ET TU, DISTRICTUS COLUMBIAE?: THE CAESAR SYRIA CIVILIAN PROTECTION ACT.

• Author: Ibrahim, Amy

1. INTRODUCTION

   For over a decade, the Syrian Arab Republic has been part of a grueling civil war between pro-democracy revolutionaries and President Bashar Al Assad's long standing dynastic regime. (1) What started as a peaceful protest against the Assad family's four-decade reign quickly escalated into a complex civil war, leading to international intervention in the name of stopping the Islamic State; and causing further instability in the region. (2) Long overdue, Syria's uprising did not begin unprovoked. (3) The Tunisian protests were the catalyst for the Arab Spring, and led to the successful toppling of several Arab countries' leaders. (4) Syrian President Bashar Al Assad, however, has managed to hold on to power for the entirety of the conflict despite several foreign efforts to topple his regime. (5)

   The most recent attempt to weaken the Assad regime is United States led sanctions against the Syrian government, more commonly known as the Caesar Civilian Protection Act (Caesar Sanctions). (6) This Note explores how the enforcement of such sanctions would harm the Syrian people more than the government, and are ultimately a violation of international law. (7) Part II of this Note will give background on the events leading up to the Caesar Sanctions and explain how past economic sanctions implemented by the United States on similarly situated countries have only worsened humanitarian crises. (8) Part III will begin with a general analysis of economic sanctions and their use, and continue with an analysis of the Syria sanctions, otherwise known as the Caesar Syria Civilian Protection Act, or Caesar Sanctions, and will illustrate how their enforcement is a violation of international law which will ultimately cause a severe humanitarian crisis. (9) Part IV will discuss the need of reformed smart sanctions because of their failure in solving the humanitarian crises in Syria, ultimately triggering protections by Article IV of the Geneva Convention. (10) Finally, Part V will reiterate the humanitarian crises that arise from sanctions and emphasize the importance for future leaders to adopt smart sanctions for the sake of driving out corrupt politicians. (11)

2. HISTORY

   1. The Beginning of the Assad Dynasty

      Hafez Al-Assad, current Syrian President Bashar al-As-sad's late father and predecessor in power, seized control by successfully carrying out a bloodless coup d'etat in 1970 and establishing himself as the Ba'athist leader. (12) Prior to Assad's seizure of power from the urban-Sunni controlled government, Syria was already experiencing extensive political instability, numerous coups, and sectarian turmoil stemming from Syrian independence from French rule in 1946. (13) The late Assad came from the Alawi minority, "a heterodox Shia sect that had long been persecuted in Syria and was elevated to privileged positions under the post-World War I French mandate." (14) The main reason the door opened for the Alawite minority was the countless military coups between 1949 and 1963, each government change created power struggles, ultimately causing the "weakening of Sunni ranks." (15)

      Hafez al-Assad managed to bring stability to Syria for the first time in a quarter century. (16) He became the "architect of modern Syria" and managed to create a "corrective movement ... [a] system of divide and rule and personalized his power to such an extent that it was he alone who held the state together" after the 1970 coup. (17) Keeping a strong hold on his power, the late president refused to tolerate any sort of unrest. (18) The 1982 Hama Massacre was the most prominent example of Assad's tenacity to keep any uprising at bay. (19) Assad ordered a force of twelve thousand troops, led by his brother Rifaat, to put down the Muslim Brotherhood and mitigate the internal unrest in Syria. (20) Although Assad met the goal of annihilating the Brotherhood, it came at the cost of an estimated 40,000 Syrian lives. (21)

   2. A Family Affair Masked as a Democracy

      Bashar al-Assad grew up surrounded by a powerful family, but initially he did not have intentions of inheriting any political powers and decided to study medicine instead. (22) While pursuing an advanced degree in London, Assad received news that his older brother, and fathers successor, died suddenly in a car accident. (23) Assad was called back to Damascus to take over his brothers political duties, and subsequently took over the Presidency in 2000, after Hafez al-Assad passed away. (24)

      Bashar's unexpected ascension to the Syrian President gave the Syrian people a new hope of a leader who would modernize the country and "usher in a new period." (25) The "season of reform was [cut] short" as "Assad cracked down again the following year." (26) Many blamed his father's strong regime for the reason why Bashar "steered away... from a liberal reform." (27) Within five years of assuming power, the Syrian people realized that Hafez al-Assad officiated an autocratic and kleptocratic regime that bound itself to the Syrian people by attaining mass support. (28) After the people were inspired to protest the government, Bashar attempted to follow in his father's footsteps and repress the first protestors in Daraa to prevent the protests from spreading, but ultimately failed. (29)

   3. The Syrian Civil War and the Origins of the Caesar Act

      Following Assad's failed attempt to squash the initial protests in Daraa, the Syrian Revolution began to spread like wildfire, ultimately receiving major media coverage and outrage over human rights atrocities. (30) In January, 2014, more than 28,000 photos, known as the Caesar Photographs, detailing the torturous and barbaric murders at the hands of the government, were smuggled out of government custody. (31) Subsequently, the former military photographer anonymously known as Caesar, fearing prosecution fled as a refugee to Europe and has remained there ever since. (32) The photos of the tortures; reports of chemical attacks orchestrated by the Syrian Regime on Ghouta, Douma, and the northern Idlib province; and an increased fear of further chemical attacks, prompted international outrage and established a basis for the sanctions. (33)

   4. History of Sanctions

      The concept of sanctions first emerged in the Trading with the Enemy Act of 1917. (34) In 1977, the U.S. Congress passed the International Emergency Economic Power Act (IEEPA), giving the president executive powers over "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." (35) Due to limited restrictions on presidential power, most of these sanctions are "decided on and applied within the executive branch" with little to no Congressional input. (36)

      A lack of Congressional input can cause severe instability and chaos in foreign countries if sanctions are not "properly advised upon." (37) Issuing broad sanctions, even if directly targeting a regime, can be devastating to the people of the sanctioned country and cause humanitarian crises. (38) A government that is oppressing its people can still provide them with the basic necessities to survive, whereas suffocation of the private sector can cause immense damage to innocent third-parties. (39)

   5. Past enforcement of U.S. foreign policy through unilateral secondary sanctions.

      The United States is infamous for its use of economic sanctions as a means of nonviolent, economic warfare. (40) Due to increasing globalization, however, "the emergence of an economically multipolar world" has diminished the U.S. power and influence in the conduct of target states through unilateral sanctions. (41) The United States' weakening grip on conduct of third party states has led to increasing secondary sanctions against third-party actors. (42) An infamous example of the United States' secondary sanctions is the Helms-Burton Act of 1996, which expanded the sanctions on Cuba by prohibiting indirect financing of transactions involving property confiscated from U.S. nationals by the Cuban government. (43) In a bid to reconcile conflicting policies, the European Union (EU) instigated World Trade Organization (WTO) dispute settlement proceedings against the U.S. embargo of Cuba and the Helms-Burton Act, alleging that the measures "denied EU members' rights under General Agreement on Tariffs and Trade 1994 ("GATT 1994") and the General Agreement on Trade in Services ("GATS")" to export and trade with Cuba. (44)

      Title III of the Helms-Burton Act is one of the most controversial legislative provisions enacted because it allows U.S. citizens to sue anyone who profits from the use of property confiscated by Cuba in U.S. court, including those who were non-citizens at the time of confiscation. (45) Beginning in the autumn of 1996, the European Union and the United States pursued negotiations regarding the European Union's concerns of the Helms-Burton Act and U.S. proposals for coordinated sanctions policies. (46) Eventually, a "Common Position" was reached with an emphasis on implementing "pluralist democracy and respect for human rights" in Cuba. (47) In May 1998, the European Union and United States established the "Transatlantic Partnership on Political Cooperation" (Partnership Accord) which "includes limited commitments to forego new extraterritorial sanctions." (48) The Council of Ministers of Foreign Affairs (the Council), however, moved to counteract the potential consequences of U.S. sanctions, and adopted regulation against the Helms-Burton Act, and bound all member states to various laws concerning world trade and investment. (49) In 1997, the new WTO implemented legal initiatives against the United States, stating that the "temporary suspension of Title III was insufficient" and the law was facially invalid due to its "violation of the principles of...