The Khan Shaykhun chemical attack by the al Assad regime and the resulting US unilateral missile strike provoked a huge debate within the Security Council (SC). However, the SC, due to the Russia’s threat to use its veto power, did not eventually adopt any resolution addressed to the Syrian government reminding of its responsibility to protect its own population. This umpteenth SC deadlock showed once again the difficulty of putting into practice the theory of Responsibility to Protect (R2P) in cases of division amongst its veto-bearing member (P5) on which measures to adopt in response to gross violations of human rights.
The lack of any action by the Security Council since the beginning of the Syrian civil war (in contrast to the Libyan case), facing the indiscriminate killing of the civil population, including children and women, raises the issue of the future of R2P, as well as of the SC’s “Remaining Credibility”, as surfaced in the Security Council emergency meeting held on 7 April 2017.[i]
This meeting showed a wide support − including two SC Permanent Members − to the US action (Japan, Italy, France, United Kingdom, Ukraine, while China abstained from openly condemning the air strike), in contrast to the doctrinal position of most scholars on this topic.[ii] The Italian delegate Sebastiano Cardi, for instance, said that – “he understood the reasons behind the air strike” and he considered “the attack as proportionate in both time and manner”.[iii]
On the other side, with the obvious exception of Syria and Russia, only Bolivia expressly condemned the US strike, considered as a “threat to peace and security”, emphasizing that the SC has “first class and second class members”, that are classified on the basis of the veto power.
During the SC meeting, apart from a generic reference to the need to set up an impartial investigation to prosecute the authors of the chemical attack, no other measure was envisaged, nor R2P was recalled. This, once again, gives rise to the problem of how to deal with situations characterized by the SC inaction, deadlocked by the vetoes or threats of vetoes of one or more P5. It raises once more the vexata quaestio of whether unilateral humanitarian interventions (even if it was not the main justification of the US air strike) should be allowed under general international law in case of prolonged deadlock of the Security Council (and if not, how the veto power could be avoided).
The definitive failure of R2P
The adoption of Resolution 1973 (2013) − with the abstention of China and Russia − which “authorized the use of all necessary means”, including the use of force under Article 42 of the UN Charter, with the aim of protecting civilians against the Libyan government, fostered enthusiasm amongst R2P supporters (some of them arguing the formation of a customary norm of international law on R2P). However, at the same time, the attack against Libya made R2P look bad, since the NATO air strikes, with the original aim of imposing a no-fly zone and ceasefire in Libya, turned rapidly into a regime change intervention (https://www.ejiltalk.org/what-does-un-security-council-resolution-1973-permit/). The failure to comply with the original purpose of the NATO intervention, called into question the entire doctrine and its future implementation, laying the foundations of its current decline.
In 2013, at the aftermath of the Ghouta massacre, since Russia and China threatened a veto on a resolution on the Libyan model, the former Obama administration threatened a unilateral intervention, maintaining that al Assad had crossed a red line against the use of chemical weapons. However, on 30 August 2013, as President Obama was ready to order an attack against Syria, he eventually decided to abandon this policy, and then he concluded an agreement with Putin on the chemical disarmament of Syria. In this regard, Donald Trump now accuses the former administration of being responsible, due to its inaction, of the death of children and women victims of the chemical attack of Khan Shaykhun.
Resolution 2118 (2013) on the chemical disarmament of Syria, which implemented the deal between United States and Russia, was the first SC resolution adopted with the consent of the 5 Permanent Members since the beginning of the civil war and averted the risk of unilateral actions. However, this resolution already questioned the credibility of R2P, since it did not contain any reference to R2P and neither established any automatic clause on the adoption of further measures under Chapter VII in case of its infringement (despite it considered at Para. 1 "any chemical attack carried anywhere as threat to international peace and security)". Therefore, this resolution contributed to the crisis of R2P, which now disappeared completely off the radars.
Indeed, the current debate mainly focused on the legitimacy of the US intervention as a retaliation to the infringement of the Chemical Weapons Convention, than as a humanitarian intervention (https://www.ejiltalk.org/us-strikes-against-syria-and-the-implications-for-the-jus-ad-bellum/). In fact, the violation by the al Assad regime of its duty to protect its own population, as a consequence of the use of chemical weapons against innocent civilians, was pushed into the background.
It is easy to say that the purpose of the US intervention was not that of alleviating the sufferance of the civilians (and we do not see how an air strike could reach this goal), since the US President Donald J. Trump justified the air strike on the basis of the defense of the US national security interests to prevent and deter the use of chemical weapons.[iv] This is the novelty of the new US unilateralism: he (partially) abandoned the ‘human rights’ rhetoric behind previous US-led unilateral strikes (i.e. former Yugoslavia, Iraq, Libya), although he stressed the necessity to avoid new slaughters of innocent children and to revenge their deaths.[v]
How to advance R2P after the umpteenth SC deadlock?
The key issue now is how to advance R2P after it failed another test on its credibility, since the SC was deadlocked one more time by one of its veto-bearing members. One could wait the establishment of an international inquiry commission in charge of prosecuting the persons that are responsible for the chemical attack of Khan Shaykhun (as well as of the other chemical attacks in Syria). In my opinion this could be the umpteenth process with no real prospect of success.[vi]
Therefore, which are the multilateral options to advance R2P and to prevent and respond to other violations of the duty of the Syrian regime to protect its population?
The disarmament plan envisaged by Resolution 2118 (2013)[vii] clearly failed, as al Assad probably hindered OPCW (Organization for the Prohibition of Chemical Weapons) inspectors access to facilities for the storage of chemical weapons, or illegally produced chemical weapons (in both cases in clear violation of the Chemical Weapons Convention and of Resolution 2118).
Since the only concrete response to the killing of civilians was the US unilateral strike, which gained a wide support in the Security Council debate (as already highlighted),[viii] I would like to spend few words not on its legality, since I agree that it was a violation of international law, but on its (possible) ‘legitimate’ benefits.
The US took a forceful countermeasure in response to grave breaches of international law by the al Assad regime (that could be classified as a use of force of ‘lesser gravity’), at least respecting the principles of proportionality and timely response (as underlined by the Italian Ambassador Sebastian Cardi). Its goal was, therefore, to deter the Syrian regime from the use of chemical weapons. Indeed, this action will probably put pressure on the Syrian regime, that will hopefully take into account the price to be paid by the violations of the Chemical Weapons Convention in the future.
Accordingly, one could also analyze this air strike under the lens of the “illegal but legitimate position”, already expressed by Anderson,[ix] wondering which could and should have been an appropriate non-unilateral response to the Syrian chemical attack.
In order to avoid that the R2P doctrine be relegated in the realm of theories, as an object of a sterile debate about principles and procedure, one should start thinking on how to concretely react to gross violations of human rights in case of SC deadlock (keeping in mind that after the Libyan case it is highly improbable that China and Russia will support further humanitarian actions under Chapter VII).
The solutions at stake are many, ranging from allowing unilateral use of force in presence of SC inaction, to the Responsibility not to Veto (RN2V), to a new typology of humanitarian interventions based on regional organizations or on the General Assembly on the model of the Uniting for Peace resolutions. All these avenues are worth to be explored, but it must be done quickly, given that in Syria as well in other regions of the world, civilians continue to be the main victims of harsh internal wars.
Ilja Richard Pavone, PhD, is Researcher at the National Research Council of Italy CNR and Professor of Environmental Law at Tuscia University, Viterbo . Currently he is Visiting Scholar at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg. He is member of the EU Non-Proliferation Consortium. His research areas also include disarmament and WMD, human rights and Responsibility to Protect (R2P).
[ii] See, Marco Milanovic, The Clearly Illegal US Missile Strike in Syria, EJIL Talk, April 7, 2014, https://www.ejiltalk.org/the-clearly-illegal-us-missile-strike-in-syria/
[vi] The French proposal of 2015 to refer to the International Criminal Court the persons responsible of mass atrocities was blocked by the Russian and Chinese veto. See, Shane Reeves and Winston Williams, The Road from Syria to Ukraine, ASIL Insights, July 21, 2015, https://www.asil.org/insights/volume/19/issue/16/road-syria-ukraine.
[vii] See, e.g., S.C. Res. 2118, U.N. Doc. S/Res/2118 (Sept. 26, 2013), Scheduled Destruction of Syria’s Chemical Weapons.
[viii] See also Julian Ku, Almost Everyone Agrees that the U.S. Strikes Against Syria are Illegal, Except for Most Governments, Opinio Juris, April, 7 2017, http://opiniojuris.org/2017/04/07/almost-everyone-agrees-that-the-u-s-strikes-against-syria-are-illegal-under-international-law-except-for-most-governments/.
[ix] See, Kenneth Anderson, Legality of Intervention in Syria in Response to Chemical Weapons Attack, ASIL insights, 17 (2), 2013, https://www.asil.org/insights/volume/17/issue/21/legality-intervention-syria-response-chemical-weapon-attacks.