Posts Tagged ‘military intervention’

Next Steps: Obama, like a deer caught in the headlights of an oncoming car, must now take steps to deal with the Syrian crisis—ALL OF IT

Thursday, August 29th, 2013

The publication by the U.K. on August 29 of a summary of its legal justification for taking military action against Syria is a most welcome development. It also highlights the ad hoc and uncoordinated nature of President Barack Obama’s and his administration’s decision making on Syria.

Obama, like a deer caught in the headlights of an oncoming car, said publicly yesterday that he had not yet decided whether to take military action against Syria–a declaration which seems disingenuous at best, particularly as David Cameron was going before the House of Commons to secure approval for undertaking such action.

Whether or not he has taken a decision to use military force, Obama has not articulated a clear diplomatic and military strategy regarding Syria within which the proposed military actions would make sense. Moreover, the details of such actions–however unwisely–have been and are being discussed widely and in detail by government officials in background conversations with reporters.

Obama is like a football player who, excited about playing in a championship game, forgot to bring his shoulder pads to the locker room. Now he needs to go back and get them and get fully suited up for the game.

Given the delays being caused by David Cameron’s difficulties in the House of Commons, Republican demands that Congress play a role, and the fact that it will take still some days before the U.N. chemical weapons inspectors depart Syria and come up with a preliminary report of their findings, Obama needs to carefully consider and take the following steps:

1. Think through a coherent strategy toward Syria;

2. Develop a narrow but cogent legal justification under international law for military actions that may be taken pursuant to that strategy;

3. Develop a broad and strong coalition among NATO allies and allies in the Arab countries and other civilized nations in the world that will support, and to the extent that can be achieved, participate in any military actions that might be taken;

4. Develop support for a U.N. Security Council Resolution which, even if vetoed by Russia and possibly China, will enlist the support of the remaining members of the Security Council;

5. Develop broad suport among the other countries of the world who might be persuaded to support such action by voting in favor of a General Assembly resolution; and

6. Secure the support of Republicans, Democrats, and the U.S. Congress for undertaking military action in Syria.

To achieve these objectives, the strength of the U.S. legal case for taking military action will be of vital importance.

And, it turns out that, contrary to what Obama may have thought before (operating in the covert world of secret actions), the U.S. can’t build a strong legal case for just any action, since the views of other countries as to what is permissible under international law are of decisive importance here.

To build a strong legal case, he will need to explain how the military action he and the “Coalition of the Willing” plan to undertake will contribute to halting al-Assad’s commission of war crimes and crimes against humanity, including but not limited to those involving the use of chemical weapons.

All of this will take some time. Time will work in Obama’s favor, if he has a strong case. Time will allow the members of the Security Council to get the U.N. inspectors’ preliminary report on whether chemical weapons were used in Syria last week. Time will help David Cameron in securing Labor Party support for U.K. military action in Syria. Time will allow for the diplomatic efforts that will be required to build a real international “Coalition of the Willing”, including NATO (and in particular NATO members such as Italy), and leading Arab states and other countries.

This process should be allowed to play out for another week or two, but not longer.

Then, when everything is set, the U.S. and its coalition partners should undertake appropriate military action at a time of their own choosing, employing military assets and strategems that have not been previously telegraphed to Bashar al-Assad and the band of war criminals who now run Syria.

If, in the interim, genuine Russian cooperation could be secured for, e.g., a Security Council resolution, under Chapter VII, mandating that Syria dismantle and surrender all of its chemical weapons stocks and programs, under U.N. supervision, then the equation might change.

Otherwise, what is outlined above is what is required. To be done successfully, Obama will have to stop sharing his internal thought processes with reporters and the public, and devote all of his and his administration’s energies to coming up with a viable strategy for Syria, a cogent legal defense of any military action, and the diplomacy necessary to develop support from U.S. allies and other civilized nations in the world.

Despite his best efforts to avoid dealing with what was going on in Syria for over two and a half years, Syria has caught up with Obama. Vital national security interests have become engaged. Now he will have to deal with it, all of it, not just the chemical weapons part or the fact that al-Assad crossed his “red line”.

The Trenchant Observer

For previous articles on Syria by The Trenchant Observer, see the Articles on Syria Page, or click here.

A strong but narrow legal justification for military action in Syria: The key to building a strong coalition

Tuesday, August 27th, 2013

The Necessity and Challenge of Crafting a Strong Legal Justification for Military Action in Syria

President Barack Obama is learning, however belatedly, that other nations take international law seriously, and that the strength of the justification under international law for military action in Syria will be an important factor in determining who will support this new “Coalition of the Willing”.

Here, the United States needs to listen carefully to the legal arguments its allies may put forth to justify military action. After years of covert action, including the targeted executions program which continues, it is not an exaggeration to say that the administration has not manifested a deep understanding of the nuances of the international law governing the use of force, as understood by other countries.

It is striking that, over two years after the civil strife in Syria began, the U.S. is now casting about for legal justifrications for military action against the government of Bashar al-Assad in Syria.

Unfortunately, it is clear that the president does not have the benefit of, or perhaps is simply not listening to, first-rate advice on how best to craft a legal justification for military intervention in Syria.

For example, the president and his administration talk of “punishing” Bashar al-Assad for his use of chemical weapons last week in Syria. That is how a layman might understand the matter, but a sophisticated international lawyer with expertise on the legality of the use of force would immediately point out to the president that there is no right to “punish” another state for past acts, as it is universally recognized that “armed reprisals” are illegal under international law.

Nor, except as discussed below, is there any special, independent right under international law to attack another country, absent Security Council authorization, to deter that country from using chemical weapons against its own population in the future. There could potentially be a legal justification for exercise of the right of self-defense if an attack with chemical weapons against another state were imminent, leaving no time for deliberation. But that is not the case here.

How, then, can military action against the al-Assad regime be justified?

Generally, the threat or use of force against the territorial integrity or political independence of another state is prohibited by Article 2 paragraph 4 of the U.N. Charter. Three exceptions to this norm exist:

1) when military action is taken in individual or collective self-defense unter the terms of Article 51 of the U.N. Charter, when an armed attack” occurs or is immediately imminent, as pointed out above;

2) when the military action is taken under the rubric of regional enforcement action by a regional collective security organization, under Chapter VIII of the U.N. Charter, with the approval of the Security Council in accordance with Article 53(1); and

3) when the military action is taken directly pursuant to authorization by the Security Council under Chapter VII of the U.N. Charter (Articles 39, 41 and 42).

The first of these justifications does not fit the facts of the current case. Any interpretation justifying such action as self-defense would open the door to a similar justification for a military attack on Iran by the U.S. and/or Israel, since the required element of an armed attack would be expanded so far as to swallow up the prohibition of the use of force contained in Article 2(4).

Were Syria, on the other hand, to engage in a series of armed attacks on one of its neighbors, e.g., Turkey, other countries could legally respond to a request for assistance in exercise of the right of collective self-defense under Article 51, but any action taken in exercise of that right would have to be necessary and proportionate in order to bring the original attacks to a halt.

The second justification of “regional enforcement action” under Article 53 of the Charter requires Security Council authorization. In the past, the United States has taken the position that the failure to disapprove any such action after the fact satisfies the requirements of Article 53(1). This was the position taken by the John F. Kennedy administration to justify the imposition of an OAS blockade against Cuba in October, 1962. However, such an interpretation flies directly in the face of the text of Article 53(1), and represents precedents which are perhaps best left in the history books.

Finally, military action against Syria may be undertaken pursuant to the authorization of the Security Council, as occurred in the case of Libya.

However, in Syria Security Council approval is clearly not in the cards, at least not any time soon, in view of previous vetoes by Russia and China of even the mild draft resolution of February 4, 2012.

What justification might still be advanced, then, under these circumstances?

It is important that the legal justification that is advanced do the least damage possible to the prohibition of the use of force contained in Article 2(4), and be narrowly tailored to the circumstances of the Syrian case.

A preliminary point is that Russia appears to have been complicit in the commission of war crimes and crimes against humanity in Syria by its ongoing support and enabling of the al-Assad regime as it continues its commission of these international crimes.

Russian cries of grave violations of the U.N. Charter need to taken with a grain of salt, bearing this fact in mind.

The ultimate question boils down to whether the international community is to remain helpless whenever a permanent member of the Security Council blocks effective action by that body through use of its veto, in circumstances as extraordinary as those existing in Syria today.

The February 4, 2012 draft resolution, for example, was approved by a vote of 13-2, with only permanent members Russia and China voting against. Moreover, the General Assembly has condemned the atrocities of the al-Assad regime in resolutions adopted by overwhelming majorities.

The narrowest legal justification for military action against the al-Assad regime would be that such action is necessary and undertaken in order to protect the population of Syria against the continuing commission of war crimes and crimes against humanity, including but not limited to the use of chemical weapons, by the al-Assad regime.

Moreover, the United Nations in 2005 and 2006 reached decisions establishing “the responsibility to protect”. The Security Council adopted 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.

While an absolutely literal reading of Article 2(4) of the U.N. Charter would appear to prohibit military action against Syria, in the special circumstances of the present case where the government of Syria is not only failing to protect its population against war crimes and crimes against humanity but is itself actively carrying out those crimes, perhaps the best legal justification for military action in Syria would be one justifying action aimed at halting the commission of those crimes.

A further provision would leave open the possibility of Russia and China playing a constructive role in resolving the situation in Syria in the future, by establishing that such military actions are being taken only as provisional measures of protection of the population against the continued commission of war crimes and crimes against humanity by the al-Assad regime, or anyone else. Further, such provisional measures would only continue until such time as the Security Council is able to take effective action to protect the people of Syria against the commission of these crimes.

Such a justification, it is submitted, would limit the precedent established by such military action to the narrowest of circumstances, those represented in the current Syrian case.

It would emphasize the goal of prevention of future harm, eschewing any language of “punishment” or reprisal. It would establish a framework that would permit a resolution of the Syrian conflict over time, and indeed offer Russia and others incentives to join in effective action through the Security Council at some point in the future.

Military action against Syria is a matter of grave importance. It should be backed by a strong but narrow legal justification such as that outlined above, both to assist in forming a coalition of supporters and in order to leave open a path for future collaboration by Russia and others in forging a cease-fire and rebuilding the country.

The president needs to pay attention to his legal justification, and get it right, now–before he acts.

The Trenchant Observer

For previous articles on Syria by The Trenchant Observer, see the Articles on Syria Page, or click here.

REPRISE: Hommage à Homs (actualisé / updated)

Sunday, July 7th, 2013

BEIRUT: Intense fighting in the central Syrian city of Homs has left 60 to 70 percent of a besieged rebel-held district damaged, destroyed or uninhabitable, activists said on Sunday.

The estimate from the Syrian Observatory for Human Rights came nine days into an all-out army assault on the rebel-held Khaldiyeh and Old City neighbourhoods, which have been under siege for more than a year.

On Sunday, regime forces subjected insurgent areas of the city to fierce shelling, said the Observatory.

“Sixty to 70 percent of buildings in Khaldiyeh are either totally destroyed, partially destroyed, or unsuitable for habitation,” Observatory director Rami Abdel Rahman told AFP.

Homs is Syria’s third-largest city, and tens of thousands of its residents have fled the fighting.

On Sunday, government troops used mortars, rocket fire and heavy artillery to target rebel areas in the city, the Britain-based Observatory said.

On the edges of Khaldiyeh, fresh clashes broke out between rebels and troops and pro-regime militiamen, it added.

According to the United Nations, some 2,500 to 4,000 people are trapped in the besieged areas.

In Damascus, regime warplanes targeted Jubar in the east of the capital, while tanks hit Qaboon in the northeast, said the Observatory.

–AFP, “Two thirds of Syria’s Homs rebel area destroyed: activists, The Daily Star (Beirut), July 7, 2013 (6:01 PM).

The destruction of Hom’s continues.

With the world’s attention turned to the rapid and undeniably enthralling events in Egypt at the moment, Syria’s battlefields are being dangerously neglected by the media and those supposed friends of the revolution, which is allowing the regime to up the scale and intensity of its massacres across the country.

The fierceness of fighting in Syria has reached unprecedented levels. At the moment it is focused in the central city of Homs, the heartbeat of the revolution, which has been held by the rebels for two years. From the air and on the ground, the regime is trying with all its might to wrest back control of the city, capital of a strategically located province.

This week government forces also destroyed the city’s official records building, another apparent attempt to wipe out the city and its history.

The hypocrisy of the international community at this moment seems to know no limits. Aside from the loss of life on the ground, once things calm down in Egypt, and people again look to Syria, the superpowers may realize they have blood on their hands.

–Editorial, The Daily Star (Beirut), July 6, 2013.

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REPRISE: Hommage à Homs: Jacques Prévert, “Barbara” (with English translation); Paul Verlaine, “Ariette III”
25 Février 2012

First published on February 25, 2012
REPRISE published on June 19,2012

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Voir / See

BEYROUTH (Reuters) – L’opposition syrienne a accusé mardi l’armée gouvernementale d’intensifier ses bombardements sur les quartiers résidentiels de Homs et les autorités de Damas ont affirmé que les rebelles empêchaient l’évacuation de la population civile de cette ville du centre du pays.

Le chef de la mission de supervision des Nations unies en Syrie (Misnus), le général norvégien Robert Mood, a dit son inquiétude quant au sort des civils pris au piège dans la troisième ville du pays, encerclée par les soldats de Bachar al Assad et bombardée presque quotidiennement depuis le début du mois.

Des dizaines de milliers d’habitants ont déjà fui Homs ces derniers mois.

Samedi, l’Observatoire syrien des droits de l’homme (OSDH), une ONG basée en Grande-Bretagne, a déclaré qu’un millier de familles étaient prises au piège à Homs, sous le feu des troupes gouvernementales. Des dizaines de blessés sont en grand danger en raison du manque de soins, a ajouté l’OSDH.

Selon l’OSDH, les bombardements se poursuivaient mardi marin sur plusieurs quartiers de Homs et un soldat gouvernemental a été tué dans un affrontement.

–Dominic Evans (Beyrouth) et Guy Kerivel,” Poursuite des bombardements sur la ville syrienne de Homs,” Reuters, 19 juin 2012.

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Dominic Evans, “Syrian forces bombard Homs before U.N. briefing,” The Daily Star, June 19, 2012 08:59 PM (updated: 9:00 PM).

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25 Février 2012

REPRISE: Hommage à Homs: Jacques Prévert, “Barbara” (with English translation); Paul Verlaine, “Ariette III”
25 Février 2012

Barbara

Rappelle-toi Barbara
Il pleuvait sans cesse sur Brest ce jour-là
Et tu marchais souriante
Épanouie ravie ruisselante
Sous la pluie
Rappelle-toi Barbara
Il pleuvait sans cesse sur Brest
Et je t’ai croisée rue de Siam
Tu souriais
Et moi je souriais de même
Rappelle-toi Barbara
Toi que je ne connaissais pas
Toi qui ne me connaissais pas
Rappelle-toi
Rappelle-toi quand même ce jour-là
N’oublie pas
Un homme sous un porche s’abritait
Et il a crié ton nom
Barbara
Et tu as couru vers lui sous la pluie
Ruisselante ravie épanouie
Et tu t’es jetée dans ses bras
Rappelle-toi cela Barbara
Et ne m’en veux pas si je te tutoie
Je dis tu à tous ceux que j’aime
Même si je ne les ai vus qu’une seule fois
Je dis tu à tous ceux qui s’aiment
Même si je ne les connais pas
Rappelle-toi Barbara
N’oublie pas
Cette pluie sage et heureuse
Sur ton visage heureux
Sur cette ville heureuse
Cette pluie sur la mer
Sur l’arsenal
Sur le bateau d’Ouessant
Oh Barbara
Quelle connerie la guerre
Qu’es-tu devenue maintenant
Sous cette pluie de fer
De feu d’acier de sang
Et celui qui te serrait dans ses bras
Amoureusement
Est-il mort disparu ou bien encore vivant
Oh Barbara
Il pleut sans cesse sur Brest
Comme il pleuvait avant
Mais ce n’est plus pareil et tout est abimé
C’est une pluie de deuil terrible et désolée
Ce n’est même plus l’orage
De fer d’acier de sang
Tout simplement des nuages
Qui crèvent comme des chiens
Des chiens qui disparaissent
Au fil de l’eau sur Brest
Et vont pourrir au loin
Au loin très loin de Brest
Dont il ne reste rien.

Jacques Prévert, Paroles(1946)

English translation
Barbara

Remember Barbara
It was raining nonstop in Brest that day
and you walked smiling
artless delighted dripping wet
in the rain
Remember Barbara
It was raining nonstop in Brest
and I saw you on rue de Siam
You were smiling
and I smiled too
Remember Barbara
You whom I did not know
You who did not know me
Remember
Remember that day all the same
Don’t forget
A man was sheltering under a porch
and he called your name
Barbara
and you ran toward him in the rain
Dripping water delighted artless
and you threw yourself in his arms
Remember that Barbara
and don’t be angry if I talk to you
I talk to all those I love
even if I’ve seen them only once
I talk to all those who love
even if I don’t know them
Remember Barbara
Don’t forget
that wise happy rain
on your happy face
in that happy town
That rain on the sea
on the arsenal
on the boat from Ouessant
Oh Barbara
What an idiot war
What has happened to you now
In this rain of iron
of fire of steel of blood
and the one who held you tight in his arms
lovingly
is he dead vanished or maybe still alive
Oh Barbara
It is raining nonstop in Brest
as it rained before
But it’s not the same and everything is ruined
It’s a rain of mourning terrible and desolate
It’s not even a storm any more
of iron of steel of blood
Just simply clouds
that die like dogs
Dogs that disappear
along the water in Brest
and are going to rot far away
far far away from Brest
where there is nothing left.

–Jacques Prévert (1900-1977). The Breton city of Brest, France, where the poet saw Barbara, was the main German submarine base for the Atlantic during World War II. Brest was totally destroyed by bombing raids by the end of the war. Only three buildings were left standing.

Translation and text by Sedulia Scott.

Voire aussi

20th Century French Poetry: Narrated by Paul Mankin

“Barbara” chantée par Yves Montand

On se souvien aussi d’un poème de Paul Verlaine, ce qui suit:

Ariette III

Il pleure dans mon coeur
Comme il pleut sur la ville
Quelle est cette langueur
Qui pénètre mon coeur?

O bruit doux de la pluie
Par terre et sur les toits!
Pour un coeur qui s’ennuie,
O le chant de la pluie!

Il pleure sans raison
Dans ce coeur qui s’écoeure.
Quoi! nulle trahison?
Ce deuil est sans raison.

C’est bien la pire peine
De ne savoir pourquoi,
Sans amour et sans haine,
Mon coeur a tant de peine!

–Paul Verlaine, Romances sans paroles, 1874

L’Observateur Incisif
(The Trenchant Observer)

REPRISE: Syrian military continues campaign to crush opposition in Saraqeb, Homs, al-Qusair and elsewhere—Obama’s Debacle in Syria — Update #16 (March 24, updated March 25, 2012)

Tuesday, May 28th, 2013

REPRISE
Originally published March 25, 2012

Latest news reports

Oliver Holmes and Steve Gutterman (Beirut/Moscow), “Syrian forces on the offensive; Annan in Moscow,” Reuters, March 25, 2012 (10:14pm IST).

Syria: Local Residents Used as Human Shields; Reports of Residents Forced to March in Front of Soldiers in Idlib, Human Rights Watch, March 25, 2012.

Rami G. Khouri, “A new world order is born in Syria,” The Daily Star (Beirut), March 24, 2012 (01:25 a.m.).

Khouri’s optimism regarding the U.N. initiative led by Kofi Annan is noteworthy, particularly in view of the earlier pessimism expressed by the Editorial Board of The Daily Star. On March 9, 2012, they wrote:

The scene around Syria overflows with talk. The world’s big players proffer big words, which amount to zero in their impact on the Syrian regime – if anything they are utilized in their propaganda campaign.

The international community is attempting to save face, and by doing so is exhibiting its hypocrisy in every step and every word. This is hypocrisy of the worst kind, not only uncovering the ulterior motives of the world powers, but also serving as an eye-opener as to the intentions of the small, medium and super powers. God help any downtrodden party who takes the words of those powers at their face value. In this, the international community’s reaction to the crisis in Syria should be a lesson for many nations that look to it for support.

In the meantime, help for Syria is still at square one and none of the steps currently being taken are going to eradicate the shame of the international community.

–Editorial, “We procrastinate,” The Daily Star, March 9, 2012.

While the Observer has the highest respect for Khouri and his judgment, the available evidence in the public domain suggests that the March 9 Editorial of The Daily Star is much closer to the mark than his March 24 column on “the birth of a new world order.”

Correction: Earlier versions of this article mistakenly atribributed this text to Rami G. Khouri, to whom we apologize for the error.

It is indeed a historical moment in which the international community is called upon to craft a new response to regimes in crisis that cling to power against the democratic demands of their populations by the use of terror and the commission of war crimes and crimes against humanity.

The response that is required, however, and which may yet emerge–if not in this crisis perhaps in the next–does not countenance long, drawn-out negotiations with a Dictator who continues to commit war crimes and crimes against humanity against his population. It does not accept a scenario in which negotiations continue in diplomatic time, as thousands are killed in real time.

It does not accept a diplomatic dance that places the trump cards in the hands of authoritarian regimes complicit in the commission of war crimes and crimes against humanity, and in the hands of the Dictator committing those crimes.

It does not accept the “devil’s bargain” of negotiating with a war criminal the cessation of war crimes and crimes against humanity in exchange for his retaining power and the capability of using the instruments of state power to continue widespread and grave violations of fundamental human rights, including the right of assembly, the rights to free speech, freedom of the press, and to receive and impart information and ideas, the right to life and physical integrity of the human person, and the right to due process and a fair trial by an independent judiciary.

Instead, the response that is required, for both moral and political reasons, is an insistence on the cessation of crimes angainst humanity and war crimes as a condition precedent to negotiations betwen the dictatorial regime, its democratic opposition, and the international community. Limited military actions to halt the ongoing commission of such crimes may form a part of this international response, with the approval of the Security Council whenever possible, but without it if Security Counil action is blocked by a veto and the atrocities and butchery continue.

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Original Article (March 24, 2012)

Der Spiegel reports in some detail on Iran’s assistance to the al-Assad government in its war against the opposition.

See “Aufstand in Syrien: Teheran liefert Assad angeblich Waffen,” Der Spiegel, den 24 März 2012.

See also, “Hopeless Diplomacy: Syrian Regime Resembles Mafia Cartel; Hopes that diplomacy will force Syrian President Bashar Assad to back down seem misguided, given that his regime resembles a mafia cartel bent on defending its turf by any means. There is no turning back for Assad’s clan or the rebels — both sides know that would spell their doom,” Der Spiegel (English), March 19, 2012.

In Syria, al-Assad’s troops, assisted by non-uniformed men, continued their attacks on rebel strongholds and conducted roundups of civilians.

Associated Press, “Syrian forces shell towns and clash with rebels; dozens killed,” The Washington Post, March 24, 2012.

The website of the London-based Syrian Observatory for Human Rights provides updates in English here, and in Arabic here.

We should not forget what is going on in Syria on the ground, not for a single day.

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

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–For earlier articles by The Trenchant Observer, see the Articles on Syria page.
–To use the Search function, click on “The Trenchant Observer” at the top of this page to go to the home page, and then enter your search term in the box at the upper right.
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How to find news reports from around the world
–Google and other major search engines use a series of filters amounting to what has been termed a “filter bubble” to limit search results to those keyed to the location, language, and previous search results of the user. See Eli Pariser, The Filter Bubble (2011).
–To find the latest news from around the world on Syria (or any other subject), you can bypass the “filter bubble” of Google and other search engines by going to and beginning your search at www.startpage.com

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REPRISE: The U.N. Charter, International Law, and Legal Justifications for Military Intervention in Syria—Obama’s Debacle in Syria — Update #90 (December 12, 2012)

Wednesday, December 12th, 2012

This article was first published on September 1, 2012

The situation in Syria (is) unfolding “in front of our eyes”, with the regime deploying fighter jets against the people, in addition to heavy artillery and tanks, (Ahmet DAVUTOĞLU, the Foreign Minister of Turkey, told the Security Council on August 30). “How long are we going to sit and watch while an entire generation is being wiped out by random bombardment and deliberate mass targeting?” he asked. “If we do not act against such a crime against humanity happening in front of our eyes, we become accomplice to the crime,” he warned.

As we wrote following the August 30 meeting of the Security Council,

Everyone wants a ceasefire and an end to the killing. Few seem to have come to grips with the fact that the use of force will be required, outside the framework of the Security Council. There can be little doubt that, within the Security Council itself, there is not going to be any agreement to use force (or even to adopt strong economic sanctions) to bring al-Assad’s barbarism to a halt.

This will have to be done outside the framework of the Security Council. What is needed is for one or more countries, preferably but not necessarily acting as a coalition, to just act to set up the safe zones, and one or more accompanying no-fly zones if that is required as a result of al-Assad’s response.

–U.N. Security Council Meets: More “blah, blah, blah”, and no action—Obama’s debacle in Syria — Update #82 (August 30), August 31, 2012.

Such action should be accompanied by a justification under international law.

That justification should stress that the purpose of the action is to protect the population of Syria against the commission of war crimes and crimes against humanity.

The stated purpose of the operation should not be to overthrow the government of Bashar al-Assad, which is impermissible under international law. On the other hand, it would be permissible if an operation which protected the population against the commission of such crimes also facilitated a process that would bring to account those in Syria who are responsible for the commission of war crimes and crimes against humanity.

While such fine distinctions may seem of little significance to those not versed in international law, they are in fact quite important in terms of limiting the precedent that would be set and obtaining support from other countries for such action, if not immediately at least over time.

For further discussion of legal justifications for intervention in Syria, see the following articles by The Trenchant Observer and the sources cited therein:

Continuing massacres in Syria, at Daraya and elsewhere; legal justification for military intervention — Obama’s Debacle in Syria —Update #78 (August 26), August 26, 2012

REPRISE: Humanitarian Intervention in Syria Without Security Council Authorization—Obama’s Debacle in Syria— Update #68 (July 25), July 25, 2012

Military Intervention to establish “no-kill zones” and humanitarian corridors—Syria Update #9 (February 25), February 24, 2012

The critical issue with respect to legal justifications for establishing and defending “safe zones” or “no-kill zones” in Syria, and the establishment of no-fly zones if required, is whether such action would violate Article 2 paragraph 4 of the United Nations Charter. Article 2(4) provides:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

On the face of it, the use of force to enforce a no-fly zone, or to defend a “safe zone” from assaults by Syria’s army, would involve an action against the “territorial integrity” of Syria. This is the horn of the dilemma.

Read literally, any permanent member of the Security Council could, through the use of its veto, block any military action by any state within the territory of another state, except in the case of an “armed attack”, no matter what the circumstances. In principle, such a veto could block any action by the civilized nations of the world to bring to a halt a war crimes and crimes against humanity, ethnic cleansing such as occurred in Kosovo, or even genocide such as that conducted by Adolph Hitler during World War II.

Various interpretations of the Charter have proposed ways out of this logical box. One is the so-called “teleological” interpretation, by which Article 2(4) must be interpreted not literally, but rather in the light of the general purposes of the U.N. Charter and its other principles. Using this approach, one might justify the establishment of “no-kill zones” and “no-fly zones” in Syria.

The problem is that such “teleological” interpretations might open Pandora’s box, allowing multiple interpretations and opportunities for abuse by states intervening for their own purposes, e.g., to overthrow the al-Assad regime, while putting a humanitarian argument forward to justify their actions. Or, to cite another example, Israel and the United States might attempt to justify an attack on Iran to take out or greatly degrade its nuclear enrichment capabilities and what they believe is a secret program aimed at developing nuclear weapons, on the rationale that it is necessary to maintain international peace and security.

Alternatively, Israel and the United States could in principle attempt to justify an attack on Iran as an exercise of the right of individual and collective self-defense, an exception to the prohibition in Article 2(4) contained in Article 51 of the Charter, which provides:

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The key words in Article 51 are “if an armed attack occurs”, which has been interpreted as embodying the requirements that the armed attack have occurred or be imminent, immediate and leave no time for other actions. Exercise of the right of self-defense has traditionally been subject to the requirements “immediacy, necessity and proportionality”.

See Flavio Paioletti, “The 21st Century Challenges to Article 51,” e-International Relations, June 30, 2011.

The United States and other nations have not always acted within this tight legal framework. In 1999, for example, the United States and NATO conducted a unilateral bombing campaign against Serbia in a successful effort to get the government to stop its policy of ethnic cleansing in Kosovo. Despite its humanitarian purpose, no legal justification was advanced by the U.S. Department of State for the action.

In Iraq, the United States sought to justify its 2003 invasion of that country both on the basis of previous Security Council resolutions and on the basis of the “right” advanced by the Bush administration to “pre-emptive self defense”.

The concern of states and legal scholars from around the world is that by allowing “teleological” interpretations of Article 2(4) or expansive interpretations of what constitutes “an armed attack” creating a right of individual and collective self-defense, such interpretations would open the door to increasingly expansive assertions of the right to use force across international frontiers. It is significant that in the case of Kosovo, no legal justification was offered.

So, we are left with the legal regime brilliantly defined by the founders of the United Nations to establish rules and mechanisms to effectively regulate the international use of force, on the one hand, and the fact that as the populations of more and more countries seek to demand respect for their fundamental human rights, and the right to participate in government, existing dictorships may resort to the appalling use of terror and crimes against humanity and war crimes in defending their hold on power, as has happened recently in Libya and Syria.

Unlike domestic laws and the constitution in the U.S., the United Nations Charter and other international agreements are subject to rules of strict interpretation, as established in the Vienna Convention on the Law of Treaties. This makes sense, as nations are generally extremely wary of ceding authority to international institutions, and rules of strict interpretation are necessary in order to secure participation in international treaties. While the United Nations Charter is something of a special case, since very few countries would consider withdrawal from the organization, acceptance of the compulsory jurisdiction of the International Court of Justice remains voluntary, a fact which underlines the continuing importance of rules of strict interpretation.

Caught in this logical box, are we to stand idly by as tens of thousands or hundreds of thousands of human beings are slaughtered, whenever a permanent member of the Security Council exercises a veto?

The United Nations Charter is 67 years old. It has survived the Korean war, the war in Vietnam, the invasions of Hungary, Czechoslovakia, and Afghanistan (1980), the Balkan wars, genocide in Rwanda and the Sudan, and the U.S. invasion of Iraq.

The fundamental question is whether states should: (1) simply act outside the charter when they feel compelled to do so for humanitarian reasons (e.g., Kosovo); (2) justify their actions on legal grounds, preferably as taken with the support of regional organizations (e.g., NATO) or a broad coalition of nations; or (3) do nothing in the face of acts of barbarism such as those being committed in Syria.

In the case of Kosovo, Russia brought a resolution to a vote in the Security Council which condemned the bombing of Serbia, but the resolution was defeated 12-3.

Perhaps that is as close to 100% compliance with the Charter norms as we can get in the world today.

The ultimate choice is between undertaking effective action that will halt the atrocities in Syria, or sticking with our current policies.

In the case of the U.S., the current policy is carefully calibrated to comply with the requirements on the use of force laid down by the International Court of Justice in 1986 in the Nicaragua case. In that case, the Court held that direction and control of rebel groups was required in order for assistance to rebel groups to constitute an armed attack, thereby triggering a right of individual or collective self defense.

If the decision is made to establish safe zones and associated no-fly zones (if necessary), a final choice is whether to provide some legal justification for such action, or to follow the example of the United States in the NATO bombing of Serbia in 1999, and offer none.

While the choice here is not entirely clear, a strong argument can be made for advancing a highly restrictive legal justification, narrowly tailored to the circumstances in the Syrian case, together with the support of a regional body such as NATO, and undertaken only as a provisional measure of protection until such time as the Security Council can act effectively to protect the population of Syria from the commission of war crimes and crimes against humanity.

Russia may bring a resolution condemning such action in the Security Council. Assuming the resolution is defeated by a healthy margin, as occurred in the case of Kosovo, this may be the closest to compliance with the Charter as is possible today.

The Trenchant Observer

Lakhdar Brahimi briefs Security Council; Impasse continues; No new ideas—Obama’s Debacle in Syria — Update #87 (September 25)

Tuesday, September 25th, 2012

Remarks at Media Stakeout Outside Security Council by Guido Westerwelle, German Foreign Minister, September 24, 2012

SC President, Guido Westerwelle (Germany) on Syria – Security Council Media Stakeout, 24 Sep 2012 (video link)- Informal comments to the media by H. E. Mr. Guido Westerwelle, Foreign Minister of Germany and the Security Council President for September on the situation in Syria. [English and German]

Remarks at Media Stakeout Outside Security Council by Lakhdar Brahimi, Joint Special Representative of the United Nations and the League of Arab States, and of Peter Wittig, President of the U.N. Security Council, September 24, 2012.

SC President, Peter Wittig (Germany) and Lakhdar Brahimi, Joint Special Representative of the United Nations and the League of Arab States on Syria – Security Council Media Stakeout (24 September 2012) – 24 Sep 2012 (video link)- Informal comments to the media by H. E. Mr. Peter Wittig, Permanent Representative of Germany to the UN and Security Council President and by Joint Special Representative of the UN and the League of Arab States on the Syrian crisis, Lakhdar Brahimi.

Analysis

Judging from Brahimi’s comments, he plans to settle in for a long period of time as Joint Special Envoy of the United Nations and the League of Arab States, enjoying the perquisites of the 17 member staff set up in Geneva and his tax-free salary of $189,000 per year.

On the positive side, he didn’t say much, though he has begun to hold out false hopes for a breakthrough, just as Kofi Annan did, saying he expected developments that would make an “opening” possible in the not too distant future.

Recommendations:

1. Brahimi’s mission, and his 17-member office in Geneva, should be ended at the earliest opportunity.

2. The Security Council should set up a special working group of the Permanent Members of the Council to meet weekly to roll up their sleeves and work together to find a solution to the impasse in the Security Council. How do Russia and China intend to stop the civil war and the ongoing commission of crimes against humanity and war crimes by the government of Syria? What do they propose beyond watching the slaughter unfold as extremist elements of the armed opposition gain momentum?

Brahimi’s talk of pursuing Kofi Annan’s six-point plan should send all the permanent representatives to the Security Council running for the exits, or running to ensure that Brahimi exits at an early date.

We’ve already done this.  We’ve been there.  30,000 Syrians have died while the Security Council failed to deal with the killing in Syria, and Kofi Annan misled the world with false hopes and illusory peace plans, “castles in the sky” lacking any plan to force al-Assad to stop his crimes.  Diplomacy focused on the Security Council has failed.

Enough is enough.  We don’t need to do this again.  What we need to do is to stop the killing.  Now.  By military action outside the framework of the Security Council,  if that is what is required.

The Trenchant Observer

REPRISE: Responding to Atrocities in Syria: It’s Not Just About Al-Assad, It’s About Us—Obama’s Debacle in Syria — Update #86 (September 18)

Tuesday, September 18th, 2012

Responding to Atrocities in Syria: It’s Not Just About Al-Assad, It’s About Us

Originally published March 6, 2012

I heard a boy in Syria on the BBC talking about what was going on there, a few days ago, and he said that ultimately the atrocities could not be stopped until people in other countries really cared about the suffering of the people in Homs, and elsewhere in Syria, and intervened to stop it.

It really comes down to that. Whether the leaders and populations of the countries of the civilized world care about al-Assad’s ongoing commission of war crimes and crimes against humanity, sufficiently to stop it. That boy hit the nail on the head. It all boils down to whether we care. Enough.

About the individual human beings who are being slaughtered.

But the leaders of the civilized world, such as they are, don’t care. Not enough to act, not enough to undertake the only action that might stop al-Assad, which is using military force to halt the killing.

Given the momentum and tempo of the murderous offensives underway, it is highly doubtful that even China and Russia, al-Assad’s accomplices in the commission of these crimes, could force Syria to stop the killing. Nor is it likely that a new Security Council resolution, even with the abstention or support of China and Russia, could stop the killing. Unless it authorized the use of military force, and even then delays in execution–such as those that occurred in Libya–could cost thousands of more lives.

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For earlier articles on Syria by The Trenchant Observer, see the Articles on Syria page.

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It is difficult to sleep, here in the United States, knowing that dozens or hundreds of people are being murdered each day by Bashar al-Assad’s soldiers and security forces, during these same hours, in broad daylight in Syria. Men and boys are being rounded up in groups and taken away to be executed–or executed on the spot. Men are pulled from cars at checkpoints, and taken to be shot.

This is what General Franco’s forces did during the Civil War in Spain from 1936-1939. It is what Hitler’s officers and soldiers did throughout Europe in World War II, from September 1939 until they were stopped in May, 1945 by the combined military forces of the Allied Powers.

Not just men and boys, but also women and children are being killed every day in Syria by the indiscriminate shelling by tanks, artillery and anti-aircraft weapons into apartment blocks and homes. Round-ups are underway, where individuals believed to be opponents of al-Assad, or who just happen to be in the wrong place at the wrong time, or who just happen to be Sunni instead of Alawite, are hunted down and either taken away to be tortured and/or shot, or have their throats slit by knives as they lay tied on the ground.

Hell has come to Syria.

A merciless slaughter and brutal repression are currently underway in Syria, each day as we try to sleep in the United States–a relentless, grinding slaughter, with horrors beyond all telling.

We know this. The world knows this. The world has first-hand testimony from witnesses, videos from cameras and smart phones, almost in real time. We have the U.N. Special Commission Report on Syria of February 22, 2012, which provides the details. News accounts bring us up to the present, with chilling accuracy.

The death toll has already surpassed the 7,000 men and boys massacred at Srebrenice, in 1995–as U.N. peacekeepers from the Netherlands, stationed in Srebrenice, stood by and did nothing to protect the population from the butchery of Slobodan Milosovic and Ratko Mladic.

It is some consolation that both were taken to The Hague, where Milosovic died while being tried, and where Mladic’s trial will commence in May. But their trials cannot bring back the men and boys who were slaughtered in Srebrenice on July 11, 1995.

And we, in the civilized world, swore that we would never let Srebrenice happen again.

One would think the Dutch would be out front on this one. But they aren’t.

To be sure, there have been other crimes against humanity, in Rwanda and Darfur, for example. And it is demonstrably true that we in the civilized world cannot stop all such crimes in all such places.

But in Syria, at the center of the lands and civilizations, going back four thousand years, which once formed part of the Roman Empire, close to Jerusalem and the heartland of the three religions of the The Book (Chirstianity, Judaism, and Islam), the civilized world could do something to stop this killing–if it had the courage and the will to do so.

Tragically, our leaders are too feckless to act. It would be difficult to take down the Syrian air defenses, our military leaders testify before Congress. The mililtary action would be difficult, and that is adduced as a reason not to undertake it. As if the Normandy invasion was not difficult. Or the Battle of Corregidor. Or taking down the Serbian air defenses in the bombing in Serbia in 1999 to stop the the ethnic cleansing by the Serbs in Kosovo.

Why is it hard to sleep?

Because I believe that President Obama has real-time intelligence on the details of the atrocities that are being committed, and may well be able to watch events in real-time from cameras on satellites and drones and other platforms (as he did when Bin Laden was taken down). I believe he knows exactly what is going on. And he is unwilling to lift a finger to do anything about it.

He has reportedly vetoed any military action, within the last week.

I support Obamacare, but I can’t support “Obama doesn’t care”.

I heard a boy in Syria on the BBC talking about what was going on there, a few days ago, and he said that ultimately the atrocities could not be stopped until people in other countries really cared about the suffering of the people in Homs, and elsewhere in Syria, and intervened to stop it.

It really comes down to that. Whether the leaders and populations of the countries of the civilized world care about al-Assad’s ongoing commission of war crimes and crimes against humanity, sufficiently to stop it. That boy hit the nail on the head. It all boils down to whether we care. Enough.

About the individual human beings who are being slaughtered.

But the leaders of the civilized world, such as they are, don’t care. Not enough to act, not enough to undertake the only action that might stop al-Assad, which is using military force to halt the killing.

Given the momentum and tempo of the murderous offensives underway, it is highly doubtful that even China and Russia, al-Assad’s accomplices in the commission of these crimes, could force Syria to stop the killing. Nor is it likely that a new Security Council resolution, even with the abstention or support of China and Russia, could stop the killing. Unless it authorized the use of military force, and even then delays in execution–such as those that occurred in Libya–could cost thousands of more lives.

That is why Kofi Annan’s U.N. mediation effort is so tragic. It is misbegotten on principle, and the principle is that we should not negotiate the cessation of the commission of war crimes and crimes against humanity. We should not negotiate with war criminals, except for the terms of their prompt exit from the scene.

It is ill-considered in that, wholly aside from the principle of the matter, Annan’s consultations will 1) give al-Assad control of the pace of the “mediation” efforts; and 2) lead to drawn-out diplomatic consultations that will give the Syrian Dictator the time he wants to commit more war crimes and crimes against humanity to wipe out his opponents, and their villages and towns.

Only mass amnesia at the office of U.N. Secretary General Ban Ki-Moon, and other powers he may have consulted, could account for the failure to take into account the sad history of the Arab League’s negotiations with Syria over implementation of its November peace plan, and its experience in sending monitors to the country. Whatever al-Assad might agree to, would be utterly worthless, as he has zero credibility. And more time would be lost, to check on his compliance with any agreement, for diplomatic consultations as to what to do. More time for war crimes and crimes against humanity, and the total destruction of neighborhoods and towns that have shown opposition or resistance.

Actually, there has been one notable exception to the general passivity of leaders in the civilized world. U.S. Senator and former presidential candidate John McCain had the courage to speak up on the floor of the Senate yesterday, March 5, and to call for air attacks on al-Assad’s forces to halt the killing and other atrocities. In the United States, his speech was reported in general, but the powerful and cogently reasoned arguments he presented, supporting his call for immediate military action, have as yet received little coverage in the United States. News coverage in Europe, in fact, may be better.

The speech is of fundamental importance for understanding the options that face us in Syria, and the consequences of inaction. It should be mandatory reading for anyone who is following developments in that country.

So why should all of this cause anyone to be troubled as he goes to sleep?

The crimes are eerily similar to the crimes for which the Nazi war criminals were prosecuted at Nuremberg.

We are doing nothing effective to stop al-Assad from continuing with his massacres. We know what is going on. We are gutless wonders.

So, what is going on in Syria is not only about al-Assad. It is also about us.

It is about the levels of barbarism we are willing to watch, in real time, close to Jerusalem and the heart of Europe and the Middle East, without lifting a finger.

We have no principles left which we believe are worth fighting for.

Afghanistan long since ceased to be about building democracy and the rule of law, even in incipient form, and there we fight only so we can get out without the Afghan government falling. Victory is not the goal, but “degrading the Taliban”, while we delude ourselves with thoughts of a negotiated settlement that would amount to something short of capitulation–over time–to the Taliban.

I doubt that Obama would have acted to bomb Serbia in order to halt the ethnic cleansing in Kosovo, if it had occurred on his watch.

We have no leaders, and the world is adrift.

Civilized countries now accept the commission of crimes against humanity and war crimes.

That is not right. And so it is with a troubled mind that I now seek sleep.

The Trenchant Observer

observer@trenchantobserver.com
twitter.com/trenchantobserv

In Washington, new voices urging no-fly zones; France reportedly supports “liberated zones”, moves towards supply of weapons—Obama’s Debacle in Syria — Update #84 (September 5)

Wednesday, September 5th, 2012

Recent News and Opinion on Syria

James Traub, “The Obama administration has backed itself into a corner in Syria, a crisis with few good options; But the endgame is clear, at least, and the time to get involved has come,” Foreign Policy, August 31, 2012.

John Irish (Paris) – September 5 -“France gives Syria “liberated zones” aid, mulls weapons – source; France providing help in three provinces – source; Source says Paris considering idea of supplying artillery; French increase contact with Syrian rebels,” Reuters, September 6, 2012.

Recommendation

The United States, France and the United Kingdom should invite Russia and China to join in the establishment of an independent working group to examine the experience in Libya by NATO and other powers acting pursuant to a Security Council resolution authorizing the use of “all necessary measures” to protect the civilian population against attacks by Qaddafi’s forces.

The terms of reference of the study group should be to identify specific points of disagreement regarding implementation actions by NATO and others in Libya, and to engage in discussions aimed at developing acceptable parameters for appropriate authorization by the security council of intervention in other situations. The focus should not be explicitly on Syria, though should common understandings develop they could of course have an impact on discussions among the five permanent members of the Security Council relating to Syria.

The Trenchant Observer

The U.N. Charter, International Law, and Legal Justifications for Military Intervention in Syria—Obama’s Debacle in Syria — Update #83 (September 1)

Saturday, September 1st, 2012

The situation in Syria (is) unfolding “in front of our eyes”, with the regime deploying fighter jets against the people, in addition to heavy artillery and tanks, (Ahmet DAVUTOĞLU, the Foreign Minister of Turkey, told the Security Council on August 30). “How long are we going to sit and watch while an entire generation is being wiped out by random bombardment and deliberate mass targeting?” he asked. “If we do not act against such a crime against humanity happening in front of our eyes, we become accomplice to the crime,” he warned.

As we wrote following the August 30 meeting of the Security Council,

Everyone wants a ceasefire and an end to the killing. Few seem to have come to grips with the fact that the use of force will be required, outside the framework of the Security Council. There can be little doubt that, within the Security Council itself, there is not going to be any agreement to use force (or even to adopt strong economic sanctions) to bring al-Assad’s barbarism to a halt.

This will have to be done outside the framework of the Security Council. What is needed is for one or more countries, preferably but not necessarily acting as a coalition, to just act to set up the safe zones, and one or more accompanying no-fly zones if that is required as a result of al-Assad’s response.

–U.N. Security Council Meets: More “blah, blah, blah”, and no action—Obama’s debacle in Syria — Update #82 (August 30), August 31, 2012.

Such action should be accompanied by a justification under international law.

That justification should stress that the purpose of the action is to protect the population of Syria against the commission of war crimes and crimes against humanity.

The stated purpose of the operation should not be to overthrow the government of Bashar al-Assad, which is impermissible under international law. On the other hand, it would be permissible if an operation which protected the population against the commission of such crimes also facilitated a process that would bring to account those in Syria who are responsible for the commission of war crimes and crimes against humanity.

While such fine distinctions may seem of little significance to those not versed in international law, they are in fact quite important in terms of limiting the precedent that would be set and obtaining support from other countries for such action, if not immediately at least over time.

For further discussion of legal justifications for intervention in Syria, see the following articles by The Trenchant Observer and the sources cited therein:

Continuing massacres in Syria, at Daraya and elsewhere; legal justification for military intervention — Obama’s Debacle in Syria —Update #78 (August 26), August 26, 2012

REPRISE: Humanitarian Intervention in Syria Without Security Council Authorization—Obama’s Debacle in Syria— Update #68 (July 25), July 25, 2012

Military Intervention to establish “no-kill zones” and humanitarian corridors—Syria Update #9 (February 25), February 24, 2012

The critical issue with respect to legal justifications for establishing and defending “safe zones” or “no-kill zones” in Syria, and the establishment of no-fly zones if required, is whether such action would violate Article 2 paragraph 4 of the United Nations Charter.  Article 2(4) provides:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

On the face of it, the use of force to enforce a no-fly zone, or to defend a “safe zone” from assaults by Syria’s army, would involve an action against the “territorial integrity” of Syria. This is the horn of the dilemma.

Read literally, any permanent member of the Security Council could, through the use of its veto, block any military action by any state within the territory of another state, except in the case of an “armed attack”, no matter what the circumstances. In principle, such a veto could block any action by the civilized nations of the world to bring to a halt a war crimes and crimes against humanity, ethnic cleansing such as occurred in Kosovo, or even genocide such as that conducted by Adolph Hitler during World War II.

Various interpretations of the Charter have proposed ways out of this logical box. One is the so-called “teleological” interpretation, by which Article 2(4) must be interpreted not literally, but rather in the light of the general purposes of the U.N. Charter and its other principles. Using this approach, one might justify the establishment of “no-kill zones” and “no-fly zones” in Syria.

The problem is that such “teleological” interpretations might open Pandora’s box, allowing multiple interpretations and opportunities for abuse by states intervening for their own purposes, e.g., to overthrow the al-Assad regime, while putting a humanitarian argument forward to justify their actions. Or, to cite another example, Israel and the United States might attempt to justify an attack on Iran to take out or greatly degrade its nuclear enrichment capabilities and what they believe is a secret program aimed at developing nuclear weapons, on the rationale that it is necessary to maintain international peace and security.

Alternatively, Israel and the United States could in principle attempt to justify an attack on Iran as an exercise of the right of individual and collective self-defense, an exception to the prohibition in Article 2(4) contained in Article 51 of the Charter, which provides:

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The key words in Article 51 are “if an armed attack occurs”, which has been interpreted as embodying the requirements that the armed attack have occurred or be imminent, immediate and leave no time for other actions. Exercise of the right of self-defense has traditionally been subject to the requirements “immediacy, necessity and proportionality”.

See Flavio Paioletti, “The 21st Century Challenges to Article 51,” e-International Relations, June 30, 2011.

The United States and other nations have not always acted within this tight legal framework. In 1999, for example, the United States and NATO conducted a unilateral bombing campaign against Serbia in a successful effort to get the government to stop its policy of ethnic cleansing in Kosovo. Despite its humanitarian purpose, no legal justification was advanced by the U.S. Department of State for the action.

In Iraq, the United States sought to justify its 2003 invasion of that country both on the basis of previous Security Council resolutions and on the basis of the “right” advanced by the Bush administration to “pre-emptive self defense”.

The concern of states and legal scholars from around the world is that by allowing “teleological” interpretations of Article 2(4) or expansive interpretations of what constitutes “an armed attack” creating a right of individual and collective self-defense, such interpretations would open the door to increasingly expansive assertions of the right to use force across international frontiers. It is significant that in the case of Kosovo, no legal justification was offered.

So, we are left with the legal regime brilliantly defined by the founders of the United Nations to establish rules and mechanisms to effectively regulate the international use of force, on the one hand, and the fact that as the populations of more and more countries seek to demand respect for their funamental human rights, and the right to participate in government, existing dictorships may resort to the appalling use of terror and crimes against humanity and war crimes in defending their hold on power, as has happened recently in Libya and Syria.

Unlike domestic laws and the constitution in the U.S., the United Nations Charter and other international agreements are subject to rules of strict interpretation, as established in the Vienna Convention on the Law of Treaties. This makes sense, as nations are generally extremely wary of ceding authority to international institutions, and rules of strict interpretation are necessary in order to secure participation in international treaties. While the United Nations Charter is something of a special case, since very few countries would consider withdrawal from the organization, acceptance of the compulsory jurisdiction of the International Court of Justice remains voluntary, a fact which underlines the continuing importance of rules of strict interpretation.

Caught in this logical box, are we to stand idly by as tens of thousands or hundreds of thousands of human beings are slaughtered, whenever a permanent member of the Security Council exercises a veto?

The United Nations Charter is 67 years old. It has survived the Korean war, the war in Vietnam, the invasions of Hungary, Czechoslovakia, and Afghanistan (1980), the Balkan wars, genocide in Rwanda and the Sudan, and the U.S. invasion of Iraq.

The fundamental question is whether states should: (1) simply act outside the charter when they feel compelled to do so for humanitarian reasons (e.g., Kosovo); (2) justify their actions on legal grounds, preferably as taken with the support of regional organizations (e.g., NATO) or a broad coalition of nations; or (3) do nothing in the face of acts of barbarism such as those being committed in Syria.

In the case of Kosovo, Russia brought a resolution to a vote in the Security Council which condemned the bombing of Serbia, but the resolution was defeated 12-3.

Perhaps that is as close to 100% compliance with the Charter norms as we can get in the world today.

The ultimate choice is between undertaking effective action that will halt the atrocities in Syria, or sticking with our current policies.

In the case of the U.S., the current policy is carefully calibrated to comply with the requirements on the use of force laid down by the International Court of Justice in 1986 in the Nicaragua case. In that case, the Court held that direction and control of rebel groups was required in order for assistance to rebel groups to constitute an armed attack, thereby triggering a right of individual or collective self defense.

If the decision is made to establish safe zones and associated no-fly zones (if necessary), a final choice is whether to provide some legal justification for such action, or to follow the example of the United States in the NATO bombing of Serbia in 1999, and offer none.

While the choice here is not entirely clear, a strong argument can be made for advancing a highly restrictive legal justification, narrowly tailored to the circumstances in the Syrian case, together with the support of a regional body such as NATO, and undertaken only as a provisional measure of protection until such time as the Security Council can act effectively to protect the population of Syria from the commission of war crimes and crimes against humanity.

Russia may bring a resolution condemning such action in the Security Council. Assuming the resolution is defeated by a healthy margin, as occurred in the case of Kosovo, this may be the closest to compliance with the Charter as is possible today.

The Trenchant Observer

REPRISE: Humanitarian Intervention in Syria Without Security Council Authorization—Obama’s Debacle in Syria — Update #68 (July 25)

Wednesday, July 25th, 2012

The article reproduced below, and the earlier articles it cites, address the issue of the legal justifications that might be advanced to support the supply of arms to the insurgents in Syria, or to support military intervention to halt the commission of war crimes and crimes against humanity, whether by establishing a no-fly zone or a humanitarian corridor or more direct military engagement. These legal justifications are suggestive of the type of justifications that the governments engaged in such actions ought to provide. Obviously, their international lawyers can develop the definitive legal defenses in considerably more detail. But they should provide public legal justifications for their actions, instead of hiding behind a cloak of secrecy and covert operations, as the U.S. does with its program of targeted executions.

For additional background on international law and humanitarian intervention, see

V.S. Mani, “Humanitarian Intervention Today”, Recueil des Cours / Collected Courses, Volume 313 (2005), Académie de Droit International de la Haye / Hague Academy of International Law (Martinus Nijhoff, The Hague, 2005). The “Recueil des Cours” is available in one or more libraries in most of the countries in the world.

First published on April 8, 2012

The futility of the 6-point peace plan of Kofi Annan and the Security Council should now be clear for even the most willfully obtuse to see. Al-Assad has introduced on Sunday new conditions for compliance with the peace plan’s requirements for a ceasefire. As anyone who has closely followed developments in Syria over the last six months already knew, al-Assad will say or agree to anything, but he will never comply with any agreements that require him to halt the killing of the unarmed civilian opposition, or to comply with the laws of war in fighting armed insurgents.

The alternatives have been cogently presented by Senator John McCain in his speech on the Senate floor on March 5. His analysis is relevant not only to American decision makers and politicians, but also to all governments which want to bring the killing in Syria to a prompt halt.

See The Trenchant Observer, “Republican Senator John McCain Urges U.S. Military Attacks to Halt Atrocities in Syria—Obama’s Debacle in Syria — Update #3 (March 5),”
March 5, 2012

The time has come for humanitarian military action to halt the killing.

The Supply of Weapons

The supply of weapons to the opposition can arguably be justified under international law as a measure undertaken to to provide target populations the means to defend themselves when the government in power not only fails to comply with its obligations under “the responsibility to protect” resolution of the Security Council (Resolution 1674), but is itself actively engaged in the commission of the very war crimes and crimes against humanity that “the responsibility to protect” is is established to guard against.

The furnishing of arms to such populations should be conditional, a provisional measure to protect the civilian populations against crimes against humanity and the armed opposition against war crimes, until such time as the U.N. Security Council can act effectively to safeguard these populations.

Military Action by a State or Group of States to Halt the Commission of War Crimes and Crimes Against Humanity

Direct humanitarian intervention by a state or group of states may also be required. Such action against al-Assad’s military, after all other recourses have failed, should be undertaken as a provisional measure to ensure that “the responsibility to protect” is implemented within a state engaged in the wanton commission of war crimes and crimes against humanity–in direct contravention of its responsiblities under international law.

On the possible legal justifications for such actions, see the following articles and the sources named in them:

The Trenchant Observer, “Limited military action to halt crimes against humanity: A new template to halt terror in Syria, and elsewhere—Obama’s Debacle in Syria — Update #18 (March 28),” March 28, 2012.

The Trenchant Observer, “U.N. Commission Report on Crimes Against Humanity in Syria; Military Action; Unilateral Humanitarian Intervention in Syria and International Law
Friday,” February 24, 2012.

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.

The Trenchant Observer, “Military Intervention to establish “no-kill zones” and humanitarian corridors—Syria Update #9,” February 24, 2012.

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