Sunday, September 08, 2013

First, Make No War

By Mike Dorf

The ancient maxim primum non nocere--first, do no harm--has been taught to new medical doctors for many years.  Whether the medical and pharmaceutical industries in fact observe this principle is open to serious doubt, but they ought to.  It is a basic principle about modesty and unexpected consequences. But it is more than that; it is also a principle of moral responsibility, and one that the people who are pushing for U.S. military action in Syria appear to have mostly overlooked.  Let me explain.

As I have written before, I believe that the proposed use of force by the U.S. to punish Bashar al-Assad's regime for its ghastly use of chemical weapons is clearly illegal under international law and, although I also believe that there are some circumstances in which it is appropriate to violate the law in the service of the greater good, I do not think that the Obama Administration has come close to making a persuasive argument that this is such a circumstance.

Let us put all of that aside.  Suppose one were to evaluate the advisability of bombing Syria without regard to its illegality as a matter of international law.  Nonetheless, I think the Administration's argument falls very far short.

To begin, there is the peculiarity of putting aside international law.  After all, a major piece of the Administration's justification for taking action is the fact that the Assad regime has violated international law.  Syria is one of a handful of nations that has not signed the Chemical Weapons Convention but it did sign the 1925 Geneva Protocol and, in any event, the prohibition on chemical weapons use is by now so well established that it ought to count as customary international law, applicable even to non-signatories to the implementing conventions.  But if the Administration chooses to disregard the international law limits on the use of force in the UN Charter, then it is not clear why it should get any mileage out of the fact that international law forbids chemical weapons.  One does not vindicate international law by violating it.  The case for bombing Syria would thus have to turn on the argument that using chemical weapons to kill innocent civilians is worse than using other weapons to kill innocent civilians.  Perhaps that argument could be made, but I would think that a big part of the argument would invoke the world-wide condemnation of chemical weapons, which is itself intertwined with the illegality of chemical weapons use.

Suppose one gets over that hurdle.  What then is the case for bombing Syria?  The most thoughtful proponents of taking action acknowledge that bombing could be counter-productive: It could widen the conflict to include Iran, Israel, Lebanon, Turkey, and of course, the United States; it could embolden Assad because of the ostentatious promise that bombing would not be followed by additional military measures in the event that Syria continues to use chemical weapons; it could rally support for Assad; or it could "succeed" in the sense of weakening him but strengthening the rebels, thereby leading to a more protracted civil war or, in the be-careful-what-you-wish-for category, a rebel victory and an al Q'aeda state in Syria.

Some of the proponents of bombing--like Nicholas Kristof--acknowledge the risks that bombing would be worse than not-bombing, but favor bombing nonetheless on the the ground that it might result in a modest improvement, in particular by deterring future chemical weapons use.  I'll concede that, but the framing strikes me as all wrong.

If a doctor should hesitate before administering medicine because it could make the patient worse, then surely a country should hesitate before resorting to bombs when the best argument for the use of bombs is that they might make things a little bit better.  The principle of first do no harm would appear to be at least as strong with respect to bombs as medicine.

I suppose a certain kind of utilitarian might disagree.  He might say that failing to act is a kind of action, and so we should not begin with a thumb on the scale in favor of inaction.  I would say that in the present circumstances it seems that bombing is more likely to make things worse than to make them better, but let's suppose that the matter were in equipoise--that we really could not say whether the risks of action are greater or less than the risks of inaction.  Is it really right to equte harms that occur because we fail to intervene in the hope of stopping them with harms that occur because we act to bring them about?

As I noted in a recent post on an unrelated subject, conventional morality generally treats acts quite differently from omissions.  The point is not that there is never a moral duty to rescue.  The point is that in weighing the costs and benefits of a proposed action, we generally think that it is worse to act in such a way as to bring about a harm than to fail to act in a way that prevents that harm.  Tort law generally reflects this view, treating a doctor who fails to render aid as blameless but holding a doctor liable for a botched rescue attempt.

Kristof began the column I have linked above with a challenge to people like me, asking what we favor.  To my mind, that's a very misguided question.  If there's a person suffering from some injury, and someone proposes hitting him over the head with a hammer, you don't need to offer a better alternative; you simply need to say that hammering is worse than doing nothing.

In fact, however, there is a pretty obvious affirmative course that the Administration could be pursuing: engaging in a full diplomatic effort with Russia and Iran, Assad's two main backers.  Despite the frosty personal relationship between Obama and Putin, there are enough areas of shared interest that ought to enable the U.S. to persuade Russia that it can protect its interests in a future Assad-less Syria. Meanwhile, the Administration should take advantage of the less hostile tone coming from Tehran since the ascension of Hassan Rouhani to the presidency.  Perhaps the Administration is already quietly pursuing these paths in parallel with its pro-bombing campaign.  If so, that's for the good, but I would suggest that the diplomacy would go better were it not overshadowed by the effort to build support for bombing.


Glen Salo said...

Excellent argument. I would add that regardless of the nobility of our motives, or of ghastly pictures shown each night on television, we must be extremely wary of becoming involved militarily in conflicts where the hatreds run deep, in societies where, traditionally, political accommodation is non-existent. This is not to say that we should ignore conflict, but we must be prepared to use the other instruments of national power, i.e., the political, economic, and diplomatic to help to terminate it. However we should keep in mind what the eminent political philosopher, Hans Morgenthau,observed:

"Good motives give assurance against deliberately bad policies; they do not guarantee the moral goodness and political success of the policies they inspire. What is important to know, is not the motives of the statesman, but his intellectual ability to comprehend the essentials of foreign policy, as well as his political ability to translate what he has comprehended into successful political action."(Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 4th Ed. (New York: Alfred A. Knopf, Inc.), p.6.)

In 1994-1995, I was a student at the US Army's Command and General Staff College. There, a former senior United Nations represen-tative in Sarajevo told the class during a presentation on the Balkan Wars that Bosnian Government officials, as well as Bosnian Serb officials, both wanted US forces on the ground immediately. They wanted this so they could immediately start killing American troops, thereby getting the US involved in the conflict on "their side". Clearly a protracted war such as the one being waged in Syria is the last type of conflict we want to become engaged in.

In fact, a SOF helicopter pilot who ferried Syrian troops during Operation Desert Shield/Desert Storm told me that a Syrian soldier told him he would rather be killing Americans than Iraqis.

We have no national security interests in the Syrian civil war and we have no business to involved there. This is an issue for the Syrians, Syria's neighbors and United Nations to deal with; and that is where it belongs.

Michael said...

Why do the administration's arguments matter? The situation is what it is; either they ought to bomb or they oughtn't, regardless of whether they are able to enunciate the appropriate reasons. We should speak to the situation, not their arguments.

Michael said...

If there's a person suffering from some injury, and someone proposes hitting him over the head with a hammer, you don't need to offer a better alternative; you simply need to say that hammering is worse than doing nothing.

You need to offer an alternative if you want to claim to be showing anything but indifference toward the person's plight.

Sam Rickless said...

@ Glen: The argument that what happens in Syria is a matter for Syrians and the UN suggests the argument that what happens in Nazi gas chambers is a matter for Germans and the League of Nations. The latter argument is bad. So the former argument is also bad. Also, no-one is talking about putting American troops on the ground in Syria.

@ Michael: Arguments matter because the claim that one ought to bomb (or that one ought not to bomb), if rational, must be based on a good argument. Speaking to the situation involves making some kind of argument.

@ Mike: The main problem with chemical weapons is not that they were used to kill vast numbers of innocents in the suburbs of Damascus. The main problem with chemical weapons is that a relatively small number of canisters affixed to conventional weapons *can*, in one go, kill a huge number of innocents. Chemical weapons, like nuclear weapons, are transformative because they change the order of magnitude of destruction of innocents per attack. These weapons need to be destroyed or secured. If they get in the wrong hands, they could be used to kill millions in a large city in one go. It's not just that Assad needs not to *use* the weapons against his own people: it's that he needs to *secure* them.

I don't think tort law is the right analogy. Assad's actions are criminal in the highest degree. We are talking about premeditated murder. It is appropriate to use force to deter a murderer from killing again. Primum non nocere just does not apply to someone who has himself harmed others without justification.

The biggest problem, it seems to me, is not international law. The fact that the UN won't enforce the international laws that Syria has violated does not mean that the United States is not permitted to enforce that law. The biggest problem is that deterring Assad and enforcing international law by using force against the Assad regime will itself kill innocents and is also likely to widen the conflict in unpredictable ways, as you say. In response to US bombing, Syria could send conventional or Sarin bombs into Israel. Israel could then defend itself, and now we have a real war on our hands, in additional to civil war in Syria. Syria's backers, Russia and Iran, could become involved. Who knows? The risks of wider conflagration are high. Arguably, too high to justify what the Obama administration wants, which is a relatively short-term targeted response to the use of chemical weapons. So in the end I think I end up in the same place as you for some of the same reasons, but not exactly the same reasons.

Michael said...


Right. Arguments matter. What matters is what is the most persuasive (really, just what is the right) argument, not whether the administration is making it or not. What matters is whether the best arguments (made by anyone, or even not made but theoretically devisable) win out over lesser arguments in such a way that they recommend the proposed course of action.

Of course, proposals are rarely so precisely on-target to what the balance of arguments recommend that they are perfectly supported by that balance. In practice, you have to make allowances for less-sharp resolution than that. But broadly, what matters is what the best arguments recommend, not whether some particular arguer managed to devise and say them, even the agent who would carry out an action being argued for or against (variously by various arguers).

David Ricardo said...

Mr. Dorf raises an important methodological point in the discussion of Syrian policy, namely that we view the rationale for taking action in any given situation differently from the rationale for not taking action. The implication in his discussion is that there is a stronger burden on those who propose action than on those who argue that no action should be taken (even as he does raise some argument in favor of not taking action). And he is correct that this is the way society views these decisions.

This process reflects a benign prejudice of Mr. Dorf’s background in legal studies. In law the burden of proof is on the prosecutor (criminal cases)/plaintiff (civil cases). The defendant does not have an obligation to mount a defense, the prosecutor/plaintiff does have an obligation to mount a case. A verdict for the defense is the default position, failure by the prosecutor/plaintiff to prove a case results in a decision in favor of the defendant even if the defendant has said nothing. And in law this is how it should be.

However this is not necessarily a proper process outside of law. A logical and rational mthodology for policy decisions should place an equal burden on both sides, in a sense arguing that the case is de novo. A binary issue should be approached that each side supporting one of the two options has an equal obligation (and should have equal opportunity) to argue and support their position. The default position should not be implemented unless it is shown to be superior to the alternative, and not just because the case for the alternative is weak. The case for the default position may be weaker, and unless that case is required to be presented the decision process is incomplete.

In an earlier set of posts on this forum the question arose as to whether or not the city of Detroit should sell its art collection to fund its obligations to provide services and retirement payments. Those arguing that the city should retain the collection should have a burden of persuasion equal to those arguing that the city should sell the collection. The fact that the city currently owned the collection (the endowment effect) while emotionally present is largely irrelevant to the economic decision of whether or not to retain or sell the collection

Those supporting a policy decision not to act in Syria have the same obligation to show that theirs is the better position as those arguing that the decision to take action is the better position. Logically there is nothing inherent in a default position over a decision to take action, even if psychologically and socially and emotionally individuals do not recognize this. A decision not to take action is not morally superior by definition over the decision to take action, regardless of whether or not we think it is so. The methodology of the burden of proof in law does not translate to the methodology of public policy decision.

Mr. Dorf and those who agree with him may be correct, and likely are correct, but they should not prevail by default. The debate over whether or not to act in Syria is not one held in a court of law. They have an burden equal to that which they would impose on those with whom they disagree.

Paul Scott said...

I have a question regarding a different part of the various statements, both here and elsewhere, with regard to Syria.

It is universally stated that there is, at the very least, an world-wide understanding on the prohibition of chemical weapons.

Whenever I hear it, I always question it. It seems that at least part of the "obviousness" of this statement, is that the speaker is always from a 1st world country, and is almost always from a country in possession of nuclear arms.

The various "international" rules of war have always seemed very convenient to those already in power - both militarily and economically. Chemical weapons are one of the few non-nuclear weapons of mass destruction. We possess a lot of weapons of mass destruction, so it seems at least as I say, convenient, to me that our moral position on chemical, biological and nuclear weapons just happens to be the position most likely to benefit us.

The same is true, of course, with terrorism.

That is, our military and economy are so completely dominant. It will remain so so long as 1. only military targets are morally legitimate targets AND 2. only weapons of mass destruction inaccessible to most nations are legitimate weapons of mass destruction.

I do not see the United States dismantling its WMDs. I do see the United States engaging in military actions in which there are civilian casualties.

I thus usually find our so called "moral" objections to the actions of those like Assad to be entirely self-serving and usually hypocritical.

Glen Salo said...

@Sam Rickless I think that your comparison is wrong. The UN is not the League of Nations, we are in the security council and so is the rest of the world. We have not pursued any effort worth mentioning through the UN. With respect to boots in the ground... I served in the Air Force of almost 30 years. Have you heard of "mission creep"?

In any case, I suppose that it is moot issue. Vladimir Putin has put forth an initiative that will remove chemical weapons from Assad. President Obama is claiming credit for it--he says he discussed it with VP at the G-20 summit.

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