Follow him on Twitter: @najtaylor
Allegations that chemical weapons have been deployed against civilians in Syria are troublesome and, if true, are abhorrent. But what facts have been established? What details are as yet unknown? And are calls for some form of military intervention warranted in the current situation?
These are the questions that should and must be asked. But already the ground has been cleared such that speculation - on all sides - has become fact, and expert opinion derided as pure fantasy. There's a need to look more closely at these truth claims so as to reveal something altogether more meaningful.
The facts, as I see them, are these: First, the nature of what occurred on August 21, and the veracity of the various claims, are hotly contested; second, of what has thus far been said, few have the evidence or specialist knowledge at their disposal; and third, for their part, the UN inspectors and staff at the Organisation for the Prohibition of Chemical Weapons labs will not make their findings public, and are neither in a position nor tasked with identifying those responsible.
Yet the call for reprisals against "those responsible" has indeed been swift and strong. Frustrated with the Russian and Chinese veto in the UN Security Council, and at odds with the UN Secretary General's evocation of a possible "crime against humanity", ambassador Susan Rice resorted to tweeting an actual impossibility: "The Syrian government must allow the UN access to the attack site to investigate. Those responsible will be held accountable." [Italics mine]
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More worryingly still, the UN special advisors on the Prevention of Genocide and the Responsibility to Protect echoed this sentiment last Friday in their joint statement to the media: "The alleged use of chemical weapons in Syria is yet another example of the crimes taking place in the country. All these crimes must be investigated immediately, and those responsible for committing them held to account, as an integral part of a peaceful and sustainable political solution to the disastrous conflict in Syria." [Italics mine]
As I pointed out at the time Obama drew his "red line", while condemnation for the use of chemical weapons is to be expected, reprisals would require evidence of who did it - to date, nothing of what has been said has been based on a verified, independent, expert assessment of the evidence. No chemical weapons specialists have said: "This is precisely what substance/s were used, and this is who definitely deployed them." Not one. Nor, in fact, have any governments.
Rather, the UK's legal case fell down, in part because of a heavy reliance on "intelligence reports plus diplomatic and open sources", which did attempt to bridge the gap between what was known through evidence and what was merely presumed. In the US, the government's assessment has received a mixed response, even from those in support of some form of reprisal.
The importance of attribution
Without attribution, "those responsible" can actually never be truly "held to account". There are technical, practical, legal and political reasons for this seemingly suboptimal outcome.
Technical constraints on the UN inspections include not only the procurement of evidence, witness accounts and testimony - from medics, for example - but also the limitations of an interagency process that requires testing in multiple facilities over the course of several days.
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Practical constraints include the inescapable problem that Syria is an active war zone, and UN inspectors must prioritise both their own personal safety and their mission's integrity. Ensuring the adherence to protocols, including the proper handling of evidence and selection of witnesses, will not be easy during the course of any conflict, whether Assad and the rebels comply or not. No one outside of the select few negotiators, likely not even the UN inspectors themselves, are aware of what evidence has been supplied by Assad's regime, the rebels, or external actors such as Russia, France, the UK, US and Israel.
The Assad government's legal obligations are complex, and not altogether as strong or rigid as commonly supposed. Syria is not a state party to the international convention banning the use of chemical weapons, though it is party to the 1925 Geneva Convention. Assad is under no legal obligation to facilitate inspections of Syria's sovereign territory, despite assertions to the contrary based on customary international law. In fact, it was Assad who agreed to the inspections currently underway under the remit of the UN Secretary General - five months before the reported strikes. To be sure, there are limitations to the scope and nature of that inquiry, in part set by Assad, and in part because of the technical and practical constraints outlined above.
Simply put, verification will be difficult, and the danger remains that with no attribution expected, assumptions will be acted upon. We enter the realm of the political.
The political response to the incident was discernible across the sphere of governments, international organisations, epistemic communities, and civil society. Their claims might usefully be clustered into one of three categories: (1) the hawks, who advocate for use of force, whether through the UN Security Council or unilaterally; (2) the duty bound, who appear to be driven by either a repulsion of chemical weapons in general, or are beholden to positive duties to assist those in harm's way in particular; and (3) the sceptics, who canvass those who have relevant and specialist expertise in chemical weapons, and those who are (rightfully or wrongly) sceptical of all claims by government intelligence agencies. (For a fuller discussion of these various positions, see an earlier, longer version of this essay on the Iraq War Inquiry website).
Whither the 'expert' opinion?
In such a climate, the expert opinions of those who have the requisite knowledge about chemical weapons and their effects are drowned out. As one chemical weapons specialist sees it:
"Instant judgement does not equal instant justice. It merely satisfies other hidden desires: the dark gratification of being able to Saddam-ise yet another political leader, the clamouring for policy objectives that have little to do with the chemical attacks as such, the uncontrollable eagerness to impart wisdom by a fast growing class of blabberati, the need to simplify complex realities for a tweeting global audience, or whatever. Unfortunately, these calls reveal more about the person's ignorance of both the purpose and process of the investigation than the desire to know the truth (and nothing but the truth)."
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The sort of evidence sought is more basic than what might be otherwise supposed - and obligates the co-accusers as much as it does Assad. For instance, as recently as June 2013 the noted chemical weapons specialist J Perry Robinson issued a lengthy advisory opinion, which concluded that:
"Whether the many allegations of Syrian poison-gas warfare are or are not true cannot reasonably be judged on the evidence currently in the public domain… [Furthermore] the several governments which have explicitly accused the Syrian regime of using sarin nerve-gas against the rebels seem to be withholding evidence that, if disclosed, might make their charges more believable than they are. The gap in disclosure is not so much intelligence from sensitive sources or methods but is instead straightforward description for scientific audiences of the procedures that have been used for analysing physiological and environmental samples. The second conclusion is that, if the allegations are true, Syria is engaged in a form of chemical warfare whose purpose and therefore methods (small scale, pinpoint targeting, disabling) are at variance with [both historical experience and the scope of the relevant codified norms]."
The problem the world's states and people face today is gravely serious: Does the most basic of human duties to do no harm extend to using force to protect others in harm's way? If it does, then there must first be reliable and verified evidence, a humanitarian (as opposed to political) motive, an otherwise genuine commitment to seeking a peaceful settlement, a high chance of success given a proportionate use of force, and a strict adherence to international law. The technical, practical, legal and political obstacles I have briefly outlined above must be navigated, not usurped.
Simply put, to break codified international law in order to preserve what is said to be customary international law is a wholly insufficient case for a just war.
N.A.J. Taylor is an honorary research fellow at La Trobe University's Centre for Dialogue, and a doctoral researcher in the School of Political Science and International Studies at the University of Queensland.
Follow him on Twitter: @najtaylor
Source: Al Jazeera