by Winston P. Nagan   

Recently the Security Council considered a Resolution which demanded that the President of Syria resign and pave the way for a political settlement of the crisis in Syria. Two permanent members of the Security Council, Russia and China, used the privilege of a veto to defeat the Resolution. The Resolution was initiated by the Arab League and the specific Resolution was presented by Morocco. The veto comes in the face of an escalating crisis in Syria involving vastly elevated violent reactions by the Syrian armed forces. The popular uprising in Syria is partly inspired by events in other parts of the Middle East, commonly described as the Arab Spring. The prime inspiration of the Arab Spring is an antipathy to autocracy and a demand for greater political freedom. The Syrian uprising was partly inspired by the successful transformations which took place in Tunisia and Egypt. In its response to popular protests the Syrian dictatorship began deploying its armed forces in strength to suppress the uprising. Fourteen or more towns have been besieged by the Syrian army and the confirmed death toll is approximately 7,000. In addition, the Syrian army has engaged in summary executions, security forces have engaged in the practice of torture and political disappearances. It is estimated that over 600 detainees have been tortured to death, over 300 children have been killed by security forces and thousands of civilians have been injured or imprisoned. In the face of the veto in the Security Council there appears to be a limited range of options to respond constructively to this crisis consistent with the basic values and purposes of the U.N. Charter.

The jurisdiction of the Council is triggered by the threat or breach of the peace, the conditions which trigger the jurisdictional fact of international concern within the framework and competence of the Security Council. The critical challenge that the international system faces is; if the threat to international peace and security remains a threat in the face of the veto, does that mean that the international community, by not exploring other options, is in effect complicit in making an international issue of deep concern, worst than it is? In short, the veto essentially promotes conflict and deepens the threats to international peace and security. It would be of value to determine whether the Charter permits some options to be taken by responsible members of the world community in the face of the Russian and Chinese veto.

It would be of value to begin with the powers of the Security Council indicated in the text of the U.N. Charter. It is worth noting that Article 24 does not vest exclusive power or competence in the Council over matters of international peace and security. The text provides for “primary” responsibility for issues of international peace and security. However, “primary” is less than exclusive. This interpretation was recognized by the International Court of Justice in the “Expenses Case.” In effect when Russia invoked the veto to frustrate U.N. intervention in the Korean War, the United States promoted a constitutional innovation in the form of a Resolution titled, “Uniting for Peace.” The prime reason for this Resolution was that if in the face of a veto, the breach of international security, as a fact, continue, the General Assembly could, by super majority, authorize action to terminate the continued breach of international peace and security;

“In the context of the Cuban missile crisis, the United States interpreted its obligations under Article 24, Chapter VII and Article 51 to first preserve its inherent right to self-defense. That is to say, it first acted, and then took the issue to the Security Council under Article 51. The United States construed the words “primary” not to undermine its competence to determine for itself what it should do to defend its security interests under Article 51 competence. A State under Article 51 is clearly allocated the inherent right of self-defense. The principle instrument of Western security concerns (NATO) is not organized under Article 53, which would nominally place it under the jurisdiction of the Security Council, but under the self-defense principle of Article 51. The Western security alliance had specifically preserved for itself the rights of individual and collective self-defense against Russian-Soviet imperialism.”

In the context of Syria we have a dictatorship that the overwhelming weight of public opinion deems to be illegitimate. Moreover, its aggression against its own people places it in the domain of an abusive sovereignty perspective. The important question is whether the term “inherent” in the Charter implies that the people of Syria should be the beneficiaries of an inherent right to defend themselves from aggression by an illegitimate regime. Moreover, the mass killings by the regime, which is representative of a small ethnic group in Syria, the Alawites, represents the destruction, in whole or in part, of the non-Alawite ethnic groups, which comprises the Syrian population. If this correct, then the targeting of non-Alawite ethnics in Syria for destruction, in whole or in part, at least raises a prima facie case of genocide. Genocide is an international crime and in general provides a justification for intervention to prevent further genocide on the basis of humanitarian intervention. Additionally, the statistics that involve arbitrary arrests and detentions, deaths in detention, torture followed by death and detention, constitute grave violations of human rights and therefore provide another justification for humanitarian intervention.

With regard to the right of self-defense of the people of Syria, they would certainly have a right to ask for assistance in their defense against internal aggression accompanied by grave violations of human rights and humanitarian law. The constraint on assistance to the Syrian people would be conditioned by the principles of military necessity, proportionality, and humanitarianism. This background would seem to justify the approach Suggested by the United States that it would work with like-minded States to find ways to support the democratic aspirations of the Syrian people. It could base a coalition of like-minded supporters on Article 55 and 56 of the U.N. Charter. Article 55 stresses that friendly relations and cooperation among nations is based on the principle of equal rights and self-determination of peoples. It should be noted that the term “peoples” would include the peoples of Syria. This provision stipulates that the United Nations “shall” promote, inter alia, improved living standards and progress, cultural and educational cooperation, and most importantly, “universal respect for an observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.” Finally, Article 56 stipulates that “all members pledge themselves to take joint and separate action in cooperation with the organization for the achievement of the purposes set forth in Article 55.” It would therefore appear that there is textual support for a U.S. approach to organizing a coalition of like-minded States to consider creative strategies to intervene on behalf of the peoples of Syria and consistently with international law. The Charter does provide some policy flexibility in the face of the Security Council veto. It should be noted that on January 27, 1994, Senate Resolution S1281 declared, in a vote of 87 to 9, that no U.N. arms embargo of the Security Council would be deemed valid under Article 51. The Resolution called for President Clinton to end it, supporting unilateral action to do so;

“The Foreign Relations Authorization Act (30 April 1994) signed into law by President Clinton adopted the Senate Resolution relating to the “Policy on Termination of the United States Arms Embargo.” On 9 June 1994 the House of Representatives approved the Defense Department Authorization bill which contained an amendment designed to compel President Clinton to unilaterally lift the arms embargo on Bosnia and Herzegovina. News reports indicate, inter alia, that Iran has “openly” delivered a “planeload of military material to the Bosnian Muslims” (Graham Fulle, Iran’s Coup in Europe, The Washington Post, 15 May 1994, p.7).”

It would therefore appear that there is some flexibility in interpreting the scope of a Security Council veto, and that flexibility may still provide for some space for constructive options in responding to crisis in Syria. Additionally, the Congress itself appears, at least implicitly, to have taken this view with regard to the Security Council imposed arms embargo on the Bosnians. Of course the challenge of working through diverse policy options and the determination of the degree of support by like-minded States would be critical. Equally, the request for support could receive stronger backing if the Syrian people were more politically organized.