Chemical red lines on Syria (Foreign Policy, 05/12/2012)

Despite the estimated 40,000 civilian deaths in the Syrian conflict, the United States has shown little appetite for a Libya-style intervention, this time without United Nations Security Council approval. The Obama administration has been candid, however, about what might change its mind. In August, President Barack Obama first asserted that Syria’s use, or movement, of chemical or biological weapons (CBW) would be a « red line » that would result in « enormous consequences. » The British and French quickly followed suit. Just this week, the significance of these red lines was reiterated in view of intelligence reports that the Assad regime is weaponizing Sarin nerve gas.

The Obama administration has been silent about its rationales for these red lines. But reasons matter. As with any use of force in international relations, the legitimacy of an intervention in Syria would hinge on the strength of its moral and legal justifications. Are the Obama administration’s red lines primarily designed to protect civilians? Or, are they intended to warn President Bashar al-Assad not to let CBW fall into the hands of terrorists? As it stands, the motivations for the red lines are unclear. Ironically, however, the Obama administration risks resurrecting the much-maligned Bush Doctrine of preemptive self-defense.

Obama’s reference to the Syrian government’s movement of CBW indicates Western policymakers are concerned about terrorism; as he stated in August, « [w]e cannot have a situation in which [CBW] are falling into the hands of the wrong people. » This concern is understandable; Syria’s robust chemical weapons program, with an estimated budget of $2 billion, has produced hundreds of tons of Sarin and VX — the most toxic nerve agent ever synthesized. Hezbollah, a militant organization with a record of attacking civilians, is now fighting on the Assad regime’s behalf in Syria and has established training camps near CBW sites. Foreign jihadist fighters, which are playing an increasingly important role in the Syrian opposition, could present an equally dire threat.

Since the threat posed by a CBW-armed terrorist group is real, why would Western intervention to prevent them from acquiring CBW be controversial? Under international law, a state may only invoke its right of self-defense in the case of an actual or imminent attack. After the 9/11 attacks by al Qaeda, however, the Bush administration asserted a right of preemptive self-defense against terrorist groups and states that harbor them or could supply them with weapons of mass destruction (WMD). Many states and experts rejected this justification for the 2003 Iraq war because Iraq could not be linked to WMDs or the 9/11 attacks. Unlike Iraq, Syria has CBW and has forged a close partnership with Hezbollah. Nevertheless, preemptive self-defense still suffers from the same theoretical deficiencies it did in 2003. The doctrine has a weak basis in international law and its legal recognition would improperly justify the use of force by powerful states.

If the Assad regime deploys CBW against the Syrian population, the international community could justify an intervention under the Responsibility to Protect (R2P), an emerging norm of international law that legitimizes the use of force as a last resort to protect civilians and prevent mass atrocity crimes. Although the Assad regime has already committed atrocity crimes using conventional weapons, the use of CBW could be Syria’s Srebrenica moment. The full extent of Syria’s CBW capabilities remains unknown; however, the consequences of their use, even on a small scale, would be devastating. In 1988, Saddam Hussein used Sarin and VX on the Kurdish village of Halabja — an attack that killed 5,000 people, injured 10,000 others, and left a grim legacy of birth defects among those lucky enough to survive. On this basis, if CBW were used in Syria the U.N. Security Council might be roused to action. Even if it is not, the United States and its allies may deem it legitimate to protect civilians without Security Council authorization action, as it did in Kosovo.

Given the status of international law, the United States and its allies should explicitly distance themselves from using terrorism as a justification for intervention in Syria. As it stands, any U.S. military action to secure Syria’s CBW would risk resurrecting the deeply flawed Bush doctrine of preemptive self-defense. Moreover, by drawing an explicit red line around the use of CBW, the United States has implicitly signaled that it would not intervene otherwise, potentially emboldening the Assad regime. Indeed, since these red lines were established in August, the Assad regime has shown little restraint, attacking civilian areas with indiscriminate weapons such as cluster bombs, artillery, and helicopter gunships.

The United States and its allies could regain the legal and moral high ground if they framed their red lines in terms of their responsibility to protect Syrian civilians, making it clear that this would be their primary motivation for taking military action. Given the 40,000 civilians already estimated killed by the Assad regime, CBW’s lethality, and the destabilizing impact their use would have on the Middle East, these red lines would be credible. Otherwise, the Obama administration runs the risk of continuing to conflate its fear of terrorism with a desire to protect civilians.

In the wake of Kosovo, Rwanda, Darfur, and Libya, the rules of the game have changed. The emergence of R2P signals a recognition that preventing mass atrocity crimes is fundamental to the international system. Although CBW’s lethality and indiscriminate nature gives rise to terrorism concerns, the United States should distance itself from self-interested interventions reminiscent of the Bush doctrine. Instead, any red lines in the Syrian sand should be drawn in accordance with 21st century notions of international responsibilities to protect.

Dr. Paul R. Williams is the Rebecca I. Grazier Professor of Law and International Relations at American University, and the co-founder and President of the Public International Law & Policy Group. J. Trevor Ulbrick and Jonathan Worboys are Law Fellows at the Public International Law & Policy Group.

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