It is difficult to believe that anyone would fall for the razzle dazzle that the Obama Administration is serving up in support of its desired intervention in Syria.
The Government's case that "Assad" used chemical weapons against civilians does not amount to anything more than alleging he had the capacity and opportunity to do so. That is certainly the case, but any moron ought to understand that opportunity does not equate with commission. The Administration has proffered no evidence (far less proof) that Syrian forces deployed the weapons on the dates in question.
That some kind of chemical attack took place appears to be undeniable. The question of who mounted it depends on an antecedent issue; namely, the capacity and opportunity of the rebels to deploy such an attack themselves. Curiously enough, the Administration did not argue that the rebels were incapable of mounting such an attack, although the British Prime Minister, David Cameron, did. Still, as Cameron stated to the House of Commons, the evidence that the Syrian Government deployed chemical weapons was a "judgement."
In the absence of objective factual evidence going beyond circumstances of opportunity, one is left with arguments over motives. On this plane, it is clear that the argument tips in favour of the Syrian Government, which could have had no reasonable motive for triggering international outrage by mounting a chemical attack. That the rebels would wish to mount a false flag operation is equally obvious on the other side.
At best, there is simply no reliable evidence or credible argument that the Syrian Government is responsible for the attack. But the issue of who smoked out whom is a red-herring in any event.
Assuming for the sake of argument that there was a government use of chemical weapons, the question becomes whether there is any legal basis for doing anything about it. Given this assumption (that the Syrian Government is guilty as charged), there are three modes of reaction: political, economic and military.
There is no question but that any and all nations have a right to shun Syria on whatever grounds and to the extent they deem expedient. They may refuse to trade with Syria, they may exclude it from reciprocal treaties and engagements. They need not even proffer a reason for doing so, but if they wish to assert a moral aversion to the use of gas, that would provide ample justification for responsive conduct which is in all events within national prerogative.
However, once a state proposes invasive measures, the question passes as to its legal authority under conventional international law to proceed in a violent manner. Here, the premise for all further discussion is that no state has the right to intervene in the internal affairs of another. The entire structure of international law is built on the premise of sovereign autonomy which accords to each and every nation a right not to be attacked by any other state. This axiom ought not to be discarded with jejune cynicism because the alternative is simply ongoing chaos and war.
Clearly, all states reserve the right of self-defence and this includes retaliation after an attack. The right arguably includes pre-emptive self-defence at least in cases where there is clear and convincing intelligence of an
imminent attack. To this extent the allowed conduct of states is analogous to the law of self-defence among individuals.
However, the extension of pre-emptive defence to include attacks aimed at degrading or destroying a
potential enemy's
capacity to attack is nothing but a polemical perversion put forward by those whose secret aim is to undermine the entire structure of international law.
It is important to penetrate the sophistries underlying this perversion. An
adversary is a state which has opposed interests of one sort or another and which may harbour hostile designs. An
enemy is an actor who has declared or embarked on acts of war. The competitive and adversarial nature of international relations is both undeniable and contemplated. But the entire point of international law is to keep the competition pacific and on this side of aggressive acts. A
potential enemy is merely an adversary -- a state which is not subservient to, or aligned with the interests of the potential aggressor. To argue for preemptive defence against "potential enemies" or mere adversaries is none other than to assert a "right" to make war at will.
Equally vague is the asserted right to defend against a "capacity" to attack. International lawyers are currently quibbling over the distinction between "capacity" and "capability." The quibble is beside the point. All states have some capacity to make some kind of war, even if only with bows and arrows. Most states have varying degrees of capability to make effective modern war. Any state with a modern industrial base has a significant capability to make effective war. Defence against a capacity or capability is another word for destroying an adversary's civil, economic and military infrastructure. This was why, in the run-up to the U.S. invasion of Iraq, fertiliser factories were alleged to be weapons sites.
When a U.S. administration speaks of deterring "
potential threats" (that is, a potential, possible harm) it is not referring to any imminent aggression or actual harm but rather to using "forward presence operations" to "preclude the development of any potentially hostile entity" and for the sake of "
deterring potential competitors from even aspiring to a larger regional or global role," as Dick Cheney's
Defense Planning Guide put it. (
Ibid, Cover Letter, 18 Feb. 1992, I 91/28291, pp. 2, 26 [
1].)
This double conditional phraseology has become entrenched in Washington's strategic lingo which routinely casts geopolitical issues in terms of "maintaining U.S. preeminence" by means of "power projection operations" aimed at "precluding" and "deterring" "potential rivals" or "potential enemies" or "potentially powerful states" which might seek to "expand their own influence" or "that may threaten America's ability to exercise its dominant military power." (See e.g., P.N.A.C's September 2000 White Paper, entitled
Rebuilding America's Defenses [
2] ).
While the public's general indifference to English grammar might make it tone deaf to what is being said, Government statements and memoranda invariably conceive national defence in terms of ongoing "power projection" or, in plain Anglo-Saxon,
bullying.
With this summary in mind, it can be seen that the neocon doctrine of preemptive defence against the capacity of potential enemies to present a
threat (i.e. a possible harm) to the United States in unspecified ways is nothing less than advocacy of ongoing chaos and destruction. To label such policy, "satanic" is hardly an exaggeration, for that is what Satan is about.
There is, in the present situation, no assertion, yet, that the use of gas in Syria constituted an attack or presented a true and imminent threat to the United States. In the world of phantasmagorical (or pathological) abstractions, Syria might possibly attempt a gas attack on some United States installation or craft. The likelihood of her doing so, without provocation is, zero. There is simply no basis for asserting national self-defence on the assumed basis that the Syrian Government deployed chemical weapons against its own domestic insurgents.
President Obama might intone that Syria's use of chemical weapons implicates "core national security interests" but he does not even attempt to explain how other than to fall back on the neocon doctrine that the potential of any state to possibly present a threat qualifies as a "clear and present danger" which justifies a pre-emptive attack. Within a more rational construct of reality, it suffices to say that a U.S. attack on Syria simply cannot be justified as self-defence.
Nevertheless, the use of chemical weapons against domestic insurgents or a civil population does give rise to a conundrum in international law. For, while the resort to such weapons, as a
substantive fact, may be universally condemned, there is no universally agreed upon or satisfactory
procedure for responding to their use.
After the Great War, virtually all nations signed a convention against the use of chemical weapons during war. The idea was that, by whatever means nations might obliterate their young men, the use of gas was not one of them. Since no attack at all against civilian populations is permitted, it went without saying that the use of gas against an enemy's non-combatants was also prohibited.
If such an attack takes place, during war, the aggrieved belligerent party is entitled to take such proportionate retaliatory measures it deems fit. In this context, "proportionate" typically means a tooth for a tooth, and maybe one more for good measure.
What happens, however, when a country uses chemical weapons against its own population, or "gasses" them in large numbers by other means? This was the conundrum which presented itself at the Nuremberg Trials after the World War. Germany and Germans could be tried and convicted for war-crimes against nations with whom it had been at war and against civilian populations under occupation. But there was no basis for prosecuting anyone for crimes Germany committed against its own citizens, in particular against German Jews. Horrendous as it might have been, it was not a war crime but rather a moral outrage which had occurred within the temporal framework of a war.
It was the Victors' determination to punish such conduct which gave rise to the newly-minted doctrine of "Crimes against Humanity." Accordingly, the Nuremberg Tribunal did the legal equivalent of a skip-and-shuffle, ruling that "insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity." [
3] In other words, non-prosecutable crimes against a belligerent's own citizens were piggy-backed onto the war-in-general.
As it evolved after Nuremberg, the doctrine of "Crimes Against Humanity" applies without more to any country's own civilian population, but the conduct in question must be part either of a government policy or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Isolated or sporadic events simply do not qualify. (Article 7,
Rome Statute of the International Criminal Court, (2002).) [
4] Sporadic events may be violative (and prosecutable) as violations of the traditional laws of war but absent systematic practice they do not constitute crimes against humanity.
Historically speaking, the requirement of a "widespread or systematic" practice had its genesis in the fact that the concept of "crimes against humanity" arose in reaction to ongoing practices such as the slave-trade, the reduction of entire populations to slavery and genocide. The practical purpose of the systemic requirement, was to set a fairly high threshold for responsive action.
The limitations of the concept are implicit from the circumstances out of which it evolved. They presuppose an ongoing practice of multiple, successive horrors and they envision after the fact prosecution by some victorious agency. In other words, the deterrence lies principally in the fact that if the perpetrator(s) loose the conflict they will be punished.
Recognising the weakness of the beer, the United Nations Charter did provide a mechanism for intervention against presently ongoing atrocities, provided the intervention was authorised by the international community as represented by the Security Council. The obvious and practical purpose of this requirement was to preclude the chaos which would ensue from individual states unilaterally assuming the prerogatives of Lord Protector of the World.
The problem with this mechanism was that the Security Council itself was merely the formalisation of rival world hegemonies. Unanimity among the major powers in the Council was unattainable with respect to any country in which a major power had a protective interest.
This deadlock is a reflection of the actual scepticism countries harbour with respect to humanitarian crimes. The deadlock not only reflects one major power's venal desire to shield crimes by its own, it also reflects the rival power's equally venal desire to promote its own interests under the pretext of a humanitarian intervention.
The U.S. media is prone to harping on Soviet vetoes of Council resolutions. But the United States has not been laggard itself. It has consistently vetoed resolutions adversely impacting on its own interests and in 2011 both the Obama Administration and the House of Representatives signalled a U.S. veto of any resolution condemning Israel for "systematic and deliberate" war crimes against the civilian population of Gaza (including the use of white phosphorous) which were determined to have occurred by United Nation's independent Goldstone Commission. [
5]
Removing the requisite authorisation for intervention from the Security Council to the General Assembly would constitute an obvious and actual democratisation of the ideal of "international consensus." However, the United States has been the principal opponent of any such improvement.
The ineffectiveness of existing mechanisms to interrupt and put a stop to "crimes against humanity" has recently given rise to the related doctrines of "humanitarian intervention" and "responsibility to protect" aggrieved populations ("R2P"). Generally speaking, these doctrines expand the scope of crimes against humanity so as to include various forms of civil discrimination and, at the same time lower the authorisation required for intervention. [
6] [
7] [
8]
Despite the veneer of politically correct moralising, the purpose of these doctrines is simply to provide a supposedly "objective" set of standards for unilateral state action. But legality is always less a matter of substance than a question of procedure. The issue is not "what" but who determines "when".
Humanitarian Intervention is simply the canard which accompanies the chaos of unilateralism. In the 19th century, it was routinely invoked as a cover for European colonial enterprises launched under the banner of the White Man's Burden to protect the native from his own.
It is important to grasp that the concept of humanitarian intervention presupposes that national self-defence is
not at issue. There is no threat whatsoever to the intervening nation which supposedly acts solely
for the good of others.
With this in mind, it can be seen that the doctrine is far older than modern colonialism. It has its genesis in the christian doctrine of "just war" which was first explicitly put forth in 851 by St. Cyril of Constantine who argued that while a Christian was affirmatively forbidden to resort to violence in order to defend himself it was laudable and requisite for him to come to the defence of others.
This convenient doctrine was enthusiastically taken up by Pope Urban II in defence of the First Crusade, launched he said, to defend the helpless Christians of Jerusalem and to avenge the barbarities and sacrileges committed upon them,
They circumcise the Christians, and the blood of the circumcision they either spread upon the altars or pour into the vases of the baptismal font. When they wish to torture people by a base death, they perforate their navels, and dragging forth the extremity of the intestines, bind it to a stake; then with flogging they lead the victim around until the viscera having gushed forth the victim falls prostrate upon the ground. Others they bind to a post and pierce with arrows. Others they compel to extend their necks and then, attacking them with naked swords, attempt to cut through the neck with a single blow. What shall I say of the abominable rape of the women? To speak of it is worse than to be silent." (Translations and Reprints from the Original Sources of European History, Vol 1:2, (Philadelphia: University of Pennsylvania, 1895), 5-8.) [9]
The modern, enlightened age has been no less ornate in its rhetoric. During the Great War, British soldiers were urged to their own slaughter with fabricated stories of the Huns roasting babies on bayonets and of the Kaiser's infernal
Kadaververwertungsanstalten or corpse-rendering factories, where bodies of the battle-slain were allegedly turned into soap. [
10]
The most recent incarnation of the interventionist doctrine was the Canadian R2P proposal put forward in 2001 which sought to establish a set of clear guidelines for determining when intervention is appropriate and how the intervention itself should be carried out. The proposal recommends a conceptual shift from a "right to intervene" to thinking in terms of "a duty to protect."
The proposal is correct in its understanding that "a non-defensive right to intervene" is to all intents and purposes a contradiction in terms. But casting the issue in terms of a duty to protect is simply a modern day resurrection of St. Cyril's doctrine -- although the authors of the report were undoubtedly ignorant of first millennium orthodox moral theology.
The critical question is not what constitutes a humanitarian violation nor how the intervention is to be carried out. The only way to provide a truly disinterested procedure for determining when intervention is necessary and appropriate is to put the matter before the international community as a whole.
Unfortunately, any present-day discussion of humanitarian intervention gets burdened with what lawyers call "
a parade of horribles" or an invocation of "The Holocaust" which, supposedly, trumps all argument and serves as a trumpet for any intervention.
Argumentum ab horibilis is a species of rhetoric that passes into
dramatic spectacle the purpose of which (as Aristotle pointed out) is to suspend credulity and to equate caution with acquiescence. The spectre conjured up is that of babies being tossed into the flames or a reburnished
Kadaververwertungsanstalten in which millions were lined up for gassing, incineration and recycling into soap, slippers and lamp shades. "How," it is asked, "how can one do nothing in face of such unspeakable horrors?!?!?"
The flaw in the rhetoric is that, by definition, "widespread and systemic" crimes do not take place as they are unitarily depicted
after the fact. There is, as it were, no there, there. This is illustrated by the genocide of European Jews itself, which, as the most serious "non-revisionist" historians concede, was the result of a
confluence of often separate and unrelated actions always taken under cover of war or cover of production. Two impeccable sources provide examples of what was known: Rafael Lemkin, the Polish Jew, who analysed Nazi Occupation policies and who coined the word "
genocide" which until then did not exist ( [
11] [
12] ) and Pope Pius XII who, in 1942, denounced the "
progressive extermination" of the Jews which, he said, was taking place. [
13]
Both men saw the situation up close; Lemkin from a first row seat and Pius through the thousand eyes of clerical reports. At the same time, neither man saw the whole phenomenon but rather myriad pieces only some of which involved mass "executions." What both came to understand was that the Nazis had deployed policies the
cumulative and ultimate effect of which would be the erasure of Jews from society as an intellectual, social, and physical phenomenon.
But the fact that distinct and dispersed policies might unite in a common result does unify those policies in their actual execution. The singularity of the term "holocaust" misleadingly suggests a singularity of event -- that a genocide took place, like a murder. However, genocides and systematic crimes against humanity do not take place in the unitary singular but through a multiplicity of instances. They may be united conceptually by plan, purpose or confluent effect, but "the crime" occurs severally and distinctly.
Thus, against what precisely were the Allies supposed to intervene and how were they to do so? At the time, alleged "gas chambers" were little more than a rumour and even if accepted as true left open the question of where exactly they might be located. When President Roosevelt stated that the best way to stop the depredations then being committed against Jews and others was to win the war, he was not making excuses but rather an completely correct assessment based on what was reliably known. A pervasive crime could only be stopped by an equally pervasive solution.
This brief digression into a particular historical issue has been necessitated by the polemical arguments of those who advocate "humanitarian intervention" and who cite The Holocaust as a trump card to shame and silence any and all opposition. But when the facts are objectively analysed the argument is void of substance.
The conceptual defect of "humanitarian intervention" to prevent "crimes against humanity" is that it is not possible to take "tailored" action against a "system" or to target something that is widespread. Analyzed with practical logic, the doctrine of humanitarian intervention is simply a pretext for general war.
If on the other hand, the crime in question is some
isolated non-systemic horror, then there is no legal authority for one state to violate the sovereignty of another in order to act as a prosecutor
ad litem for what is, essentially, a discrete criminal act.
The attempt to fashion a doctrine of "responsibility to protect" simply wipes aside the difficulties with a moral bromide that subjectively gratifies our inner sense of righteousness without providing any check, either substantive or procedural, against the abuse of morality in pursuit of nefarious national interests.
The intervention into Syria contemplated by the United States suffers from all the defects of the R2P protocol. Even assuming that the Government of Syria is responsible for an incident of gassing its own civilians and assuming further that this incident constitutes a systemic crime against humanity or a violation of accepted humanitarian modes of conduct, there is simply no international consensus warranting an intervention.
Instead, President Obama falls back entirely and fully on Cheney's neocon doctrine of preventive power projection. In his request to Congress, Obama scores "Syria's acquisition of weapons of mass destruction" which he declaims, "threatens the security of the Middle East and the national security interests of the United States." Accordingly he, requests authority "to deter disrupt, prevent and degrade
the potential for future uses of chemical weapons or other weapons of mass destruction" in order " to protect the United States and its allies and partners against the
threat posed by such weapons." [
14]
The game is given away by the "or." Obama does not limit the request to destroying existing arsenals of chemical weapons but wants approval to destroy any weapon of mass destruction on the ground that their mere existence is a "threat" to the United States "or" Israel. Dick Cheney could not have said it more bluntly.
In his previous statement on 31 August, President Obama sought to sharpen the bluntness by a rhetorical pitch worthy of Urban II, in which he spoke of "young girls and boys gassed to death by their own government" which constituted "an assault on human dignity" and which made "a mockery" of international law. "What message will we send," he asked, "if a dictator can gas hundreds of children to death in plain sight... What does it say about our resolve to stand up to others who flout fundamental international rules? To governments who would choose to build nuclear arms? To terrorist who would spread biological weapons? To armies who carry out genocide?" [
15]
The statement bespoke its own hypocrisy. International norms require international approval for an "intervening" attack on a sovereign nation. The Administration has presented no pretence of a claim that the Syrian "rebels" constitute anything like a recognisable de facto rival belligerent and government. The only state in the region who has chosen to build nuclear arms is Israel. If any party has a record of "spreading" biological weapons in the region it has been the United States which supplied them to Iraq, condoned their use in the 1980's and deployed white phosphorous in Fallujah in 2004.
The Administration has obliquely referred to the fact that dastardly Syria has refused to sign the protocol against biological weapons. What the Administration omits to note is that Israel has refused to sign the nuclear non-proliferation treaty. When the two facts are viewed together what is more than obvious is that Syria's refusal is made to counter-balance the hegemony of the Israeli nuclear threat.
In 2004, Obama loftily intoned his hope for an emergence from the "long political darkness" into which the Bush Administration had plunged the country. In 2013, with a "righteous wind" coming from his mouth, Obama seeks to extend the long night of darkness even further.
©
Barfo, 2013
[1]http://en.wikipedia.org/wiki/Wolfowitz_Doctrine
[2]http://www.sourcewatch.org/index.php?title=Defense_Policy_Guidance_1992-1994
[3] http://avalon.law.yale.edu/imt/judlawre.asp
[4]http://untreaty.un.org/cod/icc/statute/romefra.htm
[5]http://en.wikipedia.org/wiki/United_Nations_Fact_Finding_Mission_on_the_Gaza_Conflict
[6] http://en.wikipedia.org/wiki/Humanitarian_intervention
[7]http://www.responsibilitytoprotect.org/
[8] http://en.wikipedia.org/wiki/Responsibility_to_protect
[9] http://www.fordham.edu/halsall/source/urban2-5vers.html)
[10]http://en.wikipedia.org/wiki/Kadaververwertungsanstalt
[11]http://www.preventgenocide.org/lemkin/americanscholar1946.htm (links to original works)
[12] http://en.wikipedia.org/wiki/Raphael_Lemkin
[13]http://www.newoxfordreview.org/reviews.jsp?did=0200-cavalli
[14]http://www.cnn.com/2013/08/31/us/obama-authorization-request-text
[15]http://www.whitehouse.gov/the-press-office/2013/08/31/statement-president-syria
