Guest Article: The Full Force of International Law Should be Applied to the Assad Regime

Guest Contributor: Harry Langford

28th August 2013

It appears that intervention is now inevitable following confirmed reports that the Assad regime used chemical weapons as part of a widespread assault on an Eastern suburb of Damascus.

I have previously explored the legal basis and justification for launching an intervention in Syria, based upon a conventional non-international armed conflict (“NIAC”). The widespread use of chemical weapons by the Assad Regime has clearly served as the key motivating factor behind reports that the UK, the US, France & others are preparing military action.

However, military action is not an end in itself; when carried out properly, and cautiously, it can be a useful mechanism for securing the detention of those responsible for committing atrocities in internal conflicts. This has been true in the case of intervention in Yugoslavia, Rwanda, and Libya. I believe that similar steps should be taken to secure the prosecution of those military and political leaders in Syria responsible for the numerous atrocities that have taken place.

International Humanitarian Law and Syria

As a starting point, the following legal treaties are binding on all parties to the conflict as a matter of binding treaty law, and as customary international humanitarian law:

• Common Article 3 to the 1949 Geneva Conventions;

• Additional Protocol II  to the 1949 Geneva Conventions; and

• Customary international humanitarian law applicable to during a NIAC.

Each of these provisions has a slightly different threshold for application, with Common Article 3, which specifies that minimum standards of humanitarian law will apply to a conflict “not of an international character”. Additional Protocol II has a higher threshold, requiring that a conflict take place between the forces of the state and an opposition which is under responsible command, has control of territory and is able to carry out “sustained and concerted military operations”. The relevant legal tests, as set out by the ICTY in Tadic requiring “fighting of some intensity” over a protracted period and organization of non-state forces are met in this instance.

Breaches of the relatively lax rules set out within this legal framework can amount to crimes against humanity and war crimes under Articles 7 and 8 of the Rome Statute establishing the International Criminal Court, and both sides to the conflict appear to have carried out atrocities which merit investigation by the ICC[1].

Syria is not a signatory to the Rome Statute and has therefore not submitted itself to the jurisdiction of the ICC[2]. A State may be referred to the ICC by the Prosecutor of the UN Security Council acting under Chapter VII of the UN Charter. Between October 2011 and July 2012 Russia and China vetoed three UNSC resolutions aimed at holding the Syrian government accountable for mass atrocity crimes. Any change on that front is unlikely at best.

The provisions which are relevant to the use of chemical weapons are effective only in an international armed conflict, and therefore do not apply (See this interesting blog for more info on this). An amendment to this was passed by the 2010 Kamapala Review Conference, but it does not become binding on signatories until they have ratified the amendment; as of 2013 only 8 states have. However, the Security Council’s referral role under Article 12 was expressly designed to widen and deepen the jurisdiction of the ICC upon request of the Security Council would appear to confirm that the ICC would have jurisdiction to prosecute members of the Assad regime for War Crimes (The legal analysis for this can be found here).

The supply of weapons to the rebels

The International Court of Justice has concluded in Nicaragua v. United States that the U.S. assistance to the Contra rebels, who were operating in and against Nicaragua violated the international legal principle of non-intervention and that in that case providing arms to the Contras violated the UN Charter. On the ICJ’s interpretation of Article 2(4) of the UN Charter requiring that:

“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”

in the Nicaragua case would make the supply of arms to the Syrian rebels an illegal act under international law and a breach of the UN Charter. Whilst I would argue that Article 2(4) is important in and of its own value, the humanitarian benefit in supplying the rebels with weapons outweighs the breach of the Charter, and makes me comfortable with violating the non-aggression principle in this instance[3].

Intervention and the responsibility to protect 

The Responsibility to Protect (“R2P”) is an emerging philosophy in international law that seeks to provide a means for the international community to prevent mass atrocities occurring within the boundaries of a sovereign state.

Since its emergence in 2005, in the wake of humanitarian tragedies in Bosnia, Rwanda, Kosovo, and Darfur, R2P has been utilized to justify international intervention. Under R2P the use of force is reserved for actions within the UN Charter’s Chapter VII framework.

Peaceful and diplomatic attempts at resolving the Syrian crisis have now been exhausted. Establishing specific criteria under R2P that allow for the limited use of force when the Security Council fails to act is of paramount importance. By allowing further development of the “emerging norm” of R2P the sole purpose of R2P will be fulfilled by providing a vehicle to prevent humanitarian tragedies.