Nullum crimen sine poena, “No crime without a punishment.”
(Ancient principle of law reaffirmed at the Nuremberg Trials)
For the most part, a military response to the recent Syrian chemical attacks at Douma was obligatory under the authoritative international law. The system of world law as originally established under the Peace of Westphalia (1648) is largely based on “self-help.” This system of “self-help” requires major world powers to accept pertinent enforcement responsibilities. Ideally, the major world powers would have resolved the Syrian conflict within the treaty-shaped boundaries of the UN Security Council. Unfortunately, that was a not an option and the military action launched by the United States, France, and United Kingdom was fundamentally necessary and proper.
In part, at least, this residual permissibility stemmed from Russia’s expected further use of the veto at the United Nations. Russia had recently vetoed a markedly reasonable Security Council resolution condemning Syrian war crimes and crimes against humanity.
Although the very recent use of force against Syrian chemical weapons-related sites by three allied powers was presumptively just and lawful, this military response still needed to conform to all ordinary expectations of the law of war, aka humanitarian international law. Appropriately, in this connection, it does appear that the forceful response was verifiably discriminate, proportionate and within both codified and customary parameters of military necessity.
To offer a somewhat narrower legal observation, the allied right to act against Bashar al-Assad’s relevant military assets in Syria stemmed, inter alia, from assorted basic obligations defined at the UN Charter ; the Genocide Convention; and multiple other human rights conventions. Going ahead, the key challenge for Mr. Trump and his allies remains what it was before the coordinated strikes – that is, meeting all proper military and legal objectives without simultaneously being caught up in a prospectively nuclear confrontation with Russia.
The core dangers are still real and potentially existential. In this regard, it is plausible that Mr. Putin will soon deploy additional Russian soldiers to some of those areas most likely to be targeted by any future allied attacks. In the expressly technical language of nuclear deterrence theory, any such deployment would then be characterized as a “trip wire.” Accordingly, the real purpose of these additional Russian troops would not be to fight against the Americans (there could never be any strategic or tactical advantage from such a fight), but rather to “trip” certain further escalations with the United States.
It’s not that Putin would welcome any such escalations per se, but that he would expect this particular sort of deployment to further strengthen his overall (and still plausibly indispensable) deterrence posture in the volatile region.
For Mr. Putin, all of this would represent a substantial gamble, one that could quickly escalate out of control toward either an inadvertent or (especially during the later stages of any protracted conflict) deliberate nuclear war. Pursuant to what is generally known about determining probabilities in unprecedented circumstances – that is, that such probabilities are simply not ascertainable for unique events – there would be available no reliable ways to calculate just how it would all end. Presently, in addition to variously relevant jurisprudential considerations, this sobering inconclusiveness should be viewed as a “red flag” by both Mr. Putin and Mr. Trump.
Under no circumstances should the American president conclude from his “one-shot encounter” with Syria that all pre-existing dangers have already passed. The Russian soldiers deployed in Syria will only have a real function in a direct encounter with American forces. In essence, that function will be to die. They could and would serve absolutely no other military function. Even if Mr. Putin should not expressly augment such a “tripwire” Russian force, his previously dispersed S-400 advanced surface-to-air missile systems could elicit the very same perilous consequences in any future encounters with allied bombs and missiles.
Because the Americans could easily decide to strike these important air-defense targets first in any such future encounters, Russian military personnel could then be among the first recognizable casualties of superpower military engagement in Syria.
Then what?
At that perilous stage, we must now already inquire, how should President Trump and his allies most effectively proceed? President Trump’s residual policy options here could unwittingly lead to a direct and potentially irreversible US-Russian military encounter. To prevent this altogether, or at least to blunt the likelihood, the president’s most capable strategic thinkers (not his tactical military planners) would then need to work very quickly (among other things) through the unimaginably complex dialectics of virtually all possible nuclear conflict scenarios and outcomes.
At that stage, could these vital thinkers possibly manage such staggering calculations in the total absence of historical experience or precedent, and in such sorely compressed time-urgent circumstances?
In sum, what will be needed here will be exceptional intellectual skills, not in lieu of the usual military operational talents, but in addition to them. Above all, these complementary intellectual expectations would need to be satisfied suitably prior to any actual US-Russian engagements, and not be anterior to them. Can Mr. Trump and his counselors expectedly succeed at this very demanding level of analytic reflection? And can they succeed while simultaneously managing to support various peremptory (jus cogens) norms of binding international law?
To be sure, it would be dreadfully ironic if an American president’s alleged commitment to international law enforcement led this country into a superpower nuclear war. Prima facie, in such intolerable but still foreseeable circumstances, any allegedly “successful” commitment to law enforcement would clearly have become utterly moot.
This article was first published at Jurist.