28 Apr Syria and the UN Security Council: A Decade Of Abysmal Failures
By Said Benarbia, Director of the ICJ’s Middle East and North Africa Programme
Since the start of Syria’s uprising in March 2011, Russia and China have vetoed 16 Draft United Nations Security Council (SC) Resolutions aimed at addressing the plight of the Syrian population and ending the scourge of armed conflict. As a result, the SC has failed to:
- Establish the UN Independent Mechanism of Investigation to identify individuals, entities, groups, or governments who were perpetrators, organizers, sponsors or otherwise involved in the use of chemical weapons in Syria;
- Renew the mandate of the the Organisation for the Prohibition of Chemical Weapons (OPCW)- UN Joint Investigative Mechanism (JIM) as set out in resolution 2235;
- Demand that all parties provide prompt and safe access to any sites deemed relevant by the OPCW Fact-Finding Mission (FFM) and the JIM to the chemical attack in Khan Shaykhun;
- Renew the provision of humanitarian aid through the border crossings of Bab al-Salam, Bab al-Hawa, and Al Yarubiyah;
- Refer the situation in Syria since March 2011 to the Prosecutor of the International Criminal Court (ICC);
- Ensure that all parties immediately end all aerial bombardments of and military flights over Aleppo city;
- Decide, acting under Chapter VII of the UN Charter, that the Syrian authorities shall (a) cease troop movements towards population centres, (b) cease all use of heavy weapons in such centres, and (c) complete pullback of military concentrations in and around population centres; and
- In case of non-compliance by the Syrian authorities, impose immediate measures under Article 41 of the UN Charter.
While the SC was debating and failing to approve these Draft Resolutions, the Syrian conflict has brought untold suffering and destruction to the Syrian civilian population.
Prevalence of serious crimes under international law
Over the past ten years, the Independent International Commission of Inquiry on Syria (IICI) has documented patterns of summary execution, arbitrary detention, enforced disappearance, torture, including sexual violence, indiscriminate attacks against civilians, starvation as a method of warfare, pillage, hostage-taking, murder, extermination and other conductamounting to war crimes and crimes against humanity by government and allied armed forces, as well as by armed opposition groups.
The IICI has further documented how the Islamic State has committed the crime of genocide, as well as multiple crimes against humanity and war crimes against the Yazidis. This has included forcibly transferring thousands of Yazidi women and children into Syria, and seeking to destroy them through, among other acts, killings, sexual slavery, enslavement, torture and inhuman and degrading treatment and the infliction of conditions of life that bring about a slow death.
Hundreds of chemical attacks have also been carried out against the civilian population in Syria. In 2013, the Goutha attack resulted in the killing of hundreds of civilians, including many children. In 2017, at least 80 civilians were killed in the Khan Shaykhun chemical attack. The JIM determined that sarin had been used as a chemical weapon in the attack, and attributed the responsibility for it to the Syrian government. In 2018, the Douma chemical attack resulted in the killing of at least 40 civilians. The OPCW FFM concluded that the attack involved the use of a toxic chemical containing reactive chlorine.
In April 2020, the Investigation and Identification Team (IIT), established by the OPCW with a view to identifying the perpetrators of the use of chemical weapons in Syria, has concluded in its first report that in the space of less than a week, respectively on 24, 25 and 30 March 2017, the Syrian Arab Air Force dropped: an M4000 aerial bomb containing sarin in southern Ltamenah, affecting at least 16 persons; a cylinder containing chlorine on the Ltamenah hospital, affecting at least 30 persons, and an M4000 aerial bomb containing sarin in southern Ltamenah, affecting at least 60 persons.
A failure to act
Despite the gravity, magnitude and industrial scale of the serious crimes under international law committed in Syria, the SC has consistently failed to address them. Its failures have been chronic, structural, and at the expense of so many.
Under the UN Charter, UN Members States confer on the SC primary responsibility for the maintenance of international peace and security. In discharging this responsibility, the SC must act in accordance with the Purposes and Principles of the United Nations.
The international legal order the SC is mandated to uphold is built on the UN Charter’s promise “to save succeeding generations from the scourge of war”, “to reaffirm faith in fundamental human rights and in the dignity and worth of the human person”, and “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.
On Syria, the SC has failed on both accounts: by not fulfilling its primary role in the maintenance of international peace and security, and by betraying its responsibility to discharge its duties in accordance with the Purposes and Principles of the UN, including through the protection of the dignity and worth of the Syrian people.
Not only has the SC failed to refer the Syria situation to the ICC to pursue those responsible for the most serious crimes committed in the country; it has failed to even investigate crimes that constitute, in and of themselves, a threat to international peace and security.
The SC failures have prompted other UN bodies to step in to fill the accountability gap, including through the establishment by the UN General Assembly (GA) of the International, Impartial and Independent Mechanism (IIIM). Such initiatives do not absolve, however, the SC of its obligations and responsibilities under the UN charter.
Maintenance of international peace and security in good faith
Like any other international law treaty, State parties to the UN Charter ought to perform their obligations under that treaty in good faith, a fortiori the permanent members of the SC. Fulfilling obligations related to the maintenance of international peace and security in good faith is inherently and fundamentally incompatible with refusing to investigate crimes against humanity and war crimes, including the use of chemical weapons. It is incompatible with refusing to ensure accountability for such crimes.
If anything, the Syrian conflict has demonstrated that, in the 21st century, a government can murder, torture, and exterminate its civilian population, including by dropping sarin and chlorine bombs on civilians and hospitals, and yet escape accountability, as long as such a government has a patron in the SC.
The Syrian conflict has also demonstrated, once again, how SC decisions, such as whether a situation is grave enough to be referred to the ICC or whether crimes under international are prevalent in a country and constitute a threat to international peace and security, are typically based on rank political expediency, rather than on legal standards and overwhelming empirical evidence.
In 2017, three Draft SC Resolutions aimed at renewing the mandate of the JIM, which had attributed the responsibility of the Khan Shaykhun chemical attack to the Syrian government, were vetoed by Russia. Yet, in the very same year, the SC unanimously adopted resolution 2379 establishing the mandate of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL, which has since then been renewed.
The crimes committed by Da’esh and by the Syrian government are serious crimes under international law constituting a threat to international peace and security. Deciding to investigate only those committed by Da’esh is a yet another example of how the SC’s selective accountability practices continues to erode the very fabric of the international legal order that the SC is supposed to uphold.
In deciding and imposing accountability measures, including the referral of situations to the ICC, the establishment of investigation and other accountability mechanisms, and the imposition of sanctions and other accountability measures, the SC must be impartial and satisfy the appearance of impartiality.
If the international legal order that the SC is mandated to uphold is a rule of law-based order, then it must ensure that like situations are treated alike; that norms are fairly applied to all, without fear or favour, and that SC action should follow irrespective of who the alleged perpetrator is, if the relevant criteria under the UN Charter are met, and if enough evidence of crimes under international law is available.
The urgency of SC reform
In the context of the Intergovernmental Negotiations (IGN) on SC Reform, established under the GA Decision 62/557, the GA President, Mr. Volkan Bozkir, affirmed on 25 January 2021 that the SC must reform if it is to effectively uphold its mandate. Since the IGN’s first round in February 2009, however, there has been little progress in formulating reform proposals, let alone adopting and implementing them.
SC reform is needed as a matter of the utmost urgency. Informed by the SC failures on Syria, UN Members States must ensure that the SC’s accountability practices are at the heart of such reform, including by:
- Establishing clear and mandatory guidelines for the SC’s accountability role and practices with a view to ensuring that like situations are treated alike, and that decisions to investigate situations of prevalent crimes under international law are based on objective criteria and empirical evidence of such crimes, to the exclusion of any political considerations or interests, and
- Removing veto powers on all issues pertaining to the referral of situations to the ICC, the establishment and operationalization of investigation and other accountability mechanisms, and the imposition of other accountability measures.
Introducing these reforms is necessary to uphold the very role and legitimacy of SC as a guarantor of peace and security, and, correspondingly, the relevance of the UN’s own architecture and institutions in upholding its Purposes and Principles. Implementing these reforms is a sine qua non for the promise “never again” to truly mean so, once and for all.