By Richard Falk
Informed opinion agrees that the response to the presumed Assad regime’s responsibility for the use on August 21st of chemical weapons in Ghuta, a neighborhood in the eastern surrounding suburbs of Damascus, is intended to be punitive. This is a way of signaling that it is a punishment for the use of chemical weapons that does not have the ambition of altering the course of the internal struggle for power in Syria or to decapitate Bashar el-Assad. Of course, if it achieved some larger goal unexpectedly this would likely be welcomed, although not necessarily, by such interested centers of influence on Syrian policy as Washington, Ankara, Riyadh, and Tel Aviv.
Why not necessarily? Because there is a growing belief in influential Western circles, highlighted in a cynical article by Edward Luttwak published a few days ago in the NY Times, [“In Syria, America Loses if Either Side Wins,” Aug. 24, 2013] that it is better for the United States and Israel if the civil war goes on and on, and there are no winners. Accorded to this warped reasoning, if Assad wins, that represents significant regional gains for Iran, Russia, and Hezbollah; if the Syrian Free Army, and its Nusra Front and Al Qaeda allies win, it gives violent extremist forces a base of operations that would likely work strongly against Western interests.
Only Turkey, the frontline opponent of the Assad regime, and Saudi Arabia, the regional champion of Sunni sectarianism, stand to gain by resolving the conflict in favor of the Sunni-led opposition forces as that would both contribute, as Ankara and Riyadh see it, to greater regional stability, a measure of ideological alignment, involving a major setback for Iran and Russia.
Turkey and Saudi Arabia are split on whether it matters that with the fall of Assad a regime is defeated that has repeatedly committed crimes against humanity in waging a war against its own people. Their contradictory responses to the el-Sisi coup and massacres in Egypt is illuminating on this score: Turkey has adhered to principle at the probable expense of its material interests in the Middle East, while Saudi Arabia has rushed in to provide massive economic assistance and diplomatic support a military takeover that is crushing the leading Muslim political organization in the country.
Another way of thinking about the grand strategy of the United States in the Middle East after the dust began to settle in the region is suggested by the noted Israeli peace activist and former Knesset member, Uri Avnery [“Poor Obama,” August 31, 2013]: work frantically behind the scenes to restore the function of governance to military dictators, with Egypt as the poster child. Avnery attributes such Machiavellian machinations to CIA masterminds swimming in dark waters.
The rationale for an American-led attack: a variety of reasons have been given:
– America’s credibility is at stake after Obama ‘red line’ was crossed by launching a large-scale lethal chemical weapons attack;
– America’s credibility is makes important contributions to world order, and should not jeopardized by continued passivity in relation to the criminal conduct of the Assad regime; inaction has been tried and failed [not clearly tried—Hilary Clinton was avowed early supporter of rebel cause, including arms supplies; recent reports indicate American led ‘special forces operations’ being conducted to bolster anti-Assad struggle];
– a punitive strike will deter future reliance on chemical weapons in Syria and elsewhere, teaching Assad and other leaders that serious adverse consequences will follow upon a failure to heed warnings issued by an American president;
– even if the attack will not shift the balance in Syria back to the insurgent forces it will restore their political will to persist in the struggle for political victory over Assad and offset their recently weakened position;
– it is possible that the attack will unexpectedly enhance prospects for a diplomatic compromise, allowing a reconvening of the U.S.-Russia chaired Geneva diplomatic conference, promoting transition to a post-Assad Syria.
Why is this rationale insufficient?
– it does not take account of the fact that a punitive attack of the kind evidently being planned by Washington lacks any foundation in international law as it is neither undertaken in self-defense, nor after authorization by the UN Security Council, nor in a manner that can be justified as humanitarian intervention (in fact, innocent Syrian civilians are almost certain to be among the casualties);
– it presupposes that the U.S. Government rightfully exercises police powers on the global stage, and by unilateral (or ‘coalition of the willing’) decision, can give legitimacy to an other unlawful undertaking; it may be that the United States remains the dominant hard power political actor, but its war making since Vietnam is inconsistent with the global public good; international law and the UNSC are preferable sources of police powers than is reliance on the discretion and leadership of the United States at this stage of world history;
– U.S. foreign policy under President Barack Obama has similarities to that of George W. Bush in relation to international law, despite differences in rhetoric and style: Obama evades the constraints of international law by the practice of ‘reverential interpretations,’ while Bush defied as matter of national self-assertion and the meta-norms of grand strategy; as a result Obama comes off as a hypocrite while Bush as an outlaw or cowboy; in an ideal form of global law both would be held accountable for their violations of international criminal law;
– the impacts of a punitive strike could generate harmful results: weakening diplomatic prospects; increasing spillover effects on Lebanon, Turkey, elsewhere; complicating relations with Iran and Russia; producing retaliatory responses that widen the combat zone; causing a worldwide rise in anti-Americanism.
There is one conceptual issue that deserves further attention. In the aftermath of the Kosovo NATO War of 1999 there was developed by the Independent International Commission the argument that the military attack was ‘illegal, but legitimate.’ The argument was that the obstacles to a lawful use of force could not be overcome because the use of force was non-defensive and not authorized by the Security Council.
It was treated as legitimate because of compelling moral reasons (imminent threat of humanitarian catastrophe; regional European consensus; overwhelming Kosovar political consensus – except small Serbian minority) relating to self-determination; Serb record of criminality in Bosnia and Kosovo) coupled with considerations of political feasibility (NATO capabilities and political will; a clear and attainable objective – withdrawal of Serb administrative and political control – that was achieved).
None of these Kosovo elements are present in relation to Syria: it is manifestly unlawful and also illegitimate (the attack will harm innocent Syrians without achieving proportionate political ends benefitting their wellbeing; the principal justifications for using force relate to geopolitical concerns such as ‘credibility,’ ‘deterrence,’ and ‘U.S. leadership.’ [For intelligent counter-argument contending that an attack on Syria at this time would be ‘illegal, but legitimate,’ see Ian Hurd, “Saving Syria, International Law is not the answer,” Aljazeera, August 27, 2013]
 In the spirit of ‘truth in advertising’ I should acknowledge that I was a member of the Kosovo Commission, and indeed responsible for drafting the section of the report that developed the ‘illegal, but legitimate’ rationale. I admit to some misgivings at the time, which grew larger during the Iraq War debate in which the distinction was again invoked to rationalize an illegal war. In the larger picture of norm development it was the ‘responsibility to protect’ (R2P) norm that attained the greater influence, especially within inter-governmental and UN circles, providing the rationale for the UN authorized attack on Libya in March 2011.