Syria: testing the effectiveness of international law.

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The closing plenary was convened at 11:00 am, Saturday, April 12, by its moderator, Donald Francis Donovan of Debevoise & Plimpton, who introduced the speakers: Awn Shawkat Al-Khasawneh, former Prime Minister of the Hashemite Kingdom of Jordan and former Judge at the International Court of Justice; Vera Gowlland-Debbas of the Graduate Institute of International and Development Studies; Michael Ignatieff of the Kennedy School of Government, Harvard University; and Ken Roth of Human Rights Watch.

INTRODUCTORY REMARKS BY DONALD FRANCIS DONOVAN

Good morning all. The group assembled in this room could accurately be described as the hard core, gathered here, after a week of events, on a Saturday afternoon, to conclude this compelling conference that Fionnuala, Oona, Larry, and their colleagues have put together.

Before I say anything further, I want to introduce Ben Ferencz, a great friend and longtime member of the Society, who wants to say a word.

REMARKS BY BENJAMIN FERENCZ

Thank you very much, Mr. Moderator. I received a call from the President of Trinidad and Tobago notifying me of the death of former Prime Minister A.N.R. Robinson. He introduced the idea of an international criminal court to the General Assembly of the United Nations, and without his effort, we wouldn't have had such a court. He dedicated all of his years to supporting it. He is a great example of what one human being can do by courage and persistence, and we mourn his loss.

DONALD FRANCIS DONOVAN

Thank you, Ben. Fionnuala, Oona, Larry, and their colleagues wisely decided that if we were going to do a conference on the effectiveness of international law at this time, we might very effectively start with Crimea and end with Syria. Many of you will have heard the Crimea panel on Wednesday, and we are now going to conclude the conference by addressing Syria.

We all know the backdrop here. Horrific events have been happening in Syria for years, and yet no real action has been taken to address them. We watch the tragedy of tens of thousands of civilian deaths, the deliberate targeting of civilian infrastructure, the deliberate use of chemical weapons, and an extraordinary refugee crisis, all caused by the conflict in Syria.

Against that backdrop, we are going to test the effectiveness of international law by examining the doctrine of the responsibility to protect as applied to the situation in Syria today. To do so, we have assembled a compelling group of speakers. Ken Roth is the longtime Executive Director of Human Rights Watch. His organization has had researchers in Syria throughout the conflict, based out of their office in Beirut. Mr. Roth is a graduate of the Yale Law School and in his early days was a prosecutor in New York. Michael Ignatieff is a Professor of the Kennedy School of Government at Harvard University. He is a former leader of the Liberal Party of Canada and a former member of the International Commission on Sovereignty and Intervention, which played a seminal role in developing the notion of a responsibility to protect. Vera Gowlland-Debbas is Emeritus Professor of Public International Law at the Graduate Institute in Geneva, a Visiting Professor at University College London, and an academic member of Doughty Street Chambers, and she has been a Visiting Fellow at All Souls College and a visiting professor at UC Berkeley, Paris II, and a host of other universities. She has spent much of her scholarly career studying the United Nations and the UN Charter. And finally, Awn Al-Khasawneh has occupied a host of senior international and national positions, including service as the Prime Minister of Jordan and as a Judge on the International Court of Justice.

So here is the plan. We want to have a discussion among our colleagues on the podium, but we also want to include everybody on the floor as well. I have asked each of the panelists first to state their position in short form. We will then have some follow-up questions. We will conclude with a discussion of the whole.

We are going to start by focusing on the legal architecture. The basic question we should ask is: How does the current legal framework allow us to attempt to stop the atrocities in Syria? We recognize that there will be a range of other considerations--political, military, diplomatic--and those will, no doubt, intersect. But at the outset I have asked our colleagues here to state in their initial presentations what the current legal framework allows us to do and then to talk more broadly about their basic position.

So, if I may, Vera, would you like to start?

VERA GOWLLAND-DEBBAS

Thank you very much. My focus, at least in my introductory remarks, is the collective security framework within which the two substantive resolutions were adopted, namely Resolution 2118, which was adopted in September of last year in reaction to the chemical weapons attack in Ghouta, and Resolution 2139, which was adopted last February demanding humanitarian access and humanitarian relief.

What I would like to point out is that these resolutions go beyond simply laying down the conditions for these rather narrow objectives. In fact, they set the framework within which we can examine a whole lot of issues relating to Syria and the limits set by the Security Council as, for example, the question of whether there is a "hidden trigger" for military action, whether sending weapons to the opposition is permissible, who decides the use and timing of military measures, and the question of R2P. But I will be given, I hope, an opportunity to develop this further.

What I also want to say is that we have to have a benchmark against which the effectiveness of the Security Council may be measured. Now, it is very easy to say that the emasculated collective security system, which was set up after the war and which is very, very far from the original idea of "my brother's keeper," is responsible for a whole host of problems and for the ineffectiveness of the Security Council, particularly the operation of the veto. It is also easy to lay the blame for why the Security Council has been unable to act effectively in the Syrian crisis on the series of Russian vetoes. But my point is that the collective security system has not been static, and despite the absence of formal reform, it has nevertheless evolved in some measure in response to the demands of the international community and the evolution of the international legal system. This system now reflects the centrality of human rights, and therefore, the emergence of the concept of human security in parallel with state security.

A link has also been forged between international peace and security and justice in the form of international criminal jurisdictions, though originally justice was kept out of the Security Council's collective enforcement action on the grounds that the Council had to be effective and had no time for justice. We have also had growing calls for the rule of law as a guiding framework for collective security and for the accountability of the Security Council. Furthermore, the Council, though preeminently a political body, has claimed a human rights protection function by linking ethnic cleansing, genocide, and other gross violations of human rights with threats to the peace, as well as assuming a quasi-legislative role. So the point that I want to make is that we need a fresh reading of Article 1(1) of the Charter against which we can measure the effectiveness of the resolutions on Syria that have been adopted.

In fact, human rights, which in the Charter were really a secondary consideration (a longer-term means of achieving peace, what we used to call "peacebuilding") now forms part of the peace maintenance and the peace enforcement function itself. In other words, it has become a component part of the security fabric, and it is in part from this perspective that we have to view the question of how the Security Council approaches the Syrian crisis. It is interesting, for example, that the prohibition of the use of chemical weapons is in response to a humanitarian situation affecting civilians rather than in the context of non-proliferation.

DONALD FRANCIS DONOVAN

Thank you, Vera. Michael?

MICHAEL IGNATIEFF

Thank you. Good to be on this panel with this distinguished group.

The one thing I told myself when I was shaving this morning is if you are not a lawyer, don't pretend to be one in this room. That would be a mistake. I am not a lawyer, and so I am not going to try to be one. The lawyers up here will do a much better job than I would.

I wanted to ask a simple opening question about Syria, which is: What is the best that we can hope for here? What is the end state that we are trying to attain? Thus far, with UN Security Council Resolution 2118, we have tried to keep chemical weapons out of the fight with some success. That could be classified, I hope, as a success for international law, but there is a question here about what happens if we don't get full compliance with Resolution 2118. That is another shoe that needs to drop.

The second thing we tried to do with Security Council Resolution 2139 has been to guarantee humanitarian access to stop the blockading of civilian populations, to stop the denial of aid. It is a nightmare trying to do the basic delivery of humanitarian aid here, and so the international system has said you must stop using humanitarian aid in these grotesque ways that lead to the starvation of children, the recrudescence of polio, all the things that we have seen. The international community has come in there. So that's the second thing we tried to do, to try to mitigate the humanitarian catastrophe that's cost 125,000 lives and created 2 million refugees.

If you move beyond that to the third thing--what can we possibly hope for--I would say a stand-in-place ceasefire where the killing stops. That is a reasonable goal. It is not regime change. It is not transition. It is just a stand-in-place...

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