Response to Professor Claudio Guillermo Morassutti’s comment on When Reality Trumps Legality and Morality

CLAUDIO GUILLERMO MORASSUTTI
Professor Claudio Guillermo Morassutti

Professor Claudio Guillermo Morassutti of the University of Entrepreneurial and Social Sciences in Buenos Aires, Argentina, was gracious enough to provide a lengthy and insightful comment on my post Striking Syria for using chemical weapons: legality, morality, reality. Occasionally, a comment comes along that deserves more than just a brief response. This is one of them. Because of the length and depth of Professor Morassutti’s observations and for convenience, Professor Morassutti’s comment and my response appear back to back.

Professor Morassutti’s Comment

Dear Mr. Karnavas:

Thank you for sharing your thoughts.

First of all, it was not yet established who used chemical weapons. This is a paramount issue for Jihadist groups also used chemical weapons in the past.

No matter how cruel chemical weapons are. Up till now around 400.000 persons have died in Syria and most of them were civilians with many children among them. Most fell under gun fire or artillery shells. Some were bombed from the air. The agony of an adult or child smashed by an explosion or bled to death is as terrible as to die by inhaling gas.

Certainly the United Nations (UN) cannot do much because of the Russian Veto, but that was precisely the idea of the diplomats who created the UN, i.e. an International Organization where the status of the victors of WWII would be guaranteed by the power of veto allowed to the five Permanent Members of the Security Council. The UN has no independent will and thus the interest of the superpower can not be affected by the resolutions of the Security Council. It may looks unfair but it is necessary to keep everybody on board. The United States, Britain and France benefited from this priviledge on many occasions as well.

Acording to the International Law, all foreign interventions in Syria outside those of Russia, Lebanon (the Hezbollah group) and Iran are illegal since these are allies to the legitimate government of Syria and were asked to intervene. All the other countries that participate in the war were not invited and thus their presence is illegal as well as any bombing raid. No matter how unsymphatetic Assad´s allies can be. Their presence in Syria is legal. But they are also bound by the rules of International Humanitarian Law, including those related to war crimes.

The Right of Humanitarian Intervention or the Obligation to Protect as it was called several years ago is still a contested position in International Law and a dangerous one. Though Scholars, the Media and the general public would like to think that a Humanitarian Intervention is very much like the adventures of medieval knight that rescues a princess from the cave of a dragon, the reality is much more grim. There were no military humanitarian interventions in History that also or above everything else did not have other national or personal non humanitarian interests as well. As a short list of examples let`s think of Abhazia, South Ossetia, Moldavia, Ukraine, Kosovo, Bosnia-Herzegovina, Rwanda (the French intervention to save the Hutus), Mali and so on.

The unfortunate fact is that societies produce their leaders and since most of the world do not care about human rights these leaders are usually ruthless.

A military humanitarian intervention or a substantial air campaign can be counterproductive in the Syrian war since it may produce a regional war that could also trigger a world war. In addition it will produce the death of more Syrian children.

Claudio G. Morassutti

My Response

Dear Professor Morassutti,

Your legal analysis cogently sets out the law and your observations are as measured as they are informative. We do not seem to be that far apart – though I can see that either you have misunderstood some of my points, or I may have been insufficiently clear in articulating my point of view.

Addressing your first point – that it is unknown who used the chemical weapons, since Jihadist groups (presumably fighting in this conflict) have used chemical weapons in the past – I am, at this  moment in agreement. I’ve said as much. An investigation has yet to determine the facts: what chemical weapons were used, by whom, from where, and through what means. I did not ascribe responsibility to Syria or Russia for the use of chemical weapons – precisely because the Organization for the Prohibition of Chemical Weapons (OPCW) inspectors had yet to gain access to the area. Even now that they have done so, we have yet to hear of the OPCW’s results. And even when the results become known, the OPCW is unlikely to tell us anything more than what we may already know: what types of chemical weapons were used, as opposed to who used the chemical weapons. Whether the OPCW will be able to trace the chemical weapons to a particular stockpile is another question, but even then, one cannot outright rule out the possibility that the weapons used were not stolen and used by the Syrian government or its invitees.

I posed a hypothetical question for discussing the legality of the air strikes by the US. UK and France – not for determining and ascribing responsibility to Syria and Russia – but as a point of departure for the discussion:

whether – assuming chemical weapons were used – international law permits a state or a group of states (a coalition of the willing – as the concept has come to be known) to strike the offending state absent the United Nations’ (UN) approval?  

As a criminal defense lawyer who, for the most part, has earned a living trying cases in courtrooms before juries and panels of judges, I do not think it would be immodest to claim that I have a fair understanding of how criminal cases are put together and proved in national and international courts. Granted, we are not talking about a case or a trial here, but it is through this lens that I tend to assess the evidence and draw conclusions. Reviewing, processing, and scrupulously considering the direct and circumstantial evidence from what is being reported (acknowledging that not everything reported is accurate) – and accounting for the fact that nothing is truly known until the evidence has been fully collected and objectively tested – reasonable, though not definitive, conclusions emerge.

Viewing the events from the perspective of a panel of judges at an international(ized) criminal tribunal or court, the evidence tells us (if we are to believe what is being reported in the media), that the Russian and Syrian governments made concerted (and circumstantially, coordinated) efforts to deny OPCW inspectors immediate access to the areas where chemical weapons were used and to the victims exposed to chemical attacks.

This begs the questions: if Syrian forces did not employ chemical weapons and were not behind the reported attacks, then why would there be a need for coordinated efforts by Russia and Syria to prevent a timely, comprehensive, and transparent investigation? Put differently (and forgive me if I am stating the obvious), the circumstantial evidence points to a probable (as opposed to possible) conclusion that the Russian and Syrian governments are trying to hide something. If not, simple logic tells us – especially if Syria and Russia wanted to the truth to emerge – that they would have taken an opposite approach: grant OPCW inspectors immediate and unrestricted access to the areas where chemical weapons were used and to the victims and allow them to conduct a full and transparent investigation.

But as I’ve said in my post, I am willing to suspend belief and not jump to conclusions: whether Syria – aided and abetted by Russia – used chemical weapons remains to be proved. Maybe Jihadist groups are behind this attack, despite what the direct and circumstantial evidence would have us believe. In any event, this issue was not the thrust of my post.

Now let me address some of your other points.

I agree with your analysis of Responsibility to Protect (R2P) or right of humanitarian intervention, as you see here and here. While there have been instances where states took it upon themselves to militarily intervene in situations where there was no right of self-defense per se, and no United Nations Security Council (UNSC) approval, a strict application of international norms prohibits such conduct. Here we are singing off the same hymn sheet.

As I noted, the views of “[s]cholars, politicians, diplomats, military analysts, and legal experts are all over the place” when it comes to the use of military force, or more generally: the legality of military force against another state outside the strict limitations imposed by the UN Charter for purported humanitarian or other justified reasons. This, in my view, explains why in certain instances certain permanent, members of the UNSC think they can take certain actions – depending on their situational and selective interpretation of international norms (and national interests) to achieve certain explicit or implicit goals which they deem desirable.

Libya is a good example where supposed humanitarian reasons were used as a pretext to affect regime change. Through Resolution 1973, the UNSC authorized states to “take all necessary measures … to protect civilians and civilian populated areas under threat of attack” and to establish a no-fly zone over Libya. Although the intervention was limited to humanitarian reasons, NATO forces expanded their mission, much to the consternation of Russia, China, and others, who saw this limited intervention evolving into a regime change and a naked interference with Libya’s sovereignty. (For more on this issue, see my review of Richard Haass’s A World in Disarray, discussing the consequences of such interventions).

I also agree with your analysis of how the UN was set up, its constraints, and as to who may or may not be “legally” operating in Syria. Here you place a premium on legality – as you should.

While viscerally I may find it convenient, even essential, to respond to the use of chemical weapons, especially when innocent civilians are targeted, I find no legal or “legitimate” (to borrow from the Independent International Commission on Kosovo’s Kosovo Report in in whitewashing NATO’S strikes in Kosovo) bases for the air strikes by the US, UK, and France – however one wishes to describe or justify them. I said as much when US President Barack Obama threaten to do the same when he famously claimed that he would take action were Syria to cross his proclaimed red line by using chemical weapons (see Redlines and Game Chambers – The Legality of Unilateral or Collective Force in Syria).

Using military force for humanitarian purposes (the use of chemical weapons) is just as contrary to international law as is the use of chemical weapons itself. President Obama and other US officials (regrettably) embraced widely varying, sometimes even conflicting justifications, such as degrading and deterring, self-defense, and punishment or reprisal. In the end, President Obama did nothing; i.e., he complied with international law. He was vilified for this by those who effectively subscribe to the ends-justify-the-means approach of resolving matters when strict adherence to international law gets in the way.

Finally, I agree with you that Syria and its invited foreign forces (Russian, Iranian, Lebanese, and Hezbollah-backed groups) legally operating in Syria are equally “bound by the rules of International Humanitarian Law, including those related to war crimes.” But will they ever be held to account? Most likely not. This is the perversion of international law that I was alluding to: with legality being used selectively and with morality being ignored or used as a pretext for non-humanitarian interventions, it is reality that ultimately counts. In international affairs parlance, it is referred to as realpolitik – effectively, the embodiment of using international norms flexibly, selectively, and hypocritically – but always in the name or realism and pragmatism. We do what we must because to do otherwise is not an acceptable or desirable option.

So, back to the thrust of my point in my post. Why has the international community not drawn a red line in what is going on in Syria? Half a million people have been killed, not to mention the hundreds of thousands wounded and the millions of displaced/dispossessed refugees. Yet other than speechifying, there is little effective action taken by the international community – despite the lofty international norms that supposedly exist to protect against such mass atrocities and suffering.

But then we see some horrible images in the media of the carnage associated with the use of chemical weapons (even though the number of victims pale in comparison with the overall victims associated with other atrocities that are clearly crimes against humanity and war crimes) and suddenly some leaders of some states grow a conscience and feel the urgency to do something – however useless and fleeting. International norms be damned. Since chemical weapons were used, it is justifiable to conduct retaliatory strikes or to strike for the sake of sending a message, or to give a bloody nose, or out of a duty to protect for humanitarian reasons (R2P).

The US, UK, and France reacted not on the basis of international law, but simply because they can – with impunity. And just as cynically, Syria and Russia have invoked international law – all while denying OPCW inspectors access to areas where chemical weapons were used and to the victims. Syria’s and Russia’s actions too are not based in international law, but because they can – with impunity.

So, legal theory aside, my take (for what it’s worth) is that reality trumps legality (and morality), and not just when it comes to Syria. If there are any lessons to learn from the occasional retaliatory strikes against the Syrian government for the use of chemical weapons (proved or otherwise), it is that the international community is willing to tolerate mass atrocities so long as conventional weapons are used. But if chemical weapons are used, then feel-good tepid pin-prick strikes for ephemeral public consumption will result, followed by vacuous pomp and ceremony on the virtues of adhering to international norms. And then it’s back to business as usual: unabated usage of conventional weapons for committing more crimes against humanity and war crimes. Realpolitik.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

2 thoughts on “Response to Professor Claudio Guillermo Morassutti’s comment on When Reality Trumps Legality and Morality”

  1. As the author of the authoritative textbook ‘The Law of War’ (1st & 2nd Eds by CUP; 3rd ed by Ashgate), I must agree with our Argentinian colleague, Prof Morassutti. Intervention only brings further misery & I am astonished that it is not recognised that civilians, especially Christians, were better off under Saddam Hussein, Ghadaffi, Mubarak and even Assad.

    I pleaded in the EU in February 2012 that sending weapons to the ‘rebels’ would inevitably escalate the war as these ‘rebels’ were not even a unified body but heavily infiltrated by Al-Qaeda & ISIS. No one listened.

    I took part in the negotiations of the Chemical Weapons Convention in 1986 & I now realise the value of the knowledge I acquired. Many now appear to assume that CWs can be easily identified and that these weapons involved intricate production facilities. Mr Karnavas, who has spoilt us with the impressive quality of his excellent blogs, suggests that the CWs could have been ‘stolen’ : but CWs are terrifyingly easy to produce. There is no need for a sinister party to ‘steal’.

    But as an expert in international criminal law, Mr Karnavas must accept that for any attribution of guilt there must be a high level of proof.

    In my ‘Philosophy of the Law of Nations’, published this week, (Montesa Jagellonica & Ordo Iuris), I suggest that the predominant rule in international society must be the ‘prohibition of harm’. On that score, we should perhaps let all politicians, both those invited, and those who resorted to what I call ‘patronising intervention’, reflect on that principle before there is even further suffering.

    Prof Ingrid Detter de Frankopan
    St Antony’s College Oxford & The Academy of War Studies in Verrey, France
    Frankopan@aol.com

  2. Dear Mr. Karnavas:
    I have just read your comments to my post, which I appreciate very much.
    Now that the war in Syria is reaching a new climax and more chemical attacks are expected and warnings have already being issued, I would like to add to my previous comments and somehow in response to your own, that in spite of the fact that the Syrian war is an international civil war in the middle of a major geopolitical conflict, where the Syrian Dictator plays a crucial part, I don´t think that Assad and his cronies can rest assured that they will not be prosecuted in the future.
    Right now, Assad is about to regain almost all the territory he lost but his country is in shambles and his position depends on Russia and Iran, which also distrust one each other and have different geopolitical goals. According to the principle of Universal Criminal Jurisdiction a foreign country may initiate criminal proceedings against any official responsible of war crimes. Even though Assad is protected somehow by the International Court of Justice doctrine expressed in the “Arrest Warrant Case – Democratic Republic of Congo vs Kingdom of Belgium” of 2002 https://www.icj-cij.org/en/case/121, he may looses power when he no longer serves his masters and may be he will end in jail in Syria or abroad.
    I observed that many international lawyers and academics seem to forget that International Criminal Law is also an instrument of International Politics, and as such, no war criminal enjoys immunity once he looses power or when he becomes a nuisance. Al Bashir, Milosevic,Taylor, Videla (former dictator President of Argentina) show us that justice may be served in the future not only because certain international norms are ius cogens but because it is politically convenient.
    Of course this will not save the victims of war crimes, but it is difficult to predict with utmost accuracy whether an international intervention or a bombing campaign could produce more or less collateral victims.
    This relatively novel fact reinforce in my view the necessity and convenience to restrict the use of force in international relations.
    I would add that I couldn´t agree more with Professor Detter de Frankopan.
    Yours very sincerely

    CLAUDIO GUILLERMO MORASSUTTI

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