Syria Deal No Utopia for International Law
Two cheers for international law!
A month ago, when I first contemplated writing a piece for The Straits Times on Syria and international law, I was preparing for war.
As someone who teaches international law, I must periodically explain to my students why countries like the United States occasionally break the law.
Until a few weeks ago, it looked like the world would see a repeat of the Iraq war a decade earlier. In 2003, the U.S. invaded Iraq in defiance of the United Nations Charter and public opinion.
The U.S. sought to drape its action in the robes of legality, but few were convinced. The failure to find any weapons of mass destruction (WMD) — a justification the US used to gird its case for military action — further undermined U.S. claims that its actions were justified.
When it comes to Syria, the evidence that its President Bashar al-Assad not only possessed chemical weapons but had used them against his own population was much stronger.
Nevertheless, any such attack by the United States still would have been illegal.
International law is actually quite clear on matters like this. The UN Charter prohibits the use of force except in self-defence or when authorized by the Security Council.
The Responsibility to Protect, a relatively new addition to international affairs, ensures that situations like Syria get onto the agenda of the Security Council. It does not, however, authorise the use of force without a Council resolution.
During the Iraq war, international lawyers therefore found themselves either apologising for the actions of the United States — or apologising for international law.
Here it is important to understand how international law is different from the law of a country like Singapore. Whereas Singapore has courts to interpret the law and police to enforce it, no such institutions exist at the international level.
There is a World Court, for example, but its jurisdiction is voluntary.
Some people scoff and say that, if this is the case, international law can hardly claim to be “law” at all.
That might be true if “law” is limited to the command of a sovereign backed up by the threat of punishment.
But law does far more than this.
Another way of thinking of “law” is as a system of norms that encourages predictability, consistency, and equal treatment. At the international level, international law typically frames policy choices rather than compelling them.
So when my students challenge me by saying that the 2003 Iraq war shows how useless international law is, I agree that no one went to jail despite the illegality of the conflict.
But I also ask them to consider the human and financial costs borne by the United States, because others doubted the legitimacy of its actions. I point to the immense loss of credibility and moral authority that it suffered. And I suggest that this might help explain why, in recent months, the U.S. had found it so hard to persuade others of Syria’s wrongdoing — even as the bodies with chemical burns continued to pile up.
Today, it is tempting to celebrate the triumph of international law.
The United States has seen the need to act within the rules.
Russia has brokered an international agreement with unanimous endorsement by the Security Council.
And Syria is turning over its prohibited weapons for destruction by the Organisation for the Prohibition of Chemical Weapons (OPCW).
Not quite. Let’s consider each country in turn.
AMERICA, RUSSIA AND SYRIA
The U.S. march to war was undone by the erosion of British support, a sceptical public at home, and a gaffe by the Secretary of State.
Some have applauded this change of heart, but the view that an interventionist United States is a major threat to international peace and security is misconceived. The far greater threat now is that the U.S., diminished by a decade of mismanaged foreign policy and distracted by its dysfunctional domestic politics, will disengage completely.
Having threatened that the use of chemical weapons was a “red line”, President Obama had appeared to be trapped by his own rhetoric into a strike against Damascus.
War was, in the end, averted by accident. At a London press conference on September 9, Secretary of State John Kerry made an apparently off-the-cuff remark that Syria could avoid a military strike only by turning over all of its chemical weapons to international control.
As he said at the time, this seemed impossible. But Russia immediately leapt in and praised the “initiative”.
This was part of a remarkable transformation in the former superpower. After months of stonewalling on Syria, Vladimir Putin swiftly published an oleaginous opinion piece in the New York Times. Modestly entitled “A Plea for Caution from Russia”, President Putin sought to position himself as the statesman, lecturing Americans in general — and President Obama in particular — on the dangers of U.S. foreign policy exceptionalism.
We now know that the article was placed (and, presumably, written) by the public relations firm Ketchum, which has a brief to promote Russian interests in the U.S. and elsewhere.
Clearly having enjoyed the notoriety of harbouring the whistle-blowing intelligence contractor Edward Snowden, this positioned Russia firmly at the centre of international diplomacy.
As for Syria, its hypocrisy is breath-taking.
Within the space of a week, President Bashar al-Assad went from straight-faced denial of even possessing chemical weapons to agreeing to hand them over to Russia. Assad’s position is now significantly strengthened domestically and internationally.
All of this was formalised last week, [Friday 27 Sept 2013] when the Security Council adopted a unanimous resolution that requires Syria to give up its chemical weapons.
As a compromise measure, resolution 2118 threatens chapter VII measures — possibly meaning economic sanctions or the use of force.
But if Syria fails to comply with the resolution, the Security Council must meet again to negotiate what happens next.
The resolution is significant in that it has stated that the use of chemical weapons constitutes a threat to international peace and security. This means that the Security Council can act in response to any such use, whether or not a state is party to the conventions prohibiting such weapons and whether they are used in war or against one’s own population.
So in the end, everyone wins?
The United States avoids a war that it didn’t want or need. Russia reasserts a role for itself as a major power. And Syria can continue brutally suppressing the rebellion against Assad’s reign — albeit with conventional weapons only.
Two cheers for international law indeed.
The writer is Dean of the National University of Singapore Faculty of Law.
This piece appeared in the Straits Times on Wednesday, 2 October 2013.