Right versus might


Good move to give Russian-brokered compromise in Syrian crisis a chance.

NOBEL Laureate and US President Barack Obama must be congratulated for stepping back from the brink of war despite massive pressure from his defence establishment, some congressmen and many Israeli-Jewish lobbies.

He has agreed to give the Russian-brokered compromise a chance. Under it, Syria will surrender all its chemical weapons to international supervisors and will sign the Chemical Weapons Convention. Syria has agreed to submit to both demands.

The Russian proposal, though deeply flawed, deserves a chance. Its main defects are that it does not require the US-backed rebels to surrender their chemical weapons which, according to the UN-backed Inquiry by Carla del Ponte, they have used as recently as March.

Russia’s proposal does not forbid the US, EU and Israel from continuing to augment the rebels’ arsenal. For all practical purposes, the backers of the chemical attacks in March are in charge of the disarmament of Syria.

What is also disconcerting is that the US is not taking its finger off the war button. It continues to argue that its national security interests demand military action against Syria.

The illegality under international law of such an unprovoked war appears to be of no concern to any US policy maker.

Under the Charter of the UN, use of force is permitted in only two circumstances.

First, in legitimate self defence under Article 51. Second, under specific Security Council authorisation to maintain peace and security under Chapter VII.

The alleged right to “humanitarian intervention” claimed by US supporters under “customary international law” and the precedent of Kosovo has no solid legal basis.

First, customary international law is defined in Article 38(1)(b) of the Statute of the International Court of Justice as “evidence of a general practice accepted as law”.

Nikhil Shah informs us that most states, especially third world states, object to the doctrine of humanitarian intervention as is evidenced by a Declaration of the Foreign Ministers of 132 countries within Group 77.

Second, on several occasions the UN has refused to accept this doctrine. For example, India’s intervention in the civil war in East Pakistan (now Bangladesh) was rejected by the Security Council and the General Assembly.

Vietnam’s military intervention in Cambodia to end Pol Pot’s atrocities was not approved.

During the Kosovo war, Russia and China condemned NATO’s so-called humanitarian intervention.

Third, the ICJ in Nicaragua v US (1986) concluded that customary law prohibits coercive military intervention in the internal affairs of another state.

Fourth, the Security Council is already empowered under Chapter VII to respond with force if necessary to uphold the UN’s fundamental purposes.

Fifth, if the Security Council is deadlocked, collective action could be sought by a Uniting for Peace Resolution in the General Assembly.

Sixth, the UN can set up special international courts such as in Yugoslavia, Rwanda and Sierra Leone. If the Security Council is deadlocked, the International Criminal Court can assume jurisdiction.

Seventh, the doctrine of humanitarian intervention is a tool of the strong over the weak for imposing selfish and bloody political agendas. We all know about the regime change and the US conquest of Iraq on trumped-up charges.

Eighth, the doctrine is used selectively and with a racial and religious bigoted way. Genocide and crimes against humanity in Palestine are not viewed by US State Secretary John Kerry as “moral obscenities” but an unproved allegation against Assad of using chemical weapons (which use he attributes to the US-EU backed rebels) is seen as sufficient ground for intervention without UN authorisation!

Ninth, some of the Western nations that are pontificating about humanitarian intervention are actually history’s worst violators of humanitarianism. For example, the US has bombed 26 countries since World War Two – e.g. Afghanistan from 1998 to the present; Iraq from 1991 to now. Let there be no mistake about it: “Bombs and missiles do not discriminate between the innocent and the culpable.”

The US has a horrendous record of using atomic bombs, depleted uranium, white phosphorus, cluster bombs, anthrax and agent orange. Its torture centres in Guantanamo, Abu Ghraib, Bagram and around the world are notorious. It practises democracy at home but brutalities abroad.

Its bombing of Syria, when it comes, will be even more indiscriminate than the alleged use of poison gas by Assad’s forces. It does not make sense to argue that because Assad (allegedly) violated international law, therefore there is justification for the US to rip up the UN Charter (once again) to pursue an illegal war!

Friends of the US are entitled to ask: “Has this once great nation not learnt anything from the Iraqi pile of lies and horrors? If the US starts another illegal war in Syria, does it have a flag large enough to cover the shame of killing innocent people?”

American politicians and generals must also remember that if they participate in war crimes, they will be subject to the Nuremberg Principle IV: “The fact that a person acted pursuant to an order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him”.

In summary, when a country takes it upon itself to displace by force of arms, and without authority of the UN, a government or administration that it disapproves of, this is naked aggression and an international crime. The Nobel Laureate in Washington will, I hope, summon the power of his soul to reject the carnage of war.

> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM. The opinions expressed here are entirely his own.

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Opinion , shad faruqi

   

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