Oct 28, 2013


Dr. Theophilus Olusegun Obayemi, II*
 I.          Introduction
 We re-examine the United States-led intervention in Syria. First, our thesis is that within the context of the International Court of Justice (“ICJ”)’s decision in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.—there has actually been “interventions” by the United States and its allies inside the Syrian borders. Second, we argue that the United Nations General Assembly (“UNGA”) ought to have requested the ICJ to issue an Advisory Opinion on the legality and/or lawfulness of the United States and French-led intervention in Syria. Third, humanitarian intervention towards preventing genocide and serious violations of humanitarian rights is now a jus cogens, which does not need a United Nations Security Council’s Resolution. In a nutshell, the UNGA should have taken over the jurisdiction of the Syrian case over and above the need for a Chapter VII Security Council Resolution.
 In September 2013, many international law observers had expected a full-blown attack by the United States armed forces against the Assad Syrian government. In an attempt to avoid being dragged into an unpopular military action as occurred in Vietnam and Iraq, President Barrack Obama sought ratification and support from the Congress. In the midst, Vladmir Putin, Russian Head of State offered to negotiate the peaceful surrender of chemical weapons by Assad. Salutory as the efforts to avert military confrontation may seem, international law practitioners are concerned that the rules of international law were not followed and were neither referenced in solving the impasse.

II.        Origin of the Syrian Revolution
 The Arab Spring consumed the entire Arab world in 2011. Wave of civil wars, revolutionary demonstrations, protests and riots dubbed the “Arab Spring” started in December 2010 and spread across North Africa and into the Middle East in 2011. As of October 2013, rulers have been forced from power in Tunisia, Egypt (twice), Libya, and Yemen. In addition, civil uprisings have erupted in Bahrain and Syria. Further, major protests broke out in Algeria, Iraq, Jordan, Kuwait, Morocco, and Sudan. We also witnessed minor protests in Mauritania, Oman, Saudi Arabia, Djibouti, Western Sahara, and the Palestinian Authority.
 Of particular importance is that in March 2011, Pro-democracy protests in Syria started in earnest when a group of 200 mostly young protesters gathered in the Syrian capital Damascus to demand reforms and the ouster of Syrian President Bashar al-Assad in a 'Day of Rage.' A Facebook group called “The Syrian Revolution 2011 Syrian revolt against Bashar al-Assad” garnered more than 41,000 fans, while Syrian Twitter users tweeted for the world to pay attention. Video footage emerged showing the protests. Between March 2011 and September the Assad government battled rebels who gained significant inroads into the political control of the Syrian landmass.

 Then came the use of chemical weapons.
Syria has always had a "long-standing chemical warfare program", which was first developed in the 1970s. A recent report from the US Congressional Research Service said Syria probably began stockpiling chemical weapons in 1972 or 1973, when it was given a small number of chemicals and delivery systems by Egypt before the 1973 Arab-Israeli war. Further, Damascus started acquiring the materials and knowledge necessary to produce chemical weapons in the 1980s, with the help of the Soviet Union. Equipment and chemicals were also procured from European companies. While the exact size of Syria's chemical weapons arsenal is not known, in June 2012, Israel Defense Forces (IDF) Deputy Chief of Staff Maj Gen Yair Nave described it as "the largest in the world". In addition, according to a French intelligence assessment published in September 2013, Damascus has more than 1,000 tonnes of chemical agents and precursor chemicals, including:
-          Several hundreds of tonnes of sulphur mustard
-          Several hundreds of tonnes of sarin
-           Several tens of tonnes of VX
 According to a report by UN chemical weapons inspectors, there is "clear and convincing evidence" that surface-to-surface rockets containing sarin were fired at suburbs to the east and west of Damascus in an attack on 21 August that killed hundreds of people. Further, according to US, British, French and Israeli officials, there is also evidence that Syrian government forces used sarin against rebels and civilians on several previous occasions. Finally, French intelligence said analysis of samples taken from the northern town of Saraqeb and the Damascus suburb of Jobar in April showed that munitions containing sarin had been deployed.

III.       What is “Intervention” Under International Law
 To a layman, intervention would be equated to Operation Desert Storm under general Arnold Schwarznopf in 1991 or the 2003 Operation Iraqi Freedom. The ICJ’s decision in Nicaragua v. United States of America shows that intervention could be direct and/or indirect. Therein, the financing of rebels, aids given to insurgents, military assistance, logistics and instructors. Just as in Nicaragua in 1984, United States aided the Syrian Freedom Fighters, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Assad. Thus, the actual threatened direct full-scale attack against Syria was actually not the initial intervention by the United States.

IV.       Right of Humanitarian Intervention
 Under contemporary rules of international law, the three paradigmatic cases justifying humanitarian intervention are genocide, slavery and widespread torture.  Thus, the notion of jus cogens in international law encompasses the notion of peremptory norms in international law.1 In this regard, a view has been formed that certain overriding principles of international law exist which form “a body of jus cogens.” These principles are those from which it is accepted that no State may derogate by way of treaty. As a result they are generally interpreted as restricting the freedom of States to contract while ‘voiding’ treaties whose object conflicts with norms which have been identified as peremptory.

Assuming arguendo that the Assad government used chemical weapons against its citizens, then the United States and the allieds are justified in carrying out both direct and indirect attacks against Assad’s regime. Before the customary international right of humanitarian intervention can be exercised, there are “safeguard factors” to be observed:

    • The violation of humanitarian rights is severe
    • A large number of people are involved
    • More than one state is involved in the use of force
    • There is no gain or material self-interest on the part of the intervening states

V.        The United Nations Security Council
 The United Nations Security Council (UNSC) is one of the six principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of international sanctions, and the authorization of military action. Its powers are exercised through United Nations Security Council resolutions.
 The only problem with the UNSC is the veto right by the permanent members. Under Article 27 of the UN Charter, Security Council decisions on all substantive matters require the affirmative votes of nine members. A negative vote, or veto, also known as the rule of "great power unanimity", by a permanent member prevents adoption of a proposal, even if it has received the required number of affirmative votes (9). Abstention is not regarded as a veto despite the wording of the Charter. Since the Security Council's inception, China (ROC/PRC) has used its veto 6 times; France 18 times; Russia/USSR 123 times; the United Kingdom 32 times; and the United States 89 times. The majority of Russian/Soviet vetoes were in the first ten years of the Council's existence. Since 1984, China and France have vetoed three resolutions each; Russia/USSR four; the United Kingdom ten; and the United States 43. During the Syrian crisis, Russia consistently showed that it would not support armed attack against Syria.

VI.       ICJ’s Advisory Opinions
 Advisory Opinions were intended as a means by which UN agencies could seek the ICJ 's help in deciding complex legal issues that might fall under their respective mandates. Advisory Opinions were intended as a means by which UN agencies could seek the ICJ 's help in deciding complex legal issues that might fall under their respective mandates.

Based on the Syrian impasse, this author’s view is that the only alternative is the use of the United Nations General Assembly requesting the ICJ to issue an Advisory Opinion on the legality and/or lawfulness of the United States and French-led intervention in Syria. It has been argued that even though the Security Council is probably seized of the Syrian matter, that doesn't prevent the General Assembly from asking the ICJ for an opinion on whether there is a general right to humanitarian intervention, or whether member states can use force in the absence of a Chapter VII Security Council Resolution.
Generally, the United nations General Assembly requests an advisory opinion. On receiving a request, the ICJ decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. While, in principle, the ICJ's advisory opinions are only consultative in character, they are influential and widely respected. The legal reasoning embodied in them reflects the ICJ 's authoritative views on important issues of international law and, in arriving at them, the ICJ follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states.

VII.     Conclusion
 It is clear that Assad regime will not hand over the chemical weapons in its possession. With compelling evidence of violations of anti-genocide and anti-torture laws, the United States and Syria submit the matter to the ICJ as to whether the current levels of intervention should be elevated to “direct armed strike” by US armed forces against the Syrian territory. The advantage is that an advisory opinion will produce a reasoned judgment as to the current state of the laws towards balancing demands of non-interference and prevention of humanitarian violations. The United Nations Charter of 1945 certainly could not have envisaged the capability of nuclear and chemical attacks of 2013.

Dr. Theophilus Olusegun Obayemi, II is the author of Legal Standards Governing Pre-Emptive Strikes and Forcible Measures of Anticipatory Self-Defense under the U.N. Charter and General International Law, 12 ANNUAL SURVEY OF INTERNATIONAL & COMPARATIVE LAW, 19 (SPRING 2006)