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Don’t Fall for the Chemical Weapons Convention Justification

Jack Goldsmith and Oona Hathaway review [1] the preposterous legal “arguments” [2] in support of yesterday’s illegal attack. Here they address the erroneous claim that the attack was justified under international law because it was a response to the use of banned chemical weapons:

Nowhere does the [Chemical Weapons] Convention provide for unilateral uses of force in response to a breach of the Convention. And if it had, there’s a good chance no state would ever have joined it. And putting the treaty to one side, there is no reason at all to think that any related “norm” prohibiting the use of chemical weapons can be enforced with force outside the Charter framework [bold mine-DL].

Put simply, member states can’t ignore the U.N. Charter’s prohibition against using force against other states in the name of enforcing other international norms. Syria’s violations of its international obligations do not give other states license to disregard their own by launching military attacks against them. The U.S. and its allies don’t have any legal support for what they have done, and they make a mockery of their professed concern for international order when they wantonly undermine one of the core protections of the U.N. Charter.

This typical liberal interventionist reaction shows that supporters of the attack don’t really care about international law at all:

In other words, the attack is effectively useless and illegal, but so long as it conveys our displeasure with the Syrian government Slaughter thinks it is worth doing. One could scarcely ask for a more ridiculous defense of committing acts of war against another state than this, but this is what interventionists are reduced to because they care more about finding excuses for military action against certain governments than they care about international law.

“Humanitarian” interventionists have previously tried to defend obviously illegal military action by claiming that it is “illegal but legitimate.” Of course, this is the rhetoric of vigilantism, and international vigilantism is indistinguishable from aggression. This is how many liberal internationalists tried to reconcile their nominal support for the U.N. Charter with their support for the Kosovo war. Goldsmith and Hathaway think through the implications of what this would mean if it were widely accepted as a standard for the use of force:

If “illegal but legitimate” becomes an accepted principle, then the Charter’s limits become meaningless. Nations that do not share Western conceptions of legitimacy could justify uses of force based on their own conceptions of legitimacy. In short, “illegal but legitimate” implies no legal limits on the use of force.

When all is said and done, there are no valid legal arguments that support what the U.S. and its allies just did in Syria.

12 Comments (Open | Close)

12 Comments To "Don’t Fall for the Chemical Weapons Convention Justification"

#1 Comment By John J. Turner On April 14, 2018 @ 4:46 pm

Daniel,

Thank you for speaking the truth to (illegitimate exercises of) violent power. When will our own government hold itself accountable to law?

#2 Comment By down with both parties On April 14, 2018 @ 6:22 pm

“In other words, the attack is effectively useless and illegal, but so long as it conveys our displeasure with the Syrian government Slaughter thinks it is worth doing. “

Anybody who thinks Hillary might have been better than Trump in this regard has only to ponder Hillary-protege Slaughter’s “reasoning” here.

These people are really something. I have been disgusted by the ignorance and stupidity of our “elites” for quite some time, but watching them close ranks around Trump on this stupid botch in Syria is really more than we should be expected to tolerate.

This fall I’m voting against everyone in sight. More Tea Party. It seems to be the only move a sane voter can make.

#3 Comment By b. On April 14, 2018 @ 6:33 pm

When will *we* hold our elected representatives accountable?

No to incumbents. None of the above. Vote, and vote against, instead of voting within the choices the establishment has tailored for you. US elections are a Monty Hall show, with a Judas goat behind every door. Take a chance on somebody who does not have a track record of corruption yet, vote against anybody who has been in office.

Even those that mean well have been ineffective, have they not?

If your principles aren’t “worth it” to “waste” your vote and not bet on a “winner”, then you are no better than they are. The buck stops with us.

#4 Comment By Dover DE On April 15, 2018 @ 7:11 am

Trump seems to think everybody will love him if he blows up some Syrian government buildings. He’s wrong. I voted for him in 2016. I will never vote for him again. And I will never vote for him again because of this stupid, budget-busting crap he’s pulling in the Middle East. It’s no different from the incompetence and bad judgment of Bush II or Obama.

This is what most of us voted against back in 2016. And I’m going to vote against it again this fall.

#5 Comment By Bill H On April 15, 2018 @ 9:46 am

b, I have been voting against incumbents of both parties for 15 years now. Whoever runs against the incumbent gets my vote unless they are totally incompetent or otherwise unfit, in which case I write in a name. I never, ever, vote for someone who is running for reelection.

#6 Comment By CharleyCarp On April 15, 2018 @ 11:27 am

Our current Syria policy seems to be that we don’t care if the government wins the civil war, so long as they don’t embarrass us. One would think that Syria and Russia would be willing to take that deal.

Folks who think HRC would’ve done the same thing miss the role of Speaker Ryan. In a Clinton Administration, the full weight of the Congress, and of the msm, would have been behind the notion that strikes like this need congressional approval.

#7 Comment By Cornel Lencar On April 15, 2018 @ 11:58 am

Daniel,

I think you are wrong when you blame liberals on this. Humanitarian interventionism is a too good an excuse that resonates well with the good folks of America not to use. “Killing babies” is probably the oldest rallying cry. The German “Hun” was portrayed as eating babies. Iraqis destroyed and killed babies in incubators in Kuwait.

Thucydides put it the best and there is no other rationalization needed: “…since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.”

The effort U.S. is making is to convince their citizens that their government is not the meanest and biggest bully in the world.

#8 Comment By Anonne On April 15, 2018 @ 12:08 pm

As long as we have an electorate and leaders obsessed with looking “strong” and doing the strong thing, even if it is the wrong thing, nothing will change.

#9 Comment By General Manager On April 15, 2018 @ 3:29 pm

I was relieved when ZNN headlined “Experts explain why the allies had to bomb Syria.” (close paraphrase) Joking!!! The real experts probably Bolton, Kushner, and Bibi? (et al) There is no excuse legally or morally. No explanation just removal from office for declaring war without constitutional approval. Presidents have torn the constitution asunder. The rot started with Korea in earnest. The icing on the cake was when there was an attack by a foreign nation, Israel, on the forces of the United States (June 8, 1967 – USS Liberty)and President Johnson allowed the slaughter of our sailors to continue without going to their aid militarily as mandated by the Constitution.

#10 Comment By Johann On April 16, 2018 @ 11:15 am

We can’t have it both ways. If we don’t follow the UN rules, we should not be a member.

A separate topic from following international law is how we know there was a chemical attack and who did it. There was a time most Americans like my self would take the intelligence agencies at face value because it seemed they had credibility. But now, given their recent poor track record, for me, taking them at face value is not possible. They must show hard evidence. Saying that they cannot or it would reveal methods and sources means I will not believe them by default. They have been wrong too many times. I and a large percent of Americans do not trust them. They have to put up or shut up. Just saying something doesn’t make it so. They have to live with that. And no, its not because of Russian propaganda. Its because of them. I’m not blaming the rank and file, but the political types that spin the raw intelligence to fit what their political bosses want.

#11 Comment By jk On April 16, 2018 @ 11:39 am

“The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

The U.S. Army’s Law of Land Warfare (Field Manual 27-10) states:

498. Crimes Under International Law
Any person, whether a member of the armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. Such offenses in connection with war comprise: a. Crimes against peace.

Do these principles or laws apply in this situation more to the US or Syria? What about KSA and Yemen? I wonder if these could apply to GW Bush’s regime’s choice wars of aggression.
Does anyone care?

#12 Comment By rKroll On April 17, 2018 @ 7:39 am

The US looses all moral authority due to its refusal to ratify the UN International Criminal Court (along with Israel, Russia and Sudan)