Crisis in Syria: Humanitarian Intervention in Syria in International Law, Moral Responsibility & the Distortions of Geopolitical and Technological Moral Hazard

Crisis in Syria:  Humanitarian Intervention in Syria in  International Law,  Moral Responsibility & the Distortions of Geopolitical and Technological Moral Hazard

American Aircraft Carrier Readies for Action

American Aircraft Carrier Readies for Action

 

#MoralHazard, #GeopoliticalMoralHazard, #SuperpowerMoralHazard,#IsraeliMoralHazard, #TechMoralHazard, #SyriaCrisis

 

 

 

By: Robert Sheppard,

Professor of International Law

 

The recent confrontational crisis in Syria sparked by the use of banned Chemical Weapons, most likely Sarin Nerve Gas upon civilian and paramilitary groups during the Syrian Civil War presents an entangled dilemma for all actors in the drama, most notably the United States as it contemplates punitive military action against the Syrian Assad regime. President Obama first announced an impending military strike against Syrian targets as a sanction against the use of chemical and nerve gas citing the doctrine of “humanitarian intervention,” then following the rejection of his proposed action by the British Parliament, delayed the impending action to allow for further investigation, discussion amoungst allies and opportunity for the US Congress to give prior authorization to the proposed punitive missile and air strikes. Consequently, this issue has become a matter of intense public debate to which every citizen has an obligation to contribute according to their ability, and thus this article is offered as part of this debate, to the best of the author’s ability as a concerned American citizen, Professor of International Law and as a “citizen of the world” as well as observer of international affairs.

In this regard I write in some respects with a sense of “deja vous” as in 2003 before the invasion of Iraq and during the UN proceedings on the matter of alleged “weapons of mass destruction” of the Saddam Hussein regime I wrote an open letter to then President Bush advising against the intervention on the grounds of its illegality under international law without authorization by the Security Council and on my estimate of the likely long-term quagmire, unsuccessful result in terms of either democracy or peace, predictable negative and risk-generative counter-reactions, and the likely misdirection and wastage of national resources in such an undertaking which was not closely related to America’s core national interests and most likely contemplated for the benefits of special interests, including the oil lobby, the Israel lobby and the “military-industrial complex” which President Eisenhower warned us against in his farewell address to the nation. In the light of history I believe fairly that I was proved right and President Bush wrong in that instance.

In the Iraq invasion of 2003 as well the contemplated action against the Assad regime, my reluctance to approve the precipitous military action did not and does not arise from any sympathy with the target regime. I detested the Saddam regime as a brutal and repressive dictatorship and enemy of its own people that any freedom-loving person would be happy to see removed, provided it could be replaced with something better. I have no better view of the Assad regime. In the case of Libya I both detested the Qadaffi regime and supported the efforts that resulted in its overthrow, on the differentiated ground of its United Nations authorization and a greater likelihood of a favorable outcome.  The world is both a dangerous and complex place, and I would neither endorse a knee-jerk automatic rejection of military or non-military action from a narrow-minded isolationist or “Anti-American” leftist perspective nor automatically endorse such action from a nationalist or patriotic perspective. I served in the American armed forces in a US Army Military Police Brigade in its legal Judge Advocate General section concerned with International Law in times of armed conflict, and am a father of three children whose future will be affected by these issues of war and peace.  I supported President Obama in his election and re-election. While I have been often critical of the misdirection of American foreign policy, often distorted by special interest groups and self-centered elites, I hope that it has been out of concern for the best interests of the American people and the peoples of the world and in light of the realities of the world rather than from unthinking ideological, prejudiced, simplistic or emotionalist reactions.

The Crisis in Syria cannot be seen only as a limited question of the wrongful use of Chemical Weapons and how the international community including America should respond in humanitarian concern to that occurrence, assuming its factuality, but must be seen and judged in its wider context, history, geopolitical implications and inextricably entwined long-term consequences. It is not a question of deciding on an appropriate response to a single harmful incident only, but rather of seeking a more enlightened broader policy that will better alter the overall context of that incident which set the stage for its coming about.  Before we attempt to decide the appropriate response to the assumed use of Chemical Weapons in Syria we need to step back and rethink the overall involvement of the American people and its military and political forces in the region as a whole and how any such action will affect that involvement. Furthermore, as repeatedly proven in innumerable Security Council Resolutions, the black letter of the resolution or Congressional authorization thereof is very often a “thin entering wedge” whose scope is very often expanded in accordance with the “hidden agendas” of the principal actors and special interest groups promoting them, of which the resolution itself proves a minimalist window-dressing, and therefore must be approached with caution.

I am not an isolationist, like some of the extreme Tea-Party activists or extreme left-isolationists, because I believe the world, its economy and its geopolitical balance of power is inextricably a globalized reality in which we must unavoidably live and survive. To the contrary, I am and remain a confirmed internationalist, and  a “Realpolitik Realist” though not to the exclusion of a measured dimension of the competing “Idealist” Foreign Policy School affirming the values of global democracy and human rights. To ignore the “Realpolitik” dimension of a necessary balance of power enforced through a necessary relative accumulation of force, availability of force, implied threat of force and if necessary measured and proportionate resort to force under appropriate circumstances, either through blind idealism or through willful isolationist blindness would be a mistake, as would also an unlimited and unrestrained resort to force amounting to a policy of quasi-colonial expansionism or “state terrorism.” The Middle-East is unavoidably bound up with the energy security not only of the West but the entire world as well and simply adopting the behaviour of the ostrich is not going to make that reality go away.  Accordingly, on the eve of taking an action in Syria which may release an unforseeable chain of consequences,  it cannot remain acceptable to unthinkingly affirm the status quo of our failed policies. Someone must ask and answer the question, is it really sustainable or in the interest of the American people to continue an ever-increasing involvement in the region which more and more necessitates the quasi-colonial surveillance, intervention and hostile alienation of potentially the entire Islamic world, necessitating the erection of a massive and invasive NSA-CIA-Military omnipresence which in light of the Snowden revelations can only be concluded as dangerously threatening, if not yet in realized fact then certainly in very real future potential for abuse in future changed circumstances, the undermining of the civil liberties not only of the American people but also of our allied-Western and non-Western peoples across the globe? Can we sustainably afford to continue this policy in view of the costs in our lost liberties, not to mention our shrinking relative financial resources drained by the World Economic Crisis and the challenge of new rising powers such as China and a resurgent Russia, the focus of the “Pivot to Asia” which further involvement in the Middle-East is already undermining?

If not then we need to re-formulate our Middle-Eastern policy around the securing of our true interests and to the exclusion of the false interests substituted by the special interest groups distorting our foreign policy and seriously depleting our limited strategic resources needed throughout the globe and draining resources in likely escalating entanglements not vital to American core interests.

  1. DISCUSSION OF THE CRISIS IN SYRIA AND PROPOSED AMERICAN MILITARY INTERVENTION

The purpose of this paper is to review in aid of the American people’s deliberation the principal considerations which must be taken into account in the pending consideration of the Syrian question by the US Congress, America’s NATO allies and the Executive Branch including: 1)  Is the proposed military action legal or illegal under International Law? 2)  Is the proposed military action supportable by the ascertainable facts, which may be incomplete? 3) What is the true purpose of the proposed military strike against Syria, including  not only its ostensible purpose as a punishment for the alleged illegal use of Chemical Weapons banned under international law, but also its “Realpolitik” underlying reasons and motivations with regard to the geopolitical national interests of the United States and the “international interests” of the international community? 4)  Will the proposed action likely attain either the ostensible purpose or the tacit “Realpolitik” objectives? 5)  What are the likely short-term and long-term consequences of the execution or non-execution of the planned military action?  6)  And finally, all things considered is the proposed action on the whole in the true interest of the American people and the international community of which it is a part and leader, and as such advisable or inadvisable?

As will be concluded below for the reasons elaborated in  this process of analysis, we counsel that the proposed action is inadvisable because: 1) It is illegal under International Law as a violation of the United Nations Charter; 2) It is unlikely to attain any substantial improvement in the humanitarian condition in Syria which it purports to support; 3) It contains large and incalculable risks for a widening of the conflict and involvement of other powers that may threaten escalation in a destabilizing chain reaction verging towards a threat of World War and  degrading the system of international law, balance of power and sustainable geopolitical stability; 4) Peaceful alternatives such as placing the Syrian Chemical Weapons Stockpile under international control under supervision of the UN Security Council alongside convening of a UN Comprehensive Middle-East Arms Control, Disarmament and Non-Proliferation Conference for the Phased Reduction of Chemical, Biological and Nuclear Weapons  of Mass Destruction  would be preferable; 5) It would be better to utilize UN authorized sanctions, even in a weaker form capable of being approved by the UN Security Council consensus than to by-pass the system of Security Council governance and undermine the order of International Law in an attempt to vindicate the humanitarian ends through the proposed action; 6)  That it pre-empts and prevents peaceful alternatives for resolution of the Chemical Weapons issue, including those proposed by Pope Francis, and other similar possible solutions such as prior demand for the surrender of those responsible to the International Criminal Court, or reference for alternative action by the Security Council including the possibility of region-wide UN-sponsored multi-lateral Weapons of Mass Destruction disarmament negotiations that might include reductions of Chemical Weapons stockpiles and commitments for dismantling of nuclear weapons programs by Iraq and Iran in return for phased reductions in the Israeli nuclear stockpile at Dimona  against which the Chemical Weapons are deployed, or alternative plans such as placing such Weapons of Mass Destruction in the Middle-East under international control as discussed by Putin and Kerry; 7) That it is not in America’s long-term interests to be used as a proxy for the attainment of local military dominance by Israel under its right-wing government through the influence of the AIPAC-related lobby on US foreign policy in the absence of a just settlement of the Palestine issue; 8)  That allowing itself to be used as a proxy for the achievement of local military dominance by Israel under its right-wing government will generate counter-reactions and hostility amoung Islamic and non-Islamic states that will invite retaliation and continuing animosity detrimental to America’s long-term core interests;    9) That allowing itself to be used as a proxy for Israeli military dominance creates a dangerous Moral Hazard in the Israeli right-wing government as well as its Arab-extremist counterparts  to further delay and obstruct a just and peaceful  Two-State solution to the Palestinian issue;  10) That its precedent may encourage other unilateral unauthorized military strikes by other nations in violation of the UN Charter leading to expanded war, as for example encouragement of an Israeli strike on Iran without UN authorization, with the likely consequence of Iranian invasion or destabilization of Shia-majority Iraq, sinking of oil tankers and acceleration of their remaining dispersed nuclear program in retaliation, all of which would likely draw the US into further and deeper “boots on the ground” entanglements again in Iraq or elsewhere; 11) That its consequence would lead to further involvement and diversion of resources from higher priorities, such embodied in the “Pivot to Asia” and other desirable realignments and would tend to cause divisions and  conflicts with America’s core NATO allies, such as Britain, which reject unilateral action not authorized by the UN;  12) That unilateral action by the United States alone would draw negative consequences to it alone which should be born by the international community as a whole after collective action under UN authorization, including Israel as the chief Realpolitik beneficiary of such action and for whose benefit it is substantially undertaken;  13) That it’s true motivation arises from a false conception of American national interest and international interest in which American foreign policy both in this instance and in its wider context has been distorted by special interests groups  for their own benefit and at the unjustifiable cost of the American people, resulting in a corrupting process of “geopolitical moral hazard” resulting in an irresponsible asymmetrical distribution of costs and benefits in foreign policy decisions which should be corrected in the true interests of the American people in the course of their exercise of democratic control and oversight of war powers and foreign policy, and: 14) That in its execution the proposed action is likely to be distorted and expanded in accordance with the hidden agendas of the sponsoring special interest groups backing it, divergent from the core interests of the American people.

1.  Is the proposed military action against Syria legal or illegal under International Law?

 

International Law on the Use of Force

Significantly, the proposed military action against Syria is contemplated as a unilateral action without the authorization of the Security Council of the United Nations, presumably because of an anticipated veto of the action in the Council by Russia. Such unauthorized action, prima facie illegal under International Law would threaten to undermine the framework of international law and global governance as well as dividing US core allies and deepening deleterious entanglements divergent from American core interests. The fundamental rules of international law on the legality of the recourse to war or force by states are contained in the United Nations Charter. The Charter as drafted in 1945 at the end of World War II and designed to prevent the recurrence of such world wars makes two contributions that are central to today’s international law of war and armed force:  it outlaws the use of force on the part of individual states, and instead it empowers the Security Council to make all decisions on collective measures that involve military force. Article 2(4) establishes the first element by requiring that states not use or threaten force against other states: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” This is a general prohibition, set in the section of the Charter that defines the common and primary obligations of UN membership and of the organization itself, and it is often cited as the primary contribution of the UN system to international order. It goes along with Article 2(3) which insists that UN members settle their interstate disputes by “peaceful means.” Article 2(3) takes away from states the legal right to use force, and Articles 24. 39, 42 and others then deliver this power to the Security Council on behalf of the international community. These sections of the Charter establish that the Council has the “primary responsibility for the maintenance of international peace and security” (Article 24) and that it can take what measures it deems necessary in that pursuit, including military action against states or other threats (Article 42). The goal of the framers of the Charter was to centralize the enforcement of international order in the hands of the international community of nations, led by the great powers given permanent seats on the Security Council, and to pacify the relations among other states by depriving them of independent legal channels to war. This was motivated by the understanding that the lesson of the two world wars was that state aggression must be forestalled with a forceful and collective response. Thus, any intervention that is authorized by the UN Security Council is unambiguously legal, including that for purposes of “humanitarian intervention” as long as it conforms to the Council’s authority over “threats to international peace and security” (Article 39″).

Under these constitutional principles of international law, the principal remaining legal justification for war or force by individual states not authorized by action of the Security Council is self-defense. States have long claimed that military force used in response to an attack by another constitutes a distinct category in law and in practice, and as a result the canon of international law generally recognizes such a right. The customary understanding of self-defense goes back as far as the field of public international law, which is to say that it was recognized by Grotius and others in seventeenth-century Europe as existing already. The concept is defined as a military response to an armed attack where the response is both necessary and proportionate to the attack. In the history of the concept, it is the precise definition of the  ideas of necessity and proportionality that generate controversy; the self-defense concept itself is not contested. Each application of the concept in practice has a productive effect as precedent that further elaborates its meaning, sometimes making it clearer and sometimes making it more complicated. For instance, Israel’s claim of acting in self-defense in its attack on Iraq in 1981 was widely rejected by scholars of international law and by the international community of nations, including by the Security Council, and thus it incidentally may have helped define the outer bounds of “necessity.”

The International Law Case of the Caroline affair, which arose from armed skirmishes between the United States and Britain in1838, provides a case in which a state’s justification for its behavior has become constitutive of the categories of lawful and unlawful uses of force. The British eventually apologized for their incursion into U.S. territory, and the Americans conceded that the idea of anticipatory self-defense might exist within

the concept of self-defense, but the most lasting effect of the incident was the definition of the legitimate scope of the right to self defense between nations under international law including strict limitations on claims of preemptive war:  thus, the threat must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” In the present instance the United States does not claim that its action is motivated by or justified as an act of self-defence or collective self-defense, nor do the circumstances reflect any immanent threat to the United States and therefore self-defense, generally the only legitimate form of non-Security Council authorized use of international force, is inapplicable as a legal justification of the proposed Syrian action.

Thus under the “black-letter law” of International Law defined in the United Nations Charter Article 2 (3) the proposed unilateral action would be clearly illegal under International Law and destructive of the rule of law and orderly international relations. However, International Law is more complex that merely the black letter of the constitutional treaties, as it also includes, like our Anglo-American Common Law, sources of law based on “Customary International Law” or the law derived from the ongoing “practice” of nations in their dealings with each other, supplemented by case law precedent derived from adjudications such as those of the International Court of Justice, or  “World Court” at the Hague.  Upon consideration of these additional elements, however, the judgment of most legal scholars would arrive at the same conclusion of the proposed unauthorized unilateral action being illegal under International Law as a whole.  Some might argue that the clear provisions of the Charter in Article 2 (3) have been subject to the evolution of “exceptions” or “desuetude” by the usage of nations, such as the US/NATO intervention in Kosovo or the 2003 Iraq invasion, which was also not authorized by the UN Security Council. Though we might be reluctant to accept that clear “statutory” rules of law could be undermined by their repeated violation, as if a law should be defined by its violators rather than its legislators, customary international law does operate to supplement the existing treaty law in many areas. Though there are many instances of “humanitarian intervention” and “absolute” interpretations of national sovereignty have been continuously qualified by such human rights treaties as the UN Convention on Civil and Political Rights, scholars and international jurists of the World Court would undoubtedly conclude that since 1945 and the UN Charter, the doctrine of “humanitarian intervention” though alive and well if authorized by the Security Council, remains subordinate to the overriding imperative of peaceful settlement of international disputes through seeking Security Council authorization for its use under Article 2 (3).

An additional issue, beyond that of Security Council authorization, in determining the legality of the proposed unilateral military strikes under international law is the substantive issue of whether Syria can be held to standards regarding Chemical Weapons under treaties of which it has not signed or joined. The great preponderance of the nations of the world have “outlawed” Chemical Weapons through the Chemical Weapons Convention (CWC) of 1993.  However Syria has never signed or joined this treaty and thus is not directly bound by its terms under international law. The reason it has not signed the treaty is simply because Israel has not signed or adhered to the Nuclear Non-Proliferation Treaty, and Syria has amassed its Chemical Weapons stockpile as its principal  means of defense against the Israeli nuclear stockpile at Dimona. Thus the US administration could not rely on this treaty as a basis for its attack. Alternatively, the US could refer to the Geneva Protocol on Chemical Weapons of 1925, of which Syria has joined, but again this treaty has major loopholes in it, such that it does not prohibit use of Chemical Weapons within a state’s borders in civil wars or conflicts, and does not, unlike the 1993 Convention, prohibit production or stockpiling of such weapons or their use in retaliation, as opposed to “first use.”  Thus, under the present facts, Syria’s use of the Chemical Weapons would violate the “black letter” treaty law of neither treaty. But as discussed above, international treaties are supplemented by “customary international law” in international law, and it may be legitimately though perhaps inconclusively argued that the Geneva Protocol has been expanded by customary practice of nations to include applicability to both non-signatories and to internal civil wars and conflicts as a matter of customary international law. Here the US would have a plausible though inclusive case that Syria actually violated international law in the leading incident, though this is less clearcut than is generally assumed by the lay public and press in discussons of the Syria Crisis.

2. Is the proposed military strike on Syria supported by the facts of the situation?

 

Here we can say the jury is still out, or has not yet deliberated in that the United Nations inspectors have not formulated their report, nor were they given a mandate if the use of Chemical Weapons were to be found, to determine the perpetrators and responsible parties. At the beginning of the crisis we were being “railroaded” or “hustled” in a vacuum of independently verifiable facts which was very reminiscent of the precipitous rush to action at the beginning of the 2003 Iraq War. In that case we discovered that we were grossly imposed upon with allegations of “weapons of mass destruction” which turned out to be blatantly false and which proved very likely to have been contrived by the intelligence agencies at the behest of their neo-conservative overseers to push the American people into a “rush to judgment” for a policy of war which had already been decided upon for completely other purposes and motivations. To President Obama’s credit he delayed this time-worn tactic of “strike first and then rally ‘em round the flag” to subject the question of war and peace in Syria to the democratic process of the Congress, which is constitutionally charged with the power and responsibility of deciding the declaration of “war,” which though  in modern times never referred to or “declared” as war but engaged in perpetually nonetheless.  As the European Union and NATO themselves have indicated, along with Germany and others, no action should be taken before an independent United Nations investigation is concluded and the facts have a chance of being known. We know that a dictatorship like Assad’s has no qualms about lying to its own people and the international community. Unfortunately, we have learned from bitter experience, along with some of the related Snowden, Manning, Iraq and Pentagon Papers revelations, that our own democratic governments resort to systematic lying, obfuscation and disinformation, hopefully on a lesser scale, but undeniably so. As such we should be cautious and skeptical in reviewing even the allegations of the American and British and allied governments when they push so feverishly towards war or forceful interventions of this kind, since the hidden truths, hidden agendas and real motivations are often later discovered beneath the “tip of the iceberg” of stated facts given to the media or the Congress  during the  “rush to action.”  Of course some true emergencies require immediate action and some operational details cannot be publicly disclosed for legitimate security reasons and we give the President the power to handle such emergencies in “real time” on trust, pending later review by the Congress and the people under such arrangements as the War Powers Act, but we have learned to view efforts to abuse such “emergencies” with just reservation of judgment.

 

3.  Is the proposed Military Strike against Syria likely to improve the humanitarian conditions of the Syrian people?

Here, we can only be guided by educated guesses and speculation with regards to an unforeseeable future, though the precedent of the American intervention in Iraq unauthorized by the Security Council and international law leaves considerable scope for skepticism. Already enmeshed in a vicious and deadly civil war the humanitarian condition of the Syrian people is already horrific and will likely continue so with or without the American strike. Most civilian deaths have resulted from conventional and paramilitary actions and not from Chemical Weapons, and would likely continue so even if the outcome of the strike was the termination of Chemical Weapons use. Undoubtedly the consequences of the strike would be shaped by its nature, targets, effectiveness and duration. It would no doubt have some deterrent value in preventing further use of Chemical Weapons against civilians in the abstract. One cannot rule out an irrational Syrian response in vindictiveness or in a pre-emptive “use it or lose it” attack against either the rebels in Syria or against Israel. Presumably the delay in the strike has given the Syrian regime opportunity to disperse and hide the Chemical Weapons in advance of the strike,  just as the long-threatened strike by Israel against Iran’s nuclear facilities has given years of opportunity to prepare dispersal and defense of those facilities, mitigating the potential effectiveness and drawing out any contemplated military action. An intensification of the civil war in Syria is a likely result, with further untold civilian suffering, not to speak of predictable “collateral damage” from the strikes themselves. If the Chemical Weapons strike were to later expand to the dimensions of a “regime change” action, as the initial intervention in Libya did, and a benign regime followed the fall of the Assad dictatorship perhaps a positive result might ensue. However the cases of Iraq, Afghanistan and the revolution and coup in Egypt   highlight the probably greater likelihood of an implosion resulting in internecine warfare, a failed state and further deterioration of the humanitarian condition of the Syrian people. Objectively, it is hard to foresee how the exercise in “teaching Assad a lesson” would improve the lot of the Syrian people caught up in the civil war.

3.  What is the purpose and goal of the proposed US unilateral strike on Syria, including not only its ostensible stated public purpose, but also its true or “Realpolitik” hidden agenda goals?

 

The announced and ostensible purpose of the military strikes on Syria are to punish and deter the use of Chemical Weapons by Syria, either on its own people in the civil war and potentially others. These official purposes reputedly exclude the ulterior purpose of bringing about “regime change,” but as in the case of Syria, Iraq and Libya we may fairly conclude that this is an unspoken purpose, unstated because it would violate the norms of national sovereignty as well as Article 2 of the United Nations Charter.  In terms of regime change, I would personally like to see nothing better than the removal of the Assad regime, a generally despicable one objectionable to anyone of moral and political principles, though the subsidiary question of the choice of means does necessitate the concern for international law as well as the real world consequences in terms of the likely successor of such a regime or the breakup or breakdown of the state, prospects  of which are none too promising in terms of ideals of human aspirations or Western interests. Such regime change has as its real objective the weakening of Syrian power to resist Israel and to install a regime more compliant to Israel’s interests, and less amenable to the influence of Russia and of Iran.

A further unstated purpose of the military strikes, however, is to remove the Chemical Weapons  as a deterrent and counter-weapon to Israel’s nuclear and conventional arsenal and consequent unrestrained regional domination. This was also the motive of Israel’s strike on the Osirak reactor in Iraq and of Israeli encouragement of America’s calamitous invasion of Iraq in 2003. It can be expected that as long as Israel possesses a nuclear arsenal all rational states in its vicinity will seek to acquire the means to deter its employment against their interests, and that there will be no cease in their attempts to acquire such capacity and attempts to quash such counter-balancing capacity will involve an endless and unlimited Sisyphusian effort necessitating a never-ending entanglement in the region, especially in the absence of a workable settlement of the Palestinian question through creation of a viable Palestinian State in accordance with United Nations resolutions of long standing.   Is it in America’s interests to expend its own resources unlimitedly to put down all such attempts to redress that imbalance of power? If the right-wing government of Israel insists on the maintenance of such an imbalance of power and terror with the entire Islamic world without a Palestinian settlement should it be at the cost of the American people or should they bear the cost in money, blood and technology themselves? If the right-wing government in Israel was the primary Realpolitik beneficiary of the invasion of Iraq to remove a potential challenge to their own power (along with the oil industry, the Military-Industrial-Surveillance Complex and their financial backers) should the American people pay the near trillion dollar cost and lost lives of that invasion or should they shoulder that burden themselves which is not related to America’s core interests and its government discuss with the Israeli people whether such cost is justified relative to the alternative of a just solution to the Palestinian question and a more sustainable balance of power with their potential adversaries still adequate to achieve their  real needs for strength and deterrence to guarantee their legitimate security interests? Can America afford to go on acting as a proxy for the suppression of any and all attempts of one billion Muslims to attain the natural desire for a counterbalance the hegemonic dominance the right-wing Israeli government when the non-settlement of the Palestinian question with a just two-state solution makes the perpetual resurgence of such efforts inevitable and endless when America is now challenged economically and perhaps militarily by the rise of new Asian and other newly industrialized powers on a global basis? Is it in America’s interest to take on the task of the surveillance, policing and continuous sporadic intervention and military suppression of one billion Muslims with whom they have no essential quarrel and which efforts naturally give rise to occasional efforts to strike back at America’s interventions in such incidents as 9-11? Such questions must be raised and answered as part of the debate of the much more limited question of the goals and purposes of the Syrian intervention, both stated and tacit, which are but one part of this larger picture.  If I raise these questions am I being anti-Semitic or biased against Israel? I would hope not and I know the same questions are raised in Israel and in the Jewish community and amoung the Israeli people to determine their own enlightened self-interest and in reasonable critique of their own government by their own people. Anyone is free to form their own opinion about me in this regard, and I can relate in passing that my sister is married to a freethinking man of Jewish heritage and I have Jewish friends that are much more critical of the rightist Israeli government than I am.  I can also state that  I hope any debate of this and related matters takes into account the legitimate security interests of Israel in a very difficult situation in the region as to guaranteeing their own survival, especially in the light of the historical horrors of the Holocaust and the chronic insecurities of Jewish history.

4)  Will the proposed action likely attain either the ostensible purpose or the tacit “Realpolitik” objectives?

As discussed above, it is highly dubious and unlikely that the military strikes will attain the humanitarian objective of relieving the Syrian people of the oppression and atrocities attendant on the ongoing civil war. If the Chemical Weapons stockpiles are completely destroyed it may relieve them of further chemical attacks, but the likely unintended consequence would be the intensification of the oppression and atrocities by non-chemical means. The attacks should weaken the Syrian regime but not enough to either cause its collapse or bring any end to the civil war. The civil war may indeed be prolonged as the intervention generates counter-interventions by other powers and players such as Iran and Russia. Should regime change eventually occur the likely successors look equally grim and oppressive, and the implosion of the state or deterioration into a failed state and internecine factional and sectarian warfare abetted by outside powers is a distinct possibility.

5)  What are the likely short-term and long-term consequences of the execution or non-execution of the planned military action?

 

From the above, we may guess but can never know, that the proposed military strike would most likely lead in the short-term to a further deterioration and intensification of  the civil war in Syria. In the longer term, once having intervened it is unlikely that the US will be able to avoid further entanglement in the chronic and ongoing situation. It will prove impossible to stride the aircraft carriers and glibly declare “mission accomplished” and “human rights vindicated” and pressure will intensify for further commitments to precipitate regime change, or should the regime prove victorious, to prevent loss of face and further humanitarian debacles. Iranian supported retaliatory attacks on Israel and American interests in the Middle-East, possibly indirectly supported by increased Russian aid are forseeable, including a possible Iranian attempt to take over Iraq or destabilize Egypt, further threatening Israel and drawing demands for further American protective intervention and entanglement. Deterioration towards World War, potentially drawing together the Russians, Iranians and Chinese arrayed against a splintering Western alliance and interventionist USA and Israel is not to be excluded, including disruption of global oil supplies and precipitation of a new phase of the World Economic Crisis. Should America follow the British example and abort the intervention, substituting alternative weaker Security Council approved action, some of these consequences may be avoided.

II.  THE CONCEPT OF MORAL HAZARD AND ITS APPLICABILITY TO GEOPOLITICAL ACTION, THE MIDDLE-EAST, MILITARY TECHNOLOGY & SURVEILLANCE TECHNOLOGY

What is “Moral Hazard?”  Moral Hazard arises where a party in a situation will have a tendency to take risks and actions because the costs, losses and consequences that could occur will not be borne by the party taking the risk. In other words, it is a tendency to be more willing to take a risk, knowing that the potential costs or burdens of taking such risk will be borne, in whole or in part, by others. Thus, a moral hazard may occur where the consequences of the actions of one party may change to the detriment of another party after action has taken place. The concept is most often used in financial transactions, as in the case of the Subprime Mortgage crisis in which predatory financial institutions deliberately generated unsustainable and highly risky mortgage loans because they knew the loans could be packaged and sold off to mortgage-backed securities investors or to guarantee agencies such as Fannie Mae, and therefore the generators of the sub-prime loans would never incur any possible future losses themselves, which would instead be successfully fobbed off on third-parties.

Unfortunately the irresponsibility and predatory behaviour connected with “moral hazard” is by no means confined to the financial arena and the employment of capital, but raises its ugly head consistently in the precipitation of war in the geopolitical arena and in the abuse of technology whenever actors from a sense of impunity from the consequences of the use of their power can take actions which shift the costs of their undertakings onto others, especially the public and the relatively powerless. Through human history the almost constant series of wars have occurred in very substantial part because the elites and interest groups—aristocracies, party bosses and wealth holders—-that have made decisions of war and peace and not coincidentally derived the lion’s share of the benefits of war, having the ability to shift the costs in blood and treasure onto the public, disempowered lower classes and foreign peoples, perpetuating an endemic and chronic Political Moral Hazard of ruling elites and elite special interest groups capable of dominating and distorting national decision making processes.

But even where political leaders are less blatantly exploitative or believe themselves to be acting in some conception of the national or international public interest moral hazard nevertheless consistently and dangerously continues to arise because  individuals, institutions or even nations do not bear the full consequences and responsibilities of their actions, and therefore have a pernicious tendency to act more irresponsibly than they otherwise would, leaving other parties to hold the liabilities and losses arising from the inevitably consequences of those actions.

Moral Hazard has played several unfortunate roles in defining American foreign policy in the Middle-East and Islamic world in the last three decades. Specifically the American people have felt themselves repeatedly dismayed, confused and betrayed by a Middle-East policy undertaken in their name and purportedly in their interest, including the Iraq and Afghanistan Wars, but leaving them with trillions of dollars of costs, the spilt blood of their children, deeper and deeper entanglement in endless and escalating conflicts unrelated to their core interests and little beneficial result either for their own nation or for the purported foreign beneficiaries of those actions.  The test of “Qui Bono?” or “Who Benefits?” has always remained a key analytical tool in sorting out which actions of elites and special interest groups have harmed the interests of the people, and very often leads directly to objective identification of the cause of the mismanagement of their affairs. If we utilize this test with respect to the failed Iraqi intervention and its Afghanistani successor, as well as the incipient involvement in Syria we can identify three major beneficiaries of the failed American policies, amoungst others, namely the oil industry and its financial backers, the “Military-Industrial Complex” against which President Eisenhower warned the American people on retiring from the presidency and his former command of the allied forces in World War II,  to which  the “War on Terror” has further compounded into a “Military-Industrial-Surveillance Complex,”   and the rightist-Israeli leadership groups and lobby support who have, alongside  their Islamic-extremist counterparts, chronically forestalled any meaningful settlement of the Palestinian question, depriving both the Israeli people and the Palestinian people of any meaningful prospect of sustainable peace and security.  Though such a characterization is unavoidably over-simplistic, when we seek the main causes of the failed policies for purposes of their rectification, it is not unfair and supported by ample evidence to conclude that the largely-failed Iraq invasion and US over-involvement in the region resulted from the distortion of American foreign policy through the deleterious substitution of the interests of these three special interest groups for the greater interests of the American people in whose name and at whose cost that failed policy was carried out. The presence of hundreds of AIPAC lobbyists urging a vote for the presently proposed unilateral intervention in Syria is also strong evidence of the power of special interest groups to distort American foreign policy away from its own core national interests towards a proxy role. The distorting presence of the money of the same three and allied interest groups and their PAC’s in the electoral process in electing the national leadership and threatening the withdrawal of that money in future re-election campaigns reinforces the corruption of the decision-making process and the further distortion of its results away from the national interest.

When the United States through this corrupting and distorting process allows itself it be used as a proxy for narrow oil, financial, military-industrial-surveillance and right-wing Israeli government interests the result is to confer the benefits of US actions on these narrow interest groups while placing the burdens and costs in money, blood and depletion of power on the American and allied peoples. The result is a pernicious creation of Moral Hazard in these groups which redouble their efforts to further distort the decision making process to undertake even more adventurous risks and the future redoubling the future costs, ad infinitum in the Middle-East and elsewhere. Thus  the right-wing Israeli government has repeatedly used the United States as a proxy in quashing potential adversaries such as Iraq, Iran,  the condoning of the coup in Egypt, and now Syria. By helping to induce the American government to invade Iraq in 2003 it eliminated a very troublesome potential adversary, as evidenced by its prior strike against the Osirak reactor. Had the right-wing Israeli government had to bear the costs of that invasion itself in blood and treasure it very well might have been more cautious and adopted alternative means of co-existence, including concluding the Road Map leading to a just and equitable Two-State solution in Palestine. Because it could achieve its result with impunity by proxy Moral Hazard further induced it to undertake further and further risks and punitive actions against the Palestinians and the contemplated strike against the Iranian nuclear facilities under an artificial impression of impunity. Although the right-wing government of Israel is touted as an “ally” and there are undoubtedly substantial areas where Israeli interests and true American interests coincide, it is notable that in almost all of the proxy wars in which America acted on behalf of the right-wing Israeli government interests Israel itself was very careful not to equally share the burdens of those proxy efforts. Where was the Israeli army in the first Iraqi war to liberate Kuwait, the 2003 Bush coalition invasion of Iraq, the invasion of Afghanistan and other actions in the Islamic world provoked in substantial part by their own failure to contribute to a just and equitable Two-State settlement of the Palestinian question? Indeed, the Moral Hazard of the right-wing Israeli government is doubly compounded by the practice in every instance of conflict of applying for military “Foreign Aid” from the American Congress, further indemnifying them against the intransigent feed-back effects of their own risk-creating behaviour, and depleting resources for humanitarian and developmental foreign aid to the needy. Thus the proxy invasion of Iraq provoked the natural counter-reaction of the Scud missile attacks on Israel and the demand for further military “Foreign Aid” leading to the subsidy of the “Iron Dome” defenses, a further technological contributor to the sense of impunity further compounding the Moral Hazard of agitation for further aggressive action such as the proposed Syrian and Iraqi air strikes. In the meantime immense profits are reaped by the “Military-Industrial-Surveillance Complex” and its sub-contractors and financiers at the expense of bloating the American national deficit and inducing the World Economic Crisis crippling the American economy. What is clear is that this process is ultimately as self-expanding as it is unsustainable for the American people, especially in the context of the rise of newer and greater global challenges throughout the world outside the Middle-East from newly arising powers, as exemplified by the now seemingly suspended “Pivot to Asia,” underlining the dangerous stretching-thin of even Americas strategic resources.

The role of technology has a curious and morally corrupting influence in compounding the dangers of Moral Hazard in its military applications. One of the key selling points of the proposed Syria intervention by its advocates proceeds from the use of  “remote control” military hardware, such as Tomahawk cruise missiles, high-altitude bombing, pervasive Snowden-Era Onmipresent Surveillance,  and Remote-controlled Drone attacks. The argument is made that we can act with God-like impunity wholly free of consequences because there will be no “boots on the ground,” meaning no blood of our children on the ground, due to the antiseptic virtue of our precision-controlled “surgical strikes.” The right-wing Israeli government touts also that its policies can be enjoyed with impunity in family living rooms conveniently protected behind Chinese-style national walls happily shutting out the Bantustans of Gaza and the West Bank, policed and patrolled by the “game consoles” of remote controlled missile-firing drones. Thus advanced technology itself becomes morally corrupting in morally blinding, anesthetizing and seemingly insulating its users from the moral consequences of their violent actions, also producing a self-reinforcing spiral of Moral Hazard, as well as furthering a spiraling technological arms race of asymmnetrical terrorist countermeasures in its trail. This process of progressive moral degeneration on all sides leads to demonization and dehumanization of mutual adversaries and ultimately to temptations to reduce adversary populations to permanent oppression, occupation, remote-controlled brutalization with the object of “breaking the will” of entire populations to accept their lot as permanent underlings, or even to look towards a “final solution” resurrecting the spectre of the Holocaust.  It is natural that such an attitude generates justifiable outrage in those whose own children’s boots are covered in blood “on the ground” while the fashionable footwear of the children of those handling the “Joysticks” of the remote controls are employed at disco dancing and figure-enhancing health workouts.  Accordingly it is likely that the result of such “surgical strikes” will ultimately include the “karmic comeuppance” of the creation of a Frankenstein monster of the radicalization and acts of desperation of those massive populations so experimented upon, in the nature of further “9-11” style incidents if not the catastrophic feedback effects under the “Law of Unintended Consequences” of driving powerful potential adversaries such as Iran, Russia and potentially China into a counter-alliances precipitating an uncontrollable World War III and threatened nuclear Armageddon, in the longer-run  necessitating the global relocation of ever more privileged feet from the disco floor into those “boots on the ground.”  If unreversed, such processes must lead to the destruction of the futures of the children of the populations on both the controlling and receiving ends of the Joysticks.

CONCLUSION

O Where, O Where has the American Dream gone, and wherefore is the world so turned to nightmare? Blake turned from the “Songs of Innocence” to the “Songs of Experience,” the sword of Camelot ended in a lake of tears and St. Paul awakened to the ways of  this world invoked to us: “When I was a child, I spoke as a child, I understood as a child, I thought as a child; but when I became a man, I put away childish things. For now we see in a mirror, darkly, but then face to face.” (1 Corinthians 13).  Henry Kissinger, recipient of the Nobel Peace Prize at the ending of the Vietnam War famously lamented of American formulation of  foreign policy: “Americans have no sense of tragedy.” Oedipus discovered late the “Law of Unintended Consequences” and one’s own capacity for self-delusion and self-undoing. St. Paul also lamented: “For the good that I would I do not: but the evil which I would not, that I do.” (Romans 7:19). Thus it is time for the American people to heed the lessons of experience and put away the childish illusions of the past and embark upon a more mature worldview in its foreign policy.

Writing in The Children of Light and the Children of Darkness  the theologian Reinhold Niebuhr observed:

“Man’s capacity for justice makes democracy possible; but man’s inclination to injustice makes democracy necessary.”

Thus it is well that President Obama, an admirer of Niebuhr,  has paused in the rush to precipitous action in the wake of the defeat of the proposed strike in the British House of Commons, to allow its consideration by the US Congress and the American people in accordance with the democratic process framed in the US Constitution and the War Powers Act.

One of Niebuhr’s major contributions was his view of sin as a social event — as pride — with selfish self-centeredness, individual and collective, as the root of evil. The sin of pride was apparent not just in criminals, but more dangerously in people who felt good about their deeds. The human tendency to corrupt the good was the great insight he saw manifested in governments, business, democracies, utopian societies, communist and capitalist political parties, sectarian religions and churches. Like the influence of Tolkien’s “One Ring to Rule Them All” he helped explain how even good men, beginning in good faith and with good intentions were drawn, almost involuntarily if not intentionally, to actions resulting in evil. This position is laid out profoundly in one of his most influential books, Moral Man and Immoral Society. He was a debunker of hypocrisy and pretense and made the avoidance of self-righteous illusions the center of his thoughts.

Who is not dismayed by the spectacle of the beheadings of bound and helpless victims on Internet videos being beheaded to the shouts of “Allahu Akbar!” Who would not have felt revulsion at the command of Moses in Numbers 31:13 to the army of the Israelites with respect to the captive women and children of the Caananites they had just  forcefully driven from their homes: “Now therefore kill every male amoung the little ones, and kill every woman that hath known a man by lying with him; but all the women-children that have not known a man by lying with him, keep alive for yourselves.” Down through history the self-righteous delusions of Muslims, Christians, Jews, Hindus, Buddhists and every sect known to man that they alone are holy and speak and act for God as His chosen people has been unmasked as the hypocritical and self-blinded worship of the golden calf of self, tribe, and ethnic totem—a perverted love of self and the inflated masks of self-centered and self-serving power and as far away from any true relationship with any universal loving God as may be imagined.  Religious, sectarian and ethnic war is a tragedy and travesty of the human capacity to conceive of the ideals of God, justice, universal harmony and love and a source of universal shame to humanity and its ideals,  yet like the poor, seems to be always with us and ever entangling others in its folly.

Niebuhr was concerned with two forms of American idealism which have persisted over the last century and continue prominently in the debate over Syria.  American idealism, he believed, comes in two forms: the idealism of the antiwar non-interventionists, who are embarrassed by power; and the idealism of pro-war civilizational-imperialists, who disguise and dissemble power as d virtue. He said the non-interventionists seek to preserve the subjective purity of their own souls, either by denouncing military actions or by demanding that every action taken be unequivocally virtuous. They exaggerate the sins committed by their own country, excuse the malevolence of its enemies and inevitably blame America first. Niebuhr argued this approach was a pious fraud and hypocritical means of escape and evasion of real-world responsibilities in a complex and imperfect world, a kind of hypocrisy more concerned with self-righteously feeling good about oneself than doing  real good for real people living in the real and imperfectable world. The second type of American idealism was that of the prideful interventionists, who see American virtues of freedom and democracy and liberal ideals as a license to  impose their own sublimated power upon the rest of the world, a spreading of “civilization” amoung the barbarians, valid up to a point, that point being when liberal and reformist leaders in their self-love begin to confuse their own power, projects and status with virtue and good, blinding themselves to the possibility that their own good intentions have been perverted by the seductions of power and self-righteousness or corrupted by the political processes of which they have become a part.

It is this second kind of distortion of American idealism which he would council his student Mr. Obama to look into the mirror for. These kind of administration idealists would tell us: sure we have the capacity to read every e-mail and monitor every phone call you make and to lob Tomahawk missiles to any point on the globe with impunity as to the consequences, but Hey!—trust us!—-we’re the good people—the good guys remember!—-we’re going to make sure all this power is used for good, right?—-Wrong, or at least not necessarily. History teaches that the road to Hell is paved with good intentions, inter-tiled with self-love and the self-delusions of the self-righteous, as arranged and manipulated by the opportunistically hypocritical and predatorily vicious.  For this reason the Constitution sets in place the system of checks and balances and democratic feedback, not trusting to the self-definitions of virtue by power holders.

Niebuhr counseled that idealism had to be balanced with realism if we are to live morally in any real sense in the real world. Part of such realism is the horribly difficult process of recognizing one’s own capacity for slipping into wrongfulness, as well as the limits of one’s own power in order to avert tragedy.

It is also significant that President Obama praiseworthily submitted the question of war and peace in Syria to the US Congress and the American people for consideration within the democratic process, as under the US Constitution the ultimate power to declare war rests with the Congress, and is derived from the people. It was said by Clemanceau that “war is too important to be left to the generals.” This illustrates a universal problem of a generalized “democratic deficit” in foreign policy generally. Though many such matters require technical knowledge and expertise and unified policy-making and execution and are thus entrusted to the President or executive head of government, it is important that as in the American War Powers Act that Congress and the people have ultimate long-term control and veto power over the acts of the executive.

In the international sphere, the United Nations system also suffers from a “democratic deficit” in its operations regarding global governance and war and peace. We may also paraphrase Clemanceau and state that “war is too important to be left to the nation-state or governments alone.” Thus many activists including former United Nations Secretary-General Boutros Boutros-Ghali have called for the creation of a United Nations Parliamentary Assembly, a sort of globalized version of the EU European Parliament,  as a third chamber of the United Nations in addition to the General Assembly of nation-states and the Security Council, for the purposes of making the United Nations more democratically accountable. Important question of war and peace such as the Syria crisis which potentially threaten World War III need the input not only of the great-power and elected Permanent Members of the Security Council and of all nation-states in the General Assembly, but should also require the additional democratic voice of the representatives of the peoples of the world  independent of their governments in power, as occurs in the European Parliament. The Syria crisis underlines the need for correcting the democratic deficit in the United Nations with a United Nations Parliamentary Assembly, and also possibly through Security Council reform, perhaps including alteration of the veto power so that a single permanent member of the Security Council cannot completely paralyze the body in crisis. Perhaps a requirement of two veto votes or other supermajority might be substituted for the single veto which can often prevent the Security Council from taking any meaningful action in serious crises of war and peace.  In this regard,  I have been active as a Senior Associate  in the Campaign for a United Nations Parliamentary Assembly, spearheaded by former UN Secretary-General Boutros Boutros-Ghali and invite everone to join in this effort. See: http://en.unpacampaign.org/index.php

In the case of the administration’s project for Syrian military intervention without Security Council authorization, in violation of international law, without a clear probability of a successful outcome in bringing about a better humanitarian future for its intended beneficiaries, and fraught with the risks of uncontrollable further escalations and entanglements not related to the core interests of the nation, for the reasons argued above the American people and its Congress should for the moment follow the example and reasoning of the British Parliament and reject the proposed initiative as it stands as either a misplaced exercise in an unrealistic idealism on the part of some, or as a willful distortion of the foreign policy process on the part of special interests which are inconsistent with the true interests of the American people, and refer the matter back to the administration to search for better alternative lines of action.

 

 

 

About robertalexandersheppard

Robert Sheppard , Author, Poet & Novelist Pushcart Prize fof Literature 2014 Nominee Professor of World and Comparative Literature Professor of International Law Senior Associate, Committee for a Democratic United Nations (KDUN) E-mail: rsheppard99_2000@yahoo.com Robert Sheppard is the author of the acclaimed dual novel Spiritus Mundi, nominated for the prestigious 2014 Pushcart Prize for Literature in two parts, Spiritus Mundi the Novel, Book I and Spiritus Mundi the Romance, Book II. The acclaimed “global novel” features espionage-terror-political-religious-thriller action criss-crossing the contemporary world involving MI6, the CIA and Chinese MSS Intelligence as well as a "People Power" campaign to establish a United Nations Parliamentary Assembly on the model of the European Parliament, with action moving from Beijing to London to Washington, Mexico City and Jerusalem while presenting a vast panorama of the contemporary international world, including compelling action and surreal adventures. It also contains the unfolding sexual, romantic and family relationships of many of its principal and secondary characters, and a significant dimension of spiritual searching through "The Varieties of Religious Experience." It contains also significant discussions of World Literature, including Chinese, Indian, Western and American literature, and like Joyce's Ulysses, it incorposates a vast array of stylistic approaches as the story unfolds. Dr. Sheppard presently serves as a Professor of International Law and World Literature at Peking University, Northeastern University and the State Intellectual Property Office (SIPO) of China, and has previously served as a Professor of International Law and MBA professor at Tsinghua University, Renmin People’s University, the China University of Politics and Law and at the Law Institute of the Chinese Academy of Social Sciences (CASS) in Beijing, China. Having studied Law, Comparative Literature and politics at the University of California, Berkeley (Ph. D.Program in Comparative Literature), Northridge, Tübingen, Heidelberg, the People’s College and San Francisco, (BA, MA, JD), he additionally has been active as professor of International Trade, Private International Law, and Public International Law from 1993 to 1998 at Xiamen University, Beijing Foreign Studies University, the Chinese Academy of Social Sciences Graduate School (CASS), and the China University of Political Science and Law in Beijing. Since 2000 he has served as a Senior Consultant to the United Nations Industrial Development Organization (UNIDO) in Beijing and has authored numerous papers on the democratic reform of the United Nations system.
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