Syria – no deal, really

That Syria has been on a downward spiral since 2011 is not news. Any solution for Syria must not be limited in scope. Tackling chemical weapons is only one part of the entire deal. If a middle path between the use of force and non-action can be carved, using just about enough force to get Assad to step down with a suitable regime to take over, peace could be a reality.

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By Kirthi Jayakumar

It is interesting how the cookie crumbles when push comes to shove. In the run-up to Obama’s proposed military intervention in Syria, there was furore from every quarter denouncing his move. Calls for a peace processes were asserted, and war-mongering tactics that the west has become infamous for were denounced.

And there came a tide in the affairs of countries. Russia, which vehemently opposed any military intervention while also allegedly supplying the Syrian government with weapons, and the US, which pushed forward for a military intervention, struck a deal: Syria’s chemical weapons will be eliminated, once and for all, by mid-2014. Syria, for its part, agreed that it will sign the Convention banning Chemical Weapons (the Convention).

The deal outlines a series of steps. Syria will have to submit a “comprehensive list” of its chemical weapons stockpiles within a week, and a team of international inspectors will be on the ground by November at the latest. All of this lingers with a caveat – if diplomacy falls short, the US will not hesitate to “act”. France asserts that force is still an option.

The deal suggests that there will be a complete set of verification and destruction processes which will be carried out by the UN and the Organisation for the Prohibition of Chemical Weapons, which serves to implement the international ban on the use of chemical weapons. Both countries are now working to secure a security council resolution to keep the nerve-centre of the UN in charge of the entire review process and to possibly examine the propensity for the use of force should Syria fail to comply.  The use of force as an option, however, remains less likely given Russia’s and China’s veto powers.

Many aspects of this deal could make it remain a paper tiger, one that will not stymie the current conflict in anyway. Primarily, Syria has no obligation until it signs the Convention. The guiding principles of International Law in handling any treaty or convention are: pacta sunt servanda and pacta tertiis nec nocent nec prosunt. Since Syria has not yet signed or agreed to any provision in international law that prohibits it from using chemical weapons, the intention to sign the Convention cannot automatically impose obligations, which is an accepted norm in International Law as explained by the Permanent Court of International Justice in the Lotus Case.

Unless a state signs up, or agrees to a provision under international law, it is not bound by it. Since Syria is not yet a signatory to the Chemical Weapons Convention, or any of other convention that could be used to impose an obligation on it (see: Rome Statute of the International Criminal Court, Convention against Torture and Convention on Cluster Munitions – all of which in one way or another prohibit the use of chemical weapons or specific kinds of weapons) it is not bound to adhere to the prohibitions imposed on the use of such weaponry. The only legislative instrument that Syria is a signatory to is the 1925 Geneva Protocol, but even that would fail in this case since it concerns itself only with international armed conflicts. Stretching the prohibition on the use and stockpiling of chemical weapons to the status of customary law or jus cogens would be taking it too far, because there isn’t yet the combination of state practice and opinio juris that establishes a customary status. Some might be wont to contend that Assad would give in to (coercive?) diplomacy and obey the law. Let’s not ignore the fact that no amount of coercion made him obey the laws he is bound by – let alone what it can do to make him abide by the laws his country did not agree to be bound by.

Arguably, even if the rubrics of the consent-based legal system that are its own egregious failing don’t come to the rescue, the deal could still fail because it stops short of the executive element. The deal appears obscure when it says that there should be access as a matter of “immediate and unfettered right to inspect any and all sites in Syria” and pins responsibility on the Syrian Government for this. It says nothing about the possibility of rebel obstruction; it makes no mention of the kind of security that the inspectors will be given; and it makes no room for the eventuality of Assad’s refusal to cooperate. Furthermore, it makes no mention of the kind of logistical backdrop that will be used to move these weapons out of Syria. Let’s not forget that the Assad regime has lost control over considerable parts of Syria’s borders to the rebels.

The deal also loses sight of the bigger picture – this isn’t just about chemical weapons, but the war at large. It hasn’t taken into account that the rebels also need to be part of the negotiation table, for any transition (in the event that Assad steps down) will involve one or more of the rebel factions taking over from him. The deal fails to take note that the rebels are still a divided force, and that they are not willing to come down for anything short of Assad’s exodus. In this sense, the purging of Syria of its cache of chemical weapons might just not be the peace messenger that could bring the conflict to an end.

This leads me to my third argument. In the event that Assad refuses to cooperate, the proposed joint US-Russian OPCW draft decision “supports the application of Article VIII of the Chemical Weapons Convention, which provides for the referral of any cases of non-compliance to the United Nations General Assembly and the United Nations Security Council.” The non-compliance could result in one of two things – military intervention, or, if Russia and China decide to use their veto, sanctions. In both cases, civilians will suffer. The use of force will bring with it more civilian deaths, and sanctions never affect the regime, but innocent civilians – especially children – who are already dying by the hundred.

Lastly, even assuming that the deal has Assad’s compliance and cooperation, it will fall short because of its frivolous need for speed, and the pursuit of an ambitious goal with scant regard for the logistics involved. Let’s not forget Iraq – a country that had the seeds of war sown by the United States in pursuit of the need to rid it of its weapons of mass destruction. Scores of inspectors from the United Nations made their way to Iraq to uncover, inspect and destroy their weapons, and it took them seven years to do just that. Syria is in the middle of a civil war, and that only complicates things, augmenting the propensity for a delay. While the deal recognises that it is an ambitious goal, there’s nothing beyond that recognition. The deal makes no mention of the transition from conflict to peace, the peaceful handing over of power and ensuring sustainable peace through and with justice as part of it.

That Syria has been on a downward spiral since 2011 is not news. Any solution for Syria must not be limited in scope. Tackling chemical weapons is only one part of the entire deal. If a middle path between the use of force and non-action can be carved, using just about enough force to get Assad to step down with a suitable regime to take over, peace could be a reality.

Kirthi Jayakumar is a Lawyer, specialized in public international law and human rights. A graduate of the School of Excellence in Law, Chennai, Kirthi has diversified into research and writing on public international law and human rights. She has worked as a UN Volunteer, specializing in human rights research in Africa, India and Central Asia and the Middle East. She also runs a journal and consultancy that focuses on international law, called A38.

If you are interested to contributing to the debate on conflict and conflict transformation in Syria, then please contact TransConflict by clicking here. 

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12 Responses

  1. In my opinion the deal is brilliant Russian maneuver and right too as the right address for air-strike might be Qatar-funded mercenaries led by Al Qaeda. When the deal between international community and al-Assad regime about CW question is made it is possible that the war between al-Assad regime and rebel groups as well between rebel groups will intensify in short-term with conventional weapons.That’s way crucial aspect in action plan namely get all or most part of local stakeholders, without preconditions, in negotiation table for planning the future Syrian state.
    (More eg: Whodunnit in Syria  http://arirusila.wordpress.com/2013/09/11/whodunnit-in-syria/ and
    Syria:From War To Dissolution With Help Of Media http://arirusila.wordpress.com/2013/08/28/syria-from-war-to-dissolution-with-help-of-media/ )

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