Will Syria Go on the Offensive at The Hague?
by FRANKLIN LAMB
La Maison d’Avocats, Damascus.
Even before the historic 139 to 8 vote of the UN General Assembly on November 29 of this year which opened up a plethora of legal remedies for Palestinians, a “legal intifada” — to borrow a phrase from Francis Boyle, Professor of International Law and a longtime advocate of advancing resistance to the illegal occupation of Palestine through the rule of law — has been taking form in this region.
The reasons include nearly seven decades of countless Zionist crimes against Muslims and Christians in occupied Palestine and far beyond. As Professor Boyle has suggested, the opportunities presented to the PLO by the lopsided UN vote “…can mean numerous available legal remedies ranging from the securing of a fair share of the gas deposits off the shores of Gaza, control of Palestinian airspace and telecommunications and, crucially, bringing the Zionist regime to account at the International Criminal Court and the International Court of Justice.
Syria too, currently under enormous pressure from international interference into the internal affairs of the country and the subject of an intense regime change project led by the US and France, has international legal remedies immediately available to it stemming from the actions of the US, UK, France and others in imposing on Syria’s civilian population one of the most severe and clearly illegal layers of sanctions. Were Syria and others to file an Application for an Advisory Opinion with the ICJ few in the international legal community have much doubt that targeting civilians economically and attempting to destroy the Syrian economy — for no other purpose than to ignite rebellion — would be considered a violation of international law at the International Court of Justice.
Granted there are some potential jurisdictional problems given that Syria has not yet accepted the Article 36 Compulsory Jurisdiction of the World Court, as provided in the Statute of the Court, and the strong campaign at the UN that would certainly be waged by the Obama Administration to challenge ICJ jurisdiction to hear a case on behalf of Syria and its civilian population, but they can be overcome. As a general rule, an Advisory Opinion requires a simple majority affirmative vote by the UN General Assembly or an Application by one of the designated UN Specialized Agencies. This might be a tough job to secure the former but it is doable with the latter. Moreover, should Syria accept the compulsory jurisdiction of the ICJ it could likely quickly resolve the issue of sanctions by claiming a legal dispute with one or more states that also accept CJ and are supporters of sanctions. For example, the UK, France and their NATO and Gulf allies.
Aspects of a possible filing at the International Court of Justice on the legality of US-led sanctions are currently being researched by seasoned international lawyers and academics, at various Western and International law centers. Supporting efforts being worked on include drafting amicus curie briefs on the issue of the legality of the US-led sanctions to be submitted to the Court, plans for securing the widest possible political support for challenging the US-led sanctions from among Non-Aligned Movement countries, international peace groups, NGO’s, pro-peace websites, bloggers, social media and online activists as well as organizing a skilled media center to disseminate information about the case including quickly publishing, in paperback book form, one of the key Annexes to be submitted to the ICJ upon filing the Application. This volume will present Syrian government and International NGO prepared data on the inhumane effects of the US led sanctions in all their aspects, including by not limited to children, the elderly and the infirm, plus the effects of the US-led sanctions on the Syrian economy generally, i.e. consumer goods, medical delivery systems, financial institutions, currency values and related aspects of the lives of the civilian population of Syria.
Were Syria, and others, to take the illegal and immoral US-led sanctions case to the World Court and other available venues, they would shift their diplomatic position from a defensive status to taking the offense. Such a bold initiative would advance accountability under international law and, because the ICJ would likely grant a Petition for Interim Measures of Protection, the US-led sanctions could be suspended during the course of the judicial proceedings. Obviously this lifting/freezing of the sanctions would immediately and directly inure to the benefit of the Syrian civilian population, including the half million Palestinian refugees in Syria as well as thousands from Iraq.
This would work in concert with the “THREE B’s”, to borrow a phrase from Russia’s top middle east envoy, Deputy Foreign Minister Mikhail Boganov, referring to Mr. Brahimi, Mr. Bogdanov, and Undersecretary William Burns, a former ambassador to Moscow, who would be urged to intensify their focus on achieving a diplomatic resolution of the Syrian crisis based on modified June 2011 Geneva formulation of a transition period leading to the 2014 elections.
According to several International lawyers surveyed between October and December, 2012, Syria clearly has the facts of the US sanctions case in its favor and there are ample solid legal theories to argue to and convince the World Court. Under the ICJ Statute, the Court must decide cases solely in accordance with international law. Hence the ICJ must apply: (1) any international conventions and treaties; (2) international custom; (3) general principles recognized as law by civilized nations; and (4) judicial decisions and the teachings of highly qualified publicists of the various nations. From this body of international law the International Court of Justice would find ample basis to support Syria’s claims not only for the benefit of its civilian population but also to advance the rule of law in the global community.
The ICJ is made up of 15 jurists from different countries. No two judges at any given time may be from the same country. The court’s composition is static but generally includes jurists from a variety of cultures. Among the Principles, Standards and Rules of international law that Syria may well argue to the World Court, may include but not be limited to, the following:
The US led sanctions violate international humanitarian law due to the negative health effects of the sanctions on the civilian population of Syria. This renders the sanctions illegal under international customary law and the UN Charter for their disproportionate damage caused to Syria’s civilian population;
The US led severe sanctions regime constitutes an illegitimate form of collective punishment of the weakest and poorest members of society, the infants, the children, the chronically ill, and the elderly;
The US, France and the UK, as well as their allies, have violated the UN Charter by their imposition of severe economic sanctions and threats of military force. The United States, Israel, and some of their allies, regularly threaten Damascus with the “option” of a military strike. The ICJ has ruled previously that “A threat or use of force is contrary to Article 2, paragraph 4, of the UN Charter and fails to meet all the requirements of Article 51, is therefore unlawful”. It has further ruled that “A threat of use of force must be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with threats to members of the United Nations.”
Moreover, unilateral US sanctions, without the imprimatur of the United Nations are blatantly illegal under International Law because they are in fact multilateral and impose penalties on any country which opposes the sanctions or does not choose to participate in them;
The US led sanctions amount to an Act of War given their effects including hardships on the general public and that Syria therefore has a legal right to Self-Defense.
The US led sanctions, given their design and intent, constitute acts of aggression against Syria in violation of Article 2 (4) of the UN charter.
The indisputable facts of the US led sanctions case warrant the imposition by the ICJ of Restraining Orders designed to prevent any type of blockade or no-fly zones in Syria and the immediate cessation of the imposition of further economic sanctions against Syria, and also their efforts of securing more sanctions against Syria at the United Nations Security Council. The Restraining Orders, under the umbrella of Interim Measures of Protection, would presumably also seek to prohibit the US and its allies from the Persian Gulf region and elsewhere, from advocating aggressive military actions against Syria, including supplying funding, weapons, and jihadists, as well as Western “Special Forces” currently pouring into Syria from its northern border with Turkey and to negotiate with the Syrian government in good faith to end the current crisis.
Syria can legitimately claim, and would presumably argue at the ICJ and other international forums that the bi-lateral or multilateral economic sanctions, led by the US and its Gulf allies, Qatar and Saudi Arabia, are illegal, indeed criminal due to their assault on international humanitarian law and required state practice.
Syria could successfully argue, according to a recent survey of international lawyers conducted in Brussels and The Hague, as well as within Syria’s Maison d’Avocats, that the US led sanctions violate the international law principle of Non-intervention in the internal affairs of UN member states and that the stewards of these sanctions could themselves be subject to international sanctions plus compensatory and punitive damages for the benefit of their victims.
In summary, as Germany’s Green Party, and increasingly, legal scholars and human rights organizations generally are insisting, sanctions against Syria’s civilian population fundamentally violate international law.
Should NATO sets up a no-fly zone and were to launch airstrikes against Damascus, it can and should immediately be sued at The Hague and if the situation deteriorates NATO can and should be held to account for targeting Alawites and Christians on the basis of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. All participating countries, 142 to date, are obliged to prevent and punish actions of genocide in war and in peacetime. Article 2 of the Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, elements of a national, ethnic, racial, or religious group including killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
Despite Syria’s strong case on both the facts and the law, and the diversity in structure and composition of the International Court of Justice, the International Tribunal has a few times over the years been criticized for favoring established powers. Under articles 3 and 9 of the ICJ Statute, the judges on the ICJ should represent “the main forms of civilization and principal legal systems of the world.” This definition suggests that the ICJ does not represent the interests of developing countries. Nevertheless, the World Courts record has been by and large exemplary in applying principles, standards and rules of international law both in contested cases and advisory opinions and Syria has an excellent opportunity to protect its citizens, thwart US and Israeli designs on the region, and advance international accountability — all to the inestimable benefit of all people and nations.
Syria, which the US and Israel and their allies are today working to keep off balance and on the defensive diplomatically, should consider immediately filing an application with the International Court of Justice, and use all other available international legal, political and humanitarian tribunals, to directly challenge and boldly confront the US led sanctions campaign against its people. The Syrian Arab Republic, by taking the offensive at the World Court and elsewhere, will help relieve the enormous pressures on its civilians and advance the principles, standards and rules of international law—for the benefit of all mankind.