Update on Syria and Goings on at the UNPosted: September 24, 2013
I was listening to NPR this morning and just laughed out loud when I heard US ambassador to the UN Samantha Power criticizing Russia for holding the Security Council “hostage” and preventing Council action on Syria. Here are her remarks in a WSJ piece:
“The U.S. ambassador said to “stand back would endanger not only international peace and security but the very international system that we have working these decades to build.” She said that for Russia as Syria’s “patron,” to block agreement on the council went against the “spirit” of the U.N. charter.”
Yes, that must be really frustrating for the US to have to deal with another permanent member of the Security Council, who appears willing to protect a state under its patronage from any and all Security Council action against it. I mean, Ambassador Power is completely right, here. That does fly in the face of the UN Charter system and is an abuse of the veto prerogative given to permanent members of the Security Council under the Charter. It’s a good thing the US never does anything like that. Here are a few links that in no way demonstrate the hypocrisy of the US position. Here, here, here, here.
Whatever. Everyone knows that politics is no place to find principle and consistency.
WRT the substance of what has been going on re Syria, I’ve kind of been waiting like everyone else has to see in more detail what the Russian proposed, and American agreed-to-in-principle deal for disarming Syria will look like. As I said previously, I’m certainly for the idea in theory, but I’m still pessimistic about it being carried through to completion.
From a legal perspective, I’m concerned that, maybe without really even noticing it, we’ve switched legal paradigms now for dealing with what was originally a grave violation of the law of armed conflict – the use of chemical weapons. In the immediate aftermath of this event, I supported a limited use of force against Syrian military targets in order to send a clear message of the unacceptability of this violation of a longstanding norm of international law.
Now with the new Russian disarmament plan, we seem to be moving away from the original idea of punishing and deterring use of CW, which I see rooted essentially in the law of armed conflict and to a lesser extent international use of force law WRT the response, to more of an arms control law paradigm of compelling Syria to sign the CWC, and work with OPCW and/or UN inspectors to verifiably disarm Syria’s CW stockpile.
As many commentators have already noted, the machinery of arms control law has never been used in quite this way in the past – i.e. as a response to an unlawful use of WMD, inside a continuing war zone. Typically, the machinery of arms control law has been used in a more preventative way, to ensure that WMD are not used in the future. I certainly understand that there is some overlap here with the idea of deterring Syria from using WMD in the future. But I don’t think the overlap is complete. Deterrence and prevention are not the same thing. You deter someone from doing something by convincing them that the cost of doing that thing exceeds its benefits. This is what I think president Obama’s credible and continuing threat of the use of force against Syrian military targets has accomplished. I really see the disarmament process through the machinery of arms control law in this case, as being rather tangential, and essentially epiphenomenal. It is serving the role of a secondary sign of evidence that Assad has gotten the message, and will agree to make whatever public gestures are required of him, to avoid the actualization of that threat.
The disarmament process in and of itself would never be able to give full assurance that Assad would not be able to hide CW, or reconstitute his CW program, in order to allow his further use of CW. So again, I don’t see the use of arms control law machinery in this case as the independent variable producing confidence that he will not use CW again. This role, I think, has been and must continue to be played by the credible US threat of force, in a limited but effective way, to punish any future uses.
So in all, I think the diplomatic process and the use by Syria of the CWC/OPCW process for declaring and disarming itself of CW is a good thing. I’m still pessimistic, though, that the process will be followed through to successful completion under the circumstances in Syria. If it does, it would be a case of first instance for a state in such a situation. But I actually think that the most important element of the response to Syria’s CW use – deterrence – has already been accomplished through President Obama’s credible threat of the use of force. And for that reason, I hope that the promise of action in the event of future CW use remains in place.
Just briefly on the wrangling going on between the US and Russia regarding the structure and content of a potential Security Council resolution on Syrian disarmament, I think all international lawyers who work in the security area are struck by the déjà vu of the 2003 wrangling that ultimately produced UNSC Resolution 1441. My mentor professor Michael Byers wrote a great article on that process and its result, which you can see here. I also wrote about it at length in chapter 7 of my 2009 book.
I think the takeaway from this revisitation at the moment is that Russia learned its lesson through the unfortunate experience of Resolution 1441, and its subsequent use by the US as a justification for war in Iraq, about having any ambiguity in UNSCRs regarding use of force authorization. I expect they will stand pretty strong on the wording this time to make sure no such ambiguity exists this time around.