Posted by Ofilio Mayorga on August 28, 2013  |   Comment  |   Subscribe

 
As western States prepare for military action against the Assad regime in response to an alleged chemical attack against innocent civilians, inevitably we look to NATO’s bombardment of Kosovo as a moral and legal precedent. While the west may point to Kosovo to justify such action in Syria, let’s put ourselves in the shoes of Damascus for a second. Are there any lessons Assad can draw from Kosovo? To be more specific: Would Damascus sue NATO countries in the International Court of Justice (ICJ) for the unlawful use of force, just as the Former Yugoslavia did after the airstrikes in 1999? It is not entirely clear that Assad would adopt a similar course of action, but NATO countries, especially those that are parties to the Statute of the ICJ, such as the U.K. and Belgium, should bear this in mind before moving forward with a strike without the authorization of the UN Security Council.
 
On April 29, 1999, almost a month after the beginning of operation Allied Force, the Federal Republic of Yugoslavia instituted proceedings at the ICJ against 10 States (see docket of the ICJ in 1999), including Italy, the Netherlands, Germany, Belgium, the U.K, and Portugal. In its application to the Court, the Federal Republic of Yugoslavia alleged violations of the obligation banning the use of force against another State, the obligation not to intervene in the internal affairs of another State, the obligation not to infringe upon the sovereignty of another State, and the obligation to protect the civilian population in wartime. In this instance, the Court dismissed the case at the jurisdictional phase because the Federal Republic of Yugoslavia was not a member of the U.N at the time the case was filed, and therefore, it was not a party to the Statute of the ICJ. (See para. 89 of the ICJ’s judgment on jurisdiction).
 
In contrast, Syria is an original member of the U.N. and it continues to be as of today. Although Syria has not accepted the compulsory jurisdiction of the ICJ, it could file a declaration to that end before a NATO strike, or even after the strike, just as the Former Republic of Yugoslavia did. This means that the ICJ could not dismiss a Syrian lawsuit on the same grounds.
 
It would be interesting to see if the ICJ is ready to rule on the legality of humanitarian intervention.