In the recent past, it was assumed that the question of the very existence of international law was fully settled; however, the current Syrian crisis has shaken the foundations of this assumption. The now posed conjecture is whether the international law is part of world order or the world order is part of the international law. The term “humanitarian crisis” has particularly profound meaning in relation to the current situation in Syria. After years of civil war, over 150,000 people are estimated to have been killed and more than 2.5 million Syrians have fled to bordering and neighboring states. Additionally, at least 9.3 million Syrians still inside Syria are in need of immediate humanitarian assistance, over 6.5 million of whom are internally displaced.
Background:
The existence of a “humanitarian catastrophe” is a catalyst for action under particular concepts of international law. For example, the Responsibility to Protect directive recognizes an international obligation to both prevent and react to situations deemed as humanitarian disasters. Certain international states, including the UK, also argue that under international law it is acceptable to take exceptional institutive action (though the word exceptional is rather vague in this sense), including military intervention in a state, in order to prevent or put a stop to such humanitarian catastrophe. This policy memo analyzes the current legal repercussions of the humanitarian crisis in Syria. It addresses: the noncompliance of IHL committed by the parties to the conflict; the responsibility of the international community to react to the crisis in Syria, and in particular, the “Responsibility to Protect”; and the scope, under IL, for intervention in Syria by third party states without the customary UN Security Council authorization.
Current State of Affairs:
The extent of the violations of IL happening in Syria is such that the Commission of Inquiry communicates information “indicating a massive number of war crimes and crimes against humanity suffered by the victims of this conflict”. War crimes are serious violations of IHL, and crimes against humanity are acts such as murder, torture and sexual violence committed as part of a widespread and systematic attack against a civilian population. These offenses would usually be tried by the ICC. However, because Syria is not a member of the Court’s statute, the ICC does not have legitimate jurisdiction unless the situation in Syria is referred to it by the UN Security Council. Therefore, there is a risk that war crimes and crimes against humanity will continue to be committed with impunity in Syria.
The R2P doctrine was developed by an International Commission on Intervention and State Sovereignty (ICISS) following the failure of the international community specifically to prevent humanitarian catastrophes in Rwanda in 1994. Generally speaking, R2P operates at two basic levels. First, the state itself is largely responsible for protecting its own people, a product of realism. Second, if the state is unwilling or unable to protect its people, then the international community is responsible for doing so. UN member States also declared that “we are prepared to take collective action, in a timely and decisive manner through the Security Council should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” R2P might afford support for the General Assembly to make soft sanctions and recommendations for the use of force in Syria, providing greater terms of legitimacy for international humanitarian intervention. However, while the General Assembly has passed settlements castigating the violence in Syria, and inaction on their behalf, it has not recommended military intervention or sanctions. Thus, the UN has been unable to administer its own appeals for a cease-fire in Syria and a political proposition to the discord.
Finally, the situation in Syria has, once again, sparked the debate over the actual legality of humanitarian military intervention. That argument was particularly contentious following NATO’s intervention in Kosovo in 1999, which NATO undertook without seeking prior UN Security Council authorization, causing problems for mandating future intervention tactics. The three main positions taken by States and commentators in relation to NATO’s intervention in Kosovo have been reiterated in relation to Syria: One group built a forceful argument that “humanitarian military intervention” is unlawful because it is contrary to the prohibition against the use of force under Article 2(4) of the UN Charter. A second group argued that military intervention in a State to prevent or avert a humanitarian catastrophe is permissible under international law. This position was taken by the UK government, which argued that “force can also be justified on the grounds of overwhelming humanitarian necessity without a UNSCR”. Advocates of this position often argue that the protection of fundamental human rights is also vital to the purposes of the UN, as reflected in the preamble to the UN Charter. They also cite potential precedents for “humanitarian military intervention” such as Uganda, Liberia and now Kosovo. A third group argued that although “traditional” humanitarian military intervention was not permitted under international law as it existed in 1999, the law could or should develop a doctrine of humanitarian military intervention.
Recommendations:
If humanitarian military intervention can ever be legally justified (not just morally), the criteria defining the “exceptional circumstances” in which it may be used must be extremely clear and narrow so as to limit the risk of any kind of abuse, fully utilizing the three aspects of hard law, precision, obligation, and delegation. The guideline justifying an intervention that are often put forward generally encompass the following: an impending or actual humanitarian disaster, involving large-scale loss of life or ethnic cleansing, which is generally recognized by the international community; a last resort-there must be no practicable alternatives to avert or end the humanitarian disaster; and necessary and proportionate use of force-the force used must be limited in time and scope to that which is necessary and proportionate to the humanitarian need.
A further test, which is highlighted in the Syrian crisis, is the acute need for military intervention to be an effective means to provide humanitarian relief. In the case of Syria, it would be very difficult to ensure that military intervention would improve the overall humanitarian situation in both the short term and long term. More limited implementations of mediation than the direct use of force in Syria pose potential problems from the perspective of international law. For example, the arming and funding of rebel forces by an outside actor may constitute the threat or use of force or an intervention into Syrian internal affairs, which is prohibited in the UN Charter. Despite the ongoing debate concerning “humanitarian military intervention” in international law, one thing is clear: humanitarian assistance itself is lawful under international law.