U.S. ‘Intervention’ in Syria Unlawful

Proponents of Syria “intervention” did not seem to notice any irony as Secretary of State John Kerry, on the one hand, chastened Iraq for letting Iran use its airspace to aid President Assad’s regime in Syria,[1] and, they, on the other, continued to call for U.S. intervention in Syria, including arming militants, establishing “safe-zones,” and destroying Syria’s aircraft.[2] The lesson of Iraq remains unlearned: destroying an authoritarian regime is easy; preventing civil war and establishing an acceptable order afterwards is staggeringly difficult. Yet even absent this reality, President Obama should resist the ever-increasing pressure for such “intervention” for the simple reason that it’s unlawful: it’s contrary to the just war doctrine, it’s contrary to international law, and it’s contrary to the Constitution of the United States.

It’s contrary to just war doctrine

The just war tradition is a synthesis of Christian thought beginning with St. Augustine in the fifth century, extended by the scholastics of the middle ages, and codified by the great jurists of the modern period. It rejects both the sentimentalism of pacifism and the barbarism of total war. For fifteen centuries, the tradition has sought to limit war and has served as an ethical framework for the West. It should be no surprise, then, that just war doctrine begins with a strong presumption against war. This presumption stands until stringent conditions are met: among other requirements, wars must be fought for a just cause and there must be a reasonable chance of success. U.S. “intervention” in Syria can satisfy neither criterion.

In the tradition, wars fought in self-defense and wars fought to remedy an actual wrong could be justified. Hence, in some cases, a state could initiate a war in order to vindicate its rights or to defend justice. On these grounds Hugo Grotius (1583-1645), the father of modern international law, included humanitarian intervention as a just cause of war. Following the Westphalian settlement (1648), however, offensive wars of vindictive justice fell out of favor. Centuries of experience with religious conflicts proved that wars in the interests of “religion” and “justice” could be devastating. Just war theorists, seeking to close Pandora’s Box, thus increasingly rejected a universal right to intervene for humanitarian reasons. The great Spanish Jesuit Francisco Suarez (1548-1617) articulated this position: “The assertion made by some writers, that sovereign kings have the power of avenging injuries done in any part of the world, is entirely false, and throws into confusion all the orderly distinctions of jurisdiction.”[3] Permissible military intervention was limited to collective self-defense—i.e., strictly as a response to intervention (in a civil war, for example) by other states. This was done to restrain rulers and to limit war; otherwise, in Suarez’s words, “it would always be permissible to declare . . . war on the ground of protecting innocent little children.”[4]

The downside of Suarez’s position was that it became rarely permissible to declare war, even to protect innocent little children, though some modern thinkers sought to make an exception for genocide. The creation of unimaginably destructive weapons in the twentieth-century, however, displayed the wisdom of the compromise: universal jurisdiction bred universal disputes over justice; limited jurisdiction sought to restrain states and decrease the frequency of war. The development of the modern international system, furthermore, provided a legitimate way for a tolerable global justice to be enforced (at least among smaller states).

In the case of Syria, the possible genocide exception is not currently applicable. It is intellectually sloppy to label the Syrian conflict genocide.[5] In 1948, the U.N. Convention on the Prevention and Punishment of the Crime of Genocide defined genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” Though Assad has undoubtedly committed war crimes, all the evidence suggests his interest and intent is to maintain power, not to exterminate the three quarters of his population that are Sunni. It is worth remembering that some 750,000 Americans died in our own civil war.[6] The war was horrendously tragic, yet in no sense was it genocide. Indeed, in the case of Syria, the haunting specter of genocide seems more likely to arise from an opposition victory than from the status quo.

Unless the situation in Syria changes significantly, because Syria has committed no offensive against the U.S., because Syria is outside the jurisdiction of American power, and because the conflict is a civil war and not genocide, the U.S. has no just cause to oppose Assad militarily.

The complexity and chaos of the Syria conflict, moreover, do not permit a reasonable chance of success—with success being defined as the cessation of conflict and the creation of a tolerable political order. Even with the aid of Assad’s opposing regime, the rebels are unable to unite their efforts. The resignation of Moaz al-Khatib, the President of the Syrian National Coalition, has precipitated even more confusion.[7] Khatib, who was widely popular, had supported a negotiated settlement with the Assad regime, but met with bitter internal opposition.[8] His replacement, Ghassan Hitto, strongly opposes peace talks with Assad. Roughly 25% of the active members on the Syrian National Council boycotted Hitto’s election, many insisting that he was a lackey of the Muslim Brotherhood and the government of Qatar.[9] As the situation currently stands, as Victor Kotsev writes in the Asia Times, “different rebel groups are on the verge of an open war with each other. . . . In fact, the period when the Syrian civil war could be described as having two sides may be over. Numerous other rifts besides the moderate-extremist divide, such as the Kurdish issue and the private interests of a myriad of rebel fiefdoms throughout the country, are rearing their heads.”[10] The opposition, neither unified nor coherent, is fighting amongst itself even before Assad has fallen.

As Michael Walzer has argued, intervention on behalf of a secessionist movement is highly problematic, for it substitutes foreign strength and leadership for the leadership of the secessionists. The conflict itself demonstrates whether the secessionists ought to succeed. If a foreign power takes their place in the struggle (and then leaves afterwards), it makes chaos and anarchy—the one thing worse than tyranny, as Russians discovered immediately after the fall of the last tsar—likely in the postwar state.

Furthermore, it is inadequate to define success simply as a U.S. enforced cessation of hostilities. War is political in nature. The Syrian civil war can only be resolved with a political solution—i.e., both sides really are fighting for a reason. It’s facile to suggest the U.S. should interrupt the fighting and then things will be better, for the underlying causes of the conflict would remain. For this reason, NATO Secretary-General Anders Fogh Rasmussen insisted that NATO won’t intervene: it is out of its area of competency, and it can’t solve the problem.[11] Since neither side is willing to compromise, and since neither side has achieved victory, there is no plausible political solution. This tragic reality is reflected by the fact that Khatib was ousted for being too moderate. The opposition thus shows itself not to be interested so much in peace as in victory. History shows us, though, that typically the negotiated peace is better than the imposed peace, for it reflects the interests of both sides. What, in this case, would happen to Syrian Alawites, Christians, Druzes, Shiites, and Kurds were the opposition to achieve a total victory? Will Peter W. Galbraith’s chilling prediction be realized—that “The next genocide in the world will likely be against the Alawites in Syria”?[12] Do we really believe that the rebels stand with Winston Churchill: “In victory magnanimity, in peace goodwill”?

Intervention, rightly understood, must have peace as its end. As events currently stand, there can be no reasonable chance of success and no reasonable belief in jus post bellum—justice after war.

It’s contrary to international law

U.S. military intervention in Syria would flatly violate international law and disregard the international system the U.S. constructed following WWII. Such blatant disregard would reduce law simply to a question of power, reasserting the Athenian maxim of old: the strong do what they can and the weak suffer what they must. If it’s permissible for America to violate international law then is it permissible for China and Russia as well?

The U.N. Charter, which the U.S. Senate duly ratified in July 1945, prohibits “the threat or use of force against the territorial integrity or political independence of any state” (Article 2[4]). There are two, and only two, exceptions. The first is the right of self-defense. Every nation has the inherent right to defend itself against armed attack until the Security Council has taken measures to restore international peace and security. Secondly, if the Security Council determines there to be a breach of international peace and security, it may direct whatever enforcement action it deems necessary, typically beginning with measures not involving armed forces. Absent these conditions, use of military force is unlawful. Some scholars have proposed a novel rationale for intervention called “responsibility to protect,”[13] which connects state sovereignty and state responsibility. International law scholars, however, have only partly accepted the doctrine and intervention apart from the authorization of the Security Council has never been recognized.[14]

The Security Council has not authorized use of force against Syria and Assad’s regime has not attacked the U.S. The conditions for intervention have not been met, and because of the Security Council opposition of China and Russia, this will likely remain the case. Absent these conditions, U.S. intervention in Syria would tear down the very house America spent half a century constructing. In ratifying the U.N. Charter, we traded the sovereign right of offensive war for a system of relative global stability and collective security. Undermining the Charter risks setting a precedent that over time would thrust the world back into the semi-anarchy of wholly sovereign nations in the Hobbesian state of nature.

It’s contrary to the Constitution

President Obama’s “splendid little war” in Libya and our increasing involvement in Syria confront America with a question of tremendous import, a question John Quincy Adams considered nearly two centuries ago. Is America still a republic beaming “with the ineffable splendor of freedom and independence,” a republic in which the authority of the executive is limited and the law king? Or has our nation been transmogrified into something less admirable, a nation defined by, in Adams’ words, “an imperial diadem, flashing in false and tarnished luster the murky radiance of dominion and power”? At the constitutional convention of 1787, only once did a delegate (Pierce Butler of South Carolina) propose that the president should have the power to make war. Elbridge Gerry (later Vice President under Madison) represented the convention’s consensus when he responded that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” Butler recanted.

The framers appealed to “what the History of all governments demonstrates” (Madison) that the purse and the sword must be separated, that ambition must counter ambition, that power must always be checked by power—that no decision of significance should be made unilaterally. This is the veritable foundation of the American experiment in government: procedural checks had substantive ends. Because men are fickle, because war is destructive to republicanism, and because victory requires unity, the framers made it difficult to go to war. The president could only act if the Senate (representing the states) and the House (representing the people) concurred. This procedural restriction included even the smallest acts of belligerence—letters of marque and reprisal. And lest there be any confusion, the Supreme Court defined war in 1800: “Every contention by force, between two nations, in external matters, under the authority of their respective governments” (Bas v. Tingy). Establishing a no-fly zone or destroying Syrian aircraft would clearly meet this definition.

Common sense makes the same point as history: what sort of nation requires public hearings and a vote of Congress to regulate the price of milk but allows the president to commit the nation to untold debt, death, and destruction without so much as telling Congress? Proponents of intervention respond that since Truman, intervention without congressional approval has been the norm; therefore, they say, the Constitution is not a concern. But this is sophistry: usurpation remains usurpation, and ignoring the Constitution doesn’t change it or make violating it acceptable. In the words of the Supreme Court: “That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date” (Powell v. McCormack).

The War Powers Resolution, it is true, grants the president war-making authority for a limited time apart from Congressional approval, supposedly in response to a “national emergency created by attack upon the Unites States, its territories or possessions, or its armed forces.” Through the vagaries of legal interpretation, however, presidential authority is hardly limited by the Act. The constitutional imperative, however, remains: Congress, not the president, has the power to declare war.

U.S. military intervention in Syria is not morally justified and would set dangerous international and national precedents. President Obama should hold his ground against those who, with hubris that would make ancient Athenians blush, disregard the law and seek to direct the course of history.