ASIL Live-Blogging, “Late Breaking Panel: The United Nations and Syria: Changing Dynamics – New Complexities”

Moderator: Nicholas Rostow, National Defense University

Speakers: Mahnoush H. Arsanjani, International Law Associates; Harold H. Koh, Office of the Legal Advisor, US Department of State; D. Stephen Mathias, Office of the Under Secretary for Legal Affairs, United Nations; Sair Mohamed, University of California, Berkeley School of Law; Timur Soylemez, Embassy of the Republic of Turkey to the US

Remarks by Harold Koh

Three comments: first, what precisely is happening in Syria? Second, what are the US and international community doing to address the crisis?  Third, what is the legal framework for addressing this problem?

First, the conditions on the ground are atrocious.  Tanks and artillery continue to target the civilian population, including women and children.  Power has been cut off throughout the country.  Crimes against humanity are rampant, the worst example of which is the situation in Homs, Syria.  At least 9,000 civilians have been killed thus far.

Second, what should the US and international community do about this?  There are no easy answers.  Externally, Syria lives in a geopolitically difficult neighborhood, surrounded by Iran, Lebanon, Iraq and Turkey.  Internally, Syria is divided among sectarian lines.  While UN action was set-back by the recent vetoes in the Security Council, the US and the international community are still striving for an end to the human rights abuses in the country.  The US government has ensured that Syrian nationals physically present in the US will not have to return to their violence-ridden homeland.  The US is working with the international community at large and the Arab League in particular to work towards delivering humanitarian aid to the victims in the short term, and to stopping the violence in the long term.

Third, what international principles should govern our actions?  There are three guiding principles.  First, the primary responsibility for stopping the violence lays with the SC.  And while the aforementioned vetoes were a setback, the US and the international community have not given up on the SC process.  Second, we should avoid the trap of seeing this dynamic and multifaceted crisis from a narrow perspective; meaning, we should not view the situation solely from a military intervention standpoint.  While there are some similarities between Libya and Syria, there are stark differences.  While military intervention was appropriate in Libya, it is not (yet) appropriate in Syria; there are a number of “softer” measures that can be used in Syria.  In fact, R2P recognizes that these “softer” measures must be used first before military action can be taken.  Third, the international community has committed itself to pressing for the Assad regime to step down and to hold the members thereof accountable (i.e. individually criminally liable) for the massive human rights atrocities that have occurred.  The international community must continue to tell the truth about what the Assad regime is doing in-country, and to insist that the leaders in the Assad regime face justice.

“In sum, in Syria, like elsewhere in the Middle East, we do not have the luxury of facing a simple situation.”  Modern international lawyers must avoid simplistic analogies and seek more nuanced approaches to the resolving the crisis.

Remarks by Timur Soylemez

Turkey has a long and troubled history with the UN, due to our diverging views on certain issues.  However, over the past 10 years, Turkey and the UN have grown closer, due to our converging views on the role of the SC in enforcing international peace and security.  Turkey has had a complicated history with Syria, as well.  Until the late 1990s, Syria was harboring the PKK; however, since then, Turkey has normalized its relations with Syria.  Obviously, the events over the past year in Syria have put a great amount of strain on that relationship.

Turkey’s position: we explained to Bashar Al-Assad that he can reform, he can change, and he can transition into a democratic government, which respects human rights.  However, immediately after they reached an agreement on these matters, Assad began bombing his own people.  When that happened, the Syrian government lost all credibility with the Turkish government.  Turkey has been frustrated by the inaction by the SC on this issue.  In particular, the texts of the resolutions that Russia and China vetoed were actually quite soft; they did not authorize military action under Article 42.  Nevertheless, Turkey was heartened to see the General Assembly’s condemnation of the Assad government; however, the UN system works best when the brain (SC) and the heart (GA) work together.

Turkey is trying to work with all its partners to strengthen the international community’s resolve to pressure the Assad government to see “the writing on the wall.”  In Tunisia, representatives from the Turkish government met with the “Friends of the Syrian People,” to start moving in the right direction.  What are Turkey’s responses?  Numbers – the more countries involved, the better.  Humanitarian aid – the more countries assisting, the more effective in both protecting the people and pressuring the government.  Empowering the opposition – Turkey is working daily to strengthen the Syrian opposition.  Sanctions – strengthen in scope and intensity.  Diplomacy – closing the Turkish embassy in Damascus.

In closing, our resolve must be very strong.  However, we must not break down the institutions as we did in Iraq.

Remarks by Stephen Mathias

While the previously mentioned veto has been problematic, the present UN Secretary-Gernal Ban Ki Moon has done much to increase pressure on the Assad regime to end the violence, while former UNSG Kofi Annan is currently spearheading the Special Envoy to Syria.  In addition, the Human Rights Council has been quite active in monitoring the situation.

It is important to note that the General Assembly Resolution which condemned the Assad regime was not adopted pursuant to the “Uniting for Peace Resolution,” which sets forth the basis by which the GA may act if the SC fails to do so as a result of a veto.  Instead, the GA acted under a normal session of that body.  In addition, international lawyers must be mindful of the limitations contained within Article 12 of the UN Charter, which ensures that the SC and GA do not adopt countervailing resolutions on the same subject matter.  In this context, Article 12 was not raised vis-a-vis the GA Resolution condemning Bashar Al-Assad.

While the SC has the primary role in maintaining international peace and security, the GA has an important role as well.  For example, in the case of Cote d’Ivoire, the GA recognized the credentials of the current President in 2010, despite the fact that the previous President was still exercising power in-country.  By doing so, the GA’s recognition of the new President gave him legitimacy and paved the way for the international community to act.  With respect to Libya, the SC was quite effective, as has been previously noted; however, the GA also suspended Libya’s membership on the HRC during the same time period.

Now, with respect to Syria, we have a GA resolution condemning the violence.  The Secretary-General has condemned the violence, calling for the adoption of the 6-point plan proposed by Kofi Annan.  Actions may be taken trough bilateral or regional associations, such as sanctions.  However, unilateral action would greatly undermine the UN’s efforts and progress to bringing an end to the violence in Syria.

Remarks by Sair Mohamed

Focus of remarks: R2P.  R2P was developed by ICISS and was created as a result of the massive human rights violations that occurred in Bosnia-Herzegovina and Rwanda in the 1990s.  It was also developed as a result of the paralyzing effects that a SC veto may have on efforts to bring mass atrocities to an end.  While the invocation of action pursuant to R2P was initially designed to be dependent upon SC authorization, R2P also provides that other States may act independently of SC authorization.  However, in the 2005 World Summit, the initial vision for R2P was watered down to reflect the existing status quo under the UN system.  As such, R2P is not law yet; it is a concept that is still developing.

So where is R2P as a result of the Syrian conflict?  First, R2P is not limited to military action; it also includes “soft” measures, as described above.  Second, R2P is not dead by any means.

Reconciling Libya and Syria?  R2P was expressly invoked in the former; it has not been mentioned with respect to the latter.  These different reactions are not necessarily determinative of the “triggers” of R2P, as politics had more to do with the different reactions in Libya and Syria than law.

Nevertheless, “R2P is not there yet.”  Right now, R2P’s biggest role is in “shaming” States into action, i.e. in stopping violence against their own civilian populations.  As long as we realize that R2P is not yet law, is not yet legally binding on the States, R2P will have the room to continue to develop, so that one day R2P may become law.

Remarks by Mahnoush Arsanjani

The Syrian problem is only the latest example in the last two decades vis-a-vis SC action under Chapter VII of the Charter.

There are five dynamics: First, regional organizations.  Second, increased military firepower necessary to stop violations.  Third, coordinated action under UN command and control.  Fourth, the lack of availability of military forces to the SC for Chapter VII actions as a result of shrinking military budgets in the Member States.  Fifth, the US’s role in enforcement action.

Major enforcement operations will require, as in the First Gulf War, Kosovo, and Libya, large military forces, which should operate under UN command and control.  Since the First Gulf War, international military action has been carried out primarily by the US.  If this trend continues – i.e. where fewer States are actively participating in SC authorized military operations – the UN system and R2P will be undermined.  Fewer States have been involved in such actions because States, other than the US and China, have continued to cut their military budgets.  This must change if the UN system of enforcement and R2P are to retain their respective legitimacies.

It is simply untenable to rely on one State – the US – to enforce SC resolutions authorizing the use of military force.  Domestically speaking, the US cannot be called upon to enforce SC resolutions globally when it has no interests in such areas.  Internationally speaking, responses by the international community must constitute just that – responses by the international community, not just the US at the behest of the international community.

Final remarks by Nicholas Rostow

The Syrian regime has violated the most fundamental norm under international law: the prohibition on the use of force under Article 2(4).  Because of the spill-over effects of the Syrian conflict, several countries have the right to self-defense under Article 51, such as Israel, Turkey, and Iraq.

The lessons of Libya have demonstrated that States must do more to participate in military action pursuant to SC resolutions.  While the US “led from behind” in Libya, the operations could not have taken place without military action and support.

Lastly, right now the Assad regime is weak.  As such, action should be taken to remove him from power.  Nothing short of the legitimacy of the entire UN system of maintaining international peace and security is at stake.  Moreover, if human rights are to stand for anything, and if R2P is to remain a viable doctrine, the international community must act to stop the mass atrocities.

Q&A

Question: What about setting up humanitarian corridors?

Answer by Timur Soylemez: Turkey is not prepared to use hard measures against Syria.  Approximately 25,000 refugees have spilled over into Turkey, and we are taking care of them, and will do so as long as necessary.  As such, Turkey is not prepared to set up a humanitarian corridor through force in Syria at this time.

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