by Marjorie Cohn and Jeanne Mirer
August 28, 2013
Marjorie Cohn is a professor at Thomas Jefferson School of Law, former
president of the National Lawyers Guild (NLG), and deputy secretary general
of the International Association
of Democratic Lawyers (IADL).
attorney Jeanne Mirer is president of the IADL and co-chair of the NLG’s
Both Cohn and Mirer are on the board of the
Vietnam Agent Orange Relief and Responsibility Campaign
The drums of war are beating again.
Obama administration will reportedly launch
a military strike to punish Syria’s Assad government for its alleged use of
chemical weapons. A military attack would invariably kill civilians for the
ostensible purpose of showing the Syrian government that killing civilians
“What we are talking about here is a
potential response... to this specific violation of international
norms,” declared White House press secretary Jay Carney.
But a military intervention by the United States
in Syria to punish the government would violate international law.
For the United States to threaten to and/or launch a military strike as a
reprisal is a blatant violation of
the United Nations Charter. The Charter
requires countries to settle their international disputes peacefully.
Article 2(4) makes it illegal for any country to either use force or
threaten to use force against another country. Article 2(7) prohibits
intervention in an internal or domestic dispute in another country.
The only time military force is lawful under the
Charter is when the Security Council approves it, or under Article 51, which
allows a country to defend itself if attacked.
“The use of chemical weapons within Syria is
not an armed attack on the United States,” according to Notre Dame law
professor Mary Ellen O’Connell.
The United States and the international
community have failed to take constructive steps to promote peace-making
efforts, which could have brought the crisis in Syria to an end.
The big powers instead have waged a proxy war to
give their “side” a stronger hand in future negotiations, evaluating the
situation only in terms of geopolitical concerns. The result has been to
once again demonstrate that military solutions to political and economic
problems are no solution at all.
In the meantime, the fans of enmity between
religious factions have been inflamed to such a degree that the demonization
of each by the other has created fertile ground for slaughter and excuses
for not negotiating with anyone with “blood on their hands.”
Despite U.S. claims of “little doubt that Assad used these weapons,” there
is significant doubt among the international community about which side
employed chemical weapons.
Many view the so-called 'rebels' as trying to
create a situation to provoke U.S. intervention against Assad. Indeed, in
Carla del Ponte, former international prosecutor and current UN
commissioner on Syria, concluded that opposition forces used
The use of any type of chemical weapon by any party would constitute a war
crime. Chemical weapons that kill and maim people are illegal and their use
violates the laws of war. The illegality of chemical and poisoned weapons
was first established by the
Hague regulations of 1899 and Hague Convention
It was reiterated in the Geneva Convention of 1925 and the Chemical
Rome Statute for the International Criminal
Court specifically states that employing,
“poison or poisoned weapons” and
“asphyxiating, poisonous or other gases, and all analogous liquids,
materials or devices” are war crimes, under Article 8.
The prohibition on the use of these weapons is
an international norm regardless of whether any convention has been
As these weapons do not distinguish between military combatants
and civilians, they violate the principle of distinction and the ban on
weapons which cause unnecessary suffering and death contained in the Hague
Nuremberg Principles, violations of
the laws of war are war crimes.
The self-righteousness of the United States about the alleged use of
chemical weapons by Assad is hypocritical. The United States used napalm and
employed massive amounts of chemical weapons in the form of
Agent Orange in
Vietnam, which continues to affect countless people over many generations.
Recently declassified CIA documents reveal U.S. complicity in Saddam
Hussein’s use of chemical weapons during the Iran-Iraq war,
“In contrast to today’s wrenching debate
over whether the United States should intervene to stop alleged chemical
weapons attacks by the Syrian government, the United States applied a
cold calculus three decades ago to Hussein’s widespread use of chemical
weapons against his enemies and his own people.
The Reagan administration decided that it
was better to let the attacks continue if they might turn the tide of
the war. And even if they were discovered, the CIA wagered that
international outrage and condemnation would be muted.”
In Iraq and Afghanistan, the United States used,
white phosphorous gas
Cluster bomb cannisters contain tiny bomblets,
which can spread over a vast area. Unexploded cluster bombs are frequently
picked up by children and explode, resulting in serious injury or death.
Depleted uranium (DU) weapons spread high levels of radiation over vast
areas of land. In Iraq, there has been a sharp increase in Leukemia and
birth defects, probably due to DU.
White phosphorous gas melts the skin and
burns to the bone.
The Geneva Convention Relative to the Protection of Civilian Persons in time
of War (Geneva IV) classifies “willfully causing great suffering or serious
injury to body or health” as a grave breach, which constitutes a war crime.
The use of chemical weapons, regardless of the purpose, is atrocious, no
matter the feigned justification.
A government’s use of such weapons against its
own people is particularly reprehensible. Secretary of State John Kerry
said that the purported attack by Assad’s forces,
“defies any code of
morality” and should “shock the conscience of the world.”
He went on to say that,
“there must be accountability for those who
would use the world’s most heinous weapons against the world’s most
Yet the U.S. militarily occupied over 75% of the
Puerto Rican island of Vieques for 60 years, during which time the Navy
routinely practiced with, and used,
...and other toxic chemicals and metals such as TNT and mercury.
This occurred within a couple of miles of a
civilian population that included thousands of U.S. citizens. The people of
Vieques have lived under the colonial rule of the United States now for 115
years and suffer from terminal health conditions such as elevated rates of
cancer, hypertension, respiratory and skin illnesses and kidney failure.
While Secretary Kerry calls for accountability
by the Assad government, the U.S. Navy has yet to admit, much less seek
atonement, for decades of bombing and biochemical warfare on Vieques.
The U.S. government’s moral outrage at the use of these weapons falls flat
as it refuses to take responsibility for its own violations.
President Barack Obama admitted,
“If the U.S. goes in and attacks another
country without a UN mandate and without clear evidence that can be
presented, then there are questions in terms of whether international
law supports it...”
The Obama administration is studying the 1999,
“NATO air war in Kosovo as a possible
blueprint for acting without a mandate from the United Nations,” the New
York Times reported.
But NATO’s Kosovo bombing also violated the UN
Charter as the Security Council never approved it, and it was not carried
out in self-defense.
The UN Charter does not permit the use of
military force for “humanitarian interventions.” Humanitarian concerns do
not constitute self-defense. In fact, humanitarian concerns should spur the
international community to seek peace and end the suffering, not increase
military attacks, which could endanger peace in the entire region.
Moreover, as Phyllis Bennis of the Institute for Policy Studies and
Wildman of Human Rights & Racial Justice for the Global Ministries of the
United Methodist Church wrote,
“Does anyone really believe that a military
strike on an alleged chemical weapons factory would help the Syrian
people, would save any lives, would help bring an end to this horrific
Military strikes will likely result in the
escalation of Syria’s civil war.
“Let’s be clear,” Bennis and Wildman note.
“Any U.S. military attack, cruise missiles or anything else, will not be
to protect civilians - it will mean taking sides once again in a bloody,
complicated civil war.”
Anthony Cordesman, military analyst from the
Center for Strategic and International Studies, asks,
“Can you do damage with cruise missiles?
Yes. Can you stop them from having chemical weapons capability? I would
think the answer would be no.”
The United States and its allies must refrain
from military intervention in Syria and take affirmative steps to promote a
durable ceasefire and a political solution consistent with international
If the U.S. government were truly interested in
fomenting peace and promoting accountability, it should apologize to and
compensate the victims of its own use of chemical weapons around the world.