Examining China and Russia’s Claims on Intervention in Syria in Light of International Law

After vetoing a UN resolution aimed at stopping the bloodshed in Syria, China and Russia have refused to attend the Friends of Syria meeting in Tunis or take sides in Syria’s growing civil conflict. The basis of their policy is respect for the internal affairs of sovereign states. How does this fare in light of international law?

1.      The principle of non-interference in the internal affairs of states

China and Russia are correct in pointing out that states’ non-interference in the internal affairs of other sovereign states is a general principle of international law. Both customary international law as well as the UN Charter (“CUN”) recognize the territorial integrity and independence of states and prohibit military force from interfering with this integrity. The CUN states that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” and that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” (art. 2 CUN).

2.      The principle of non-interference is not absolute

In light of the CUN’s provisions on collective security measures, international humanitarian law, and the affirmative duty to act created under various international conventions, the principle of non-interference is not absolute and must be weighed against the duty of states to protect life and uphold fundamental liberties.

a) Collective security measures
Chapter VII of the UN Charter permits two exceptions to the principle of non-interference; the use of force is permitted when acting pursuant to: (i) UN collective security measures (arts. 42 CUN); and (ii) self-defense (art. 51 CUN). As discussed below, the first exception applies to Syria.

The Security Council may employ the use of force in order to secure peace. If the Security Council determines the existence of any threat to or breach of the peace or act of aggression, it is to make recommendations or decide what measures are to be taken to maintain or restore peace (art. 39 CUN). In order to prevent an aggravation of the situation, the Security Council may decide what measures not involving the use of armed force (e.g., sanctions, the severance of diplomatic relations, etc.) are to be employed (art. 41 CUN). However, if these measures are inadequate or ineffective, the SC may take military action “by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (art. 42 CUN). This represents the first important exception to the principle of non-interference.

b) The mandate to intervene in internal armed conflicts under the Geneva Conventions
Taking into account the experience of the Second World War, where civilians were systematically targeted in both internal as well as international conflicts, the international community in 1949 revised the three Geneva Conventions and adopted a fourth Geneva Convention to provide for the protection of civilians from the consequences of war. The results were the four 1949 Geneva Conventions that today deal with the treatment and protection of persons—both combatants and civilians—during armed conflict.

The Geneva Conventions also codify the rules of engagement in non-international (internal) armed conflict. Common article 3 (common to the four Geneva Conventions) is the first express codification of law for non-international armed conflicts, such as civil wars and civil insurrections. Common article 3 establishes fundamental rules from which no derogation is permitted and whose violation gives rise to individual rather than state liability. It contains the essential rules of the Geneva Conventions as applied to conflicts of a domestic (internal) character and applies to all non-combatants, including soldiers who have “laid down their arms” (surrendered) or those placed hors de combat due to injury or sickness.

Common article 3 requires that the wounded and the sick be collected and cared for and grants the International Committee of the Red Cross and other impartial humanitarian bodies the right to offer their services to the parties to the conflict. It calls on the parties to the conflict to endeavor to bring all or parts of the Geneva Conventions into force through special agreements and recognizes that the application of these rules does not affect the legal status of the parties to the conflict (art. 3(2) GC III).

Evidence of Syria’s violation of the provisions of common article 3, including but not limited to its failure to allow humanitarian aid reach the wounded and the sick and government shelling of civilian objects and neighborhoods, puts the UN Security Council in a position in which it may take measures to restore peace and enforce international law, including ordering the use of force through taking military action “as may be necessary to maintain or restore international peace” (art. 42 CUN).

3.      The affirmative duty to act under international law

a)      Overview
Several international legal instruments create an affirmative duty to act when life and basic fundamental freedoms are threatened. For example, the Genocide Convention requires not only that its 140 states parties refrain from the crime of genocide, but also that they “undertake to prevent and to punish” genocide (Art. I CPPG) and further pledge “to grant extradition in accordance with their laws and treaties in force” of persons charged with genocide (Art. VII CPPG). The International Court of Justice thus found in the Bosnian Genocide Case (Bosnia and Herzegovina v. Serbia and Montenegro) (2007) that Belgrade breached international law not by committing genocide, but by failing to prevent it.

While the Genocide Convention may not apply to Syria, other international instruments do. Among the most important of these is the International Covenant on Civil and Political Rights.

b) The International Covenant on Civil and Political Rights
States parties to the International Covenant on Civil and Political Rights (1976) (ICCPR) undertake to protect the wide range of civil and political rights, including a right to life (art. 6 ICCPR), prohibitions on torture (art. 7 ICCPR) and arbitrary arrest or detention (art. 9.1 ICCPR), a right to trial within a reasonable time of arrest or detainment (art. 9.3 ICCPR) and to freedom of thought, conscience and religion (art. 18 ICCPR), as well as freedom of expression (art. 19 ICCPR).

If reports of the International Committee of the Red Cross, the UN, the Arab League and European countries and the US are true, then Syria has violated all of the above-enumerated rights and freedoms. Under the ICCPR, states party not only agree to refrain from violating such rights, but also to ensure the protection of these rights from violation by other member states. The ICCPR thus incorporates an affirmative duty to act.

Russia, having signed and ratified the ICCPR, is bound by its provisions. China has signed but not ratified the ICCPR. It has therefore expressed its intent to ratify the Covenant, but not necessarily consent to be bound (art. 12 Vienna Convention on the Law of Treaties). In the period between China’s signing the treaty and the ratification thereof, it may not undertake any actions that defeat the object and purpose of the treaty (see art. 18 Vienna Convention on the Law of Treaties). However, though China may not be strictly speaking bound by the treaty, the provisions of the ICCPR may constitute customary international law and thus be binding on China, since the principles of the ICCPR have developed over time and have been nearly universally recognized. If these principles form “state practice,” then under the International Court of Justice Libya/Malta case (1985), they form the substance of customary law.

4.      Conclusion

If reports of violence against civilians at the hands of the Syrian regime are supported by sufficient evidence, it would be unfitting for Russia and China to base their veto and abstention from action on the principle of non-intervention. While the cited principle constitutes valid international law, it is not absolute and is trumped by the duty of states to protect life and liberty, even when doing so requires infringing on the domestic affairs of another state. Legal instruments such as the ICCPR impose on states party an affirmative duty to protect the lives of innocent civilians.