Haben die VN gegen ihre Pflicht verstoßen das syrische Volk zu beschützen?

 

Abstract

Im März 2011 schlugen in Syrien friedliche Demonstrationen in gewaltsamen Protest um. Seitdem ist in dem Land ein Bürgerkrieg entbrannt, dem bereits tausende Menschen zum Opfer gefallen sind. Niemand, so entsteht zunehmend der Eindruck, kümmert sich darum. Hatte der UN Sicherheitsrat im libyischen Bürgerkrieg noch interveniert, so scheiterte er im Hinblick auf Syrien bisher an Meinungsverschiedenheiten zwischen den USA und England einer- und China und Russland andererseits. Die UN, so der englische Außenminister William Hague, habe versagt. Dieses Essay untersucht die Frage des Scheiterns aus der Perspektive des Völkerrechts: Könnte die UN legal in Syrien intervenieren? Macht die sogenannte “Schutzverantwortung” (responsibility to protect) eine Intervention zur Pflicht?

(Dieses Essay wurde im Rahmen einer Supervision im Grundkurs Völkerrecht an der Universität Cambridge verfasst. Das Essay wurde mit einer hohen II.i bewertet.)

Essay (shortened)
Topic: “The UN has failed its duties to protect the Syrian people” said William Hague in a statement. Discuss as a matter of existing international law, having regard to past cases of intervention (e.g. Iraq, Kosovo), non-intervention (e.g. Rwanda), and in particular the use of force in Libya.

Introduction
Her hair is pretty well arranged, her expression insecure. With one hand, she holds hands with her father. Framed between two men who stand closer to the camera the girl seems tiny, almost like a doll. Bloodlies on the floor. The machine gun on the left hand side of the photo looks bigger than her. The little girl seems lost, out of place.

This photograph by Alessio Romenzi was awarded the UNICEF photo of the year 2012. It was taken on 27 September in the Dar-Al-Shifa-Hospital in Aleppo, Syria.[1]

The trouble began in March 2011, when initially peaceful demonstrations for political reform in Damascus triggered nationwide unrest. In response, the Syrian army entered a number of cities to crush anti-government protests.[2] The violence escalated.[3] By February 2012, well over 7,500 people had been killed in the conflict.[4] And the killing is not over yet.[5]

The United Nations repeatedly called upon the parties to halt the excessive use of force against civilians, arbitrary detentions and executions as well as torture, amongst other war crimes.[6] In March 2012, United Nations Special Envoy Kofi Annan presented a six-point peace-plan for Syria. Annan had to admit failure only four months later.[7]

In short, much has been said, little has been done so far to protect the Syrian people. This brings the question: Is there a duty to do more to protect the Syrian people in this crises, maybe even through military intervention?

This essay tries to answer this question by addressing three issues: Does the United Nations have the legal capacity to protect the Syrian people? Does the United Nations have a Responsibility to Protect? Is this responsibility is engaged in the present case?

At the outset, three points need to be clarified: The term “protect” is understood as protection even through military intervention. “Responsibility” is taken to imply an obligationas opposed to a mere capacity. Finally, the issue is discussed as a matter of existing international law. Thus, “obligation” means a legal obligation, not a moral duty.

Authority to Protect
Generally, military intervention is unlawful under Articles 2(4) and 2(7) of the Charter of the United Nations. However, there are three exceptions to this principle. The use of force in international law can be legitimate in cases of self-defence under Article 51,[8] if authorised by the United Nations under Chapter VII, or in cases of a so-called “humanitarian intervention”.[9]

According to Article 39, a Chapter VII intervention demands the existence of a “threat to international peace and security”. Severe intrastate violence and violations of human rights or humanitarian law can constitute a threat to international peace and security as well.[10]
This was the case during the Balkan war,[11] in Somalia,[12] and most recently with regard to Libya.[13]

In the present case, the focus has been very much on the humanitarian tragedy caused by the conflict.[14]Thus, the existence of a threat to international peace and security may be denied.[15]

On the other hand, the conflict also has an impact on the whole region. Over 96,000 refugees have been reported, which presents a big problem for the receiving States.[16]
Furthermore, NATO assumed it necessary to send a number of “Patriot”-rockets to the Turkish-Syrian border in order to stop the Syrian incursions on Turkish territory.[17] This illustrates how the conflict already caused disturbance in the region.[18] Consequently, the Security Council could legitimately invoke Chapter VII.

Of course, the Security Council has not yet done so. This is because Russia and China feel that NATO exceeded its mandate in the case of Libya,[19] when the use of force was authorised only to “protect civilians (…) under threat of attack”.[20]

The dependence on the Permanent Members of the Security Council can be pretty frustrating. After Rwanda, the question came upwhy the veto should override the rest of humanity in cases of serious violations of human rights and humanitarian law.[21]

Subsequently, the approach of “humanitarian intervention” emerged, according to which military intervention can be justified by humanitarian needs, even without the consent of the Security Council.[22]

This doctrine was famously invoked by the United Kingdom in the case of Kosovo.[23] Relevant Security Council Resolutions[24] fell far short of authorising any military intervention.[25] Nevertheless, NATO conducted a 78-day air-campaign.[26]

The legal character of the doctrine is disputed. The Security Council neither authorised nor condemned the action in Kosovo.[27] This can be taken to indicate the legality of the action.[28]

However, the approach has been criticised with good reasons: The United Kingdom, proclaiming the legal character of the principle, did not reference any source of international law.[29] France even withdrew its initial support as to the legality of the action.[30]
Also, the doctrine is contradicted by State practice, as humanitarian concerns were never invoked as the sole justification of an intervention.[31]

It must be kept in mind, however, that the Security Council, while it did not authorise the use of force under Chapter VII, it could still do so. The next question to address is whether the Security Council legally ought to authorise the use of force.

Responsibility to Protect
In 1994, the genocide in Rwanda laid bare the full horror of inaction. The failure to prevent or stop the genocide was a failure of the United Nations system as a whole.[32]

In response to Rwanda, the International Commission on Intervention and Sate Sovereignty coined the term “Responsibility to Protect”.[33] In essence, it is intended not only to permit, but to require international intervention in cases of most serious human rights abuses or international crimes, if a State fails in its duty to protect its citizens.[34]
Subsequently to the International Commission’s Report, the doctrinewas quickly accepted, notably by the General Assembly in the World Summit Outcome Document 2005.[35] In the 2005 Document, a number of changes were made to the proposition of the International Commission’s Report in 2001: Firstly, the scope was limited to genocide, war crimes, ethnic cleansing and crimes against humanity.[36] The proposition to include “other major atrocities” was rejected.[37] Secondly, the Responsibility to Protect is triggered only if national authorities are “manifestly” failing to protect their populations.[38]
Thirdly, the doctrine operates only “through the Security Council, in accordance with the Charter”.[39] In contrast, the International Commissionhad provided for alternative modes of legitimation[40] in case the Security Council would fail to act.[41]

This definition of the Responsibility to Protect according to the World Summit Outcome Document 2005 has been endorsed and referred to on many occasions, inter alia by the Security Council and the General Assembly.[42] Most notably, it has been invoked with regard to the intervention in Libya.[43]

It is not clear, however, whether the doctrine forms part of existing international law.The fact that the Security Council has recognized the doctrine[44] supports this assumption. Also, it has been explicitly referred to as a norm of international law.[45]

However, there remain significant areas of disagreement as to the details of the doctrine.[46]

And even the supporters of the Responsibility to Protect as a rule in international law are unsure about its nature: The Responsibility to Protect is not treaty-law, as it is not embodied in any treaty.[47] In order for it to be a norm of international customary law, two conditions have to be satisfied: State practice and opinioiuris.[48] There hardly is any State practice: The doctrine was conceived only in 2001 and no State has claimed to have acted in accordance with it ever since.[49] As far as international organisations are concerned, the devil is in the detail: When the Security Council referenced the doctrine, it did so to emphasise the particular State’s responsibility to protect its own people, as opposed to the international community’s Responsibility to Protect. This was the case most recently with regard to Libya, Cote d’Ivoire, South Sudan and Yemen.[50]

And there is no opinioiuris either: Being a General Assembly resolution, the 2005 Document is not meant to be legally binding at all.[51] The General Assembly Debate 2009 was in form of an informal interactive dialogue – at no point did the delegates have in mind to create a new legal rule.[52] Rather, a doctrine in a political approach.It has consistently been referred to as such both by supporters and opponents of the doctrine.[53] Therefore, the Responsibility to protect does not form part of existing international law.[54]
Consequently, the international community does not have any legal obligation to protect the Syrian people.

Syria 2012
Even if the responsibility to protect were a norm of international law[55]: Would it be triggered with regard to Syria?

The first issue is the scope of the doctrine, which is limited to genocide, ethnic cleansing, crimes against humanity and war crimes.[56] There is no genocide or ethnic cleansing.

However, war crimes and crimes against humanity have been committed: There are reports on torture, summary executions and targeted attacks on civilians.[57] These practices are contrary to international humanitarian law and constitute war crimes.[58]

Secondly, national authorities have to be manifestly failing to protect their population.[59] Syrian authorities have violated human rights and humanitarian law consistently and systematically. Since the uprising began in March 2011, 31,000 civilians have been killed.[60] This clearly constitutes a manifest failure to protect its citizens.

Thirdly, a military intervention is only possible if peaceful means have proven inadequate.[61] Various United Nations Agencies repeatedly called upon the parties to immediately halt the excessive use of force against civilians, arbitrary executions and torture.[62] Special Envoy to Syria Kofi Annan failed in his efforts to establish a six-point peace-plan for Syria.[63] Given the advanced status of the fighting and the bitterness of the parties, a political solution is not likely to be successful anymore.[64] Therefore, peaceful means to settle the conflict are no option anymore.

Finally, an intervention could only take place through the Security Council in accordance with the Charter, including Chapter VII.[65] As shown above, the requirements of a Chapter VII intervention have been met. The Security Council could authorise the use of force at any time.

Conclusion
This essay tried to answer three questions: Firstly, whether the United Nations have the authority to protect the Syrian people, even through a military intervention; Secondly, whether the United Nations have the legal Responsibility to Protect the Syrian people; And thirdly, whether this responsibility is triggered in Syria. In conclusion, the answers are the following: The United Nations does indeed have the authority to protect the Syrian people. This requires, however, the consent of the Security Council, which has not been given yet. In contrast, the United Nations does not have any legal obligation to protect the Syrian people as a matter of existing international law. This is without prejudice to any moral desirability of military action in Syria. Finally, if the Responsibility to Protect were to be assumed a norm in international law, the doctrine would be triggered in the present case.

 

- Robin Azinovic, 23.12.2012

 


[1]Spiegel Online, Kindheit im Krieg, 18.12.2012.

[2]Staniforth, Syria (comparing with Libya), 2012.

[3]United Nations General Assembly, Resolution 66/176, 2011; United Nations Human Rights Council, Resolution S-19/1, 2012; United Nations Secretary-General, Report on the Implementation of Security Council Resolution 2043, 2012, p. 3.

[4]United Nations Web Services Department of Public Information, Background Information on the Responsibility to Protect, 2012.

[5] See only: Tagesschau.de, Berichte über viele Tote bei Luftangriff auf Bäckerei, 23.12.2012

[6]United Nations Human Rights Council, Resolution S-18/1, 2011; United Nations General Assembly, Resolution 66/176, 2011; United Nations General Assembly, Resolution 66/253, 2012; United Nations Human Rights Council, Resolution S-19/1, 2012.

[7]United Nations Secretary-General, Report on the Implementation of Security Council Resolution 2043, 2012, p. 2.

[8]Obviously, Article 51 cannot be invoked in the present case.

[9]Lowe, International Law, 2007, p. 280-1. The humanitarian intervention is subject to an intense debate.

[10]United Nations Security Council, Resolution 794, 1992 (on Somalia); United Nations Security Council, Resolution 929, 1994 (on Rwanda); United Nations Security Council, Resolution 1078, 1996 (on Zaire).

[11]United Nations Security Council, Resolution 713, 1991; United Nations Security Council, Resolution 724, 1991.

[12]United Nations Security Council, Resolution 794, 1992.

[13]United Nations Security Council, Resolution 1970, 2011; United Nations Security Council, Resolution 1973, 2011.

[14]Tagesschau.de, Offenbar 50 Tote bei Anschlag auf Assad-Truppen, 05.11.2012; Tagesschau.de, Schwerer Anschlag auf Kaserne in Daraa, 10.11.2012; Tageeschau.de, “Wir können nicht untätig zusehen“, 11.11.2012.

[15]Staniforth, Syria (comparing with Libya), 2012.

[16]United Nations Human Rights Council, Resolution S-19/1, 2012; United Nations Secretary-General, Report on the Implementation of Security Council Resolution 2043, 2012, p. 4.

[17]Tagesschau.de, NATO sendet „Patriot“-Raketen in die Türkei, 04.12.2012; Tagesschau.de, „Eine rein defensive Mission“, 06.12.2012.

[18]Vicken Chetrian in: Tagesschau.de, “Syrer fühlen sich isoliert und betrogen”, 05.12.2012.

[19]United Nations General Assembly, Press Release GA/11270, 2012, p. 5-6, 8; United Nations Secretary-General, Responsibility to Protect: Timely and Decisive Response, 2012, p. 14.

[20]United Nations Security Council, Resolution 1973, 2011.

[21]International Commission on Intervention and State Sovereignty, The Responsibility to Protect, 2001, p. 51; International Coalition for the Responsibility to Protect, Report on the General Assembly Plenary Debate on the Responsibility to Protect, 2009, p. 9.

[22]Lowe, International Law, 2007, p. 280-1.

[23]Sir Greenstock, according to: Harris, Cases and Materials on International Law, 7th edition 2010, p. 783.

[24]United Nations Security Council, Resolutions 1160, 1199, 1204 (1998).

[25]Zifcak, The Responsibility to Protect, in: Evans, International Law, 3rd edition 2010, p. 504, 509.

[26]Gray, The Use of Force and the International Order, in: Evans, International Law, 3rd edition 2010, p. 615, 621.

[27]Aust, Handbook of International Law, 2nd edition 2010, p. 213; Shaw, International Law, 6th edition 2008, p. 1157.

[28]Gray, The Use of Force and the International Order, in: Evans, International Law, 3rd edition 2010, p. 615, 622.

[29]Crawford, Brownlie’s Principles of Public International Law, 8th edition 2012, p. 753; Shaw, International Law, 6th edition 2008, p. 1157.

[30]Gray, The Use of Force and the International Order, in: Evans, International Law, 3rd edition 2010, p. 615, 621.

[31]Crawford, Brownlie’s Principles of Public International Law, 8th edition 2012, p. 754.

[32]Members of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda, Report, 1999, p. 1; United Nations Secretary-General, Implementing the Responsibility to Protect, 2009, p. 24.

[33]International Commission on Intervention and State Sovereignty, The Responsibility to Protect, 2001, p. VII.

[34]Crawford, Brownlie’s Principles of Public International Law, 8th edition 2012, p. 755.

[35]United Nations General Assembly, Resolution 60/1 World Summit Outcome Document, 2005, p. 30 paras 138-9.

[36]United Nations General Assembly, Resolution 60/1 World Summit Outcome Document, 2005, p. 30 paras 138, 139.

[37]Zifcak, The Responsibility to Protect, in: Evans, International Law, 3rd edition 2010, p. 505, 515.

[38]United Nations General Assembly, Resolution 60/1 World Summit Outcome Document, 2005, p. 30 para. 139.

[39]United Nations General Assembly, Resolution 60/1 World Summit Outcome Document, 2005, p. 30 para. 139.

[40]The International had proposed alternative action by the United Nations General Assembly, referencing General Assembly Resolution 377 A(V) (1950), or even by individual States, for instance in cases like Kosovo.

[41]International Commission on Intervention and State Sovereignty, The Responsibility to Protect, 2001, p. 54.

[42]United Nations Security Council, Resolutions 1674 (2006), 1706 (2006), 1970 (2011), 1973 (2011), 1975 (2011), 1996 (2011), 2014 (2011); United Nations General Assembly, Resolution 63/308 (2009); United Nations Secretary-General, Letter dated 31 August 2007 to the President of the Security Council, p. 1; United Nations Secretary-General, Implementing the Responsibility to Protect, 2009, p. 2; United Nations Secretary-General, Early Warning, Assessment and the Responsibility to Protect, 2010, p. 6.

[43]United Nations Security Council, Resolution 1970 (2011); United Nations Security Council, Resolution 1973 (2011).

[44]United Nations Security Council, Resolutions 1674 (2006), 1706 (2006), 1970 (2011), 1973 (2011), 1975 (2011), 1996 (2011), 2014 (2011).

[45]United Nations Secretary-General, Implementing the Responsibility to Protect, 2009, p. 5; Knut Vollbaek, High Commissioner at the OSCE, according to: United Nations General Assembly, Press Release GA/11112, 2011, p. 5; United Nations Secretary-General, Responsibility to Protect: Timely and Decisive Response, 2012, p. 3.

[46]Shaw, International Law, 6th edition 2008, p. 1158; Zifcak, The Responsibility to Protect, in: Evans, International Law, 3rd edition 2010, p. 504, 523.

[47]Zifcak, The Responsibility to Protect, in: Evans, International Law, 3rd edition 2010, p. 504, 522.

[48]North Sea Continental Shelf, Judgement, ICJ Reports 1969, p. 3, para. 77.

[49]Zifcak, The Responsibility to Protect, in: Evans, International Law, 3rd edition 2010, p. 504, 522.

[50]United Nations Security Council, Resolutions 1970 and 1973 (on Libya), 1975 (on Cote d’Ivoire), 1996 (on South Sudan), 2014 (on Yemen).

[51]Crawford, Brownlie’s Principles of Public International Law, 8th edition 2012, p. 42.

[52]Zifcak, The Responsibility to Protect, in: Evans, International Law, 3rd edition 2010, p. 504, 523.

[53]United Nations Secretary-General, Letter dated 31 August 2007 to the President of the Security Council, p. 1; International Coalition for the Responsibility to Protect, Report on the General Assembly Plenary Debate on the Responsibility to Protect, 2009, p. 8; Special Advisor to the Secretary-General Edward Luck, Remarks to the General Assembly on the Responsibility to Protect, 2009, p. 3; United Nations General Assembly, Press Release GA/11270, 2012, p. 3.

[54]Shaw, International Law, 6th edition 2008, p. 1158; Zifcak, The Responsibility to Protect, in: Evans, International Law, 3rd edition 2010, p. 504, 521; Crawford, Brownlie’s Principles of Public International Law, 8th edition 2012, p. 757.

[55]The Responsibility to Protect does not form part of existing international law, see above.

[56]United Nations General Assembly, Resolution 60/1 World Summit Outcome Document, 2005, p. 30 paras 138, 139; United Nations Security Council, Resolution 1674, 2006, p. 2 para. 4; United Nations Secretary-General, Implementing the Responsibility to Protect, 2009, p. 5; International Coalition for the Responsibility to Protect, Report on the General Assembly Plenary Debate on the Responsibility to Protect, 2009, p. 9; United Nations Secretary-General, The Responsibility to Protect: A timely and decisive Response, 2012, p. 2.

[57]United Nations Human Rights Council, Resolution S-18/1, 2011; United Nations General Assembly, Resolution 66/176, 2011; United Nations General Assembly, Resolution 66/253; United Nations Human Rights Council, Resolution S-19/1, 2012; United Nations High Commissioner for Human Rights, Report, 20.12.2012.

[58]United Nations Secretary-General, Implementation of General Assembly resolution 66/253 B on the situation in the Syrian Arab Republic, 2012, p. 7; United Nations Secretary-General, Implementation of General Assembly resolution 66/253 B on the situation in the Syrian Arab Republic, 2012, p. 5, 7.

[59]United Nations General Assembly, Resolution 60/1 World Summit Outcome Document, 2005, p. 30 para. 139.

[60]United Nations High Commissioner for Human Rights, Report, 20.12.2012; BBC News, Syria military „continuing to fire Scud-type missiles“, 22.12.2012.

[61]United Nations General Assembly, Resolution 60/1 World Summit Outcome Document, 2005, p. 30 para. 139.

[62]United Nations Human Rights Council, Resolution S-18/1, 2011; United Nations General Assembly, Resolution 66/176, 2011; United Nations General Assembly, Resolution 66/253, 2012; United Nations Human Rights Council, Resolution S-19/1, 2012.

[63]United Nations Secretary-General, Report on the Implementation of Security Council Resolution 2043, 2012, p. 2.

[64]Vicken Chetrian in: Tagesschau.de, “Syrer fühlen sich isoliert und betrogen”, 05.12.2012.

[65]United Nations General Assembly, Resolution 60/1 World Summit Outcome Document, 2005, p. 30 para. 139.

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