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OPINION: Is Syria another reminder that the efficacy of International Law depends on international relations?

The Syrian war crisis is back to public discussions in India as several images and videos of the affected Syrians are doing rounds in the social media. Even as I could see increased police protection at a few places in Chennai including the Office of the Russian Consulate General owing to the likelihood of protests in support of Syrian civilians, many people have failed to understand that the Syrian crisis is more than 7 years old and many of these pictures and videos are at least a few months or a few years old. The least that one could be happy about is that the public is becoming aware of the issue now after seven years.

A close look at the Syrian civil war reveals that it is a battle not just between the Syrian State and one non-State armed group. There are several belligerent groups and sovereign powers like the US and Russia involved in the crisis; and has been the result of proxy war between competing interests, including the war between the Shias and the Sunnis; and between Iran, Iraq and Saudi Arabia.

The seven year old Syrian crisis has unfortunately resulted in death and despair of hundreds of thousands of Syrian civilians leaving several of them orphans, homeless, injured and even Stateless. The Syrian refugee crisis was, for a few years, a major factor affecting International relations in parts of Europe and America. Many European States like Hungary closed their borders in order to restrain desperate Syrian refugees fleeing their home in order to save their lives. Though Germany took several of them, the State had at several points of time conveyed its difficulty in taking refugees in such large numbers.

But has international law failed the innocent Syrians who have been losing their lives and properties over seven years serving the interests of powers like the USA and Russia involved in the proxy war at Syria? Though international law has a sophisticated framework like the 1951 Convention relating to status of refugees to address the refugee crisis, little could such framework do to find a lasting solution to the Syrian refugees. Despite the constant efforts of the tireless office of the United Nations High Commissioner for Refugees, there are several human and financial limitations in dealing with the emergency efficiently.

Sadly, provisions of the United Nations Charter, the Universal Declaration on Human Rights and similar legal framework have not been able to stop the contending sovereign powers and belligerent groups from taking away the lives and properties of millions of innocent civilians. This revives the age old question whether International law is a law, at all? Unlike municipal laws, where institutions are run by independent officers appointed subject to prescribed qualifications, for a fixed tenure and salary, powerful international institutions like the United Nations Security Council are run by Sovereign States whose primary objective in dealing with international issues is ‘Security of their State’ and ‘Welfare of their subjects’ and therefore there is patent bias in the institutions’ actions.

The Syrian crisis is just one among the many such events in history that manifest that International law is not about the ‘law’ but it is just about International relations.

For instance, a couple of years back, the Chilcot report nailed Tony Blair responsible for the “unfounded” Iraq war during 2003-2008. If the report implied anything, the blame should have been equally shared by Bush’s US administration. Blair was only a part of the US war against Iraq. The report gave excerpts from his letter to Bush from the 8th of July, 2002, in which he asserts “I will be with you, whatever.” After this incriminating report, a natural question arose: could there be a possible “war crime” trial against the offenders?

Parallels of the Iraq war could be drawn from the Nuremburg trial that indicted the criminals of World War II. Among other things, the individuals accused of committing war crimes were charged with “deliberately inducing aggressive war”. Even in the Iraqi case, it can be seen from various letters written by Blair to Bush, the war was pre-planned and was ‘deliberately induced’ without any basis. For instance, as early as the 3rd of December, 2001, Blair had written to Bush that “it would be excellent to get rid of Saddam..an extremely clever plan be required.” The Nuremberg trial decision had clearly held that “to plan or instigate an aggressive war is a crime under the principles of international law”.

Moreover, the Chilcot report blatantly showed that war was not the last resort. Every other remedy had not been exhausted before going in for the war. This could have directly been related to one of the principles laid down by the Nuremburg decision that “the test is..whether the moral choice in executing the (order) was possible”. This principle was an answer to the defense taken by some of the alleged war criminals that they should not be held responsible for the war because they had only “executed the orders of superior officers.” In the Iraqi case, the masters Bush and Blair themselves entered into the war ‘without morally choosing not to execute their war plans’, and not even considering other remedies available.

It should be noted that the “Crime against Humanity” could also be made out in the Iraqi war from the fact that as many as 645,000 Iraqi deaths had been reported out of the war. Opinion Research Business had also stated that 20% Iraqis had one death in the family, leading up to about 1.03 million casualties. This figure is not restricted to Iraqi troops but includes the vast majority of Iraqi civilians.

But is an International criminal trial possible? The International Criminal Court (ICC) established under the Rome Statute may exercise jurisdiction in a situation where genocide, crimes against humanity or war crimes were committed on or after 1st July 2002 and a) the crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court; or b) the crimes were referred to the ICC by the United Nations Security Council. According to the ICC’s statement, the United Kingdom deposited its instrument of ratification of the Rome Statute on 4th October 2001. The ICC may therefore exercise its jurisdiction over Rome Statute crimes committed on the territory or by nationals of the United Kingdom as of 1 July 2002.

The ICC does not have a police force or enforcement agency of its own and it largely relies upon the co-operation extended by States. It is in this context that “International law is the vanishing point of jurisprudence”. I subscribe to the view that International law is no law because they are only a bundle of model rules and regulations regulated by International Relations. Reference of the Iraqi case to the ICC by Security Council is highly impractical as the US and UK are “veto” wielding permanent members of the Council. The “co-operation” of States in the investigation is also unlikely given the influence of the States involved.

At this juncture, it is important to note that though several reports showed that Sri Lanka had committed war crimes by mass killing and murdering innocent Tamil Civilians in the IV Eelam War, the offenders could not be brought to justice before any International Tribunal because of the influence of China. India has also abstained from voting in few such resolutions against Sri Lanka fearing strained relations with the neighbor, and due to the possible consequences on the over-million Tamil civilian population.

Historically, all world economic and political sanctions including the ones on Iraq, India, Iran etc., had been sponsored by superpowers like the US. At a time when several countries have queued up in the American camp, how will the victims of the Iraq war would get justice under International Law?

Even the International Criminal Court is intended to only complement but not to replace, national criminal systems; it prosecutes cases only when “States do not or are unwilling or unable to do so genuinely.” Apparently, the national judicial system would not be zeroing down on Blair, his US counterpart Bush or their administrations.

In fact, British Prime Minister Cameron refused to call the war a mistake. He merely stated that “the country (UK) needs to draw lessons from the experience”. This mentality is not new to superpowers. When Obama visited Hiroshima a couple of years back, Japanese people expected him to tender a formal apology. But his speech at Hiroshima fell short of anything close to a “sorry” though the people had his “sympathy”. Though several innocent civilians died in the nuclear explosion, it was justified historically as it was “needed to end the war”.

Though India has always been ‘a poor third world country’ in the eyes of super powers, even India could wield power during the Nehruvian era due to its international relations. Even during important cold war events like Egyptian crisis, USA and USSR were clearly seeking Nehru’s support because India’s decision could influence nations across Asia and Africa. The Bandung Conference and the Non-Aligned movement were all checks on super powers during the cold war which influenced ‘International law’. This is exactly why the American Senate objected to any sort of American help to India during the war in which India was humiliated in by China in 1961. International law could do little to help India during the war because ‘International relations’ took the front seat. India’s defeat in the war meant containing India’s influence among the third world nations.

Similarly, Pakistan State’s aggression against its Bengali population in East Pakistan could not be checked by International law because of Pakistan’s ‘relations’ with the US. Despite India’s repeated requests to the International community to intervene in the East Pakistan refugee crisis, no conventions or treaties on refugee status could help the situation for the same reason. Similarly, when India declared war against Pakistan in 1971 due to the crisis, India’s relations with the USSR in the backdrop of Indo-Soviet treaty of friendship and cooperation signed in 1971 saved India against all International law against ‘armed intervention’. Pakistan’s friendship with US and the mighty US Enterprise at Indian ocean could not stop India’s armed intervention for this very same reason. ‘Operation Poomalai’ is yet another instance of India’s infringement of Sri Lanka’s sovereignty because the former was powerful than the latter. International law has not been able to solve decades long problems like Kashmir and Palestine because International relations have not permitted it to.

All these only come to show that International law cannot save innocent Syrians, at least for now because of the strained ‘International relations’ between competing powers involved in the crisis. Only another Non-aligned Movement or a much stronger association of neutral sovereign powers can help Syria at the moment.

Nirmalkumar Mohandoss is Advocate at High Court of Madras. Views expressed are personal of the author. The Indian Jurist does not take responsibility for the views expressed or facts stated.

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