The United Nations was meant to save succeeding generations from the scourge of war. After two years of Syrian civil war and more than 100,000 deaths, not enough has been said of the Security Council’s inaction and the veto.
Political commentators have detailed the machinations and the diplomatic cut and thrust between the US and Russia. This became more complex yesterday when the Syrian president, Bashar al-Assad announced his decision to accept Russia’s plan and mediating role and hand over Syria’s chemical weapons stockpile to the international community, if the US backed down on possible military action.
The details of this plan and its implementation will prompt yet more diplomatic wrangling. It will almost certainly mean the US and allies seeking a UN Security Council resolution to set up enforcement in the event of non-compliance, but which inevitably will be watered down by threat of the Russian veto.
The Russians and Chinese have vetoed three relatively moderate Security Council resolutions. Most legal opinions are that intervention is unlawful without the Council’s authorisation, while the US and UK governments and others declare the opposite. The legal debate appears to have been inconclusive, yet again.
International law provides the language for this political battlefield, the arguments about intervention and Security Council authority. It is the obstacle for international action. The doctrine of humanitarian intervention has been argued again, including by the UK.
But this does not unite states or gain close to an international consensus. The essence of objections is that one cannot bypass the UN and create a unilateral tool only for powerful states.
Illegal but legitimate
At best, some say humanitarian intervention can be the basis for intervention that is “illegal” but “legitimate”. In comparison, the US argument to intervene to enforce a violation of international law, the use of chemical weapons, goes beyond anything that is currently accepted.
The content of international law is not exhausted by its rules, like all law it contains underlying principles and aims to be a coherent system. The UK and others hold on to humanitarian intervention, rightly, as they are unwilling to concede to Russian and Chinese vetos in the face of mass atrocities. It is telling there has been little serious objection by other states to assistance and even arming of opposition groups, normally considered a clear violation of international law.
As a barometer, it suggests that legitimacy, and perhaps even the law, is against Syria and their Russian and Chinese friends. The key question is how to convert that legitimacy to a sustainable argument that the necessary action is lawful – whether military intervention, sanctions, arms embargoes or otherwise.
Saying ‘no’ to the veto
The wide-ranging legal justifications that have been offered are incorrect, but so too is the position that simply gives up to Russian and Chinese vetos. The veto’s use, or threat of use, reflects a concession that the UN, and the international legal system, exists at the intersection of power and authority. The veto has enlarged to a point whereby it has no limits and the P3 – US, UK and France – have been complicit and benefited from that.
However, from a legal and legitimacy perspective, it is hard to sustain the veto as an absolute and limitless discretion. Even as rationalised by the P5 in San Francisco in 1946 it had limits. Their joint position was that, in view of condition of world at that time, they could not be expected “to assume the obligation to act” and especially “in consequence of a decision in which they had not concurred”.
The Charter accordingly included a standing force provided by all member states, and a Military Staff Committee of the P5, neither of which has eventuated in practice. With power and privilege came responsibility, and in that context the veto made more sense politically.
Russia and Syria, to some extent, now have the best of both worlds. The Russian and Chinese veto is used to frustrate any diplomatically acceptable response by the Council, yet they have also ensnared the P3 in painstaking Council deliberations and concessions on the narrow chemical weapons issue.
The Council agreeing a resolution on Syria would be a real achievement, and no doubt the P3 will try to broaden the agenda, but unless Russia changes its position this will be difficult.
What the P3 has to do
The P3 and others need to turn the tables. It should not be about them justifying the legality of action, but rather about Russia and China trying to justify their vetos. The best approach for the P3 and others would be to negotiate and put a resolution to the Council that is supported by 13 of the 15 members (minus Russia and China), by the Arab League (where the Syrian National Council holds the seat), and sets out the basis and terms for action in Syria.
The legal assertion to accompany action based on that resolution would be that the two vetos are invalid. There are various legal arguments available to achieve this goal. Few if any states, apart from the closest allies of Syria and Russia, would disagree with that, which would create an invaluable precedent for the Council. This is where legitimacy can reconnect with legality. The main problem is that it requires the P3 to concede ground on the veto, a privilege for them also and something they have demonstrated no desire to do, even quite recently in UN reform discussions.
The Security Council needs to urgently protect civilians, including by degrading Syria’s military capacity and tipping the balance away from the Assad regime. Syria can then be forced to consent to a UN-supervised peace agreement and transitional process.
The longer the war goes on, the more difficult it becomes to pick up the pieces. All Syrians need to be invested in the future, and victors’ justice will simply lead to the further undoing of the fabric of Syrian society. The sooner that powerful countries – the P3 especially – are willing to focus on undermining the veto and conceding this privilege, the sooner the UN can fulfil its calling and help the Syrian people.