Posts Tagged ‘United States’
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
Tags: Article 2, Article 2(4), Artículo 2 párrafo 4, Assad, bachar al-assad, Bashar al-Assad, Carta das Nacões Unidas, Carta de las Naciones Unidas, Charte des Nations Unies, China, derecho internacional, direito internacional, droit international, e-International Relations, Flavio Paioletti, humanitarian intervention, il uman il-mutahida, International Law, intervenção militar, Intervention militaire, interventionsverbot, justificação jurídica, justificación jurídica, justificacion juridique, Legal Justications for military intervention in Syria, Legal Justififcation, Militarintervention, military intervention, paragraphe 4, progibición, prohibicão, prohibition of the use of force, Russia, Siria, surria, Syien, syria, Syrie, U.N. Charter, United States, uso de forza, uso de fuerza, Völkerrecht
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Thursday, December 6th, 2012
Egyptian president Mohamed Morsi, a cunning tactician in an unflenching quest to establish a Muslim Brotherhood and Salafist dictatorship in Egypt, must have grasped the essential softness of American policy in the Middle East during his talks with Israel and the U.S. to reach a cease-fire agreement in Gaza. Immediately after the success of the cease-fire talks, for which he received great praise from the Hillary Clinton and the U.S. for the role he played, he seized the moment by launching his and the Muslim Brotherhood’s coup d’etat, issuing his infamous “constitutional decree” on November 22.
Washington needed Morsi to conclude the truce between Hamas and Israel when an invasion of Gaza by Israeli forces seemed imminent.
The U.S. needed and needs Egypt’s support to keep the entire 1979 Camp David peace treaty from coming unraveled. This gives Morsi great leverage.
And, judging from Obama’s silence and the anodyne statements issuing from Washington, America is willing to look the other way as Morsi executes a coup d’etat on behalf of the Muslim Brotherhood in Egypt.
To be sure, it will take Morsi and the Brotherhood a little time to fully and formally consolidate their power and control over all the institutions of the Egyptian state. But the draft constitution when approved will give them the constitutional architecture necessary to achieve their goals.
In all of this, the President of the United States has been been quiet, maintaining a deafening silence in the face of Morsi’s coup d’etat.
The situation calls out for him to make a clear and outspoken demand for Morsi to restore the rule of law, or risk losing $1.5 billion per year in military assistance, and another $4.8 billion IMF standby loan agreement–not yet formally approved. Neither should be extended to a new Egyptian dictator, ruling under an authoritarian constitution instead of a modern constitution–based on the separation of powers and the rule of law–to chart the course of a new democracy in Egypt.
Barack Obama is losing Egypt.
It is the character of the Egyptian state, and whether it is governed by the rule of law, that will ultimately provide Israel with the best guarantee that Egypt will be a trustworthy parrner for peace in the coming years and decades.
Moreover, Congress will not continue to fund at $1.5 billion per year the military of an Islamic dictatorship in Egypt.
By not speaking out now for the rule of law in Egypt, Obama is betting that “making nice” with Morsi and the Muslim Brotherhood will best secure U.S. national interests.
He is likely to be sorely disappointed. In four years, the Democrats could well be vulnerable to the charge that Obama “lost” Egypt to an authoritarian and potentially totalitarian Islamic dictatorship, like that in Iran.
But this is merely from the electoral point of view. What is actually at stake is of much greater significance to the national interests of the United States and the West, and other countries in the region.
Is Obama losing Egypt?
What is Obama doing to prevent Egypt from becoming an Islamic dictatorship, like Iran? That is the question of the hour.
The Trenchant Observer
Tags: 1979 Camp David Accords, Agypten, authoritarian, coup d'etat, Dictatorship, Did Obama lose Egypt?, draft constitution, Egipto, Egito, Egypt, Egypte, Iran, Is Obama losing Egypt?, Islamic dictatorship, Israel, misr, Mohamed Morsi, morsi, Morsi's Putsch, morsy, Muslim Brotherhood, Musr, Obama, putsch, shari'a, totalitarian, United States, Who lost egypt?
Posted in Africa, Barack Obama, Dictatorship, Egypt, freedom of speech, Germany, human rights, State Department, U.S. Congress, United States | No Comments »
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.
**************************************************
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
Tags: 1936-1939, 2012, a troubled mind, al-Assad, al-assad accomplices, anti-aircraft, apartment blocks, Arab League, Arab League monitors, artillery, Assad, battle of corregidor, bbc, bombing of serbia, boy in syria, China, Christianity, comen and children indiscriminate shelling, courage, Crimes Against Humanity, death toll, degrading the taliban, democracy and the rule of law, dutch out fron, enough, ethnic cleasing, Europe, February 22, Francisco Franco, fundamental human rights, going back four thousand years, hell has come to syria, HItler, Holland, homes, I now seek sleep, in the wrong place at the wrong time, Islam, jerusalem, John McCain speech, Judaism, kofi annan, kosovo, lands and civilizations, leaders too feckless to act, Libye, mandatory reading, mass amnesia, mediation, men and boy, merciless slaughter, military force to stop the killing, military intervention, military intervention in Syria, misbegotten on principle, monitors, Nazi war criminals, no principles left, normandy invasion, November peace plan, Obama, obama doesn't care, obamacare, opponents of al-assad, opponents of assad, press coverage, Ratko Mladic, real-time intelligence, Roman Empire, round-ups, roundups, Russia, Rwanda and Darfur, serbs, Siria, sirie, slobodan milosovic, Spanish Civil War, Srebrenice, struggle for democracy, struggle for democracy in syria, sunni instead of alawite, syria, syrian air defenses, Syrien, tanks, the civilized worldç dutch, the courage and the will, the individual human beings who are being slaughtered, the Netherlands, the three religions of the book, the world is adrift, u.n. mediation effort, U.N. Secretary General Ban Ki-Moon, u.n. Special commission report on syria, United States, unwilling to lift a finger, victory is not the goal, war crimes, we have no leaders, whether we care, widespread grave violations, will, World War II
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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
Tags: Article 2, Artículo 2 párrafo 4, Assad, bachar al-assad, Bashar al-Assad, Carta das Nacões Unidas, Carta de las Naciones Unidas, Charte des Nations Unies, China, derecho internacional, direito internacional, droit international, e-International Relations, Flavio Paioletti, humanitarian intervention, il uman il-mutahida, International Law, intervenção militar, Intervention militaire, interventionsverbot, justificação jurídica, justificación jurídica, justificacion juridique, Legal Justications for military intervention in Syria, Legal Justififcation, Militarintervention, military intervention, paragraphe 4, progibición, prohibicão, prohibition of the use of force, Russia, Siria, surria, Syien, syria, Syrie, U.N. Charter, United States, uso de forza, uso de fuerza, Völkerrecht
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Monday, August 27th, 2012
Latest Press Reports and Commentary
(1) Die Zeit (Berlin) reported on August 27, in an article by Martin Gehlen, that military intervention in Syria is “absolutely essential” (unverzichtbar).
Syria is on the way to Hell. With or without the U.N. Security Council, whether they want to risk it or not: the international community in the foreseeable future will have to intervene.
Gehlen reports that each day more horrible crimes are committed, as the number of refugees exceeds the capacity of neighboring states to absorb them–30,000 crossed the border last week alone. Some two million refugees are fleeing, both inside and outside the country, while hundreds of thousands of families are trapped between the front lines.
But above all, Gehlen asserts, it is the stocks of chemical weapons that will require intervention, if al-Assad uses them in the civil war, or to keep them from falling into the wrong hands. They cannot just be left to themselves.
The international community will also have to provide food and shelter for the refugees, who can’t just go home as their homes have been destroyed, together with their schools and their hospitals.
In the meantime, Gehlen writes, the United States, Turkey and France are preparing, for the first time, to establish limited no-fly zones. The United States is bringing into position special forces for chemical weapons, and planning large-scale distribution of food and medicines. What is clear, he concludes, is that whatever responsibilities for Syria may come to the international community, they will be more comprehensive, last much longer, and be far more costly than the 7,587 NATO air-raids against Libya.
See Martin Gehlen “Militäreinsatz: Ein Eingreifen in Syrien ist unverzichtbar; Die Zahl der Flüchtlinge steigt, Kämpfe eskalieren, Chemiewaffen drohen in falsche Hände zu geraten; Der Westen wird sich einer Intervention in Syrien bald nicht mehr entziehen können, Die Zeit, 27 August 2012.
(2) Meanwhile, French President François Hollande has asserted that the use of chemical weapons by al-Assad would justify a military attack. He also stated that he would recognize an interim government in Syria, once it is formed.
Le Monde et agences, “Pour Hollande, l’emploi d’armes chimiques légitimerait une intervention en Syrie,” Le Monde, 27 août 2012 (mis à jour à 19h18).
Steven Erlanger, “France Urges Syrian Opposition to Form New Government,” Mew York Times, August 27, 2012.
(3) Last week, on August 23, the Pentagon ordered one of its aircraft carriers, the USS Stennis, previously scheduled to be deployed in the Pacific, to return to the Persian Gulf in view of the situation in Iran and also that in Syria. The early deployment cut short short home leaves.
Panetta cited Iran’s nuclear program and its threats to oil tankers in the Strait of Hormuz as two concerns the Stennis strike group could counter in the U.S. Central Command’s area of responsibility, which also includes Syria and Afghanistan.
U.S. attention on Syria is focused on providing humanitarian aid, monitoring chemical and biological weapon stockpiles, and offering non-lethal assistance to forces opposing President Bashar al-Assad, he said.
–Daniel Fineren(Dubai/Reuters), “U.S. sends aircraft carrier back to Gulf to face Iran, Syria; The U.S. Navy is cutting short home leave for the crew of one of its aircraft carriers and sending them back to the Middle East next week to counter any threat from Iran, according to the official Navy News Service,” Reuters, August 23, 2012.
(4) For insight into the thinking of Obama administration officials, see
Steven Lee Meyers and Scott Shane, “Risks of Syrian Intervention Limit Options for U.S., New York Times, August 21. 2012.
Meyers and Erlanger report,
The administration’s current policy involves intensifying diplomatic and economic pressure on Mr. Assad’s government through sanctions, offering humanitarian assistance to Syrians inside and outside the country, and providing $25 million in “nonlethal” help to Mr. Assad’s opponents, including more recently to members of the Free Syrian Army. That aid has paid for communication equipment to enable the armed and unarmed opposition to better coordinate their attacks and plans for taking power.
The administration has also ruled out providing arms to the rebels for broadly the same reason: more weapons, the officials say, would probably make the war only worse.
The idea that supplying more weapons for the rebels would make the war only worse, when they are being slaughtered by the instruments of war of a modern state including attack helicopters, jet fighters, artillery and tanks, while they themselves are running out of ammunition (as reported recently in Aleppo), is nothing short of obscene, revealing a callousness that is almost beyond belief.
That, however, is the policy of the American president, Barack Obama, and his foreign policy juggernaut, “the gang who couldn’t shoot straight.”
The Trenchant Observer
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Tags: 000, 000 syrian refugees, 2, Bashar al-Assad, callousness, callousness that is almost beyond belief, chemical weapons, Chemiewaffen, Daniel Fineren, die Zeit, Eingreifen in syrien, foreign policy juggernaut, France, françois hollande, Free Syrian army, Hwaida Saad, Iran, Kareem Fahim, limited no-fly zones, Martin Gehlen, Militäreinsatz, NATO air-raids against Libya, New York Times, obscene, Reuters, Rick Gladstone, Scott Shane, Sebnem Arsu, Siria, Steven Erlanger, Steven Lee Meyers, struggle for democracy in syria, syria, Syrie, Syrien, the gang who couldn't shoot straight, thinking of Obama administration officials, Turkey, United States, unverzichtbar, USS Stennis, Zahl der Fluctlinge
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Sunday, August 26th, 2012
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
Tags: 370 killed, 400 killed, air exclusion zone, attack on iran, chemical weapons in syria, China, daraya, drone attacks, France, françois hollande, Hillary Clinton, International Law, intervention militaire en Syrie, invasion of iraq, Iran, Israel, legal justification, Leon Panetta, massacres, Militärintervention in Syrien, military intervention in Syria, Nicholas Sarkozy, no-fly zone, Obama, Qatar, red lines, Russia, saturday, Saudi Arabia, security council, Siria, Somalia, syria, Syrien, Turkey, Turkish officials, U.N., un, United States, Yemen, zona d'exclusão aérea, Zona de exclusion aerea, zone d'exclusion aérienne
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Thursday, August 16th, 2012
Updated August 16 at 20:00 GMT
Latest Developments:
- U.N. Security Council allows UNSMIS mission to end on August 19
- Russia pushes hard to continue mission of Joint Special Envoy, convoking meeting on August 17 of Syria Action Group (from Geneva conference convoked by Kofi Annan and held on June 30).
- Statements by Security Council President Gérard Araud (France) and Vitaly I. Churkin (Russian Federation) at Media Stakeout following August 16 Security Council meeting (video)
- Daily Star editorial on distraction of naming successor to Kofi Annan
- Sources report Brahimi has accepted appointment as Joint Special Envoy
See
Editorial, “Poor substitute,” The Daily Star, August 11, 2012.
“Algeria’s Brahimi agrees to be new Syria mediator-sources,” The Daily Star, August 16, 2012 (09:59 PM).
SC President, Gérard Araud (France) on Syria – Security Council Media Stakeout (16 August 2012)16 Aug 2012 – Press Statement and informal comments to the media by H. E. Mr. Gérard Araud, Permanent Representative of France to the United Nations and President of the Security Council for the month of August 2012 on the situation in Syria.
Vitaly I. Churkin (Russian Federation) on Syria – Security Council media Stakeout (16 August 2012)
16 Aug 2012 – Informal comments to the media by H.E. Mr. Vitaly I. Churkin, Permanent Representative of the Russian Federation on the situation in Syria.
Edmund Mullet on Syria – Security Council Media Stakeout (16 August 2012)
16 Aug 2012 – Informal comments to the media by the UN Assistant Secretary-General for Peacekeeping Operations, Edmund Mullet on the situation in Syria.
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The United States, France and Great Britain: Fatuity as Foreign Policy
Syria shows us how the world is adrift.
The leaders of the three Permanent Members of the U.N. Security Council not supporting the Syrian government’s atrocities, the defenders of freedom in the world, as it were, are on vacation or otherwise out to lunch. Some, such as Obama, checked out a long time ago.
No one in the foreign offices of these three countries with the power of decision could have paid close attention to the events that have occurred in Syria and in the capitals of the five permanent members of the Council, and logically and in good faith support a new mission by a new special envoy to mediate or negotiate (or ingratiate himself toward) a solution to the Syrian crisis.
All of the diplomatic camouflage deployed by Russia and China has now been stripped away. The reasons they adduce for their actions are specious, dishonest arguments demonstrably lacking in candor and persuasive force.
What Russia and China stand for is the right of any government to wipe out its opposition, as Vladimir Putin did in Chechnya, and as China stands ready to do in Tibet, or with the Uigurs. They stand for the right of a dictatorship to annihilate its opponents, even when these begin by peaceful means, through the commission of crimes against humanity and war crimes. They stand for the proposition that a dictatorship has the right to bomb hospitals, and to use artillery and other heavy weapons, and even jet fighters to bombard civilian neighborhoods without discrimination between military and civilian targets, or even with the full intention to kill or massacre civilians.
They each stand for the continuing right of any (friendly) dictatorship to undertake the brutal crimes against humanity and war crimes which each in its own history has itself committed in the past.
Here is the critical point: Both Russia and China argue not only that they had the right to commit these crimes in the past, but that they have a continuing right to repeat such crimes in the future, if necessary, without the international community having any right to intervene–even with economic sanctions–to halt such crimes.
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For other articles on Syria by The Trenchant Observer, see the Articles on Syria page, here.
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But what of the countries whose histories and whose constitutions say they stand for liberty, and which have fought wars in defense of that liberty, including World War II?
Where do they stand?
Well, they don’t stand. They are on vacation. It is not a matter of convincing them by logic that they should intervene to halt al-Assad’s atrocities. It is simply that they don’t care.
They don’t care enough to pay attention.
They weren’t awake when Russian foreign minister Sergei Lavrov showed up with Kofi Annan at the meeting of the Arab League in Cairo on March 10 and somehow secured their acquiescence in a five-point plan which included a ban or foreign military intervention to stop the killing, which then became Kofi Annan’s 6-point plan.
They weren’t awake to observe how Kofi Annan’s mission played into the hands of the Russians and al-Assad’s regime in Damascus, among other reasons because it put all the cards in the hands of the Dictator and his Russian and Chinese backers, and imposed no costs for dithering and interminable delays while he killed thousands of his citizens.
And now, after the total, complete, absolute failure of Kofi Annan’s mission and the 6-point peace plan, they stand poised to “go along” with Ban Ki-Moon’s appointment of a “replacement” for Kofi Annan following his resignation.
They are not paying attention to the fact that the term of Kofi Annan’s mandate ends in August, and that Ban Ki-Moon by pliantly acceding to the pressures from Russia and China to quickly appoint a successor to Annan is by a sleight-of-hand finessing the more fundamental question of whether a new special envoy should be appointed at all.
By this slight-of-hand, Ban Ki-Moon is serving the interests of the Russians and the Chinese, with Kofi Annan in the background orchestrating things, including the selection of his successor as joint special envoy who he himself picked.
Logically, one would examine the record of Kofi Annan and the reasons he failed to end the civil war in Syria. Then one would ask whether the factors which caused him to fail, and indeed which caused his mission to be doomed from inception, still obtain.
Then, and importantly, a Security Council resolution would be adopted setting out the terms of reference for the new special envoy. The idea being tossed around the Security Council that a presidential statement would be sufficient is legally deficient. If a new special envoy is to have a mission that goes to the very heart of the council’s responsibility to maintain international peace and security, it must surely be authorized by a resolution of the Security Council.
The Council cannot delegate its responsibilities by a non-binding “presidential statement”, but rather can do so only by a resolution adopted in accordance with the U.N. Charter.
The issuance of “presidential statements” on Syria by the Security Council during the last year has only served to confuse and misrepresent to the public that something has been done when, legally speaking, no action has been taken. This pattern should not be repeated here.
Only after these steps would the envoy actually be appointed, in the event the process advanced this far.
Are we to believe that Lakhdar Brahimi or whoever may be named as the new special envoy will halt the fighting in Syria, when none of the external factors have changed, e.g., the Russians and the Chinese remain intransigently opposed to any reasonable, effective action by the Security Council such as that proposed in draft security council resolution S/2012/538?
Are we to believe that anything Bashar al-Assad agrees to will have any meaning, any significance whatsoever, in view of his very recent track record?
What, precisely, could we expect any new special envoy to achieve, other than to distract the attention of the world from al-Assad’s ongoing atrocities on the ground, as Kofi Annan did, focusing the media attention of the world on the UN special envoy and whatever proposals he comes up with, and whatever the Russians say they will accept, or won’t accept, or whatever Bashar al-Assad says he will accept, or won’t accept?
Haven’t the leaders of the United States, the United Kingdom and France learned anything from the fiasco of Kofi Annan’s mission, at a cost of over 10,000 Syrian lives?
Is it conscionable, after this abysmal failure, to repeat the same basic mistake again?
The mistake involves negotiating with Bashar al-Assad while he is committing crimes against humanity and war crimes.
The mistake involves negotiating with the Syrian Dictator, when we know beyond any doubt that his agreement to any provision would be utterly worthless.
Further efforts at mediation will cost time, and thousands of more Syrian lives. Do we have the moral right to contribute to the loss of those lives, by throwing a rope to a Dictator whose government may be crumbling, as the former prime minister of Syria, who recently defected, has asserted?
The last 17 months have taken place. The events during this period are now historical facts. Upwards of 20,000 civilians have been killed in Syria, in large part due to the inaction of the United States, France and the United Kingdom, and their allies and friends. These are facts. Those who have died cannot be brought back.
Is it morally defensible, or defensible on the international political plane, to offer as an excuse for going along with Ban Ki-Moon’s appointment of a successor to Kofi Annan–a successor selected and recommended by Kofi Annan himself!–the fact that they are on vacation, or didn’t have time to pay attention?
History will be the judge, and the judgment is likely to be very harsh indeed.
The Trenchant Observer
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For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then use the “Search” Box or consult the information in the bottom right handcorner of the home page. The Articles on Syria page can also be found here. The Articles on Targeted Killings page can also be found here.
Tags: 6-point peace plan, appointment, Arab League, August 16 security council meeting, Ban Ki-Moon, castles in the sky, Chechnya, China, Crimes Against Humanity, crimes contra l'humanité, crimes de guerre, edmund mullet, foreign ministries, France, Gérard Araud, Great Briatain, joint special envoy, kofi annan, March 10, Obama, on vacation, out to lunch, poor substitute, presidential statement, Russia, Russian Federation, S/2012/538, Sergei Lavrov, Siria, stupidity as foreign policy, successor to Kofi Annan, syria, Syrie, Syrien, terms of reference, The Daily Star, the Syrian Dictator, the world is adrift, Tibet, Uigurs, United Kingdom, United States, UNSMIS, Unsmis authorization, Valadimir Putin, Vitaly I. Churkin, war crimes
Posted in Azerbaijan, Barack Obama, Brazil, China, Dictatorship, extrajudicial execution, France, Germany, History, human rights, human rights reports, International Law, Iran, Israel, Lebanon, Libya, Middle East, Portugal, Qatar, Russia, sanctions, South Africa, State Department, State Department Legal Adviser, syria, Togo, Torture, Turkey, U.N. Charter, U.N. Security Council, U.N. Torture Convention, United Kingdom, United States, use of force, war crimes | No Comments »
Thursday, July 19th, 2012
Draft Resolution S/2012/538 on Syria, sponsored by France, Germany, Portugal, the United Kingdom and the United States, was put to a vote this morning in the U.N. Security Council. The text of the draft resolution is found here.
The draft resolution received 11 affirmative votes, two negative votes (Russia and China), and two abstentions (Pakistan and South Africa).
Because of the Russian and Chinese vetos, the resolution was not adopted.
Those voting in favor of the resolution included the following countries:
Azerbaijan
Colombia
France*
Germany
Guatemala
India
Morocco
Portugal
Togo
United Kingdom*
United States*
*Permanent Member
See the press release on the meeting and vote, and the video of the 6810th meeting of the Security Council, including the vote on the draft resolution and statements by Security Council members explaining their votes, at the links below:
“Security Council Fails to Adopt Draft Resolution on Syria That Would Have Threatened Sanctions, Due to Negative Votes of China, Russian Federation,” U.N. Press Release (Doc. SC/10714), July 19, 2012.
“The situation in the Middle East (Syria) – Security Council, 6810th meeting,” UN Webcast, July 19, 2012 (video of meeting).
Signficantly, Pakistan and South Africa abstained in the vote. Pakistan fatuously justified its abstention saying it would not support the resolution because the other members had been unable to reach a consensus. Pakistan previously voted in favor of the February 4, 2012 draft resolution on Syria which was vetoed by Russia and China.
South Africa’s abstention, coming one day after the national celebration of Nelson Mandela’s 94th birthday, reflected poorly on Jacob Zuma’s government and Mandela’s legacy in the struggle for freedom around the world. It is surprising, moreover, in view of South Africa’s vote in favor of the draft Security Council resolution vetoed by Russia and China on February 4, and its vote on February 16, 2012 in favor of General Assembly Resolution A/66/L.36 condemning Syria.
Do Pakistan and South Africa have secret thoughts of joining the League of Authoritarian States?
Attention in the Security Council now turns to the question of whether or not to extend UNSMIS for 30 days, without imposing any consequences on al-Assad for continuing his atrocities. The U.S. has stated that it is opposed to an extension.
In a very heartening development, the United States has now shifted its policy away from focusing on the illusory prospect of effective action by the Security Council given Russian and Chinese intransigence.
Regarding the issue of a temporary extension of UNSMIS, there is an argument to be made that, in view of present circumstances in Syria, it may be useful to have the UNSMIS arrangements in place to deal with whatever may happen in the future, particularly if the al-Assad regime starts to collapse.
On the other hand, two counter-arguments are persuasive. First, UNSMIS can perform no useful function in Syria under current conditions, and it is time to get the valiant members of the observation mission out of harm’s way before they are injured or killed in some Götterdämmerung spasm of the al-Assad regime.
The second counter-argument is that the presence of the UNSMIS observers reduces the pressure on Russia and China to adopt measures under Chapter VII of the U.N. Charter, while they form a kind of human shield against military action by outside powers. If and when it becomes possible for the observers to monitor a truce, a new authorization for UNSMIS under Chapter VII and with a much stronger mandate can be made.
The idea that the members of UNSMIS might mediate local ceasefires is fanciful, and appears to be but one more last-ditch effort by Kofi Annan to remain at the center of attention and to keep his mediation mission going. The UNSMIS observers are not trained mediators. Attempting to mediate, moreover, would expose them to even greater danger.
Kofi Annan has failed. His boondoggle of setting up a second Secretary General’s office in Geneva with 17 high-ranking diplomatic and other supporting staff should be ended at the earliest opportunity. He should be sent home, and removed from the center stage of efforts to resolve the Syrian crisis. For four months, he has absorbed the media attention of the world, acted to protect Russia’s interest in delay with no consequences for al-Assad, and constantly manipulatd expectations so as to keep his mediation mission going. He has achieved nothing. Absolutely nothing. Thousands have died as a result of the constant hopes, illusions and delays he has caused. He should now exit the stage.
On balance, the big advance that is possible today, in the light of the Russian and Chinese vetoes, is to shift the world’s attention away from the Security Council and Kofi Annan’s castles in the sky, and to pursue urgently other alternatives in preparation for al-Assad’s departure.
To produce such a shift in attention, Kofi Annan’s mission should be halted, or at least downgraded to something approaching the irrelevance that it has achieved on the ground. Allowing UNSMIS to lapse will help achieve this objective.
The Trenchant Observer
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Tuesday, July 17th, 2012
We are at a potential decision point on Syria. A draft resolution presented by France, the U.K., the United States and Germany, extending the UNSMIS observer mission for 45 days and calling for sanctions under Chapter VII of the U.N. Charter if al-Assad does not withdraw his heavy weapons from towns within ten days, appears headed for an up or down vote.
See Ruth Sherlock (Beirut) and Adrian Blomfield (Middle East Correspondent), “Syrian rebels launch campaign to ‘liberate’ Damascus; Syrian rebel commanders on Tuesday night claimed to have launched a military campaign to “liberate” Damascus as the city echoed to the sound of gunfire for a third day and fighting came close to the country’s parliament building,” The Telegraph, July 17, 2012.
Alex Spillius (Diplomatic Correspondent), “Syria United Nations vote delayed; A crucial vote on Syria at the United Nations has been delayed as Western countries make a last ditch bid to persuade Russia to threaten Bashar al-Assad with tough sanctions,” The Telegraph, July 17, 2012.
Russia has said it will block the resolution.
It may well do so, as President Putin proceeds to ride the Bashar al-Assad regime down to flaming defeat, helping to set a template in the Arab world in which Russians will be viewed as the enemies of the Arab Spring and all it stands for, for generations.
It is absolutely important that the sponsors of the resolution not back down, and not cave in to Russia’s demand for an extension of UNSMIS and Kofi Annan’s mission with no consequences for al-Assad if he displays continued defiance.
Over 10,000 people have been killed since Russia and China vetoed a relatively bland draft resolution on February 4, 2012. Weakening the current draft resolution to get Russia and China on board should not be done if they are only to board a still-sinking ship.
Another toothless resolution will, like the last five months of Security Council paralysis and illusions, serve no purpose other than allowing thousands more to die.
Should the Russians (one almost writes “Soviets”) veto the resolution, what should its proponents and supporters then do?
The Observer offers the following suggestions:
1. Let UNMIS lapse.
It is not capable of providing widespread observation of what is going on in Syria, due to its limited numbers, the government’s ability to control its movements, and its inability to operate to monitor a truce when there is no truce but rather a raging civil war–when it has been targeted and fired upon repeatedly and subjected to the actions of hostile mobs orchestrated by al-Asad.
2. Do not extend or expand Kofi Annan’s mandate as Joint Special Envoy.
The Arab League should speak to the members of the Security Council, the General Assembly, and the civilized nations of the world with its own voice. It should not surrender its role in history, for another day, to Kofi Annan or anyone else. The Arab states need a voice, and have much to bring to the table. They cannot do this with Annan speaking for them.
The sooner Kofi Annan is shown the exit, the better. His mega-personality and vainglorious view of himself sucks up all of the attention of the world’s media, drowning out other potentially constructive voices as well as those of witnesses to the atrocities al-Assad is committing–every day.
If his mission is to continue at all, it should be conditioned on his not speaking to the press or the media.
If it continues, his mission should be a silent one. Let him mediate and report to the Security Council, without manipulating world opinion at every step of the way for the benefit, as it turns out, of the Russians and the Bashar al-Assad regime.
Let his efforts to build another bureaucratic empire in Geneva for himself, as a kind of second Secretary General’s office, lapse when the funding lapses, or sooner if a method can be found to halt this boondoggle.
Send Kofi Annan home. His efforts as a mediator have produced nothing. Absolutely nothing.
3. Let attention turn away from the Security Council, where effective action is blocked by Russia. Develop and pursue alternative strategies outside of the framework of the Security Council.
4. Such alternate strategies should include, as a high priority, the formulation of an economic aid package, including humanitarian assistance, which the civilized countries of the world will provide to the people of Syria, once the leaders currently committing atrocities have been removed from the scene.
These leaders should be brought to justice, whether sooner or later–whether through a referral to the International Criminal Court, prosecution within Syria in the future, or through prosecution in individual countries exercising “universal jurisisdiction” over international crimes, in accordance with their own domestic legislation.
5. A second alternate strategy would be to begin developing a “truth and reconciliation process” which may offer some prospect to soldiers and even officers that, in exchange for full cooperation with a “truth and reconciliation commission” and admission of their wrongful actions, they might be pardoned or receive lighter punishments than would otherwise be possible.
This effort (including both points 4 and 5) could be pursued within and with the support of the United Nations General Assembly. Detailed plans and sequences could be developed, with pledges of financial support from different countries–and other institutions. The idea would be to develop a concrete vision of the reconstruction of Syria, including sources of funding and specific measures to revive the economy. As this vision including the corresponding pledges of financial support takes shape, it is likely to become an attractive alternative to the al-Bashar regime, which promises only destruction and ruin.
It will be useful to shift the world’s attention, and that of those caught up in the struggle in Syria, to the future–to a future which lies on a path leading to atonement and reconciliation.
Somehow, some day, the Syria which Bashar al-Assad has done so much to destroy will have to be put back together, and rebuilt–both in material and in human terms It is not too early to focus on this aspect–the construction of the future.
Thinking about the construction of the future, and taking concrete steps towards its realization, may in fact serve as critically important means of moving forward through and beyond the terrible present.
Of course, miltary action may at some point also be required, e.g. if al-Assad were to start using chemical weapons or other WMD–or to start selling such weapons to terrorist groups such as al-Qaeda and its affiliates. It is also possible that once outside countries focus on the realities of Syria and its risks, instead of the illusions and castles in the sky generated by Kofi Annan, they may decide to use military force to halt the killing and to organize an orderly transition–with or without Security Council authorization.
The Trenchant Observer
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Tags: Adrian Bloomfield, Alex Spillius, Bashar al-Assad, boondogle, China, construction of the future, Crimes Against Humanity, decision point on syria, France, fundamental human rights, Germany, kofi annan, Ruth Sherlock, security council, security council resolution, sergeik lavrov, Siria, struggle for democracy in syria, syria, Syrie, Syrien, the terrible present, United Kingdom, United States, UNSMIS, up or down vote, violations, Vitaly Churkin, vladimir putin, war crimes
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Saturday, July 14th, 2012
While Kofi Annan, the Joint Special Envoy of the United Nations and the Arab League, has been criticized for his repeated failures in mediating the Syrian conflict, little press attention has been devoted to another aspect of the mediation mission.
This other aspect can only be described as “Kofi Annan’s triumph”.
According to a report by Patrick Goodenough (cnsnews.com) on April 30, 2012, Kofi Annan requested $7.5 Million to Cover Expenses for His Syrian Peace Mission during the first 10 months, “according to a document seeking U.N. General Assembly approval for the budget.”
Over the 10-month period ending December 31, Annan and 17 other officials attached to the mission will account for a combined $3,022,300 in “salaries and common staff costs.”
“The effective discharge of the activities of the Joint Special Envoy [Annan] will require international staff to support his office, liaise with all relevant actors and manage the day-to-day activities,” states the budget document, dated April 11. “The staff will have an official base in Geneva and travel regularly to the field to liaise with relevant actors.”
Up to April 30, the costs of Annan’s mission were covered by Ban Ki-Moon’s “unforeseen and extraordinary expenditures mechanism”, but the Secretary General in April was reported to be “asking the General Assembly to approve a 10-month budget of $7,488,000 net ($7,932,200 gross).” This money was to be spent on salaries for Annan and 17 other assistants and supporting staff as follows:
Annan will be paid the going U.N. rate for an “undersecretary-general” (USG). Under him will be two “assistant secretary-generals” (ASGs) and two staffers of top “director” (D2) rank – one serving as chief of office and the other as communications spokesman.
Next will come six staffers – two each in the top three Professional grades (P5, P4 and P3) in the U.N. system. Two will be senior political officers, three will be political officers and one will be information officer.
These 11 “substantive international staff” will be joined by another seven others in the “general service” category – an administrative officer, administrative assistant, personal assistant to Annan, a security officer and three team assistants.
Current gross annual U.N. pay scales for professional ranks are: USG: $189,349; ASG: $172,071; D2: from $141,227–$156,476; P5: from $106,718–$133,575; P4: from $87,933–$115,018; and P3: from $72,267–$96,282.
Goodenough reports that the two Assistant Secretary General-level officials that will assist him, selected by the U.N. and the Arab League, respectively, are Jean-Marie Guehenno, chief of U.N. peacekeeping operations from 2000-2008 and appointed by Annan and Nasser al-Kidwa, the head of the Yassar Arafat foundation and a former high-ranking official of the Palestinian Authority, “and the late Yasser Arafat’s nephew”.
The operating budget of the mission is described as follows:
Apart from staff costs, the Annan mission is seeking an operating budget of an additional $4,465,700, of which $1,6 million will be used for “official travel” alone with a further $750,000 for “air transportation” and $100,200 for “ground transportation.”
The remainder of the operating budget is earmarked for consultants ($165,700), facilities and infrastructure ($578,400); communications ($94,800), information technology ($135,700), and “other supplies, services and equipment” ($1,050,400). These amounts include $30,000 to refurbish office space and $81,800 for “information technology and other equipment.”
Goodenough points out that the United States contributes 22 percent of the U.N. operating budget
Thus, Kofi Annan’s triumph has been to get the United Nations to help him set up what amounts to a second Secretary General’s office in Geneva, from which he and the well-paid U.N. diplomats who assist him can direct and coordinate an expanding range and number of activities under his Syria mediation appointment.
He has shown himself to be a master at operating the levers of power and influence at the U.N., and now has a nice new job at $189,000 per year, plus–according to the Joshuapundit blog in 2006–his previous U.N. pension of $12,000 a month or $144,000 a year, plus a second pension which he reportedly cashed out for $ 1 million when he became Secretary General. These emoluments are reportedly tax-free.
This is all a bit confusing. How much is Kofi Annan receiving from the United Nations, in salaries, pensions and expenses, per year?
Secretary General Ban L-Moon should give a detailed accounting of the total amount of compensation, expenses and other benefits (such as the value of the rent of his residence) being paid to Annan in a public session of the General Assembly, and also of the Security Council, at the earliest opportunity.
Instead of further building out the office of a second Secretary General of the U.N., in Geneva, The Observer would suggest that the most urgent and serious consideration be given to terminating Annan’s mission at the earliest possible moment, both in view of the total failure of the mission to date, and in view of the incredible dimensions and life it has taken on within the U.N. bureaucracy.
Moreover, both Secretary General Ban Ki-moon, and the relevant appropriations committees of the United States Congress, should conduct full investigations into how the Kofi Annan mission came into being, and acquired such bureacratic momentum within the U.N.
Who came up with the idea of a joint Arab League–U.N. Special Envoy, for example? How was this all accomplished before the Security Council formally endorsed the 6-point plan of Kofi Annan on April 14 in Resolution 2042? (The Presidential Statement of March 21 endorsing the plan had no legal force.)
The mission has been a total failure, and what is worse promises to block any effective action on Syria in the future. For that reason alone, it should be terminated.
***
Kofi Annan’s appointment and terms of reference were announced on February 23, 2012.
Kofi Annan Appointed Joint Special Envoy of United Nations, League of Arab States on Syrian Crisis
The following joint statement was issued today by United Nations Secretary-General Ban Ki-moon and Secretary-General of the League of Arab States Nabil Elaraby:
In accordance with the General Assembly resolution A/RES/66/253 of 16 February and following close consultations between Secretary-General Ban Ki-Moon and the Secretary-General of the League of Arab States Nabil Elaraby, the two today announced the appointment of former United Nations Secretary-General Kofi Annan as the Joint Special Envoy of the United Nations and the League of Arab States on the Syrian crisis.
The Secretaries-General are grateful to Mr. Annan for accepting this important mission at a critical time for the people of Syria.
A deputy for the Joint Special Envoy will be chosen from the Arab region.
The Special Envoy will be the high-level representative of the Secretaries-General of the United Nations and the League of Arab States on the Syrian crisis. The Special Envoy will provide good offices aimed at bringing an end to all violence and human rights violations, and promoting a peaceful solution to the Syrian crisis.
The Special Envoy will be guided in this endeavour by the provisions of the General Assembly resolution A/RES/66/253 and the relevant resolutions of the League of Arab States. He will consult broadly and engage with all relevant interlocutors within and outside Syria in order to end the violence and the humanitarian crisis, and facilitate a peaceful Syrian-led and inclusive political solution that meets the democratic aspirations of the Syrian people through a comprehensive political dialogue between the Syrian Government and the whole spectrum of the Syrian opposition.
At that time, it was anticipated that Annan would have a deputy to be appointed from the Arab region.
How this modest beginning, ill-advised as it might have been, morphed into the bureaucratic colossus that it has beome appears to be a classic story of waste and dysfunction at the U.N., bolstered by the personal ambition of Kofi Annan himself.
This may have been Kofi Annan’s triumph, but it should be a matter of chagrin for the Security Council, Secretary General Ban Ki-Moon, and all those who support the United Nations and its mission in the world.
The Trenchant Observer
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