Why Has International Law Been So Futile in Syria?

Approaching the Ninth Year of the Syrian War- Why Has International Law Been So Futile?*

A new book on the Syrian war discusses this question and other key issues in the Syrian war. Some of the answers are summarized here.

Bloodshed in war- torn Syria has not ceased since the beginning of the Syrian war in March 2011. After almost nine years of war, the rebelling forces have not succeeded in ousting Bashar al- Assad, and yet, neither has Assad completely regained control in Syria. Battles in Idlib- the last rebels’ stronghold- that continue as of this writing, keep raising the death toll of the war and the number of refugees and displaced persons. Syria is destroyed and devastated and the peace initiatives headed by Russia and Turkey seem to be leading nowhere.

Being one of the longest and dreadful civil wars in the twenty- first century, one question still pokes out: why have the international community and international law been unable to suggest effective solutions for this seemingly endless conflict, if not completely stopping it?

The answer is complex and rests on both legal and political reasons. It is well known that international law, as Sir Hersch Lauterpacht famously recounted, rests “in the end of law.” Several interpretations can be ascribed to this statement, and one of them is that international law is among the weakest branches of law. Its Achilles’ heel is enforcement, that is, in many cases, international law has no significant ability to enforce its rules.

Inability to enforce is a major characteristic of the international community’s activities is Syria. In December 2016, The United Nation’s General Assembly has set up “the International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic since March 2011.” The mechanism’s mandate is to prepare the ground for fair and independent criminal proceedings (either in national or international tribunals) with regards to violations of international humanitarian law and human rights violations committed during the Syrian conflict.

However, neither has an independent national court nor an international tribunal met the challenge; and President Assad (though not the only person accountable for international crimes but perhaps the most notorious one in Syria) is under no threat of arrest for such crimes. The international criminal court- the ICC- probably the most “natural” court for such proceedings is incapacitated in this case. Because Syria is not a party to the Rome Statute (which is the ICC’s founding treaty), an investigation of the Syrian conflict can be authorized only by a UN Security Council’s decision. Such a decision cannot be reached when Russia vetoes it, as it has consistently done since 2015.

The Russian and the Chinese veto has also impeded other UN Security Council’s initiatives regarding this conflict, such as a draft resolution from December 2019, suggesting to add a crossing point in Turkey for Syrian refugees (in addition to the two that already exist in Turkey and single ones in Jordan and Iraq).

Yet, it is not only the UN’s structure and mechanism that inhibit international community’s actions to alleviate the suffering in Syria. It is also the superpowers’ contrasting political interests in the area that prevented an international armed operation. While Russia is interested in protecting Assad’s government, the US and other Western superpowers had no will to risk the lives of their soldiers in order to protect civilians in a foreign country. Therefore, they could and did also use the pretext of the prohibition under international law to invade the territory of an independent state, without its authorization.

Truly, the concept of Responsibility to Protect (RtoP, also called humanitarian intervention) can be raised as a counter argument to justify such an international intervention. This was argued when the Syrian government attacked the rebels, civilians included, with chemical weapons. However, again, the superpowers clung to the weakness of the RtoP doctrine under international law, and the warnings raised against it being exploited for unworthy purposes, such as colonial expansion.

The conclusion is almost as despairing as the ongoing misery of the conflict. The Syrian conflict stands out in its singularity in comparison to former similar bloody conflicts, such as the civil wars in former Yugoslavia and the genocide in Rwanda. In those cases,  the international community was more united and managed to act both militarily (against Milosevic tyrant regime in Serbia) and legally after the fact by establishing the ad hoc tribunals for trying those accountable for international crimes (in the Hague- for the conflict in former Yugoslavia and in Arusha, Tanzania, for the conflict in Rwanda). However, in the Syrian case, none of such initiatives was implemented, as the different and contrasting interests of the superpowers worked against such actions and international law was used or perhaps misused to justify the inaction.

A different version of this post was originally published on IntLawGrrls website.

About the Author
Dr. Moodrick-Even Khen is a lecturer of public international law at Ariel University. She is an expert in international law, focusing especially on international humanitarian law (laws of war), international criminal law, and the philosophy of law, especially in the field of the laws of war. Dr. Moodrick-Even Khen published three books.The Syrian War: Between Justice and Political Reality (co-edited with Nir Boms and Sareta Ashraph, Cambridge UP, 2020); National Identities and the Right to Self -Determination of Peoples: "Civic- Nationalism- Plus" in Israel and Other Multinational States (Brill/Nijhoff, 2016); Terrorism and International Law: Combatants and Civilians in Modern Battlefields (the Hebrew University of Jerusalem, 2010) [Hebrew].
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