JURIST Contributing Editor Amos Guiora of the University of Utah SJ Quinney College of Law says that in light of a recent UN report, and in the absence of clear international standards for humanitarian intervention, the US must intervene in Syria to ensure stability and consistency in the region and its own foreign policy…

Deciphering an American presidential administration is truly yeoman’s work. Whether the Obama administration is significantly distinct from previous administrations is too early to judge. Arguably, the task should be left to historians. Nevertheless, even a casual perusal of President Obama’s Middle East policy reflects a combination of naïveté, inconsistency and murkiness. While perhaps by design, the impact — on the ground — is deeply troublesome. While domestic political considerations are a reality, the implications of the administration’s policy in an area of the world as treacherous as the Middle East are, potentially, staggering.

We turn our attention to the, perhaps unanswerable, riddle of how the US distinguishes between the massacre of Libyans by their own government and the massacre of Syrians by their own government. With respect to the latter, as The Wall Street Journal commented, “Mr. Obama has kept a low profile [on Syria] … save to repeat his formulation that Mr. Assad ought to lead political reform or ‘get out of the way.'”

Which brings us to the question: why does the Obama administration choose not to intervene in Syria? How does the Obama administration distinguish between Syria and Libya? Why does the extraordinary violation of human rights in the latter justify international intervention whereas the massacre of innocent civilians in the former does not? With respect to Syria, the Obama administration has limited its response to largely meaningless rhetoric, some of it embarrassingly “distant” and “distracted.”

In both Libya and Syria a brutal regime was deliberately torturing, imprisoning and killing its own citizens. In both cases, thousands of citizens were forced to flee their homes with the understanding that the regime would brook no dissent, giving open fire orders that enabled indiscriminate shooting by its army into crowds of individuals. In other words, both regimes were engaged in massacring their citizens.

In stark contrast, while the US forces engaged Libyan forces, Syrian President Bashar al-Assad continues — unabated and unhindered — to massacre innocent Syrians. Declarations that the Syrian regime has lost legitimacy are true, but they are just that, declarations; devoid of intervention, they are akin to whistling in the wind. That, however, is the essence of the Obama administration’s policy with respect to Syria: mere words.

Humanitarian intervention is an inherently complicated proposition, because it clearly implies both that nation state “A” is engaged in significant violations of the human rights of its own citizens, requiring nation state “B” and/or the international community to recognize that intervention is essential. However, analysis of when intervention is deemed essential and criteria justifying intervention suggest an enormous lack of clarity and lack of objective standards and benchmarks.

The lack of clear criteria as to when intervention is justified, if not required, suggests that the question is one of interpretation, subject to specific circumstances and particular interests. In that vein, then, the question — relevant to the discussion of this article — is: why does the US not determine that the actions of the Syrian government justify international humanitarian intervention? As of January 2012, the Syrian death toll was estimated to exceed five thousand people. In addition to the rising death toll, between 15,000 to 40,000 protestors have been reported missing or in Syrian custody since the protests began.

In fact, a high-level UN human rights team recently released a report [PDF] finding systematic human rights violations by the Syrian government, including summary executions, prisoner torture and targeting children during the government’s crackdown on opposition protestors. Based on its findings, the UN team ultimately recommended that Syria be referred to the International Criminal Court (ICC) for prosecution of the alleged atrocities.

Precisely because international law does not articulate either normative or architectural standards as to when international humanitarian intervention is justified, national leaders arguably have a responsibility to act. The oft-cited phrase “when the cannons roar, the muses are silent” is particularly relevant to this discussion. For a variety of reasons, the international community has determined — whether actively or passively — that the massacre of the Syrian population by the Assad government does not justify international humanitarian intervention.

While the human rights violations occurring on a daily basis in Syria do not compare to the horrors of Rwanda, Kosovo or Sierra Leone, they are not less compelling than the events that transpired in Libya where NATO and the US intervened. If, by metaphorical analogy, the international community is the cannons and the US is the muse, does that mean that the Obama administration is required to be silent? After all, if the quote were to be rigorously applied, then many of the institutions created to minimize human suffering would neither exist, much less function in wartime.

The lack of precise international law criteria articulating when intervention is mandated must not serve as a convenient “out” for the US. As described in detail above, the Middle East is presently in a state of extraordinary flux; uncertainty and dramatic change are the contemporary reality. Inherent to those is danger, significant human rights violations and remarkable instability. In addition, a direct result of President Obama’s Cairo speech and subsequent comments is the expectation that the US will play a decisive role in the Middle East, reflecting attitudes and philosophies distinct from previous administrations. And yet, when given the opportunity to decisively and consistently act in a region of the world whose primary characteristics are instability and inconsistency, President Obama — in the Syrian context — blinked.

The Arab world’s profound disappointment with President Obama is, frankly, justified and disconcerting. President Obama has no one to blame but himself for this development. The disappointment is justified because, as the phrase goes, the bigger the expectation, the bigger the disappointment; it is disconcerting because there is no vacuum in the Middle East and powerful voices and forces of violence pose a threat to the region and world alike.

Inconsistent foreign policy — particularly in a region of the world as volatile as the Middle East — is a luxury US interests cannot brook. In other words, the law’s uncertainty does not justify policy inconsistency, particularly when Syrian citizens are suffering no less than Libyan citizens. In both paradigms, two repressive, historically brutal regimes that have long violated basic human rights are, once again, killing their own citizens. And yet, the powerful similarities notwithstanding, the Obama administration has adopted two distinct responses to what are, in essence, mirror paradigms.

In the context of providing much needed — actually critically required — humanitarian intervention, the president has failed the Syrian people. While the administration has intensified its rhetoric regarding the Syrian regime, words do not, and never have, provided actual assistance to those subjected to indiscriminate open fire orders with live ammunition. Perhaps words may satisfy the speaker, but to the victims, they are just words. While they can create expectation, and subsequent disappointment, they are not a substitute for action.

Some will query, and legitimately so, why it is the US that must come to the assistance of the Syrian population. Obviously, the French and British have the capability, resources and historical relationship to the Middle East. However, neither President Sarkozy nor Prime Minister Cameron promised the people of the Middle East a new dawn; neither stood in Cairo and created the expectations that President Obama did. In addition — as a reality of contemporary geopolitics — in the aftermath of the fall of the Berlin Wall, there is only one superpower in the world today. To be a superpower requires both military and moral leadership.

Criteria regarding international humanitarian intervention are unclear; however, the situation in Syria is clear. Nevertheless, the ambiguity surrounding whether/when a domestic crisis justifies international humanitarian intervention need not contribute to policy that is clearly at loggerheads with itself. That is, while the law is unclear, President Obama’s polices are similarly unclear. What is clear, however, is that the Syrian government is massacring its citizens in a manner similar to the Libyan government. Evidently, the similarity ends there, for the actions of the Obama administration are fundamentally different with respect to the two countries. Needless to say, that is the president’s prerogative; nevertheless, the dissonance is jarring, both philosophically and practically.

Deciphering the president’s policy is proving as complicated as establishing international standards justifying intervention. However, while the former can be subject to continuous academic debate, the human rights violations that define Syria today cannot be addressed by mere rhetoric, even if forceful. President Obama has an opportunity to apply the principles of international humanitarian intervention in a manner that will restore confidence in his leadership and set a clear example of consistency and stability. That is particularly important in a region of the world that is, at the moment, a most dangerous powder keg of extraordinary instability and danger.

Amos Guiora is a Professor of Law at the University of Utah SJ Quinney College of Law. He is the author of numerous books and articles dealing with military law and national security including Freedom from Religion: Rights and National Security and Intervention in Libya, Yes; Intervention in Syria, No: Deciphering the Obama Administration, which will be published in the Case Western Reserve Journal of International Law this spring. He is also a former commander of the Israel Defense Forces School of Military Law, where he had command responsibility for the development of an interactive video teaching soldiers a 10 point code of conduct for interaction with civilians.

Suggested citation: Amos Guiora, Humanitarian Intervention in Syria and the Role of the US, JURIST – Forum, Feb. 23, 2012, http://jurist.org/forum/2012/02/amos-guiora-syria-intervention.php.