A "Legal Intifada" Appears Likely for More than Just the Palestinians
Will Syria Go on the Offensive at The Hague?
by FRANKLIN LAMB
La Maison d'Avocats, Damascus.
Even before the historic 139 to 8 vote of the UN General Assembly on November 29 of this year which opened up a plethora of legal remedies for Palestinians, a "legal intifada" -- to borrow a phrase from Francis Boyle, Professor of International Law and a longtime advocate of advancing resistance to the illegal occupation of Palestine through the rule of law -- has been taking form in this region.
The reasons include nearly seven decades of countless Zionist crimes against Muslims and Christians in occupied Palestine and far beyond. As Professor Boyle has suggested, the opportunities presented to the PLO by the lopsided UN vote ""can mean numerous available legal remedies ranging from the securing of a fair share of the gas deposits off the shores of Gaza, control of Palestinian airspace and telecommunications and, crucially, bringing the Zionist regime to account at the International Criminal Court and the International Court of Justice.
Syria too, currently under enormous pressure from international interference into the internal affairs of the country and the subject of an intense regime change project led by the US and France, has international legal remedies immediately available to it stemming from the actions of the US, UK, France and others in imposing on Syria's civilian population one of the most severe and clearly illegal layers of sanctions. Were Syria and others to file an Application for an Advisory Opinion with the ICJ few in the international legal community have much doubt that targeting civilians economically and attempting to destroy the Syrian economy -- for no other purpose than to ignite rebellion -- would be considered a violation of international law at the International Court of Justice.
Granted there are some potential jurisdictional problems given that Syria has not yet accepted the Article 36 Compulsory Jurisdiction of the World Court, as provided in the Statute of the Court, and the strong campaign at the UN that would certainly be waged by the Obama Administration to challenge ICJ jurisdiction to hear a case on behalf of Syria and its civilian population, but they can be overcome. As a general rule, an Advisory Opinion requires a simple majority affirmative vote by the UN General Assembly or an Application by one of the designated UN Specialized Agencies. This might be a tough job to secure the former but it is doable with the latter. Moreover, should Syria accept the compulsory jurisdiction of the ICJ it could likely quickly resolve the issue of sanctions by claiming a legal dispute with one or more states that also accept CJ and are supporters of sanctions. For example, the UK, France and their NATO and Gulf allies.
Aspects of a possible filing at the International Court of Justice on the legality of US-led sanctions are currently being researched by seasoned international lawyers and academics, at various Western and International law centers. Supporting efforts being worked on include drafting amicus curie briefs on the issue of the legality of the US-led sanctions to be submitted to the Court, plans for securing the widest possible political support for challenging the US-led sanctions from among Non-Aligned Movement countries, international peace groups, NGO's, pro-peace websites, bloggers, social media and online activists as well as organizing a skilled media center to disseminate information about the case including quickly publishing, in paperback book form, one of the key Annexes to be submitted to the ICJ upon filing the Application. This volume will present Syrian government and International NGO prepared data on the inhumane effects of the US led sanctions in all their aspects, including by not limited to children, the elderly and the infirm, plus the effects of the US-led sanctions on the Syrian economy generally, i.e. consumer goods, medical delivery systems, financial institutions, currency values and related aspects of the lives of the civilian population of Syria.
Were Syria, and others, to take the illegal and immoral US-led sanctions case to the World Court and other available venues, they would shift their diplomatic position from a defensive status to taking the offense. Such a bold initiative would advance accountability under international law and, because the ICJ would likely grant a Petition for Interim Measures of Protection, the US-led sanctions could be suspended during the course of the judicial proceedings. Obviously this lifting/freezing of the sanctions would immediately and directly inure to the benefit of the Syrian civilian population, including the half million Palestinian refugees in Syria as well as thousands from Iraq.
This would work in concert with the "THREE B's", to borrow a phrase from Russia's top middle east envoy, Deputy Foreign Minister Mikhail Boganov, referring to Mr. Brahimi, Mr. Bogdanov, and Undersecretary William Burns, a former ambassador to Moscow, who would be urged to intensify their focus on achieving a diplomatic resolution of the Syrian crisis based on modified June 2011 Geneva formulation of a transition period leading to the 2014 elections.
According to several International lawyers surveyed between October and December, 2012, Syria clearly has the facts of the US sanctions case in its favor and there are ample solid legal theories to argue to and convince the World Court. Under the ICJ Statute, the Court must decide cases solely in accordance with international law. Hence the ICJ must apply: (1) any international conventions and treaties; (2) international custom; (3) general principles recognized as law by civilized nations; and (4) judicial decisions and the teachings of highly qualified publicists of the various nations. From this body of international law the International Court of Justice would find ample basis to support Syria's claims not only for the benefit of its civilian population but also to advance the rule of law in the global community.
The ICJ is made up of 15 jurists from different countries. No two judges at any given time may be from the same country. The court's composition is static but generally includes jurists from a variety of cultures. Among the Principles, Standards and Rules of international law that Syria may well argue to the World Court, may include but not be limited to, the following:
The US led sanctions violate international humanitarian law due to the negative health effects of the sanctions on the civilian population of Syria. This renders the sanctions illegal under international customary law and the UN Charter for their disproportionate damage caused to Syria's civilian population;
The US led severe sanctions regime constitutes an illegitimate form of collective punishment of the weakest and poorest members of society, the infants, the children, the chronically ill, and the elderly;