U.N. Commission Report on Crimes Against Humanity in Syria; Military Action; Unilateral Humanitarian Intervention in Syria and International Law

Terror That Cannot Be Stopped By Logic or Reason

Bashar al-Assad’s assault on civilians with tanks, snipers, and all the instruments of terror of a modern state is not likely to be stopped by logic or reason, just as Hitler’s terror could not have been stopped by logic or reason.

The leaders of Western countries, like their populations, are extraordinarily slow to recognize evil, perhaps because in the 21st century they don’t want to believe that true evil exists. But it does. Now. In Syria.

For a glimpse into the civil war underway and the hell Syria has become and is, today, read the report of a special United Nations Commission that has been investigating the crimes of the Syrian regime, made public today.

–See Alan Cowell and Steven Lee Myers, “U.N. Panel Accuses Syrian Government of Crimes Against Humanity,” New York Times, February 23, 2012.

–For the full text of the 72-page report, see “Report of the independent international commission of inquiry on the Syrian Arab Republic, U.N. Doc. A/HRC/19/69 (22 February 2012).

While the “Friends of Syria” are meeting in Tunis on February 24, and may reach decisions that are important mileposts toward building an international coalition to eventually support effective action in Syria, none of their decisions will stop al-Assad’s terror against the civilian population of his country. None of their decisions will stop the tanks and artillery from firing on apartment blocks and homes in Homs. None of their decisions will stop Syria’s Hitler from deliberately assassinating foreign journalists.

While these deliberations in Tunisia are important, there is also an urgent need for a second decision-making track on Syria. On this second track, key military and other decision-makers from a small number of countries should be meeting to reach decisions regarding the immediate deployment of military assets to the region, to provide real military options that can be quickly exercised if all else fails–as will likely be the case.

Perhaps these groups are already meeting. The United States and others should be moving their military assets to the Eastern Mediterranean and the area surrounding Syria as quickly and urgently as they can.

If al-Assad’s terror and commission of crimes against humanity and war crimes is to be stopped soon, the lessons of the Libyan experience must be applied. Military planning needs to be directed by a small number of states, and not left hostage to consensus decision-making among a large coalition. The latter can make key decisions to authorize, where possible, and in any event to endorse and support military and other action. But the execution of military actions should be left to a very small group, and not subject to consensus decision-making procedures such as those in NATO.

Unilateral Humanitarian Intervention Under International Law

Much of the discussion of options on Syria has assumed that there is no way for military action to be justified under international law without Security Council authorization. This assumption should now be subject to very close re-examination, as international lawyers in key countries explore legal justifications that would permit immediate military action to stop al-Assad’s centrally-directed commission of crimes against humanity, war crimes, and other grave violations of fundamental human rights. These include the deliberate targeting and execution of journalists and the targeting of and attacks on medical personnel and facilities. The precedent that would be established could be a very narrow one, given the extraordinary circumstances of the Syrian case.

For an excellent discussion of the international law issues related to unilateral humanitarian intervention applicable to the case of Syria, see Nikolai Krylov, Humanitarian Intervention: Pros and Cons, 17 Loy. L.A. Int’l & Comp. L. Rev. 365 (1995). Available at:
http://digitalcommons.lmu.edu/ilr/vol17/iss2/3.

Among more recent, shorter essays, see: Amos Guiora, “Humanitarian Intervention in Syria and the Role of the US,” JURIST – Forum, February 23, 2012. The author is professor of law at the University of Utah.

The Responsibiity to Protect

The preceding article by Nikolai Krylov was published in 1995. There have been significant developments since then, including the adoption by the United Nations Security Council of Resolution 1674 in 2006 on the protection of civilians in armed conflict. That resolution explicitly accepted and reaffirmed the “responsibility to protect” civilian populations as stated in the 2005 World Summit’s conclusions. Those provisions stated the following:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

The crux of the issue, as it was in Kosovo and Serbia, is what military action can be taken without Security Council authorization. Syria represents an extraordinary case, where a regime actively committing crimes against humanity and war crimes on a massive scale has been condemned by the General Assembly and by 13 members of the U.N. Security Council, which would have acted but for the vetoes of China and Russia. In these circumstances, there might be a strong legal case to be made supporting the limited use of military force to relieve civilian populations under bombardment and sniper fire, and to establish and maintain humanitarian corridors and safety zones. The international lawyers in the leading governments should be working night and day on this issue. Perhaps they already are.

The world stood by as Sarajevo was shelled during 1992-1995, leading to hundreds of thousands of deaths in the Balkans and to Srebrenice in 1995. Today, the world watches in real time as the same crimes against humanity are being committed in Homs and other cities and towns throughout Syria.

It is time to stop al-Assad.

Above all, delay is to be avoided, as thousands of lives hang in the balance.

The Trenchant Observer

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