Alexander Gillespie: Punishments risk eclipsing crime

Opponents of US-led military action in Syria protesting. Photo / APs S

Western powers' best option for responding to regime's gas attacks in Syria is to arm selective rebels.

The drums of war are beating. There is a strong push for New Zealand to join in. They are increasing in tempo because of the illegal use of inhumane and indiscriminate chemical weapons deployed against civilians.

If the independent evidence shows that chemical weapons have been used, the question is what to do next. In an ideal world, the Security Council would speak with a unified voice and direct the global community to create peace in the region, protect the innocent and punish those responsible for the crime.

This is not an ideal world. The Security Council authorisation of an aggressive military action into Syria is unlikely because of the veto held by Russia and China. China is not a fan of any outside intervention within the borders of a country. Russia is standing by the country it has strong ties with, including its own military base in the port city of Tartus. As a further show of support, it has sent additional warships to the region.

The Security Council and the veto of the five most powerful countries was not invented to grid-lock international relations in times of crisis. It was invented to stop a further world war. In its most pure form, it is about trying to ensure that the mistakes that allowed the League of Nations to collapse and World War II to follow, do not happen again.

To escape the paralysis of the veto and allow some form of military action to respond to heinous crimes against humanity is the challenge that many Western leaders are dealing with at this very moment.

Our history is rich with extreme examples of what happens when good people do nothing in the face of evil. It is a safe bet that if there is no punishment for this crime, the crime will be repeated.

The Responsibility to Protect is the current term used to justify stopping this type of crime and circumventing the objections of the other Security Council members. In short, the ethical obligation to protect the innocent from the most heinous of acts overrides our legal obligation not to go to war without the consent of those we said we would wait for.

However, the Responsibility to Protect, without the support of the Security Council, is not an accepted legal doctrine. It is an idea that floats high on the clouds of revulsion, seeded by repeated inertia in the face of an escalating crisis.

If the United States, Britain and France, along with the explicit support of countries like New Zealand, decide to support military intervention without Security Council approval, then their desire to do the right thing needs to be applauded. However, this will be very short applause, as one quick jab to the face of Assad will not end this fight, and much more importantly, it will create three risks.

The first risk is that this becomes a regional conflict and/or further weapons of mass destruction are involved. If Assad is hit, he may well hit back. If he hits back, he has a greater chance of survival by trying to turn this into a regional conflict and dragging in Iran, Lebanon and his proxies in Palestine.

Both Turkey and Israel are ideal targets. If Turkey is hit, the return punch will be found in the weight of the defence pact of Nato that Turkey is a member of. If Israel is hit with the same chemical weapons that were detonated in Damascus, an eye for an eye will follow.

The possibilities of these exchanges coming to encompass Iran, replete with the promises that Israel has already put on the table to stop their build-up to nuclear capability, are quite real.

The second risk is what happens with Russia and China. Although both Russia and China are friends with Syria, it is unlikely they would go to war for them. They are more likely to bide their time until it is good for them to reply in kind.

The last time that the West played this game and intervened in Kosovo in 1999, Russia replied in Georgia in 2008, under the pretext of humanitarian intervention for dissident communities.

China will continue to tighten its grip on both dissident communities within its own borders and territories such as Tibet. Externally, it is likely it will stand even taller against Japan, the Philippines and India over disputed pieces of territory, as it feels that international law deserves no respect. The third risk is what actually happens to those who were the pretext for the intervention? These communities will need defending more than ever, in which case two options are available.

First, Western soldiers are placed on the ground in Syria. After the occupation of Iraq and Afghanistan there is no appetite for this in any of the countries threatening a military strike.

Alternately, we allow those threatened to defend themselves more adequately through the provision of better weaponry. This should be the preferred approach.

This option, although unpalatable to many, is not currently illegal under international law. It is also much safer than direct military intervention.

If we do this, we must be selective in who the weaponry is given to, and allow this weaponry to be used as a leverage to build a viable opposition which does not represent the antithesis of the values of those who supply the weapons.

If we pursue this path, we will balance our need to respond to the crime, without overtly escalating the situation, whilst also building an opposition that will force the eventual peace settlement that will eventually come in Syria - after much more blood is spilt.

This is, of course, a horrible option. The West applied the same logic when it provided the weaponry to the Afghans fighting the Soviets. A decade later, we had to fight the monster we created.

Horrible or not, if we feel obliged to respond to a crime of unparalleled magnitude, it is the best of a collection of bad choices.

Alexander Gillespie is pro vice-chancellor of research and professor of law at the University of Waikato.