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.