Syria conflict prompts calls for UN Security Council to reassess legal obligations under Charter

By Rebecca Lowe

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The impasse at the United Nations Security Council over what action to take to prevent further civilian deaths in Syria has prompted calls for a fundamental reassessment of how countries use their veto.

The Security Council unanimously adopted a statement on 27 May which condemned the Syrian government for a massacre in which 108 people were killed, including 34 children. However, it was blocked from taking stronger action by Russia, Syria’s long-time ally, and China.

Lord Williams on Syria and the UN Security Council (8:20)

 

 


  ‘...The UN Secretary General perhaps should take the initiative to call together the five permanent members and say, can we reach a consensus that you should use the veto in the most sparing manner?'

Lord Michael Williams
Former UN Envoy to the Middle East

The massacre in Houla village may amount to crimes against humanity, UN High Commissioner for Human Rights Navi Pillay announced on 1 June. Since the uprising began in March 2011 at least 10,000 people have died, according to the UN. 

The non-legally-binding Council statement, which has less significance than a presidential statement or resolution, censures the Syrian government for using heavy artillery against civilian populations and states that ‘such outrageous use of force’ constitutes a violation of international law.

Hans Corell, former legal counsel to the UN, believes the Syrian stalemate must act as a clarion call to the permanent members of the Council – the US, UK, France, China and Russia – to reassess their legal obligations under the UN Charter to avoid severely undermining international peace efforts.


   ‘You have to consider whether the situation could be improved by adding more members or whether it needs some broader thinking – such as revising the use of the veto. It would be deeply damaging if countries choose to pull out.’

Stuart Alford
Former UN prosecutor in East Timor;
Co-Chair, IBA War Crimes Committee 

‘The Council must make a serious attempt to prevent atrocities of this kind happening,’ he says. ‘This can only be done if the members, in particular the five permanent members, demonstrate that they themselves bow to the Charter.’

Corell, a member of the IBA’s War Crimes Committee Advisory Board, alluded to a 2008 letter he wrote to the UN, in which he describes the Council’s failure to act in certain situations as ‘deplorable’. He proposes that the permanent members only use their veto in situations where their most ‘serious and direct’ national interests are affected. ‘Such steps would send a resounding signal around the globe, in particular to repressive regimes and presumptive warlords,’ he writes.

David Michael Crane, founding Chief Prosecutor of the Special Court of Sierra Leone, believes the Council’s inaction ‘brings the whole concept of responsibility to protect into question’.

‘The UN is embarrassing itself now,’ he says. ‘Having the UN blue helmets stand by and watch a massacre smacks of Rwanda.’

Toby Cadman

Barrister Toby Cadman, former senior legal adviser to the Human Rights Chamber for Bosnia and Herzegovina, is bringing civil lawsuits against members of the Syrian government under the US Alien Torts Claim Act and Foreign Services Immunities Act for alleged torture, murder and arbitrary arrest. He believes that such efforts to ensure accountability fill a vacuum left by the Security Council.

‘As an international lawyer having specialised in international crimes for more than a decade, I can safely say that this is the worst display of human depravity I have ever experienced,’ he says, adding that casualty figures could be up to four times higher than reported. ‘It is with these thoughts in mind that it is difficult to understand the impotency of the Security Council.’ Read full interview with Toby Cadman.

Some believe the situation in Syria could act as a catalyst for structural or procedural change at the Council, originally formed after the Second World War. Emerging powers such as Brazil and India are lobbying hard for permanent member status, while Europe, with two countries represented, could be said to be punching above its weight.

Stuart Alford

‘It would be dropping our expectations too low to say we couldn’t see ways of improving the system after 60 years of development,’ says barrister Stuart Alford, former UN prosecutor in East Timor and Co-Chair of the IBA War Crimes Committee. He warns, however, against a ‘knee-jerk’ reaction that might undermine the UN Charter. ‘You have to consider whether the situation could be improved by adding more members or whether it needs some broader thinking – such as revising the use of the veto. It would be deeply damaging if countries choose to pull out.’

Yet the danger remains that certain action in Syria, such as military intervention, could prove equally damaging. Justice Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, says he hopes the next step will be a reference to the International Criminal Court and/or the use of force to protect civilian life – but others have proven more reticent.

‘I don’t think military action is the solution,’ says David Kaye, Executive Director of UCLA’s International Human Rights Law Program and former principal staff attorney on humanitarian law for the US State Department.  ‘It is not as easy as having a no-fly zone, because these forces are going from house to house. Using force would lead to all sorts of problems, some of which we can’t even imagine.’

He adds: ‘Over time, with military engagement, the Syrian people will lose the ability to own their own struggle. It could have serious implications for what Syria looks like in the future.’