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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.

Franklin Lamb is doing research in Syria and can be reached c/o fplamb@gmail.com

 

 

 

 

Franklin Lamb is a visiting Professor of International Law at the Faculty of Law, Damascus University and volunteers with the Sabra-Shatila Scholarship Program (sssp-lb.com).

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