Reply to Comments on Syria Part 2

There have been a few comments on our last post on Syria dealing with the possibility of intervention based on an assertion of self-defense by Turkey. I thought it might be best to address them together in a separate post.

The first issue that came up was the possibility that the international community could intervene if Syria were to be suspended or expelled from the United Nations. The underlying legal assertion being that the prohibition on the use of force contained in the UN Charter is a contractual obligation flowing only between the States party/member of the United Nations. The wording of Article 2(4) of the Charter would seem to indicate otherwise. It reads,

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

Members agree not to use force in their international relations, full stop. It does not provide, as argued, that this prohibition applies against only other members of the UN. In any case, it is now generally recognized that the prohibition on the use of force is a binding norm of customary international law (See, Antonio Cassese, Diritto Internazionale, Bologna 2005). Member or not of the United Nations, Syria benefits from the prohibition on the use of force absent United Nations Security Council authorization.

A second point raised what that the events in Syria amount to genocide and crimes against humanity and therefore the ICC is competent to act. This is undoubtedly true; a UN report has classified the events in Syria in these terms. However, this fact alone does not found jurisdiction for the ICC, which is instead governed by Articles 12 and 13 of the Rome Statute. These articles set out that there is jurisdiction only in cases where the territorial State (where the crimes took place) or the State of which the accused is a national have accepted the competence of the Court or when the United Nations Security Council has referred the given situation to the Court. None of these circumstances exists in the case of the ongoing events in Syria. Ergo, the ICC does not have jurisdiction to act regarding alleged crimes in that country.

The last legal point raised was the alleged consensus of the United Nations Security Council regarding action in Syria. The view noted that neither Russia nor China shared this view and had prevented any formal adoption on intervention. The view appears to be that if the majority of the Security Council is in favor of action then this is tantamount to authorization by the Council. This is however in error. The Security Council cannot act without the affirmative votes or abstention of all five permanent members of the Council, including Russia and China. This is the so-called “veto power”. For better or for worse, all permanent members must agree (or abstain) to avoid deadlock.

Finally, a moral obligation to act in the face of allegations of international crimes was raised. I will abstain from this argument as it is extra-legal and raises many issues (worthy of discussion) that are outside the scope of the original post.

Thank you very much for the comments; they were very thoughtful and insightful.

5 Comments

Filed under International Criminal Law, News and Events, Public International Law

5 responses to “Reply to Comments on Syria Part 2

  1. Anne-Marie Judson

    The ICJ Statute declares (Article 93) that all members of the United Nations are ipso facto parties to the Statute of the ICJ. Article 92 also stipulates that the ICJ shall be the principle judicial organ of the United Nations, indicating that the ICJ has jurisdiction in relation to any contentious issues in international law and the United Nations member states. The ICJ itself has on many occasions reinforced this by reminding parties that the ICJ always has jurisdiction in relation to the United Nations member state violations and breaches of international treaties. In each case that is brought to the court it firstly assesses whether it has jurisdiction in relation to the action at hand.

    The court has only ever once decided that it did not have jurisdiction over matters pertaining to an opinion and it was only turned down because the question did not arise within the scope of the World Health Organization activities. This illustrates that ICJ jurisdiction is wide and encompassing and the rule of international law is grounded strongly in the ICJ Statute and the Charter of the United Nations.
    Each member state is bound to the international legal framework of the ICJ and the Charter.

    The state recognizes these as principal documents that have standing in international law. The state also acknowledges through being a member of the United Nations, that it is no longer the sole judicator of international law. Its sovereignty is subject to conditions, obligations and duties that arise out of the duty to perform.

    The state is only recognized as sovereign through being a member of the United Nations. This means that it cannot stand alone independently or be recognized as sovereign unless the members of the Security Council accept the state as legitimate in international law. The state is therefore not only subject to conditions of the Charter of the United Nations and member state agreements but it is also liable for any breach or violation of international law that is attributable to it by their actions or omissions.

    See ICJ summaries of judgements, advisory opinions and orders of the ICJ, Competance of the General Assembly for the admission of a state to the United Nations, Advisory opinion, 3rd March (1950) as well as, summaries of judgements, Advisory opinions and orders of the ICJ, Conditions of admission of a state to membership in the United Nations (Article 4 of the Charter), advisory opinion, 28th May (1948).

    My point is, if the state was removed from the United Nations and therefore is unrecognized as sovereign (a state) then the rules applied would be different. If a state is not a state how can the rules of Article 2(4) be applicable. It is clear that “All members shall refrain (…) from the threat or use of force against the territorial integrity or political independence of any state “, but what rules apply then if it is not considered a sovereign state?
    Clearly Syria is not refraining from actions that would defeat the object and purpose of the Charter (See VCLT 18 (a)(b) and 19 (c), as agreed and is therefore derogating beyond the duty of care that is expected from a sovereign state.

    Beyond these questions, the question also needs to be raised as to which customary international norms overide other international customary norms. for example you say that it is now generally recognized that the prohibition on the use of force is a binding norm of customary international law, I agree however the ICJ also considers the VCLT customary as well as some principles in the Nuremberg Tribunals and the judgement of the 1950 Tribunal such as; the non-applicability of internal law for defence (Principle 2) the non limitations on Heads of States for committing atrocities Or violations of international law (Principle 3). Crimes against the peace, war crimes including violations of the laws of war as well as crimes against humanity , including murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population or persecutions on political, racial or religious grounds?

    So once again If a state is not performing it’s duties as promised sacta sunt servada in law how can it remain to be seen a sovereign state and continue to be protected by the very laws it is breaking?

    • Anne-Marie Judson

      A well known case of a non sovereign state is Palestine. It cannot bring actions against Israel for crimes committed against it, as it has not been accepted by the United Nations as a full sovereign state. Therefore the customary nature of the prohibition of the use of force against Palestine does not and cannot apply until such a time that the definition of sovereign state accepted by the international community within a legal context can be recognized.
      If the non sovereign state theory is applied to the Syrian context as explained above the same would apply to Syria as it is in Palesrine. Syria could not apply to the international community for remedies or prosecution of other states for failing to fulfill duties, Treatises that in other circumstances would be considered customary in nature.

      Expelling Syria from the United Nations for not fulfilling/performing duties that are customary in nature would increase the likeliness of success for an intervention from other countries that under normal circumstances could not intervene because of common customary international rules.

      So it is a possibility that a non sovereign state could in fact be faced with the use of force against them from a United Nations member state. And furthermore the intervening state could not be prosecuted because neither the ICJ nor the ICC could prosecute under these circumstances?

      Look forward to your reply.

    • Thank you very much for your detailed and well argued response. It is internally consistent (something that cannot be said for many arguments on the subject) and novel. It is also fundamentally flawed and based on an (as yet) incorrect understanding of what it means to be a State and sovereign. The crux of your argument is clearly expressed in two passages of your comment. You say, “The state is only recognized as sovereign through being a member of the United Nations. This means that it cannot stand alone independently or be recognized as sovereign unless the members of the Security Council accept the state as legitimate in international law” and again “My point is, if the state was removed from the United Nations and therefore is unrecognized as sovereign (a state) then the rules applied would be different.”

      Without getting into lots of doctrine and dusty textbook reasoning on the nature of the State and its creation (of which there are many very engaging treatments, James Crawford’s being the most talked about these days), I would like to point out two facts that seem to exclude your reading of admission to the UN as a precondition for sovereignty and requisite for attaining Statehood.

      Chapter II of the UN Charter governs membership in the United Nations. In particular, article 4 governs the admission of new members. It reads in pertinent part:
      “1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.
      2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”
      The text of this article sets out that the entities that are admitted to membership in the organization are already “States” and that their quality as such is not granted by virtue of membership. Correspondingly, it would be incorrect to say that leaving the organization would deprive a State of a quality that it had prior to joining and independently of membership.

      “Statehood” is instead a precondition for membership in the organization and not the result of admission. Only “other peace-loving states” and those “states which, having participated in the United Nations Conference on International Organization at San Francisco” (article 3) can become members. The category is restricted to “States”. One could argue that the definition of what makes a “State” is unclear in international law (something I have discussed on this blog) and membership clears up this ambiguity. However, that would not be the same as saying that membership in the UN is a sine qua non for obtaining sovereign rights. It would only mean that in cases of doubt, recognition is capable of curing certain apparent defects in an entity’s fulfillment of Statehood criteria.

      The second thing I would like to point out is more practical in nature, and merely one example of such a case. Until 2002, Switzerland was not a member of the United Nations. For your argument to be correct, all diplomatic relations with Switzerland and the acceptance of her passports throughout the 20th century would have been a legal nullity. Furthermore, any State would have been allowed to invade her borders and take over the country as the UN Charter and the prohibition on the use of armed force would not have applied. I am curious if you would accept this proposition, and if not, why not.

      The remainder of you argument seems to be a restatement (although in different words) of the justification for the responsibility to protect. Regarding this stream of thought I would refer you to the first blog piece on Syria for why I do not think that reasoning would justify intervention absent UN authorization.

      Thank you again for you well thought out comment argument.

  2. Anne-Marie Judson

    Thank-you Joseph for your comments, argument and reply. I have very much been enjoying this conversation/argument.
    Before I go any further there are a number of issues with the current debates that we are endeavoring to discuss, that need to be addressed; so many in fact I would be here for weeks maybe months arguing specific points to no particular end. However I am willing to continue on the basis that this is a very important subject in law.

    First I would like to revise our positions in accordance with application law and then discuss our arguments further.

    Syria being an independent state sovereignty as well as a member of the United Nations bound by treaties to other states is currently derogating from not only the object and purpose of the United Nations charter but also many other international agreements some of which are customary in nature and also are of jus cogens and or erga omnes standing. With this in mind Syria is in no doubt contravening a number of agreements in international law. The international community as a whole recognizes that a) the prohibition on the use of force is customary in nature and b) that the prohibition of genocide is also customary. Therefore this argument relies on not only one international customary law which is considered jus cogens and or erga omnes but two. Conflicting as this may seem there are rules that can be applied.

    It is also common knowledge that any treaty that conflicts with the Charter of the United Nations, the United Nations Charter will prevail, this is straight forward. (Article 2 (6) of the Charter of the United Nations.) The problem then arises when there are two erga omnes rules which are essentially identical as noms accepted by the international community it leaves the question as to which one of the customary norms over rides the other?
    Which brings us back to application, obligations erga omnes has special standing in international law for example the prohibition on the use of force as does the prohibition of genocide. These erga omnes obligations enjoy a special status owing to the universal scope of their applicability. These obligations (prohibitions) of the state are owed to the international community as a whole. They concern all states and all states have a legal interest in the protection of the rights involved. ( See Bacelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second phase) I.C.J. Reports 1970, p.3 at p.32 para 33) The Instutut de droit international gives an definition as “an obligation under general international law that a state owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all states to take action”. (Institut de droit international, ‘Obligations and Rights erga omnes in International law’, Krakow Session, Annuaire de I Institut de droit international (2005), article 1.) And even further “Every state may invoke the responsibility of the state violating such obligations”. (Official records of the General Assembly, Fifty sixth session, Supplement 10 (A/56/10), articles on Responsibility of states for internationally wrongful acts, article 48 (1) (b).)

    This leaves us with a conflict of laws on the prohibition on the use of force in defense of the international community in regards to genocide. Secondly why a state cannot intervene in Syria when there is an equal argument in force with erga omnes jurisdiction to invoke the responsibility of the state that is violating the prohibition on genocide. Confusing as this may seem it is important to get to the bottom of this extraordinary standoff between two important customary norms in international law.

    Where there is a conflict between jus cogens norms and Charter obligations Article 24 (2) of the Charter states that the Security Council shall act in accordance with the purposes and principles of the United Nations which includes norms that have been subsequently treated as jus cogens. Does that mean that China and Russia are currently in breach of accepted norms by using the veto against an intervention with intentions of averting a genocide? Under Article 103 a rule conflicting with the norm of jus cogens becomes ipso facto void and a rule conflicting with Article 103 becomes inapplicable as a result of such conflict and to the extent of such conflict. Once again leaving us with confusion as to which rule is valid and of a higher status than the other and whether this in fact means that both the prohibition on the use of force and the prohibition of genocide become void because of the conflict of interest, leaving the international community with neither customary norm in place? As far fetched as this seems when we look into Hierarchical rules and the rule of harmonization the International law commission (Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law , 2006) says that “In the case of conflict between one of the hierarchically superior norms (…) and another norm of international law, the latter should, to the extent possible, be interpreted in a manner consistent with the former. In case this is not possible, the superior norm will prevail”.

    However full circle and we are back to the beginning question as to which international customary norm both which are customary and considered erga omnes is superior to the other; the prohibition of the use of force or the prohibition of genocide?

    Essentially we have on one hand Syria violating the very principles of the United Nations Charter as well as other international customary norms such as humanitarian law; all the while being protected by the very Charter that prohibits the violations and on the other hand; numerous states who under the Charter and under international customary law is legally bound to enact in defense of the international community as a whole to stop, halt or avert a genocide from taking place; both customary norms,both are bound with international standing and yet it seems there is no application in international law that can determine the legality of superiority over one against the other?

    Now that we have determined a structure of the problem at hand I will return to our previous discussions.

    Initially I argued that if Syria was removed from the United Nations as a member state it could not be protected from the treaties that it was a party to considering that all member states would no longer be bound to their responsibilities to Syria. The theory was based on the Palestinian conflict with Israel where Palestine cannot take Israel to the ICC / ICJ because they are not a state in the legal sense of the word as the Security Council had not accepted them into the United Nations as a member state based on their standing. Expanding the flood gates on this your argument in defense was that up until 2002 “Switzerland was not a member of the United Nations. For your argument to be correct, all diplomatic relations with Switzerland and the acceptance of her passports throughout the 20th century would have been a legal nullity. Furthermore, any State would have been allowed to invade her borders and take over the country as the UN Charter and the prohibition on the use of armed force would not have applied. I am curious if you would accept this proposition, and if not, why not.”.

    I would and I would not accept this proposition on two counts. Firstly I would accept the proposition if Switzerland was committing a genocide against her people and the international community sought to stop, halt or avert the situation by using force against her then I would accept this as a reason for using force against a state (non-member) that is not abiding by international customary rules. Secondly I do not agree that all diplomatic relations nor passports would create a legal nullity as it is up to the respective countries to accept and delegate their own diplomatic relations between each other and it is up to the receiving state to decide whether a passport from a particular country is acceptable for entrance. So yes in the first instance application to over ride one customary rule of international law to protect another may be suitable under this type of circumstance. However this needs further research and further correspondence from the International Court of justice on standing for such a conflict of laws.

    Lastly I recently completed a thesis entitled “Where is R2P grounded in International Law”, (2012) Otago University, where I successfully argued that R2P is firmly grounded in international law however its conceptional understanding to intervene in any country by any means which has been furthered by the political community and not the legal community is misleading.

    You can find it here. http://otago.ourarchive.ac.nz/handle/10523/2279

    However I do agree that under the premise of the Responsibility to Protect it is unjustified to attempt to use this doctrine as an affective remedy to the situation in Syria, I would instead be heading towards the current debates that we are now discussing rather than relying on political arguments that do not attempt to justify positions with legal arguments. When in the end the court must decide there is no point in deviating into discussions that have no effect on the end result. On this note I also agree with your Turkey submission you may also want to investigate Lebanon as well.

    Thank-you for letting me discuss these issues with you I look forward to your reply and I hope you can enlighten me on the conflict of laws between two superior erga omnes rules so bound together that it is almost impossible to separate one as higher standing than the other.

    Kind regards

    Anne-Marie Judson BA. PGDip. MA. (Peace and Conflict studies) Otago

  3. Dear Anne-Marie, here is my response to your reply. I look forward to your thoughts.

    There are two concepts that need to e clearly defined so as to avoid confusion and ensure we do not arrive at incorrect conclusions based on faulty premises. We must accurately define what it means for norms to be erga omnes and ius cogens. Our conversation until now has glossed over the distinctions between these concepts at the expense of clarity.

    The first is what it means to be erga omnes. The term first appeared in the international legal lexicon in the Barcelona Traction case before the ICJ as a way to describe what States have standing to bring a claim based on diplomatic protection. Interestingly, the term was used but the concept was not applied and so its exact scope was left ambiguous (this was true even in the later Bosnia v. Serbia as the that case did not need an erga omnes obligation to remain true). The initial definition was a universal concern of which “all states can be held to have an interest in […] protect[ing]”. These interests have been held to include aggression, genocide, slavery, racial discrimination and torture. (See, Malcolm Shaw’s International Law 6th ed. pp. 124-125). This, however, does not tell us what the consequence of such a violation is.

    The International Law Commission’s Articles of State Responsibility in article 42 sets out that the consequence of the violation of an erga omnes norm is that any State to which the obligation runs (as not all such norms are to the international community as a whole, think obligations erga omnes inter partes) may invoke the responsibility of the offender. This is consistent with Barcelona Traction and the latest jurisprudence of the ICJ in Belgium v. Senegal. However, the issue of self-defense and the use of force are governed separately. In the ASR it is actually only mentioned as an exception to responsibility and not a method of invoking responsibility or responding to a breach of an international obligation. Countermeasures, the chosen tool of self-help enforcement, are limited to non-performance of obligations and do not include the use of force which is governed by primary legal norms.

    Assuming for the moment that all the acts of the Syrian government (or the rebels for that matter) were in violation of this type of international legal norm, that would not give the international community or an individual member the right to militarily intervene. It would only give a right to the community or its individual members to invoke Syria’s responsibility and impose countermeasures (however, there is a whole procedure for this that I have glossed over). The resort to self-defense is conditioned on the occurrence of an armed attack against a State and for collective self-defense, the request for assistance by that State. This was one of the holdings to come out of the Nicaragua case.

    Violation of an erga omnes norm therefore does not get you to intervention in its own right or intervention in self-defense absent invitation by the State.

    Next is the meaning of ius cogens. This idea, while around for centuries, crystallized in modern international law with the 1969 Vienna Convention on the Law of Treaties. It, in essence, states that certain rules of international law are not avoidable, meaning they cannot be modified by treaty. (See, Antonio Cassese’s Diritto Interzationale, pp. 201-204). Status as a preemptory norm (VCLT art. 53) does not entitle States to take enforcement into their own hands. Like erga omnes, ius cogens status does not include rules on the methods of enforcement.

    Another issue is the prohibition on the use of force. It applies to the use of force in international relations, not the use of force internally. Force against the civilian population is a matter for International Human Rights Law (assuming no ongoing armed conflict) and International Humanitarian Law (where there is a conflict). Neither set of rules includes norms on intervention. Therefore the violation of these norms would not allow intervention if not otherwise authorized by another norm of international law. The issue is therefore within the purview of generally applicable norms of international law as codified in the UN Charter on the use of force and self-defense. As we have previously discussed, these clearly preclude intervention absent Security Council authorization.

    I cannot agree with the argument that R2P is grounded in international law as it currently stands (at least, not the intervention prong outside of UN Security Council action). As most proponents note, it is at most “an emerging norm” of international law. As far as holding Russia and China (or any other State) responsible for its voting practices in the UN, that is an entirely different discussion. One I find to be very interesting, but also very dangerous. I would be happy to discuss this topic as well, but would prefer to do so outside of this discussion because I think they are separate issues and would only lead to a muddled discussion on intervention.

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