Preventing Atrocity Crimes in Syria: The Responsibility to Protect
Has the Syria crisis finally reached the tipping point for intervention? In Aleppo, Human Rights Watch reported that Syrian aircraft have been deliberately bombing breadlines.
 In Houla, government shabiha militias executed over one hundred people, including 49 children. Across Syria, the Assad regime has attacked civilians with heavy weapons such as artillery and helicopter gunships, resulting in over 20,000 civilian deaths and hundreds of thousands of refugees, including over 100,000 in August alone. A recent investigation by the UN Human Rights Council categorized these attacks as being driven by Syrian “state policy” and constituting war crimes and crimes against humanity.
Still, after more than a year of thwarted diplomacy, the international community is seemingly out of options. A succession of peace plans, special envoys, and sanctions have had no effect on the Assad regime’s behaviour. Yet the Security Council remains deadlocked and ineffective in the crisis; Russia and China have vetoed three separate resolutions aimed at forcing the Assad regime to stop attacking civilians.
Both states oppose intervention in Syria, with Russia arguing that the international community should “strictly adhere to the norms of international law.” Behind this opposition lies a longstanding skepticism on the part of Russia, China, and others that intervention is a pretext for regime change.
In the absence of Security Council authorization, could the international community legally use force to protect Syrian civilians?
We have been here before. During the tragedies of the 1990s in Kosovo and Rwanda, the international community wrestled with the question of when force can legally and legitimately be used to stop atrocity crimes—genocide, war crimes, crimes against humanity, and ethnic cleansing—within a sovereign state. NATO ultimately intervened in Kosovo without Security Council authorization, a campaign many commentators deemed to be illegal but legitimate. In Rwanda, however, the international community failed to act, in part because the atrocity crimes were occurring within the borders of a sovereign state.
In the wake of Kosovo and Rwanda, the international community began to rethink the nature of sovereignty. In 2001, the International Commission on Intervention and State Sovereignty (ICISS) determined that sovereignty requires states to protect their populations from atrocity crimes. The concept, known as the Responsibility to Protect (R2P), was endorsed by the UN General Assembly in 2005 and by Secretary-General Ban Ki-moon in a January 2009 report. The Security Council itself has invoked R2P in its resolutions regarding the Darfur and Libya crises. Even so, the ICISS report anticipated the problem of Security Council paralysis, leaving scope for R2P action without its authorization.
The Syria crisis raises the specter of another Kosovo, Rwanda, or Darfur. With the emergence of R2P, however, the international community now has the right to protect civilians within sovereign states, as well as a legal framework to use force to stop ongoing atrocity crimes. Unlike the legal justifications relied upon for intervention in Kosovo, R2P has been developed in a manner which incorporates a number of procedural and operational safeguards to ensure that the use of force is narrowly tailored, and strictly limited to only the force necessary to stop atrocity crimes.
As articulated by the UN Secretary-General’s 2009 report, R2P has three components. First, states have an obligation to protect their populations from atrocity crimes. Second, when there is convincing evidence of ongoing atrocity crimes, and a state is unable—or, as in the case of Syria, unwilling—to stop them, the international community must exhaust peaceful options, such as diplomacy and targeted sanctions. If these measures fail, however, R2P’s third component allows the international community to use military force as a last resort.
To be sure, because the Security Council remains the primary arbiter of the use of force in international relations, intervention without its approval will be controversial. Syria, however, presents a textbook case for R2P. The UN has already concluded that the Assad regime is committing atrocity crimes. Peaceful options, such as the Annan Plan and targeted sanctions by the European Union, have had no effect. Consequently, under R2P, the international community could use force in Syria for the limited purpose of stopping atrocity crimes and protecting civilians. This temporary authority would only permit proportionate force that is narrowly tailored to achieving R2P’s humanitarian goal. One option, for instance, would be a no-fly zone along the Turkish border to safeguard Syrian refugees.
What of the Russian and Chinese objection that intervention in Syria violates international law and is a pretext for regime change? Under R2P, the use of force without Security Council approval is to be triggered only when there are ongoing atrocity crimes. These crimes have a special status under international law; their prohibition is jus cogens, or fundamental to the international order.
War crimes and crimes against humanity have definite criteria independently verifiable by the UN and other neutral observers, as they have been in Syria. The requirement that the atrocity crimes are “ongoing” also distinguishes Syria from other recent interventions, like Iraq. (Saddam Hussein’s atrocity crimes against the Kurds were committed well before the US invasion of Iraq in 2003, and were only one among many justifications for that intervention.)
Although the Security Council may be paralyzed, the international community is not. The nature of sovereignty has fundamentally changed since Kosovo and Rwanda. When a regime deliberately bombs civilians trying to buy their daily bread, it has crossed the Rubicon. R2P provides policymakers with a framework for military intervention in Syria while “strictly adhering to the norms of international law.” The international community should seize the moment to stop any further atrocities of the Assad regime and thus fulfil its Responsibility to Protect.
Dr. Paul R. Williams is the Rebecca I. Grazier Professor of Law and International Relations at American University, and the co-founder and President of the Public International Law and Policy Group.
J. Trevor Ulbrick, Attorney-at-Law, is a Law Fellow with the Public International Law and Policy Group.
Jonathan P. Worboys, Barrister, is a Law Fellow with the Public International Law and Policy Group.
Photo credit: Pierre Torres/AFP/GettyImages
 On Aug. 30, 2012, Human Rights Watch reported that “[s]yrian government forces have dropped bombs and fired artillery at or near at least 10 bakeries in Aleppo province over the past three weeks, killing and maiming scores of civilians who were waiting for bread.”