Remarks on the Legality of Potential Strikes on Syria

un-flag-square With the procrastination of military action and national parliaments’ growing involvement, debates over the legality, legitimacy and efficiency of potential strikes against the Syrian regime are getting increasingly polarized.

In that context, we would like to share a set of arguments regarding the issue of the legality of  an intervention in the face of UN Security Council’s paralysis.

1.       The Unite Nation Security Council’s very raison d’etre is to maintain international peace and security.

2.       The Syrian crisis represents an objective threat to international peace and security in many clearly identified ways that should have been legal triggers for UNSC (UNSC) action many months ago:

a)      Threat to peace:  the growing number of refugees is destabilizing the whole region, including fragile neighbors such as Iraq, Jordan and Lebanon.[1]

b)      Threat to peace and breach of international law: the use of chemical weapons represents a major breach of international legality and amounts to a crime against Humanity according to UN Secretary General Ban Ki Moon[2].

c)       Threat to /breach of peace. The regime is directly threatening other nations:

  • In words: Syria threatened France (recent interview of Assad in Le Figaro), warned Europe of terrorist attacks[3], repeatedly threatened Israel, Jordan, Turkey, the US…. and the whole region.
  • In action:

–          Syria mortar attack on Turkish border town[4]

–          Syrian rockets on Lebanese territory

–          kidnappings on Lebanese territory[5]

–          Syrian soldiers opening fire at Syrian refugees crossing into Lebanon[6],

–          Plotting bomb attacks[7] against Lebanese figures in North Lebanon. Most of these actions actually represent violations of UNSC resolution 1701[8].

3.       Yet the UNSC did not take any meaningful action over the past two years and a half due to Russian and Chinese vetoes.

  • Most resolutions condemning massive HR violations were blocked. The last resolution goes back to the Houla massacre in may 2012[9]
  • Chapter 7 of the UN Charter:  All attempts at merely threatening to resort to non-military sanctions have been vetoed. By abusing their veto power, China and Russia have seriously weakened the UNSC’s credibility.
  • The paralysis of the UNSC contrasts with the UN General Assembly clear position. A year ago, it overwhelmingly adopted a resolution with 133 votes in favor[10] demanding that President Assad resigns and deploring “the Security Council failure to agree on measures”. It is worth noting that the paralysis of the UNSC during the Cold War led the UNGA to take legal action[11]. A greater engagement of the UNGA on the Syria crisis should have been explored at an earlier stage as a second best option in the face of the UNSC paralysis.

4.      The UNSC has thus repeatedly failed to exercise its ‘primary responsibility’ to maintain international peace and security. The highest UN institution has relinquished its own mission, failed the international community and betrayed the principles it is based on.

5.      Demanding a previous UNSC authorization under the pretense of respecting international law is thus, at best, a fallacious argument. There are valid arguments against an international intervention in Syria, but this is not one of them. Certainly, an UNSC authorization would be, by far, preferable, but in the end, its absence should not justify inaction.

[1] In 1991, the UNSC stated that Iraqi actions causing refugee  flows ” threaten international peace and security in the region “.

[2] See UNSG official declaration on August 23, 2013.

[3] In June 2013, Assad told the Frankfurter Allgemeine Zeitung that if the Europeans were to arm the Syrian rebels, “then Europe’s backyard will become terrorist, and Europe will pay the price for it.”

[4] In October 2012, a Syrian mortar attack on Turkish border town of Akcakale killed 5 and injured 10 civilians.

[5] Repeated kidnappings of Lebanese fishermen in 2012 and a few days ago.

[6][6] As early as July 2011, Syrian refugees in Lebanon became a target.

[7] Cf the indictment of former Lebanese information Minister, Michel Samaha for transporting explosives from Syria to Lebanon in an attempt to assassinate Lebanese political and religious leaders.

[8] The resolution reiterates the UNSC strong support for “the territorial integrity, sovereignty and political independence of Lebanon within its internationally recognized borders”.

[9] The regime used heavy artillery against the village of Houla, killing an estimated 100 civilians.

[10] The text of the resolution is available here.

[11] Cf resolution 377 “Uniting for Peace” in 1950 during the Korean War that states that :” If the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations”.

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