When the Security Council Fails to Intervene in Mass Atrocities, Who Else Can Act?

Seema Kassab

Vol. 38 Associate Editor

There is no clearer example of the failure of the UN to halt mass atrocities and genocide than the current conflict in Syria. Nearly six years, hundreds of thousands of lives lost, and millions of refugees later, the UN has repeatedly failed to effectively take action in protecting Syrian civilians. In fact, the situation devolves year after year without a solution in sight. The dire need for humanitarian intervention in Syria is begging for a response from the international community and the invocation of Responsibility to Protect (R2P), an emerging norm in international law that places a responsibility on the international community to prevent and react to mass atrocities. R2P was intended to address genocide, war crimes, crimes against humanity and ethnic cleansing,[1] all crimes that the Assad regime has been committing in Syria for the past six years. The doctrine was adopted at the World Summit in 2005 in response to the failures of the international community to intervene in the humanitarian crises in Rwanda, Bosnia and Kosovo.[2] So why does R2P even exist if no one invokes it when it is most needed? The doctrine itself is not at fault, but rather the institutions that are responsible for enforcing it. At the World Summit, the UN committed itself to use, or authorize the use of, force against the wishes of a state to stop mass atrocities when all other efforts fail.[3] Despite several attempts, the UN Security Council has repeatedly failed to carry out its role in enforcing R2P in Syria, and it is mainly its structure that prevents it from being effective. Specifically, the veto power granted to the permanent five (P5) UN member states has proven to be a decisive factor in the context of Syria’s humanitarian situation. The UN Security Council has proposed countless Resolutions to minimize conflict in Syria, condemn the violence, and protect the population, but the majority of them are struck down by vetoes from Russia and China, relentless supporters of the Assad regime. With the Security Council at a deadlock, there is little that can lawfully be done. However, R2P can still be enforced in Syria through different channels. Although the Security Council should be the first to take action, it does not have to be the last. Support for humanitarian military intervention is grounded in sources of international law including human rights provisions of the UN Charter, the Universal Declaration of Human Rights, Genocide Convention, Geneva Conventions, ICC Statute and many other human rights covenants. Therefore, alternative routes to enforcing R2P have a potential to be effective. One possible route is through the UN General Assembly. Although the General Assembly lacks the power to direct action in Syria, a decision by the UNGA in favor of action, if supported by an overwhelming majority of member states, would possess a high degree of legitimacy and could motivate the Security Council to change its position.[4] Another avenue for humanitarian intervention could exist through a regional organization, which could actually be better situated than the Security Council to take action.[5] Countries within the region are usually more heavily impacted by humanitarian conflict, and therefore, have a greater interest in leading the intervention. Additionally, Article 52 of the UN Charter states that “nothing… precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security…”[6] However, intervention by a regional organization is controversial when the intervention is against a non-member state, since the concern that a humanitarian conflict will spill over borders and cause regional instability is absent. This was one of the criticisms that surrounded NATO’s intervention in Kosovo.[7] Although Security Council authorization would still be necessary for a regional organization to take action under Article 53 of the UN Charter, there have been instances where approval has been sought ex post facto.[8] Despite these possibilities it is unlikely that the UNSC would authorize the action of another entity when it cannot come to an agreement internally. There is also the possibility that an ad hoc coalition or an individual state could intervene, but this would be a contentious option if Security Council approval was lacking. The real dilemma here is whether bypassing the Security Council is worse than standing by while human beings are senselessly slaughtered. Military intervention in mass atrocity situations, in the absence of UNSC authorization, is difficult to legitimize since the Security Council maintains a high degree of legitimacy within the current the international legal regime. Nevertheless, humanitarian intervention can still be justified via alternative means. The humanitarian disaster in Syria is begging for one of these means to be put into action. But first, someone has to be willing take on the controversial task.

[1] Kurt Mills, R2P and the ICC: At Odds or In Sync?, 26 Crim. L. F. 73,74 (2015). [2] Saira Mohamed, Syria, the United Nations, and the Responsibility to Protect, 106 Am. Soc’y Int’l L. Proc. 223, 223 (2012). [3] Mills, supra note 1, at 74. [4] Int. Comm. on Intervention & State Sovereignty, The Responsibility to Protect 53 (2001). [5] Id. [6] U.N. Charter art. 52, ¶ 1. [7] Int. Comm. on Intervention & State Sovereignty, supra note 4, at 54. [8] This occurred in the humanitarian interventions of Liberia and Sierra Leone.