Wednesday, August 28, 2013

Responsibly protecting Syrians



Contribution by CIWI member NAJ Taylor

Allegations that chemical weapons have been deployed against civilians in Syria are troublesome and, if true, are abhorrent. But what facts have been established? What details are as yet unknown? And are calls for some form of military intervention warranted in the current situation?

These are the questions that should and must be asked. But already the ground has been cleared such that speculation (on all sides) has become fact, and expert opinion derided as pure fantasy. There’s a need to look more closely at these truth claims so as to reveal something altogether more meaningful. 

The facts, as I see them, are these: (1) the nature of what occurred on 21 August, and the veracity of the various claims, are hotly contested; (2) of what has thus far been said, few have the evidence or specialist knowledge at their disposal; and (3) for their part, the UN inspectors and staff at the OPCW labs will not make their findings public, and are neither in a position, nor tasked, with identifying those responsible. 

Yet the call for reprisals against “those responsible” has indeed been swift and strong. Frustrated with the Russian and Chinese veto in the UN Security Council, and at odds with the UN Secretary General’s evocation of a possible “crime against humanity”, ambassador Susan Rice resorted to tweeting an actual impossibility:

“The Syrian government must allow the UN access to the attack site to investigate. Those responsible will be held accountable.” [Italics mine]

More worryingly still, the UN special advisors for Genocide and the Responsibility to Protect echoed this sentiment last Friday in their joint statement to media:

“The alleged use of chemical weapons in Syria is yet another example of the crimes taking place in the country. All these crimes must be investigated immediately, and those responsible for committing them held to account, as an integral part of a peaceful and sustainable political solution to the disastrous conflict in Syria.” [Italics mine]

As I pointed out at the time Obama drew his “red line”, whilst condemnation for the use of chemical weapons is to be expected, reprisals would require evidence of who did it – to date nothing of what has been said has been based on a verified, independent, expert assessment of the evidence. No chemical weapons specialists have said: “this is precisely what substance/s were used, and this is who definitely deployed them.” Not one. Nor, in fact, have any governments.

The importance of attribution

Without attribution, “those responsible” can actually never be truly “held to account”. There are technical, practical, legal and political reasons for this seemingly suboptimal outcome.
Technical constraints on the UN inspections include not only the procurement of evidence, witness accounts and testimony (from medics, for example), but also the limitations of an interagency process that requires testing in multiple facilities over the course of several days.

Practical constraints include the inescapable problem that Syria is an active war zone, and UN inspectors must prioritise both their own personal safety, as well as their mission’s integrity. Ensuring the adherence to protocols including the proper handling of evidence and selection of witnesses will not be easy during the course of any conflict, whether Assad and the rebels comply or not. No one outside of the select few negotiators, likely not even the UN inspectors themselves, are aware what evidence has been supplied by Assad’s regime, the rebels, or external actors such as Russia, France, the UK, US and Israel.

The Assad government’s legal obligations are complex and not altogether as strong and as rigid as commonly supposed. Syria is not a states-party to the international convention banning the use of chemical weapons, though they are party to the 1925 Geneva Convention. Assad is under no legal obligation to facilitate inspections of Syria’s sovereign territory, despite the assertions to the contrary based on customary international law. In fact, it was Assad who agreed to the inspections currently underway under the remit of the UN Secretary General five months before the reported strikes. To be sure, there are limitations to the scope and nature of that inquiry, in part set by Assad, and in part because of the technical and practical constraints outlined above.

Simply put, verification will be difficult, and the danger remains that with no attribution expected, assumptions will be acted upon. We enter the realm of the political.

Weapons of mass destruction are always political

The political response to the incident was discernible across the sphere of governments, international organisations, epistemic communities, and civil society. Their claims might usefully be clustered into one of three categories: (1) the hawks, who advocate for use of force, whether through the UN Security Council or unilaterally; (2) the duty bound, who appear to be driven by either a repulsion of chemical weapons in general, or are beholden to positive duties to assist those in harms way in particular; and (3) the sceptics, which canvasses those who have relevant yet specialist expertise in some or other aspect of chemical weapons, and those who are (rightfully or wrongly) sceptical of all claims by government intelligence agencies.

Of the respected and most influential hawks, France expectedly threatened to use force unilaterally if necessary, and the Washington Post editorial board put the case forward in the strongest terms:  

“It would be unprecedented for the Assad regime to comply. The United States should be using its own resources to determine, as quickly as possible, whether the opposition’s reports of large-scale use of gas against civilians are accurate. If they are, Mr. Obama should deliver on his vow not to tolerate such crimes — by ordering direct U.S. retaliation against the Syrian military forces responsible and by adopting a plan to protect civilians in southern Syria with a no-fly zone.”

Unexpectedly, many measured voices such as US Senator Chris Murphy (D) and The Guardian, began to display hawk-ish tendencies too. For example, their editorial board concluded that:

“There is next to no doubt that chemical weapons were used in Ghouta in eastern Damascus, and that, unlike previous alleged attacks, they produced mass casualties…. Nor is there much doubt about who committed the atrocity.”

Of those responses which I attempt to categorise as being in some way “duty bound”, the European Union’s co-signed statement and the New York Times’ editorial was the most balanced and accurate, although some have been no less strident in mistaking allegations for punishable attribution. For example, within hours of the attacks UNICEF rightfully condemned the incident, before going on to say that:

“Children must be protected, and those who fail to protect them will be held accountable.” [Italics mine]

Likewise, Médecins Sans Frontières issued a carefully worded statement suggesting that according to its sources up to 3600 patients were treated on the day in question and that a further 355 had been confirmed dead. World news media instead reported MSF’s statement as confirmation – by way of a staff endorsement – that event unfolded in this way. For example, the BBC for hours reported the story incorrectly, until it was partially retracted and corrected. Similarly, in their haste to break a story, for some time Reuters were stating that chemical weapons had resulted in “thousands killed”, as opposed to “thousands affected”. Foreign Affairs ran a story about the chemical weapons taboo, but instead tweeted that “Assad’s use of chemical weapons in Syria, however repugnant”, despite evidence of neither claim being confirmed, and neither assertion being made in the linked article.

The reality is that the US were discussing war plans days before the alleged incident. Indeed, remarks by the Joint Chief of Staff General Dempsey on 19 August put the US strategy in the plainest of terms:

“We can destroy the Syrian Air Force… it would not be militarily decisive, but would commit us decisively to the conflict… It is my belief that the side we choose must be ready to promote their interests and ours”.

Whither the “expert” opinion?

In such a climate the expert opinions of those who have the requisite knowledge about chemical weapons and their effects are drowned out. As one chemical weapons specialist sees it:

“Instant judgement does not equal instant justice. It merely satisfies other hidden desires: the dark gratification of being able to Saddam-ise yet another political leader, the clamouring for policy objectives that have little to do with the chemical attacks as such, the uncontrollable eagerness to impart wisdom by a fast growing class of blabberati, the need to simplify complex realities for a tweeting global audience, or whatever. Unfortunately, these calls reveal more about the person’s ignorance of both the purpose and process of the investigation than the desire to know the truth (and nothing but the truth).”

The sort of evidence sought is more basic than what might be otherwise supposed – and obligates the co-accusers as much as it does Assad. For instance, as recently as June 2013 the noted chemical weapons specialist J. Perry Robinson issued a lengthy advisory opinion, which concluded that:

“Whether the many allegations of Syrian poison-gas warfare are or are not true cannot reasonably be judged on the evidence currently in the public domain… [Furthermore] the several governments which have explicitly accused the Syrian regime of using sarin nerve-gas against the rebels seem to be withholding evidence that, if disclosed, might make their charges more believable than they are. The gap in disclosure is not so much intelligence from sensitive sources or methods but is instead straightforward description for scientific audiences of the procedures that have been used for analysing physiological and environmental samples. The second conclusion is that, if the allegations are true, Syria is engaged in a form of chemical warfare whose purpose and therefore methods (small scale, pinpoint targeting, disabling) are at variance with [both historical experience and the scope of the relevant codified norms].”

How to responsibly protect Syrians

The problem the world’s states and people presently face is of grave seriousness: does the most basic of human duties to do no harm extend also to using force to protect others in harm’s way? If it does, then there must first be reliable and verified evidence, a strictly humanitarian (as opposed to political) motive, a genuine commitment to seeking a peaceful settlement, a high chance of success given a proportionate use of force, and a strict adherence to international law. The technical, practical, legal and political obstacles I have briefly outlined above must be navigated, not usurped.

Simply put, to break codified international law/s in order to preserve what’s said to be customary international law is a wholly insufficient case for a just war.

N.A.J. Taylor is an honorary research fellow at La Trobe University’s Centre for Dialogue, and a doctoral researcher at the University of Queensland.  He tweets: @najtaylor

1 comment:

  1. I agree with others here, in relation to chemical warfare in Syria, that no
    one can or should held 'accountable' for unsubstantiated allegations - and I
    appreciate the difficulty of substantiating beyond doubt facts of this
    nature - though a prima facie case of the use of chemical weapons is more
    evident here than could ever have been made over Saddam's WMDs.

    What needs to be confronted is that if their use is irrefutable and by whom,
    what should be the consequences and how enforced? If clear international
    laws have been breached (and the 1925 Protocol is clear as to the law) it
    doesn't help to sustain the system by asserting that no use of force in this
    regard can ever be condoned or justified because of possible, even likely,
    adverse consequences - and I don't think many of us would say that.

    In some circumstances, like this, I don't think that the failure of the UN
    Security Council to approve the enforcement of international law precludes
    such enforcement action by and within the international community. The
    alternative is anarchy and the dismantling of the legal system. The UN
    Security Council is not 'absolute'. It is not the Grundnorm of international
    law.

    So matters in Syria could get to the point where the facts are irrefutable,
    and quite soon, and decisions would have to me made. That brings us to how
    any Australian decision should be made and our concern with democratic
    processes.

    In the present circumstances the caretaker Aust. government is not empowered
    to make such a decision in relation to an Australian response involving the
    use of force (directly or indirectly) though it would not be precluded from
    acceding to a UNSC resolution given its UNSC responsibilities - though an
    abstention might be appropriate until after 7th Sept.

    Let's hope that Rudd doesn't try to exploit this for self-promotion and in a
    desperate bid to hoodwink the Australian electorate.

    Andrew Farran

    ReplyDelete