08/30/2013 04:19 pm ET Updated Oct 30, 2013

U.S. Military Intervention in Syria: Legitimacy Does Matter

Even after a decision has likely been made, and possibly carried out, by the time you read this, the U.S. internal debate continues on whether or why to punish Syria's Assad through limited bombing, as captured brilliantly by a veteran writer on such matters. The occasional American foreign policy tendency to think that outrage at a particularly awful action by a leader is best manifested through military means comes up against the messiness of Syria's conflict, and the real lack of answers to what exactly bombing will accomplish.

One response to this dilemma is easy -- there is no good reason for military action. I shall go further. It will be wrong for the U.S. to bomb Syria, without a very clear international legal justification, which it is unlikely to get from the UN or established international law. Clear permission from the UN is the only accepted legal substitute for the normal condition under which countries are authorized legally to use force, self-defense. Since self-defense is in no way at issue in a U.S. intervention in Syria, and such an intervention also does not satisfy the criteria of just war theory, the simplest analysis is American bombing is not simply illegal, but immoral.

Yes; I said immoral. But isn't it immoral not to do something in response to a monstrously illegal and immoral act by someone (we don't know who still) connected to Assad's Syrian government? And here comes the problem with a frequent American policy, and somewhat general, trend -- it is far too easy to think "doing something" means using military force. Negotiating, law-making and law enforcement are actions, too.

And we know that these non-military actions are more successful at settling conflict and improving people's lives than more violence.

How do we know this?

For one thing, when prominent international relations experts look at the biggest successes in post-World War II U.S. foreign policy, these are all diplomatic, not military. For another thing, American military interventions, particularly in the Middle East, have generally led to backlashes or instability in the target countries and elsewhere abroad, and even hamstrung Washington's policy capacity down the road, not to mention entailed domestic frustration, as in Iraq and Afghanistan.

The basic issue with Syria is that some people (understandably) want to punish Assad for his operatives' reckless disregard of human life, and his willingness to use particularly heinous weapons and techniques to kill his own civilians. Since no good argument has been made that a limited military strike can tip the strategic balance of forces in Syria's civil war, and American officials are not suggesting they can or wish to do this, punishing Assad must be the point of any operation.

Yet, for the most part, in today's world, societies punish through the rule of law, attempting to realize law's admittedly imperfect prospects for deterrence and fairness using fair rules and procedures. Since international law does not justify a military strike on Syria, a U.S. attack would be, choose your own, term, engaging in vigilante justice, or trying to make a right from two wrongs.

We teach our children, and (usually) enforce upon our citizens, the idea that responding to violence with more violence is wrong, although in our country more than most, we still believe the state has the right to engage in punitive violence after due legal process. But the legal process part still matters.

In the international arena, this basic precept is often violated. And the justification is well-known. International law and global society lack the sort of centralization and enforcement mechanism that national legal systems have. Since global organizations like the UN are too split by international politics to agree on actions like collective bombing of Syria, goes a typical argument, we can't rely on international law and organizations to come to a reasonable result during global crises. So the U.S. has to take on the role of global policeman to do something, even when, as we've seen in Syria, its leader has been reluctant.

But this reasoning has its problems. First, it is in fact easy to argue that the international legal system works better than its critics assume precisely because it is difficult for international institutions to come to agreement around military interventions, like Syria, that, in fact, do not obviously cut legal muster. Second, international law has changed significantly, if slowly, so that there are both more accepted norms against governments mistreating their citizens, such as human rights law, and more mechanisms to hold accountable leaders who violate these norms, such as the International Criminal Court, which the U.S. continues to oppose. Third, and following from this last point, when powerful countries like the U.S. give up on the usefulness of law and say that only force works, they act to reaffirm the very weakness of international law against which they complain.

This gets back to my basic point, and my response to understandably frustrated friends who ask, doesn't the U.S. have to do something? Trying to build legitimacy and content for international law is doing something. The problem, for many of us, is that it seems slow, and offers no immediate resolution to punishing Assad for his awful attacks. Fair enough, but here too the U.S., in addition to working as consistently to build and enforce international law, can be active. Engaged, tireless, imaginative backroom and front row international diplomacy is the best thing we can do to undermine Assad.

American policy-makers have ample experience to know that military action, particularly without either an international legal mandate or broad political acceptance by diverse other countries, creates challenges for the U.S. and a backlash to its narrow and broader international influence, especially in the Middle East. The best way to punish an actor who commits illegal, and repugnant, acts against his citizens is to amplify and use legal and legitimate ways to hold him and his kind accountable.

For the U.S. to fight (chemical) fire with (missile) fire in this case is illegal, wrong and will have a variety of foreseeable negative consequences.