BUSINESS DAY – LIFE
OPINION & ANALYSIS
by Mia SWART 03/09/13
Photo: Syrian Foreign Minister Walid al-Moallem speaks during a press conference in Damascus, Syria, August 27, 2013. Image: Voice of America
IN DECIDING whether to intervene militarily in other states, powerful states such as the US and UK understand the force of international law. But what does international law say about the use of force? It is both clear and complex. Paragraph 2 of the United Nations (UN) Charter prohibits the use of force. There are only two exceptions: the use of force is legal if authorised by UN Security Council resolution and if it is used in self-defence. It has long been clear that Russia and China will use their veto to block a council resolution authorising military force against Syria. Any argument that the US will intervene in self-defence does not respect the meaning of the term.
The matter is complicated by the rise of ius cogens in international law. A ius cogens norm is a norm or principle that belongs to a small category of international law norms that takes precedence over all other norms and from which no derogation is permitted. The prohibition of the use of force has the status of a ius cogens norm. But the prohibition against genocide falls into the same category. Commentators increasingly agree that the Syrian conflict has taken on genocidal characteristics. The UN now confirms that the death toll exceeds 100,000. Agreement also exists that the overwhelming majority of victims have been killed by Bashar al-Assad’s troops. International observers have also confirmed Assad’s complicity in the majority of war crimes and crimes against humanity against the Syrian people.
Obama might not be justifying his threat to intervene by using the legal language of ius cogens. But his instincts that the chemical attacks of August 21 justify intervention shows he understands the normative power of ius cogens. When Obama said last year that the use of chemical weapons would be the crossing of a “red line”, he showed that he appreciates the reasoning that some crimes are so serious that they, in the words of the Adolf Eichmann judgment, “shock the conscience of mankind”. The images of Syrian children killed by sarin gas shock in exactly this way.
The question of the legality of intervention in Syria can be compared to arguments about the morality of defying unjust laws to resist an unjust regime. Is it right to break the law to uphold the law? It is clear that international law outlaws the use of force. But it is equally clear that international law prohibits genocidal acts. What international law does not say is that the international community has a duty to intervene militarily. It is often said that the question of intervention is a matter of morality. It is often argued that military intervention will lead to civilian deaths.
This conundrum lies at the heart of arguments about the legality of humanitarian intervention. Humanitarian intervention without approval of the council is considered illegal. Interestingly, one of the most often cited examples of humanitarian intervention was France’s in Syria in 1860 to protect the Maronite Christians. The Nato intervention in Kosovo to protect the Kosovans in 1999 was controversial and widely condemned as illegal.
Richard Goldstone, chairman of the Independent International Commission on Kosovo, famously described the Kosovo campaign as “illegal yet legitimate”. In his view, intervention of this kind could reflect the spirit of the UN Charter “as it relates to the overall protection of people against gross abuse”.
The South African government’s proposal, of nonviolent dialogue, will not stop the atrocities of the Assad regime. I believe the crisis in Syria has reached the proportions that justify humanitarian intervention even in the absence of council approval. It is inevitable that humanitarian intervention will often be seen as having an ulterior motive. In the case of Syria, it will no doubt be argued that the US wants to protect its oil interests. But how does one ever disprove the existence of an ulterior motive? Even if that motive is as benign as wanting to avoid future guilt? Obama said last week that he would have no agenda in intervening in Syria. Given the US’s history in Iraq, it is unlikely he will be widely believed.
If the Eichmann test is anything to go by, I would argue that the atrocities committed by the Assad regime, as well as some atrocities committed by the rebels, shock the conscience of mankind and that the humanitarian crisis in Syria justifies urgent intervention. Nineteen years after the Rwandan genocide, the US is still being blamed for not intervening to stop it. No serious international lawyer has applauded the US’s failure to act in Rwanda. Syria should not be another Rwanda.
• Swart is professor of international law at the University of Johannesburg.
That body of peremptory principles or norms from which no derogation is permitted
Those norms recognised by the international community as a whole as being fundamental to the maintenance of an international legal order
Elementary rules that concern the safeguarding of peace and notably those that prohibit recourse to force or the threat of force
Norms of a humanitarian nature are included, such as prohibitions against genocide, slavery and racial discrimination
Ius/Jus cogens may, therefore, operate to invalidate a treaty or agreement between states to the extent of the inconsistency with any such principles or norms
Obama Raises Rwanda to Justify Possible Syria Action
VOICE OF AMERICA, 06/09/13
President Barack Obama raised the example of the 1994 Rwandan genocide Friday as he discussed reasons why the U.S. might take military action in Syria.
The president said the U.S. is always pressured to act when major human rights abuses take place.
“People who decry international inaction in Rwanda and say, ‘How terrible it is that there are these human rights violations that take place around the world, and why aren’t we doing something about it?’ And they always look to the United States. ‘Why isn’t the United States doing something about this, the most powerful nation on earth? Why are you allowing these terrible things to happen?'”…read all