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Stanford Scholars Examine Outcome Of Military Strike Against Syria

Publication Date: 
August 29, 2013
Source: 
Stanford University News
Author: 
Beth Duff-Brown

Senior Lecturer Allen Weiner joins several other Stanford scholars to discuss the implications of military action against Syria in this Q&A.

The Obama administration says there is no doubt that Syrian President Bashar al-Assad was responsible for a recent chemical weapons attack near Damascus, which Syrian opposition forces and human rights groups allege killed hundreds of civilians.

Secretary of State John Kerry called the attack a "moral obscenity" and the White House has vowed to respond – though the question of how is still being debated.

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As the United States weighs its options and rallies its allies for a possible military strike, Stanford scholars examine the intelligence and discuss the implications of military action against Syria. Those scholars are:

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•Allen Weiner, a CISAC affiliated faculty member and co-director of the Stanford Program in International Law at Stanford Law School

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If it's confirmed that Syria did use chemical weapons against its own people, is this a violation of the Geneva or Chemical Weapons Conventions?

Weiner: A chemical weapons attack of the kind that's been described in the media certainly violates the laws of war. Syria, as it happens, is one of only a few countries in the world that is not a party to the Chemical Weapons Convention. Nevertheless, the prohibition on the use of chemical weapons in warfare is a longstanding rule. It is reflected in both the 1907 Hague Convention regulating the conduct of war and the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. (Syria is a party to the 1925 Convention.) The use of a weapon like this also violates the prohibition in the 1977 Geneva Protocols and customary international law on indiscriminate attacks that are incapable of distinguishing between permissible military targets, on the one hand, and the prohibited targeting of civilians and civilian objects, on the other.

If Damascus has violated the conventions, are there non-military actions that can be taken?

Weiner: The illegal use of chemical weapons is a violation of a jus cogens norm, i.e., a duty owed to all states, which means states would have the right to respond to the breach. Such an attack would presumably be a basis for the unilateral imposition of sanctions or severance of relations with Syria. There's an open question under international law whether states not directly injured by Syria's actions could take "countermeasures" that would otherwise be illegal as a way of responding to Syria's illegal action. Under a traditional reading of international law, a violation like this does not give rise to the right by other states to use force against Syria absent an authorization under Chapter VII of the U.N. Charter by the Security Council.

Are there legal means for Washington to bypass the Security Council, knowing that Russia and China would veto any call to action against Syria?

Weiner: Under the U.N. Charter, a state may use force against another state without Security Council authorization only if it is the victim of an armed attack. Most commentators believe this has been expanded to include the right to use force against an imminent threat of attack. But under the prevailing reading of the U.N. Charter, a mere "threat" to U.S. national security would not provide a justification for the use of force.

But the Obama administration is arguing that Assad's actions pose a direct threat to U.S. national security?

Weiner: Some international lawyers – but not very many – argue that there is a right of humanitarian intervention under international law that would permit states to use force even without Security Council approval to stop widespread atrocities against its own population. But this remains a contested position, and most states, including the United States, have not to date embraced a legal right of humanitarian intervention.

What are some recent precedents in which the U.S. intervened militarily?

Weiner: The situation in Syria is not unlike the one faced in Kosovo in 1999, when a U.S.-led coalition did use force to stop atrocities that the Milosevic regime was committing against Kosovar Albanians. As part of its justification for the use of force, the United States cited the ongoing humanitarian crisis and the growing security threat to the region. What's interesting is that the U.S. was careful to characterize its use of force in Kosovo as "legitimate," rather than "legal." I am among those observers who think that choice of words was intentional, and that the U.S. during the Kosovo campaign advanced a moral and political justification for a use of force that it recognized was technically unlawful.