Richard Falk assesses the recent missile attack on Syria by the armed forces of the US, the UK and France from a variety of perspectives and warns that the United Nations Charter, which permits armed force only in self-defence or where it is mandated by the UN Security Council, is not obsolete.
AT this stage it seems reasonable to wonder whether Syria was attacked because it didn't use chemical weapons rather than because it did. That may seem strange until we remember rather weighty suspicions surrounding the main accusers, especially the White Helmets with their longstanding links to the US government, and past scepticism about their inflammatory accusations that critics claim reflect fabricated evidence conveniently available at crisis moments.
A second irreverent puzzle is whether the dominant motive for the attack was not really about what was happening in Syria, but rather what was not happening in the domestic politics of the attacking countries. Every student of world politics knows that when the leadership of strong states feel stressed or cornered, they look outside their borders for enemies to blame and slay, counting on transcendent feelings of national pride and patriotic unity associated with international displays of military prowess to distract the discontented folks at home, at least for a while. All three leaders of the attacking coalition were beset by rather severe tremors of domestic discontent, making attractive the occasion for a cheap shot at Syria at the expense of international law and the UN, just to strike a responsive populist chord with their own citizenry - above all, to show the world that the West remains willing and able to strike violently at Islamic countries without fearing retaliation. Beleaguered Donald Trump, unpopular Emmanuel Macron and post-Brexit Theresa May all have low approval ratings among their own voters and seem in freefall as leaders, making them particularly dangerous internationally.
Of course, this last point requires clarification, and some qualification to explain the strictly limited nature of the military strike. Although the attackers wanted to claim the high moral ground as defenders of civilised limits on military actions in wartime, itself an oxymoron, they wanted even more crucially (and sensibly) to avoid an escalation that would carry risks of a dangerous military encounter with Russia, and possibly Iran.
As Syrian pro-interventionists have angrily pointed out in their disappointment, the attack was more in the nature of a gesture than a credible effort to influence the future behaviour of the Bashar al-Assad government, much less tip the balance in the Syrian struggle against the government. As such, it strengthens the argument of those who interpret the attack as more about domestic crises of legitimacy unfolding in these illiberal democracies than it is about any reshaping of the Syrian ordeal, or a commitment to upholding the Chemical Weapons Convention.
There is another line of interpretation insisting that what was said in public by the leaders and representatives of the three attacking Western powers was not the real reason the attack was undertaken. This optic points to pressure from Israel to mute President Trump's feared slide towards disengagement from Syria as a prelude to a wider strategic withdrawal from the Middle East as a whole, a region that Trump in his speech justifying the attack calls 'troubled' beyond the capacity of the United States to fix. At least temporarily, from Israel's point of view, the airstrikes sent a signal to Moscow that the United States was not ready to accept Syria becoming a geopolitical pawn of Russia and Iran. Supposedly, the Netanyahu entourage, although pleased by the Jerusalem move, the challenge to the Iran nuclear agreement and silence about the Israeli army's lethal responses to the Gaza Great Return March, have new worries that when it comes to regional belligerence and overall military engagement, Trump will be no more help than his predecessor Barack Obama, who quite irrationally became their nightmare American president.
And if that is not enough to ponder, consider that Iraq was savagely attacked in 2003 by a US-UK coalition under similar circumstances, that is, without either an international law justification or authorisation by the UN Security Council - the only two ways that international force can be lawfully employed, and even then only as a last resort after sanctions and diplomatic avenues have been tried and failed. It turned out that the political rationale for recourse to aggressive war against Iraq, its alleged possession of weapons of mass destruction, was totally false, building the case for war either on the elaborately orchestrated presentation of false evidence or, more generously, on a hugely embarrassing intelligence lapse.
To be fair, this Syrian military caper could have turned out far worse from the perspective of world peace and regional security. The 105-missile-attack was over in three minutes, no civilian casualties have been reported, and thankfully, any challenge to the Russian and Iranian military presence in Syria was deliberately excluded from the targeting plan, thus taking precautions to avoid setting in motion the rightly feared retaliation and escalation cycle. This was not an idle worry. More than at any time since the end of the Cold War, sober concerns abounded preceding the attack that a clash of political wills or an accidental targeting mistake could cause geopolitical stumbles culminating in World War III.
Historically minded observers pointed out alarming parallels with the confusions and exaggerated responses that led directly to the prolonged horror of World War I. The relevant restraint of the 14 April missile attacks seems to be the work of the Pentagon, and certainly not the hawk-infested White House. Military planners designed the attack to minimise risks of escalation, possibly even reaching an undisclosed negotiated understanding with the Russians behind the scenes.
In effect, Trump's red line on chemical weapons was supposedly defended, and redrawn at the UN as a warning to Damascus, but as suggested above, this was the public face of the attack, not its principal motivations, which remain unacknowledged.
Doubting the facts
Yet can we be sure at this stage that at least the factual basis of this aggressive move accurately portrayed Syria as having launched a lethal chlorine and likely nerve gas attack on the people of Douma, killing at least 40? On the basis of available evidence, the facts have not yet been established beyond reasonable doubt. We have been fooled too often in the past by the confident claims of the intelligence services working for these same countries that sent this last wave of missiles to Syria.
International manoeuvring for instant support for a punitive response to Douma seemed a rush to judgment amid an array of strident yet credible voices of doubt, including from UN sources. The most cynical observers are suggesting that the timing of the attack, if not its real purpose other than the vindication of Trump's red line, was to destroy evidence that might incriminate forces other than the Syrian government as the responsible party. Such suspicions are fuelled by the refusal to wait until the factual claims could be validated. As matters stand, the airstrikes seemed hastened to make sure that the respected Organisation for the Prohibition of Chemical Weapons (OPCW), when finally carrying out its fact-finding mission, would have nothing to find.
To allay reactions that these are ideologically driven criticisms, it is notable that the Wall Street Journal, never a voice for peace and moderation, put forward its view that it was not 'clear who carried out the attack' on Douma, a view shared by several mainstream media outlets including the Associated Press.
Blaming Syria, much less attacking it, was definitely premature and quite possibly based on altogether false grounds, undermining the essential factual foundation of the coalition claim. This is without even going into the formidable doubts associated with issues of the unlawfulness and illegitimacy of an international use of non-defensive force without authorisation by the United Nations.
Remnants of colonialism
Less noticed, but starkly relevant, is the intriguing reality that the three states responsible for this aggressive act share strong colonialist credentials that expose the deep roots of the turmoil afflicting in different ways the entire Middle East. It is relevant to recall that it was British and French colonial ambitions in 1916 that established the blueprint for carving up the collapsed Ottoman Empire, imposing artificial political communities with borders reflecting European priorities not natural affinities, and taking no account of the preferences of the resident population. This colonial plot foiled Woodrow Wilson's more positive proposal to implement self-determination based on affinities of ethnicity, tradition and religion of those formerly living under Ottoman rule.
The United States fully supplanted this colonial duopoly as the colonial sun was setting around the world, especially after the Europeans faltered in the 1956 Suez crisis. At the same time the US quickly made its own heavy footprint known, feared and resented throughout the region with an updated imperial agenda featuring Soviet containment, oil geopolitics and untethered support for Israel. Even earlier in 1953 the Truman Doctrine and CIA support for the overthrow of the democratically elected and nationalist government of Mohammad Mossadegh in Iran had disclosed the extent of US involvement in the region. These strategic priorities were later supplemented by worries after 1979 about the spread of Islam and fears after 2001 that nuclear weaponry could fall into the wrong political hands.
After a century of exploitation, intervention and betrayal by the West, it should come as no surprise that anti-Western extremist movements have surfaced throughout the Arab world and engendered some populist sympathies despite their barbaric tactics.
Violating international law, undermining the UN
It is helpful to recall the Kosovo War (1999) and the Libyan War (2011), both managed as NATO operations carried out in defiance of international law and the UN Charter. Because of an anticipated Russian veto in the UN Security Council, NATO, with strong regional backing in Europe, launched a punishing air attack that drove Serbia out of Kosovo. Despite the presence of a strong case for humanitarian intervention within the Kosovo context, it set a dangerous precedent, which advocates of a regime-changing intervention in Iraq found convenient to invoke a few years later.
In effect the US found itself backed into insisting on an absurd position to the effect that the veto should be respected without any questioning when the West uses it, most arbitrarily and frequently to protect Israel from much more trivial, yet justifiable, challenges than what this missile attack on the basic sovereign rights of the internationally legitimate government of Syria signifies. ˙
American diplomats do not try to justify, or even explain, their inconsistent attitudes towards the authority of the UN veto, despite the starkness of the contradiction. Perhaps it is a textbook example of what psychologists call cognitive dissonance. More accessibly, it is a prime instance of a continued reliance on the benefits of American exceptionalism. As the self-anointed guarantor of virtue and perpetual innocence in world politics, the United States is not bound by the rules and standards by which its leaders judge the conduct of others, especially adversaries.
As a personal aside, with some apologies owed, I was the main author of the section of the report in my role as a member of the Independent International Commission on Kosovo, which put forth the rationale of 'illegal but legitimate' with respect to the Kosovo intervention. I had misgivings at the time, but was swayed by the shadow of Srebrenica and the difficulties of finding a consensus among the members of the Commission to put forth this line of argument, qualified to an extent in the text of the report, by invoking the exceptional facts and expressing what turned out to be the vain hope that the UN Security Council would itself create greater flexibility in responding to humanitarian crises of this kind and overcome what seemed at the time giving credibility to a pattern of justification for war making that could in the future be twisted out of shape by geopolitical opportunism.
My fears have been realised, and I would now be very reluctant to endorse my own formulations that seemed, on balance, the right way to go back in the year 2000. Now I lose sleep whenever I recall that I was responsible for what has become an insidious conceptual innovation, 'illegal but legitimate', which in unscrupulous geopolitical hands operates as an 'Open Sesame' rendering irrelevant UN Charter constraints.
The Libyan precedent is also relevant, although in a different way, to the marginalisation of the UN and international law to which this latest Syrian action is a grim addition. Because the people of the Libyan city of Benghazi truly faced an imminent humanitarian emergency in March 2011, the argument for lending UN protection seemed strong. Russia and China, permanent members of the UN Security Council, and other sceptical members were persuaded to suspend their suspicions about Western motives and abstained from a resolution specifically authorising the establishment of a no-fly zone to protect Benghazi.
It didn't take long to disabuse Russia and China, mocking their trust in assurances by the NATO states that the latter's objectives were limited and strictly humanitarian. They were quickly shocked into the realisation that the actual NATO mission in Libya was regime change, not humanitarian relief. In other words, these same Western powers who are currently claiming at the UN that international law is on their side with regard to Syria, have themselves a terrible record of flouting and manipulating UN authority whenever convenient and insisting on their full panoply of obstructive rights under the UN Charter when Israel's wrongdoing is under review.
Ambassador Nikki Haley, Trump's flamethrower at the UN, arrogantly reminded members of the Security Council that the US would carry out a military strike against Syria whether or not it was permitted by the organisation. In effect, even the veto as a shield is not sufficient to quench Washington's geopolitical thirst. It also claims the disruptive option of the sword of American exceptionalism to circumvent the veto when it anticipates being blocked by the veto of an adversary.
Such duplicity with respect to legal procedures at the UN puts the world back on square one when it comes to restraining the international use of force by geopolitical actors. Imagine the indignation that the US would muster if Russia or China proposed at the Security Council a long overdue peacekeeping mission to protect the multiply abused population of Gaza. And if these countries went further and had the geopolitical gall to act outside the UN because of an expected veto by NATO members of the Security Council and the urgency of the humanitarian justification, the world would almost certainly experience the bitter taste of apocalyptic warfare.
The Charter framework is not obsolete
The UN Charter framework makes as much sense or more than when crafted in 1945. Recourse to force is permissible only as an act of self-defence against a prior armed attack, and then only until the Security Council has time to act. In non-defensive situations, such as the Syrian case, the Charter makes clear beyond reasonable doubt that the Security Council alone possesses the authority to mandate the use of force, including even in response to an ongoing humanitarian emergency. The breakthrough idea in the Charter is to limit, as much as language can, discretion by states to decide on their own when to have recourse to acts of war. Syria is the latest indication that this hopeful idea has been crudely cast in the geopolitical wastebasket.
It will be up to the multitudes to challenge these developments and use their mobilised influence to reverse the decline of international law and the authority of the UN. Most members of the UN are themselves so beholden to the realist premises of the system that they will never do more than squawk from time to time.
Trump's boastful tweet about the Syrian airstrike that ended with the words 'mission accomplished' unwittingly reminds us of the time in 2003 when the same phrase was on a banner behind George W Bush as he spoke of victory in Iraq from the deck of an aircraft carrier with the sun setting behind him. Those words soon came back to haunt Bush, and if Trump were capable of irony, he might have realised that he is likely to endure an even more humbling fate, while lacking Bush's willingness to later acknowledge his laughable mistake.
Fudging Constitutional authorisation
Each of the attacking countries claims impeccable democratic credentials, except when their effect is to impede war lust. Each purports to give its legislative branch the option of withholding approval for any contemplated recourse to military action, except in the case that the homeland is under attack. Yet here, where there was no attack by Syria and no imminent security threat of any kind, each of these governments joined in an internationally unlawful attack without even bothering to seek domestic legislative approval, claiming only that the undertaking served the national interest of their governments by enforcing the norms of prohibition contained in the Chemical Weapons Convention.
The American attempts to supply flimsy domestic justifications are decisively refuted by two widely respected international jurists, including one, Jack Goldsmith, who was a leading neoconservative legal adviser in the early years of the George W Bush presidency. In their article on the Lawfare website ('Bad Legal Arguments for the Syria Airstrikes', 14 April 2018), Goldsmith and Oona Hathaway reject arguments based on the Authorisation for the Use of Military Force, which in 2001 gave broad authority to use military force in response to the 9/11 attacks, but has no bearing here as Syria has never been accused of any link.
The other legal claim that has been brought forward argues that the airstrikes are expressions of the president's authority under Article II of the Constitution to serve as Commander in Chief. However, any freshman law student knows or should know that this authority is available only if the use of force has been previously validated by Congress or is in response to an attack or a plausible argument of the perceived imminence of such an attack.
Revealingly, the internal justification for Trump's authority has not been disclosed as yet and has been heavily classified, showing once again that government secrets in wartime are not primarily kept to prevent adversaries from finding things out but, as with the Pentagon Papers, are useful mainly to keep Americans in the dark about policies that affect their well-being and possibly their survival. It also gives the leadership more space for deception and outright lies.
It has been reliably reported that the Trump White House preferred to act without seeking Congressional approval, presumably to uphold the trend towards establishing an 'executive presidency' when it comes to war/peace issues, thereby effectively negating a principal objective of the US Constitution to apply the separation-of-powers doctrine to any recourse to war. This also marginalises the War Powers Act enacted into law in the aftermath of the Vietnam War in the vain attempt to restore the Constitutional arrangement after a period during which the President arrogated power to wage war and the policy acted upon produced the worst foreign policy failure in all of American history.
Where does this leave us?
There are several levels of response:
with respect to Syria, nothing has changed;
with respect to the UN and international law, a damaging blow was struck;
with respect to constitutionalism, a further move away from respect for separation of powers, thus marginalising the legislative branch with respect to war/peace policies;
with respect to oppositional politics, citizen protest and media reactions, an apathetic atmosphere of acquiescence, with debate shifting to questions of purpose and effectiveness with virtually no reference to legality and quite little even to legitimacy (that is, moral and political justifications).
Richard Falk is an international law and international relations scholar who taught at Princeton University for 40 years. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies. He is chair of the board of the Nuclear Age Peace Foundation. The above article is reproduced from his Global Justice in the 21st Century blog (richardfalk.wordpress.com). It is a modified and expanded version of a text earlier published in The Wire (Delhi) and Il Manifesto (Rome).
*Third World Resurgence No. 328, December 2017, pp 31-34