President Bashar al-Assad's government has used brute force to crush a genuine popular upheaval against his regime. The death toll is nearly 6,000. Human rights have been systematically violated. But the crucial question is how and what steps can international society lawfully take to bring an end to the crisis.
Libya is not a model for emulation but a warning to heed; more so, Iraq. Each was a split polity surviving on fragile unity. The Syrian regime, however unpopular, is supported by a significant section of people. Regime change through outside intervention wreaks havoc, violates the United Nations Charter, the rules of international law, and undermines the stability of the world order. These fundamentals must not be overlooked.
At the root of Russia and China's veto of the resolution on Syria in the Security Council on February 4, lies distrust, deep and justified. The world was taken for a ride twice by the Council's resolutions which did not authorise the use of force, but came in handy as fig leaves to cover the nudity of illegal recourse to war.
Obama's fatwa
Statements made in the Council as well as their texts establish that Resolution 1441 of November 8, 2002, did not authorise an attack on Iraq. Nor did Resolution 1973, adopted on March 17, 2011, authorise the use of force against Libya. However, on February 26, President Barack Obama delivered a fatwa on Col. Muammar Qadhafi: “He should go.” Now, on February 4, the very day the UNSC was to vote on the resolution on Syria, he peremptorily declared apropos President al-Assad: “He must step aside and allow a democratic transition to proceed immediately.” Few would believe Hillary Clinton when she said, on January 31, “there is no intention to seek any authority or to pursue any kind of military intervention”.
Suspicions of plans for regime change are justified. “Then you will start telling what King needs to resign and what Prime Minister needs to step down. This is not the business of the Security Council,” Russia's Ambassador to the U.N. Vitaly Churkin remarked on January 31.
Textually, the resolution is misleading. It “calls for an inclusive Syrian led political process” but adds it “fully supports in this regard the League of Arab States' 22 January 2012 decision to facilitate a Syrian-led political transition to a democratic, plural political system, … including through commencing a serious political dialogue between the Syrian government and the whole spectrum of the Syrian opposition under the League of Arab States' auspices, in accordance with the timetable set out by the League of Arab States; Encourages the League of Arab States to continue its efforts in cooperation with all Syrian stakeholders.”
As Neil Macfarquhar of The New York Times reported: “Three clauses that endorsed specific aspects of the Plan — including that Mr. Assad delegate his authority to his vice-president to speed a transition to democracy — were removed. But Arab and Western diplomats said the essential idea remained, even if it was not spelled out.”
‘Demands, does not recommend'
The Resolution, obviously adopted under Chapter VII, “demands,” does not “recommend.” It says: “Demands that the Syrian government, in accordance with the Plan of Action of the League of Arab States of 2 November 2011 and its decision of 22 January 2012, without delay.” Six steps are listed. Finally, the Council “Requests the Secretary General to report on the implementation of this resolution, in consultation with the League of Arab States, within 21 days after its adoption and to report every 30 days thereafter. Decides to review implementation of this resolution within 21 days and, in the event of non-compliance, to consider further measures.” Of what avail the disavowal “Nothing in this resolution authorizes measures under Article 42 of the Charter” when the threat is implicit in the text itself? The League's Plan which is endorsed provides for Mr. al-Assad to step down.
Bashar al-Assad is no pushover. Diplomacy should seek his consent to a plan which leaves him in office but ensures a democratic transition. The resolution is not an aid to diplomacy but an instrument of duress. The Arab League and its Western backers were impatient on regime change.
Regime change has furtively acquired certain respectability. Time there was when Gladstone told the House of Commons on April 2, 1880 that “the rights of a Power, the rights of a nation, ought not to be invaded because it happens to have the misfortune of a despotic government.”
The law was laid down by the International Court of Justice on April 9, 1949, in the Corfu Channel case: “The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever the present defects of international organization, find a place in international law. … from the nature of things it would be reserved for the most powerful States; …” These words are more relevant now than they were in 1949. This was reaffirmed in the Nicaragua case in 1986. The Court rejected intervention at a “request for assistance made by an opposition group in another state.”
The collapse of the USSR in 1991 opened new vistas of the play of power. In 1986, a British Foreign Office Policy Paper noted that “the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention”. In 1992, the Foreign Office held: “international law develops to meet new situations; we believe that international intervention without the invitation of the country concerned can be justified in cases of extreme humanitarian need.”
In this clime came R2P. In an inspired moment in 2000, the Canadian movement picked on the egregious Gareth Evans of Australia, with Mohamed Sahuom of Algeria, doubtless both of undying reason, to co-chair an independent International Commission on Intervention and State sovereignty. They coined the phrase “responsibility to protect”.
The doctrine was not accepted by the U.N. General Assembly on September 14, 2009, after a long debate. On September 24, 1999, Foreign Ministers of the Group of 77 “rejected the so-called right of humanitarian intervention, which has no basis in the UN Charter or international law”. This represents the opinion of 132 states; 33 Asian, 51 African, 22 Latin American, and 13 Arab states.
Crisis of legitimacy
Such an intervention inevitably entails regime change. One suspects that change is the main objective; human rights violations are a pretext for it. Witness the deafening silence on outrages by the favourites. Beneath the crisis in the U.N. system lies a deeper crisis of the legitimacy of an order which is devoid of an international consensus. That can be restored only by a wide consensus. We face a genuine humanitarian problem. Remember Biafra, Cambodia, Rwanda and Darfur.
Russia's Foreign Minister said on February 4 that the resolution on Syria was not “hopeless” and that “we support the call of the Syrian people for change.” There was ample room for compromise. There is still time for that — a U.N. Mission comprising members of high credentials can go to Syria to bring about a settlement which leaves Mr. al-Assad in office but ensures democratic transition.
India's Permanent Representative to the U.N., Hardip Singh Puri, said “the main role of the international community, including this Council, is to facilitate engagement of the Syrian government with all sections of Syrian society.” Nominating its adversary, the Arab League, to accomplish tasks set by the Resolution is no way to secure that “engagement.”
