The 13 December surrender agreement between rebel groups and the regime of President Bashar al-Asad marked a turning point in the five-year long Syrian conflict. Opposition demands for Asad to step down through a transition process now seem impractical and unachievable, mainly because the government now controls most urban areas. Further, the agreement’s relative success will empower its chief negotiators, Turkey and Russia, to reshape the conflict to suit their converging interests, which increasingly sees a role for Asad. The regime will, however, find it difficult to establish its sovereignty over the entire country as Turkish troops and rebel groups backed by Turkey and certain Gulf states – including Saudi Arabia and Qatar – consolidate in more rural areas. Significantly, the regime is now more empowered to pursue its aims, even when these do not fully coincide with the interests of its Russian ally.
Announced late Tuesday, the agreement allowed for rebels and civilians trapped in besieged East Aleppo to evacuate to other rebel controlled areas as regime forces regain control of the remains of the city. This completes the main thrust of the regime’s latest strategy, which aimed at consolidating control of large population centres across the country’s east-west spine, confining the rebellion to rural provinces. The government now controls Damascus in the south, Aleppo in the north, and the central Homs and Hama provinces – the areas many refer to as ‘useful Syria’. This means that any transitional agreement that excludes Asad – as the opposition and Gulf states such as Saudi Arabia have been demanding – will not be possible, thus voiding a major demand of the rebellion.
Already, Qatar’s foreign minister, Mohammed bin Abdulrahman Al –Thani, referred to the Syrian opposition’s calls for negotiations without any preconditions regarding Asad’s role. Further, although rebel groups control parts of the Aleppo governorate, much of Idlib, as well as areas in the south, their armed capabilities have been severely weakened, due in part to fears about their links with Jabhat Fatah Al-Sham (formerly Jabhat Al-Nusra). This relationship has made some governments, especially the USA and Jordan (which train and coordinate activities with the Southern Front rebel group) wary. Funding, even from Saudi Arabia, has thus been reduced, and some states, especially USA and Jordan, prefer to conclude agreements with the Syrian regime around combatting the Islamic State group and preventing a spillover into Jordan and Lebanon.
Shifting geopolitical interests have also influenced the conflict. Following Turkey’s apology to Russia over its downing of a Russian fighter jet in November 2015, a rapid rapprochement has occurred between the two states, and a convergence on Syria is emerging. In September the two countries agreed on Turkish use of Syrian airspace, and in October Turkey aligned its stance on Jabhat Fatah Al-Sham closer to that of Moscow. It is probable that Turkey’s recent troop deployment into Syria was endorsed by Moscow. Russia and Syria have virtually ignored Turkey’s incursion into northern Syria and its efforts to form a buffer zone up to the IS-controlled town of Al-Bab – in return for it limiting its support for rebel groups in east Aleppo.
Ankara’s redeployment of thousands of rebel fighters from Aleppo and its August capture of Jarabulus, in the north of the Aleppo governorate, in was a key factor influencing the Syrian regime’s ability to reimpose its siege on Aleppo in September. In recent months Ankara has attempted to negotiate a rebel withdrawal from east Aleppo, initially only for Jabhat Fatah Al-Sham fighters, thus allowing some opposition governance in the city, and later, following regime objections, for civilians and fighters belonging to other groups. This deal was key to the rapid fall of east Aleppo, and to the fact that Turkish-backed forces rather than the Kurdish YPG will likely be prominent in attempts to drive IS from Al-Bab. Turkey and the other major regional power with troops in Syria, Iran, have also been discussing Syria in the past three months, and have agreed to protect the country’s territorial integrity.
Iran was not, however, directly involved in the surrender agreement negotiations, and has been accused by some as a spoiler, because of its demands that wounded civilians in the regime-supporting towns of Foua and Kefraya in Idlib governorate, which are besieged by rebels, also be evacuated, and by then supporting militia groups which have prevented many evacuation attempts from Aleppo. Iran has attempted a deal on these towns for the past eighteen months with Ahrar al-Sham. Its proposal was to engineer a population swap, with residents of these towns to be exchanged with Sunni residents of Zabadani and Madaya. This would consolidate the Shi'a presence in the area from Damascus to the Lebanese Beka'a Valley. Iran also demanded the bodies of slain militia fighters that it had sent to Syria, including members of Hezbollah in Lebanon, and Iraqi militias. It also demanded information about any fighters that had been taken prisoner.
The Turkey-Russia agreement stalled repeatedly, and although not part of the original Aleppo agreement, it now includes evacuation plans for Foua, Kefraya, and the parts of Madaya and Zabadani as well.Significantly, the USA and EU played no role in the recent surrender agreement, and initially were unaware of it.
With this reconfiguration in interests and power, Syria could be divided into zones of influence, allowing for some cooperation despite the divergences in the Russian, Iranian, and Turkish positions. The prominence of Jabhat Fatah Al-Sham in Idlib may complicate this plan, especially since Idlib directly borders Turkey, and because the group often coordinates with Ahrar al-Sham, which is supported by Turkey and some Gulf countries. Fissures in Ahrar al-Sham have already emerged, and a splinter group, Jaish Al-Ahrar, which is critical of the former’s reliance on Turkey and its supposed antagonism to Jabhat Fatah Al-Sham, has been formed.
With Aleppo back in Syrian government control, Asad has gained the upper hand in the conflict over control of the state. However, the conflict is not about to end; it will probably continue at a lower intensity as the regime conducts operations in Idlib and other rebel-controlled regions, and because rebel groups will alter their tactics in favour of smaller insurgent operations. Many opposition groups may be forced to accept a political solution as their position further weakens, but it is unlikely the regime will allow the opposition autonomy over areas it currently controls. Earlier versions of the surrender agreement, which would have allowed for the maintenance of the east Aleppo local council, and which was accepted by Moscow and Ankara, was discarded because it was rejected by the regime. In many places opposition to the regime from citizens will endure, and not all rebel groups will accept such an eventuality, arguing that they cannot allow all their sacrifices to amount to nought.
By Caroline Timoney
On 22 June, Qatar called for the national prosecution of those who had committed crimes against international humanitarian law in Syria.
This is recognition that the veto of Russia and China at the United Nations Security Council has prevented any attempt to send the issue to the International Criminal Court (ICC), that Syria has not ratified the Rome Statute and that the Prosecutor of the ICC, Fatou Bensouda, has so far not begun her own investigation into the issue.
But who would have jurisdiction to prosecute these crimes? What laws would be applicable?
In March, the UN Commission of Inquiry on Syria stated that prosecution of lower-level perpetrators of war crimes should not wait for peace in Syria, but should occur in foreign jurisdictions. The Commission intended to continue to lobby for a referral to the ICC or an ad hoc tribunal.
Our first question is what system of law would be applicable. In order to answer this one, we must establish whether this is an international armed conflict or a non-international armed conflict. The conflict in Syria easily meets the test for the existence of an armed conflict: is there protracted armed violence between governmental authorities and organised armed groups or between such groups within a state?
But in order to be international at least two different states would have to be involved on opposing sides. In Syria, although the United States and Russia have provided air support to government troops, their involvement would not elevate the conflict to be international. Although often criticised, due to this point the armed conflict in Syria does not meet this definition and thus remains a non-international armed conflict.
Common Article 3 of the the Geneva Conventions may be applied or customary international law, but not Additional Protocol II as Syria is not a party to the latter.
The date at which the armed conflict began in Syria becomes important as war crimes can only occur during a recognised armed conflict. The International Committee of the Red Cross (ICRC) and the Independent International Commission of Inquiry on the Syrian Arab Republic (COI) date the beginning of the armed conflict between February and August 2012. So were there crimes committed against international humanitarian law from this period?
In a word, yes, for the COI’s report from the period 15 February to 20 July 2012 found that there were reasonable grounds to believe that both Government and opposition forces had committed the crimes against humanity of murder, torture, war crimes and gross violations of both international human rights law and international humanitarian law. These violations included unlawful killing, torture, arbitrary arrest and detention, sexual violence, indiscriminate attack, pillaging and destruction of property.
Human Rights Watch released a report in 2013 that highlighted the lack of capacity of the Syrian air force to conduct precise air strikes leading to the deliberate or reckless attacks on civilians; compounded by the rebel Free Syrian Army basing themselves in civilian areas. The report noted the targeting of bakeries and hospitals both of which place renewed pressure on food supplies and medical resources (personnel, equipment and supplies).
Both Amnesty International and Human Rights Watch documented the use of cluster bombs by government forces, which are banned internationally.
On 4 July, Amnesty International released a new report detailing abuses committed by five armed groups in Aleppo and Idlib since 2012. These are the Nour al-Dine Zinki Movement, al-Shamia Front, Division 16, Jabhat al-Nusra and the Ahrar al-Sham Islamic Movement.
Since 2014 all five of these groups have received military and financial support either from the MOM – a coalition of the United States, France, Qatar, Saudi Arabia, Turkey, United Arab Emirates and United Kingdom – in the form of lethal and non-lethal equipment or, and in the case of the latter two groups, have reportedly received military and financial support from Qatar, Saudi Arabia and Turkey.
The Nour al-Dine Zinki Movement lost their funding from MOM in September 2015 but is thought to still receive financial and military support from Turkey, Qatar and other Gulf states.
The report details cases of abduction, torture, summary killings and the harsh application of Sharia law by inexperienced laymen – all of which are counted as war crimes under the Geneva Conventions.
But who has jurisdiction to prosecute and would it be feasible?
Under the Geneva Conventions of 1949, the concept of universal jurisdiction was introduced. If grave breaches of the Conventions occurred then the states parties are required to search for these alleged perpetrators and arrest them for trial under their own national jurisdiction or handed over to another state to prosecute.
States are not given a choice as this obligation imposes an active duty on states to both arrest and prosecute. A state party to the Geneva Conventions must therefore have domestic criminal legislation in place to try alleged perpetrators regardless of their nationality and the location of the offence.
States in the region that have ratified or acceded to the Geneva Conventions would have jurisdiction to try such a case if they are able to arrest an alleged perpetrator, or if they receive such a perpetrator from another nation in the region. Qatar, for example, signed all four Geneva Conventions in 1975 and Additional Protocol II in 1990, as too did the United Arab Emirates, Saudi Arabia, Oman, Lebanon, Kuwait, Jordan, Egypt and Bahrain.
Turkey, Iraq, Israel and Iran have only ratified the Geneva Conventions, while Yemen, currently in the midst of civil war, has ratified all the above treaties but is probably incapable of effecting a successful prosecution.
Of course the Rome Statute would provide a more coherent legal frame for prosecutors with its expanded list of crimes and greater definitions. However, the only states in the Middle East to have ratified the Rome Statute are Jordan and Palestine.
For example without the Rome Statute, the Geneva Conventions do not explicitly regard rape as one of the grave breaches and cases involving persecution based on gender, sexual slavery and other sexual violence would have to rely on the less clear-cut domestic legislation or customary international law.
The international community, in particular the United Nations Security Council, has often been wilfully blind concerning war crimes in the region. Any international tribunal or referral to the International Criminal Court will take many years to come to fruition; the case of Jean-Pierre Bemba, once vice-president of the Democratic Republic of Congo charged with two counts of crimes against humanity and three counts of war crimes, took six years before judgement was given.
Support for Qatar’s proposal may assist in bringing justice to the victims of such crimes. However, justice will be difficult to find where any evidence has fast been disappearing.
The UN high commissioner for human rights, which collates conflict death tolls, stopped counting Syria’s dead in mid-2014 which may hamper the prosecution of alleged perpetrators, and there is currently no solution to the conflict in sight. But any attempt at prosecution may help counter the current culture of impunity in Syria.
* This article was first published in The New Arab
** Caroline is a researcher at the Afro-Middle East Centre based in Johannesburg. She has a Masters in International Law from the University of Cape Town and her research interests include South African politics, refugee rights and international criminal law.
By Afro-Middle East Centre
The recently-signed agreement between sections from Libya’s warring factions will likely have little impact as most Libyan political players and militia groups oppose it, and because local initiatives and views were ignored during its conceptualisation. The deal could increase fragmentation in the already gridlocked Libyan political situation, and provide more space for the growth of the Islamic state group (IS). Further, foreign intervention, under the guise of supporting the new ‘Government of National Accord’ (GNA), is becoming an increasingly distinct possibility, and was key in informing the international community’s support for the deal.
The agreement, signed in the Moroccan resort of Skheirat, ends a year-long negotiation process. The negotiations followed the reconvening of the General National Congress (GNC) in Libya in August 2014 in opposition to the internationally-recognised House of Representatives (HoR) based in the eastern city of Tobruk. The deal envisages the creation of a seventeen-member government, led by the little known Faez Serraj as prime minister, and deputies representing the provinces of Fezzan, Tripoli and Benghazi, who will be based in Tripoli. The internationally recognised House of Representatives (HoR) will play a legislative role, while the GNC will play an advisory role. Only members from both institutions who had signed the deal will, however, be regarded as being members of the two bodies.
Initially a bottom-up process which sought to incorporate civil society and lower level political actors such as mayors and town councillors into a process of finding solutions, the ‘negotiations’ have become a diktat from foreign powers. Diplomats have threatened sanctions for ‘spoilers’, refused to recognise the results of internal negotiations between the GNC and HoR, and stated that the agreement is unalterable. Further, the credibility of the UN has been tarnished by its partiality in the negotiations process. At the core of this heavy-handed attitude is the fears of foreign powers, particularly the USA and European Union, of migration and the growth of IS. Libya is viewed as a transit hub for African migrants seeking to enter the EU through Malta, a fear amplified by IS’s consolidation in the port city of Sirte. Western states regard Libya as a growing alternate IS base, and thus see intervention as inevitable. Already US and French aircraft have carried out operations in Libya, and Britain and Italy are likely to deploy ground troops in the country. These states therefore seek the formation of a Libyan government which will sanction and coordinate such intervention. It is expected a UN resolution will soon be passed, declaring the new entity as the only recognised Libyan government.
The agreement has therefore been criticised by the leaders of both the GNC and HoR as a foreign imposition. Less than half of the members of both institutions (eighty of 180 HoR members, and fifty of 136 GNC members) have signed the agreement – in their personal capacities, critics claim. Further, on the 6 December, the GNC and HoR signed a declaration of intent in Tunis, which envisages the creation of two ten-member bodies to form a unity government and draft a new constitution. This would pave the way for the holding of elections in two years. The UN’s special envoy to Libya, Martin Kobler, dismissed this local process by saying the ‘train had already left the station’, asserting that the UN deal was the only one that would be considered, and imploring all factions to sign it. Consequently, the UN deal is unlikely to be respected by the GNC and HoR, and it is difficult to see the new ‘government’ operating out of Tripoli. Further, militia leaders were not involved in the negotiations, and are even less supportive of the agreement than the GNC and HoR. Thus, foreign security will likely be required to protect the new government, weakening its already diminished legitimacy and adding another centre of power into the current civil war. The power of the GNC and HoR will thus be denuded, allowing IS to gain more ground, especially as it begins to create institutions to govern areas it controls, and locals become disillusioned with the failure of the mainstream political actors abilities to govern and provide services.
The current situation is a throwback to what Libya faced in April 2011, when the UN and NATO continued to advocate regime change even after the Gadhafi regime had accepted the African Union’s road map which would have allowed for the development of a local political solution. The failure to involve local, influential actors in the process is a big reason the country currently finds itself in a situation of political gridlock and spiralling insecurity. The UN seems to have failed to learn these lessons. However, the agreement can still be saved if the UN is more flexible and willing to incorporate the local process, which on 14 December saw the heads of the GNC and HoR meet for the first time in an attempt to broker a solution. The UN would also need to stave off calls for foreign intervention and airstrikes – at least until a legitimate political solution incorporating all major players is concluded.
26 November 2012
Agenda item 37
Question of Palestine
Afghanistan, Algeria, Argentina, Bahrain, Bangladesh, Bolivia (Plurinational State of), Brazil, Brunei Darussalam, Chile, China, Comoros, Cuba, Democratic People's Republic of Korea, Djibouti, Ecuador, Egypt, Guinea-Bissau, Guyana, Iceland, India, Indonesia, Iraq, Jordan, Kazakhstan, Kenya, Kuwait, Lao People's Democratic Republic, Lebanon, Libya, Madagascar, Malaysia, Maldives, Mali, Mauritania, Morocco, Namibia, Nicaragua, Nigeria, Oman, Pakistan, Peru, Qatar, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, Sudan, Tajikistan, Tunisia, Turkey, United Arab Emirates, Uruguay, Venezuela (Bolivarian Republic of), Yemen, Zimbabwe and Palestine: draft resolution
Status of Palestine in the United Nations
The General Assembly,
Guided by the purposes and principles of the Charter of the United Nations, and stressing in this regard the principle of equal rights and self-determination of peoples,
Recalling its resolution 2625 (XXV) of 24 October 1970,1by which it affirmed, inter alia, the duty of every State to promote through joint and separate action the realization of the principle of equal rights and self-determination of peoples,
Stressing the importance of maintaining and strengthening international peace founded upon freedom, equality, justice and respect for fundamental human rights,
Recalling its resolution 181 (II) of 29 November 1947,
Reaffirming the principle, set out in the Charter, of the inadmissibility of the acquisition of territory by force,
Reaffirming also relevant Security Council resolutions, including, inter alia, resolutions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973,
446 (1979) of 22 March 1979, 478 (1980) of 20 August 1980, 1397 (2002) of 12 March 2002, 1515 (2003) of 19 November 2003 and 1850 (2008) of 16 December 2008,
Reaffirming further the applicability of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949,2to the Occupied Palestinian Territory, including East Jerusalem, including, inter alia, with regard to the matter of prisoners,
Reaffirming its resolution 3236 (XXIX) of 22 November 1974 and all relevant resolutions, including resolution 66/146 of 19 December 2011, reaffirming the right of the Palestinian people to self-determination, including the right to their independent State of Palestine,
Reaffirming also its resolutions 43/176 of 15 December 1988 and 66/17 of 30 November 2011 and all relevant resolutions regarding the Peaceful settlement of the question of Palestine, which, inter alia, stress the need for the withdrawal of Israel from the Palestinian territory occupied since 1967, including East Jerusalem, the realization of the inalienable rights of the Palestinian people, primarily the right to self-determination and the right to their independent State, a just resolution of the problem of the Palestine refugees in conformity with resolution 194 (III) of 11 December 1948 and the complete cessation of all Israeli settlement activities in the Occupied Palestinian Territory, including East Jerusalem,
Reaffirming further its resolution 66/18 of 30 November 2011 and all relevant resolutions regarding the status of Jerusalem, bearing in mind that the annexation of East Jerusalem is not recognized by the international community, and emphasizing the need for a way to be found through negotiations to resolve the status of Jerusalem as the capital of two States,
Recalling the advisory opinion of the International Court of Justice of 9 July 2004,3
Reaffirming its resolution 58/292 of 6 May 2004, affirming, inter alia, that the status of the Palestinian territory occupied since 1967, including East Jerusalem, remains one of military occupation and that, in accordance with international law and relevant United Nations resolutions, the Palestinian people have the right to self-determination and to sovereignty over their territory,
Recalling its resolutions 3210 (XXIX) of 14 October 1974 and 3237 (XXIX) of 22 November 1974, by which, respectively, the Palestine Liberation Organization was invited to participate in the deliberations of the General Assembly as the representative of the Palestinian people and was granted observer status,
Recalling also its resolution 43/177 of 15 December 1988, by which it, inter alia, acknowledged the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988 and decided that the designation "Palestine" should be used in place of the designation "Palestine Liberation Organization" in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system,
Taking into consideration that the Executive Committee of the Palestine Liberation Organization, in accordance with a decision by the Palestine National Council, is entrusted with the powers and responsibilities of the Provisional Government of the State of Palestine,4
Recalling its resolution 52/250 of 7 July 1998, by which additional rights and privileges were accorded to Palestine in its capacity as observer,
Recalling also the Arab Peace Initiative adopted in March 2002 by the Council of the League of Arab States,5
Reaffirming its commitment, in accordance with international law, to the two-State solution of an independent, sovereign, democratic, viable and contiguous State of Palestine living side by side with Israel in peace and security on the basis of the pre-1967 borders,
Bearing in mind the mutual recognition of 9 September 1993 between the Government of the State of Israel and the Palestine Liberation Organization, the representative of the Palestinian people,6
Affirming the right of all States in the region to live in peace within secure and internationally recognized borders,
Commending the Palestinian National Authority's 2009 plan for constructing the institutions of an independent Palestinian State within a two-year period, and welcoming the positive assessments in this regard about readiness for statehood by the World Bank, the United Nations and the International Monetary Fund and as reflected in the Ad Hoc Liaison Committee Chair conclusions of April 2011 and subsequent Chair conclusions, which determined that the Palestinian Authority is above the threshold for a functioning State in key sectors studied,
Recognizing that full membership is enjoyed by Palestine in the United Nations Educational, Scientific and Cultural Organization, the Economic and Social Commission for Western Asia and the Group of Asia-Pacific States and that Palestine is also a full member of the League of Arab States, the Movement of Non-Aligned Countries, the Organization of Islamic Cooperation and the Group of 77 and China,
Recognizing also that, to date, 132 States Members of the United Nations have accorded recognition to the State of Palestine,
Taking note of the 11 November 2011 report of the Security Council Committee on the Admission of New Members,7
Stressing the permanent responsibility of the United Nations towards the question of Palestine until it is satisfactorily resolved in all its aspects,
Reaffirming the principle of universality of membership of the United Nations,
1. Reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967;
2. Decides to accord to Palestine non-member observer State status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice;
3. Expresses the hope that the Security Council will consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations;8
4. Affirms its determination to contribute to the achievement of the inalienable rights of the Palestinian people and the attainment of a peaceful settlement in the Middle East that ends the occupation that began in 1967 and fulfils the vision of two States: an independent, sovereign, democratic, contiguous and viable State of Palestine living side by side in peace and security with Israel on the basis of the pre-1967 borders;
5. Expresses the urgent need for the resumption and acceleration of negotiations within the Middle East peace process based on the relevant United Nations resolutions, the terms of reference of the Madrid Conference, including the principle of land for peace, the Arab Peace Initiative5 and the Quartet road map to a permanent two-State solution to the Israeli-Palestinian conflict9 for the achievement of a just, lasting and comprehensive peace settlement between the Palestinian and Israeli sides that resolves all outstanding core issues, namely the Palestine refugees, Jerusalem, settlements, borders, security and water;
6. Urges all States, the specialized agencies and organizations of the United Nations system to continue to support and assist the Palestinian people in the early realization of their right to self-determination, independence and freedom;
7. Requests the Secretary-General to take the necessary measures to implement the present resolution and to report to the Assembly within three months on progress made in this regard.
1Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.
2United Nations, Treaty Series, vol. 75, No. 973.
3See A/ES-10/273 and Corr.1; see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136.
4See A/43/928, annex.
5A/56/1026-S/2002/932, annex II, resolution 14/221.
6See A/48/486-S/26560, annex.
8A/66/371-S/2011/592, annex I.