This article was written by Patrick Truffer for the Freie Universität Berlin. Images were added and the text was slightly revised, partially updated and divided into two sections for publication on offiziere.ch. In addition to a brief introduction, the first part provides the historical background of the UN-Initiative Responsibility to Protect (R2P) and reviews the humanitarian intervention in Kosovo as a case study. The second part talks about a potential humanitarian intervention in Syria as a test case and draws a final conclusion.
Syria test caseFactor 1: Assessment of the human rights violations
Even before the Syrian conflict, systematic human rights were violated and political prisoners tortured. “Syria’s security services regularly hold detainees incommunicado – cut off from all contact with family, a lawyer, or any other link with the outside world – for days, months, and in some cases, years. […] Human Rights Watch and other human rights groups have also documented a frequent pattern of torture and other ill-treatment by Syria’s security services of political and human rights detainees as well as criminal suspects (Human Rights Watch, “A Wasted Decade: Human Rights in Syria during Bashar al-Asad’s First Ten Years in Power“, July 2010, 18f). The human rights situation further worsened when demonstrations and protests were held in the course of the Arab Spring from March 2011 onwards which were violently repressed by the Syrian security forces. When children were arrested and tortured, the protests intensified and resulted in fatalities. “The release of the children – bruised and bloodied after severe torture in detention – fanned the flames of popular anger. Protests continued, every week growing bigger with people from towns and villages outside Daraa city joining the demonstrations.” (Human Rights Watch, “‘We’ve Never Seen Such Horror’: Crimes against Humanity by Syrian Security Forces“, June 2011, 1). The latest report from the Human Rights Watch states: “The systematic patterns of ill-treatment and torture […] clearly point to a state policy of torture and ill-treatment and therefore constitute a crime against humanity”. However, war crimes are also committed by the oppositional Free Syrian Army (Human Rights Watch, “Syria: Sexual Assault in Detention“, 15.06.2012; Human Rights Watch, “‘They Burned My Heart’: War Crimes in Northern Idlib during Peace Plan Negotiations“, May 2012; Ban Ki-moon, “Implementation of General Assembly resolution 66/253 B on the situation in the Syrian Arab Republic“, A/66/889, 21.08.2012, paragraph 20, 23).
In comparison to the Kosovo conflict, the Syrian conflict has a larger humanitarian dimension. Nevertheless, if Turkey is omitted from consideration as a country directly affected by the refugee wave, the humanitarian catastrophe in Syria would have a diminished impact on the citizens of the NATO states unlike in the case of the Kosovo conflict. Unlike the Balkan region, Syria does not belong to Europe, does not possess any significance for security and peace in Europe historically and the Syrian refugee influx is largely limited to the neighbouring countries.Factor 2: Utilising non-violent measures
On 25 March 2012, the Syrian government obliged itself to end hostilities, to release arbitrarily imprisoned people, to allow freedom of movement of journalists and to ensure the freedom of association and the right to hold peaceful demonstrations as part of the six-point proposal of the special envoy of UN and the Arab League. Resolution 2042 of the UNSC was put forward on 14 April 2012, since Russia as well as China had submitted their vetoes against the previous drafted resolutions. This shall be understood as a reaction to the humanitarian intervention in Libya where resolution 1970 not only led to enforcement of a no-fly zone but also to the downfall of the Gaddafi regime. Russia viewed the apparent support of the Libyan rebels as misuse of the UN mandate. For China, the transfer of power in Libya was a significant economic loss (Yun Sun, “Syria: What China Has Learned From its Libya Experience“, Asia Pacific Bulletin 5, no. 152, 27.02.2012). In resolution 2042, the UNSC condemned “widespread violations of human rights by the Syrian authorities as well as any human rights abuses by armed groups” and insisted on implementation of the six-point proposal that had to be monitored by UNSMIS. The Syrian government never implemented the six-point proposal seriously and UNSMIS ended on 19 August 2012 with the situation worsening. A non-violent solution to the conflict became highly unlikely with this which came to fore exemplarily with the failed attempt to negotiate and implement a ceasefire over the Eid al-Adha days (Roland Popp and Daniel Möckli, “The Syrian Civil War: Between Escalation and Intervention“, CSS Analysis in Security Policy, ETH Zurich 6, no. 124, November 2012, 1).
In comparison to the Kosovo conflict, no measures in accordance with section VII of UN-Charter were ordered by the UNSC and there is no formulation that suggests that the situation in Syria poses a regional danger to peace and security. A formulation or measures in accordance with section VII of UN-Charter would fail on veto of Russia and China. The absence suggests, however, that the room to manoeuvre has not been completely utilised yet. In the case of non-authorised intervention, this could have a negative effect on the discussion over moral legitimacy. Simply a “Smoking Gun” incident such as the use of chemical weapons or a devastating attack on a neighbouring country would morally legitimise a non-authorised humanitarian intervention (John Calabrese, “The Regional Implications of the Syria Crisis“, Middle East Institute, 21.12.2012; Jon Lee Anderson, “Obama’s Syria Problem“, The New Yorker, 14.12.2012).
Factor 3: Intervention led by a regional organisation
In the case of a humanitarian intervention in Syria, ensuring a chemical weapons arsenal would have to be an operational objective of several. The USA has personal and technical requirements in this regard but only few related to intelligence. Hence, involvement of Turkey, Israel and Jordan would be required. “Neighboring intelligence services in Turkey, Jordan, and Israel may have more insight on the extent of these programs and related security challenges than the U.S. government.” (Jeremy M. Sharp and Christopher M. Blanchard, “Armed Conflict in Syria: U.S. and International Response“, Congressional Research Service, RL33487, Washington: 21.08.2012, 9). In the case of Turkey, it would be obvious to entrust the leadership to NATO completely or partly. This would increase the moral legitimacy and there is no other regional organisation with comparable military potential with regard to the Middle East. This would hardly be enough however: additionally, the states of the Arab League would have to be involved in political or perhaps military form (John Calabrese, “The Regional Implications of the Syria Crisis“, Middle East Institute, 21.12.2012).
In contrast to the Kosovo conflict, it cannot be assumed currently whether genocide or ethnic cleansing threatens Syria. Nevertheless, the conditions for a humanitarian intervention would be fulfilled based on R2P: systematically, crimes against humanity and war crimes are committed, which could be seen on an unimaginable scale with the use of chemical weapons that cannot be ruled out. Even the most small-scale use of chemical weapons would be a “Smoking Gun” incident for an unauthorised but morally legitimised intervention. Without such an incident, the moral legitimacy of such an intervention would be difficult to defend with the following points:
- Even before the Syrian conflict, there were crimes against humanity that were internationally criticised but effectively ignored. Since the start of the conflict, the scale of human rights violations increased but it would still be difficult to explain how this untenable condition would justify a humanitarian intervention just at this moment.
- Although in comparison to the Kosovo conflict, the humanitarian catastrophe in Syria has a larger scale, the citizens of all NATO-states with the exception of Turkey are less severely affected. Hence, they could view a humanitarian intervention as unnecessary morally.
- The absent measures in accordance with section VII of UN-Charter and formulation that the situation poses a regional threat to peace and security suggest that the room to manoeuvre for resolving the conflict has not been completely utilised yet.
In comparison to Kosovo, an intervention in Syria would have to be broadly based and ground troops would be required for securing the chemical weapons arsenal. It can be assumed that for securing chemical weapons in Syria, up to 75,000 troops might be required (David E. Sanger et al., “Pentagon Says 75,000 Troops Might Be Needed to Seize Syria Chemical Arms“, The New York Times, 15.11.2012). For moral legitimacy, it would be necessary that in addition to the leadership by the NATO as a regional organisation, the states of the Arab league were also involved politically and perhaps even militarily if possible.
• • •
Even in the revised 1992 edition of Oppenheimer’s international law, a reference document of modern international law, the thought has been conveyed that with serious human rights violations, an “intervention in the interest of humanity might be legally permissible” (Lassa Francis Lawrence Oppenheim (post mortem), R. Y. Jennings, and Arthur Desmond Watts, Oppenheim’s international law, 9th ed., 2 vols., vol. 1, London: Longman, 1992, 442). From the perspective of international law, there is no legitimate way nowadays to carry out a humanitarian intervention without the authorisation of the UNSC. Even if the UNSC had shown willingness to issue such an authorisation after the cold war, the Syrian conflict indicates that the blockade of the UN-security council is still possible. This can lead to a morally untenable situation in which intervention might not be possible under international law despite the apparent serious human rights violations. Although this dilemma was known at the international level and addressed with the UN-initiative R2P, it was not resolved: even interventions based on R2P require an authorisation by the UNSC.In light of moral legitimacy, the scope of morally characterised acts might lie beyond legal assessment in some exceptional cases if they are generally expected. For example, the intervention of NATO in Kosovo was internationally accepted on moral grounds despite the violation against the international law. Therefore, this case study is suitable as a reference study in response to the question of whether a human intervention in Syria without the authorisation of the UNSC would also be observed as morally legitimate or not.
At the time of completion of this study (start of January 2013), the answer to this question is negative: a humanitarian intervention in Syria without authorisation of the UNSC would hardly be interpreted as morally legitimised internationally. Simply a “Smoking Gun” incident such as the use of chemical weapons or a devastating attack on a neighbouring country would morally legitimise an immediate intervention. In contrast to Kosovo, crimes against humanity in Syria were internationally criticised but effectively ignored prior to the conflict. With an intervention, it would be difficult to explain that how this untenable condition would justify a humanitarian intervention just at this moment. In the Kosovo conflict, the citizens of NATO-states were directly affected considering the historic importance of the Balkan region and as a result of the flow of refugees. With the exception of Turkey, this is not the case with the Syrian conflict. This could lead to a negative assessment of the moral legitimacy of an intervention from the point of view of the population of NATO states. In addition, the UN-resolution concerning the Syrian conflict lacks the measures proposed in chapter VII of the UN-Charter and the formulation that poses a regional threat to peace and security. This still does not suggest a completely utilised room for manoeuvre for resolving the conflict. In comparison to the Kosovo conflict, an intervention must be broadly based. The transfer of leadership to the NATO would hardly be sufficient. Rather, the political and perhaps even the military involvement of the Arab League states would be required if possible. In addition, the use of ground troops for securing the chemical weapons arsenal would make the intervention far more costly as in case of the Kosovo conflict.
The established hypothesis cannot be practically verified yet since no humanitarian intervention took place in Syria by the time of completion of the work and apart from the military intervention in Kosovo, there is no other comparable intervention. In this study, the theoretical concept is explained that under which conditions, an unauthorised humanitarian intervention based on R2P would be considered by the majority as morally legitimate. Thereby, it was assumed that the external factors in the reference case and the test case are constant. However, Syria as a test case shows that this is probably not the case. The reaction of the international community to serious human rights violations before the conflict case, the concernment of the population of the intervening regional organisation or the troop-contributing states, the occurrence of a “Smoking Gun” incident, the proportionate and temporary restrictions and targeted use of military resources and subsequently the final outcome of the intervention could sustainably influence the assessment of the moral legitimacy. The in-depth analysis of these external factors after an unauthorised humanitarian intervention would present an interesting point to relate to further studies. Furthermore, in such a case, the hypothesis and the associated theoretical concept may not only be verified theoretically but also practically.