The war in Syria is six years old now, and as the April 4th gas attack demonstrated, the use of prohibited weapons has not slowed or halted since the conflict began. To better understand the international legal implications of the war and what the world can and should be doing about it, we must first understand the laws and practices that are being violated. A base understanding of the UN system is required for this, but luckily we have discussed that before.
UN General Assembly hall
The United Nations charter outlines, among other things, the basic principle of state sovereignty. That is to say, no state is legally allowed to interfere in the internal affairs of another state. The exception to this rule is when the UN Security Council (UNSC) votes to authorize actions under Chapter VII of the charter, which may include military operations. However, Chapter VII considerations are to be discussed only in the most dire of circumstances. In all other instances, the ultimate responsibility to protect vulnerable populations lies with the government of the state in question. In a case which sees a population suffering serious harm from issues such as insurgencies, repression, state failure, natural disaster, or internal war, the principle of non-intervention is replaced by an international responsibility to protect. All of his will be explained more thoroughly throughout this article.
charter of the united nations
chapter i, article 2
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.
chapter vii, article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
chapter vii, article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Chinese peacekeepers deploying to South Sudan
Responsibility to protect (R2P) has been born out of international failure to prevent and deter genocide and crimes against humanity since the inception of the United Nations after WWII. It seems that with each atrocity the world comes one step closer to “getting it”, but we’re still a few steps away from that point. Following the Rwandan genocide in 1994 and the Srebrenica massacre in 1995, then-Secretary General Kofi Annan, in a document called the Millennium Report (A/54/2000) stated:
millennium report
217. I recognize both the force and the importance of these arguments. I also accept that the principles of sovereignty and non-interference offer vital protection to small and weak states. But to the critics I would pose this question: if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica — to gross and systematic violations of human rights that offend every precept of our common humanity?
Flag of the African Union
This instance was the first official mention of R2P at the United Nations. However, it was the African Union (AU) which spearheaded R2P doctrine. With the passage of the Constitutive Acts of the African Union, the organization was armed with the legal authority to intervene in certain circumstances.
constitutive act of the african union
article iv
h. The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity;
UNDOF troops in the Golan Heights
In September of 2000, the Canadian government founded the International Commission on Intervention and State Sovereignty (ICISS) with the purpose of coming to a solid conclusion on the future of R2P doctrine. ICISS found, in a document titled The Responsibility to Protect, that the ultimate responsibility for the well-being of citizens is with their respective state government. However, in a case where the state is unable or unwilling to protect its citizens, or in an instance when the state itself is the instigator of the violence, the responsibility to protect said citizens falls upon the international community. However, ICISS argued that several criteria must be met before military intervention could ever be justified. The intervention must be for a valid reason (a “just cause”), it must be both a last resort and proportional to the threat at hand, it must have reasonable prospects, it must be authorized by the UNSC, or at least given a “nod” by the General Assembly (UNGA), and it must have clear objectives with withdrawals planned and appropriate rules of engagement.
Most importantly for R2P thus far has been the 2005 World Summit, the largest gathering of heads-of-state in UN history. At the summit, among other things, an R2P resolution was unanimously adopted. The document (A/60/L.1), states the following with regards to R2P:
2005 word summit outcome document
Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity
138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
With specific regard to Syria, the UNSC has also made mention of the conflict by name. Resolution 2118 was passed in 2013 with unanimous approval from the Council, and addresses specifically the situation in Syria with regards to chemical weapons use.
S/RES/2118 (2013)
1. Determines that the use of chemical weapons anywhere constitutes a threat to international peace and security;
21. Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter;
OPCW Headquarters in The Hague, Netherlands
In short, the UNSC is calling on parties to immediately refrain from further CW use and warned that further violations would result in Chapter VII measures. Furthermore, the resolution recognizes the use of chemical weapons as a threat to international peace and security. That is to say, the UNSC has recognized its responsibility to end the conflict. But, as even a casual UN observer can testify to, the UNSC is deadlocked currently due to Russia’s recurring veto of any resolution with any teeth or binding power whatsoever. In any ordinary circumstance, that should be where the issue dies. However, in extreme cases, when the maintenance of international peace and security is threatened (and again, the UNSC has declared that it is), the General Assembly may invoke Resolution 377(a), the Uniting for Peace resolution, to attempt to work around a stalled Security Council. While this resolution, which would be drafted during an emergency session of the General Assembly, would not be binding in the same way as a standard UNSC resolution, it could indicate global support for an intervention in a chosen state, in this case Syria.
general assembly resolution 377(a)
- Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace ,or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force where necessary, to maintain and restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations.
Thus, the United Nations has every mechanism required to work around Russia’s veto, it just takes initiative on the part of Member-states. And to kick-start that initiative, one might want to have a lot of compelling evidence and arguments on their side to gather world attention and sympathy.
