The Syria Situation and International Law

There is a long history of deterioration of the situation in Syria. The conflict began over two years ago. Over 100,000 people are dead as a result and there is a humanitarian refugee crisis on the country’s borders. The civil war began because of decades of oppression perpetrated by the Assad regime against its people. There is also a history of Russian and Iranian support for the Syrian regime which complicates the position of the United States in relation to the matter even further.

A number of international organisations have made assessments of the conflict as having escalated to the level of being an outbreak of armed conflict. The international committee of the Red Cross echoed an assessment my by RULAC that it is now an armed conflict but without an international character. The United Nations Under-Secretary-General for Peacekeeping Operations has also said that the situation amounts to a civil war. The Independent International Commission of Inquiry on Syria has made a similar statement. The reason that this is significant is that when there is a recognised armed conflict, the laws of international criminal law, international human rights law and international humanitarian law apply to the situation.

The new revelation that chemical weapons are being used also means that these laws are now being breached and possibly justifies intervention under the terms of international law expressed in the UN charter. This is becoming so much the case that recently, Elliot Engel, the highest ranking Democrat member in the lower house of Congress on the Foreign Affairs Committee has called for the President Barack Obama to authorise strikes against Syria in light of evidence emerging of the use of chemical weapons against the civilian population in Syria.

The situation has parallels with the massive intelligence failure that occurred prior to the Iraq war where an informant gave information to the United States government about the existence of mobile weapons laboratories in Iraq. The informant who would later be referred to as ‘curveball’ admitted lying about the existence of weapons of mass destruction prior to the invasion of Iraq in 2003 with his reason being that he was a local enemy of the Saddam Hussein regime and he wanted to provoke the United States into invading the country and overthrowing the government. In light of this recent history, it would seem that it would be apt for the intelligence community to make probing assessments from a variety of sources about this intelligence before giving recommendations about the use of force.

However, there are a variety of international legal issues which could arise where the United States chooses to take action on the Syrian issue. Perhaps the principle one is if it is legal for the United States or other foreign countries to arm the rebels in Syria. The People’s Republic of China as well as the Russian Federation have both said that such an action would be illegal under international law. The most basic argument is that the Assad government is still the recognised government under international law and other states cannot, therefore, under the terms of the United Nations Charter attack the country unless it is in self defence. The Nicaragua case of 1986 from the ICJ found that the supplying of arms to rebel groups by a foreign power constitutes the use of force under international law. However, when there is the prospect of a genocide or a crime against humanity occurring, arming rebel groups could be within the scope of what is considered legal under international law. This question is very complicated because of the fact that the rebels have also committed acts which are considered to be an atrocity in the eyes of the international community.

Another major issue is the legality of a no-fly zone which is being considered by the United States. The consensus amongst the expert appears to be that a restriction upon the territorial sovereignty of a state needs to have approval from the United Nations as in the case of the no fly zone enforced subsequent to the first gulf war. The Russian Federation as also indicated that it would oppose any resolution to this effect. The United States appears to believe that it would be possible because there would not be an attempt to establish routine control over the territory of Syria. The intervention in conflicts without UN approval has a mixed history because the Kosovo intervention was largely seen as a success and occurred without the blessing of the United Nations. However, the second Iraq War was anything but a success in the final
analysis.

The final international law issue which arises is the question of what jurisdiction will the International Criminal Court have to prosecute individuals in respect of war crimes and crimes against humanity committed in the course of the conflict. But Syria is not a signatory to the treaty which established the Court making this question largely of academic interest only. Although the Security Council of the United Nations can refer a matter to it, this is unlikely at present because of the Russian and Chinese positions expressed through their diplomatic channels.

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