By Louis René Beres
“Where there were great military actions, there lies whitening now the jawbone of an ass.” – Saint-John Perse (French poet, 1887-1975)
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More than likely, the recent allied strikes against Syrian chemical weapons-related targets are not the end of the story. It follows that careful charting of follow-on military moves by the United States (and, plausibly, also the United Kingdom and France) must define the next overriding concern. In this context, the hierarchy of US concerns should remain unambiguous. Above all else, the US must avoid any direct encounters with Russian military forces.
Once again, significant “collision” risks between the US and Russia remain in the form of (1) Russian soldiers who might soon be deployed by Vladimir Putin as a deterrence-enhancing “trip wire”; and (2) Russia’s already deployed S400 advanced surface-to-air missile batteries. Regarding the second risk factor, Mr. Putin has recently threatened to substantially enlarge his S400 deployments in Syria.
But there are other concerns. The necessary “hierarchy” should also include certain secondary factors, less existential in their immediate import, but nonetheless potentially worrisome. Most urgent, in this subsidiary regard, must be the anticipated and unanticipated expressions of Syrian “perfidy.”
For the most part, the particular war crime being referenced here is the use of “human shields.”
In purely legal terms, the pertinent issues are straightforward. On existing prohibitions of this crime there are few distracting ambiguities. Multiple sources of authoritative international law already clearly prohibit perfidy in war — typically, behaviors that involve moving military equipment and/or personnel into crowded civilian areas, or transferring selected noncombatants into designated military sites. The most comprehensive and discernible source is Protocol I Additional to the Geneva Conventions of August 12, 1949, especially Article 37 (“Prohibition of Perfidy”).
Here, among other things, the rule is made explicit that any belligerent attempts to intentionally enlarge non-combatant risks (presumably, in order to better deter or counter enemy attacks) must represent crimes of war and possibly represent crimes against humanity.
There is more. Ordinary “ruses of war” are not prohibited by these rules contra perfidy, but any attempts to gain military advantage by manipulating protected populations are illegal on their face.
On several previous occasions, Bashar al-Assad deliberately moved military equipment and personnel into Syrian cities, and also placed selected regime prisoners within obvious military sites. If Assad should adhere once again to such expressly perfidious postures, US President Donald Trump and his allies could then confront another “secondary” yet distinctly compelling reason for caution.
At that very sensitive stage, all collaborating allies would need to factor perfidy into an already volatile risk amalgam, together with superpower military engagement. Moreover, with any such unprecedented combination of intersecting risks, the whole of attendant peril could quickly become much greater than the simple sum of its “parts.” The devilishly complex relationship between any heightened risks of a superpower nuclear war and Syrian perfidy (crimes of war which might then be aided by Russia and/or Iran) would then become synergistic.
Any upcoming Syrian resort to perfidy would likely have at least two underlying but overlapping functions: (1) to deter expected US/allied air strikes against vulnerable regime targets; and (2) to create tangible post-attack “evidence” of seeming “American aggression.”
In world politics, perfidy is never a “petty crime.” Any appraisal of Syrian non-combatant harm caused by a Western or American response to Damascus-regime war crimes (e.g., chemical weapons attacks on civilians) would have to include very precise considerations of perfidy. And a net effect of perfidy committed by Assad should be to immunize the United States and its allies from any related legal responsibilities. This means, in essence, that even if American bombs unintentionally kill or maim Syrian non-combatants because of Syrian-regime perfidy, the US and allies would bear no corollary legal burdens for producing these tangible harms.
Nonetheless, in any such highly politicized circumstances, capable enemy “marketing” efforts and propaganda could then plausibly supersede all relevant international law and blame the US for this harm.
Whatever its underlying lawfulness, once any future American/allied resort to force had generated substantial and observable Syrian civilian casualties, the graphic power of YouTube and other social networking sites might rapidly take precedence over any proper jurisprudence. Looking ahead, therefore, President Trump should prepare not only for the judicial judgments of ordinary courts, but also for potentially damaging assessments in the myriad “courts” of world public opinion. These untrained and inexpert sorts of layperson assessments could prove most weighty of all.
At the outset, Trump is correct in asserting that the United States has firm and continuing legal rights to act in Syria on behalf of Assad’s aggrieved populations. To be sure, any intentional national use of chemical weapons against civilian populations remains a widely codified and customary criminal act, one that warrants intervention and punishment under the fundamental Nuremberg Principles (1950) precept of Nullum crimen sine poena: “No crime without a punishment.”
Today, it is no longer even debatable that crimes of war and/or crimes against humanity are appropriate matters of “international concern,” not merely ones of “domestic jurisdiction.”
One other thing: The American president’s prospective core legal argument would be strengthened by the (still largely inconspicuous) fact that international law is an integral part of the law of the United States, and is therefore expressly binding upon him and his subordinates as derivative domestic law.
The incontestable “incorporation” of international law into US domestic law is drawn primarily from Article 6 of the United States Constitution, the “Supremacy Clause,” and also from several US Supreme Court decisions, especially the Pacquete Habana (1900) and Tel-Oren vs. Libyan Arab Republic (1984).
In the end, of course, the major policy-centered issues being considered here are not preeminently legal ones. Instead, what will matter most to the US and its allies will be strategic and geopolitical results. At this time, it is reasonable and prudent to expect that any such untidy results could sometime include a perilously wider war, a broadened belligerency involving (1) measurably enlarged jihadist terror attacks against the United States and its allies; (2) tangibly rapid expansions of Iranian nuclear weapons-related activities; and/or, most conspicuously worrisome of all, (3) direct military engagements between US/allied and Russian military forces.
In the worst case scenario, such fearful engagements could produce reciprocal nuclear attacks. Following the French poet Saint-John Perse, our inheritors would then be handed only bleached bones as mementos. We owe these “heirs” much better than that.
Meaningfully, the calculable costs of all variously corrosive outcomes could be as severe or even more severe than the original Syrian crimes of war and crimes against humanity. Ironically, these very considerable human costs could include US-inflicted Syrian civilian casualties, a grievous result that President Trump should carefully factor into any of his projected war-planning scenarios. While all such US-inflicted collateral harms would actually be generated by the Assad regime’s perfidious behaviors – and would thus become the legal responsibility of Damascus rather than Washington, London, or Paris – any graphic images of slaughtered Syrian women and children would still reinforce Syrian (possibly also Russian and Iranian) allegations of “American aggression.”
In the final analysis, such allegations, while plainly less tangibly injurious than a nuclear conflict, would still be sorely destabilizing, and bode ill for America’s overall stance in world affairs.
President Trump should not avoid launching correctly discriminate and proportionate law-enforcing strikes against Syrian military targets solely for fear of appearing cruel and unmerciful. Instead, where these prospectively law-enforcing American strikes have been appropriately targeted, he should publicly disclose and explain that any collateral civilian harms from these actions have actually been the result of Damascus regime perfidy. To do otherwise — to fail to act on behalf of a generally self-help system of international law in such circumstances — would be to abdicate a major world power’s historic responsibilities.
Among other things, these core responsibilities mandate predictable and suitably vigorous “great power” actions against potentially ongoing crimes of war and crimes against humanity.
In our continuously decentralized system of international law, a still-anarchic system originally bequeathed at the Peace of Westphalia in 1648, these basic or “peremptory” responsibilities invariably obtain “beyond any reasonable doubt.” Always, however, they must be duly satisfied without taking any undue risks of triggering a superpower nuclear war. To calculate otherwise could produce genuinely measureless lamentations.
Louis René Beres is professor emeritus of political science at Purdue University. Beres is the author of twelve books including, “Surviving Amid Chaos: Israel’s Nuclear Strategy,” which was published in 2016 by Rowman & Littlefield. His lectures and research focus on international relations, terrorism, and international law.