Evidence, International Law and Intervention

There appears to be a new ‘standard of proof’ among western politicians based round the principle of asserting something is the case and then later finding the evidence that sustains the case.  Yet, the only thing about the chemical attack a week ago that is clear is that an attack occurred and large numbers of people died.  What is not is who was responsible.  The balance of probability points to the Assad regime—it has the necessary resources and means of delivery and the attack took place in an area controlled by rebel forces—but in matters where the West is inclined to intervene I think that we need to apply the principle of ‘beyond all reasonable doubt’ not the lesser burden of proof.  Given that the policy of the Western allies towards Syria over the past year has been one of procrastination, allowing weapons inspectors time to collect the necessary evidence and establishing who was responsible for the attack before intervening would be a better solution than the current gung-ho approach.  There have been chemical attacks before (though not on this scale) and there have been atrocities on both sides, ‘red lines’ have been crossed in the past but, apart from strong words, the West has continued its attempts to find a political and diplomatic solution.  Western intervention may well make a bad situation worse.  Intervention in Iraq, though no one is talking about boots on the ground in Syria, makes that point  and if Tony Blair, the Middle East ‘peace envoy’ is in favour of intervention then I think that we should be very careful.

So, without definitive proof that the Assad regime perpetrated the atrocity, would military intervention be legal?  In the absence of an international court that can give a definitive ruling on the legality or otherwise of intervention, the West appears to be relying on the developing notion of ‘responsibility to protect’ that emerged out of the humanitarian disasters in Kosovo and Rwanda in the 1990s.  The idea is widely though not universally accepted and has three parts:

• States must protect their own populations from genocide, war crimes and crimes against humanity, while, simultaneously, the international community has an obligation to help states prevent such crimes.
• Where there is strong evidence of these crimes and a state cannot or will not stop them, the international community should exhaust all peaceful means in seeking to bring the atrocity to an end.
• If all that is done, and fails, the international community can use military force.  The force deployed would be limited and specifically targeted at stopping further atrocities.

If all these criteria are met, then the use of military force would, some lawyers argue, be legal in international law.  To have real legitimacy, military intervention should be authorised by the United Nations Security Council, the primary arbiter in the use of force in international law. Given Russia’s and China’s support for the Assad regime, this is an unlikely scenario. The critical question is whether the second of these elements has been met: have all peaceful means been exhausted?  Given that Syria’s divisions can only be resolved by a peaceful political solution, this is doubtful and in that respect the legal case for intervention is far from conclusive.  Whether the ‘responsibility to protect’ covers a punitive strike to punish the regime for using chemical weapons is also doubtful.

The Middle East has long been a tinder-box and the history of western intervention is hardly one of unmitigated success.  Take, for instance, the initial success of military intervention in Iraq followed by the failure to have a longer-term plan for dealing with the aftermath of regime change.  The West’s solution appears to be that introducing democracy will resolve the problem.  Wrong.  What the introduction of democratic institutions in countries without a democratic tradition does it to exacerbate divisions that had previously been held in check by strong dictatorial leadership—the tyranny of the majority replaces the tyranny of the individual.  We seem to forget that western democracy did not emerge as a refined system but was deeply contested over many decades and yet we appear to think that it will immediately put down deep roots in societies where strong leadership has been the norm. 

Statements that intervention will demonstrate ‘the West’s resolve not to allow the use of chemical weapons’ or ‘intervention is a test for Europe’ neglect the law of unintended consequences. 

• If missile strikes (the most likely option for intervention) occur and further atrocities take place, what options are then open to the West?  Further strikes?  Physical intervention?  If so, who among the fragmented Syrian opposition is the intervention in favour of?  One of the problems with military intervention is that if it fails to achieve its objectives (and it is far from clear what the objectives in Syria are other than protecting civilians), what happens next?
• Intervention will inevitably lead to increased tension between the ‘alliance of the willing’ and Russia and China.  It will make finding an agreed solution more not less likely.
• Israel will be made more vulnerable to attack from Syria (something already stated) and bring it into a conflict that it has largely stood outside.  If Israel then attacked Syria, what would Iran’s response be?   Active intervention by Israel could unite Arab nations.

There is little appetite among public opinion in the West for further military ‘adventures’ in the Middle East.  Doing nothing (though the West has a long history of doing this) may no longer be an option but military intervention is not the answer.  The solution to Syria’s problems lies not in inflaming matters by intervention but in finding common ground with Russia, China and Iran that could form the basis for a peaceful solution.