Three Key Questions on Syria From Geoffrey Robertson
The U.S., France, and others must answer these legal quagmires before committing to strikes.
David Cameron thought that recalling his Parliament to approve the bombing of Assad for using chemical weapons would be a slam dunk. The traditional British reaction to outrages by Johnny Foreigner has been to “send a gunboat”—especially if this can be done at U.S. expense.
What Cameron failed to realize was the depth of his country’s guilt over being suckered by Tony Blair into Bush’s war on Saddam over nonexistent WMDs. This guilt has deepened over a decade with every day’s report from Iraq of fresh civilian casualties. So a tipping point came last Tuesday when Blair himself, in a Murdoch mouthpiece (The Times) called for the bombing of Syria: politicians of all parties began to be spooked by their memories of being deceived by fabricated intelligence in dodgy dossiers. “That was George W. Bush, this is Barack Obama” cried one veteran (Paddy Ashdown) in exasperation, but in vain. Britain is unwilling.
That does not relieve the U.S., and other allies like France unburdened by Iraqi war guilt, of the urgent need to answer three legal questions:
First, can force be used, without Security Council approval, to deter Syria from perpetrating further crimes against humanity? Secondly, how can culpability for mass-murdering a thousand civilians by poison gas be proved against the Assad regime beyond reasonable doubt? Thirdly, what punishment can NATO and the Arab League mete out to that government, if it is guilty, to deter further use of chemical weapons without causing more civilian casualties or tilting the civil war in Syria in favor of the opposition?
The first question is easy to answer. There is and always has been a right to intervene to stop or deter an ongoing crime against humanity. This was asserted in terms by Oliver Cromwell and his foreign secretary (the poet Milton) as long ago as 1655, when he threatened to invade Savoy unless its Duke stopped killing Protestants who refused to convert to Catholicism. Britain exercised its right of humanitarian intervention when it stopped the slave trade by intercepting foreign ships and attacking foreign ports, and it led a coalition of the willing to end Ottoman atrocities (and liberate Greece) in 1827. As Theodore Roosevelt put it in 1904 when justifying the American intervention to stop Spanish atrocities in Cuba, there are occasions when “the indignant pity of the civilized world” imposes a duty to intervene “against crimes of peculiar horror.”
All this was long before the U.N. Charter, which did not affect the right of member states to stop an international crime. Idi Amin’s mass murder was ended by an invasion unauthorized by the Security Council, as was genocide and mass rape in Bangladesh. NATO set up safe havens to protect the Kurds in defiance of Saddam's Iraqi sovereignty, without bothering to endure a Russian and Chinese veto at the Security Council.
Kosovo is a good example of legitimate NATO action to end a crime against humanity—that of Milosevic’s ethnic cleansing. With the council again pole-axed by the Russian veto, NATO simply began bombing and Russia was forced to move a motion to condemn it, which failed miserably. If NATO (minus the U.K. but plus Turkey) and the Arab League can find a way to punish Assad, which does not involve collateral damage, they should get on with it and leave Russia on the back foot, without a Security Council resolution to condemn their action. International law does not prevent action to stop international crime.
But, in answer to the second question, there must be proof beyond reasonable doubt that Assad’s forces were responsible for such a crime. The U.K. Attorney General talks of “convincing evidence generally accepted by the international community,” but this is not sufficient. The Security Council itself is a hopeless tribunal for deciding guilt: Colin Powell deceived the council (and, it seems, himself) with his “evidence” for Saddam’s WMDs. The world is sick of “dodgy dossiers” and does not believe MI6 and the CIA without proof, preferably by way of a reasoned judgment from a respected tribunal. There could be a decision by a panel of independent international judges convened by the Secretary General to decide on Syrian government culpability, excluding any possibility that the victims seen on television are graduates of the al Qaeda school of acting.
The key concern of the U.K. Parliament, when on Thursday night it refused to approve the use of force against Syria, was over Assad’s guilt. A Joint Intelligence Committee assessment, from open sources and seeming (but Western-minded) logic, concluded that this was “very likely”: 75 percent to 85 percent. That would be enough to win a civil action for damages on the balance of probabilities but not to convict of a crime “beyond reasonable doubt.” That necessary standard of proof may be forthcoming from the weapons inspectors (despite John Kerry’s doubts) when they report in a few weeks’ time. So it might be prudent for the Obama administration wait for the weapons inspectors, unlike George W. Bush in 2003, and organize a punishment that fits the crime only when the crime can be proved? If there is proof in “secret” sources (e.g., telephone traffic between Assad and his generals, intercepted by NSA or the Israelis) then the transcripts will just have to be made public: after Iraq there can be no reliance on official reassurances unless the public can examine the evidence for itself.
International law requires that any intervention to stop crimes against humanity must be strictly limited and “proportionate” to the objective, i.e., appropriate to and logically connected with its achievement and not such as might promote regime change or the death of more civilians. This is easy to state, as a legal proposition, but may in logistical terms be impossible to achieve. (Even an attempt to destroy a chemical-weapons dump may be disastrous, if the poison gas is released into the atmosphere.) How many military bases are to be attacked? Is NATO going to destroy $1 billion of military equipment and threaten Assad that, if chemical weapons are used again, it will destroy $25 billion worth? It is these imponderables that international law cannot resolve.
The fundamental rules of civilized humanity now include a prohibition on the use of poison gas against civilians—a prohibition barbarically breached by Saddam Hussein in 1988 when he gassed 7,000 Kurds at Halebja, only to be rewarded the following year by a U.S. trade mission led by Donald Rumsfeld. If we are serious about banning this horrific war crime, then the ban must be enforced. That is the duty of the Security Council, under Chapter VII of the U.N. Charter. But the council is stymied because Russia irresponsibly uses its “Great Power” veto to protect its investment in Assad’s military rule. The responsibility to protect Syria’s civilians against becoming victims of crimes by their own state thus devolves upon regional organizations like NATO and the Arab League.
That Assad and his generals are war criminals has been clear ever since they gunned down the first thousand or so peaceful protesters before the civil war started. Courageous protesters then held up banners demanding “Assad to the Hague.” But the Security Council turned its back on them. Not one of its members bothered to suggest that the situation in Syria should be referred to the Prosecutor of the International Criminal Court. Two years on, the civil war has claimed over 100,000 victims and has no end in sight. Diplomacy and United Nations negotiations, from Kofi Annan to Lakhdar Brahimi, have all failed. NATO strikes to punish chemical-weapons use will not end this war and may have unforeseen consequences. But at least such action will create the precedent that should have been set at Halebja, providing a basis for deterring dictators not only from using chemical weapons but also from stockpiling them in the first place.