PART 1:- HUMANITARIAN INTERVENTION: AN EVALUATION OF THE CASE FOR THE FORCIBLE REMOVAL OF REPRESSIVE REGIMES UNDER INTERNATIONAL LAW

While the notion of ‘humanitarian intervention’ was not explicitly recognised and addressed by the United Nations Charter, some have argued that the concept of international peace and security appears to have acquired meaning beyond traditional collective security, to one in which ethnic cleansing, genocide, breaches of human rights, as well as grave breaches of humanitarian law, including those encompassed within a state's own borders are considered parts of the security fabric.

This article therefore intends to examine in some detail whether contemporary international law imposes a duty on states to intervene in a third state such as Syria where mass crimes including crimes against humanity or war crimes et al are being perpetrated, although within the confines of the United Nations legal regime. The article will address this matter over two parts with the concluding part published next week.

..................................................................................................................................
INTRODUCTION

The UN General Assembly on the legality of intervention once recognised that: "No state or group of states has the right to intervene, directly or indirectly in the internal or external affairs of any other states...all forms of interference or threats against the personality of the state or against its political, economic or cultural elements are in violation of international law”. It is said that signatories to the UN Charter have delegated their right to unilateral enforcement to the UN, save on the grounds of self-defence where states are allowed to respond to the attack in the circumstances. The Security Council is thus endowed with the responsibility of undertaking executive action in order to prevent, punish a threat to or breach of the peace or act of aggression. The difficulty in ascertaining when an armed conflict constitutes or potentially constitutes a 'threat to peace and security' within the meaning of the Charter is readily apparent in many episodes that have confronted the international community since the adoption of the Charter. In the context of humanitarian intervention, the United States relied on this argument on numerous occasions over the years, most notably in Grenada and Panama. Although some identify a gradual evolution of customary international law permitting intervention by states in the event of humanitarian catastrophe, the Charter's text will undoubtedly be compromised in that event. Against this background, while the removal of, for example, the Syrian regime might be noble and ethical its legality will however be uncertain.


THE UNITED NATIONS CHARTER ON THE USE OF FORCE

Article 51 of the UN Charter which confers on individual states an 'inherent right of individual or collective self-defence' and Security Council authorised enforcement actions under Chapter VII constitute the only exceptions to Article 2(4) which prohibits 'the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations'. The Security Council is accorded primary responsibility for maintaining international peace and security and pursuant to Article 34 may investigate any dispute which might endanger the maintenance of international peace and security. Under Chapter VII, the Council may take any action including the use of armed force 'as may be necessary to maintain or restore international peace and security'. A determination of a threat to peace or breach of the peace made by the Security Council in response to the situations in for example, Syria or Sudan, will serve as a legitimate trigger for Chapter VII enforcement action circumventing the domestic jurisdiction clause of Article 2(7). Nevertheless, a more fundamental difficulty however will be establishing the existence of elements such as humanitarian crises or a disruption to democracy in Syria which have served as a precursor to intervention in the past, most notably in Somalia and Haiti.


THE CONCEPT OF ‘HUMANITARIAN INTERVENTION’

i. Humanitarian intervention brought about by human rights abuses

It is increasingly being accepted that the concept of international peace and security appears to have acquired meaning beyond traditional collective security (envisaged as collective response to armed attack), to one in which ethnic cleansing, genocide and other gross violations of human rights, as well as grave breaches of humanitarian law, including those encompassed within a state's own borders are considered parts of the security fabric. Humanitarian intervention was recognised in the Council's resolution which expressed demand for urgent response by the international community, determining that the magnitude of the humanitarian crises in Rwanda constituted a threat to international peace and security in the region. The Council authorised 'operations aimed at protecting displaced persons, refugees and civilians at risk, using 'all necessary means to achieve these humanitarian objectives'. Humanitarianism was reiterated in the text of Security Council resolution 688(1991) which expressed grave concern over 'the repression of Iraqi citizens leading to a massive flow of refugees towards and across international frontiers and to cross border incursions, which threaten international peace in the region', demanding Iraq to end the repression immediately. If the line of authority espoused in Iraq and Rwanda is to be followed, the displacement of a large amount of the population, who have fled Syria following the political crisis in the country, certainly presents an international crisis and consequently constitutes a 'breach of peace' which falls within the ambit of Article 39, thus requiring enforcement.


TO BE CONTINUED

INTERNATIONAL ATOMIC ENERGY AGENCY ASKS IRAN TO CLARIFY ITS NUCLEAR INTENTION

Perhaps the most predictable conclusion to a report was reached by the International Atomic Energy Agency (IAEA), the UN’s nuclear watchdog in their summation that Iran had carried out tests “relevant to the development of a nuclear device”.

As a result, the IAEA passed a resolution stating its “deep and increasing concern” about Iran’s nuclear intentions. The resolution also requests Iran to proffer explanations which excludes the possibility of any intention to use its nuclear programme for military purposes. The IAEA however stopped short of referring the matter to the UN Security Council (UNSC).

The compromise resolution was agreed by countries including the US, Britain, China, France, Russia and Germany. The resolution is seen by some observers as evidence that the nations significantly involved in the decision-making process of global affairs and matters have the capacity to reach a consensus against the background of the prevarication which have they have previously displayed where situations have called for co-operation by the ‘big 6’.

Cynics will however argue that this effectively ‘watered down’ resolution will do nothing to prevent Iran from continuing its uranium-enrichment programme. The possibility of the imposition of sanctions muted by some permanent members of the UNSC was scuppered by the reticence of Russian and China in voting in favour of the same. The Iranian government however continues to deny that its uranium nuclear-enrichment programme is “specific to nuclear weapons”. Iran’s envoy to the IAEA stated in the aftermath of the publication of the report that its conclusion was politically motivated and that its enrichment programme is geared towards the development of fuel for use in nuclear power stations.

Nevertheless the prospect of a pre-emptive strike by Israel looms large on the horizon. Word emanating from senior members of the Israeli government namely, Prime Minister Benjamin Netanyahu, Defence Minister, Ehud Barak and President Shimon Peres indicates as such. Even if Iran is to be believed that its nuclear enrichment programme is not “relevant to the development of a nuclear device”, recent comments by Iran’s supreme leader, Ali Khameinei, pledging to “end the Jewish state” certainly do not help matters. As a postscript, 1worldinternational notes that Pakistan attained nuclear capacity in the not too distant past although its conflict with India has not escalated as some assumed.

However, in the present matter, one dreads the repercussions associated with Iran’s intention to attain nuclear capacity as it is inevitable that Saudi Arabia and other Arab states will seek nuclear weaponry arguing that the threat of Iran necessitates such a measure. In view of the latest developments, 1worldinternational will urge its readers to watch this space.

UN ACCUSES SUDAN OF ASSAULT ON SOUTH SUDAN REFUGEES

At least a dozen people of South Sudanese origin were reported dead on 11th November 2011 following the latest wave of onslaught from Sudan government forces. This latest attack follows the spate of bombings carried out by Sudan armed forces near the border separating both countries a few days earlier on 8th November 2011.

Hilde Johnson, head of UNMISS (United Nations Mission in South Sudan) confirmed that 2 bombs landed inside the Yida refugee camp and 3 outside of it. The refugee camp which suffered the attacks shelters 20,000 people in the country’s Unity State and comprises largely of individuals fleeing violence in the Sudanese states of South Kordofan and Blue Nile.

These recent skirmishes have led to fears that Africa’s longest running civil war which ended following a 2005 peace deal may be reignited. It was hoped that the independence of South Sudan, gained after many years of conflict, on 9th July 2011, would usher in a period of long sought-after stability which the region has been stranger to for generations. However, disputes over the sharing of oil revenue, the oil-rich Abyei border region and ideological differences have made the prospect of peace somewhat distant.

The UN Under Secretary-General for peacekeeping operations, Herre Ladsous briefed the UN Security Council at the end of the past week about the latest attacks, specifically highlighting the role of the Sudanese armed forces in the violence. These sentiments were echoed by the UN Human Rights chief, Navi Pillay, who has labelled the bombing of civilians an ‘international crime’ and called for an investigation into the bombing of the Yida refugee camp. The US has also voiced concerns over the safety of civilians and as a consequence has called for the cessation of hostilities in the region. “This bombing of civilians and humanitarian workers is an outrageous act, and those responsible must be held accountable for their actions”, said Jay Carney, the White House Press Secretary in a statement to the press. He continued: “The US demands the government of Sudan to halt aerial bombardments immediately”.

The latest conflict has led to the withdrawal of the British aid agency, Oxfam from the upper Nile area of South Sudan. This move is a significant blow to the refugees in the area as Oxfam is the only provider of clean water for people displaced by violence. However, the Sudanese government’s representative to the UN, Daffa-Alla Elhag Ali Osman has denied any responsibility on the part of his government for the bombings and added that its actions are aimed at rebels operating in the region. In a statement, Mr Osman stressed that the government fully respected the sovereignty and territorial integrity of South Sudan.

News of the latest attacks on civilians is no doubt troubling. Reputed press agencies, the Guardian and Voice of America recently reported findings by a US Satellite monitoring group which revealed that Sudan’s military was upgrading air bases near the border with South Sudan in order to enhance its air assault capacity. Observers worry that this is indicative of a clear intention by the government to launch a full scale aerial assault on its neighbours. President Omar al-Bashir’s government, which has been charged by the International Criminal Court (ICC) over attacks on civilians in the Darfur region of the country, is spreading itself thin in terms of its military resources, not least because of its continued operation in the Darfur region of the country, which is in addition to the operations in the South Kordofan and Blue Nile regions of the country which are allegedly aimed at engaging armed rebels based in those regions.

The protection of civilians and refugees is paramount and one hopes that the UN carries out immediately the investigation called for by Navi Pillay, the organisation’s human rights chief. An opportunity was lost by the UN and the international community to check the obduracy of the Sudanese government during the course of the Darfur conflict. Lives depend upon positive action being taken by the UN in response to these latest series of incidents. The lives of these refugees are the UN’s business.

ARAB LEAGUE SHOWS LEADERSHIP OVER SYRIAN CRISIS

On 6th November 2011, 1worldinternational published a story titled Syria: The Unsolved Problem. In the article, we recommended that tougher measures are needed to be taken against the government of Syria over the human rights abuses committed in its attempts to stifle the voices of anti-government protesters.

1worldinternational called for the imposition of sanctions, the commissioning of a human rights observer mission in the country, greater involvement by the United Nations and the United States and the increased support of the opposition by the international community.

Heart-warmingly, the Arab League has avoided the show of ineptitude exhibited by the African Union in handling the Libyan crisis. It was announced this week that following the emergency session of Arab League foreign ministers in Cairo, Syria’s membership of the organisation was to be suspended. In addition, sanctions were imposed against the government and opposition supporters have been invited to the Arab League headquarters in Cairo.

Perhaps the invitation of the opposition group may be an indication that the group, led by Burham Ghalian, may be a step closer to being recognised as the legitimate government of Syrian, thereby weakening the Assad regime rather significantly. Whether this ends the bloodshed remains to be seen. However, one can only applaud the brevity and courage shown by the Arab League in contrast with the prevarication and impotency displayed by the UN thus far.

SYRIA: THE UNSOLVED PROBLEM

On Saturday, November 5, the Reuters News Agency reported that clashes between Syrian government forces and protesters had resulted in the deaths of at least 5 civilians and injuries to dozens in the city of Homs. The continuing episodes of violence perpetrated by the Syrian government is starkly at odds with its promise to end attacks on protesters dissatisfied with President Bashar al-Assad’s administration over his failure to implement reforms in the country. The deaths on Saturday bring the total number of civilians killed since Tuesday to at least 82.

Followers of the Syrian uprising will recall that earlier in the week, President al-Assad’s government endorsed the five-point plan devised by the 22-nation Arab League which was aimed at bringing about a cessation of hostilities in the country. The peace plan in Cairo resulted in the following agreements being reached:-

• That there shall be an end to violence and killings
• That the Syrian government shall grant access to Arab and international media to monitor the situation.
• That the government shall release prisoners recently detained
• That the Damascus government shall remove all military equipment from Syrian cities
• That the government and opposition shall engage in dialogue within 2 weeks.

The Secretary-General of the Arab league, Nabil Elaraby fears that the violence which has resulted in the aftermath of the Arab League devised plan “would lead to catastrophic results for the situation in Syria and the region as a whole.” He added: “the Syrian government needs to take immediate steps to protect civilians.” Although the government has not released a press statement in defence of these latest actions, it is however inevitable that it will claim that its actions are aimed at Islamic militants and organised fighters as it has done in the past to justify its abhorrent use of force against civilians. The government’s attempts to crush protests around the country have led to the deaths of an estimated 3,000 people according to the United Nations.

Observers recall the sense of optimism which greeted President al-Assad’s assumption of leadership of the country and the ruling Baath party in 2000 following the iron-fisted 30-year rule of his father, Hafez al-Assad who spared no rod in quashing dissent. President al-Assad’s first deeds in power included sanctioning the release of political prisoners and easing media restrictions. However the air of change expected to have been ushered in by Assad junior never materialised, hence the 7-month long protests.

Following the failure of the Arab plan less than a week after its birth, stakeholders in the Middle East and the international community will surely be wracking their brains over the Syrian problem. There is certainly no appetite for NATO or international military action in the aftermath of the Libyan bombing raids undertaken by NATO. China and Russia, the latter with its significant business interests in Syria, namely arms sales, are likely to veto any moves for intervention in Syria as was the case early last month when they rejected a UN Security Council Resolution condemning the violence in Syria. To date, the US has taken a back seat in attempts to curb the violence with the sum total of its engagement being President Obama’s plea for President al-Assad to “step aside”. Any success in ensuring a stop to the violence in Syria will certainly require greater US and UN involvement.

It was hoped that the continued violence would result in the defection of Syrian Generals close to the president; however this has failed to happen, as such alternatives need to be considered. Therefore the UN approval of an observer mission and human rights monitors to operate in Syria in order to monitor and assess first-hand the claims and allegations of violence and human rights abuse by the Damascus government may yet be a proposal palatable to China and Russia who fear another Libya. To this end, the US and the other members of the Council must defuse the fears of the Russiana and Chinese by stressing that the observer mission is no prelude to the military action they fear may result if they agree to sanction a resolution regarding the Syrian problem.

In addition, the recently established Syrian National Council, a conglomerate of seven opposition groups akin to the Libyan National Transitional Council, was formed to create a singular voice for opponents of the Syrian government. Its Charter advocates press freedom, greater democracy, and political pluralism amongst others. The group led by Burham Ghalian, should be provided additional support and stronger backing, financial and otherwise by the international community. This backing will enable opponents to finance broadcasts, produce publications, and utilise social media in rallying opponents of the government. The backing will no doubt prop up and encourage the opposition in the face of attacks by the government.

Perhaps more effectively, sanctions and trade embargoes imposed by the UN, the EU, or Syria’s trade partners should be considered as they may be the most successful tool in bringing the government to its knees. The European Union ban on imports which commences in November will affect oil and gas export revenue, products which are said to account for a significant part of the Syrian government’s revenue. The ban is expected to deepen the Syrian economic crises which began following the government’s attempts to forcefully quell peaceful protests. Failing these, it is inevitable that the violence brought upon the Syrian people by its leaders will continue until the day the Chinese and Russians decide to put the interests of ordinary Syrians above that of its business interests.