What are our options in Syria?
Posted Fri 30 Aug 2013, 2:28pm AEST
The West can step up its response to the continuing suffering in Syria without launching another in a string of legally dubious military interventions, writes Donald K Anton.
The drums of military intervention are beating once again, and the question of what to do about the civil war in Syria has taken on urgency.
What are our options? We’ve heard a lot about military intervention, but from a legal point of view, as I will demonstrate, this has no place on the table.
However there are a number of other paths we can take including support for humanitarian relief, condemnation, sanctions and other action by the General Assembly under the Uniting for Peace resolution, and referral to the International Criminal Court.
Military intervention as an option to stem the violence in Syria looms large following reports that the Assad regime once again used chemical weapons in an attack on August 21.
It is claimed that more than 1,300 people were killed in the attack outside Damascus, many of them women and children. The use of force as an option, however, does not appear to be legally available.
Military intervention would require UN Security Council (SC) authorisation or action in self-defence in order to be legal under the UN Charter. SC authorisation will not be forthcoming because Russia and China feel betrayed by the military intervention in Libya that they voted to authorise. They believe that the Libya resolution authorising military force to protect civilians was transformed into an instrument for the pursuit of regime change and will not support such a resolution for Syria.
Some commentators claim that states could use force under the doctrine of “responsibility to protect” in Syria outside of the UN framework. These folks seem to forget, however, that 2005 World Summit outcome document, subsequently approved by SC Resolution 1674, requires that action to protect populations take place “through the Security Council, in accordance with the Charter”.
In terms of self-defence, unless the international community is now prepared to embrace the highly controversial doctrine of anticipatory self-defence put forward by George W Bush it has previously rejected, there are no grounds upon which it can be based. No imminent attack on another state by Syria is on the horizon that would justify the use of force in self-defence.
That leaves so-called humanitarian intervention. However, the right to intervene on humanitarian grounds – not to mention the scope of the right – outside of the framework of the UN Charter is contentious, persistently denied, and, as such, lacks the force of international law as a lawful ground for the unilateral use of force.
Even the UK, for many years, strenuously challenged the unilateral right of humanitarian intervention. In 1986, the British Foreign Office wrote that “the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention”. Nothing in state practice, including Kosovo, has changed this conclusion since.
It is beyond doubt that the best way that outside parties can help alleviate the suffering and misery caused by the ongoing civil war in Syria is through increased support for the delivery of humanitarian assistance.
In June, the UN estimated that 6.8 million people required humanitarian aid in Syria, including 4.25 million internally displaced. Outside of Syria, over 1.5 million refugees need humanitarian aid and nearly 1 million are children under the age of 18.
Unfortunately, the international community is not meeting current commitments. It was recently reported that donors have only funded 36 per cent of the $4.4 billion they have pledge under the UN’s two main appeals, the Syria Humanitarian Response Plan (Sharp), which targets needs within Syria, and the Regional Refugee Response Plan (RRP), which focuses on refugees from Syria in neighbouring Jordan, Lebanon, Turkey, Iraq and Egypt.
Together, the two appeals have received less than $1.6 billion, leaving a nearly $3 billion deficit. Clearly, states should immediately fund unmet requirements so that food, decent shelter, medical care, and educational programs for children reach people affected by the ongoing conflict.
In addition to this, though, humanitarian aid commitments should also be given to independent relief agencies like the Red Crescent and Red Cross to allow them to address immediate needs.
Condemnation is the most readily available course of action open to the international community. Repeated condemnation by the General Assembly expressing “outrage” has been normatively significant.
More recently, the statement by ambassador María Cristina Perceval (Argentina), the SC president for August, that “all Council members agree that any use of chemical weapons by any side, under any circumstances, is a violation of international law” is important in establishing the illegality of acts in Syria.
Hopefully, Australia can build on this as president of the SC this month and put forward a resolution that would have the SC formally condemn the all use of chemical weapons.
Although condemnation (collective and individual) has been employed for nearly two years without the desired result of ending the violence, this does not mean it is not important. Indeed, from a legal point of view, strong and universal condemnation of the use of chemical weapons remains essential.
Some are worried that failing to act militarily in Syria somehow means that the treaty law and customary international law banning the use of chemical weapons will fail and the use of chemical weapons will become commonplace. The view is wrong, but universal condemnation, including through the UN General Assembly, will help ensure the strong normative prohibition on their use.
More generally, shaming states and playing upon their reputation is not a zero-sum game. When stretched over time, it has helped to bring many states to the negotiating table.
Sanctions are another option that may be available. Russia and China, for the reasons given above, are not likely to support collective sanctions imposed by the SC under Chapter VI of the UN Charter.
However, it is open to the General Assembly acting under the 1950 Uniting for Peace Resolution to make “appropriate recommendations … for collective measures”.
Ordinarily, this provision has been used for deployment of peacekeeping forces with the consent of the host state. However, so long as the SC is not effectively exercising its functions over the violence in Syria, it is arguable that the General Assembly has the power to recommend proportionate sanctions aimed at stopping the violence.
The problem here is both Russia and China have already vetoed three SC resolutions on Syria (October 2011, February 2012 and July 2012). These vetoes would make a sanctions recommendation by the General Assembly contentious.
It may be that the use of proportionate unilateral “smart” or “targeted” sanctions is a more viable option. States acting on their own volition, but in concert, could make greater use of economic asset freezes and travel bans on key individuals and organisations.
Referral to the ICC
Fifty-seven states have urged that the situation in Syria be referred by the SC to the International Criminal Court (ICC) for investigation. A referral by the SC is necessary because Syria is not party to the ICC treaty.
Again, however, the SC veto means there is little prospect of this happening in the way the referral was made in the Libyan situation. Even if it were possible, the referral would suffer the same jurisdictional limitations as in Libya because the ICC could not investigate the actions of non-states parties. This raised serious concerns about the legitimacy of the exercise in Libya.
Of the options available, three seem most promising. First, we should ramp up support for the delivery of humanitarian assistance through the UN and Red Crescent and Red Cross. Second, condemnation and sanctions, to the extent possible, should be strengthened. Finally, we should be working toward a SC referral of the situation to the International Criminal Court.
While these things will do little to stop the violence in Syria in the near term, they are probably the best options in a very bad situation.
Donald K Anton is Associate Professor of Law and co-director of International Programs & Exchanges at the Australian National University College of Law. View his full profile here.