The Law of Armed Conflict as a “Core National Interest”

by Laurie R. Blank

After the latest chemical weapons assault by Syria’s armed forces against opposition groups, President Obama stated that the civil war in Syria now implicates “core national interests” of the United States. Criticism and debates about the credibility concerns of a “red line” that was already crossed or the propriety of the Obama Administration’s extensive and overtly public deliberations about strategic issues aside, this pronouncement – and additional elaborations – makes a fascinating statement about law and strategy in international discourse.

In particular, notwithstanding a variety of other key strategic reasons motivating United States action in response to Syria’s use of chemical weapons, President Obama and his national security team continue to emphasize compliance with international legal norms as a primary national interest and justification for any potential action.

Back in May, President Obama highlighted the game-changing nature of chemical weapons in Syria by explaining that “we have established international law and international norms that say when you use these kinds of weapons, you have the potential of killing massive numbers of people in the most inhumane way possible . . . .”

On Monday, Secretary of State John Kerry justified potential United States action in Syria, stating that Syria’s use of chemical weapons “should shock the conscience of the world. It defies any code of morality” and goes “beyond the conflict in Syria itself. This is about the large-scale, indiscriminate use of weapons that the civilized world long ago decided must never be used at all.”

There is no doubt that this emphasis on the fundamental international norms that protect all persons during wartime, now two years into the brutal and seemingly unending conflict in Syria, surely seems to be two years too late. As my colleague Professor Geoffrey Corn and I have argued elsewhere, the violence in Syria and the international community’s reluctance to characterize it as an armed conflict for many months in 2011 and 2012 is a painful reminder of the law of armed conflict’s historic purpose of containing brutality during conflict — a purpose often lost in the now highly-technical and overly legalized process of conflict recognition favored by international courts and scholars. Unfortunately, Syria’s conflict offers far too many reminders of the importance of international law in mitigating humanitarian suffering during conflict and regulating the conduct of hostilities.

President Obama and Secretary Kerry’s recent statements nonetheless introduce an interesting question. The phrase “core national interest,” which President Obama used in his CNN interview last week, brings to mind the fundamental components of sovereignty, such as political autonomy and territorial integrity, as well as access to land and natural resources, for example. But what about law – and international law no less? Does adherence to the rule of law (in this case the law of armed conflict) qualify as an interest at the very heart of a state’s concern?

If you look at the words and phrases used above, the Obama Administration is not resting its hat on the prohibition on chemical weapons alone (partly, of course, because Syria has not signed the Chemical Weapons Convention). A “code of morality,” indiscriminate weapons, inhumane killing – these are all central tenets or terms from the law of armed conflict (LOAC) – the law directly applicable to the internal conflict raging in Syria. President Obama and Secretary Kerry are not simply denouncing the use of chemical weapons per se; they are putting two of LOAC’s core principles center stage: distinction and humanity.

The principle of distinction mandates that parties to a conflict distinguish between those who are fighting and those who are not, and only target the former in launching attacks. In particular, this principle forbids indiscriminate attacks or the use of indiscriminate weapons – specifically because such attacks fundamentally ignore the obligation to distinguish between those who can be targeted and those who must be protected from deliberate and indiscriminate attacks.

The principle of humanity, also referred to as the principle of unnecessary suffering, aims to minimizing suffering in armed conflict. To that end, among other obligations, it prohibits subjecting an opponent to superfluous injury or suffering — that is, injury or suffering beyond that which is necessary to efficiently incapacitate the opponent. International law thus bans certain weapons that are considered inherently to cause unnecessary suffering, such as expanding bullets, blinding laser weapons, and, of course, biological and chemical weapons or other poison gases.

Assad’s latest chemical weapons assault violates both of these principles: the weapons are, as both treaty and customary law prohibit, a method of warfare that is “of a nature to cause superfluous injury or unnecessary suffering,” and the attacks were not directed solely at legitimate targets of attack, but rather launched indiscriminately in a populated area. 

Syria’s armed forces have already violated these and other principles of LOAC with seeming impunity over the past two years; the opposition forces have committed numerous violations of LOAC as well. For the victims, being killed by chemical weapons or by an equally indiscriminate artillery attack is a distinction without a difference. Indeed, it surely is a bit disingenuous to decry the use of chemical weapons because they violate a code of morality and constitute an indiscriminate attack on innocent civilians when the Syrian regime has been doing exactly that with a host of other weapons for the past two years.

These very norms – protection of civilians, prohibition against unnecessary suffering, and the preservation of humanity and human dignity during conflict – are a core interest of humankind. They have been for millennia and the universal ratification of the Geneva Conventions is the modern embodiment of that historical role. But we rarely hear international law referred to as a national interest, let alone a “core” national interest.

Why does this turn of the phrase matter? The President most likely used it as a signaling mechanism as part of the domestic and multilateral process of determining what, if any, steps the U.S. and its allies could or would take in the coming days and weeks. From a broader view, however, it also serves as another signal: LOAC and its key principles are of fundamental concern, not just to how U.S forces see and conduct themselves during armed conflict (an important point to continually reinforce in and of itself), but to how all countries and individuals act and are treated during conflict, even far across the globe.

We should not need a horrific chemical weapons attack to remind us of the role LOAC plays in protecting all persons during conflict, whether it is one fought with advanced weaponry, outlawed weapons, or machetes and other low-tech weapons. But that does not mean we cannot welcome the reminder.

This is a body of law aimed at mitigating suffering during conflict and protecting civilians and others who are hors de combat (literally, “out of combat”, whether through wounds, detention, or sickness) from the hazards of war. Until such time as state and non-state groups no longer resort to conflict to achieve political or other ends (a time we certainly will not see in our lifetimes or our children’s lifetimes, or likely ever, unfortunately), LOAC is a — the — key bulwark against unregulated brutality and unmitigated suffering during conflict. A core national interest? Absolutely.

Laurie Blank is the Director of the International Humanitarian Law Clinic at Emory University School of Law.