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Syria And US Foreign Policy: The Constitutionalism Of International Law In The Hermeneutics

By Dr. Nafees Ahmad

28 August, 2013

The fundamental principles of Customary International Constitutional Law are the bedrock of modern international law which has been adequately adumbrated in the schematization of the United Nations Charter that forms the constitutionalism of international geo-political order and law whereunder sovereign equality is a pervading paradigm of negotiating, mediating and conciliating international disputes and use of force is prohibited by one country against another country unless and until it is duly authorized by the United Nations Security Council (UNSC) that too in the legitimate cases of self-defense. Ambition of few powerful nations cannot violate ambit of international law. In the present circumstances in Syria, the first option available to Obama administration is to secure the mandate of UN Security Council to intervene in Syrian crisis.

The world is still in the grip of cold-war hangovers so far international political permutations and military goalposts are concerned whereas multilateralism has been gaining ground to govern international relations and diplomatic desideratum. The international actors in Syria have been pulling political strings in opposite directions incumbent Assad Administration is being actively backed by Russia whereas it is being opposed by the US but another permanent member of the UNSC China lambastes any intervention and favours a peaceful settlement between President Assad and his adversaries. In such a scenario, there is a zero possibility of US securing any use of force authorization in UNSC against Syria and US and its allies may have unilateral military actions that would utterly be against international law and its progressive development.

In the history of military actions or use of force for the settlement of international disputes there have been positive and negative precedents outside the UN mandate such as US and its allies’ invasion of Iraq in 2003 who cooked-up sham justification for the war, concocted evidence of Weapons of Mass Destruction (WMD) and misguided project of war on terror whereunder more people got killed than by terrorism itself. In Iraq war, only military objectives were achieved with precision and exactitude with a powerful international military alliance called NATO devoid of any aftermath rehabilitation, reconstruction and compensation plan wherein international humanitarian law and its fundamental principles were grossly circumvented which could have been implemented in letter and spirit but IHL turned out to be a biggest casualty. It was, indeed, a case of disastrous and preposterous US foreign policy since Vietnam War faux naïf.

NATO sans UN authorization in 1999 attack of erstwhile Yugoslavia consecutively for three months to stop Milosevic in Kosovo from his alleged complicity in crime against humanity is claimed as a victory for the doctrine of “Responsibility to Protect” (R2P). Recently, Samantha Power---new US ambassador to UN--- claimed that Kosovo intervention was a victory for the upstanders over the bystanders when human rights are in jeopardy. However, NATO failed to intervene in Rwanda in 1994 to prevent genocide, mass transgressions of human rights and civil liberties there.

But international public opinion is emerging in favour of resorting to use of force in commensurate with international law while keeping in view world reaction to Yugoslavia and Rwanda having recourse to the doctrine of “Responsibility to Protect” (R2P) which have been vehemently evolved, advocated and administered as one of the attributes of US foreign policy. Consequently, if any national government commits crimes of mass magnitude such as crime of genocide, crimes against humanity, torture, cruel and inhuman treatment of diabolical dimensions resulting in collective culling of human rights. However, the doctrine of R2P primarily is at variance with the notions of constitutionalism of international law enunciated in the UN Charter that prohibits use of force in black and white whereas its interpretation by the national governments are of the understanding that it allows the use of force. This has presented a paradoxical permutation of a situation that is fast becoming a monster unless it is contained at the earliest.

Only a reconciliatory approach can now decipher this paradox by negotiating a humanitarian intervention within the international constitutional limits of UN Charter by all the stakeholders including China, Russia and US. This reiterates the sanctity and legitimacy of International Law devoid of any imagination, innovation and misadventure outside the existing international institutionalism. But US has appeared to have a different interpretation of the whole situation wherein international consensus for humanitarian intervention is to be built by incorporating informal changes in the UN Charter. It would, indeed, be a flagrant decimation of contemporary constitutionalism of international rule of law that perceives territorial integrity, political sovereignty, respect for human rights and democratic national and international governance a sina qua non of modern international law. Today, US must appreciate that modern international law traversed a multifarious peregrination from 1945 geo-political reality. Any attack on Assad administration must not put aside UN Charter. Today, multilateralism has come to stay and to make international behavior of nation-states accountable and transparent which does not accept any intervention beyond law.

Dr. Nafees Ahmad
Ph.D. (International Refugee Law & Human Rights)
LL.M. (International Law & Human Rights)
LL.B. (H) B.A. [(H)-Anglo-American English Literature]
Assistant Professor of International Law
224, II Floor, Akbar Bhawan
Faculty of Legal Studies, South Asian University,
Satya Marg, Chanakyapuri, New Delhi-110021
Email: drnafeesahmad@sau.ac.in



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