Using the UN Security Council as a Pseudo-Court

Security Council Chamber Mural (by Nick Jeffrey)

Security Council Chamber Mural (by Nick Jeffrey)

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.

At the same time, I was discussing Peter Levine’s insightful post on Syria over on YouFace, and talking about similar issues with one of my colleagues oh-my-goodness-in-person-in-meatspace-and-such.

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 thatĀ 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.


Everything I Know About Syria (Pt. 1?)


I can find it on a map. (Source: CIA World Factbook)

I’m a little worried about all the folks who have strong opinions about what we should do in Syria who don’t seem to know much more about it than I do. So, I’m not going to try to tell you what we should do, but as a philosopher, what worries me before we even get to that worry is that the conversations about Syria often seem a bit confused. I suspect at least some of that may be on purpose, but I can’t prove anything so you didn’t hear it from me.

Bottom line up front: A lot of people are talking about Syria right now as if we’re going to go in to punish chemical weapons use. But the real interest seems to be in using that justification to drive a plan that actually aims to do more. It’s really hard to determine how to “punish” chemical weapons use appropriately, and if we try to do more without admitting it and hence doing more than just bombing, we’re likely to fail at everything on the table. Worse, I worry that there’s genuine conceptual confusion and blurring here among people making decisions (in particular, various ways of being “against Assad” being lumped together and both their motivations and strategies being treated as interchangeable).

First, I think it’s helpful to set some outside boundaries to keep any discussion of it in context.

As Yglesias points out (hey, when he’s right, he’s right), even if everything in Syria goes according to plan and swimmingly, military intervention in Syria is likely to be a very expensive way of helping people there. If all you care about is lives saved, it’s a serious challenge to ask why we don’t spend our money saving lives in contexts where, frankly, lives are easier to save.

There are all sorts of rejoinders possible here. As I myself have argued, it is quite morally plausible that it is more morally pressing to save people whose lives are being lost as a result of injustice than mere misfortune. And while it’s hard to assess this kind of outcome (which does not mean we shouldn’t try) someone could make the argument that a military intervention that stops a war significantly earlier than it would otherwise have stopped may save very many lives (especially when you count in the indirect costs of war, like disease and poverty) and so be more “cost-effective” than a quick calculation would show. That said, I think security folks should take it more seriously than we sometimes do that, if our principle really is “we have an obligation to save lives,” the burden of proof is often on military intervention to prove that it’s a better place to direct resources than other areas (when in actual policy fact, it’s often treated as if it’s the other way around).

The other is that we – “we” here meaning especially USians – need to avoid power fantasy. It may just be that there’s nothing we can feasibly do from here that gets everyone everything they want and a pony. “Syrians are still dying” is only a good rebuttal if we’re confident that there’s a course of action we take that can impact that.

That said, I think there are two questions that I wish some of the discussion would be clearer on. Both of them go to the broader question of how we would even define “success” here. One is, “what is the nature of our interest here,” which I’m going to leave aside for the moment, just because I need to do real work at some point today. The other is:

What is This Intervention About?

Punishing a violation of the chemical weapons “red line”

Off the bat, I’m just going to assume for the sake of this argument that the Assad regime did in fact use chemical weapons.

Right now, the official arguments in favor of US intervention in Syria seem to be focused on Assad’s chemical weapons use. This is, in fact, a violation of international law, and plausibly a serious moral violation. More serious than killing bunches of civilians with non-banned weapons? I don’t know (morally), but let’s at least grant that it’s a plausible reason to sit up and take notice.

But it’s less obvious than it may seem how bombing is related to this red line. The simplest theory is a purely retributivist one. Assad’s actions and those of his regime merit punishment and so they should be punished. If that’s our theory, it’s less clear why bombing military targets in the civil war is the right punishment. Difficult as it might be to actually do, this sounds like an argument in favor of apprehending and trying Assad (and perhaps other folks involved in the actual decision to use poison gas). And if you’re a pure retributivist, “it is hard to get proper retribution” is no more a reason for deviance than “punishing someone won’t deter anyone” is.

It seems particularly problematic to focus on retribution because most of the people dying from the bombing would be either civilians or regime combatants, not Assad and his inner circle. If we were going to war with Syria, you could argue that all combatants on the side of the regime are legitimate targets, and so they have no complaint if they are bombed to death, but punishing Assad is arguably not exactly going to war. And even if it’s legitimate to kill them, the idea that killing his combatants and Syrian civilians (even ones loyal to Assad) isĀ inherently a punishment for Assad relies on the very arguable assumption that Assad cares a whole lot about them.

So, I doubt that pure retribution is actually what most people have in mind, in this sense, when they talk about a need to intervene because Assad has crossed the chemical weapons red line.

The worry is that we now start walking up to the line of saying that the intervention is not about punishing the chemical weapons use, but about getting rid of Assad himself. And, politically if not morally, that then provokes the question, “if this is about Assad losing, why didn’t we get involved sooner?”

If we want to stay on the chemical weapons side of that red line, there are two ways we could do it.

First, we could try to say that this is not a punishment strategy at all, but a denial one. To back that up, we would have to carefully attack all and only targets that were directly involved with chemical weapons production and use. Yes, that might change the balance of power a bit, but maybe that’s a side effect. The plan would not be so much to make Assad pay for using them, but to ensure that they literally could not be used in the future. So, for instance, if Assad were to box up all the chemical weapons and mail them to a UN cantonment area tomorrow, we’d be done and walk away, no further need to get involved.

Second, we could say that the appropriate punishment is just that Assad’s chances of winning the civil war be lowered by X%. I’ll admit, this just seems weird to me as a punishment.

Third, we could say that the intervention isn’t about punishment or about denial but about deterrence. I’m going to leave aside the idea that it’s about deterring other potential chemical weapons-users, and just focus on Assad. The idea might be that we send him this message: “we will stay out of this, unless you use chemical weapons. Then we’ll take action to make you more likely to lose.”

This is structurally similar to an approach that has been used in the US against violent crime to some extent. Basically, while no one is legalizing drugs, to send a message to violent street organizations that the real focus is on the violence, not the drugs. For instance, under the Boston CeaseFire model, gang leaders were more or less straight-up told: if you peacefully deal drugs, all you have to worry about is normal narcotics enforcement, but if you are involved in violence we will throw the full weight of all our special federal money and enforcement resources against you.

This seems to work pretty well, but you really have to not care about the drugs that much. If Assad believes that there is no way that the US and its allies will let him remain in power, no matter what he does, then he will never believe that our intervention is keyed only to his chemical weapons use, and we won’t be able to specifically deter him from using them. Basically, he would need to believe that if he refrains from using them, we would largely leave him alone to win or lose. For better or worse, it’s pretty reasonable for him to be skeptical of that at this point.

What I suspect is in a lot of people’s heads, though, when they point at chemical weapons use in Syria, is not any of this. It’s something more like, “Assad used chemical weapons; this should prove to anyone who was doubting up until now that he doesn’t deserve to be in charge of Syria.”

Removing Assad from Power

This is more straightforward, as a goal! For some people, the motivation might be tied up to some extent with the use of chemical weapons, but they would not think it acceptable for Assad to remain in power, even if he never used chemical weapons.

Frankly, it seems unlikely to me that, were (per improbable) the UN team to say, “we have definitively determined that no chemical weapons were used,” most of the people I know or read who are hawkish on Syria would suddenly say, “I guess it’s all cool now, nevermind.” On the flip side, I doubt very many people were on the fence about this, but then changed their mind about whether or not Assad was a bad guy once chemical weapons were used.

If all we wanted to do was see Assad dead or deposed, it might not be that difficult. Here’s where “I am not a Syria expert” becomes important, but even without boots on the ground, we could massively arm rebels, carry out airstrikes, etc. and probably stand a decent chance of changing the tide.

The problem with this would be what the aftermath looked like. Libya, the closest analogy to this kind of plan, is a worrisome one. It’s hotly contested in the circles I run in whether Libya was “successful” (partly for reasons like these, where I don’t think everyone agrees on what “success” looks like), but I think I can pretty uncontroversially say that the situation in Libya right now, post-intervention, is far from ideal. The worry would be that, OK, you get rid of Assad, but now you’ve got someone else pretty bad (if not equally bad, but maybe even worse) in charge. I mean, Maliki and Karzai maybe clear the low bar of “better than the last guys,” but not by a whole lot.

One consistent approach would be to say, that if this is punishment to Assad and his regime for using chemical weapons, or even for broader crimes like attacking civilians, that doesn’t matter. When we throw a violent criminal in prison, maybe it’s not our job to worry about whether another violent criminal will take his place (until it comes time to punish the successor).

But it seems like most people who are hawkish on Syria want something more than that.

Protecting Civilians

This is a fraught one, and one where the empirical details are even more important. In fact, as we go up this scale, in general, deep knowledge of the nuances of the Syrian situation gets more and more important.

One way to go is to simply collapse this into a different option. We are protecting civilians by removing Assad, who is killing them. Or, we are protecting civilians from chemical weapons attacks.

If you want to focus in specifically on civilian protection, though, I think we’d have to be going about this in a very different way than we’re talking about going about it right now.

Now, I have a rep (Having a rep requires being known – Ed.) for being skeptical of the ability of militaries to protect civilians. But it doesn’t seem impossible for them to do some good. The intervention in Kosovo likely saved some lives, and there’s a reason why people retroactively appeal to things like India’s intervention in East Bengal and Vietnam’s overthrow of the Khmer Rouge to justify norms of humanitarian intervention. Heck, even France’s Operation Turquoise in Rwanda probably gets a worse rap than it deserves (saving civilians because you’re internationally embarrassed, or because they are the civilians aligned with your genocidal allies is still saving civilians).

But what’s currently being proposed most places isn’t like these operations. The most common comparison I hear is to Kosovo, but what’s important to keep in mind is that the aerial bombing campaign was followed up by a massive ground rebuilding project, involving not only a major NATO operation (KFOR) but one of the UN’s few full-on transitional administration missions (UNMIK). I’m pretty confident that no policy makers in the US are planning on deploying an Iraq- or Afghanistan-level US occupation force to try to rebuild things and protect civilians once the initial onslaught is blunted.

Because, keep in mind, it’s not as if Assad and chemical weapons are the only threats to civilians out there! If we imagined that we snapped our fingers and Assad disappeared from existence, civilians would still be under direct threats from continued social violence, ambiguous criminal/political violence, and getting caught up in the infighting between armed factions trying to assert control. They would also be under indirect threat from poverty, destroyed infrastructure (which bombing often makes worse), disease, and the like. So if what you care about is civilians don’t die rather than the much narrower Assad doesn’t kill civilians, it’s hard to imagine that you will accomplish your goal just through an aerial campaign, even if you believe that an aerial campaign was a key and successful part of the strategy in Kosovo. Yes, if you point out that ethnic cleansing accelerated during the bombing campaign, many people will rightly point out that there was then a return of large numbers of displaced after it was over; but it’s a hard thing to argue that the situation would have been perceived as safe enough for that without the presence of KFOR/UNMIK or something similar in the aftermath.

There may be answers to this, but the question for anyone pushing intervention as civilian protection should be, “what is the analogue to KFOR and UNMIK in the Syrian situation?”

There’s also, I think, a darker side to this. Like folks who say that we need to preserve “stability” in Syria, it’s not at all obvious that being against Assad is the way to go here. I wouldn’t particularly want to live in Assad’s Syria pre-civil-war, but the fact remains that I would stand a much lower chance of being killed there than in civil war Syria. Civil wars, even totally justified and understandable ones, are bad for your health and safety. In fact, the hard-nosed argument often is that we end war first and then worry about justice in a situation where fewer people are getting blown up.

By most of what I see, the balance of power in Syria is still somewhat favorable to Assad (and certainly would have been absent support to the rebels from a number of US allies). So if you really want to just make sure civilians are safe, then I think we need to take seriously the idea that we ought to throw our weight behind Assad. On the one hand, this is arguably morally odious (though it’s basically the deal we’ve been happy to accept in other places, most saliently Bahrain). On the other hand, if you don’t want to make that deal with the devil, maybe it’s not just civilian protection you care about…

Resolving the Conflict

Read this with an implied rider of something like, “in a just way,” or “and creating a more legitimate democracy there.”

Again, I suspect this is what many hawks have in mind as their goal. Not just that the civil war grinds on, but without poison gas, or that Assad loses and who cares what takes his place. At the very least, most seem to have in mind that “nothing could be worse than Assad” (of course, things could).

But the imagined ideal outcome is, maybe not Sweden, but some kind of human-rights-respecting (basically) democracy (basically).

Here we hit the point of maximal “you would need to know more about Syria than I do to figure out how to do this properly.” But, like protecting civilians, I think you can’t reasonably have this as your goal without countenancing some kind of much larger, longer-term intervention than people currently seem to be talking about.

And though the dark side of this is less dark than just going for civilian-protection-via-stability-under-anyone, there’s at least a way in which this pulls against current rhetoric. I suspect that the surest route to something like this would be a negotiated transition, where Assad keeps some power for a while and likely a rich and comfortable life somewhere forever. He’s a bad guy, but he also still has power and supporters, both within and without the country. And there are some bad guys on the side we USians like, too – those al-Qaeda linked brigades are supported by someone, and let’s not pretend the secularists are saints either (again, whether they hop the “better than Assad bar” only gets you so far). Some kind of managed transition probably requires all the UNMIK-like apparatus of protecting civilians in the aftermath of the war, plus currently-not-forthcoming political will from at least Russia and the US+allies to get the regime and the rebels (respectively) to agree to it, something neither seems to want to do.