Syria and the Obligation to Protect

Protestors in Damascus, Syria, February 2011. (AP)

Syria’s efficient slaughter of its own people seeking political change is another grim reminder of the impotence the global community brandishes when it must. I am less cynical than others, but I see international legal norms for what they are: a fundamentally political mechanism wrapped in the legitimizing rhetoric of high law. Stronger action could have been taken against Syria but for the veto of Russia and (surprisingly) China in the U.N. Security Council. The Security Council is not a court; it is a political body. Nonetheless, this is the legal imprimatur required for collective action in the community of nations, so now we stand aside as al-Assad butchers his opposition.

These same legal norms were brandished to label the invasion of Iraq “illegal” just as a convenient historic forgetting took place about the “illegality” of NATO’s intervention in Kosovo.  In our laudable attempts to find a comprehensive legal means to limit warfare, we have only created institutions to debate and (de)legitimize conflict.  As a result, these institutions have “legalized” political decision-making in the U.N. and “politicized” international courts.  How else to describe the request imposed by the European Union on Serbia and Croatia deliver indicted war criminals to The Hague in exchange for further talks on EU membership?  Why else is NATO allowed to defend Libyan citizens but Syrians are abandoned like prey to their own army?  Law is like standards applied to like examples; neither has been applied in the cases of the UN or the EU.

As a graduate student I wrote about humanitarian intervention, as it was then called, in the wake of Rwanda. I read Michael Walzer’s inestimable Just and Unjust Wars and took exception with one chapter about the the justice of military interventions in the case of genocide and other extreme cases of crimes against humanity. He had ignored the Genocide Convention, which allows intervention in these cases. My argument expanded the right to intervene to oblige states to intervene. (I was pleased to see my argument was essentially assumed by the “Responsibility to Protect” (R2P) Project sponsored by the Canadian Government in 2001, although I can’t find any evidence that my essay influenced the drafters.) My argument was essentially a moral one: it is impossible to argue on the face of things that something as arbitrary as state sovereignty protects a government against intervention when it commits extraordinary crimes against the population. A domestic legal analogy is the murder undertaken on private property or behind closed doors — the right to privacy or private property becomes a legal fiction under the weight of the crime.

If intervention is an essentially moral issue then it is also political, and we can and should ignore the legal trappings that ensnare these issues at the international level.  By discussing intervention as a purely political issue we can be more honest about the outcomes but also more creative in our approach. We can address the real complexities and challenges that face us in the reality of a country like Syria — neighbors Turkey, Israel, Lebanon, Iraq and Jordan, proxy Iran; the myriad ethnic, religious and linguistic minorities in Syria and throughout the region. But we can above all help the Syrians who are demanding at great risk release from the tyranny of a sclerotic regime so desperate for control they will destroy the country to retain it.