SYRIA IMBROGLIO:
APPLICABILITY OF INTERNATIONAL LAW RULES AND PRACTICE:
APPLICABILITY OF INTERNATIONAL LAW RULES AND PRACTICE:
by
Dr. Theophilus Olusegun
Obayemi, II*
Obayemi, II*
I.
Introduction
Introduction
We re-examine the
United States-led intervention in Syria. First, our thesis is that within the
context of the International Court of Justice (“ICJ”)’s decision in Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June
27, 1986.—there has actually been “interventions” by the United States and its
allies inside the Syrian borders. Second, we argue that the United Nations
General Assembly (“UNGA”) ought to have requested the ICJ to issue an Advisory
Opinion on the legality and/or lawfulness of the United States and French-led
intervention in Syria. Third, humanitarian intervention towards preventing
genocide and serious violations of humanitarian rights is now a jus cogens,
which does not need a United Nations Security Council’s Resolution. In a
nutshell, the UNGA should have taken over the jurisdiction of the Syrian case
over and above the need for a Chapter VII Security Council Resolution.
United States-led intervention in Syria. First, our thesis is that within the
context of the International Court of Justice (“ICJ”)’s decision in Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June
27, 1986.—there has actually been “interventions” by the United States and its
allies inside the Syrian borders. Second, we argue that the United Nations
General Assembly (“UNGA”) ought to have requested the ICJ to issue an Advisory
Opinion on the legality and/or lawfulness of the United States and French-led
intervention in Syria. Third, humanitarian intervention towards preventing
genocide and serious violations of humanitarian rights is now a jus cogens,
which does not need a United Nations Security Council’s Resolution. In a
nutshell, the UNGA should have taken over the jurisdiction of the Syrian case
over and above the need for a Chapter VII Security Council Resolution.
In September 2013, many
international law observers had expected a full-blown attack by the United
States armed forces against the Assad Syrian government. In an attempt to avoid
being dragged into an unpopular military action as occurred in Vietnam and
Iraq, President Barrack Obama sought ratification and support from the
Congress. In the midst, Vladmir Putin, Russian Head of State offered to
negotiate the peaceful surrender of chemical weapons by Assad. Salutory as the
efforts to avert military confrontation may seem, international law
practitioners are concerned that the rules of international law were not
followed and were neither referenced in solving the impasse.
international law observers had expected a full-blown attack by the United
States armed forces against the Assad Syrian government. In an attempt to avoid
being dragged into an unpopular military action as occurred in Vietnam and
Iraq, President Barrack Obama sought ratification and support from the
Congress. In the midst, Vladmir Putin, Russian Head of State offered to
negotiate the peaceful surrender of chemical weapons by Assad. Salutory as the
efforts to avert military confrontation may seem, international law
practitioners are concerned that the rules of international law were not
followed and were neither referenced in solving the impasse.
II.
Origin of the Syrian Revolution
Origin of the Syrian Revolution
The Arab Spring consumed
the entire Arab world in 2011. Wave of civil wars, revolutionary
demonstrations, protests and riots dubbed the “Arab Spring” started in December
2010 and spread across North Africa and into the Middle East in 2011. As of
October 2013, rulers have been forced from power in Tunisia, Egypt (twice),
Libya, and Yemen. In addition,
civil uprisings have erupted in Bahrain
and Syria. Further, major
protests broke out in Algeria,
Iraq, Jordan,
Kuwait,
Morocco,
and Sudan.
We also witnessed minor protests in Mauritania,
Oman, Saudi
Arabia, Djibouti,
Western
Sahara, and the Palestinian Authority.
the entire Arab world in 2011. Wave of civil wars, revolutionary
demonstrations, protests and riots dubbed the “Arab Spring” started in December
2010 and spread across North Africa and into the Middle East in 2011. As of
October 2013, rulers have been forced from power in Tunisia, Egypt (twice),
Libya, and Yemen. In addition,
civil uprisings have erupted in Bahrain
and Syria. Further, major
protests broke out in Algeria,
Iraq, Jordan,
Kuwait,
Morocco,
and Sudan.
We also witnessed minor protests in Mauritania,
Oman, Saudi
Arabia, Djibouti,
Western
Sahara, and the Palestinian Authority.
Of particular importance is
that in March 2011, Pro-democracy protests in Syria started in earnest when a
group of 200 mostly young protesters gathered in the Syrian capital Damascus to
demand reforms and the ouster of Syrian President Bashar al-Assad in a ‘Day of
Rage.’ A Facebook group called
“The Syrian Revolution 2011 Syrian revolt against Bashar al-Assad” garnered
more than 41,000 fans, while Syrian Twitter users tweeted for the world
to pay attention. Video
footage emerged showing the protests. Between March
2011 and September the Assad government battled rebels who gained significant
inroads into the political control of the Syrian landmass.
that in March 2011, Pro-democracy protests in Syria started in earnest when a
group of 200 mostly young protesters gathered in the Syrian capital Damascus to
demand reforms and the ouster of Syrian President Bashar al-Assad in a ‘Day of
Rage.’ A Facebook group called
“The Syrian Revolution 2011 Syrian revolt against Bashar al-Assad” garnered
more than 41,000 fans, while Syrian Twitter users tweeted for the world
to pay attention. Video
footage emerged showing the protests. Between March
2011 and September the Assad government battled rebels who gained significant
inroads into the political control of the Syrian landmass.
Then came the
use of chemical weapons.
use of chemical weapons.
Syria has always had a
“long-standing chemical warfare program”, which was first developed
in the 1970s. A recent report from the US Congressional Research Service said
Syria probably began stockpiling chemical weapons in 1972 or 1973, when it was
given a small number of chemicals and delivery systems by Egypt before the 1973
Arab-Israeli war. Further, Damascus started acquiring the materials and
knowledge necessary to produce chemical weapons in the 1980s, with the help of
the Soviet Union. Equipment and chemicals were also procured from European
companies. While the exact size of Syria’s chemical weapons arsenal is not
known, in June 2012, Israel Defense Forces (IDF) Deputy Chief of Staff Maj Gen
Yair Nave described it as “the largest in the world”. In addition,
according to a French intelligence assessment published in September 2013,
Damascus has more than 1,000 tonnes of chemical agents and precursor chemicals,
including:
“long-standing chemical warfare program”, which was first developed
in the 1970s. A recent report from the US Congressional Research Service said
Syria probably began stockpiling chemical weapons in 1972 or 1973, when it was
given a small number of chemicals and delivery systems by Egypt before the 1973
Arab-Israeli war. Further, Damascus started acquiring the materials and
knowledge necessary to produce chemical weapons in the 1980s, with the help of
the Soviet Union. Equipment and chemicals were also procured from European
companies. While the exact size of Syria’s chemical weapons arsenal is not
known, in June 2012, Israel Defense Forces (IDF) Deputy Chief of Staff Maj Gen
Yair Nave described it as “the largest in the world”. In addition,
according to a French intelligence assessment published in September 2013,
Damascus has more than 1,000 tonnes of chemical agents and precursor chemicals,
including:
–
Several hundreds of tonnes of sulphur mustard
Several hundreds of tonnes of sulphur mustard
–
Several hundreds of tonnes of sarin
Several hundreds of tonnes of sarin
–
Several
tens of tonnes of VX
Several
tens of tonnes of VX
According to a report by UN
chemical weapons inspectors, there is “clear and convincing evidence”
that surface-to-surface rockets containing sarin were fired at suburbs to the
east and west of Damascus in an attack on 21 August that killed hundreds of people.
Further, according to US, British, French and Israeli officials, there is also
evidence that Syrian government forces used sarin against rebels and civilians
on several previous occasions. Finally, French intelligence said analysis of
samples taken from the northern town of Saraqeb and the Damascus suburb of
Jobar in April showed that munitions containing sarin had been deployed.
chemical weapons inspectors, there is “clear and convincing evidence”
that surface-to-surface rockets containing sarin were fired at suburbs to the
east and west of Damascus in an attack on 21 August that killed hundreds of people.
Further, according to US, British, French and Israeli officials, there is also
evidence that Syrian government forces used sarin against rebels and civilians
on several previous occasions. Finally, French intelligence said analysis of
samples taken from the northern town of Saraqeb and the Damascus suburb of
Jobar in April showed that munitions containing sarin had been deployed.
III.
What is “Intervention” Under International Law
What is “Intervention” Under International Law
To a layman, intervention
would be equated to Operation Desert Storm under general Arnold Schwarznopf in
1991 or the 2003 Operation Iraqi Freedom. The ICJ’s decision in Nicaragua v.
United States of America shows that intervention could be direct and/or
indirect. Therein, the financing of rebels, aids given to insurgents, military
assistance, logistics and instructors. Just as in Nicaragua in 1984, United
States aided the Syrian Freedom Fighters, in recruiting, training, arming,
equipping, financing, supplying and otherwise encouraging, supporting, aiding,
and directing military and paramilitary
actions in and against Assad. Thus, the actual threatened direct full-scale
attack against Syria was actually not the initial intervention by the United
States.
would be equated to Operation Desert Storm under general Arnold Schwarznopf in
1991 or the 2003 Operation Iraqi Freedom. The ICJ’s decision in Nicaragua v.
United States of America shows that intervention could be direct and/or
indirect. Therein, the financing of rebels, aids given to insurgents, military
assistance, logistics and instructors. Just as in Nicaragua in 1984, United
States aided the Syrian Freedom Fighters, in recruiting, training, arming,
equipping, financing, supplying and otherwise encouraging, supporting, aiding,
and directing military and paramilitary
actions in and against Assad. Thus, the actual threatened direct full-scale
attack against Syria was actually not the initial intervention by the United
States.
IV.
Right of Humanitarian Intervention
Right of Humanitarian Intervention
Under contemporary rules of
international law, the three paradigmatic cases justifying humanitarian
intervention are genocide, slavery and widespread torture. Thus, the
notion of jus cogens in international law encompasses the notion of
peremptory norms in international law.1 In this regard, a view has been formed
that certain overriding principles of international law exist which form “a
body of jus cogens.” These principles are those from which it is
accepted that no State may derogate by way of treaty. As a result they are
generally interpreted as restricting the freedom of States to contract while
‘voiding’ treaties whose object conflicts with norms which have been identified
as peremptory.
international law, the three paradigmatic cases justifying humanitarian
intervention are genocide, slavery and widespread torture. Thus, the
notion of jus cogens in international law encompasses the notion of
peremptory norms in international law.1 In this regard, a view has been formed
that certain overriding principles of international law exist which form “a
body of jus cogens.” These principles are those from which it is
accepted that no State may derogate by way of treaty. As a result they are
generally interpreted as restricting the freedom of States to contract while
‘voiding’ treaties whose object conflicts with norms which have been identified
as peremptory.
Assuming arguendo that the Assad
government used chemical weapons against its citizens, then the United States
and the allieds are justified in carrying out both direct and indirect attacks
against Assad’s regime. Before the customary international right of
humanitarian intervention can be exercised, there are “safeguard factors” to be
observed:
government used chemical weapons against its citizens, then the United States
and the allieds are justified in carrying out both direct and indirect attacks
against Assad’s regime. Before the customary international right of
humanitarian intervention can be exercised, there are “safeguard factors” to be
observed:
• The
violation of humanitarian rights is severe
violation of humanitarian rights is severe
• A large
number of people are involved
number of people are involved
• More than
one state is involved in the use of force
one state is involved in the use of force
• There is no
gain or material self-interest on the part of the intervening states
gain or material self-interest on the part of the intervening states
V.
The United Nations Security Council
The United Nations Security Council
The United Nations Security
Council (UNSC) is one of the six principal organs of the United Nations and is
charged with the maintenance of international peace and
security. Its powers, outlined in the United Nations Charter,
include the establishment of peacekeeping
operations, the establishment of international sanctions,
and the authorization of military
action. Its powers are exercised through United
Nations Security Council resolutions.
Council (UNSC) is one of the six principal organs of the United Nations and is
charged with the maintenance of international peace and
security. Its powers, outlined in the United Nations Charter,
include the establishment of peacekeeping
operations, the establishment of international sanctions,
and the authorization of military
action. Its powers are exercised through United
Nations Security Council resolutions.
The only problem with the
UNSC is the veto right by the permanent members. Under Article 27
of the UN Charter, Security
Council decisions on all substantive matters require the affirmative votes of
nine members. A negative vote, or veto, also known as the rule of “great power
unanimity”, by a permanent member prevents adoption of a proposal, even if
it has received the required number of affirmative votes (9). Abstention is not
regarded as a veto despite the wording of the Charter. Since the Security
Council’s inception, China (ROC/PRC) has used its veto 6 times; France 18
times; Russia/USSR 123 times; the United Kingdom 32 times; and the United
States 89 times. The majority of Russian/Soviet vetoes were in the first ten
years of the Council’s existence. Since 1984, China and France have vetoed
three resolutions each; Russia/USSR four; the United Kingdom ten; and the
United States 43. During the Syrian crisis, Russia consistently showed that it
would not support armed attack against Syria.
UNSC is the veto right by the permanent members. Under Article 27
of the UN Charter, Security
Council decisions on all substantive matters require the affirmative votes of
nine members. A negative vote, or veto, also known as the rule of “great power
unanimity”, by a permanent member prevents adoption of a proposal, even if
it has received the required number of affirmative votes (9). Abstention is not
regarded as a veto despite the wording of the Charter. Since the Security
Council’s inception, China (ROC/PRC) has used its veto 6 times; France 18
times; Russia/USSR 123 times; the United Kingdom 32 times; and the United
States 89 times. The majority of Russian/Soviet vetoes were in the first ten
years of the Council’s existence. Since 1984, China and France have vetoed
three resolutions each; Russia/USSR four; the United Kingdom ten; and the
United States 43. During the Syrian crisis, Russia consistently showed that it
would not support armed attack against Syria.
VI.
ICJ’s Advisory Opinions
ICJ’s Advisory Opinions
Advisory Opinions
were intended as a means by which UN agencies could seek the ICJ ‘s help in
deciding complex legal issues that might fall under their respective mandates.
Advisory Opinions were intended as a means by which UN agencies could seek the
ICJ ‘s help in deciding complex legal issues that might fall under their respective
mandates.
were intended as a means by which UN agencies could seek the ICJ ‘s help in
deciding complex legal issues that might fall under their respective mandates.
Advisory Opinions were intended as a means by which UN agencies could seek the
ICJ ‘s help in deciding complex legal issues that might fall under their respective
mandates.
Based on the Syrian impasse, this
author’s view is that the only alternative is the use of the United Nations
General Assembly requesting the ICJ to issue an Advisory Opinion on the
legality and/or lawfulness of the United States and French-led intervention in
Syria. It has been argued that even though the Security Council is probably
seized of the Syrian matter, that doesn’t prevent the General Assembly from
asking the ICJ for an opinion on whether there is a general right to
humanitarian intervention, or whether member states can use force in the
absence of a Chapter VII Security Council Resolution.
author’s view is that the only alternative is the use of the United Nations
General Assembly requesting the ICJ to issue an Advisory Opinion on the
legality and/or lawfulness of the United States and French-led intervention in
Syria. It has been argued that even though the Security Council is probably
seized of the Syrian matter, that doesn’t prevent the General Assembly from
asking the ICJ for an opinion on whether there is a general right to
humanitarian intervention, or whether member states can use force in the
absence of a Chapter VII Security Council Resolution.
Generally, the United
nations General Assembly requests an advisory opinion. On
receiving a request, the ICJ decides which States and organizations might
provide useful information and gives them an opportunity to present written or
oral statements. While, in principle, the ICJ’s advisory opinions are only
consultative in character, they are influential and widely respected. The legal
reasoning embodied in them reflects the ICJ ‘s authoritative views on important
issues of international law and, in arriving at them, the ICJ follows
essentially the same rules and procedures that govern its binding judgments
delivered in contentious cases submitted to it by sovereign states.
nations General Assembly requests an advisory opinion. On
receiving a request, the ICJ decides which States and organizations might
provide useful information and gives them an opportunity to present written or
oral statements. While, in principle, the ICJ’s advisory opinions are only
consultative in character, they are influential and widely respected. The legal
reasoning embodied in them reflects the ICJ ‘s authoritative views on important
issues of international law and, in arriving at them, the ICJ follows
essentially the same rules and procedures that govern its binding judgments
delivered in contentious cases submitted to it by sovereign states.
VII.
Conclusion
Conclusion
It is clear that
Assad regime will not hand over the chemical weapons in its possession. With
compelling evidence of violations of anti-genocide and anti-torture laws, the
United States and Syria submit the matter to the ICJ as to whether the current
levels of intervention should be elevated to “direct armed strike” by US armed
forces against the Syrian territory. The advantage is that an advisory opinion
will produce a reasoned judgment as to the current state of the laws towards
balancing demands of non-interference and prevention of humanitarian
violations. The United Nations Charter of 1945 certainly could not have
envisaged the capability of nuclear and chemical attacks of 2013.
Assad regime will not hand over the chemical weapons in its possession. With
compelling evidence of violations of anti-genocide and anti-torture laws, the
United States and Syria submit the matter to the ICJ as to whether the current
levels of intervention should be elevated to “direct armed strike” by US armed
forces against the Syrian territory. The advantage is that an advisory opinion
will produce a reasoned judgment as to the current state of the laws towards
balancing demands of non-interference and prevention of humanitarian
violations. The United Nations Charter of 1945 certainly could not have
envisaged the capability of nuclear and chemical attacks of 2013.
Dr. Theophilus Olusegun
Obayemi, II is the author of Legal Standards Governing Pre-Emptive Strikes
and Forcible Measures of Anticipatory Self-Defense under the U.N. Charter and
General International Law, 12 ANNUAL SURVEY OF INTERNATIONAL &
COMPARATIVE LAW, 19 (SPRING 2006)
Obayemi, II is the author of Legal Standards Governing Pre-Emptive Strikes
and Forcible Measures of Anticipatory Self-Defense under the U.N. Charter and
General International Law, 12 ANNUAL SURVEY OF INTERNATIONAL &
COMPARATIVE LAW, 19 (SPRING 2006)