Syria: War, Law and Empire

image_pdfimage_print

Part I: Sham Success and Ersatz Humanitarianism

 

On April 14 the US, UK and France launched missile and air strikes on three suspected chemical weapons (CW) facilities in Syria. The action was taken in response to an alleged chlorine and sarin nerve gas attack by government forces on April 7 in the city of Douma in Eastern Ghouta, a war-ravaged region bordering southeast Damascus. Seventy civilians were reportedly killed, and footage of stricken children frothing at the mouth provoked deep disgust and grave suspicions of (contradictory) claims by Syria and its main ally Russia that the attack was either faked or perpetrated by ‘terrorists’.

Syrian TV shows damage from US/UK/French airstrikes in April 2018.

Syrian TV shows damage from US/UK/French airstrikes in April 2018.

Presumption of innocence, however, is an international as well as domestic legal principle, and the trilateral military response — claimed immodestly to be on behalf of ‘the civilized world’ — took place a day before inspectors from the Organization for the Prohibition of Chemical Weapons (OPCW) were due to visit Douma. And while many worried, with reason, the Syrian government might ‘doctor’ the site, there was also the danger rebel groups, before abandoning the city on April 12, may have planted evidence in a desperate bid to spur Western intervention. Important evidence may also have been housed at the three sites reduced to rubble by the attacks.

In the absence of a Security Council Resolution (blocked in this case by Russia’s veto), an attack on a UN member state requires a high bar of proof and cause; the aggressors must demonstrate that in both its scope and timing their act of war was not their preferred but their only option, a last resort not a martial reflex.

Though arguments purporting to be watertight were mustered, they were promptly dismantled not just by Syria and its few friends but by a broad range of respected legal experts in America, Britain, France and far beyond. In the case of the US and UK (as we will explore in Part II), the domestic legitimacy of the strikes has also been questioned, raising fears of all-too-easy-to-make decisions on further, larger-scale, less-controllable attacks in Syria or elsewhere.

In this case, all three war-makers made bold and grand claims for the strikes, which, they insisted, were both ‘strictly limited’ and ‘devastating,’ punishing and deterring chemical weapons (CW) use while avenging and preventing large-scale humanitarian suffering. Pretty good for one night’s attack on a research center in Damascus (destroyed by 57 American Tomahawks and 19 JASSM, Joint Air-to-Surface Stand-Off, missiles); an alleged CW storage site west of Homs (9 Tomahawks, 8 British Storm Shadows, 2 French Scalps), and, at the same location, an alleged CW bunker (7 Scalps).

According to French officials, the Russians were tipped off about the targets and assured their personnel were not in danger. While this was denied by American and British officials, it seems certain Russia was ‘made aware’ it wouldn’t need to start shooting back. Before the attack, US Defense Secretary James Mattis publicly vowed not to provoke a Russian response risking rapid escalation; in the event, Russian air defenses remained dormant; and on April 18, Helene Cooper of the New York Times reported  Mattis “prevailed in limiting the strikes to three targets that did not risk endangering Russian troops scattered at military installations around Syria;” nor, as Trump had wanted, did the strikes “hit Syrian military units believed to be responsible for the April 7” attack on Douma. On the night of the strikes, of course, those units, would have been safely integrated with Russian forces, together with all personnel and most equipment from the three targets. If, then, Syria really is operating a major CW program – in blatant disregard of its obligations under the Chemical Weapons Convention (CWC), which Russia forced it to join in 2013 — it is unlikely to have sustained major, irreparable damage.

 

But broader questions swirl.

The norm against the use of chemical weapons should, under all circumstances, be respected; in the circumstances in which the Assad regime finds itself — enjoying, thanks to Russia, massive conventional superiority; able to kill at will vast numbers of its own people with bullets and bombs – its apparent disregard for that norm is strategically baffling. And even were Assad’s use of CW conclusively proven, the danger is that responding militarily – with Tomahawks and Scalps, but without a UN mandate – doesn’t so much strengthen the norm against CW as weaken the norm against arbitrary aggression.

In extremis, violations of sovereignty can be justified by the ‘responsibility to protect’ civilians. To be effective, though, such protection would logically take the form of calibrated, concerted intervention to change the course of a conflict, an ambition the ‘interveners’ in this case explicitly disavowed. Nor is there any particular or higher ‘responsibility to protect’ against chemical rather than conventional attack: and according to the Syrian Observatory for Human Rights, a UK-based war-monitor, the seven-year civil war, displacing 11 million people (over half the population), has thus far claimed over half a million lives, the great majority, perhaps 85%, civilian, all but a tiny fraction killed ‘conventionally.’ Atrocities, it must be acknowledged, have been committed by almost all the many warring factions on the ground, while US, British and French ‘blitz’ bombing of so-called ‘Islamic State’ (IS) territory in Syria (and Iraq) has been demonstrably indiscriminate.

On April 16, at the request of the main opposition Labour Party, Professor Dapo Akande, co-director of Oxford University’s Institute for Ethics, Law and Armed Conflict, reduced to legal rubble the official British defense of the attack. His critique, of course, applies equally to the baseless French and American case for war:

The UK government states that “The legal basis for the use of force is humanitarian intervention…” and then sets out three conditions for such a use of force. This argument asserts that under international law, states may, on an exceptional basis, take action in order to alleviate overwhelming humanitarian suffering, even where such action is not carried out in self-defence, authorized by the UN Security Council nor undertaken with the consent of the territorial state.

However…it is quite clear that the position advocated by the government is not an accurate reflection of international law as it currently stands. International law does not permit individual states to use force on the territory of other states in order to pursue humanitarian ends determined by those states.

The grim truth, however, is that ‘humanitarian ends’ were cynically determined by the leaders of ‘those states’ to be the best way of selling an illegal act, for in what way have they enhanced the security, let alone restored the peace and freedom, of a single Syrian civilian?

So weak, in legal fact, was their case, they didn’t even try to sell it beforehand, at least to those with the power and right to question and oppose them: the people’s elected representatives.

 

Part II: Where Power Lies – War as Attack on Democracy

 

So sweeping are the powers of the president of the French Republic to decide when and how to make war that the current, superstar holder of the office, Emmanuel Macron, was free, at least constitutionally, to do just what he did: ignore Parliament. In Britain, the prerogative to take military action belongs technically to the Crown, exercised in practice by the monarch’s prime minister. Since 2003, however, when Tony Blair reluctantly sought parliamentary approval for British participation in the (imminent) invasion of Iraq, all main political parties have acknowledged a new convention — the requirement for prior approval, except in emergency self-defense — has been established. After an alleged Syrian CW attack in 2013, Conservative Prime Minister David Cameron was denied permission to authorize British bombing. Two years later, he won a vote for action against the self-declared IS ‘Caliphate’ in Syria.

Emmanuel Macron, Donald Trump, Theresa May

Emmanuel Macron, Donald Trump, Theresa May

Many MPs, then, and most of the public, were shocked when Prime Minister Theresa May decided to join the American and French attack two days before Parliament returned from Easter Recess. On April 17, after a day’s heated debate on the strikes themselves, the general question of prior consent was examined. Labour leader Jeremy Corbyn opened by insisting “the principle of accountability to Parliament,” established in 2003, “must now be enshrined in law” in the form of a War Powers Act:

Indeed, the tombstone of the former [Labour] Foreign Secretary, our friend the late Robin Cook, who warned so eloquently in this House against the decision to invade Iraq, records his words: “I may not have succeeded in halting the war, but I did secure the right of Parliament to decide on war.” I am sorry to say that the Government are now attempting to overturn that democratic advance.

Corbyn’s reward, from the Conservative backbenches, was derision from MPs like Tim Loughton (“[C]hildren who have been gassed in Syria are not interested in process, they are interested in action) and ‘advice,’ such as that from Bernard Jenkin: “[I]t is easier to hold the Government accountable if we say, ‘You the Government make the decision and we will judge you on your performance after the event.’”

For her part, the Prime Minister insisted a War Powers Act, for all its “attractive purity,” would have limited her “flexibility” to act in the “national interest.” She then swore undying devotion to the principle of “the House holding the Government to account,” as evidenced by her having come to the House “at the first opportunity,” though she could easily have recalled Parliament from recess or sought to delay the attack a few days rather than, as many suspect, pressing an accelerated timetable on Trump and Macron. And not only was there no military need for urgency, there was, contrary to May’s claims of “sensitive intelligence,” no basic secret to keep, as Trump’s tweets, backed by equally bellicose statements from British and French leaders, had dispelled any doubts about the undiplomatic nature of the planned response.

 

Unlike Britain, the US has a — justly celebrated — Constitution; and unlike Britain and France, it has a War Powers Resolution, introduced to shore-up the Constitution during the increasingly unhinged second term of Richard “Tricky Dicky” Nixon. Article 1 of the Constitution grants Congress sole power “to declare war.” Article 2 designates the president as “Commander in Chief of the Army and Navy…when called into the actual service of the United States,” a provision generally, if non-obviously, understood to mean s/he can call those armed forces into action in emergencies requiring the defense of vital American interests. Under the War Powers Resolution, if the president exercises this Article 2 authority, s/he is then required to seek (within 60 days) Article 1 approval from Congress.

Over decades of almost incessant warfare in modern American history, the solemn obligations of Article 1 have been more honored in the breach than the observance, and the interpretation of Article 2 grossly expanded to fill the vacuum. As Secretary Mattis publicly stated after the April 14 attacks, “the president has the authority under Article 2 of the Constitution to use military force overseas to defend important US national interests,” an oversimplification — with which, according to Helene Cooper, he privately disagreed! — guaranteed to induce apoplexy in the majority of serious Constitutionalists. As Senator Tim Kaine, Hillary Clinton’s running-mate in 2016, lamented on CBS’s Face the Nation on April 15, “Congress and only Congress” has the right “to start a war:” not only were the latest strikes “illegal and reckless,” but “what’s to stop” the president “starting a bombing campaign against Iran or North Korea?” In the latter case, it seems, only a successful summit, by no means guaranteed, between Trump and Kim Jong-un: by such slender threads does world peace hang.

Tomahawk missile.

Tomahawk missile.

For months, Senator Kaine, a member of the supposedly powerful Foreign Relations Committee, has pressed for the public release of a memorandum justifying the unilateral American Tomahawk attack on a Syrian airfield, again in response to alleged CW use, in April 2017. On the basis of a classified summary, Kaine believes the memo effectively promotes the Commander-in-Chief to Decider-in-Chief on military force. Writing in The National Review on February 7, Republican commentator David French described the April 2017 strike as “exactly” (his emphasis) “the kind of military action that should require congressional approval,” for three fundamental reasons:

We were not at war with Syria. We were not acting in immediate self-defense of our nation. We were not fulfilling a Senate treaty obligation.

Put simply, it’s increasingly clear that years of presidential overreach, congressional inaction, and partisan bickering have jeopardized our constitutional structure. We are steadily moving away from the separation of powers and toward an unconstitutional legal regime that places sole war-making authority in the hands of an increasingly imperial presidency.

On March 25, Kaine lambasted Trump’s new National Security Adviser John Bolton as “a war cheerleader” with “a track record of cooking intelligence.” Bolton also likes to ‘cook’ the Constitution, arguing that in effect the president of the American Republic has the same, sweeping war-making powers as the president of the French Republic. Summarizing ‘The Legal Case for Striking North Korea’ in the Wall Street Journal on February 28, Bolton argued the potential for North Korea to pose a future nuclear threat to the US rendered the nature of that threat already “imminent,” an emergency justifying military “pre-emption” under Article 2. (He wasn’t talking about, and doesn’t care about, legitimacy under international law.)

After both April strikes on Syria, Trump fulfilled his obligation under the War Powers Resolution to notify Congress; both times, however, he insisted that:

I acted pursuant to my constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive and in vital national security and foreign policy interests of the United States to promote the stability of the region, to deter the use and proliferation of chemical weapons, and to avert a worsening of the region’s current humanitarian catastrophe.

 

As detailed in Part I, the strikes were not made in defense of national interests, did nothing to promote regional stability or protect civilians, and both pre-empted and hindered an independent investigation of the facts. The other false claim in the statement, though — doubtless derived from the ‘logic’ of the secret memo — is even more dangerous: that such decisions are King Donald’s alone to make.

A century ago, in the convulsion of the Great War, the arrogance and greed of America’s current co-aggressors in Syria led to a fateful, secret carve-up of the Middle East, a dramatic expansion of the British and French Empires to fill the vacuum left by the collapse of Ottoman rule. Most infamously, British and French diplomats — Sir Mark Sykes and Francois Georges Picot –- created with ruler-and-map a cluster of new, artificial, combustible colonial states.

Pre and post war maps of Middle East. (Source: Der Spiegel)

Pre- and post-WWI maps of Middle East. (Source: Der Spiegel)

In the 2009 Afterword to his classic 1989 study A Peace to End All Peace, David Fromkin discerns three kinds of state in the region: “survivors of the ancient world” such as “eternal Egypt” and Persia/Iran; more recent “strongmen” states, such as Ataturk’s Turkey and Abdul Aziz ibn Saud’s Saudi Arabia, where “the men really are strong and really are indigenous;” and “a third category that does not seem to command acceptance: Iraq, Syria, Lebanon, Jordan, and Israel provide examples,” and “these are the children of England and France.”

Before the Bolshevik Revolution, Moscow, too, played the Ottoman carve-up game; and the Kremlin’s new strongman, President Vladimir Putin, is glorying in Russia’s re-emergence as a major regional power. Since 1945, however, and most dramatically since the end of the Cold War, America has been the state most willing and able to use massive military, political and economic might to ‘influence’ and, if need be, change regimes.

In the case of all four of these great, or once-great, or want-to-be-great-again powers, routine recourse to war as an instrument of foreign policy has inflicted incalculable damage on the peoples of the region. But it has also damaged their own societies and systems of government, their own capacity for free development.

Corbyn and Kaine are right that War Powers matter; that absent democratic control of war, war can take control of democracy; that an untrammeled war-making executive is, in effect, dictatorial. But what really needs to be challenged is the power of war itself, however authorized, to drive and dictate policy.

 

Sean Howard

 

 

Sean Howard is adjunct professor of political science at Cape Breton University and member of Peace Quest Cape Breton. He may be reached here.

 

 

 

 

 

 

The Cape Breton Spectator is entirely reader supported. Please consider subscribing today!