We have justified and defended the actions of NSA “leaker” Edward Snowden on the basis that what he did was a matter of conscience and principle, morally and ethically right — albeit illegal.
Now that the New York Times has been able to shake off the lengthy on-line attack — most likely by Syrian Electronic Army hackers — I have been able to start reading the Times columns again and was intrigued to read one column by Ian Hurd, “shockingly” titled “Bomb Syria, Even if It Is Illegal.”
Hurd’s eyebrow-raising column starts as follows:
The latest atrocities in the Syrian civil war, which has killed more than 100,000 people, demand an urgent response to deter further massacres and to punish President Bashar al-Assad. But there is widespread confusion over the legal basis for the use of force in these terrible circumstances. As a legal matter, the Syrian government’s use of chemical weapons does not automatically justify armed intervention by the United States.
Hurd claims that since there are “moral reasons for disregarding the law,” Obama should intervene in Syria without pretending that there is a legal justification in existing law. “Secretary of State John Kerry seemed to do just that on Monday, when he said of the use of chemical weapons, ‘This international norm cannot be violated without consequences.’ His use of the word ‘norm,’ instead of ‘law,’ is telling,” Hurd says.
Some of Hurd’s underlying reasoning for his thesis arises from the arguments that:
‘Syria is a party to neither the Biological Weapons Convention of 1972 nor the Chemical Weapons Convention of 1993, and even if it were, the treaties rely on the United Nations Security Council to enforce them.’
‘Although Syria is a party to the Geneva Protocol, a 1925 treaty that bans the use of toxic gases in wars, this treaty was designed after World War I with international war in mind, not internal conflicts.’
‘Treaties aside, while some acts —genocide, slavery and piracy — are considered unlawful regardless of treaties, chemical weapons are not yet in this category.’ ‘
Hurd also mentions:
Arguably, the key legal obligation of nations in the post-1945 world is adherence to the United Nations Charter. It demands that states refrain “from the threat or use of force against the territorial integrity or political independence of any state.” The use of force is permitted when authorized by the Security Council or for self-defense (and countries like Jordan and Turkey are considering this route to justify joining an anti-Assad coalition) — but not purely on humanitarian grounds.
Hurd maintains that while the Assad regime has violated humanitarian principles throughout the two-year-old war, including the prohibition on the indiscriminate killing of civilians, even in non-international conflicts, set out in 1949 in the Geneva Conventions, such conventions don’t mean much unless the Security Council agrees to act and rightly suggests, “It is an indictment of the current state of international law that there is no universally recognized basis to intervene.”
Hurd gives as examples that “ethics, not only laws, should guide policy decisions,” the Rwandan genocide, Cambodia and the Balkan mass killings of the 1990s and concludes that the United States cannot have it both ways, that “It must either argue that an ‘illegal but legitimate’ intervention is better than doing nothing, or assert that international law has changed…” — strategies that [Hurd calls] ‘constructive noncompliance.’
In the case of Syria, Hurd votes for the latter:
Since Russia and China won’t help, Mr. Obama and allied leaders should declare that international law has evolved and that they don’t need Security Council approval to intervene in Syria.
I tend to agree.
Controversial? Perhaps. Thought provoking? Certainly. Read the full story here
“When innocent life is being taken on such a scale and the United States has the power to stop the killing at reasonable risk, it has a duty to act.” – Samantha Power, US Ambassador to the United Nations.
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