We can hear the drum beats of war again. Syria certainly appears to have committed heinous acts. The rebels may also have done so as well. Chemical weapons have not been the only horrific means of injuring innocent people. Tens of thousands have died and millions of lives have been disrupted. The use of chemical weapons against innocent civilians crosses a red line and violates international values, law, and stability. It cannot go unanswered.
Skull-and-crossbones indicate the areas affected by the August 21, 2013, chemical attack in Syria. Credit: Creative Commons.
Responses to wrongdoing must not exacerbate problems. The UN inspectors are not tasked with discerning the origin of the chemical weapons attacks and thus more proof will be needed to give the use of force any legitimacy. After the Iraq intelligence fiasco the United States has a credibility deficit in the international community. Real credibility is one element of legitimacy. Law must also not be ignored, certainly not by a country that founds its very existence on the rule of law.
Law prima facie gives legitimacy to political action. Without it the entire edifice of peace is placed at risk even when the moral outrage of the public is calling for action. Presently, without Security Council authorization coercive military intervention in Syria would not be legal. Since the fighting in Syria is not threatening another country the circumstance of self-defense, which would allow the immediate use of force against Syria by the threatened country without approval of the Security Council, is not applicable. The actions of the Assad regime are horrible. Still, international law should not be set aside with impunity.
Are we left with no alternative routes? Certainly not. There would be a different political dynamic if the International Criminal Court (ICC) were to determine that sufficient evidence for a prosecution exists. If it decided that crimes against humanity had been committed, the entire political landscape would change.
Mass atrocities are not new for the Assad regime. The United Nations Human Rights Commissioner Navi Pillay as far back as December of 2011 called for the ICC to investigate mass killings. She was correct then. It is worth noting that she has recently called for ICC investigations of rebel slaughters as well.
There are firm legal foundations for ICC involvement. Although Syria is not a party to the 1993 Chemical Weapons Convention, prohibiting the use of chemical weapons, that does not matter. Customary international law prohibits the use of such weapons of indiscriminate effect generally and Syria would be responsible, especially if they were used against civilian populations regardless of whether they are party to the Treaty. The use of chemical weapons is a war crime within the terms of the Statute of the International Criminal Court (ICC) only if they are used in an international armed conflict, which the conflict in Syria is not. But, their use is illegal as a war crime if intentionally directed against a civilian population in a non-international armed conflict. Such a crime can be prosecuted by the ICC.
Although Syria is not a member of the ICC, that also does not matter. For the Court to formally investigate allegations of criminal conduct, such as mass indiscriminate killings or the use of chemical weapons, the Security Council could refer Syria, or the rebels, or both, to the Court. References by the Security Council to the court have been done in the recent past – Darfur in 2005 and Libya in 2011. Even threatening such actions could have a beneficial impact.
The legal hurdles to such a reasonable course of action are not as high as the political ones. However, advancing world security through the rule of law will provide much greater benefit than such short term political posturing that does little to stop the brutality the people of Syria are experiencing.
One problem of a referral to the Court is that if it commences a prosecution it might make the horse-trading negotiations between the various rebel groups and the Assad regime difficult. If either faces prosecution in the event of losing militarily it could diminish incentives to achieve peace. The status quo is worse than this risk. It is certainly preferable to risking very dangerous unintended consequences of an illegal military strike now.
Jonathan Granoff is president of the Global Security Institute and an adjunct professor at the International Law Widener University School of Law.
Assad would sooner die in a bunker than get caught
If the United States would recognize the World Court and become a member then the Court could prosecute Assad. United States and their Allies are vulnerable for prosecution too for unjust wars (Vietnam, Iraq, El Salvador, Chile, etc. )and thousands of casualties in Palestine.
There is no Just War and indiscriminate killing.
That Vietnam war going on for over 10 years before the US stepped in.
Was there a war in Chile? Never heard of it?
The US used chemical warfare in Viet Nam – agent orange – and nothing was done. Go to Viet Nam and see the people still suffering from it. We are such hypocrites.
So Harriet, I am taking it that won find it acceptable for Assad to use Sarin on his own people. Setting aside the chemical weapons for a moment. Assad is already responsible for he death of 100.000 of his own countryman
Thank you.
Thank you, Harriet.
So you also agree that it is OK for Assad to gas his own people?
Firebombing Dresden and Tokyo were chemical war crimes. Use of agent orange and napalm in Vietnam were chemical weapon war crimes. Bombing water treatment and sewage treatment facilities in Iraq were war crimes. Use of depleted uranium against Iraq by Bush I and by Clinton in Yugoslavia and Iraq were war crimes as has been use of depleted uranium by Israeli against Palestinians. Use of depleted uranium in Iraq by Bush II was a war crime.Use of white phosphorus in Fallujah and again by Israel against Gaza were war crimes. These have all been done systematically, repeatedly and on a grand scale with no prosecution or consequences.
Here no believable proof has been presented.; and this is a conflict perpetuated by regimes, the U.S., Israel and Saudi Arabia, that are more brutal than Assad’s regime.
The ICC will have some credibility when it prosecutes American and Israeli leadership for their ongoing policies of chemical and unprovoked violence against perceived “enemies”.
I agree, John, but even as we write, Assad is probably moving (or has moved) chemical weapons into populated areas. So what sites do we bomb? How much misery do we inflict on the Syrian people? What is the strategy here?
If the world wants to “do something,” perhaps the ICC should issue legal proceedings immediately. Instead of unilaterally taking the law into its own hands, the U.S. should try supporting the rule of law.
Don’t fabricate evidence as with “Assad is probably moving chemical weapons into populated areas”. Your response does not belong here.
If the world wants to “do something”, the ICC should issue charges against the Obama and Netanyahu regimes for their use of chemical weapons: DUI and white phosphorus and biological warfare by bombing water purification and sewage treatment facilities.
And yes, the U.S. should support the rule of law and both the U.S. and Israel should be held accountable to the rule of law. But neither imperial regime will voluntarily do that. Congress will just fall over itself to be Netanyahu’s lapdog.
Oh yes John, those damn Jews! Blame Jews. But it were 2 Arab regimes that have committed acts of genocide in the region. Israel’s soul crime is to exist.yes, thsoe damn Jews! Netanyahu is the criminal in the region leaving aside the hundreds of thousands of Arabs slaughtered at Arab hands.
The anti Semitism on this website is horrific.
I’m not fabricating anything. It is certainly within the realm of possibility that chemical weapons might be moved into populated areas and it is a perfectly legitimate speculation. I don’t know what Assad is going to do and neither do
The last sentence should read: “I don’t know what Assad is going to do and neither do you.” If he becomes more desperate, who knows?