Assad and the ICC

by John Quiggin on September 7, 2013

I was going to write a long post arguing the case for a UNSC resolution to indict Assad before the ICC, but Google revealed that Edward Bernton at the Globalist had already written it. So, I’ll just add some notes over the fold

1. Since Syria hasn’t ratified the relevant treaty, a UNSC referral is needed, as was the case with Libya and Gaddafi
2. There’s plenty of hypocrisy here given that all the important members of the UNSC (US, Russia and China) are outlaw states wrt the ICC. But (a) hypocrisy is the tribute vice pays to the virtue and (b) the whole structure of the UNSC is set up with the recognition that there is one law for the great and powerful and one for everybody else
3. Russia and China may well veto the resolution. Perhaps so, but unlike a proposal for military action, this can stay on the table forever until it is passed, after which there is no statute of limitatios. And a commitment from Obama not to use missile strikes might be sufficient to persuade the Russians and Chinese to accept an indictment.
4. At least if it could be passed by UNSC, it’s a great solution for Obama’s domestic problems. He gets to consult Congress, and do something even if (as seems virtually certain now) the House votes not to approve military action
5. Unlike random punishment aimed at airfields etc, this really is action to uphold the international norm against chemical weapons. It won’t have any immediate and decisive effect, but neither will cruise missiles

{ 57 comments }

1

Chaz 09.07.13 at 6:33 am

Devil’s advocate: if he’s wanted by the ICC that makes it much harder to broker a deal where he abdicates and goes off to live in Moscow or London. Of course he wouldn’t take such a deal unless he was clearly going to lose, and then still maybe not.

2

David 09.07.13 at 10:16 am

Um, happily, the Security Council can’t yet “indict” anyone “before the ICC”: the world we are living in is not yet quite so Orwellian. What it can do is refer the case to the Court and ask the Prosecutor to investigate. An investigation would take months, at least, even with Syrian cooperation, and would not necessarily lead to an indictment of Assad without solid evidence. Such a reference, if it happened, would anyway probably destroy what remains of the ICC’s credibility in many parts of the world. But it probably won’t, for at least two reasons:
- it would be hard to confine the investigation to just one alleged CW attack. Use of chemical weapons is not a crime as such, but the use of “gas” is given in the Statute as one example of the use of indiscriminate weapons which would naturally cause death or suffering if employed. But in practice the Court would soon wind up investigating the whole conflict, including the activities of organisations funded and trained by the West.
- so far the ICC has not involved itself in the Arab world. Given the potential for violence there, it’s probably not in the interests of the West that it should. Whilst the US would veto any attempt to refer events in Israel/Palestine to the ICC, for instance, it would have a hard job explaining what the difference was. And even in Syria, who knows how the war will proceed, and whether some figure supported and financed by the West, or by allies of the West in the Middle East, will emerge victorious, only to be accused of terrible crimes in their turn? If you’re going to argue that CW attacks are special because they are indiscriminate, then you have to explain why cluster bombs, aerial bombardments and even large-scale use of artillery against populated areas are all different, and should be ignored.
-

3

John Quiggin 09.07.13 at 10:52 am

Some impressive quibbles here, but I’ll concede, not being a lawyer, that when I wrote “indict”, I meant “refer to the prosecutor for investigation” (in fact, I used “referral” rather than “indictment” in point 1). If the Orwellian-ness of the world turns on such fine distinctions, we are in deep trouble, I think.

4

John Quiggin 09.07.13 at 10:59 am

To be clearer, the general line of the comment @2 is not just wrong, but pernicious

Logically or otherwise, the poison as a weapon of war has been regarded as specially evil since ancient times, and particularly since the employment of poison gas in the Great War. The fact that Fritz Haber’s wife and son both committed suicide in shame over his war crimes is a grim illustration. If we can add cluster bombs, mines and so on to the list of prohibited weapons, so much the better, but advocating for the treatment of poison gas as a normal weapon of war is a terrible idea.

5

Anderson 09.07.13 at 11:23 am

“Such a reference, if it happened, would anyway probably destroy what remains of the ICC’s credibility in many parts of the world.”

To judge just how silly a comment this is, I would need some details about these “many parts of the world.” North Korea?

Killing unarmed civilians with nerve gas sounds very much like what one would expect an ICC to address. If not that, then what?

2 also seems to confuse criminal investigation with journalism. Crimes by the rebels are not going to be a defense for the nerve-gassing of noncombatants.

6

David 09.07.13 at 11:59 am

@3 and 4
It’s perfectly reasonable to regard CW as a particularly evil weapon of war, and many people do. That said, its actual effects when used have been limited, and an unexploded chemical artillery shell, for example, is much less dangerous than a conventional high-explosive one. Nevertheless, that’s not the point here.
The point is that if you want to invoke the ICC you have to make use of its procedures and rules. As things stand (and legal experts may differ) it seems to me that you could bring a prosecution against Assad under Article 8(b) of the Statute which covers serious violations of the laws and customs of war, and includes the use of gas and similar weapons. But that article has no less than 26 separate paragraphs setting out every imaginable violation of these laws and customs, including improper use of flags and devices. Politically, it seems to me hard to argue that the ICC should investigate Assad because one part of one paragraph of one large subsection of one Article has been violated, but only for that, whatever you think of the morality of chemical weapons generally. And that they should not investigate other groups that might have violated other paragraphs of the same Article. And checking this morning I see that some legal experts aren’t even convinced that chemical weapons (as opposed to the release of poison gas) are covered by the Statute anyway.
Also, a lot of instant rewriting of history is going on here. Chemical weapons have always had a dreadful reputation with the public, but they have been extensively produced and stockpiled by states. The British retained large stocks up to the end of World War II, designed to be used in retaliation if the Germans used them first, and the US was developing new weapons up until the end of the 1980s (they are still destroying them, I think). The old Soviet Union, of course, had massive stocks. It’s only in the last twenty years, since the Chemical Weapons Convention, that “everybody” has “always” regarded chemical weapons with disgust and abhorrence. A generation ago, they were fundamental to NATO’s defensive posture. The change was essentially because the end of the Cold War meant that the need to stockpile for a major conflict had disappeared, and large states did not want their lives complicated (as in Gulf War I) by small states possessing CW.
In the end, this is about politics, not law, and I think that trying to loose the ICC upon Assad would at once destroy much of that organisations remaining credibility, and also open the door to unpredictable and probably nasty political problems later. For that reason, as I said, I think it’s unlikely in practice.
Incidentally, there is already a convention banning cluster munitions.

7

Another Scott 09.07.13 at 1:46 pm

Your Globalist linky gives me a 404. I think this is the correct one.

http://www.theglobalist.com/syria-potent-alternative-military-action/

HTH.

Cheers,
Scott.

8

novakant 09.07.13 at 1:52 pm

Sorry, but you’re being way to cavalier on point 2 of the OP – this is the real problem and cannot be dismissed with a shrug.

The US/UK has killed, tortured and maimed many, many more people in Iraq, Afghanistan and elsewhere, Israel has been flouting a gazillion of UN resolutions and nobody has ever been held accountable, so punishing Assad (and implicitly threatening Iran) is just another exercise in power politics.

Show me Bush/Blair/Obama and assorted Israeli politicians in handcuffs and the we’ll talk.

9

novakant 09.07.13 at 2:00 pm

Furthermore, the frenzy about “WMD” is used to keep smaller nations in line, to justify our imperialistic ambitions and arms exports and to create the impression that a war fought with conventional weapons is a comparatively clean and heroic affair.

10

christian_h 09.07.13 at 2:40 pm

I agree that the UNSC was set up explicitly to cement the power of the powerful – it is institutionalized hypocrisy, if you will. But the same should not be true for the ICC. You might say it already works like this in practice – and you would be sadly right. But if we care at all about making the ICC anything more than a tool of the global powers, then having the UNSC refer Assad and his government – but not anyone else involved in war crimes and crimes against humanity in Syria and the Middle East more broadly – does a tremendous disservice.

Again you may well argue that an ICC as a tool of the major powers is preferable to war as the only tool of the major powers. But once this is understood as a permanent state of affairs, the court will lose all respect – except that enforced by force of arms, and we are back to square one. Meaning, Assad is referred – and will actually be prosecuted if and only if he loses the civil war, in which case the rebels will most likely want to summarily execute him themselves anyway.

11

P O'Neill 09.07.13 at 3:34 pm

The link to Bernton is busted.

http://www.theglobalist.com/syria-potent-alternative-military-action/

The coincidence of Kenya is leaving the ICC yesterday suggests that the ICC option is being undermined, and not by the actions of the big countries.

12

Hidari 09.07.13 at 4:14 pm

I think there was a misprint in the article linked to. It says

‘How much longer can the United States attempt to police the world for crimes against humanity but deny the jurisdiction of the international court that dispenses justice for such crimes?’.

Surely this should read

‘How much longer can the United States say that it is attempting to police the world for crimes against humanity but deny the jurisdiction of the international court that dispenses justice for such crimes?’

And the answer is ‘more or less indefinitely’, I would say.

13

steven johnson 09.07.13 at 6:24 pm

1.As to point two of the OP: Since the great powers have their own law, they can enforce it. We little people who don’t work for them should reject it at every opportunity we get.

2.So far as crimes against humanity are concerned, isn’t the greatest problem for humanitarians in the Middle East always the planning for nuclear holocaust? We really need to prioritize.

3. We need regime change in the US, not Syria. Playing a boardless game of Risk on the internet is a diversion, not serious thinking.

14

Chaz 09.07.13 at 6:53 pm

Referring US or Israeli politicians to the ICC would strengthen its credibility, but I don’t think referring Syria weakens it. Refusing to refer anyone else until Bush is in jail means the court may as well shut down. I would argue that every successful prosecution (with most countries supportive or accepting of it) the ICC does cements its status and credibility, increases the odds the currently immune countries will one day bow to its judgements, and increases the pressure on immune countries to follow the rules until then.

When we have our annual Crooked Timber argument about Israel there’s usually some guy saying that Assad got away with massacres at Hama and Israel should not be held to a higher standard. Just telling him to shut up is a sufficient counterargument, but it would be even better if we could say no actually Arab leaders get imprisoned for that stuff, so that’s exactly the standard Israel should be held to.

15

Andrew F. 09.07.13 at 8:10 pm

Bruce Ackerman wrote an unpublished op-ed shortly after NATO’s successful campaign in Kosovo, concluding:

The present case stands in sharp contrast to our conduct during the Gulf War. At that time, President Bush not only gained Security Council authorization for the war against Iraq, but also gained Congressional authorization for the invasion.

President Bush encountered much derision for his ceaseless invocation of a “new world order.” But he was right. And yet we have failed to redesign existing institutions to fit the distinctive challenges of our new world. If the War Powers Act doesn’t work, how should it be fixed? If the Security Council doesn’t work it, how should it be reorganized? If NATO has now become an offensive alliance, how should it be controlled?

These are the basic questions left in Kosovo’s wake. We should take them seriously now, and not wait until some future Presidential experiment with a “no-casualty” war blows up in our face, and a tragedy engulfs us all.

Basic questions that remain unanswered today. I don’t think the ICC is the answer in its present form. Too slow, too uncertain, too weak, too insensitive to policy goals. Ultimately you need a nation or group of nations willing to use force to make a norm effective. The stumbling block here isn’t international law, but the lack of requisite domestic will of any nation to use its military to enforce the norm.

16

Ronan(rf) 09.07.13 at 8:16 pm

Which norm are you talking about here Andrew? The one (if its a norm) to enforce anti chemical weapons legislation, or the one to protect civilians during war? They’re two different things and concentrating on one will (more than likely) divert attention from the other

17

Ronan(rf) 09.07.13 at 8:22 pm

Actually, sorry, you seem to be talking in general.

18

Andrew F. 09.07.13 at 8:25 pm

Absolutely Ronan, but I think they both present the same type of problem, one to which current institutions and alliances are not well suited. The challenge is to enable the recognition and enforcement of a humanitarian norm, such that in cases of violation foreign intervention would be authorized and would occur. Whether we’re talking about R2P, or anti CW, the structural problem is the same.

19

novakant 09.07.13 at 8:57 pm

I suppose if I had lost the war, I would have been tried as a war criminal. Fortunately, we were on the winning side.

General Curtis LeMay

That’s the problem in a nutshell – even more so today.

20

David 09.07.13 at 9:26 pm

Humanitarian norms already exist, but no-one, especially the major states of the world, will easily agree to be enforced against. That will only happen against states that are too poor and weak to resist. I sometimes ask R2P enthusiasts to describe a sequence of events where their own country would legitimately be the target of foreign organised enforcement. I get blank looks and threats of violence.

21

Kris 09.07.13 at 9:48 pm

Before any referral to the UNSC or the ICC should’nt it first be made clear that it was Assad that ordered the attacks and not the opposition? I would nt be surprised if he did, but it does not seem obvious that he did either, and I don’t know if the US govt has too much credibility in this matter to be trusted in the absence of evidence. Also there is an nyt op-Ed by Alan Grayson which is pertinent:

http://www.nytimes.com/2013/09/07/opinion/on-syria-vote-trust-but-verify.html?ref=opinion

22

PJW 09.07.13 at 11:19 pm

JQ’s and David’s comments early in the thread about the chemical and poison weapons taboos in warfare are fascinating so, knowing very little about it, I decided to look into the subject and found a detailed and interesting accounting of it in Richard Price’s scholarly book here (the first 35 pages or so can be read via Look Inside): http://books.google.com/books?id=bWutpop3t4QC&pg=PR7&lpg=PP1&output=html_text

Reading about this taboo reminded me of when, as a little kid living close to the Strategic Air Command in Bellevue, Neb., in the 1970s (and believing I would surely be incinerated in an all-out nuclear war), and I heard about the neutron bomb and how the discussion of this weapon seemed to center on its particular odiousness in that it would kill people and animals impartially while leaving buildings standing. That always puzzled me.

23

Hidari 09.08.13 at 12:31 am

@21
There are very serious questions about who ordered and carried out the gas attack. As you point out it is by no means obvious that it was the Assad regime. And if it turns out it was the ‘rebels’, will we be seeing calls for American bombing of the American backed ‘rebels’? Don’t hold your breath. In and of itself, this tells you all you need to know about the sincerity of the ‘pro-interventionist’ viewpoint.

And even if it was the Assad regime, will we see a referral to the ICC? Of course not, because this would raise awkward questions about how he got hold of these weapons in the first place.

http://www.dailymail.co.uk/news/article-2415081/Britain-sent-poison-gas-chemicals-Assad-Proof-UK-delivered-Sarin-agent-Syrian-regime-SIX-years.html

24

Suzanne 09.08.13 at 12:35 am

@21: Presenting actual evidence for examination would certainly be helpful to Obama’s cause. Walter Pincus in the WaPo made many of the same points as Grayson last week. We would also have to know if this was authorized by Assad or a rogue operation, or simple screwup.

As it is, we have Senator Lindsey Graham saying that if the US doesn’t bomb Syria pronto, Iran will get a nuke. Most persuasive.

25

John Quiggin 09.08.13 at 2:51 am

Turning around the point made by David at #2, a referral to the ICC is only the first step in a process that can continue to an indictment and then a conviction. My (admittedly non-lawyer) understanding is that the first stage is analogous to the opening of a criminal investigation which presumably requires reasonable grounds for suspicion, but not proof, let alone proof beyond reasonable doubt.

26

Kenny Easwaran 09.08.13 at 6:11 am

“if it could be passed by UNSC, it’s a great solution for Obama’s domestic problems.”

Is that right? I thought that anything involving the ICC was automatically off-limits for Republicans, because they don’t like the intrusion on American sovereignty that it implies.

27

Michael Drew 09.08.13 at 12:16 pm

Many of the arguments here against an ICC referral are specious. But they do demonstrate a couple of basic points about the dilemma the president faces quite clearly:

1) the ICC route is not actually one that offers the Western alliance a widely accepted perception of legitimacy, even if vetoes could be overcome, and

2) especially pursuant to the procedural problems given at #2, it’s clear that functionally the choice facing the world right now is either carry out punitive strikes with multilateral and institutional sanction if possible but unilaterally if necessary, or countenance chemical weapons use in war while imposing essentially no cost or consequence for doing so. To now deny that this is the functional choice is simply to seek imaginary escapes from the basic reality.

28

Guano 09.08.13 at 12:52 pm

From Wikipedia

“Three of these states—Israel, Sudan and the United States—have informed the UN Secretary General that they no longer intend to become states parties [to the ICC] and, as such, have no legal obligations arising from their former representatives’ signature of the Statute.”

I’m very much in favour of starting the ICC process and I would like to see Obama/Cameron/Hollande and others making a commitment to pursue whoever has used chemical weapons in Syria (and it is not yet 100% certain that it was Assad) and anyone who has helped them through the ICC. I would also like to see such a process opened under the Chemical Weapons’ Convention. I doubt whether it would happen because states like the USA just don’t seem to believe in these processes.

29

David 09.08.13 at 1:10 pm

As I recall (and again as a non-lawyer) the opening of an investigation does not require any particular standard of evidence against any particular person, just a reasonable presumption that crimes have been committed. It’s situations, rather than people, that are investigated. An investigation could lead to a dossier being prepared against Assad, or alternatively (or additionally) against someone else. There was a time when prosecutors were very keen on always indicting people at the highest level possible (Taylor, Milosevic etc. ) but there have been a number of acquittals recently which have made prosecutors more cautious about the need to prove command responsibility and effective control of forces. Assuming that a dossier could be put together, it would then have to go to a pre-trial judge who would decide whether there was a prima facie case that justified an indictment. Of course, there’s then the actual trial and the need to prove personal guilt beyond a reasonable doubt, which the human rights types often tend to gloss over.
I’m not sure I would express point 2 of 27 in the same way. The option of “punitive strikes” does not exist in the absence of a UNSC Resolution, which seems unlikely at the moment, since otherwise an attack would be a criminal act. Again, as I’ve said, the “official” revulsion against CW is very recent, and the West has used these technologies in its imperial wars, and planned to use them up to the 1980s against the Warsaw Pact. And of course the West sanctioned, if not actually encouraged, their use against Iran in the 1980s. I’m not sure, therefore, that this dilemma actually exists in real life, the more so since things a lot worse have happened, and are happening, in the world without us feeling the need to do anything about them. I remain to be convinced by logical argument that CW use is in a category by itself. (Would the use of nuclear weapons be in the same category, or a different one?)

30

Glenn 09.08.13 at 1:15 pm

I like the idea of referral of the Syrian conflict to some sort of tribunal, but if the ICC presents difficulties because of US rejection of that court, then there’s always the option of an ad hoc tribunal, as was done for the Balkan and Rwandan conflicts.

31

David 09.08.13 at 1:16 pm

@28. The CWC is an inter-state treaty with inspection provisions. It contains no provision for criminal investigations or sanctions against individuals. And Syria is not a party. States can’t “pursue” Assad except through support for ICC investigations, which in turn requires a UNSC referral, which means we are back where we started from. I’d actually argue the reverse: the fact that western states aren’t getting everything they want over Syria is actually a positive development, since it implies that the anarchy and lynch-mob mentality which has characterised the international system in recent years may be giving way to something more controlled and law-based.

32

Craig 09.09.13 at 3:15 am

I’m sorry: “Outlaw states?” Cool it down a degree or two, yeah? It takes a bit more than declining ICC jurisdiction to make an “outlaw.” Does not signing the Moon Treaty make us “interplanetary outlaws” as well?

33

Guano 09.09.13 at 7:56 am

#31

” I’d actually argue the reverse: the fact that western states aren’t getting everything they want over Syria is actually a positive development, since it implies that the anarchy and lynch-mob mentality which has characterised the international system in recent years may be giving way to something more controlled and law-based.”

Yes and no. There’s still a very strong lynch-mob mentality and it’s frightening to think how close we got to bombing Syria 10 days ago with no idea of the consequences.

34

ajay 09.09.13 at 8:46 am

so far the ICC has not involved itself in the Arab world. Given the potential for violence there, it’s probably not in the interests of the West that it should.

The ICC has confined itself to getting involved in places like Sudan, Congo, and Libya, where of course there is no potential for violence whatsoever. Interesting, too, that Libya isn’t part of the Arab world. Someone should tell the Arab League. They were probably tricked by the Libyans all speaking Arabic and calling themselves an Arab Republic, the cunning devils.

(Actually the Libyan precedent is rather hopeful ; the Gaddafis were indicted for atrocities in the 2011 conflict.)

all the important members of the UNSC (US, Russia and China) are outlaw states wrt the ICC

As I noted elsewhere, I hope we’re going to start describing Egypt, Iran, India, Pakistan, Indonesia, Turkey and Cuba as outlaw states too.

35

David 09.09.13 at 9:05 am

Libya was/is a member of the African Union, a major power in Africa, with a very active African policy and a long history of involvement in the Mahgreb and West Africa. Under Ghadafi it thought of itself as an African country first and foremost. By the same argument, Ghana could be considered part of Europe. If you want to be more precise, the ICC has yet to indict anyone for anything not done on the continent of Africa by people born there. I continue to think that there are major political dangers for the West in trying to get the ICC involved in the Middle East.
And yes, let’s stop talking about “outlaw states” – it doesn’t help the argument.

36

ajay 09.09.13 at 9:43 am

Libya was/is a member of the African Union, a major power in Africa, with a very active African policy and a long history of involvement in the Mahgreb and West Africa.

Dude, seriously, stop digging. By that argument you could say that Egypt isn’t a part of the Arab world either. (AU member, major African power, active African policy, long history of involvement in Sudan and the Horn). You just forgot the ICC had indicted the Gaddafis. So did I until I checked. It’s OK.

37

John Quiggin 09.09.13 at 11:42 am

@34 Reading this, ajay, I initially thought you were being sarcastic, and unaware of this or this or this (similar examples multiplied on request). But I know you are too well informed to be ignorant of such things, and understand that the reason these states have not ratified is precisely because their leaders might face prosecution for their crimes. So, I share your hope.

38

Mike from Ottawa 09.09.13 at 5:45 pm

Referring Assad’s use of chemical weapons to the ICC is a great idea. If the ICC investigate and indict Assad and members of his regime and they use chemical weapons again, the ICC can strenuously indict him!

The great thing about ICC indictment is that it will only matter if Assad is overthrown. Continued use of chemical weapons, if it keeps him in power, renders the indictment essentially moot.

If the international community, per se and in the form of each of its members, is going to do nothing more than pursue an ICC indictment, at least don’t pretend it is anything more potent than a devastating satirical piece on the op-ed page of the Times, on which I share Isaac Davis’ skepticism.

39

Peter K. 09.09.13 at 7:08 pm

The cynic in me tends to believe that Israel and its American backers are okay with Sunnis and Shia killing each other off in place like Syria and Iraq. It keeps them occupied and causes them to waste blood and treasure. The problem is that it can get out of hand as with the chemical gas attack killing 1400 people.

I would be in favor of an ICC referral to deter other dictators who turn peaceful protests into civil wars, or anything other than a missile strike. Of course the US and Europe need to do a larger diplomatic settlement with Russia, Iran and Israel. Seems far fetched. But look at Northern Ireland and the Balkans.

40

Donald Johnson 09.09.13 at 9:09 pm

“The stumbling block here isn’t international law, but the lack of requisite domestic will of any nation to use its military to enforce the norm.”

The assumption here is that the nations with powerful militaries will be enforcing the law against less powerful ones, while the powerful countries get off .

“As I noted elsewhere, I hope we’re going to start describing Egypt, Iran, India, Pakistan, Indonesia, Turkey and Cuba as outlaw states too.”

What’s stopping you? It shouldn’t be anything a typical Western lefty would find objectionable (taking myself as an example). For one thing, many of those countries, though of course not all, committed their war crimes with American support–som of America’s war crimes are the crimes it has helped its allies commit, though we also commit some entirely on our own.

.
.

41

Andrew F. 09.09.13 at 9:32 pm

Donald @40: The assumption here is that the nations with powerful militaries will be enforcing the law against less powerful ones, while the powerful countries get off .

Yes, it is. But since I do not foresee the US or its allies using CW against civilians, this seems acceptable to me.

I think any solution must take into account the essentially horizontal nature of international law. Given that, the best solution will involve a state, or group of states, imposing a norm on recalcitrant states. This is also part of the reason I am in favor of the US retaining military and information dominance.

42

John Quiggin 09.09.13 at 10:01 pm

” But since I do not foresee the US or its allies using CW against civilians”

Your foresight isn’t up to much, then. Fortunately, in this case you only need hindsight

http://www.dailymail.co.uk/news/article-153210/Rumsfeld-helped-Iraq-chemical-weapons.html

43

Ronan(rf) 09.09.13 at 11:45 pm

“Yes, it is. But since I do not foresee the US or its allies using CW against civilians, this seems acceptable to me.”

Maybe, but the primary reason Syria stockpiled chemical weapons (and refused to sign relevant treaties) was because of the Israeli nuclear weapons program and refusal to sign non proliferation treaties (and ratify the anti chemical weapons treaty afaik), so the assumptions Donald highlights have real consequences
(Also, although I’m not sure if they qualify as chemical weapons, US use of agent orange in Vietnam and white phosphorus in Fallujah should give you pause for thought. How many countries have actually used chemical weapons post WW2? Is there any evidence that the US and its allies have been any better than other ‘categories’ at upholding anti chemical weapons norms?)

44

Donald Johnson 09.10.13 at 3:01 am

“But since I do not foresee the US or its allies using CW against civilians, this seems acceptable to me.”

Quiggin and Ronan answered this on its own terms. But in broader terms, if this is acceptable to you it’s because you’re apparently comfortable with a world where let powerful countries decide which sorts of cruelty get punished and which ones don’t. It’s not hard to guess what the results will be–weak enemies will be punished for their atrocities, while powerful countries and their close allies will get a pass. Chomsky used to point out that Turkey was doing the same thing to its Kurds, and with American weaponry, that the Serbs did in Kosovo. (He cited an HRW document which is still online from the mid 90′s, but I’m not going to look it up). As an argument against the Kosovo intervention this is weak, but he was right on the facts–Turkey had a powerful enabler and so could bomb Kurdish villages as much as it liked.

45

godoggo 09.10.13 at 3:07 am

Crockett: Be nice to think that there’s some cosmic balance in the universe. But there sure isn’t any innocence. We’ve gotta be better.
Tubbs: Better? What’s with this “better” crap? You really think we’re better?
Crockett: Better shots.

46

Suzanne 09.10.13 at 3:55 am

@39: ” The problem is that it can get out of hand as with the chemical gas attack killing 1400 people.”

For the record, that’s the approximate number put forward by the American “Government Assessment.” British and French intelligence put the numbers considerably lower. No solid evidence has been offered regarding the source of the attack, method of delivery, etc.

47

Andrew F. 09.10.13 at 12:46 pm

Donald, an “acceptable” solution given reality. The US and its allies, for all their flaws, past and present, are much more likely to intervene for humanitarian reasons, and are much more likely to attempt to export norms of democracy and human rights. Is it the best logically possible solution? No. As I said however, international law is essentially horizontal and self-help (also undemocratic). Ultimately force is controlled by national governments. A realistic solution must take those facts into account.

Do we get a perfectly enforced norm with that solution? No. We don’t have perfectly enforced laws in any state of which I’m aware either. But we do get a more effective norm, and while that’s not perfect, it’s progress.

John, by US and its allies I mean states with which it has mutual defense treaties or understandings – Iraq was viewed by the US as a necessary evil to counter Iran, not as an ally. But, the US certainly looked the other way, for the most part, when Iraq did use CW, so what about that? The particularities of the geopolitical context that induced the US to look the other way when Hussein deployed CW could recur, without question. It is weakness in position, not strength, that induces states like the US to shake hands with the devil for some “greater good.” I’d prefer to see the US and allies in a sufficiently strong position that such compromises can never again be mistaken as necessary.

Tangentially, the Daily Mirror is a little weak on facts and quite misleading. This well documented piece from GWU’s National Security Archive gives a better background than the Daily Mirror. There’s also a CIA report somewhere on the breakdown of which firms supplied what products.

48

Barry 09.10.13 at 1:05 pm

“Iraq was viewed by the US as a necessary evil to counter Iran, not as an ally. But, the US certainly looked the other way, for the most part, when Iraq did use CW, so what about that?”

What about that is that if you really wanted the US to send a strong signal about the use of chemical weapons. you would support putting US officials involved on trial.

There would be not stronger lesson – it would no longer be ‘if you’re weak, and we don’t like you, and you have no friends, then you’re in trouble’, it’d be DO NOT DO THIS.

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Ronan(rf) 09.10.13 at 1:40 pm

Andrew @47

But your argument is that the best way to enforce human security norms is through military action, (I assume in general, rather than this specific case) but I don’t think you’ve laid out why?
Again, from my (limited) reading of the history the only reason anti chemical weapons treaties weren’t implemented universally was because of a lack of diplomatic effort and exceptions being made *strategically* (particularly in the Middle East)
Also, afaik, to your point about western countries being the most likely to intervene for humanitarian reasons (which is also highly contingent and possibly unlikely to last for much longer) that has to be complicated by the fact that (1) most UN soldiers on peacekeeping missions are from non Western countries (which isn’t here nor there, but worth noting) (2) those humanitarian interventions don’t have a great track record (3) Those interventions are still highly selective and someway dependant on western interests (4) To repeat Donald’s point above, you can undermine the norm you’re enforcing (and potentially international institutions) b/c of all of the above
(And again, you haven’t shown *why* military action is the best way to enforce these norms.)

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Ronan(rf) 09.10.13 at 2:02 pm

Also, you write about how the politics of the ICC or international institutions make it difficult to ‘enforce norms’ (or enact policy in a meaningful way) but appear to assume that there is no politics behind the use of force, ie that there is a collection of well meaning nations who will act post haste to punish any norms violation, any where at any time.
The Syrian situation *alone* puts lie to that claim.(If you are making it) And if you give weight to ‘credibility’ arguments, then by extension you have to intervene consistently (and we know that this isn’t politically feasible)
So again, why is the military option so much better than other options (which few argue are particularly effective either)? In general, in this case, or whenever your argument is relevant

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Donald Johnson 09.10.13 at 4:32 pm

I think you’d have much more progress towards universal moral norms if the Western countries started seriously enforcing human rights law on themselves first. I recognize that it’s more difficult to impeach a President or investigate one’s own country than it is to conduct an illegal invasion or launch cruise missiles or drone strikes, but if one is serious about establishing moral norms these issues have to be tackled.

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Mao Cheng Ji 09.10.13 at 4:53 pm

The ICC is good, because it undermines, and in exactly the right way, the obsolete Westphalian system, that has become dangerous. But it has to be universal; powerful states refusing to accept it are not just practicing hypocrisy. They are destroying it.

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John Quiggin 09.10.13 at 6:22 pm

Again, everyone should remember that Andrew F is a professional (at least metaphorically, but probably literally) troll. Short snarky answers are fine, attempts at serious engagement should be avoided.

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novakant 09.10.13 at 9:55 pm

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Andrew F. 09.11.13 at 10:08 am

John, when did a difference of opinion become the equivalent of trolling for you?

Barry – why would putting US officials on trial signify anything meaningful to foreign officials of rogue states? It would signal something meaningful to future US officials, but the foreign officials to be worried about are not the ones up at night about US indictments.

Ronan – absolutely, politics is unavoidable. My point is based on that fact, and on the nature of the international system. Breaking it down into two brief points:

First, power in the international system is held by states, not international institutions; and particularly when it comes to military force, that’s not going to change any time soon.

Second, we therefore would want the most powerful states to be those which have been politically most sensitive to and most affected by humanitarian and human rights norms. At the moment, Western liberal democracies are that group: they are the most sensitive to, and have been most affected by, humanitarian and human rights norms; they are also the most powerful in a military sense.

That said, each of those states comes with its own set of constraints, based on respective available resources, security needs, and domestic politics/culture. Improving the capacity of these states to enforce a given norm would involve increasing their collective military capability, formalizing an understanding to enforce among those states and the world generally, and perhaps improving economic ties between those states relative to the rest of the world.

We’re not going to get a strict rule of law system in place for any given norm. But, even a norm that is enforced when violated and when the offending government lacks air defenses effective against the West’s most advanced aircraft and missiles, is better than a norm rarely enforced at all.

I’m just speculating and spit-balling here, of course.

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Donald Johnson 09.11.13 at 11:09 am

“why would putting US officials on trial signify anything meaningful to foreign officials of rogue states? “

And why would putting officials of enemy states on trial mean anything to officials of a rogue US? So far it hasn’t, though I suspect that if officials of one of our close allies (Israel, cough, cough) faced trial it would focus their minds. What it would actually do is lead to an all-out effort to prevent any such thing from happening.

If there really were something like a morally consistent standards that applied to everyone, the advocates of intervention, including military intervention in the most extreme cases, would probably receive more support from people who don’t fall into the category of “rogue official”. But I can’t help but suspect that you oppose morally consistent standards.

Andrew may be a troll, but whether he is or isn’t, he is effectively a spokesperson for a certain POV that wants international law to be applied to people like Assad, but not people like Bush or Obama or Netanyahu.

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lupita 09.11.13 at 3:53 pm

we therefore would want the most powerful states to be those which have been politically most sensitive to and most affected by humanitarian and human rights norms. At the moment, Western liberal democracies are that group

“We”?

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