Statement Regarding
Syria
Remarks : Harold
Hongju Koh, Legal Advisor U.S. Department of State
Venue : American
Society of International Law Annual Meeting, Washington, DC
March 30, 2012
It is my honor to
speak here again at the annual meeting of the American Society of International
Law. A year ago, I spoke before this audience about the international legal
basis for the United States’ military operations in Libya. In that same spirit
of openness and dialogue, I am grateful for the opportunity to engage so many
distinguished international lawyers in this room about the very serious
challenges we face in Syria today.
Let me divide my
comments this morning into three: First,
what, precisely, is happening in Syria? Second, what are the U.S. government and the
international lawyers within it doing to address the crisis? And third, by what legal
principles should this crisis be assessed and lawfully and effectively
addressed?
(DO- (1) what is happening on the ground, (2) what
has been the response from the US government, (3) the legal principles and
guidelines that should govern the US government addressing the crisis)
(1)
Starting with the facts
on the ground, everyone here knows the situation in Syria is extremely grave.
As President Obama noted earlier this month, “what’s happening in Syria is
heartbreaking and outrageous. . . . [President Bashar al-Assad] has lost the
legitimacy of his people. And the actions that he’s now taking against his
people [are] inexcusable . . . .” The Assad regime’s brutality is
well-documented and not subject to dispute. As Secretary Clinton has detailed,
“the regime is
creating an appalling humanitarian disaster. Tanks, mortars, and heavy
artillery continue to target civilians in residential areas, including women
and children. Security forces have cut off electricity and communications,
sabotaged water supplies, invaded hospitals, and forced thousands of Syrians to
flee their homes. The UN has found crimes against humanity. And now there are
reports of troops massing for even more deadly assaults.”
(DO - interesting,
Harold Koh cited POTUS and SecState)
The Assad regime’s
massacre of hundreds of citizens in the city of Homs is only the most flagrant
example of its lawlessness and ruthlessness. The regime seems determined to
suppress democratic dissent through bloodshed. Our best estimates are that the
crisis has already claimed upward of 9,000 lives and uprooted tens of thousands
of Syrians.
(2)
Given this alarming
snapshot, what should we be doing about it? How can the United States best
respond to the situation in Syria, consistent with domestic and international
law as well as our values and interests? There are no easy answers, and there
is no single tool capable of solving all the problems. (the challenges in addressing Syria issue in comparison with
Lybia – neighboring states, allies, complexity of
domestic politics, splanting opposition, uncertainty about post-Assad) The
country sits at the hub of a geopolitically sensitive area, bounded by Turkey,
Iraq, Jordan, Israel, and Lebanon. Its rulers have had powerful protectors in
Russia and China, as evidenced by their vetoes of not one but two Security
Council resolutions. Syria is home to a complex mix of ethnic and religious
communities. The opposition is still coalescing and faces enormous challenges.
People are concerned and uncertain about what comes after Assad. There is no
denying that this is an enormously challenging moment for all of us who are
committed to international human rights and to the rule of law.
(what US gov. did)
Many in our
government, and in the State Department, have been working around the clock to
evaluate options and facilitate a resolution. President Obama and
Secretary Clinton have devoted themselves to an all-out diplomatic effort to
help bring increasing pressure to bear on the Assad regime. Secretary
Clinton led our efforts at the Friends of Syria Conference in Tunis in
February, and has spoken out about the crisis and engaged behind the scenes on
a daily basis. Ambassador Susan Rice has led our efforts at the United
Nations, tirelessly working to build a unified position. And from the beginning
of the crisis, my colleague Ambassador Robert Ford has displayed
extraordinary heroism by risking his own personal safety to engage directly
with the Syrian people, including through his travels to Jassim and Hama. He
has also used social media to establish channels of communication with the
Syrian people, encouraging them to embrace nonviolent protest and calling the
world’s attention to the urgency of the human rights and humanitarian
situation.
(what US gov. did – venue, support, and
sanction)
While our efforts have
not yet resulted in a resolution to the Syrian crisis, neither have we stood
idly by. To the contrary, the U.S. government, together with our partners, has
been actively pushing on numerous fronts. We have engaged in ceaseless
diplomacy in the Security Council, General Assembly, Human Rights Council,
Friends of the Syrian People, and numerous other venues to build international
consensus around the Arab League plan and further isolate the Assad regime. We
are providing over $17 million in humanitarian assistance through the UN and
other organizations to support the people of Syria, and we are pursuing every
available avenue to get that assistance to those in need. We have helped the
Syrian opposition prepare to participate in the Syrian-led transition process
that the Security Council has endorsed. We have redoubled our efforts to put financial
pressure on those responsible for human rights abuses in Syria, including
through three executive orders in the past year imposing increasingly severe
sanctions. We have sought to ensure that Syrian nationals present in the United
States are not forced to return to unsafe conditions, most notably by
designating Syria for Temporary Protected Status under the federal immigration
laws. We have strongly supported the work of the Human Rights Council and the
Office of the High Commission for Human Rights in documenting and publicizing
human rights abuses through the Commission of Inquiry for Syria. And we have
begun to discuss issues of accountability with our Arab and international
partners. I am particularly proud of the contributions that dozens of lawyers
from my own office—what we call the “L-Syria team” of the Office of the Legal
Adviser—have made to these efforts.
Achievement - UN
Security Council’s Presidential Statement, which the US support
It is our firm hope
that the UN Security Council’s Presidential Statement of last Wednesday, March
21, will mark a step forward toward a more unified international approach. Like
our regional and global partners, the United States has made clear that Assad
must immediately end his campaign of savagery against his own people, allow
humanitarian aid to enter, and make way for a political transition that
protects the rights of all Syrians. At the same time, we have made clear that
now is the time for all nations to stand behind these demands. The Security
Council’s statement last week expressed strong support for the six-point plan
put forward by the UN and Arab League Joint Special Envoy and former UN
Secretary-General, Kofi Annan. Most critically, the Council echoed Annan’s call
for all sides to end the violence, with the onus on the government to take the
first steps. The statement calls for immediate implementation of a daily pause
in hostilities for the delivery of humanitarian assistance, and also for
political dialogue and the release of detained persons. The statement further
expresses support for a Syrian-led political transition to a democratic, plural
political system. And the statement closes by indicating that the Council “will
consider further steps as appropriate.” Without speculating on how exactly
events might unfold in the weeks ahead, I know the administration will
constantly assess what is happening inside Syria and adjust its tactics
accordingly.
(3)
What international
legal principles and other guidelines should govern our actions going forward?
Let me close by suggesting three.
(3-1) art. 24 of the UN Charter ; UNGA and Arab League
First, we must recognize that the primary
responsibility for international peace and security in the United Nations
system continues to rest with the Security Council. Under the UN Charter, only
the Security Council can make certain decisions, such as sanctions
determinations, that all UN member states are under a legal obligation to carry
out. The General Assembly has already played a very important role in this
crisis, as have regional organizations such as the Arab League, a role that
Chapter VIII of the UN Charter expressly recognizes. We both support and
applaud the constructive steps that have been taken by the General Assembly and
particularly the Arab League, which has been a leader in seeking to resolve
this crisis. But we will also continue to press ahead in the Security Council
to build on the advances made in the March 21st Presidential
Statement, with its unanimous endorsement of a UN-supervised cessation of
violence, humanitarian access to all areas in need, and the beginning of a
Syrian-led political transition.
(3-2) rejects “one-size-fits-all” thinking –
military intervention -- explore various options -- difference from Libya –
what international community did ;
Second, as international lawyers charged with
dealing with complexity, we should avoid the trap of seeing this dynamic and
multifaceted situation in one-dimensional terms. For that reason, I do not
agree with those who insist upon viewing our commitment to solving the Syrian
crisis solely through the lens of military intervention. The international
community’s commitment to solving a problem should not be measured so narrowly.
As we have seen throughout the Arab Awakening, different circumstances call for
different responses. In addressing the Arab Awakening in Tunisia, Egypt, Libya,
Bahrain, and elsewhere, this administration has carefully and consistently
applied a smart power approach to foreign policy that rejects
“one-size-fits-all” thinking.
In so saying, we
specifically see no inconsistency between the U.S. approach to Syria and the
U.S. approach to Libya. Neither our legal theories, nor our strategic
objectives, nor our moral commitments have changed. What is different
are the facts. As President Obama observed several weeks ago, in Libya we had
“a UN Security Council mandate . . . and we knew that we could execute very
effectively in a relatively short period of time.” As difficult as Libya was,
the President added, “[t]his is a much more complicated situation. . . . [T]he
notion that the way to solve every one of these problems is to deploy our
military, that hasn’t been true in the past and it won’t be true now.” With
respect to Libya, the Security Council of course adopted two important
Resolutions, 1970 and 1973. The proposed Security Council resolutions on
Syria have differed substantially from 1970 and 1973 in their terms. Moreover,
from a practical perspective, it is by no means clear that the type of actions
taken to protect Libyan civilians would have the same effect in Syria.
But that does not mean
that the international community has turned away from the Syrian people or
ignored the responsibility of the Syrian government to protect its civilian
population. The Syrian government has been condemned for committing human
rights violations by the General Assembly and the Human Rights Council; it has
been placed under sanctions by the Arab League, the United States, and the
European Union; and it has been the subject of a searching report by a UN
Commission of Inquiry—which found credible evidence that it has committed
crimes against humanity. As I alluded to earlier, the United Nations and the
Arab League appointed Kofi Annan as a Special Envoy to seek both a cessation of
hostilities and political reform. And on Sunday, Secretary Clinton will join
the next Friends of Syria meeting in Istanbul, which will endorse the Syrian
opposition’s plan for a peaceful political transition. I recite this list
not to suggest that we are satisfied with where things stand in Syria:
Of course we aren’t. But the principle of a “Responsibility to Protect”
vulnerable civilians, or R2P, itself recognizes the importance of pursuing such
options. This list of actions does give a sense of how--consistent with the
principle of R2P-we and our international partners have been continually
seeking out, developing, and using the tools that are available to us and
appropriate to the situation to advance the protection of the Syrian
population.
(3-3) ensuring that the Assad regime cedes power + denying
impunity for gross human rights violations
Third and finally, a commitment to ensuring
that the Assad regime cedes power and a commitment to denying impunity for
gross human rights violations can and should be maintained simultaneously. Like
so many aspects of the situation, this issue is a delicate one. But as I have
already noted, the United States has strongly encouraged efforts to use
emerging technologies to document and expose human rights abuses in Syria. In
addition to the information that Ambassador Ford has shared on his own Facebook
page, the State Department has set up a dedicated page on the “Humanrights.gov”
website where we are posting satellite imagery of the Syrian Army’s attacks on
civilian areas, alongside policy statements from U.S. officials.
We have co-sponsored
resolutions in the General Assembly and the Human Rights Council stressing the
need for accountability. At the State Department last week, I met with Paulo
Pinheiro, Chair of the UN’s Commission of Inquiry on Syria, which has
forthrightly stated that crimes against humanity have occurred and that the
Syrian people will need to have a leading voice on issues of accountability.
The international community must continue to work to uncover and tell the truth
about what Assad and his thugs are doing, and ultimately, as Secretary Clinton
has said, “there must be accountability for senior figures of the regime.”
While it is critical that a political transition occurs, the anticipation of
certain forms of post-transition accountability may help to facilitate that
process—for example, by opening up space for the regime’s opponents and
encouraging defections by those officials who want to distance themselves from
its crimes. We think it of the utmost importance that, we work with governments
and NGOs alike to continue documenting human rights violations and collecting
evidence to keep shining a light on the inexcusable actions the Asad regime is
taking against its people, and so the international community can uncover and
tell the truth about what is occurring.
conclusion
In sum, in Syria, like
elsewhere in the Middle East during this remarkable Arab Spring, we do not have
the luxury of confronting a simple situation. And neither should we expect
simple answers to such difficult questions. As the organizers of this annual
meeting have reminded us in choosing its title, the central challenge for
international lawyers in the 21st century is “confronting
complexity.” What that means—in this and every setting that modern
international lawyers face—is avoiding simplistic analogies and short-sighted
solutions in favor of thoughtful, nuanced approaches that might deliver lawful
and durable solutions to complex global problems.
Thank you very much. I
look forward to the discussion.
