Hundreds of thousands of lives are being sacrificed amid the Syria crisis, and the UN is expected to take measures to put an end to such violations of human dignity. While the UN has avoided taking aggressive actions and resorted to milder actions such as issuing UN resolutions, the severity of the crisis has escalated and now the atrocities are too extreme to be left unattended without military action. However, deploying army is an issue that should be examined more carefully, and legal limitations and justifications should be looked into. Firstly, UN Charter does not hinder the UN from taking military actions. Secondly, Responsibility to Protect strongly asks the UN for active intervention when the state fails to protect its own population. Lastly, International Court of Justice in the past has judged that the international community is legally obliged to the norm of Responsibility to Protect.
The conflict in Syria has now entered its 7th year, claiming hundreds of thousands of lives, and displacing millions more. Direness of the situation in Syria came to a point where humanitarian intervention is inevitable. The United Nations has so far attempted indirect applications of power, including issuing resolutions calling on member states against The Islamic State of Iraq and Al-Sham (ISIS). However, deploying army in the name of humanitarianism is an issue that should be examined more carefully. In this paper, I will analyze if the UN’s deployment of military in dealing with humanitarian crisis can be legally justified. Firstly, I will summarize the situation in Syria and examine its severity. Secondly, I will explain how the UN Charter encourages interventionist policies when human rights and security are jeopardized. Thirdly, I will discuss Responsibility to Protect, a global political commitment to prevent genocide, war crimes, ethnic cleansing and crimes against humanity. Finally, I will analyze an ICJ case(ICJ 1996: Bosnia and Herzegovina v. Serbia and Montenegro) and apply it to Syria.
Ⅱ. Situations in Syria
- Cause of war
The Syrian conflict was initially a battle between the defenders and dissidents of the President’s government, but it was later complicated by the opposition of Sunni to Shia, the participation of world powers, and the rising force of Islamic State. The Syrian Civil War started as part of the regional movement called the Arab Spring. Bashar al Assad,the current president of Syria, is a Shiite leader who systematically discriminated the Sunni population. He succeeded his father, Hafez al-Assad, who ruled the country from 1970 to 2000. Initially, there were hopes that he would be a reformer, but Bashar continued with his father’s iron grip and politicization of sectarianism.When 15 boys who painted graffiti humiliating the government were kidnapped and killed, protestors took the streets and the police force responded with brutality. This incident sparked the ignition of civil war. To this day, the opposition groups supported by Turkey, Saudi Arabia, Qatar, Jordan, US, UK, and France are fighting against the Syrian government allied by Russia and Iran. Western countries and Russia are currently bombarding terrorist elements in Syria including Jabaht Fateh-al Sham (former Al Qaeda proxy) and ISIS.
However, little consensus has been reached in the UN regarding the punishment of the Assad regime, which not only started off the conflict by brutally crushing down oppositions but also engaged in crimes against humanity along the way. U.S, UK and France have tried to pass United Nations Security Council Resolutions to impose sanctions on Syria, but Russia and China have either vetoed or abstained in opposition. However, with the recent recapture of Aleppo and the terrible humanitarian disaster unfolding in the city, arguments for actions are gaining strength. It is about time the international community and the UN reconsider their options in dealing with the crisis in Syria-military intervention can be one of them.
- Chemical Weapons
In August 2013, the Syrian government used rockets filled with the nerve agent sarin (BBC News, September 24, 2013). According to the UN report, it was the “most significant confirmed use of chemical weapons against civilians since Saddam Hussein used them” in Halabja in 1988. BBC news reported that the victims suffered from shortness of “breath, disorientation, runny nose, eye irritation, blurred vision, nausea, vomiting, general weakness, and eventual loss of consciousness”.
The UN Secretary General Ban Ki-moon clarified that he considers the use of chemical weapons constitutes a war crime (General Assembly Security Council 2013):
The Secretary-General condemns in the strongest possible terms the use of chemical weapons and believes that this act is a war crime and grave violation of the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare and other relevant rules of customary international law. The international community has a moral responsibility to hold accountable those responsible and for ensuring that chemical weapons can never re-emerge as an instrument of warfare.
Consequently, use of chemical weapons in Syria constitutes a war crime and thus requires international intervention in order to be stopped.
- Civilian damages
The Independent International Commission of Inquiry on the Syrian Arab Republic was established on 22 August 2011 by the Human Rights Council to look into violations of international human rights law in Syria. The Commission found that the Government of the Syrian Arab Republic undertook attacks against the civilian population, which involved widespread bombardment of civilian-inhabited localities on the basis of their perceived opposition to the Government. As part of this widespread attack on civilians, Government forces systematically committed war crimes including murder, torture, rape and enforced disappearances.
Especially female civilians have been sacrificed. With Syrian men unable to move freely due to fear of arrest at checkpoints, women have borne the brunt of the responsibility for travelling far to seek food, medicine, and work.They have been raped and sexually assaulted by both Government forces and anti-Government armed groups. It should be considered a crime against humanity. Also, women in labor have been often forced to give birth under unsterile conditions and without pain medication.
As for children, they have been hurt directly by the indiscriminate violence of Government forces. Trauma of witnessing indiscriminate violence has affected their mental health.Schools have been used to serve military purposes, depriving children of education. According to the United Nations Children’s Fund, over 2.8 million Syrian school-age children, which accounts to more than half of the population, are out of school because of the occupation, destruction and insecurity of schools.
Also, Government forces have used children aged between 6 and 13 to act as informants, making them vulnerable to retaliation and punishment from both sides. ISIS has established training camps disguised as education camps, actively recruiting children and exposing them to danger.
The Genocide Convention clarifies that the crimes committed in Syria areconsidered genocide. Under Article Ⅱ of the Convention, genocide is defined as:
(a) Killing members of the group
(b) Causing serious bodily or mental harm to members of the group
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
(d) Imposing measures intended to prevent births within the group
(e) Forcibly transferring children of the group to another group
Independent International Commission of Inquiry on Syria mandated by UN stated in the report They Came to Destroy: ISIS Crimes against the Yazid is that ISIS is committing genocide. Paulo Sérgio Pinheiro, Chair of commission of Inquiry on Syria stated that “ISIS has subjected every Yazidi woman, child or man that it has captured to the most horrific of atrocities,” in a press statement issued by the Office of the UN High Commissioner for Human Rights (OHCHR). He estimated that 100,000 have died in the Syrian war over the past two years, with the number of deaths rising since Assad came to power.
The Syrian government is attempting to systematically kill Sunni noncombatants “to eliminate a part of the Sunni population, rather than primarily fighting the armed rebels” (World Policy Institute, 2013), not distinguishing between civilian and military objectives. All in all, genocide is taking place in Syria, which makes the case for military action by the UN.
Ⅲ. Legal bases of intervention
- UN’s current measures
Up until now, the UN’s effort to stop inhumane violence has been focused on indirect applications of power. The UN mainly targets ISIS’s financing, recruitment and armament initiatives (UNSC, Resolutions 2170, 2178, 2199, 2253, 2258).In December 2015, the UN issued a resolution calling on member states to ‘take all necessary measures’ militarily against ISIS (UNSC, Resolution 2249).
- The UN Charter
(1) Legal dilemma
The Charter of the United Nations not only allows for, but also encourages interventionist policies when human rights are jeopardized. It acknowledges the right of the United Nations Security Council to use force to deal with threats to international peace and security. However, it does not fully recognize the right to use force to protect the people of a State against their own governing authorities even when they face genocide, widespread violence, and mass starvation.
In the past, the United Nations Security Council has authorized intervention in Iraq (1991), Somalia (1992), Former Yugoslavia (1992), and in Rwanda (1994). The Security Council judged that human rights violations in those cases threatened international peace and security, invoking the provisions of Chapter VII of the UN Charter. These interventions have raised the question of whether the United Nations Security Council’s actions within a territory of an individual state are legal under the UN Charter.
(2) Interpretation of Chapter VII
Chapter VII of UN Charter focuses on “action with respect to threats to the peace, breaches of the peace, and acts of aggression”. The legal obstacle is that the term “threat to international peace and security” is limited strictly to transnational conflicts and is not applicable to internal conflicts even in cases of fundamental human rights violation. Under the Charter, the fundamental responsibility of the Security Council is not to preserve internal peace of a member State, but to maintain international peace and security in accordance with the purpose of the United Nations.
This created a legal dilemma. In cases of intervention in internal affairs of a state to protect human rights, the legal question remains whether the Council has the discretion to determine the existence of a “threat to the peace”.
(3) Framers’ intention
Looking at the intentions of the UN draftersin establishing the Charter, the deliberations at the 1945 San Francisco conference on International Organization supported the position that Article39 of the UN Charter, Chapter VII does not prohibit recent forms of Security Council humanitarian intervention.During the conference, representatives have discussed over whether to define the concept “threat to peace” under Article 39. The framers intentionally avoided defining this concept to grant the Council discretionary authority in making threat-to-peace determinations on a case-by-case basis.
Despite the intent of the framers, there are arguments that suggest limits to the Council’s discretionary authority. However the mainstream view regarding the Council’s discretionary authority maintains that the drafters originally intended to give “a very broad competence” to the Council. Main two reasons are to permit the Council to decide the existence of any “threat to peace”, and to allow them to take the measures necessary to maintain or restore international peace and security. They recognize that the Council is the sole judge of what constitutes threats to peace. Given the broad discretion, the Charter VII does not legally hinder the UN from intervening in a case of internal conflict of a state which causes genocide, war crimes, crimes against humanity and ethnic cleansing.
- Responsibility to Protect
(1) Introduction to the Responsibility to Protect
At the United Nations (UN) 2005 World Summit, world leaders made a commitment, entitled the Responsibility to Protect, which stipulates that:
- The State carries the primary responsibility for the protection of populations from genocide, war crimes, crimes against humanity and ethnic cleansing.
- The international community has a responsibility to assist States in fulfilling this responsibility.
- The international community should use appropriate diplomatic, humanitarian and other peaceful means to protect populations from these crimes. If a State fails to protect its populations or is in fact the perpetrator of crimes, the international community must be prepared to take stronger measures, including the collective use of force through the United Nations Security Council.
The expression “responsibility to protect” first appeared in the report of the International Commission on Intervention and State Sovereignty (ICISS) in December 2001. The Responsibility to Protect, argued that each individual state has the primary responsibility to protect its populations from genocide, war crimes, crimes against humanity and ethnic cleansing. However, when a state fails to protect its populations, and diplomatic measures cannot protect the people, the international community should take stronger measures that involve collective use of force authorized by the Security Council under Chapter VII of UN charter.
(2) Responsibility to Protect (R2P) applied to Syria
According to the ICISS report, the Responsibility to Protect consists of three responsibilities: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild. The responsibility to react allows a wide range of measures involving economic, diplomatic tools, with military intervention considered as the last resort. Military intervention is permitted only under certaincircumstances:1)every other preventative measure has been exercised, and 2)the use of military force must be approved by the Security Council, tailored based on each individual circumstances. The responsibility to rebuild focuses on the recovery of a state and aims at preventing recurrence.
In Syria’s case, the responsibility to react and to rebuild should be applied. The UN has already attempted diplomatic resolutions issuance, but to no avail. This gives justification for military intervention to be used as a last resort according to the responsibility to react. Also, military intervention will eventually give Syria an opportunity to rebuild itself when the overall crisis comes to an end with the UN’s help.
- Analysis and application of a precedent in ICJ
(1) Convention on the Prevention and Punishment of the Crime of Genocide
Article I of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, adopted by Resolution 260 (III) A of the U.N. General Assembly on December 1948, stipulates that “the Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish”. The article gives the International Court of Justice authority ‘to prevent’ and ‘to punish’ genocide.
(2) ICJ 1996: Bosnia and Herzegovina v. Serbia and Montenegro
Serbia was alleged to have attempted to exterminate the population of Bosnia and Herzegovina. The case was heard in the International Court of Justice (ICJ) in The Hague, Netherlands, and ended on 9 May 2006. ICJ found that Serbia was neither directly responsible for the Srebrenica genocide, but it ruled that Serbia had violated the Convention on the Prevention and Punishment of the Crime of Genocide, 1) by failing to prevent the genocide, 2) for not cooperating with the International Criminal Tribunal in punishing the perpetrators of the genocide, and 3) for violating its obligation to comply with the provisional measures ordered by the Court, which constituted a violation of Article I of the Genocide Convention for ‘failure to protect’ its neighboring country from genocide.This demonstrates that the prevention of genocide, and hence the Responsibility to Protect norm, are legal obligations. If the State has failed to take all measures to prevent genocide, it can be held legally responsible for this failure.
However, if the responsibility to protect doctrine were confined to the responsibility of States to their own people, the ICJ’s judgment will have no meaning other than replicating the pre-existing international law. The ICJ addressed the responsibility of the larger international community, which holds the UN responsible for the genocides taking place in Syria and demands that it militarily intervenes in the scene.
The UN’s military involvement is justified by the UN charter which grants United Nations Security Council broad authority to intervene in case of a threat to peace, the Responsibility to Protect that holds the international community responsible should a state fail to protect its people from genocide, and the precedent of International Court of Justice that found a state guilty of failing to protect its people from genocide. In case of mass genocide and war crimes in Syria, the UN has not done enough for the peace of the humanity. Military intervention is legally justified under the grounds of UN charter chapter VII, the norm of R2P, and the case of ICJ 1996.
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