US Air Strikes and Syrian "Human Shields"

Looking ahead, Bashar al-Assad will likely deploy "human shields." Known formally as "perfidy," such lawless behavior should not deter President Trump from acting to meaningfully counter the dictator's war crimes. Opinion

US Air Strikes and Syrian "Human Shields"

Aleppo, Syria (Photo: AP)

More than likely, Donald Trump's April 6, 2017, Tomahawk cruise missile attack against Syrian targets will not represent the American president's operational endgame. Unless Mr. Trump and his senior advisors should calculate that any further US strikes would prove correspondingly helpful to Sunni ISIS, and could thus obstruct their still-primary counter-terrorism objectives, Syrian regime targets will remain locked in very determined American crosshairs. By definition, at least from the standpoint of relevant international law, Mr. Trump's discriminate and proportionate military actions against a conspicuously genocidal Bashar al-Assad could then still be both legal and law-enforcing.

There are, however, some worrisome and meaningfully intersecting tactical issues. In the past, al-Assad has sometimes very deliberately moved his military equipment and personnel into crowded civilian areas, and has even placed assorted regime prisoners within military sites as "human shields." More precisely, there is a pertinent history here of illegally moving rockets, Scud missiles, launchers and soldiers to schools, university dormitories, and government buildings. It follows, should Damascus resort once more to such unacceptably deceptive practices, that certain prospective US-led air strike reprisals might no longer be judged "cost effective" in Washington.

Law matters. In jurisprudence, there is a specifically correct term for any such resort to human shields. That term is "perfidy."

There is more. Any future Syrian regime resort to perfidy would probably have two mutually-reinforcing purposes: (1) to deter US or more broadly western air strikes against vulnerable regime targets; and (2) to create post-attack "evidence" of "American aggression."  Plausibly, next generation human shields in Syria would be drawn once again from among selected Assad foes, many of whom would be dragged out of regime prisons for this insidious purpose, and, again, from among ordinary civilians, some of whom may earlier have even been enthusiastic regime-supporters.

For all such future human shields, the key issues are not narrowly legal or deceivingly abstract. Rather, whatever their different ideological leanings, and however dispassionate their geographic placement, these victims' consequent tragedy would be manifestly up close and personal. Looking back from a private standpoint, it will merely have been their particular misfortune to have been placed intentionally within the disciplined American line of fire.

More generally, especially because Syrian war crimes and crimes against humanity remain the indispensably core rationale for President Donald Trump's plausibly still-contemplated humanitarian intervention, such a continuing Assad regime policy would represent another serious violation of applicable international law.

In such cases, the ascertainably legal problem would not be deception per se. Under longstanding international law, certain kinds of deception can even be permissible in armed conflict. Still, inter alia, the Hague Regulations plainly disallow any deliberate placement of military assets or military personnel in populated civilian areas, and, reciprocally, the willful transfer of civilian populations into military areas. Worth mentioning, too, is that assorted Syrian rebel forces, most notably ISIS, have also made an established practice of perfidy, a fact that in no way diminishes the corrosiveness of Syrian regime crimes, but does effectively complicate certain future American calculations.

For the benefit of the president's legal advisors, certain augmenting prohibitions of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of 1949. These important rules are universally binding, on the basis of an equally authoritative customary international law. Moreover, this universality has distinctly vital implications for any ongoing or impending Syria crisis. It means, among other things, that all non-parties to the codified Hague and Geneva rules are still fully bound by the norms and expectations that stem from these rudimentary humanitarian rules.

Because they are "incontrovertible," and must be observed at all times, these norms and expectations are referred to as "peremptory." This particular term has nothing to do with "preemption," which describes an act of military (not legal) significance, and references a time-urgent defensive first strike. Further, in those specific circumstances where a preemptive strike is also assessed to be permissible under international law, it is called "anticipatory self-defense."

But back to perfidy. In world politics, perfidy is never a minor infraction. Always, it represents a genuinely serious or "egregious" violation of the law of war, one that is starkly identified as a “grave breach” of Article 147 of Geneva Convention No. IV. A determinable effect of an American military response to perfidy committed by Bashar al-Assad would be to immunize the United States from any direct or indirect legal responsibilities.

In other words, even if it is American ordnance that would kill or maim Syrian noncombatants, the US itself would bear no formal legal burden for actually causing the "collateral harms."

Nonetheless, in these bewildering "fog of war" circumstances, politics and propaganda could effectively supersede authoritative law. Once any American resort to retributive force had created evident Syrian civilian casualties, the palpably graphic power of You Tube and corollary, social networking sites could quickly "trump" any formal jurisprudence. Even though Syria, and not the United States, should properly bear all legal responsibility for any American-inflicted retaliatory harms, the expected circulation of graphically disturbing images of writhing civilian victims could convincingly suggest otherwise.

Often, similar difficulties have arisen for Israel, in its own responses to relentless Hamas terrorism from Gaza. Because Hamas routinely resorts to perfidious placement of terror-rockets among Palestinian populations, obligatory self-defense responses from Israel that unintentionally cause civilian harms have been conveniently misrepresented as "disproportionate."

Looking ahead, and learning from Israel's bitter Gaza experience with counter-terrorist operations, President Trump must now prepare not only for possible judgments of ordinary courts of justice, but also for assessments in the much less accountable "court" of world public opinion. The determinable fact that the United States would have the actual law on its side might not be exculpatory in practical terms. Indeed, in these very pragmatic considerations, the United States could still expect a literal barrage of visceral criticism, acrimonious complaint, and perhaps even thoroughly wrongful howls of anti-American execration.

President Trump is not mistaken in asserting that the United States has a firm legal right to act in Syria on behalf of aggrieved populations, via permissible humanitarian intervention, or by the "Responsibility to Protect" (R2P). To be sure, any intentional national use of chemical weapons against civilian populations is a codified and customary criminal act, one that plainly warrants interference and punishment under the fundamental Nuremberg Principles (1950) precept of Nullum crimen sine poena, "No crime without a punishment." The president's core legal argument here is strengthened by the indisputable fact that international law is already part of the law of the United States, and is therefore also binding upon us as specifically American law.

This absolutely vital "incorporation" is based primarily on Article 6 of the United States Constitution, the "Supremacy Clause," and also upon assorted US Supreme Court decisions, especially the Pacquete Habana (1900) and Tel-Oren vs. Libyan Arab Republic (1984).

In the final analysis, the truly policy-centered issues here are not preeminently legal. Instead, what will matter most, are the discernibly strategic and geopolitical results. At this time, it is fully reasonable to expect such untidy results could include a perilously wider war, a broadened belligerency comprising (1) measurably enlarged jihadist terror attacks against the United States and its allies; and  (2) tangibly rapid expansions of Iranian nuclear weapons-related activities.

Although difficult to imagine, the more-or-less calculable costs of these corrosive outcomes could be as severe, or more severe, than the original Syrian crimes of war and crimes against humanity. Ironically, moreover, these very substantial human costs could sometime include US-inflicted Syrian civilian casualties, a cautionary result that President Trump would soon need to carefully factor into any of his future war-planning scenarios. While all such collateral harms would have been generated by the Assad regime's perfidious use of human shields – and would therefore be the corresponding legal responsibility of Damascus, and not Washington – graphic images of slaughtered Syrian women and children could nonetheless reinforce Syrian (potentially also Russian and Iranian) allegations of "American aggression."

The bottom line is not that President Trump should necessarily avoid launching discriminate and proportionate follow-on strikes against still-legitimate Syrian military targets. Rather, it is that he should remain suitably well-prepared to counter an expected barrage of well-orchestrated anti-American vitriol with pertinent international law. Assuredly, the major issues here will not be predominantly legal, but a capable president should still be reminded that lawfulness is always a potentially vital component of national military power.

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Louis René Beres is Emeritus Professor of International Law at Purdue. He lectures and publishes widely on matters of Israeli security and nuclear strategy.

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