The Syrian Reprisal

08/29/2013 05:10 pm ET | Updated Oct 29, 2013

Secretary of State Kerry recently uttered that "there must be accountability for those who would use the world's most heinous weapons against the world's most vulnerable people." Today, sources at the White House issued a statement saying that President Obama is preparing to release a report justifying a military strike against Syria. The report, it is said, justifies the use of force under the auspices of the Geneva Convention and the prohibition against using chemical weapons. What, however, are we to take from all of this? The momentum behind a potential military strike against Syria is growing, but there are very large questions left unanswered at the moment, and no one seems to be pushing the White House to respond.

First, international law is not typically enforced by one state. That the Syrian regime used chemical weapons does not necessarily entail that the U.S. becomes the international judge, jury and executive to dole out punishments. Indeed, reprisals are subject to strict criteria. Though this potential "limited" air strike against the Assad regime would be exactly that - a reprisal -- and it does not appear to satisfy the necessary conditions. That Secretary of State Kerry discussed the "heinousness" of the weapon and the breaking of international law by Assad, shows that it is this particular instance, and not the almost three year war with over 100,000 dead that is triggering the response.

What are the conditions for reprisal?

First, the purpose of the reprisal must be in response to a "prior serious violation of international humanitarian law [IHL], and only for the purpose of inducing the adversary to comply with the law." Surely we can cite many instances of Assad violating IHL, and thus this particular use of chemical weapons fits here. But here is where the issues become murky: 1) is Obama's strategic objective to stop Assad from carrying out any additional chemical weapons attacks? If so, then there will need to be more than limited air strikes. There would need to be a lot more. In fact, Micah Zenko persuasively argues this today in the New York Times. Obama would need to take out the ability for Assad to deliever any attacks. That would include launching platforms, potentially targeting Assad's air force, weapons caches, and command and control centers. What is more, if one really wants to remove the ability to use this weapon, one has to eliminate those who want to use it. The war aims grow; and 2) the purpose is only to induce the adversary to obey the law. But would Assad ever (as he hasn't yet) obey the law? Chances are no.

Second, this must be a "measure of last resort." While some might say that the U.S. has tried diplomacy, and that there have been years of attempts at reining in Assad -- through nonmilitary means like sanctions, suspensions from international legaues and bodies, and the freezing of assets -- is it really Obama's last resort? Or is it his first resort? For if we frame the issue in terms of Assad's overall behavior, then we might make this justification. If, however, we frame the issue as a response to chemical weapons (the lawyer's way of justifying this particular reprisal), then it isn't the last resort, but the first.

Third, "reprisal action must be proportionate to the violation it aims to stop." However, what would be the measure of proportionality here? Lives lost? For if we restrict our case to that of this particular instance of chemical weapons use, then the damage delivered to enforce compliance would have to mirror that. If, however, Obama justifies the reprisal on the three-year conflict, then he has more wiggle room. However, if we do not take lives lost or property damage as the metric for proportionality, then justifications for regime change look more likely.

Fourth, the decision must be made to resort to a reprisal at "the highest level of government." This one is probably the easiest to meet. Finally, we have the condition of "termination." The "reprisal action must cease as soon as the adversary complies with the law." Yet how would this work? Unless the U.S. destroys Syria's capacity to use chemical weapons against its people, there is no guarantee that it would not do it again. Though, destroying this capacity is not something that can be achieved with limited air strikes from off shore carriers or high altitude bombing campaigns. Even if the U.S. does this, there would need to be verification that all stockpiles were secured and the necessary delivery platforms were destroyed.

The biggest fly in the ointment, however, is that the law governing reprisals is international humanitarian law. That is, it is the law governing hostilities. However, the U.S. is not in hostilities with Syria. Syria and the U.S. are not at war with each other. Now, does IHL govern the actions of the Syrian rebels and the Syrian government? Certainly. However, the US is not a party to this dispute, and so it is now justifying an act of law enforcement that it could not possibly meet the customary international legal requirements for because it has no standing. Any legal excuse that President Obama is going to present in the coming days are, therefore, fiction.

All in all, the recent maneuvering to rationalize a use of force against Syria due to its recent use of chemical weapons is a terrible justification. Syria does not belong to the chemical weapons ban treaty, and so has not broken any treaty law. If we justify a use of force based on customary international law, then we still face all the problems outlined above. Though, as reprisals typically have motives related to punishment and deterrence, we might want to ask whether Obama's actions would even have purchase. As Mary Ellen O'Connell's recently noted "the usefulness of a military strike to prevent future chemical weapons use is highly doubtful."

The result is not that the Obama administration ought to refrain from using force, but that the way in which it is going about (potentially) justifying such an action is problematic at best. While the use of chemical weapons is truly horrific, and we should all be outraged and sickened by Assad's atrocities, this is nothing new! Are not the 100,000 people already killed by: cluster munitions (also illegal), the Shabiha (the civilian killing squads), and the torturers and rapists also horrific? 100,000 people -- mostly women and children -- are already dead. Yet this was not enough to trigger an international response? As Stephen Walt said in the New York Times, "Dead is dead, no matter how it is done." Thus instead of looking for some phantom legal justification to use a limited -- and probably inefficacious -- air strike against Assad, the Obama administration ought to be looking at ways to actually end the violence and killing. Indeed, if military force is on the table, then coming in and dropping bombs and leaving is not going to solve the problem. One must stop the use of chemical weapons, sure, but one must also stop the killing, torturing and raping. One must make room for the millions of refugees to return to their homes, one must seek to secure the millions of internally displaced persons. For this is not about a reprisal -- this is about a humanitarian intervention.

*Update: Since writing this piece, the Arab League has declined to support any limited strikes against Syria, and Iran is pledging to strike Israel if the U.S. goes ahead with any sort of military campaign. While the United Kingdom is presenting a resolution in the United Nations today, to back "all means necessary" to protect civilians, there appears to be no regional support for such an endeavor, and there is likely going to be the exercise of the veto by Russia and China. The U.S. would therefore have to rely on few allies to engage in such a reprisal, and if it does so, will face many political, as well as tactical, problems.