America Violates, Exempts Self From ‘International Norms’ it Aims to Unilaterally Enforce

"Pssst! I AM the 98 percent." ||| Whitehouse.govWhitehouse.govWhen President Barack Obama claims, as he did at the G20 summit in St. Petersburg Friday, that the absence of a United States bombing attack against Syrian dictator Bashar al-Assad "threatens to unravel the international norm against chemical weapons embraced by 189 nations, and those nations represent 98 percent of the world's people," he is deliberately blurring the lines between three international treaties to make it look like they require U.S. enforcement.

Not only do these pieces of international law say nothing about granting Washington ultimate responsibility for policing, the United States has a long history of limiting their scope and exempting America from their constraints. In short, the U.S. seeks to enforce the very same norms it has often chafed against, or even rejected.

The three relevant treaties are:

Punk. |||1) The Geneva Protocol of 1925, otherwise known as The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare. This document binds signatories to renounce "the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices," the key phrase here being "use in war." At the time of the signing, and mostly ever since, this was understood as specifically referring to war between states. Domestic usage may be horrific, but it's not covered by the Geneva Protocol.

There are 138—not 189—nations that have signed the treaty, including Syria. In fact, Syria signed it seven years before the United States got around to ratifying the agreement in 1975, and even then Uncle Sam inserted the caveat that it believes this particular international norm "ceases to be binding as to the use of chemical weapons in regards to any enemy state which does not observe the prohibitions of the protocol." That is to say, if those bastards chemical us, we reserve the right to chemical them right back.

So what's the enforcement mechanism? As René Wadlow recently pointed out, "the 1925 Geneva Protocol has no investigative measures and no dispute settlement provisions." There is nothing in the treaty that remotely contemplates a bombing punishment for a clear violator, let alone a unilateral United States Tomahawk missile-storm against a dictator who the White House (but not necessarily the rest of the world) believes ordered a chemical attack against its own citizens.

So the United States wants to appoint itself the selective enforcer of what Defense Secretary Chuck Hagel calls "the nearly century-old international norm against the use of chemical weapons," even though it has only been a signatory to that norm for 38 years, has carved out a legal exception for itself, and has a checkered history that includes preparing to deploy stockpiles of banned chemical weapons during World War II.

Worse yet, some war enthusiasts, including Democratic National Committee Chair Debbie Wasserman Schultz, are reaching back even before the 1925 treaty we signed in 1975, to The Hague Convention of 1899, which stated that signatories will abide by "the prohibition of the use of projectiles with the sole object to spread asphyxiating poisonous gases."

The only problem with citing this international norm as a casus belli for war against Syria? It only concerned war between states. There was no enforcement mechanism, let alone one that named the Pentagon as the enforcing army. Oh—and the United States never even signed the damned thing.

2) The 1993 Chemical Weapons Convention, or Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. This is the relevant treaty signed by 189 states. Unhelpfully for the Syria interventionists, Syria isn't one of them.

The CWC prohibits "the Development, Production, Stockpiling and Use of Chemical Weapons," and mandates their destruction. All signatories were supposed to have destroyed their chemical stocks by April 2012, but as of December 2011 the eradication program had only hit 72 percent. One of the biggest scofflaws was also one of the two biggest possessors of chemical weapons: The United States of America, which as of the end of 2011 had destroyed 89.71 percent of its hoard.

So what's the CWC’s enforcement regime? As even pro-war commentators will note (if they are honest), there isn't one. Richard Price, author of The Chemical Weapons Taboo, pointed out recently in Foreign Affairs that "Like the Geneva Protocol, the Chemical Weapons Convention does not explicitly stipulate its own enforcement mechanisms."

Instead of bombing campaigns from America or anyone else, violators of the treaty are subject to war crimes prosecutions at the International Criminal Court (ICC) in The Hague. And—mostly because of lobbying efforts from the United States—the ICC cannot go after dictators that do not recognize the court's legitimacy. Prosecutions of rogue actors must be referred to the ICC by the United Nations Security Council.

3) The 1998 Rome Statute of the International Criminal Court, which willed the ICC into being. The 122 countries that have ratified this treaty recognize the authority of the court to bring trials against people living within these countries who stand accused of genocide, war crimes, and crimes against humanity. The only time residents of non-signatory countries like Syria—or the United States—can be hauled in is at the request of the UN Security Council.

As the ICC's Wikipedia page succinctly notes, "During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States." Assad might have been charged already had it not been for American diplomatic resistance to a more aggressive court.

Washington's relationship with the ICC can best be described as contentious and inconsistent, with Republicans especially under the Bush administration demanding all kinds of safeguards and exemptions against Americans ever being subject to international prosecution.

So where does that leave the Obama administration in terms of bombing Syria and international law? In such a bad place that even supporters are writing headlines like "Bomb Syria, Even if It Is Illegal," and "The U.S. Has No Legal Basis to Intervene in Syria." Why?

Because of another bit of international law that has gone largely unmentioned by the Obama administration: The United Nations Charter. This document states clearly that "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 what happens when a single country—or a single government, or single branch of government, or single executive sitting atop a single branch of government in a single country—declares itself the judge, jury, and executioner of "international norms." Those norms will be defined by the global sheriff, enforced selectively and inconsistently, with carveouts for the cop, and in such a way that will erode public support and democratic legitimacy over time.

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  • crashland||

    Look when you're the biggest swinging dick in the world, you can do whatever the fuck you want. Who is going to stop you?

  • anon||

    Putin?

  • Almanian!||

    The Giant Cock Blocker?

  • Troglodyte Rex||

    A giant statue of John Wilkes Booth?

  • Invisible Finger||

    Obama?

  • Spiny Norman||

    Miley Cyrus?

  • ||

    Anthony Weiner? AKA Carlos Danger?

  • ||

    Anthony Weiner? AKA Carlos Danger?

  • Hugh Akston||

    I also seem to recall there being an international treaty regarding torture (not to mention a specific clause in the Constitution prohibiting cruel and unusual punishment) that the US government has ignored when getting its warboner on.

  • John||

    The UN is claiming the Travon Martin verdict may have violated international law. We really don't want to get in the business of authorizing war for purely internal violations of international human rights law.

  • ||

    Wait, what? You're joking, right, John?

  • anon||

    Funny, my reaction was "yeah I don't doubt that."

  • Irish||

    HAHAHAHAHAHAHAHAHAHAHA! He's not kidding!

    “We call upon the US Government to examine its laws that could have discriminatory impact on African Americans, and to ensure that such laws are in full compliance with the country’s international legal obligations and relevant standards,” said human rights expert Verene Shepherd, who currently heads the UN Working Group of Experts of People of African Descent.

    No fucking way.

  • ||

    Does the UN actively seek out issues where it can make itself look even more impotent than it already is?

  • anon||

    Do you seriously not already know the answer to that?

  • ||

    I admit that it was a rhetorical question. I'm just angry because the Giants played like shit and lost to the Cowboys. And Green Bay let the Niners win.

  • Night Elf Mohawk||

    Imagine if substitute officials had made the call for the offsetting dead ball penalties leading to the replaying of third down. ESPN would cancel all regular programming to bitch about it.

  • ||

    Yes, but the non-substitute officials are magical and never make retarded calls. Also, the Jets beat Tampa Bay which makes me not only happy, but doubly happy because ProL is sad.

  • Night Elf Mohawk||

    As near as I could tell, David Lavonte beat the Bucs.

  • ||

    Oh, absolutely, but the win goes in the Jets' column, so I don't really care how it was done. Wins for the Jets are rare enough as it is.

  • Killazontherun||

    Imagine if substitute officials had made the call for the offsetting dead ball penalties leading to the replaying of third down. ESPN would cancel all regular programming to bitch about it.

    Exactly what I was thinking.

    Also, what kind of idiot tries to dog Clay Mathews in a fight? You can't get the drop on that mofo.

  • Dan||

    Except that the NFL admitted the second penalty never happened and shouldn't have been called, and mathews should have been ejected for throwing punches. It should have been first and goal at the seven yard line. There was no "extra" down.

  • Anonymous Coward||

    The Niners did have a little help from the referees.

  • Invisible Finger||

    As long as there are fans of any NFC East teams, America will always be on the wrong side.

  • Night Elf Mohawk||

    The UN Working Group of Experts of People of African Descent... so, everyone, right?

  • Loki||

    *facepalm* You've got to be fucking kidding me... I just... I don't even...

  • Seamus||

    The Obama administration would probably be OK with a UN-sponsored invasion of Florida to force the state to repeal stand-your-ground, or maybe even to require that no defendant can be acquitted on grounds of self-defense unless the claim of self-defense is proven beyond a reasonable doubt.

  • sarcasmic||

    Trayvon Martin killing: UN human rights chief calls for investigation
    UN Human Rights chief Navi Pillay has called for an "immediate investigation" into the circumstances surrounding the death of Trayvon Martin, the unarmed black teen who was shot dead by a volunteer neighbourhood watchman in Florida.


    http://www.telegraph.co.uk/new.....ation.html

  • John||

  • Irish||

    Why are we a part of this organization again? There are ongoing genocides and they take time off to discuss someone who was shot while assaulting a neighborhood watch volunteer.

  • ||

    A better question is: why do we fund the lion's share of this organization? Oh, because our politicians think it's better to own the talking shop than to shun it. They're right, except that they do it with our money.

  • SugarFree||

    We pay because it keeps them busy. The UN is basically a daycare for failed states and running jokes.

  • ||

    I realize that. But they should be smacked down occasionally to let them know who is boss. We pay their salaries. Don't get uppity.

  • wareagle||

    uppity? RACIST.

  • BakedPenguin||

    Now be fair Sugarfree, they have a nice side business in trafficked underage prostitutes, as well.

  • SugarFree||

    True.

    Do you know who else wants underage prostitutes?

  • Almanian!||

    who else wants undersage prostitutes

    Their "clients"?

  • Troglodyte Rex||

    Do you know who else wants underage prostitutes?

    Robert Menendez?

  • SIV||

  • ||

    Obama has that habit of whenever addressing an international audience or an audience in a foreign country of using 'we' and talking as if he speaks for all of us.

    So yeah, We have decided that the international laws and regulations need not apply in this situation.

  • John||

    It is not just that. We don't recognize the general prohibition against using asphyxiating gases domestically because doing so would make cops using CX gas illegal. The military is trained to use CX gas for domestic support to civil authorities. It would never use it overseas because doing so is against the parts of international law we support.

    Now, that being said, CX gas is not nerve gas and using it is not the same thing as what apparently happened in Syria. The bottom line is that violation of the accords on using gas is not a cause belli for war absent self defense or authorization from the UNSC. There is no way to make the strike on Syria legal.

  • ||

    Just be glad he didn't dredge up the idiot-left claim that US forces used chemical weapons on Iraqis. i.e. white phosphorous.

  • R C Dean||

    Sorry, but UN approval does not a casus belli make.

  • ||

    In short, the U.S. seeks to enforce the very same norms it has often chafed against, or even rejected.

    You mean we actually live under the rule of man, not rule of law? Say it ain't so, Matt!

  • Almanian!||

    We live under the rule of the Chocolate Jesus - something more than Man, if less than God.

  • anon||

    , if less than God.

    Careful, you might be droned smited for that.

  • Homple||

    smitten

  • Almanian!||

    Smithereened

  • ||

    I swear there is no other God but Obama, and Trayvon is his prophet.

  • Almanian!||

    My life for you!

    Boooomty BOOM!

    /The Stand

  • Neoliberal Kochtopus||

    It's Bumpity Bump. Get it right or pay the price.

  • Almanian!||

    That's not what my ears hear...

  • Loki||

    So if Obama is God, and Travon was his sone, then Travon = Jesus, and Zimmerman = JOOOO!!!1!!!!

  • db||

    Since we're all about war anymore, let's play a little game I saw over at EconLog:

    Go to http://www.randomcountry.com, spin the wheel, do some brief research on the country at wikipedia and/or the CIA's World Factbook, and make YOUR case for why they're cruisin' for a bruisin' and need to be attacked right now by The World's Policeman.

  • Anonymous Coward||

    Do you speak a language other than English?

    Are you brown?

    Do you have oil?

    Has your country, at any time, accepted aid from the US?

    If you answered yes to any one of these questions, you're a candidate for a "humanitarian intervention"/"kinetic military action."

  • Marc F Cheney||

    I'm avoiding EconLog. They banned me from commenting just because I said Noam Chomsky was "unhinged".

  • Libertymike||

    While you are at it, how about avoiding the Volokh blog? I was banned for responding to a former assistant United States attorney thusly:

    You must like being a slave, slaver.

  • Almanian!||

    You're not nearly as smart as WomSom, Lardo

  • ||

    Ok, just please don't dredge up that bullshit about White Phosphorous, ok?

  • Almanian!||

    RACIST!

  • Killazontherun||

    If there is one thing I learned from playing X-Com:Terror from the Deep, white prosperous fucking rules when no other tactic is working.

  • Almanian!||

    "white prosperous"

    Excellent, whether intended or unintended...

  • Killazontherun||

    Uhm, yeah . . I meant that!

  • RightNut||

    , "During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States."

    I'd much rather the US not be a party to the pygmys at the ICC.

  • Adam330||

    Let's say that the ICC were allowed to go after Assad, is there any reason to think he'd be sitting in a jail cell at the Hague right now? No. So you can just take that part of your argument out.

  • The Late P Brooks||

    There was no enforcement mechanism

    Bow down; tremble before my sternly worded rebuke!

  • John Thacker||

    At least as relevant as these things is the Kellogg-Briand Pact, which the US did sign and hasn't repudiated. Guess that means that war is ruled out as a method of international relations for the US, so we can't strike Syria.

  • John||

    If you combine the Kellogg-Briand pact is still good law and very relevant. When you combine it with the UN charter, it is, absent self defense, illegal to go to war without UNSC approval.

    Without self defense you have to have some kind of domestic hook to justify it. It can be that we were invited in by what we considered to be the legitimate government like Bush I in Panama. Or it can be that we were protecting our own citizens there like Reagan in Grenada. It can even be that we are enforcing existing UNSC resolutions like Bush in Iraq in 2003.

    But it can't be "bad things are happening there that we want to stop".

  • Marc F Cheney||

    What does Tebow think about all this?

  • Cyto||

    Putin to Obama: Here's your fig leaf!

  • RKJones||

    You are correct that Hague IV,2, which bans the use of projectiles with the sole object to spread Asphyxiating Poisonous Gases was not signed by the United States. A better point for Wasserman Schultz to have made would have been that the United States is a signatory to Hague II, Convention with Respect to the Laws and Customs of War on Land, which bans the use of poison generally.

    Although, even that convention is only binding on signatories, which Syria is not, only prohibits use of poison in conflict between signatories, and has no enforcement mechanism that would justify a U.S. attack on Syria in any event.

  • Eduard van Haalen||

    Since people around me are throwing the dumb Hitler meme, I think I'll Hitler them right back - Hitler claimed that his meddling in Czechoslovakia was humanitarian intervention on behalf of the Sudeten Germans who were supposedly being persecuted by the Prague government.

  • John||

    And said the same about his invasions of Austria and Poland.

  • Goldwin Smith||

    So why do libertarians support the ICC and the UN? Their pronouncements can't be enforced without military intervention.

  • CE||

    We don't.

  • Goldwin Smith||

    So why would Matt Welch think it's bad that the US prevents the ICC from arresting people? It's not like Assad would turn himself in...

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