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International Law

Humanitarian Crisis in Syria: International Law, Genocide and the Responsibility to Protect

 by John M. B. Balouziyeh

 1 Introduction

The Syrian Civil War has triggered a humanitarian crisis of biblical proportions. At the time of this writing, 4.3 million Syrians had registered with UNHCR and at least 7.6 million more had been internally displaced within Syria. Today, more than half of the Syrian population has been displaced, a phenomenon almost without precedent in human history.

Each year, the headlines deliver record numbers of civilian war casualties as the methods and weapons of war grow more savage—from landmines and barrel bombs, to chlorine gas and sieges. We continue to read of armed groups deliberately destroying civilian property, employing treachery, using incendiary weapons in populated areas, killing the injured and prisoners of war, and egregiously violating the laws and customs of war.

The war has continuously generated horrific images that have haunted the world. In September 2015, an image of drowned three-year old Aylan Kurdi, washed up on the shores of Turkey, dominated news headlines. In January 2016, images of starving civilians trapped in Madaya and other besieged cities in Syria shocked the conscience of mankind. Parties to the conflict may soon need to resort to biological, toxic, nuclear, or other weapons of mass destruction to maintain the shock value of their barbaric acts.

Given the extent of Syrian’s humanitarian crisis, many are left wondering: how can the international community stand by idly while women, children, and other innocent civilians are slaughtered or rendered homeless by the millions?

The Syrian government and its allies argue that an intervention absent the regime’s invitation and consent would constitute an affront to the principle of state sovereignty and, absent a U.N. Security Council resolution authorizing the use of force, would violate international law. Many prominent members of the international humanitarian community, in contrast, relying on the emerging doctrine that has come to be known as the Responsibility to Protect (R2P), argue that the duty of the international community to protect the Syrian population from heinous crimes trumps the principle of state sovereignty. While interfering with a state’s sovereign affairs might contravene the U.N. Charter and damage the international legal order, they argue, failing to act while human beings are slaughtered would run wholly contrary to the spirit, principles, and intent of the U.N. Charter.

Despite all of its merits, the R2P doctrine remains under a shadow of controversy and lacks consensus among legal scholars. Far from constituting a binding source of international law, it stands on shaky ground. Armed only with the R2P doctrine, interventionists must often resort to applying political pressure on world powers to intervene in Syria, without a solid legal basis to justify an intervention.

All of this is about to now change. The 17 March 2016 declaration of the United States Department of State and the 4 February 2016 resolution of the European Parliament declaring Islamic State violence against Christians, Yazidis, and other religious minorities to be genocide dramatically change the legal debate surrounding a humanitarian intervention in Syria. Now, for the first time since the Syrian civil war broke out in 2011, interventionists have legal grounds to justify an intervention and invoke the duty to act to “prevent and to punish” acts of genocide, as required under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention or CPPG).

Western governments’ recognition of genocide in ISIS-occupied territory is a welcome development that will boost the defense of religious minorities under international law in an undeniable way. The recognition of acts of genocide provides the legal framework for an intervention on humanitarian grounds to allow for the creation of safe zones, humanitarian corridors, and other demilitarized zones in Syria and Iraq that previously was not possible duty to considerations of state sovereignty. [footnotes omitted]

In this article, we will examine the R2P doctrine, analyze controversies surrounding its application and contrast the doctrine with treaties that invoke a binding duty to act under international law, focusing on the latter as the tool on which interventionists should rely as a justification for a humanitarian intervention with the potential to save lives of innocent civilians trapped in ISIS-occupied territories.

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