that they are inevitably indiscriminate, targeting civilians almost by definition.

But Obama’s remarks have not limited themselves to an appeal to the responsibility of the United States to provide a remedy for the violation of a norm. The President also made a prudential argument, according to which the administration’s campaign for intervention in Syria would keep the weapons out of the wrong hands as well as protect the security of civilian populations in Syria’s neighboring countries. In one of many appeals to this consideration, Obama mentioned it in his recent remarks. The attack, he said, will prevent threats to “allies and friends of ours like Israel, like Jordan, like Turkey.” But what is the relationship between the President’s appeal to principles of punishment and these more down-to-earth concerns about the lives of people in the region? This relationship is currently the most perplexing and unexplained aspect of the administration’s plan.

In fact, while the appeal to the norm may make sense on its own, the planned intervention falls apart when it comes to the analysis of costs and benefits. While Assad has so far not directly attacked any of Syria’s neighbors, an American intervention in the name of these neighbors’ interests could itself prompt such a Syrian response. In a scenario of escalation, Israel—for one—has vowed to strike back. In the process, its population would no doubt be exposed to a greater rather than lesser risk of indiscriminate attacks. In the short term, therefore, it is hard to believe that an American attack would improve the security of populations immediately outside of Syria. The reverse is much more likely.

Even in the long term, any prospect of improving these populations’ security through such an attack appears bleak. Assuming that the attack will ultimately not be a regime change, and Assad remains in power, it is hard to believe that it will provide effective deterrence. After having established a record of chemical warfare, surviving an American-led military campaign could only embolden the Syrian despot.

Even the prospect of an end to Assad’s regime does not give reason to hope for increased security. Obama has made abundantly clear that the United States would not occupy Syria, as it did in Iraq. Barring such full-blown military control, the political vacuum will not give way to stability. It is much more likely that chaos will ensue in the politically and ethnically fragmented Syria. The possibility that a portion of the chemical weapons (which will inevitably remain intact) will reach non-state actors motivated to harm civilian targets across the region will be augmented rather than decreased.

The level of involvement of Syria’s neighbors in its civil war has varied. While two of the “allies,” Turkey and Jordan, are hosting much of Syria’s displaced population, Israel has not opened its border to refugees. Though some in Israel have suggested such a measure, it remains unclear if it would indeed be constructive.

The long conflict that still hasn’t been resolved between Israel and Syria has made Israel wary of any action that would be perceived as aiding the Syrian rebels. Historically, hosting refugees has often provoked accusations of complicity. The concern, therefore, would not only be that Israel’s help would be used to discredit the rebels within their domestic constituencies; it would also supply a pretext for Syria to attack Israel—or at least divert attention from its own oppression. As for an Israeli attack on Syria as part of the American coalition, it may make Israel’s healthy remove from the Syrian conflict no longer available.

To be sure, there may be other good (or not so good) reasons to consider a military intervention in Syria, not the least of which would be to protect Syrian civilian populations. But this is not the administration’s primary prudential concern, and it remains questionable if it is possible for the United States to help civilians directly, especially within the limited mandate Obama is seeking from Congress.

 

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About Itamar Mann

Itamar Mann is the National Security Law Fellow at Georgetown Law Center. He holds an LLB from Tel Aviv University and LLM and JSD degrees from Yale Law School. His work focuses on international law and political theory. His book, Humanity at Sea: Unauthorized Migration and the Foundations of International Law, is forthcoming with Cambridge University Press in 2016.


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