West Debates Legal Rationale for Syria Strike


August 28, 2013

West Debates Legal Rationale for Syria Strike

By STEVEN ERLANGER

LONDON — 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.

The situation with Syria differs in many fundamental ways from Iraq. American, British and French officials have emphasized that any strike on Syria will be punitive, short-term and not aimed directly, at least, to oust Mr. Assad.

But as with the prelude to the war in Iraq, there is also concern that any operation not look like a purely Western affair, and that any “coalition of the willing” include Arab countries, not just Muslim Turkey.

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.

The rush for allies, said Shashank Joshi of the Royal United Services Institute, a London-based research group, is one way the West is “compensating for being on shaky legal ground” without a Security Council resolution.

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. But employing the “responsibility” doctrine, Mr. Joshi said, “raises the question of why now, and why chemical weapons have triggered it.”

So those seeking to strike Syria must balance between a chemical convention that does not entail force and the responsibility to protect doctrine, which does, but “takes them away from their stated rationale,” he said.

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.

They also note that there is likely to be considerable support from Sunni countries in the Middle East that see the civil war in Syria as a proxy for the struggle between Iran and themselves, and between themselves and Sunni Islamic radicalism.

“Because so many countries are lined up against the Syrian regime, the question is not how many countries will support the operation, but how many will be able to actively contribute to it,” Mr. Joshi said. “It was easier in Libya, with uncontested airspace. But given the short duration of such an action, none of this makes much difference from the diplomatic point of view.”

François Heisbourg, a defense expert at the Foundation for Strategic Research in Paris, said he was not particularly concerned about the complications.

“In strictly legal terms the case for this one won’t be great, but as in Kosovo, the law will have to fit the action,” he said. “But unlike Kosovo, this is not going to war versus Bashar or regime change. It’s a one-off strike, with older legal precedents in humanitarian interventions.”

As important, he said, is upholding the norm against the use of chemical weapons, which even the Russians have supported, endorsing Mr. Obama’s “red line” last year.

As for the coalition, it is likely to symbolic, given that only a few nations in the world are able to participate with cruise missiles.

“You can’t play if you don’t have the marbles,” Mr. Heisbourg said. The Arab League, which would always be reluctant to openly endorse the use of Western arms in the Middle East, has done enough, he suggested, by declaring that chemical weapons were used by Mr. Assad.

Still, especially in Britain, the shadow of the Iraq war and the strong alliance at the time between the British leader, Prime Minister Tony Blair, and President George W. Bush hangs over the debate, pushing Mr. Cameron to seek parliamentary approval of any military action and to propose one more Security Council resolution, even if Moscow vetoes it.

“There’s a slight degree of skepticism of what comes out of Washington and London,” said John Baron, a senior Conservative Party legislator on the Foreign Affairs Select Committee.

“We were told Saddam Hussein had chemical weapons,” he said, “and the consequences of getting this wrong are profound. It’s a proxy war on many levels, and there is a real danger that without a proper U.N. resolution this conflict can spread.”

Mr. Baron appears to be in the minority, but the opposition Labour Party is having its own misgivings and is seeking to be sure all efforts are made with the United Nations, the legality is clear and the operation is limited. Parliament will debate the issue on Thursday with a vote scheduled for Thursday night.

Even the archbishop of Canterbury, the Most Rev. Justin Welby, cautioned against “rushing to judgment” in an interview with the Daily Telegraph.

Lawmakers should “bear in mind in what is going to be a very, very difficult debate,” the archbishop said, asking two questions: “Are we sure about the facts on the ground?” and “Is it possible to have a carefully calibrated response including armed force, if you are sure about the facts on the ground, that does not have unforeseeable ramifications across the whole Arab and Muslim world?”

“I have had a lot of conversations with people in the region,” the archbishop said. “I think the overwhelming sense is of a really moving and terrible sense of fear about what might come out of, what might be happening in the next few weeks — not predicated on people doing one thing or people doing another, just a sense that this a terribly, terribly dangerous time.”

Even hawkish former officials like Zbigniew Brzezinski, the national security adviser to Jimmy Carter, have urged Mr. Obama to seek a wide coalition and “broader international participation in a more comprehensive effort to prevent a regionwide explosion,” as he wrotein Wednesday’s Financial Times.

There was another concern, expressed by the former United Nations weapons inspector in Iraq, Hans Blix. “A punch in the nose won’t do anything to stop the war,” he told the BBC. “It’s telling the belligerents that you can now go on with your war but don’t use gas.”

Camille Grand, a scholar of unconventional weapons who directs the Foundation for Strategic Research, said that “restoring the taboo” against the use of chemical weapons “is a serious matter.”

Credibility is important, too, he said, as will be “the untold story” of the effort “to restore the balance on the Syrian battlefield,” which could prompt the parties to move to a settlement.

Of course, he acknowledged, “It all could go wrong,” with the taboo unrestored, more chaos and violence in Lebanon, the Russians choosing to deliver more advanced weapons systems to Syria and attacks on Western targets in Lebanon and elsewhere in the Middle East. “But on balance,” he said, “I think the bad scenario is the less likely one.”

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