New strategy and accompanying military action needed in Syria; Justification under International Law

President Barack Obama’s strategy for dealing with Syria has demonstrably failed.

That strategy consisted mainly in looking the other way, providing fitful and ineffectual covert support, and actively blocking the efforts of others to mount some form of military action that might have brought the widespread commission by the al-Assad regime of war crimes and crimes against humanity to a halt. These have now culminated in the use of chemical weapons by al-Assad on a large scale against his own people.

The covert action has had minimal results, involving coordination of the supply of arms by Qatar and Saudi Arabia to the insurgents, apparently with the assistance of the Muslim Brotherhood.

The results of this policy, as long predicted here and by knowledgeable experts, has been a brutal civil war in Syria whose death toll now exceeds 100,000, according to the latest U.N. update.  However, the number is  growing by hundreds if not thousands every week, and likely to be much higher than even this appalling number.

Military action to stop the commission of war crimes and crimes against humanity by the al-Assad regime in Syria has been needed for a long time, but now must be undertaken by the West and allied Arab countries in order to avoid an exploding regional conflict between Shi’a and Sunni militias and regimes, on the one hand, and to prevent Syria from becoming the first chemical weapons battleground since the Iran-Iraq war (1980-1988), if not since World War I, with the concomitant acquisition of chemical WMD by al-Qaeda affiliated and other terrorists groups, on the other.

The options available to the West and the Arab states, following two and a half years of dithering and blocking actions by the Obama administration, are not enviable.

Nonetheless, what is needed is a military and diplomatic strategy that will produce results and outcomes that safeguard the vital interests of the West, the Arab countries, and other civilized nations in the world.

Before considering that strategy, it will be useful to highlight mistakes that have been made and which must not be repeated.

First, the illusion of a negotiated agreement with Bashar al-Assad should be discarded at the outset. Al-Assad has not kept a single agreement with the international community, from the Arab League peace plan of November 2, 2011, to the agreements reached with Kofi Annan regarding the cessation of hostilities in the first half of 2012. Moreover, al-Assad has proven, time and time again, that he is a master of playing off different countries one against the other, with promises of this or that, or negotiations on this or that to get his approval, all coming to naught.

The lesson is clear: The new strategy should not seek al-Assad’s agreement to any kind of peace agreement short of an agreement to hand administration of the country over to a NATO or United Nations Authority under the protection of a NATO-led or United Nations Peacekeeping Force, in a manner similar to the establishment of IFOR under the agreements reached with Slobodan Milosovich of Serbia and the leaders of Bosnia and Croatia by Richard Holbrooke and the United States in Dayton, Ohio on November 21, 1995.

Second, with over a year and a half of experience with the Russians following their and the Chinese veto of a mild U.N. Resolution on February 4, 2012, the West and the Arab states should not waste their efforts on negotiating anything with the Russians in the Security Council which does not include:

1) the immediate authorization of the International Criminal Court to investigate and prosecute the commission of war crimes and crimes against humanity in Syria; and

2) immediate steps for the implementation of a binding cease-fire in Syria,  which is obligatory on Syria with or without its consent under the terms of Chapter VII of the United Nations Charter.

The use of military force should be aimed at securing these objectives, not the agreement of al-Assad to this or that proposal. Above all, no negotiation of the final political and military arrangements should be undertaken before a cease-fire takes effect. The disastrous precedent of Kofi Annan and the U.N. seeking to negotiate elements of the outcome with al-Assad in exchange for his cessation of the commission of war crimes and crimes against humanity should not be repeated. Ever.

The military campaign against al-Assad’s government and its ongoing atrocities should be pressed until the commission of these crimes ceases, and a NATO-led or U.N. force and accompanying International Authority for Syria are established and put in place.

The military actions required to achieve the above strategic objectives should be publicly justified under international law, along the lines suggested here in earlier articles, as temporary measures of protection undertaken to protect the population of Syria against the commission of war crimes and crimes against humanity and their effects. The justification should be very narrowly tailored to the facts of the Syrian case, as suggested previously here.

On justifications under international law for military intervention in Syria, see the following articles by The Trenchant Observer:

Syrian Options: The White House’s sophomoric understanding of International Law, June 14, 2013.

The U.N. Charter, International Law, and Legal Justifications for Military Intervention in Syria—Obama’s Debacle in Syria — Update #83 (September 1), September 1, 2012.

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

Military action without clear strategic objectives will not be effective. The sooner the West comes to grip with these harsh realities, the better the outcome will be.

When a strategy has failed, spectacularly, the most important thing is that it not be pursued further, and that it be abandoned as an approach to the solution of the conflict.

Military action is now urgently required. But it should be undertaken as a means for securing the goals of an effective strategy, not just to satisfy the demands of the press or other countries to take some action in response to the massacre of Syrian citizens by the use of chemical weapons on a large scale.

The Trenchant Observer

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

About the Author

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