Making war against nation states and their people no longer works. Unstable and undemocratic countries are usually controlled by individuals and cabals against whom military force ends up harming their own domestic victims more than the entrenched leadership, and new regimes offer little improvement.
Destroying the infrastructure of a nation to turn its people against their “leadership” fails, as in Iraq, resulting in the deaths of thousands of innocent children. Targeting “insurgents” using drones and violent nighttime home invasions fails, as in Afghanistan, resulting in “collateral” deaths and injuries to bystanders. Imposition of economic sanctions fail, as in Iran, resulting in the destruction of the middle class and small businesses that are essential to a free society. Support of “rebels” against their government fails, as in Libya, when the new government is controlled by hostile and undemocratic forces. Continued use of aggressive war by the United States to bring about regime change will fail, as in Syria, for all of these reasons.
The use of war as an instrument of foreign policy fails in all of these situations because it does not produce the desired change; it injures the innocent victims of their unrepresentative governments and results in their hatred of the aggressors, rather than their oppressors.
In addition, the use of war by the United States also harms its own people through the wasteful diversion of scarce tax resources to the military-industrial complex, the compiling of massive and unsustainable public debt, and a reduction of personal freedoms by the intelligence-security complex.
Moreover, the use of aggressive, yet undeclared war by the United States has resulted in an undemocratic shift of power from the legislative branch to the executive branch of government. The Constitution provides that “The Congress shall have power … To declare War…” For the past 50 years, however, it has been the president, rather than Congress, who has repeatedly unleashed the greatest military force in history against far weaker nations and their people, who do not have the means or ability to fight back, except through acts of terror.
The aggressive use of war in most of these situations has been illegal. The United States signed the General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-Briand Pact) in 1928. Along with other nations, the U.S. promised to not use war to resolve “disputes or conflicts of whatever nature or of whatever origin they may be.” That treaty is still binding on the United States.
Moreover, the U.S. ratification of the United Nations Charter in 1945 incorporated its provisions into the “supreme law of the land.” Article 2 of the Charter provides, “All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered [and shall] refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”
In addition to Afghanistan, Pakistan and Syria, the United States is also currently conducting aggressive wars in Somalia and Yemen. Not only are these wars undeclared by Congress, their extent is largely concealed from the American people. Moreover, in “fighting” these wars, the president, as Commander in Chief, claims the right to kill and detain “unlawful combatants,” including American citizens, anywhere in the world without trial.
Finally, the American people no longer want to militarily intervene in other countries as a matter of foreign policy. A recent CBS/NYT poll found that 72 percent of Americans are opposed to removing dictators where it can, and a CNN poll found more than six in ten Americans desiring a more “non-interventionist” foreign policy.
There is violence and repression in the world, some of which threatens the security interests of the United States, and it would be naïve to deny it; however, it is equally foolish to believe that undeclared aggressive war against nation states and their people can resolve each and every one of these threats. There has to be a better solution, one that is both legal and effective.
Although it now appears diplomacy may have a chance to resolve the issue of chemical weapons in Syria, the United States continues to provide training and munitions to “rebels” in that country and to secretly deploy special forces and intelligence assets to “prepare the battle space” in case “limited military strikes” are authorized. In fact, supplying weapons to rebels and secretly sending troops and drones into other countries are illegal acts of war.
Let us, for a moment, think “outside the box” about an alternative process, one based on commonsense and the law.
Assuming that the Obama administration can make the case that Bashar al-Assad and his regime poses a risk of danger to the people of the United States, shouldn’t the president present the evidence to Congress? Rather than an authorization to launch “limited military strikes” on Syria, which is tantamount to a declaration of war, the president could request a resolution along these lines:
“The Congress of the United States declares that Bashar al-Assad and his administration of the government of Syria pose a danger to the United States and directs the President of the United States to file an action against the government of Syria in the International Court of Justice and to take all necessary and reasonable steps to compel the personal attendance of Assad at The Hague to defend his government.”
The resolution is directed against Assad, personally, as the dictator of Syria, instead of the people of Syria. It is narrowly designed to compel him to leave the country to attend the trial, thereby forcing him to hand over the reins of his government to other, hopefully more moderate, factions. As a practical matter, once Assad leaves Syria, the chances of his ever returning are very slim.
In many respects, the congressional resolution would act like an arrest warrant in a domestic criminal action. There, a judge finds probable cause for the arrest and directs the police to take the suspect into custody and deliver the defendant for trial. In doing so, the police are authorized to use all necessary and reasonable force to take custody of the accused.
The jurisdiction of the International Court is based upon treaty obligations, as in the United States’ 1979 suit against Iran in its “Case Concerning United States Diplomatic and Consular Staff in Tehran,” or by consent. While a congressional resolution directing the U.S. president to secure the presence (consent) of the Syrian president at the International Court would be coercive, it would be far less violent than the unleashing of bombs and cruise missiles on the Syrian people.
Viewed as a matter of policy, the “arrest” of Assad has a valuable double meaning. One is the actual taking into custody or securing his appearance at The Hague; the other is that he is arrested or stopped from performing the dangerous acts he is accused of.
While the use of reasonable force personally directed against Assad to “arrest” him might result in his death, the use of force would not have political assassination as its purpose. To the contrary and much like hostage negotiations by professional police officers, every attempt should be made to negotiate his voluntary surrender. Reasonable rewards and incentives might also be offered for his delivery by members of his own government or military.
In matters such as Libya’s Muammar Gaddafi or Iraq’s Saddam Hussein, the harm done to the people and societies they governed would have been far less violent under a congressional arrest warrant than the actual war launched upon them by the United States, ostensibly for the same purpose.
Given the fact that societies in nations such as Iraq, Libya or Syria are tribal in nature, the death and injuries suffered by the individual innocent victims of the violent and aggressive wars launched by the United States results in hatred and condemnation from generations to come. To the contrary, however, limited and effective action directed against their native oppressors would rebound with the respect and appreciation of the people, both now and in the future.
President Obama wants to bomb Syria to send a message that the use of chemical weapons against rebel forces is unacceptable. To the contrary, he should send a message to the world that the United States has the wisdom and power to achieve its foreign policy goals in a manner that is consistent with its constitution, legal obligations and the will of its people.
William John Cox is a retired prosecutor and public interest lawyer, author and political activist. He authored the portions of the Police Task Force Report on the role of the police and policy formulation for the National Advisory Commission on Criminal Justice Standards and Goals in 1973. He can be contacted at firstname.lastname@example.org.