Beyond The Hague is delighted to welcome Sophie Rigney for this timely piece on the relevance of international law to the Syrian situation. This post is cross-posted from New Matilda, where it was first published on 28 August.
International law’s capacity to remedy the crisis in Syria is fraught. How will investigators collect evidence under sniper fire? What about Russia’s veto – and US intervention?
The alleged use of chemical weapons in Syria has galvanised calls for action to stop further mass atrocities, and to ensure those responsible are held to account. While the conflict in Syria has progressed for over two years and claimed between 80,000 and 100,000 lives, this chemical weapons attack has been widely perceived as having crossed a new line of unacceptability in the war. It has serious implications for the Syrian conflict.
There are two separate, but linked, issues of international law that arise from this recent attack.
The first is the question of external intervention through use of force (either by a country like the United States, a coalition of countries, or a regional cooperation institution like NATO).
In particular, what prerequisites would an external party or parties need to satisfy in order to legally use force in Syria? Military intervention is, in principle, contrary to Article 2(4) of the United Nations Charter. Recent comments by US President Barack Obama demonstrate that international law is very much to be considered as part of this decision-making process (or at least, that having a legal rationale for the use of force is seen to be preferable).
A United Nations Security Council Resolution a specific use of force, under Chapter VII of the UN Charter, would make any such use of force legal under international law. Such resolutions set particular parameters for how force is to be used. However, a UNSC Resolution is unlikely, given Russia and China’s veto powers. Realpolitik abounds; Russia and China have strategic interests to promote, and allegiances to protect. Russia, in particular, has previously suggested that it was rebels (rather than the Assad regime) who used chemical weapons. It is unlikely that Russia will support a resolution permitting the use of force in Syria.
Since a resolution seems unlikely due to these vetoes, there may well be an intervention launched without the requisite legal authority — as appears increasingly likely. US Secretary of State John Kerry’s remarks on Tuesday that the chemical weapons attack was a “moral obscenity”, suggests that US intervention (either with or without coalition partners) is imminent. US Ambassador to the UN, Samantha Power, has tweeted that the US will “review options” and consult with allies around the world.
Coalitions have been an important part of US-led interventions without UN support in the past. In the last few days, both Britain and France have made reference to the use of force, and the UK is recalling its Parliament on Thursday to discuss the matter, with their involvement also looking more likely. Both Britain and France have made reference to the ability to proceed without a Security Council resolution. French Foreign Minister Laurent Fabius has argued that “in certain circumstances, we can bypass” international law. British Foreign Minister William Hague has said that an intervention could be “based on great humanitarian need and distress”.
It appears that Britain, France, and the US are preparing for a humanitarian intervention justification, similar to that exercised by NATO in Kosovo in 1999.
The Kosovo intervention was deemed to be “illegal but legitimate” by the Independent International Commission on Kosovo – a sentiment that seems to be echoed in the case of Syria. For his part, Kosovo’s Foreign Minister is advocating international intervention in Syria. It remains to be seen how the US and allies will justify a use of force without a resolution in the particular case of Syria, if this does indeed come to pass. For example, in addition to the “humanitarian intervention” approach, there may be arguments made on the basis of collective anticipatory self-defence, particularly given the potential of chemical weapons to affect neighbouring countries.
William Hague’s comments that the use of chemical weapons represents “a challenge to our common security” appears to be nearing such a justification. It also remains to be seen what type of action the intervening forces would use – what the type, duration and targets would be of a bombing campaign – and how such an action would be explained in law by those intervening. Again, Hague’s comments that the UK will seek to respond “in a way that is legal and proportionate” is relevant to the type of action to be used. The implications for international law may yet be significant.
Aside from the international law questions raised by the possible use of force, there is a second issue: can the perpetrators of the chemical weapons attack be held responsible for this? What are the mechanisms under international criminal law to ensure no impunity for such an attack?
UN Secretary-General Ban-Ki Moon has described the use of chemical weapons as a “crime against humanity”; this language was also used by Prime Minister Kevin Rudd in his address to the Lowy Institute on Tuesday. There is little doubt that this would be correct. A crime against humanity is an act (including murder) which occurs as part of a “widespread or systematic attack” on a civilian population. The killing of children with chemical weapons would appear to be such a crime, and could be used as evidence of a widespread and systematic attack.
So it does appear that this could be a crime under the Statute of the International Criminal Court (ICC).
But what is the process to have the situation in Syria heard by the ICC? The key point is that Syria is not a party to the Rome Statute, the treaty that governs the International Criminal Court. Membership of the Court is based on state agreement; without a state signing this treaty, they have not explicitly agreed to submit events on its territory, and alleged actions of its nationals, to the jurisdiction of the court. It is also not as simple as Australia – a party to the Rome Statute – referring the Syria situation to the ICC. Australia cannot refer this situation of a country that has not signed the Rome Statute.
The only way that the Syria situation can be heard before the ICC is through a referral by Security Council resolution. In order for this to occur Russia and China will need to either vote for the resolution, or abstain from voting. Again, this appears unlikely. Without a resolution, the situation in Syria will not fall under ICC jurisdiction. It may indeed be that Australia, playing a key role as President of the Security Council from 1 September, will need to conduct high diplomacy to convince Russia to abstain on this topic.
If the resolution is in fact passed, the situation in Syria would become open to ICC investigation, and any crimes committed on the territory could be examined and open for prosecution. This would not be limited to crimes allegedly committed by one side of the conflict or another – all crimes, whether alleged to be perpetrated by forces loyal to Assad, or those of rebels, would be subjected to the ICC’s jurisdiction. The UN High Commissioner for Human Rights, Navi Pillay, and the UN Commission of Inquiry on Syria, have both noted that Syrian rebels are likely to have committed war crimes. All alleged crimes, by all parties, will be open to investigation, and ultimately it will be the ICC Prosecutor who will have discretion about which crimes to investigate and charge, who to charge, and whether to pursue a case to trial at all.
If an ICC referral does occur, it is important to be aware of some of the practical challenges the ICC will face in pursuing this case. In order to investigate, the ICC will need access to the Syrian territory. The sniper attack on UN Chemical Weapons inspectors on Monday serves to highlight the dangers international actors will face if they proceed into this conflict zone. Gathering evidence in this environment (and particularly credible evidence that will withstand the rigours of trial) will be difficult.
It is also worth reiterating the difficult resourcing situation at the ICC.
The ICC has recently suggested that, due to budget and resource constraints, it may not even be able to continue with its current case load. Perhaps this should not be a consideration in deciding which cases are most worthy of being heard, but it is central to whether the court has the capacity to run investigations and cases, and whether this can be done in a best-practice way. This is the case in any domestic court, too, and is one of the reasons why the discretion of prosecutors is so important. If the Security Council does refer the situation of Syria to the ICC, they should also take the responsible step of directing extra resources to the court, so that the prosecutor can investigate fully, and any eventual defence are allowed adequate facilities to prepare their case.
Recent events in Syria have caused many to appeal to international law for remedies – either to stop further atrocities, or to hold perpetrators accountable through a trial process. The current situation, however, demonstrates the power of the veto and the complexities of international law and politics.
The hope that some people place in international legal processes is arguably hamstrung by the interests of one or two great powers. Security Council resolutions for either the use of force, or an ICC investigation, are both unlikely. An intervention may yet occur without a UNSC resolution, contrary to international law. This disregard for international law would be problematic. The tensions between law in theory and the containment of it in practice are always evident when questions of humanitarian intervention arise. And while an international criminal justice approach might be desired, there are significant challenges to the jurisdiction and the practical reality of running an ICC case on Syria. The infamous “end to impunity” is more complex than many would want to believe.
*Sophie Rigney is a PhD Candidate at the Melbourne Law School and a former Defence Legal Assistant at the ICTY, including for the Defence of Lahi Brahimaj in the case The Prosecutor v. Ramush Haradinaj, Idriz Balaj, and Lahi Brahmaj; and the Standby Defence team in the case of The Prosecutor v Radovan Karadzic. She tweets at @sophiejrigney