The Law Concerning Intervention in Syria

Approximately 80,000 people have been killed in what is now being referred to as the “Syrian Civil War”, about half of whom were citizens. The conflict, which escalated from peaceful demonstrations during the ‘Arab Spring’ movement over two years ago, has drawn much attention from the global media as the international community grapples with how best to respond to end the bloodshed, restore peace to the country and ensure a degree of stability in the wider region. In doing so, the conflict engages with the contours of international law and poses some difficult questions with regards to sovereignty, human rights and responsibility.

There is no question that the conflict is now a fully-fledged war, and the indeed the International Committee of the Red Cross declared that it believed the intensity and duration of the violence meant that it should be classified as a “non-international armed conflict” in July 2012. As such, the conflict is subject to international humanitarian law, specifically Common Article 3 of the four 1949 Geneva Conventions, which criminalises acts such as targeting civilians, “outrages upon personal dignity” and summary executions. Moreover, the landmark Tadic case at the International Criminal Tribunal for the former Yugoslavia declared that Additional Protocol II (APII) to the Geneva Conventions was part of customary international law, and therefore it would also apply to the war in Syria. APII expands upon Common Article 3 in both specificity and scope, dealing with issues such as prisoners of war, the forcible movement of civilians and protection for medical personnel.

Even if Syria was not in a state of war, restrictions on state action would still apply, through the vehicle of human rights law. Such an interpretation derives from Article 4 of the International Covenant on Civil and Political Rights which, while it permits derogations from the Covenant “[i]n time of public emergency”, does not allow derogation from the right to life and the right to freedom from torture among other rights. As such, the Syrian government does not have a free hand to quell the rebellion in whatever manner it sees fit. Additionally, it is believed the ICCPR would also apply to rebel groups in any area they control and thus act as the de facto government (see page 33 of this Human Rights Council report related to Libya for precedent in this regard).

In such a legal context (as well as the obvious moral context), the near-continual reporting of atrocities and human rights abuses from Syria is extremely worrying (there is an entire page on Wikipedia dedicated to “Human Rights Violations During the Syrian Civil War”). In November 2011, an Independent International Commission of Inquiry released a report detailing a series of crimes against humanity that had been committed up to that point, such as summary executions, arbitrary arrests, enforced disappearances and torture. Although acts by the government comprise the bulk of such crimes, UN High Commissioner of Human Rights Navi Pillay has notably pointed out that violations are being committed by both sides of the conflict. A prominent example of such crimes is the recent video that shows a well-known rebel commander cutting out and eating the heart of a government soldier, a crime regardless of what legal regime applies.

How can and should the international community respond to such grave breaches of international law and collective morality? Condemnations of the regime by the General Assembly and Human Rights Council have done little to stop the conflict or continuing atrocities. Syria is not a signatory to the Rome Statute, so the International Criminal Court cannot get involved without a Security Council referral. The Security Council is itself deadlocked on the issue, with three attempted resolutions of simple condemnation (never mind any action being proposed) being struck down by the double veto of Russia and China. The European Union imposed on arms embargo on Syria, which did little due to the regime’s ability to rely on Russia for such equipment (the most recent occurrence of which is anti-aircraft missiles designed to deter Western states from unilateral military action).

The core problem is that, short of Security Council action on the subject, there is very little that can legally be done against the Syrian regime. The ‘Responsibility to Protect’ (R2P) doctrine, which sought to prevent future Rwandas and Kosovos from occurring by creating a framework in which intervention could happen, is hamstrung by the requirement for Security Council authorisation that was added to the doctrine when ratified by the General Assembly in 2005 (the fallout from NATO’s mission in Libya in 2011 means R2P is not likely to be invoked by the Security Council any time soon). President Obama’s declaration that the use of chemical weapons was a ‘red line’ with regards to US action in Syria is not only legally dubious (though Syria is a signatory to the 1925 Geneva Protocol that bans chemical weapons in war, there is no means by which such a violation would permit intervention without involvement of the Security Council), but has proven itself little more than rhetoric in the two weeks since evidence of the use of such weapons emerged. The US and EU have declared a desire to arm the rebels, but such actions bring to mind the Nicaragua case in which the ICJ found that US support of the Contras in their rebellion against Daniel Ortega’s government was in violation of Nicaraguan sovereignty.

The only permissible use of force outside of Security Council authorisation in the UN Charter is Article 51, which permits collective or individual self-defence. Israel invoked this right when conducting an air raid on Damascus on 5 May, under the belief that their targets contained missiles bound for the militia Hezbollah in Lebanon. Such an attack brings to the fore questions about the boundaries of self-defence, specifically with regards to the distinction between imminence (permitted under the Caroline test) and pre-emption (outlawed). However, such an argument seems far more legally viable than proposals for NATO to intervene in Syria on the basis of defending Turkey. For such an argument to hold water, the Syrian conflict would need to escalate to the extent that it significantly threatened peace and stability in Turkey. There is no indication that this is happening.

Thousands of lives are threatened in Syria, and the hard-won stability in the Middle East is under serious threat. For such facts to reach the level of threatening “international peace and security”, however, requires Security Council recognition of such, which in turn requires consensus among the Permanent 5. There is no indication that this is likely, and so once again Western states may feel the need to violate international law in order to uphold ‘higher’ values.

 

Sean Butler

Irish Research Council Government of Ireland Scholar

Faculty of Law

University College Cork