The Syrian conflict is now in its ninth year, with over half a million casualties. The international community can hardly plead ignorance, as images of its scenes – unarmed civilians killed by chemical weapons, hospitals bombed, babies pulled out of rubble, bodies of those who tried to flee washed up on coastlines – have flooded the global media. 55,000 of the over half a million casualties have been children, with 5.6 million displaced, and tens of thousands of  attempts to cross to mainland Europe. The United Nations Special Envoy for Syria, Geir O. Pedersen, is struggling to make progress with the Syrian Constitutional Committee; and the conflict continues amid Covid-19. 

What is often lost in discussions of the Syrian conflict is that its continuation is primarily a legal and diplomatic issue, and not a question of capability – the international community unquestionably has enough military force to defeat al-Assad’s regime. Rather, it is rules of international law, and particularly, Russia’s use of the UNSC veto, which are now tying the hands of its creators. Such rules, ironically, were established after World War II in the pursuit of peace and security. While the roots of the conflict are domestic, the failure of its nine-year prolongation rests squarely on the shoulders of the international community. 

MISUSE OF THE VETO AND AN ABSENCE OF OPTIONS

Russia will veto anything that goes against its long-term ally al-Assad. China, Russia’s ally, will follow what the Kremlin does. On 7 July 2020, Russia used its veto to back al-Assad’s regime and block Draft Resolution S/2020/654, which would have delivered humanitarian aid into Syria. This was the fifteenth time that Russia had used its veto in this way.  

This leaves few options for the international community to act. The United Nations Charter prohibits the use of force “against the territorial integrity or political independence” of any state under article 2(4). Any exceptional action must have unanimous Security Council approval, although former US President Obama and a coalition of the US, UK and France have pushed the limits of this through targeting al-Assad’s chemical stockpiles in 2013 and 2018 respectively. An argument of self-defence is off the table (although the US is not above it), the International Criminal Court cannot touch al-Assad without jurisdiction-stretching arguments, and the much-anticipated Responsibility to Protect mechanism is still not operational after two decades. While France and other UN delegations have attempted to amend the veto in light of humanitarian concerns, the Russian Ambassador’s response was simple: “If France wants to limit its own veto they are welcome.” 

WHAT CAN BE DONE IN AN IDEAL WORLD

The UN’s paralysis has revealed a deep flaw in the system – that it can, essentially, only fulfil its mandate of maintaining peace and security if it is within the national interests of each member of the Security Council to do so. It’s hard to argue that breaking the law and launching a Kosovo-style unilateral humanitarian intervention is more offensive than civilian slaughter, but sound legal reasoning is crucial to the legitimacy of any action the international community takes. 

The UN General Assembly can, however, obtain an advisory opinion from the International Court of Justice to assert that Russia’s use of the veto is not simply repugnant, but illegal under international law. There are a few possible legal arguments for this – for example, that when Russia uses the veto to block humanitarian aid reaching Syria, it not only fails as arbiter of peace and security, but directly contravenes the Charter and the purpose for which it was entrusted with the veto. Or, that Russia’s acts violate non-derogable jus cogens norms such as the right to life and humane treatment, with which the Security Council must comply. Or, perhaps, that Russia is liable for its complicity in Syria’s breaches of international humanitarian law. 

The UN General Assembly could then re-engage a 1950s relic, the United for Peace (U4P) resolution, which allows the Assembly to make recommendations – including armed force when necessary – to maintain peace, when the Council lacks unanimity. The Council can refer itself to the U4P procedure, as the required procedural veto, crucially, does not require unanimity. So, even if (and when) Russia and China vote against the Council’s proposal to refer itself to the U4P by calling an emergency session of the Assembly, the proposal will still pass – because only a qualified majority (nine of fifteen votes) is needed.

The Assembly could then recommend measures to maintain peace and security in Syria within the meaning of article 12(1) of the Charter. To remain intra vires to the Charter, it would need to establish that a member or members of the P5 had abused their power of veto, which is where wielding an ICJ opinion to this effect would be critical. The extent of the measures that the Assembly could recommend is unclear. However, regardless of whether it authorises direct humanitarian intervention, or simply pushes through France’s suggested amendment of the veto to prevent further abuses of veto power, the decade-long humanitarian deadlock would be broken. 

COMMENTARY 

The UN system is flawed to a point that peace and security are highly conditional, and where humanitarian imperatives are only prioritised when Council members do not have stakes in the conflict they stem from. It is the worst kind of irony that the laws required to maintain the international order are the ones that are preventing intervention; and it is unconscionable that innocent civilians should be left helpless because leaders in Geneva and New York cannot agree. However, an approach that incorporates the security of an ICJ opinion, re-engages the U4P procedure under the initiative of the remaining Council members, and employs the residual Assembly power could have real potential. As we have learned, its success will depend upon the political and diplomatic will to do so.

Rosie edits articles for Human Rights Pulse. She holds a Bachelor of Laws with First Class Honours; a Diploma of Language in French from the University of Otago; and has recently completed her Master’s degree in International Criminal Law from the University of Amsterdam and Columbia University, specialising in sexual and gender-based violence and international humanitarian law. She now works in the international human rights space in Geneva.