The lawful road to Damascus by Alper Ali Riza*
Syria is in turmoil and Russia and China are not prepared to authorize any form of intervention that might force the hand of the Syrian government to show restraint in how it suppresses its opponents.
The question for a neighbor like Turkey is this: What can be done, in line with international law, to end the suffering of civilians caught in the crossfire?
The answer is as logical as it is obvious. It is to persuade Russia and China to change their mind. Nothing less will do, because the use of force in the absence of unanimous Security Council approval would be unlawful, and Turkish tradition and policy from Ottoman times has been to act in accordance with international law. The “use of force against the territorial integrity or political independence of another State” is contrary to Article 2(4) of the UN Charter, and states must tread carefully so as not to fall foul of this provision.
The use of force in the guise of humanitarian intervention is not an option, either. It is often deployed abusively, primarily by the West, in order to further more base motives. In any case, in the absence of authorization by the UN Security Council, even humanitarian intervention is not strictly permissible under international law, primarily because the need for such intervention is only uncontroversial when all members of the Security Council agree on such need.
The reason for these problems concerning the use of force is that the legal framework provided by the UN Charter was established after World War II to regulate relations between states regarded as internally unproblematic at a time when, owing to the terrible experience of the war, it was accepted that, in principle, the use of force could never be permitted as an instrument of policy, however much it was justified, except when used in self defense. There is little interest in watering down this principle as the philosophical cornerstone underpinning the legal framework of the UN Charter, but in practice it has raised both ethical and legal questions concerning the limits of the power of the international community to police wayward, failing and failed states that are unable or unwilling to provide protection to citizens within their own borders.
But we are where we are and, following the debacle over Syria at the UN, the focus of attention should move to Moscow and Beijing, as well as Washington. Russian and Chinese concerns need to be identified and addressed. Clearly, these two countries have interests, but they also have valid concerns and need to be persuaded to change their mind, either by the facts on the ground or by a differently worded resolution. The West is often dismissive of their concerns because they regard Russia and China as fundamentally uncaring and undemocratic. This may or may not be true, but in recent history the West has shown much less regard for the maintenance of international peace and security and the rule of law than Russia and China.
In the meantime, innocent civilians are being subjected to daily bombardment resulting in death and destruction. If Russia and China can be persuaded to engage in a fact-finding mission within Syria, with a team of military experts operating in the field so that the facts can be evaluated properly, with a view to reporting back to the Security Council, this may be a mild step forward. Their presence and purpose may itself act as a deterrent and provide some urgent relief to the civilian population.
*Alper Ali Riza, QC of Goldsmith Chambers, London, is a barrister and freelance writer.