JURIST Guest Columnist David M. Crane, Syracuse University College of Law, discusses the necessity of use of force in the Syrian conflict…

The cornerstone to the UN paradigm is to settle disputes peacefully, using force only as a last resort. Yet, restoring international peace and security sometimes requires a hardened approach to ensure that peace and security.

There are decades of international treaties, custom and precedent that support what I call hardened humanitarianism. When we have to deal with a tyrant, thug, dictator or rogue head of state who turns on his own citizens, the international community or a member state of that community should step forward with a clear and firm position-stop it or force will be used.

A tyrant only understands one thing-power. When he feels the sting of consequence for his actions that tyrant begins to focus on that use of force against him. The use of this more hardened approach in using force to stop a tyrant’s actions will cause that tyrant to pause, to consider his next steps.

Appeasement in the face of tyranny never works. History is replete with anecdotal evidence of this from the Armenian genocide to the Sudetenland. A hardened policy of seeking a peaceful dialog with the assurance of a forceful resolution, should that dialog fail, makes for a more meaningful discourse.

Our international legal and policy system has drawn lines related to protecting civilians in a conflict and banning certain type of weapons systems per se. Most, if not all, states parties have signed onto these norms. We don’t have to be histrionic when a tyrant ignores these clear lines beating our chests with empty words. When that tyrant steps over a line hit them hard, use force, show the world there are consequences!

US action against Al Qaeda after they attacked the US Embassies in Kenya and Tanzania are examples of facing down the lawless elements of our society under the international legal concept of reprisal. In 2005 the world came together to create a doctrine that laid down a marker that declared that the international community has a right to step in to block a tyrant or head of state who is turning against his own citizens committing war crimes and crimes against humanity. Called the Responsibility to Protect (R2P), the doctrine was a clarion call to arms should there be alleged violations of international law. Unfortunately, R2P has fallen short of the ideal based on the political perception that it is a doctrine that can be easily used by various powers against weaker nation states for alleged violations. Despite this the principle idea of this responsibility to protect citizens from their own leaders remains.

The long and tragic kaleidoscopic conflict that is Syria has now gone beyond peaceful resolution. A hardened sense of humanity calls for continued cruise missiles strikes and other military action every time Assad crosses the lines laid out under international norms. Kaleidoscopic conflict is fast becoming a new concept in the dirty little wars of the 21st century. Old doctrines for war fighting and the legal set of rules that surround warfare that have been tested over time are being challenged at all levels. Just when planners think there is a viable course of action developing related to a conflict, such as in Syria, one thing changes and everything changes, hence the term kaleidoscopic. This impacts on what is called the deliberate planning cycle in modern parlance throwing out how international and domestic organizations plan for and deal with conflict on a day to day basis. At the end of the day we are beginning to face situations where there is no solution under current policy and doctrine. This gives us pause as to how to advise world leaders in dealing with any given conflict. This pause can allow a tragedy, such as in Syria, to go on and on without any foreseeable ending.

These dirty little wars have a direct impact on how parties to a conflict deal with civilians found in and around the battlefield. One of the key cornerstone concepts of the international humanitarian law is that civilians are to be protected and that the intentional targeting of a civilian is a war crime plain and simple. We see around the globe today parties to a conflict flagrantly ignoring this key legal concept. With no apparent repercussion to these attacks on civilians, actors move about the battlefield with impunity. Again this is the conflict in Syria, but can be seen also in the fighting in South Sudan. This is why a more hardened approach to our humanitarian principle of using force where legally appropriate will cause actors to pause and reconsider wholesale destruction in any given conflict.

This hardened approach must be done under law or we weaken our international norms, yet it must be done. Enough is enough in Syria. States parties who for whatever reason give that tyrant support should also be dealt with for their aiding and abetting of international crimes with legal sanctions. We charged President Charles Taylor with aiding and abetting a conflict, among other modes of liability, in next door Sierra Leone, and he was convicted on those charges I signed in an indictment against him on an aiding and abetting theory. The aiding and abetting mode of liability in international criminal law is alive and well and certainly can be touted as a possible ramification for a country who aids a party to a conflict that gasses its own people with sarin. Russia’s complicity in that gas attack sets Putin and his regime up for political sanction and possible legal action in the future.

Certainly, dialog and appropriate diplomatic discourse should continue. An end to the Syrian conflict must be the goal, hopefully a peaceful end, yet the hardened fist of a legal use of force to protect humanity should be a viable course to bolster that dialog. The missile strike on the airfield in Syria changed the political discourse on how the world’s is looking at the quagmire that is the Syrian conflict. Regardless of how one feels about the motives or the rationale behind the strike, it is posited that Assad, with the advice of Russia and Iran will think carefully about another sarin gas attack. If they know that force could be used again in reprisal for clear violations of international norms such as gas, perhaps they will refrain. This is the outcome that is hoped in using this new concept of hardened humanitarianism.

Suggested citation: David M. Crane, The Fist in a Velvet Glove-Hardened Humanitarianism, JURIST – Forum, Apr. 20, 2017, http://jurist.org/forum/2017/04/David-Crane-hardened-humanitarianism.php