Last week's deadly Syrian chemical attacks on civilians opposing the besieged government of Pres. Assad involve interesting legal issues in Public International Law.
Under International Humanitarian Law (IHL), as exemplified by the 1949 Geneva Convention and as prosecuted under the 1998 Rome Statute creating the International Criminal Court (ICC), genocide, "ethnic cleansing", abuses against internally displaced persons (IDPs), attacks on civilians and civilian sites and properties, and other war crimes that qualify as "crimes against humanity" (a) violate established international norms of conduct of states and state leaders and (b) must be investigated, rectified and remedied - and the guilty state and its guilty leaders punished - pursuant to the United Nations (UN) Charter and other applicable treaties.
Since the 1960s/1970s, various treaties/conventions and follow-up protocols have entered into force under the auspices of the UN specifically intended to control the proliferation, development, manufacture, and deployment of bio-chemical weapons and nuclear weapons.
Under the UN Charter, the Security Council (SC) has original and exclusive jurisdiction to deliberate and act on serious international peace and order issues/incidents.
Two of the 5 "permanent members" of the SC, i.e., Russia and China, support Syria. They oppose any unilateral US military intervention in Syria.
A "permanent member", such as Russia and China, pursuant to its "veto right", has the power to abort the passage of any SC resolution, depending on how it views its "national interest" in relation to the "global interest" with respect to a pending SC matter, e.g., resolution imposing sanctions, deploying UN peacekeepers, authorizing direct military intervention, and the like.
The UN inspection team has yet to submit this week to the UN SC its final technical report on the chemical attacks that took place last week in a rebel-controlled area in Syria which killed 1,500 civilians, most of whom were school children and civilians.
Syrian president Assad blames the rebels. The rebels blame him.
US Pres. Obama says the US government has proofs that Pres. Assad and the Syrian Army are the guilty parties, not the rebels.
The other day Obama said he was prepared to unilaterally attack Syria (without necessarily sending US soldiers to Syrian territory) with or without an international "coalition of the willing" in support of his position (the tactic used by former US Pres. Bush in the 2003 in the case of the unilateral US war on Iraq) and with or without a formal UN SC resolution allowing such a direct military intervention in Syria (which was the case in the Iraq war).
Yesterday, however, to play safe, Obama formally asked the US Congress for its support to his plan to launch direct military actions against Syria (initially, missile attacks from the 5 US warships now deployed in the area against selected Syrian military targets to destroy its bio-chemical weapons, among other things) without necessarily giving up his "presidential war powers and prerogatives" under the US Constitution.
Under the US Constitution, as in the case of the 1935, 1973 and 1987 Constitutions of the PH, only Congress may "declare a state of war".
But US jurisprudence respects the prerogative of the Executive to take unilateral military actions against any state at any time, even without prior congressional approval, as may be warranted by the circumstances, in order to protect the national interest ("presidential war power").
Is it in the national interest of the US to launch direct military actions against Syria?
This is the controversial question that concerns both the US Congress and the general public now.
Obama's theory is that as the democratic leader of the world, the US must enforce all international treaties/conventions against the proliferation and use of bio-chemical and nuclear weapons to avoid further bloodshed among innocent civilians in Syria.
If the UN SC unanimously passes a resolution to that effect, well an good.
If the UN SC fails to do so, because of the legal paralysis caused by the "veto action" of permanent members Russian and China, hence, rendering the UN incapable of enforcing International Humanitarian Law and applicable treaties against the proliferation and use of bio-chemical and nuclear weapons, then the US must be prepared to do its moral and legal duty, alone, to uphold the rule of law in the international community and to prevent further genocide in Syria, Obama argues.
It will noted that in the case of the 2003 US war on Iraq, as part of the overall US was on terrorism after the 9/11 attack in New York, the same had prior formal congressional resolution approving it but it had no prior formal UN SC resolution authorizing it.
The UN SC, however, in effect, RATIFIED the 2003 US war on Iraq by subsequently adopting resolutions intended to systematize the application of the provisions of International Humanitarian Law in Iraq to protect its civilians, e.g. relief operations, assistance to refugees, deployment of UN inspectors, and the like.
The same scenario took place in the earlier case of the humanitarian war of the NATO in Kosovo in Serbia in the late 1990s.
Upon the insistence of then US Pres. Clinton, in the midst of the horrors of ethnic cleansing and genocide against Kosovo/Serbian Muslims at that time, the NATO launched unilateral military actions there to save the Muslims even without a prior UN SC resolution authorizing the same.
The UN SC in effect ,RATIFIED the NATO attacks in Kosovo/Serbia by passing a resolution intended to systematize the application of the provisions of International Humanitarian Law there and the deployment of UN inspectors and peacekeepers.
History has shown that the NATO humanitarian military actions in Kosovo/Serbia were morally right and politically warranted.
It led to the prosecution of guilty Serbian war criminals by a special war crime tribunal created by the UN SC and the creation of an independent state that protects the rights of the Muslims and other cultural and religious minorities.
It seems the same scenario will happen in the case of Syria, where a possible "regime change" is the (silent) goal, following the past Kosovo/Serbia and Iraq scenarios.
I noticed that for the past 15-20 years there seems to be a growing trend in public international law to look with liberality to unilateral direct military actions of concerned leading states (e.g., US, UK, France) and their regional military organizations (e.g., NATO) which are intended to enforce the provisions of International Humanitarian Law in cases where the UN SC is unable to move with unanimity and decisiveness.
What is the political/economic future of Syria in particular and the Middle East in general in relation to world peace and security in light of the foregoing legal issues and war scenarios?
I leave that question up to political and economic experts to analyze and forecast.
- Atty. Manuel J. Laserna Jr.
Las Pinas City, PH
