A failure and a success - UNSMIS still in Syria without reason, Senegal to prosecute Hissène Habré

Friday saw two major developments at the UN. First, the Security Council adopted resolution S/RES/2059 (2012) that extends the mandate of the UN Supervision Mission in Syria (UNSMIS) for thirty days without any other provisions. If you ask me, this is probably the worst possible decision. Even doing nothing would have been better in my opinion. The Syrian opposition has classified UNSMIS as ineffectual and useless, which is not surprising. Humanitarian law experts from the Red Cross, to the UN Human Rights Council, to Secretary-General have classified the situation in Syria as an internal armed conflict. Following the assassination of several ranking government officials, neither side seems willing to back down, or to be in a position where they could back down even if they wanted to do so. Wednesday's bombing in Damascus makes increasingly clear that Syria will almost certainly be in a state of all-out civil war for at least the next twelve months.

In that context, you have to ask yourself what good can three hundred unarmed observes do in a war zone covering almost a hundred and eighty thousand square kilometres. The mission's purpose was to supervise the implementation of Kofi Annan's peace plan, which Annan himself has declared a failure. It makes you wonder why all members of the Security Council (2059 was adopted unanimously) are so eager to renew this mission.

In terms of other military options, a Libyan style intervention is neither feasible politically nor advisable strategically. In the case of Libya, the government's trump card was the use its air force, an advantage easily negated by the imposition of a no-fly zone. In the case of Syria however, the problem is the government's use of tanks, artillery and other heavy weapons, which are not easily stopped from the air alone. The only strategically viable option I can think of is something resembling what UNPROFOR was supposed to do in Bosnia, and we all know what a disaster that was. 

On the non-military, economic sanction, in particular a rigorous arms embargo, on both sides, would hopefully take the edge of the conflict as the belligerents would begin to run out of ammunition. Of course this will never happen. The BRICS country's are to invested in their arms trade with the Syria government, Turkey and Saudi Arabia, backed by the US, being heavily involved in arming the opposition. Russia in particular has a vested interest in keeping Bashar al-Assad in power. With a NATO member, in the form Turkey, controlling the Bosporus and the Dardanelles, Russia's naval base in Syria is its only direct access to the Mediterranean Sea.

All that considered, my opinion is that the best of the few viable options for the UN is to do nothing, terrible as it may sound. Once a conflict has gotten this far, there is stopping, and with opposing interests at stake, accelerating its course to one outcome or another is not feasible. Meaning, any serious intervention on the part of the UN would only unnecessarily jeopardise lives, without any significant impact.

The other major development on Friday was the final judgement ICJ in Question Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). In stark contrast to the negative decisions of the Security Council on Syria, I can only describe the judgement as a positive outcome. The concerns former Chadian dictator Hissène Habré, who is currently residing in Senegal. 

 

I'll begin with a bit of background information. Habré came to power in Chad in 1982 as the head of a coup d'état, only to be ousted by a coup himself in 1990. He is accused of political repression, using torture and forced disappearances during his time in office. It's not without reason he has been nicknamed the African Pinochet. Following his fall from power, Habré fled to Senegal, where he has been living ever since. 

After a failed attempt to bring him to trial in Senegal in 2000, several Chadian exiles instituted criminal proceedings against him Belgium under the passive personality laws. These laws say for the most serious crimes under international, namely genocide, war crimes, and crimes against humanity, Belgian courts have jurisdiction if the alleged perpetrator or victim is a citizen or a resident of Belgium. In the case of Hissène Habré, this law is further internationally by the UN Convention against Torture (CAT).

The courts judgement begins with a number of procedural questions. First it evaluates Senegal's claim that there is no dispute between Belgium and Senegal on this question. Given that several Belgian extradition requests, backed by an INTERPOL red-notice, have been declined, and that since 2000 no Senegalese court has dealt with the matter internally, the Court comes to the obvious conclusion that this claim is patently absurd. Next it considers other question surrounding the Court's jurisdiction in this case. It finds that it doesn't have jurisdiction to consider Belgium's claims under customary international law, but does have jurisdiction to evaluate question relating to the CAT. 

 

The final procedural question considered by the court is the admissibility of Belgium's claim, and this is where it gets gets particularly interesting. The court finds that Belgium's claim is admissible simply because it is party to the Convention against Torture: “[T]he Court concludes that Belgium, as a state party to the Convention against Torture, has standing to invoke the responsibility of Senegal for the alleged breaches of its obligations under...the Convention in present proceedings.” It goes on to state that whatever particular right Belgium may in the proceedings is therefore not relevant.

 This is particularly powerful, because it means that Senegal has breached its international obligations, not only towards Belgium, but towards every other State party to CAT. This means that there are now some 145 countries with a right, maybe even an obligation, to demand that Senegal bring Hissène Habré to trial, or extradite him to another country for that purpose.

Finally, the court evaluates the substantive merits of the case, and comes to the natural conclusion that Senegal has an obligation to prosecute or extradite Hissène Habré and that its reason for not doing so are insufficient under international law:

“The Court...unanimously finds that the Republic of Senegal must, without further delay, submit the case of Mr. Hissène Habré to its competent authorities for the purpose of prosecution, if it does not extradite him.”