Pity the people of Syria, for there is no end in sight to their suffering, caught as they are between a brutal dictator and a myriad of rebel groups; and between the interests of outside great powers and the interference of their neighbors. Pity the R2P doctrine as well, for this sad case is undermining its flimsy status establishment as a widely recognized principle of international law. In this piece I argue that the proposed attack by the US and France to punish the Assad government for the use of chemical weapons would not be legitimate, nor would it be legal, and it would be ineffective. It might help neither the people of Syria, nor the principles of R2P.

First, I would challenge Gareth Evans: there is no “universal consensus about the basic principles” of R2P as he asserts. The statement that “no state now disagrees that every state has the responsibility” to protect its own people is far from reality. This might be the case for democratic states, where governments are supposed to answer to their peoples, but it is not at all clear that it applies in authoritarian ones, where the raison d’état tramples human rights. In Latin America, having lived through dictatorships, we know this all too well.

Unfortunately, the idea that human rights should be put before the preservation of the state is actually not as widespread as the decade of the 1990s, of liberal hegemony, led us to believe. When faced with internal insurrection and a real threat to their integrity, many more states than we would like to admit are ready to use force against their own unarmed population; to use torture, murder, and to commit other severe violations of human rights. Once states resort to the use of force, the line between mere killing and an atrocity is a very thin one indeed. Russia and China, both permanent members of the Security Council, seem to be quite sympathetic to the Assad regime in that sense. And I am afraid that they are not alone in the international system. The Mexican government for instance, along with many others in Latin America, embraces a mildly non-interventionist position, caught between a tradition of defending national sovereignty and a newly acquired activism on human rights that rejects an authoritarian past.

Second, as Kwesi Aning and Frank Okyere point out, the application of the concept of R2P becomes all the more difficult in a situation of a messy civil war, as is the case of Syria, where it is difficult to establish who is committing what war crime. In Syria, all the warring factions seem to be committing gross violations of human rights, and few independent observers and journalists are allowed in to the country. The truth is we do not know for sure who is nastier, and we cannot always identify the perpetrator. In this context, the punishment of just one warring faction (the one we like the least - and not the others) amounts to intervention in a war to help those we dislike the least. In other words, if the principle is not applied evenly and impartially, R2P becomes a mere pretext to help allies and undermine enemies. Moreover, if the punished faction happens to be the government, as happened in Libya, intervention may lead to regime change. If applied in this way, the legitimacy of the principle of R2P is inevitably eroded, as the other authors have underlined.

Third, because the Syrian case involves a messy civil war, we enter the terrain not only of R2P, but also of the laws of war and the prohibition to use chemical weapons. It has to be acknowledged that the whole notion of the jus in bello remains somehow perplexing in the modern era, as it rests on the assumption that, in the context of war, some forms of killing are more morally acceptable than others. That was understandable in the age of chivalry and up to the WWI, before modern weaponry was developed and war was waged on a defined battlefield, more or less exclusively by soldiers. The motive behind banning chemical weapons or other weapons of mass destruction (WMD) is that they kill indiscriminately; they don’t distinguish between civilians and soldiers, and belongs to this “idealized” conception of war. However, in “the era of total war” (as Hobsbawm called it), and when violence is not waged by regular armies but by a myriad of different types of fighters, and in the midst of cities and villages, the effect of WMD is not very different from what happens when heavy artillery is used to bombard an urban area.

Why does the use of chemical weapons constitute a ‘red line’, while other equally horrific war crimes (torture, massacres) do not? Many of these questions remain unanswered in principle. In practice and in this case, the answer is that the US President set that ‘red line’, and now that the use of chemical weapons has been established, his credibility is at stake. The decision to strike Syria might be justified by the US national interest, and to maintain the credibility of US commitments to their allies, particularly Turkey and Israel, but its justification on the basis of R2P is slipping further away. If there is a military strike against Syria, most people will see it as a result of old-fashioned realpolitik, rather than a heroic application of R2P’s moral principles. And that will seriously undermine support for R2P.

For these three reasons, it is possible to conclude that the R2P doctrine is not nearly so widely supported in the international society as some of us hoped it would be. That is why the legitimacy of a military intervention in Syria is widely questioned today by many states, parliaments (as in the UK) and public opinion (as in the US).

Beyond legitimacy and morality, comes the problem of legality. Without a Security Council resolution under Chapter VII of the UN Charter, the use of force is not legal, even to enforce R2P, or to stop genocide, or for whatever reason. The ends do not justify the means. Even if it is legitimate (as was the case of Kosovo, but is questionable in Syria) to attack the Assad government, without a UNSC mandate it would be illegal, just as NATO’s Kosovo intervention was illegal. As Prof. Chimni correctly points out, one unlawful intervention does not legalize another. The contradiction is plain to see: a violation of a principle of international law cannot be punished through violating another principle of international law. It is difficult to see how this kind of praxis would help in winning wider acceptance of R2P norms, or wider respect for the rule of law in the international society. Kosovo was an anomaly: there was a flagrant attempt to commit genocide by a dictator no one liked. He did not succeed because NATO’s intervention prevented it and his Russian friends were too weak. The distribution of power has changed a lot since 1999, and Bashar Al Assad has many more friends in powerful places than Milosevic did.

And finally there is the very practical issue of what a military attack, even if it was legitimate and legal, could achieve in the Syrian situation. How can military strikes stop the use of chemical weapons? The proposed intervention amounts to mere punishment, but will not solve the ongoing tragedy. Making a difference to the victims would require very costly and long term commitment. However, the precedents of interventions in Iraq and Afghanistan loom large - they were not able to stop the carnage even with troops on the ground for many years.

Many have pointed out that any military action will create more victims, more ‘collateral damage’. Bombing Belgrade from 10,000 feet to defend Kosovars was not a clean affair either – remember the strikes on the Chinese embassy. And in the case of Syria, undermining the government in Damascus might embolden Islamist extremists. Bombing from 10,000 feet will not stop the war, or the suffering, or the tragedy. It might very well make it worse and further internationalize the conflict.

Regardless of whether an attack is launched to punish the use of chemical weapons, if the humanitarian concern for the Syrian people is genuine, Western governments could do much more to mobilize the international community to attend to the unfolding disaster of refugees and internally displaced people that this carnage is producing. That would be widely legitimate, certainly legal, and would offer protection to millions of innocent civilians who need it.