Fine intellectual distinctions involving the use of force are likely to fail in Syria

Developing story

News reports suggest President Obama is tailoring military action against Syria to achieve the goal of deterring Bashar al-Assad from ever using chemical weapons again in the future, following what the Americans, the British and the French view as their certain use by al-Assad’s forces last week.

This strategy is flawed, for several reasons.

First, it seeks to establish a false hierarchy of legal prohibitions, according to which the use of chemical weapons justifies a military response but the widespread commission of war crimes and crimes against humanity against the Syrian people does not.

No such distinction or hierarchy of norms and legal justifications exists under international law.

Moreover, the very attempt to draw such a distinction tends to establish a “safe harbor” for despotic regimes to commit war crimes and crimes against humanity without fear of military reaction by the civilized nations of the world, so long as they do not use chemical weapons. For this reason, such a strategy would represent an extremely bad precedent.

Second, the illusion that such fine distinctions will deter future behavior is based on what is known as “the rational actor fallacy”, the assumption that the army and security forces of Syria will respond to the dictates of a single rational mind as outside factors change the calculus of costs and benefits in that unitary mind. This assumption is highly dubious even now, and is likely to become even weaker should the Syrian state move toward collapse or implosion in the future.

Third, such a military strategy does not solve the problem of the large number of chemical weapons that exist in Syria, and the risks of their falling into the hands of al-Qaeda affiliates or other terrorist groups, including Hezbollah.

Finally, such a limited set of strategic objectives is not likely to bring al-Assad’s ongoing commission of war crimes and crimes against humanity to a halt, or to bring those responsible for the commission of such crimes to justice.

One is reminded of President Obama’s drawing the distinction between “degrading” the Taliban, as opposed to achieving victory over the Taliban, in Afghanistan. In the real world, such fine intellectual distinctions tend to get lost.

What is needed in Syria is military action to bring to a halt the commission of all war crimes and crimes against humanity, not merely those committed with chemical weapons.

What is at stake goes far beyond the American president enforcing his own arbitrary “red line”. It involves whether the civilized nations of the world will finally act effectively to safeguard their most fundamental values–the prohibitions against war crimes and crimes against humanity, codified in the Nuremberg Principles (1950) and in the Statute of Rome of the International Criminal Court.

If not now, when?

The Trenchant Observer

For previous articles on Syria by The Trenchant Observer, see the Articles on Syria Page, or click here.

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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