The recent events in Houla have, yet again, put Syria front and centre of news reports. Over recent months we have featured posts on Syria here, here, here and here but as the situation disintegrates and fears regarding a sectarian civil war rise, this post discusses, with a particular focus on the Security Council, what the options are from an international legal perspective .
First, clearly the Security Council, with few exceptions, holds all the cards with regard to any use of force and thus makes any decision to act reliant on the agreement of the permanent five member states. Article 2 (1) and 2(4) of the UN Charter which guarantees both the sovereignty equality of states and prohibits the use of force appears to be the basis on which Russia, and also though with lesser fanfare China, is refusing to back any action, either short of or the use of force, by the UN. Russia’s continued insistence that Syria be allowed to control its own affairs has led to the United States’ alleging that they are contributing to a possible civil war.
The descent into further violence raises questions of whether Syria has already spiralled into an internal armed conflict. The Syrian Government has continuously used the language of terrorism, perhaps with the attempt of not recognising the Free Syrian Army and thus maintaining the conflict on the level of civil disobedience and not humanitarian law. The invocation of humanitarian law would have serious consequences for the conflict, including the raising of responsibilities, not only the Syrian Government but also the Free Syrian Army, to comply with laws of war. The International Committee of the Red Cross (ICRC) which has a special role within humanitarian law, has designated several areas of Syria, on particular occasions, as an internal armed conflict. This designation is particularly important as it establishes a threshold of protection for civilians which requires the parties to the conflict to distinguish between civilians and combatants during fighting. Humanitarian law coupled with human rights law would provide the Syrian population with more protection than it currently posseses.
If, as the Syrian Government suggests, outside powers are supplying arms to non-government forces in Syria, there is a potential that it could become an internationalised armed conflict. Although the threshold to establish an internationalised conflict is quite high it does include indirect support for forces. The spilling-over of violence into neighbouring Turkey and Lebanon could also further complicate and internationalise the conflict. While Syrian forces have fired shots across the border into Turkey these actions do not reach the level of an ‘armed attack’ that would be necessary for the invocation of self-defence. The invocation of self-defence and subsequent use of force, does not require Security Council authorisation and thus would allow for action beyond the strictures of the UN. If such an armed attack occurred, as Turkey is a member of NATO, it would invoke article 5 of the North Atlantic Treaty which allows for collective self-defence on behalf of any of its members. While this is unlikely, the potential for a wider conflict is not beyond the realm of possibility and raises important issues for those states which have maintained that the use of force is not ruled out.
There have been several potential avenues for Security Council action, short of the use of force, which have been suggested over the past months. These options include increased targeted sanctions, the establishment of ‘safe havens’ and an increase in the number of UN observers in Syria. While Russia has continued to reject these options, claiming it is preserving Syria’s sovereignty from terrorist forces, there are other issues with each of these options. Safe havens were most famously used in Iraq to protect both the Kurdish population of the North and the Shia population in the south of that country. The Security Council passed resolution 688 which condemned Iraqi actions against these populations but did not authorise the use of force and was not passed under Chapter VII (Chapter VII resolutions are binding and must be complied with). Nonetheless the US, the UK and France all relied on this resolution when establishing these safe havens which inevitably included the use of force. While the UK latterly used humanitarian intervention as a reference point and implied authorisation of the resolution was not explicitly referenced except by the US, the action was outside of a strict reading of the Charter. The safe havens were also a precursor to the controversies in the lead up to the 2003 Iraqi invasion. To enforce a no-fly zone over a safe-haven it is inevitable that force would be used and following the safe havens in Iraq and the 2003 invasion, without specific Security Council authorisation, the US and UK are unlikely to want to make similar, legally dubious, arguments to justify the establishment of safe havens.
Targeted sanctions are another option. Recently, the EU has increased the number of sanctions against individuals in Syria, with news that even more may be on the way. These sanctions have included, an embargo on arms and equipment that can be used for internal repression, travel bans and asset freezing against those responsible for or associated with the repression. Sanctions became a popular UN tool in the 1990s, though again in Iraq, events proved that broad sanctions tend to hurt populations rather than the individuals in charge and targeted sanctions, with the possible exception of Burma/Myanmar, have shown few positive results in ameliorating or changing a regime’s policies. While this is not to suggest that the EU, and with some persuasion of Moscow, the UN, should not use sanctions against the Assad regime, alone they are largely ineffectual. An increase in the number of UN observers is also an option. The current crop of observers were sent under the auspices of resolutions 2043 and 2042 to support Kofi Annan’s plan. The ceasefire negotiated by Annan appears, at present, to have all but failed and thus the observers have not been observing any peace. Nonetheless, their presence has prevented the Assad regime from denying that massacres have occurred and have provided corroboration of report coming from the Syrian Free Army and activists within the country. While the Assad regime continues to claim that they do not control those committing the atrocities, the use of heavy artillery as part of these attacks, makes these claims appear ridiculous. The presence of the observers and the arrival of Kofi Annan in Syria, at the very least ensures a record of these events are being made and retained.
Should the UN Security Council decided to make the International Criminal Court seized of the situation, or should in a transitional or post conflict scenario a form of truth commission or criminal prosecutions occur, the evidence collected by the observers should, at the very least aid, in establishing some record regarding what is happening on the ground. Several countries have requested that the Security Council refer Syria to the ICC. Syria is not a party to the Rome Statute which established the ICC and therefore, similar to Libya, the Security Council will have to specifically grant to the ICC a mandate to investigate the ongoing events there. The work of the ICC in post-conflict Libya has not been uncontroversial, especially with regard to the prosecution and surrender of Saif Gaddafi. Nonetheless the action of the Security Council has ensured that continued pressure is maintained to ensure that the National Transitional Council of Libya either ensures a fair and thorough process is established within Libya or that the ICC will ensure this occurs from a global level. Potentially a referral of the events in Syria by the Security Council to the ICC would have a similar impact.
The UN Human Rights Committee is, today, holding an emergency session highlighting the many human rights abuses that are ongoing in Syria. In considering options, the states on the Security Council and the various UN organs active and seised of events there need to ensure that their actions will further the protection of the Syrian population. The UK has not ruled out the use of force but any action taken in Syria will require long-term commitment, perhaps much longer than the actions in Libya required. There are many problems and questions regarding any potential action by the UN, the regional bodies in the region, states, organisations such as the ICRC as well as human rights activists within the country as to what the best action to take would be. Nonetheless, action must be taken, the Syrian population have lived under dictatorship and terror for a very long period, dating much further back than the current violence, hopefully if decisive and proper action is taken, the various bodies and individuals seised with the issue, both within and outside of Syria can help insure the Syrian population will be allowed to make a more just future for themselves.