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HUMANITARIAN INTERVENTION IN SYRIA UNDER THE RESPONSIBILITY TO PROTECT PDF Print E-mail
Monday, 07 May 2012 15:52

Al Waref Institute for Humanitarian Studies in Washington D.C.is releasing the memorandum evaluatesthe case for humanitarian intervention in Syria under the Responsibility to Protect (R2P) doctrine and applicable international law. 

 

THE LEGAL CASE FOR 

HUMANITARIAN INTERVENTION IN SYRIA UNDER THE RESPONSIBILITY TO PROTECT

 

Memorandum



Prepared by the

Public International Law & Policy Group

May 2012


Executive Summary

 

This memorandum evaluates the case for humanitarian intervention in Syria under the Responsibility to Protect (“R2P”) doctrine and applicable international law.  Since protests began in March 2011, Syrian security forces have killed at least 9,000 people.  According to a February 2012 United Nations  report, Syrian government forces have repeatedly attacked civilians, launching artillery into densely populated neighborhoods, deploying snipers and helicopter gunships against civilians, and torturing hospitalized protesters.  These actions constitute crimes against humanity as defined by the Rome Statute of the International Criminal Court (“ICC”).

R2P, an emerging norm of international law endorsed by the UN Security Council, represents a profound evolution in the way international law treats humanitarian crises.  Under R2P, state sovereignty is not absolute.  A state forfeits sovereignty when it fails to protect its citizens from genocide, ethnic cleansing, war crimes, or crimes against humanity.  Syria has breached its R2P duty by repeatedly attacking unarmed civilians with indiscriminate force.  Accordingly, the responsibility to protect Syria’s civilian population now shifts to the international community.

In a 2009 report, UN Secretary-General Ban Ki-moon described R2P’s three conceptual “pillars.”  First, each state has the “enduring responsibility … to protect its populations, whether nationals or not, from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement.”  Second, the international community has the responsibility to assist states in meeting their obligations under the first pillar.  Third, if a state “manifestly fails” to protect its people, then the international community has the responsibility to respond “in a timely and decisive manner, using Chapters VI, VII, and VIII of the UN Charter,” and by taking a range of peaceful or forceful measures.  Moreover, in an emergency, an international coalition may legitimately intervene to stop grave violations of international law, even without prior Security Council approval.

The conflict in Syria meets the well-settled R2P criteria for humanitarian intervention.  Far from protecting civilians, Syrian President Bashar al-Assad has attacked densely populated neighborhoods with tanks, artillery, and helicopter gunships.  Because peaceful options to protect civilians have been exhausted, the international community has a duty to consider more forceful options.  Security Council authorization, though ideal, may prove politically impossible.  Given the exigent circumstances, the international community has the right under R2P to take measures necessary to protect the Syrian people. 

 

Statement of Purpose

This memorandum evaluates the case for humanitarian intervention in Syria under the Responsibility to Protect (“R2P”) doctrine and applicable international law.  

Introduction

The Responsibility to Protect developed in response to the international community’s failure to prevent the humanitarian tragedies in Rwanda and the Balkans during the 1990s.  R2P establishes that states have the responsibility to provide security for their populations and protect them from crimes against humanity.  When states fail in this responsibility, the international community can intervene to protect the civilian population through peaceful or coercive means.    

Bashar al-Assad and his forces have violated international law with widespread and systematic attacks on Syrian civilians, demonstrating a flagrant disregard for R2P principles.  Numerous states have acknowledged that Assad has forfeited his sovereignty by recognizing the Syrian National Council (“SNC”) as a legitimate representative of the Syrian people.   Having exhausted peaceful efforts, the R2P doctrine now affords the international community the right to intervene using force to protect the Syrian people.

R2P and the Conflict in Syria

R2P Is A Widely Accepted Norm of International Law

Following the 2004 UN High Level Panel on Threats, Challenges, and Change (“UN High Level Panel”), which recognized R2P as an “emerging norm” of international law,   the UN General Assembly endorsed the concept in its 2005 World Summit Outcome Document.   The Security Council subsequently affirmed R2P in several landmark resolutions.   In 2009, UN Secretary-General Ban Ki-moon presented a report clarifying R2P so that states could implement it in a “fully faithful and consistent manner.”   The report established the three defining pillars of the doctrine. 

Syria Has Breached Its Obligations Under Pillar 1 By Repeatedly And Indiscriminately Attacking Civilians

Under Pillar 1 of R2P, each state has the “enduring responsibility . . . to protect its populations, whether nationals or not, from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement.”   The responsibility to prevent human rights atrocities is inherent in the role of the state as a sovereign.   Respect for human rights is a key indicator of a responsible sovereign. 

According to a February 2012 report commissioned by the UN Human Rights Council, Syria has “manifestly failed” to protect its own people.   Assad’s security forces “continue to commit widespread, systematic, and gross human rights violations”  by indiscriminately using heavy weapons – including tanks, artillery, and helicopter gunships – against civilians.   Additionally, Assad’s security forces have been accused of shooting civilians, shelling residential areas, and torturing hospitalized protesters.   Under the Rome Statue of the ICC, these acts likely constitute war crimes  and crimes against humanity.   Based on these facts, Syria has breached its duty under Pillar 1 by “manifestly failing” to protect its own people.

Pillar 2 Does Not Apply To Syria Because Assad Is Determined to Breach His R2P Duty to His Own People

If a state is unable to protect its citizens, Pillar 2 requires other members of the international community to assist.   This Pillar applies to situations where a state lacks the leadership or ability to mitigate a humanitarian crisis. 

Pillar 2 is not applicable to the conflict in Syria because the current crisis was not caused by a lack of state capacity.  On the contrary, the conflict in Syria is a consequence of Assad’s determination to attack his own people.  In such a situation, Pillar 2 measures are “of little use and the international community would be better advised to begin assembling capacity and will for a ‘timely and decisive’ response.” 

Under Pillar 3 The International Community Has The Authority To Intervene in Syria Because It Has Exhausted Peaceful Measures

Under Pillar 3, if a state “manifestly fails” to protect its people, the international community has the responsibility to respond “in a timely and decisive manner, using Chapters VI, VII, and VIII of the UN Charter,” and by taking a range of peaceful or coercive measures.   Such measures may involve sanctions, referral to the International Criminal Court, or the use of force.  The international community has taken several peaceful measures to protect Syria’s civilians.  A succession of sanctions, ceasefire plans, and international observer missions, however, have not changed the Syrian government’s behavior, nor halted its grave violations of international law. 

Sanctions Have Not Changed the Syrian Government’s Behavior

The United States, European Union, and Arab League have imposed extensive sanctions that restrict the travel and freeze the assets of Syrian officials,  block the purchase of Syrian oil,  and target Syrian information technology.    The EU recently imposed its fourteenth round of sanctions, targeting luxury items as well as goods and technologies that can be used for internal suppression.   These measures, however, have not prevented the Syrian government from killing civilians.

Diplomacy Has Failed to End the Violence

A series of international peace plans have failed to end the violence.  In December 2011, the Syrian government signed a peace plan sponsored by the Arab League,   agreeing to form a national unity government, hold elections,  and allow Arab League monitors to enter the country.  However, in the three weeks following the monitors’ arrival, more than 400 people died, prompting the League to suspend its mission on January 28, 2012.   The following month, the Arab League temporarily halted cooperation with the Syrian government after the government rejected an Arab League resolution calling for a joint Arab League-UN peacekeeping mission.   On February 16, 2012, the UN General Assembly condemned “widespread and systematic violations of human rights and fundamental freedoms by the Syrian authorities,” and called upon the government to implement the Arab League’s peace plans. 

A UN sponsored ceasefire plan and the deployment of international monitors have not affected Assad’s willingness or ability to use violence against his own people.  In March 2012, the Arab League and the UN renewed their efforts by jointly appointing Kofi Annan as the UN-Arab League Special Envoy to Syria.   Annan produced a Six Point Plan for ending the conflict, supported by all members of the Security Council.   Assad agreed to Annan’s Plan, which required Syrian forces to withdraw from populated areas and imposed a ceasefire.   The Security Council subsequently adopted Resolution 2042 on April 14, 2012, supporting the ceasefire and authorizing 30 unarmed observers to monitor implementation of the Annan Plan.  A week later, the Security Council passed Resolution 2043, which established the UN Supervision Mission in Syria (“UNSMIS”), a 90-day deployment of up to 300 additional unarmed military observers.  

Moreover, the UN Security Council failed to pass two strongly-worded resolutions authorizing peaceful measures to end the conflict in Syria.  The first, which was voted on in October 2011, threatened sanctions if the Syrian government did not immediately end violence against civilians.    The second, put forth in February 2012, did not threaten sanctions but called on Assad to leave office and supported the Arab League’s peace plan.     In both instances, the resolutions were vetoed by Russia and China.  Their position makes it unlikely that the Security Council will be able to authorize forceful measures to halt the Syrian government’s attacks on civilians.

 By all accounts, Assad has flagrantly violated the ceasefire agreement.  Hama residents report daily attacks by Syrian forces since the ceasefire went into effect.   Witnesses in Homs  and other cities report that Syrian security forces resume attacks as soon as the UN observers depart.   Assad’s security forces have even fired on demonstrators in the presence of UN observers.    Nearly 70 people were killed on April 23 alone.   The presence of international monitors has thus not effectively protected Syrian civilians.

Routes to Achieving Legitimacy for a Humanitarian Intervention in Syria

The Security Council Could Authorize Intervention Under Chapter VII of the UN Charter Because the Conflict in Syria Poses a Threat to International Peace and Security

When peaceful measures fail to end a crisis that threatens international peace and security, the Security Council may authorize member states to use force to protect civilians under Chapter VII, Article 42, of the UN Charter.   Typically, Security Council resolutions use the phrase “all necessary measures” to authorize the international community to use force.   Such measures may include “blockades and other operations by land, sea, or air forces,”  including the creation of a safe zone or no-fly zone “to protect the human rights of those in danger,”  and the authorization of “all necessary measures” or “all necessary means” to protect civilians.

A threat to international peace does not necessarily entail cross-border security issues.  In 1992, the UN determined that the “magnitude of the human tragedy” in Somalia constituted a threat to international peace and security.   The Security Council passed Resolution 733, which authorized a Chapter VII arms embargo to reestablish peace and stability,  and Resolution 794, which authorized “all necessary means to establish as soon as possible a secure environment for humanitarian relief operations” under Chapter VII. 

More recently, UN Security Council 1973 explicitly invoked Libya’s failure to uphold its responsibility to protect its population as justification for Chapter VII intervention.   The resolution cited, in addition to systemic violations of human rights by the government and widespread attacks against the civilian population, concern “at the plight of refugees and foreign workers forced to flee” Libya and “for the safety of foreign nationals and their rights,” in Libya.  

The conflict in Syria presents a grave threat to regional peace and security, both as a humanitarian tragedy within its borders and as a catalyst for violence across its borders.  Tens of thousands of refugees have fled Syria into Jordan, Lebanon, Turkey, and Iraq.   In two separate incidents on April 9, 2012, Syrian security forces fired across the Turkish border, killing two people at a border crossing and wounding three people in a refugee camp.   In the aftermath of these attacks, Turkish Prime Minister Recep Tayyip Erdogan said that he would consider invoking NATO’s collective security provision if the Syrian violence continued to threaten Turkish national security. 

Even Without Security Council Authorization, the International Community has the Right to Intervene in Syria 

Other Instances of Humanitarian Intervention Without Prior Security Council Authorization

In some instances, states have used force to prevent a humanitarian crisis without explicit Security Council authorization.   In both northern Iraq in 1991 and Kosovo in 1999, states justified using force based on Security Council resolutions that described situations as a “threat to international peace and security,” without explicitly authorizing the use of force.   

Other states launch interventions without any Security Council resolution.  However, when this is the case, states usually argue that their intervention is in self-defense, which is permitted under Chapter VII, Article 51 of the UN Charter.   If Syria continues to violate its neighbors’ sovereignty by attacking opposition members and refugees across its borders, its neighbors might make a successful self-defense argument.  Turkey, for example, has warned that it might call on NATO to defend its borders under the alliance’s collective security provisions.  

Similarly, the UN High Level Panel has “recogniz[ed] that in some urgent situations that authorization may be sought after such operations have commenced.”   Indeed, the Security Council retroactively approved the ECOWAS interventions in Liberia  in 1992 and Sierra Leone  in 1998.

UN-Endorsed Criteria On Legitimate Humanitarian Intervention 

Several commentators, including the UN High Level Panel and the International Commission on Intervention and State Sovereignty, have endorsed criteria for determining whether humanitarian intervention involving the use of force is legitimate. 

The first two criteria track Pillars 1 and 3 of R2P.  First, the intervention must have a “just cause,” which is satisfied when “deliberate state action” causes “large scale loss of life.”    Syria presents a “just cause” for intervention because at least 9,000 people have already died, and the Syrian government shows no sign of halting its attacks.  Second, the intervention must be a “last resort”;  here, a succession of peace plans, ceasefires, and economic sanctions have not stopped the killing.  

The remaining criteria address how the intervention is carried out, providing a useful guide for states contemplating intervention in Syria.  Under the third criteria, acting states must have “rightful intentions;” this requirement is satisfied when the intervention is motivated by saving civilian lives rather than self interest.    Fourth, the action must be proportional to the humanitarian crisis.  Thus, the limited application of military force –  for example, using  air strikes to protect civilians in a “safe haven,” secure a humanitarian corridor, or enforce a no-fly zone – will generally be viewed as a more proportional response than a full-scale ground invasion to overthrow a government.   Fifth, the action must have a reasonable chance of success.  

Other Factors Affecting the Perceived Legitimacy of Humanitarian Intervention in Syria

Several other factors could affect the perceived legitimacy of an intervention in Syria.  The composition of the intervening coalition can affect perceptions regarding the intervention’s legitimacy.   Generally, interventions are more likely to be accepted as legitimate if they are multilateral operations.   Additionally, an intervention following specific requests for help from civilian leaders or regional organizations may contribute to the legitimacy of that intervention.  For example, in northern Iraq, leaders of the Kurdish community appealed to France, Saudi Arabia, the UK, and the US, to request Security Council action to protect the Kurds from Saddam Hussein.   Eventually, the Security Council passed Resolution 688, encouraging states “to contribute to . . . humanitarian relief efforts” and demanding that Iraq allow these efforts to take place.   

Conclusion

The Syrian crisis presents a textbook case for humanitarian intervention under the Responsibility to Protect.  The Syrian government’s widespread, systematic, and indiscriminate attacks on civilians constitute crimes against humanity.  Despites the international community’s efforts to bring an end to violence in Syria through peaceful measures like sanctions and peace plans, these actions have failed to stop the killing.  Moreover, the Syrian government has flouted the UN-Arab League ceasefire agreement and attacked civilians in the presence of UN monitors.  Under R2P, a coalition of states or a regional organization could legitimately intervene in Syria with or without Security Council authorization.  An intervention in Syria is perhaps the international community’s best hope for preventing a greater humanitarian catastrophe.  As such, humanitarian intervention in Syria would be consistent with international law and with the UN Charter.

About the Public International Law & Policy Group

The Public International Law & Policy Group, a 2005 Nobel Peace Prize nominee, is a non-profit organization, which operates as a global pro bono law firm providing free legal assistance to states and governments involved in peace negotiations, drafting post-conflict constitutions, and prosecuting war criminals.  To facilitate the utilization of this legal assistance, PILPG also provides policy formulation advice and training on matters related to conflict resolution.

PILPG’s primary practice areas are:

Peace Negotiations

Post-Conflict Constitution Drafting

War Crimes Prosecution

Policy Planning

Democracy and Governance

Water Diplomacy

To provide pro bono legal advice and policy formulation expertise, PILPG draws on the volunteer services of over sixty former legal advisors and former Foreign Service officers from the US Department of State and other foreign ministries.  PILPG also draws on pro bono assistance from major international law firms including Baker & McKenzie; Covington & Burling; Curtis, Mallet-Prevost, Colt and Mosle; DLA Piper; Sullivan & Cromwell; Steptoe & Johnson; Milbank, Tweed, Hadley & McCloy; WilmerHale; Vinson & Elkins; and graduate international affairs and law students at American University and Case Western Reserve Schools of Law.  Annually, PILPG is able to provide over $10 million worth of pro bono international legal services.

Frequently, PILPG sends members in-country to facilitate the provision of legal assistance and its members often serve on the delegations of its clients during peace negotiations.  To facilitate this assistance, PILPG is based in Washington, DC and has points of contact in New York City, Boston, Seattle, Cleveland, London, Paris, Rome, The Hague, Stockholm, Belfast, Krakow, Budapest, Zurich, Tbilisi, Kabul, and Nairobi.

PILPG was founded in London in 1995 and moved to Washington, DC in 1996, where it operated under the auspices of the Carnegie Endowment for International Peace for two years.    PILPG currently maintains an association with American University in Washington, DC, and Case Western Reserve University in Cleveland, Ohio.  In July 1999, the United Nations granted official Non-Governmental Organizations status to PILPG.

In January 2005, a half dozen of PILPG’s pro bono clients nominated PILPG for the Nobel Peace Prize for “significantly contributing to the promotion of peace throughout the globe by providing crucial pro bono legal assistance to states and non-state entities involved in peace.    

 

 

 

 

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