The rhetoric of “punishment” has been a ubiquitous justification for intervening in Syria. To take a few examples: France’s President Hollande said that “France is ready to punish those who took the heinous decision to gas innocents.” Secretary of State Kerry implied a punishment rationale when he said, “I’m confident we can hold the Assad regime accountable for their use of chemical weapons, deter this kind of behavior and degrade their capacity to carry it out.” NATO issued this statement: “Any use of [chemical] weapons is unacceptable and cannot go unanswered. Those responsible must be held accountable.” And the G-20 added, “We call for a strong international response to this grave violation of the world’s rules and conscience that will send a clear message that this kind of atrocity can never be repeated. Those who perpetrated these crimes must be held accountable.”
One problem with these sentiments is that international law does not permit the use of force as a punitive measure. This was not always the case. For centuries, war was an acceptable, even a welcome tool for enforcing rights and avenging wrongs, including in the type of cases we now refer as humanitarian interventions on behalf of oppressed populations. But in a move that began in the interwar period, after the Treaty of Versailles became a cautionary tale for those who wished to punish states, the moral rhetoric of “crime” and “punishment” of states has been excised from mainstream international law. It has been replaced with an amoral, utilitarian rhetoric of “threat” and “prevention.” Today, individuals alone are subject to international punishment (which does not include military strikes), while states are subject only to preventive, regulatory, or enforcement measures.
It is therefore not surprising that in its above-quoted statement on holding those who use chemical weapons accountable, NATO quickly added: “We consider the use of chemical weapons as a threat to international peace and security,” invoking the magic words of Chapter VII of the U.N. Charter, which entrusts the Security Council to deal with threats to the peace. Kerry’s statement, too, echoed the goals of prevention when he alluded to deterrence and incapacitation of future attacks as the desired ends of an American military response (although of course, both deterrence and incapacitation are commonly recognized as justifications for punishment). In other words, to conform to international law, neither the United States nor any other country may invoke the interest of punishment. All they can do is plead with the Security Council to exercise is powers to prevent threats to peace and security.
Elsewhere, I have traced the historical movement from the rhetoric of “guilt” to the rhetoric of “threat” in international law. To the extent there is any meaningful difference between talking about prevention and talking about punishment, the preference for prevention has been driven by the belief that prevention is seemingly-neutral while punishment is moralistic. Moral neutrality, it was thought, would be more conducive to peaceful co-existence than Moral judgment.
Driving this belief, I suggest, is an array of considerations: correlating punishment with humiliation and revenge; our fear of the devastating effects of collective “national” punishment on citizens; our perception of punishment as being in conflict with the principle of sovereign equality; and the absence of an international institution to adjudicate the criminality of states. Yet, despite these considerations, I argue, there are many reasons to doubt that the stated correlation between prevention and peace is actually true. Consider only the fact that sanctions imposed as part of the Security Council’s efforts at “prevention” result in no less collective punishment than punitive sanctions do. Even more troubling is the possibility that a language of prevention might in some cases invite more wars, especially when preemptive self-defense is invoked. And note, to deem that the use of chemical weapons against a domestic population is a threat to international peace and security already requires some interpretive jujitsu.
For present purposes, one significant cost of the prevention paradigm is precisely its seemingly moral neutrality. What is primarily wrong about Assad’s use of chemical weapons is not that it is a threat to international peace and security. The threat element might give the international community the incentive to intervene. But the wrong is gassing people. Or, for that matter, killing them en masse by any other means.
It may very well be the case that the western concern about the Syrian regime’s use of chemical weapons has little to do with the plight of the Syrian people and more with a strategic interest in keeping chemical weapons – and all other WMDs – out of bounds. Even if this is the case, however, a moral condemnation of Assad and his forces is not merely a cynical smokescreen. It is, rather, an imperfect condemnation of only a part of what is condemnable.
We are not better off in a system that denies moral condemnation and prefers to frame all discussions of war in “neutral” terms of threats and prevention. Rather, we should be able to have an open debate about what is morally right and wrong, even if international law or strategic interests constrain our choices of action.