Summary of ASIL/UNA Program: Support for the Syrian Insurgency

“Support for the Syrian Insurgency: What UN and International Norms Apply?” was held at the Tillar House on May 29, 2013. Mona Yacoubian first provided background. Three “dynamics” have been consistent since the outset of the Syrian crisis and help to explain how the conflict morphed from peaceful protests to sectarian civil war. First, the Syrian regime viewed the protest movement, although initially peaceful, as an existential threat. Secondly, the opposition was divided and had no common vision for a post-Assad Syria. Finally, there was no international consensus on how to respond to the Syrian crisis. Syrian spillover has already affected neighboring countries, particularly Lebanon and Iraq. As a result, U.S. policy perforce reflects “a strong degree of caution.”

Prof. Deeks outlined four options by which states such as the United States might decide to provide assistance to the Syrian rebels: 1) assistance authorized by a UN Security Council resolution as in Libya (an option that appears unfeasible given the Russian Security Council veto); 2) “intervention by consent,” which would require the United States to recognize the rebels as the lawful government of Syria (something it has not yet done); 3) material assistance to the rebels, which would implicate the prohibition contained in Article 2(4) of the UN Charter if it constituted lethal assistance or training; and 4) invocation of the concept of “humanitarian intervention,” a highly-debated concept by which states may use force in other states to prevent massive war crimes or crimes against humanity. The United States has not recognized this as a legal concept to date. If the United States decided that it faced an imminent threat of an armed attack from al Nusra (an al Qaeda affiliate), the United States might decide to use force in anticipatory self-defense.

Allan Gerson said that overt help or our humanitarian aid ($510 million) is not at issue here, but lethal assistance is. The key is the “perception” of whether action taken is a violation of international law; use of force is not justified until the rebels control a substantial portion of the country.

He maintained the U.S. must answer three questions: (1) “What do we want” as a nation? Despite wholesale slaughter of over 100,000 there is no “appetite” for intervention; (2) “Does intervention protect our vital national interests, e.g., against a nuclear threat from Iran? Undermine our relations with Russia? Protect our planes being shot down by a superior air defense under a “no fly zone” intervention? (3) What are the cost/benefits of intervention if international law is violated enabling Russia and China to “call out” the U.S. for violating Chapter 7 of the UN Charter, especially as the “R2P” (right to protect) doctrine does not clearly apply in this instance as it did in Libya. Our use of that UN resolution for “regime change” is seen to have exceeded the intent of the UN resolution.

Gerson agreed that as Syria is not Kosovo nor Libya given Syria’s superior air defenses strengthened by Russian assistance, the U.S. has shifted to “dialogue diplomacy” as a means of dealing with the struggle for hegemony between the Sunni and Shia.

During the “Q&A” the panelists indicated that the French intervention into Mali was not comparable to intervention in Syria, since the French forces were invited in by the Malian government, whereas there is no such government (of insurgents) in Syria. Providing non-lethal assistance to insurgent forces outside Syria would be legal under international law as an outside state is not entering into Syrian territory to provide that assistance. In response to an R2P question, it was stated that, as a policy matter, no one will enter another country to help if their own security is not guaranteed. For Russian policy to change, its national interests must be served. The panel concluded that the most viable way out of the present impasse is through non-military means and use of diplomacy, although diplomacy faces increasingly difficult obstacles as the situation on the ground inside Syria continues to deteriorate. .. The clear implication one took away from this panel discussion is that the absence of a united Syrian opposition makes it difficult for any state to contemplate the use of force in support of the opposition, whether or not international norms authorizing the use of force would permit such support.

Panelists:

  • Davis Robinson (Moderator), Senior Counsel, International Dispute Resolution Group, Crowell & Moring, LLP
  • Ashley Deeks, Associate Professor of Law, University of Virginia Law School; former assistant legal adviser for political-military affairs, U.S. Department of State
  • Mona Yacoubian, Director, Pathways to Progress: Peace, Prosperity and Change in the Middle East, a joint initiative: the Stimson Center & George C. Marshall Foundation
  • Allan Gerson, Chairman of AG International Law; recognized as the first attorney to engineer a practical basis for suing foreign governments for acts of terrorism

Prepared by Dick Rowson, for UNA-NCA’s International Law Committee

Posted June 14, 2013 in: General News