So, while all the real stuff is going on I’m also re-reading Judith Shklar’s Legalism (which is a fantastic book you should go read) and writing about reprobation in law. It’s an interesting juxtaposition.
If we take for granted for the moment (per implausible, I think, but that’s a different story) that the reason to make some military strikes on Syria is because Assad has used chemical weapons, it’s an interesting question whether it matters that the US will not be getting authorization from the UN Security Council (UNSC) or, it seems, even being backed up by the UK.
First off, some folks have pointed out that the Geneva Conventions are super-old, and Syria is not a party to the Chemical Weapons Convention. This is a red herring, I think. It is entirely plausible that a customary norm of international law has developed that parallels the treaty norm banning chemical weapons, given the long history and wide scope of the taboo. If you wanted to argue that it was even a jus cogens norm, I wouldn’t laugh at you.
But, just as it would for domestic matters, it worries many people – myself included – to have a single state, especially one with all the geopolitical baggage that the US brings in general and to Syria in particular, serve as judge/jury/executioner on a norm violation like this. In the domestic case, we would typically want a court to pronounce guilt. And in the international case, it’s pretty common to look to the UNSC as a kind of pseudo-court, even though it isn’t.
One of the finicky bits of the post-UN Charter international system is that the creation of the UN mucked with traditional principles of international law in ways that we’re still working out. The big one here is obviously the simultaneous principles of averting war through reinforcing the norm of non-intervention in internal affairs of states and protecting and upholding human rights… which often involves the internal affairs of states.
But a subtler one that is coming up here, I think, is: in traditional conceptions of international law, because there is no international sovereign, states are responsible for norm-enforcement and maintenance (Realists think of the international system as a Hobbesian state of nature, but for traditional international law, it’s more like a Lockean state of nature). If you break an international rule, you are punished by your fellow states. This is even built into Augustinian just war theory – rather than self-defense being extended to things like “humanitarian intervention” or norm-enforcement, the right of self-defense against unjust aggression is an instance of the general right (/obligation) to punish injustice.
The UN Charter undercuts that image of international society without really replacing it. There still is a vestige of it on the economic plane: while only the UNSC can impose economic sanctions that are binding on all states (in virtue of their treaty obligation to obey decisions on such things by the UNSC), individual states can impose their own economic sanctions on each other (subject to the rules of other trade regimes, but that’s another story). So if you can get enough states to, e.g., embargo Cuba because you think they are violating human rights, you can enforce human rights norms that way.
But you cannot use force to enforce norms, at least not uncontroversially, because of Article 2(4) of the UN Charter. There’s some argument here – Belgium famously argued in the FRY v. NATO case that because humanitarian interventions don’t aim to conquer, they are not violations of “independence” or “territorial integrity,” and the R2P report (but not the 2005 World Summit Outcome Document) argues that coalitions or individual states should be able to step in if the UNSC doesn’t live up to its obligations – but at the very least if you try to use force to punish someone for chemical weapons use under the theory that it’s not a 2(4) violation, your lawyers should cringe a bit. Article 51 reserves the right of self-defense to states, but it’d be hard here to claim that Syria’s use of chemical weapons was an act of aggression against the US.
At the same time, the kind of Lockean social contract bargain that we’re used to is incomplete on the international scale. The UN, and in particular the UNSC is charged with maintenance of international peace and security, which at least on the face of it is different from enforcement of all international norms (and keep in mind that on conservative readings, that “international” is understood as “between nations” not as “anywhere in the world”). The UNSC is not expected to take up all norm-violations it can, it does not have to abide by the decisions of international legal bodies like the ICJ, and it does not have to justify its decisions in terms of international law.
Now, we may be moving in the direction of making it more like an international court. There is a long-standing proposal to have a norm of a “Responsibility Not to Veto” (RN2V) at the UNSC, where the P5 nations would agree (this would be a social norm, not an enforceable law, obviously) not to use their veto to block humanitarian interventions. Were such a norm observed, it would make the UNSC more court-like, as at least the P5 would be bound in this one way to make their decisions on “legal” rather than “political” grounds. Right now, for instance, it is entirely possible for Russia to simply say, “yep, Assad used chemical weapons, but he’s our ally, so we don’t care, suck it.”
And my colleague pointed out to me that the best way of understanding the increasing traction of R2P may be as a change to the understood meaning of “international peace and security,” rather than as a norm permitting action in violation of the UN Charter (or reinterpreting Art. 2(4)). On this view, we are moving toward a situation where the UNSC would understand all violations of international law (or at least all violations relating to human rights and use of force) as threats to international peace and security, even if there were no such threat in a lay sense (violence is unlikely to spill across a border, etc.). This would make the UNSC more court-like in a different way, by giving it a more clearly norm-based mandate.
And as Peter pointed out, there is an important court-like function that the UNSC already plays. One of the problems with both deterrence and reprobation is that they require that you be able to communicate why the punishment is coming down. I mean, Kafka made a career writing about what law is like when the communicative function fails – it make the state into a brute, mysterious, soul-crushing threat. If military strikes on Syria are to have the (again, let’s assume for right now) intended effect of communicating the international community’s condemnation of chemical weapons use, it needs to be clear that that is why they are happening – before we even get to issues about whether it makes sense to treat the Syrian government as a criminal rather than Assad personally, etc.
In the current situation, that is far from assured. Plenty of people, myself included, and probably Assad included, are very skeptical that any US strike would really be motivated by our concern over chemical weapons. The water is too muddied by the fact that we were instrumental in letting pass two of the only other confirmed state uses of chemical weapons in the modern era, since both were by our ally Iraq, back when it was our ally (during the Iran-Iraq War, and then during the campaign against the Kurds); and, by the fact that the US has been sabre-rattling against Assad for so long now that it’s pretty plausible that chemical weapons are just a pretext for striking him and trying to tip the balance in favor of the rebels (not to mention that the US claims to have more certain intelligence on the chemical weapons than the UN has, or than the US is willing to make publicly available, further fueling the concerns of anyone who thinks that chemical weapons is a golden opportunity, rather than enforcement being a choice we’ve been backed into reluctantly and only because of the massive norm issues at stake). On the flip side, since the UK vote, I have seen many people say things along the lines of “now it is even more important to do something, since the UK has shown it doesn’t give a shit about chemical weapons.” But of course the UK’s – political, not legal – decision is also subject to the multiple interpretations that political decisions always are. Most of the parliamentarians who voted against military action would surely justify their vote in terms of things like their uncertainty of Assad’s weapons use, or their obligation to wait for the UN, or their (Realist-y) obligation to look after their constituents before international norms (it doesn’t show that I “don’t care” about crime if I spend time with my daughter instead of becoming a vigilante), or their opposition to enforcing the norm through military strikes etc.
As Peter drove home in conversation, going through the UNSC could help with this problem. While the UNSC is not a legal body, it shares with legal bodies at least some commitment to public reasoning – anyone can go read the transcripts of UNSC meetings, and find at least the public reasons for votes (no one can force members of the UNSC, any more than judges, not to argue disingenuously, of course). And while there is no rule about it, the social norms surrounding the UN stop Russia from arguing in the nakedly Realist way I suggested above. Ambassadors speaking in UNSC meetings at least pay lip service to international law and morality in making their arguments. So, to the extent that a vote to authorize the use of force against Syria could be gotten from the UNSC it would bring the communicative advantage of being not just a brute decision, but of being one that comes attached with “and our reasons are thus-and-so.”
Reading Shklar brings to mind at least one way in which the UNSC may be superior to a court, by the way. She points out the ideological nature of assuming that the realm of law and rules is somehow purer and cleaner than the realm of politics and compromise. One of the weirdnesses, to me, of this whole argument, is that we’ve drawn the red line around chemical weapons. Morally, surely, the best argument for getting militarily involved in Syria is that civilians are being killed, not the particular manner of their deaths. The use of chemical weapons may show the desperation of the Assad regime, but it is neither here nor there in terms of their cruelty. And even if you’re looking for an international norm violation, intentional targeting of civilians already is one!
So I worry that searching for a way to fit Syria into a discussion of international law distorts our approach to the situation. It possibly commits us to symbolic “retaliation” for the chemical weapons use that does not much change the situation on the ground. And it tries to hide the ambiguity of the situation by letting us say, “chemical weapons are bad, and whatever the folks we like have done they haven’t used chemical weapons, so now we have a bright line, and if you’re over it, you’re an evil asshole.” Again, I don’t have a solution to the Syrian situation ready to hand, and I’m frighteningly ill-informed about the internal dynamics of the country. But it strikes me that trying to get closer to a solution by looking for a clean legal principle that will maybe attract consensus on the principle without actually clearing up the lack of consensus on the situation or what can be done is precisely the wrong way to go. Letting the UNSC be the non-legal entity that it is might be the better solution than trying to make it more legalistic. If the US goes ahead with military strikes, it will be doing so in the name of some “higher law” that transcends the messy details of the situation, but it might be better to try to hash out those details in public if we actually want to keep people from dying, rather than just ensuring that they die from napalm instead of gas.