P-5 Approved Draft Language of Security Council Resolution on Syria’s Chemical Weapons

P-5 Approved Draft Language of Security Council Resolution on Syria’s Chemical Weapons

Probably many of you are reading, as I am now, the just-released language of a draft UN Security Council resolution (reported by the press as P-5 approved) on Syria’s chemical weapons.  I’m particularly interested in this, as I’m talking tomorrow at ASIL’s monthly brown bag lunch for Congressional staff on Syria and the use of force – it’s a descriptive talk for a non-expert audience, not me making a pitch, based around an ASIL Insight I did a few weeks ago but which, of course, needs updating in the talk tomorrow to respond to the current situation.  I’m not going to put the draft text up in full – Reuter’s has it here.

The draft resolution says, to note a few bits, that use of chemical weapons “anywhere” constitutes a threat to international peace and security; use of chemical weapons in Syria (without saying who) is a threat to international peace security; use of chemical weapons in Syria is also a serious violation of international law for which there must be accountability for those responsible; and, finally, under the title “Compliance,” the Security Council

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;

22. Decides to remain actively seized of the matter.

Unsurprisingly, nothing in the language of the draft resolution appears to budge the views of the US and Russia.  I’ve talked about this as a process versus substance view of the UN and international law.  That is, if you view international law as being international institutions and their processes, establishing the substantive reach and meaning of international law through those institutions and processes, then there’s little in here that would give the US grounds to act on its own.  The “Compliance” language of the draft resolution (in the event of noncompliance, the Security Council “decides” to “impose measures under Chapter VII”) is a process statement that, under the Charter, makes it the Security Council’s call what measures and under what terms.

If, by contrast, you view international law as having a substance and content that is not simply identical with the results of international institution’s processes, but instead has independent content and meaning, then if you are “a” government that decides to act unilaterally, you at least open up the possibility to claim that the (deadlocked) processes of the Security Council have got it so badly wrong that it is not illegal to act – because the question of legality is in the first place the content of the law, and only secondarily its processes.  It’s not taking the “illegal but legitimate” position, because it doesn’t regard it as “illegal.” Nor does this adopt the position of “extralegal and legitimate.” It says, rather, that legality is not 100% defined by processes of international institutions, which might be flawed in many ways, and the content of international law is at least partly distinct from it.

And then, looking at the draft resolution – just as the ‘proceduralists” would point to the Security Council deciding in the case of noncompliance to “impose” measures and that the Security Council “remains seized” – the ‘substantivists’ (while denying they need to do this) point to the draft resolution as declaring, not only that any use of chemical weapons is a threat to international peace and security, but also a “serious violation of international law.” Which, having a life independent of international institutions and their processes, might be the subject of unilateral action.  I think that’s probably a fairly accurate restatement of what Ambassador Power has said many times, in one rubric or another, over the last few weeks.

So, on my quick read of the draft resolution … it probably advances the ball on getting CW teams and all that into Syria, on the ground in a practical way.  It doesn’t appear to move things one way or the other, unless I have missed something in my haste, as far as the basic disagreement over the US’s threat to use unilateral force and the respective views of international law as such that underlie the respective positions.

(And while I’m thinking of it, some readers might be interested in a long review essay I wrote over at Lawfare, reviewing Joost Hiltermann’s 2007 book, A Poisonous Affair, and George Black’s 1993 report for Human Rights Watch,  Genocide in Iraq.  The review discusses those books as well my own experience with a forensic anthropology team in Kurdistan in 1992, exhuming mass graves from massacres and a chemical weapons attack during the 1988 Anfal campaign.)

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Clément Marquet
Clément Marquet

And no ICC referral yet…

Eliav L

Kenneth – I think the draft is actually goes a long way towards Russia’s position. Note that the Council endorses a transition plan “beginning with the establishment of a transitional governing body exercising full executive powers, which could include members of the present Government and the opposition and other groups and shall be formed on the basis of mutual consent.” 
This formulation (taken from the Geneva Communique of 2012) is a loud and clear statement from the SC that the international community doesn’t require Assad to go.  To me this is actually a big concession by the US. The draft deals with chemical weapons so this addition is actually besides the point. From now on, any demands from Assad to go could be countered by the “mutual consent” clause suggested here.


NOTE: there is an op ed over at ejiltalk.org by Harold Koh that is highly critical of the efforts made by the Obama Admin. and that offers a Kohian view of constitutional issues (and, the notion that a de facto war is not a “war” don’t you see — but we know that if the U.S. lobs some missiles into Syria for 24 hours that such would amount to acts of war and that the laws of war would apply as well, conditioning types of targetings, etc.).  It is important for U.S. mililtary personnel who particiapte in such armed conflict/wars that the armed violence be recognized as an international armed conflict so that military personnel have combatant status and combatant immunity for lawful acts of war — something of importance for the members of the regular armed forces of any state or belligerent in a civil war).