US NEWS & WORLD REPORT 08/31/13
By Michael Shank
Secretary of State John Kerry’s case for military action against Syria – made when Congress was still in recess and when most of America had already commenced Labor Day Weekend vacationing – sounded an awful lot like President George W. Bush’s former ambassador to the United Nations, John Bolton.
Not only was Kerry uncharacteristically unilateralist in his prescriptions, promoting a go-it-alone strategy if necessary, but his snub of the U.N., and especially its Secretary General Ban Ki-Moon, was surprisingly un-Democratic (big D).
Moreover, the certainty with which Kerry presented the “facts” and then moved on to “action,” reframing the former as legally unquestionable and the latter as morally irresistible, was perhaps one the least statesman-like moments in the his tenure at the State Department.
At the time of Kerry’s speech, there were few third-party-verified facts, as U.N. inspectors were still onsite amidst their investigation, and his inflated numbers of over 1,400 dead from chemical weapons was well above even Syrian rebel claims. There was not even a nod to the much-respected Doctors Without Borders’ declaration last week that 355 people had died – over 1,000 less than Kerry’s new numbers.
Kerry created realities that simply didn’t exist – citing Arab League support (in fact, they have not even discussed military action, they’ve only shown support for the U.N., not the U.S.) to intimating knowledge of trafficking flows of chemical weapons, something that would be absolutely impossible for anyone to verify at this point.
What was most disconcerting, however, was Kerry’s resolute willingness to go it alone. In America, this may be lauded as bravery and courage, but it is actually quite dangerous. The idea that America can unilaterally enforce international norms based on its own, potentially flawed, analysis and intelligence flies in the face of the entire post-World War II multilateral, consensus-based international relations system.
Remember that there is no international legal justification for an attack on Syria. Not yet at least. America would need United Nations Security Council backing, which it has yet to secure.
Kerry and other Washington politicos, meanwhile, are attempting to justify the invasion on moral grounds, suggesting that it’s somehow permissible for the West to flout international law to impress upon Syrian President Bashar Assad that he shouldn’t flout international law.
This is a clear double-standard and one that erodes the ethical fabric forged in 1945, within the United Nations Charter, and before that, in the Kellogg-Briand Pact of 1928. If the West cares at all about international law and justice, we would use all necessary measures and mechanisms in place for such legal enforcement, to hold Assad – and possibly some of the rebel groups – accountable for crimes against humanity and war crimes.
Any other approach, like what British Prime Minister David Cameron is maneuvering, is dangerous and disconcerting. His attempt at new legal backing for military action – which claims that international law allows a strike if there was convincing evidence of humanitarian distress (which is true), there is no alternative to military action (which is false) and the force is proportionate to the goal (which remains to be seen) – was rebuffed by his own parliament.
So with America’s only two allies on this war front, Britain and France, now postponing strike plans until the U.N. inspectors finalize their chemical weapons findings and report, this should also give America some pause. Despite this, President Barack Obama’s administration continues to court members of Congress and with Kerry’s speech on Friday it’s apparent that it is still pressing on despite the delays from two European allies.
To be clear, there is no excuse for President Assad’s actions. If the U.N. inspectors find that the Assad government is responsible for the 355 dead from last week’s chemical weapons use, Assad will have violated international laws like the 1925 Geneva protocol prohibiting the use of biological and chemical weapons. But that still doesn’t allow America, or the U.K. or France, to invade.
Syria’s lack of involvement, as a state party, in the 1972 Biological Weapons Convention and the 1993 Chemical Weapons Convention, also does not justify military intervention by the West. No matter how egregious the violation, America must still work within the legal frameworks at the United Nations Security Council, lest we undermine it further by flouting its very existence.
Not only must the Obama administration work within the U.N., but here at home the president must also make the case to Congress and work within the system of checks and balances provided by the Founding Fathers to ensure executive and legislative branch agreement on the fundamental pretexts of war.
U.S. presidents have often ignored the War Powers Resolution, legislation from 1973 that requires the White House to get Congressional approval within 60 days for invasions not made in direct self-defense. But this is not the undemocratic message we should be sending to our people or to the world. President Ronald Reagan violated the War Powers Act when he sent the military to Central America. President Bill Clinton violated the War Powers Act – and defied the will of the U.N. Security Council – when he bombed Yugoslavia. And there are many more cases of presidents circumventing Congress.
These are just a few. This is not a good legal precedent for an American president to set. Kerry once agreed with this thinking, reaffirming, during his confirmation hearings in January 2013, that “a U.N. resolution is a necessary ingredient to provide the legal basis for military action in an emergency.” And while this crisis in Syria is undoubtedly an emergency, in light of the concern that the Assad government used chemical weapons on his people, we have had plenty of time – and tens of thousands of deaths – to make the legal case to the Security Council and to the Congress, something the Obama administration has failed to do.
If the administration wants to avoid undermining almost a century of international law, and four decades of Congressional legislation, Obama, Kerry, and U.N. Ambassador Samantha Power are going to have to make the case to Congress and to the Security Council.
That is the hard necessary work. There is no excuse for a half-baked case and there is no excuse for claims of urgency when tens of thousands of Syrians have already died with little fanfare in Washington. If we want the Assad government – or any other government for that matter – to obey the strictures of international law, the West must set the standard for responsible adherence.
Attacking Syria now not only fails on that front but also further undermines the West’s ability to forge agreement around this entire premise. And what a crime that would constitute.
Michael Shank is the director of foreign policy at the Friends Committee on National Legislation.