Continuing massacres in Syria, at Daraya and elsewhere; legal justification for military intervention — Obama’s Debacle in Syria —Update #78 (August 26)

Anxiety over the risks of a regional conflagration deepened further as it became clear that the violence in Syria was intensifying, with more civilians killed. The Local Co-ordination Committees (LCC), an opposition network, claimed that more than 200 bodies had been found in Daraya, and activists circulated a video appearing to show dozens of bodies lined up in dimly lit rooms, described in the commentary as being in the town’s Abu Suleiman al-Durani mosque.

The storming of Daraya followed three days of heavy bombardment by government tanks and artillery, which the opposition said killed another 70 people. The offensive appeared to be part of a larger struggle for control of the southern fringe of the capital. Residents said that government tanks on the Damascus ring-road shelled the neighbourhoods of al-Lawwan and Nahr Aisheh late into Saturday night and that there was also heavy fighting in the Ghouta suburbs to the east of the city.

The LCC said forces loyal to Assad had killed 440 people across Syria on Saturday. The Syrian Observatory for Human Rights, a British-based activist group drawing information from a network of monitors across Syria, put the nationwide death toll for the day at 370, including 174 civilians. If confirmed, it would be one of the bloodiest days the country has suffered since the anti-Assad revolt broke out in March 2011.

–Julian Borger (Diplomatic Editor), “Syrian regime accused of killing hundreds in Daraya massacre; At least 200 dead in poor Sunni community on outskirts of capital targeted by President Bashar al-Assad’s troops, The Guardian, August 26, 2012 (14.28 EDT).

The massacres by government forces continue at an accelerating pace in Syria.

This is actually old news, repeated again daily.

We know that the situation in Syria is horrific, and that al-Assad’s barbarism knows no limits. The daily evidence accumulates.

We don’t need to wait for new and ever greater atrocities to have all the information we need in order to act.

There is some indication that the West and the Arab countries, and Turkey and other civilized countries are moving toward taking actions that might affect the situation on the ground in Syria. Yet we must be clear that talk of action, even impending action, is not action itself, and that only actions in the air and on the ground can halt al-Assad’s terror–or even slow it.

There has been talk in France of the possibility of an air exclusion zone or no-fly zone being established in northern Syria, following discussion between Hillary Clinton and Turkish officials raising the possibility, which was to be “studied”.  There are more serious indications that military and other officials are meeting, or beginning to meet, to develop contingency plans. Still, back in Washington, Secretary of Defense Leon Panetta was quick to comment, when the first reports of Clinton’s raising this possibility were published, that the development of such options was “not on the front burner”.  More recently, a U.S. aircraft carrier was reported to be headed toward the region.

Statements by French officials sugest they have not fully come to grips with the real options: the establishment of a no-fly zone without U.N. Security Council approval, or no action at all.

They mindlessly repeat the shibboleth that military action without Security Council authorization is not permitted under international law, without considering the details of the arguments that might be used to justify such action. So far, the extremely cautious approach of President François Hollande shows little similarity to the dynamic leadership of his predecessor, Nicholas Sarkozy, who led the civilized nations of the world to finally intervene in Libya.

What has changed is the fierce opposition of Russia and China to any potentially effective action in Syria by the international community. That is now the reality of the situation. Even under these new circumstances, however, it is doubtful that Sarkozy would have simply given up, or obfuscated the real choices as the Hollande government has done in its public statements.

Military intervention in Syria to halt the movement or dispersal of chemical weapons would also require a legal justification for military action outside the framework of the Security Council, as it is most unlikely that Russia and China would accede to an authorization of such action. Clearly such authorization would be preferable, but it is not likely to occur even if chemical weapons are used or dispersed.

It should also be quite clear that any military action against Iran by Israel, or by Israel and the United States, would also have to be taken outside the framework of the Security Council. The legal justification would probably end up looking something like the justification for the U.S. invasion of Iraq in 2003, absent the thin reed the U.S. leaned on in claiming that the first Security Council resolution actually authorized the invasion.

Let us not forget that the United States is also using force outside the framework of the Security Council through its drone attacks in countries ranging from Somalia to Yemen. It hasn’t even bothered to comply with its obligation to justify its actions under international law.

A no-fly zone would be an important step forward in efforts to halt al-Assad’s butchery. Let there be no illusions, however, that the option might be pursued with the authorization of the U.N. Security Council, as this is simply not in the cards given Russian and Chinese opposition.

France needs to get serious in talking about the options it is considering with respect to Syria. Talk of a no-fly zone will not stop al-Assad’s helicopters and jet fighters from bombarding civilian towns and neighborhoods in Syria.

Only the establishment of a no-fly zone will achieve this objective, and then only after it has been implemented and Western military aircraft and missiles are defeating any Syrian government attempts to violate the air exclusion zone.

The Trenchant Observer

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The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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