Security Council shuns mandate by failing to OK attack on Syria

NEW YORK — While military intervention in Syria will be “more lawful” with UN Security Council approval, it will still cross a new legal threshold without it.

This may sound too politically clever by half, but it is not a circular and cynical case of being “legal because we say it is,” as in NATO’s airstrikes in Kosovo in 1999. Nor is it “illegal but legitimate,” as that intervention has often since been described.

If the Security Council does not authorize the response to Syria’s commission of war crimes and crimes against humanity, then it will fail in its express mandate under the UN Charter to “maintain international peace and security.”

By refusing to perform the role for which it was explicitly established, the Security Council forfeits its legitimacy to exercise that role. Declining to intervene in Syria will indicate not a legal limitation, but an institutional failure.

Since 2005, the international community has accepted that nations’ sovereignty depends upon their ability and willingness to perform the functions of a sovereign state; they forfeit such when they fail or refuse to do so. The same test should apply to the UN Security Council: it either maintains international peace and security or surrenders its status as the body charged with that responsibility.

As the situation in Syria shows, the consequences and human costs of inaction by the Council are enormous. The body is not merely made irrelevant, but actually provides legal and political cover for crimes already committed, and implicit permission for their repetition.

The message to Syria from the Security Council — that is, from Russia, China, and the UK — is: “We have not yet drawn our red line. Carry on.”

And yet the red line is already chiseled in the stone of international law, and Syria has repeatedly crossed it. All evidence suggests that on Aug. 21, Syrian forces attacked the suburbs of Damascus with chemical weapons, killing more than 1,400 people, a third of them children. The use of chemical weapons, and any other deliberate or indiscriminate targeting of civilians, constitutes a war crime and crime against humanity.

The prohibition against chemical weapons may even rise to the level of a peremptory norm of international law (jus cogens), meaning that nations cannot under any circumstances make a lawful exception. That Syria has not ratified the UN Chemical Weapons Convention is immaterial.

Equally irrelevant is that the world is seeing the largest outflow of refugees in a decade and that both state and non-state actors from around the region are deeply unmeshed. It is enough that Syria has brazenly violated these firmly established legal norms to compromise “international peace and security.” Syria's actions compel the Security Council to restore that security.

The Security Council’s status is enshrined in the UN Charter, but like all international law, it is “elastic” and evolves over time. It has been “stretched” since 1994 through the statutes and rulings of various international tribunals, the Kosovo intervention in 1999 and the General Assembly’s adoption in 2005 of the Responsibility to Protect.

However “international peace and security” was defined in UN Charter of 1945, in 2013 it clearly encompasses the commission of grave international crimes and violations of jus cogens. If the chemical weapons strike in Syria is proven, the Security Council must act.

While “peaceful means” and “measures not involving the use of armed force,” as defined in the UN Charter, technically remain on the table for the Council, they have abjectly failed thus far as a means to prevent and stop the violations.

Unless Syria immediately reverses two years of repeated refusals to cooperate with the international community, “force” remains the only option, as authorized in Article 42 of the Charter. What was “illegal but legitimate” in Kosovo is both legal and legitimate in Syria; legal because it is legitimate. A pass is not an option for the Council.

The world community developed law to protect itself from itself; to ensure that the rule of law prevailed over the rule of man, or of any of five nations afforded disproportionate power by their membership on the Security Council.

If the Council turns away from its obligation to intervene in Syria, the decision will deal a tragic setback to that collective and noble endeavor. The US and France, the only two members favoring intervention, should not allow that to happen.

Benjamin Zawacki (@benjaminzawacki) is a senior legal advisor at the International Commission of Jurists and a member of the Council on Foreign Relations. The views expressed are his own.