SYRIAN CRISIS International Law vs International Order

In the recent past, it was assumed that the age-old question of the very existence of international law has been fully settled; however, the current Syrian crisis has shaken the foundations of this assumption. The question now being posed is whether the international law is part of world order or the world order is part of the international law.

The taxonomy of this question is hued with many labels. There are Formalists who believe in black letter law and try to square things with the language of international legal documents and concepts. Then, there are Pragmatists like Michael Glennon, who treat international law as part of international order; not vice versa. Likewise, there are Moralists, like Ronald Sokol, who peg their legal arguments into Natural Law tradition. Contrary to his views are legal academics like Jack Goldsmith who would like to examine legal basis of any action against Syria more than any other consideration. Notwithstanding difference of opinion, one thing is obvious: international law doesn’t provide ‘clear’ legal answers. The instant article elaborates systematically the international law issues related to Syrian crisis.

The UN System, which has UN Charter as its legal basis and Security Council as its administrative centre as far as peace and security is concerned, offers different legal provisions that have been subjected to interpretation by states. As a general rule, all states are prohibited through Article 2(4) of the UN Charter to use force or to threaten territorial integrity of other member states. The ‘exception’ to this general rule is contained in Article 51 of the Charter that enunciates that inherent right of ‘individual and collective self-defence’ is not impaired by the Charter. The inherence of the right to ‘self-defence’ on individual and collective levels philosophically dilutes the value of exception and practically upstages the general rule contained in Article 2(4).

In case of Syrian crisis, none of the above-mentioned is being pressed into service by the US. Academically, however, the Formalists, will try to stretch the concept of ‘self-defence’ to include ‘Regional Defence’ of countries neighbouring Syria.

The extension of ‘self-defence’ to region will have to incorporate demand from regional states, if at all, that the extension should sustain. The other line of arguments may include defence of people from an illegitimate regime i.e. Assad regime, but this argument is not auguring well as all the formal requirements of international law especially of ‘effective control’ of the state are holding on. Besides, to put it into practice and to invoke humanitarian basis or declaration of ‘threat’ to international peace or security under Article 39 of Charter, the UNSC is to be approached where structurally an agreed position on Syria is not likely to mature. Given the divide in the UN Security Council where Russia is likely to continue to block collective authorization of use of force, the US is not expected to tread this path. Accordingly, it was witnessed on 31 August, the US President Obama making a call for Congressional approval for attack on Syria.

The matter is being investigated by a UN Team sent by Secretary General of the United Nations. The team comprises nine experts of the Organization for the Prohibition of Chemical Weapons (OPCW) and three experts from World Health Organization (WHO).

An important fact that warrants special attention regarding attack on Syria is the investigation of the use of chemical weapons. Prima facie, the ultimate proof of their use is expected to be used as a casus belli to provide a semblance of legal basis for the attack. The matter was investigated by a UN Team sent by Secretary General of the United Nations. The team comprises nine experts of the Organization for the Prohibition of Chemical Weapons (OPCW) and three experts from World Health Organization (WHO). The team visited Syria from 18th to 31st August and collected samples from various sites. The report confirmed the use of Sarin and held both sides responsible for this catastrophe.

Since Syria is not a signatory to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 1993 (CWC), therefore, it was under no legal obligation under the Treaty to not develop, produce, stockpile and use chemical weapons. Syria has also not signed or accessed to Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, Geneva, 1925 (Poison Gas Protocol), but it is believed that the Poison Gas Protocol prohibition has attained the status of a jus cogen (permanent norms of general international law) and is also fortified as a customary law on means and methods of warfare. The application of the principle of jus cogen is imported in due to Article 53 of the Vienna Convention on the Law of Treaties, which enacted jus cogen in treaty form.

In view of the above, the proposition that begs research is: what is the legal basis of the investigations by a UN Team? The answer to this question is not in the treaty law as such as the legalese developed by the UN System has evolved gradually as a ‘delegated’ authority with the UN Secretary General who was authorized through General Assembly Resolution No. 42/37 C of 1987. The said Resolution authorized him to appoint ‘a Group of Qualified Experts’ who presented their Report on 4th October 1989 that outlined the conduct of the investigations and the procedure to be followed thereafter. It is interesting to note that the investigation is to be carried out by the experts, the ultimate adjudication/determination and evaluation of the investigation is to be conducted on a political forum i.e. the Security Council; this point, however, seems to be part of debate of a fair international UN System.

While the investigation of the use of chemical weapons was pegged into what is called Hague Law (a generic term for legal instruments/initiatives that tried to regulate means and methods of warfare), the Responsibility to Protect (R2P) principle has its basis in Geneva Law (collective name of legal instruments designed to protect persons and property in warfare). The Moralists heavily rely on this legal argument and go as far as conceding that though an attack may be illegal but it would be legitimate on humanitarian grounds, and protection of civilians. Article 3, common to the four Geneva Conventions, that is agreed to have customary law value, is considered the basis of this legal argument, but it may be noted that sans authorization by the UN Security Council, the argument is feeble and may not be adopted on legal side; however, the propaganda and communication value of this argument is very strong. A conceptual point worth stating in this context is that while everyone agrees on what is unlawful and morally wrong, the difference is on the remedy and the way to address the wrong.

The perspective on the attack seems to be settled. The issue of use of chemical weapons, by state authority or by non-state actors or rebels, is illegal under Islamic International Law. Likewise, the aggression question by a non-Muslim state on a Muslim state obviously squarely authorizes the use of force by the Muslim state in self-defence. Practically, however, the internal sectarian tensions in Muslim States that are manifest in recent conflicts in Middle East fully reflect their impact on political positions of Muslim countries. The proxy wars between Saudi Arabia and Iran in which world powers back either of them, not on religious but on political grounds, seem not to be translated into Islamic International Law in case of Syria. Late Dr Hamidullah, in his celebrated work on the law of war “The Muslim Conduct of State” highlighted the instances from the Sunnah in which Islamic Law clearly prohibits use of means of warfare that do indiscriminate and excessive damage.

Given the US position in the calculus of world politics, the ‘threat’ or actual use of force by the US will shape the world order in coming days. Russia and China have clear positions; Russia has gone a step forward by mobilizing its naval armament in response to the US advancements. The repercussions of the US aggression will be gigantic in magnitude and will have a long-lasting impact on international law.

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