R2P and International Law

The responsibility to protect is an international responsibility and not the exclusive burden of any one country, not even the US. But the use of force now or at any time should be left to the Security Council to decide. President Obama should now earn his Noble Peace Prize by scrupulously following international law. There is no reason for the US to act as an outlaw just because Assad has.

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By Gerard M. Gallucci

I’ve been going back and forth in my mind the last few days about a military response to the apparent use of chemical weapons by the Assad government in Syria.  On one hand, it seems to require a response – for both moral and practical reasons – to underscore the unacceptable use of such weapons.  On the other, there is no international consensus – certainly not in the UN Security Council – on the use of force.  But one thing is clear, the use of force by one state against another – except in cases of clear self-defense – is only legal under international law when sanctioned by the UNSC.

The Obama Administration got itself into a bind last year when the President said that Assad’s use of chemical weapons would be crossing a “red line.”  It overlooked minor instances but is now faced with the deaths of some 1000 civilians.  President Obama has various political reasons for responding somehow to what seems almost certainly an act of the Syrian government.  His own credibility – and that of the United States – is on the line and there is a widespread – and understandable – moral outrage against a regime sinking to such brutality against its own people.  Also, American interests must be triangulated between Israel on one side and Iran on the other.  Obama himself appears quite reluctant to do anything.  He does not want to be the latest US president to get the country enmeshed in another Middle East war.  Whatever Obama does decide to do will likely be very “limited.”  Probably just missiles launched from nearby ships.  It seems quite unlikely that he would even risk American pilots over Syria’s air defense system.  And any effort to knock that system out would no longer be very limited.  But Obama seems to have put himself in the position of having to do something.

Washington’s problem is that there is no international consensus for military action against Syria.  Some who support action – chiefly the Gulf states backing Sunni rebels and who’d love the US to take Assad down – can’t say it out loud.  Others who vocally supported intervention – the Cameron government in the UK – have bowed out due to the lack of popular support.  Allies such as the Germans were never in the picture.  Just France so far (with Turkey shuffling its feet on the side).  Of course, Russia and China will prevent any action being taken by the UNSC despite the UK’s efforts to bring up an authorizing resolution there.  The UN itself – both the Secretary General and his envoy to Syria – have condemned the use of chemical weapons but have emphasized that any decision on an armed response must be made by the Security Council.

The White House is nevertheless saying that Obama is willing to go it alone.  Administration voices have at various times cited the “responsibility to protect” as the authority for moving without the Security Council and the example of the Kosovo intervention of 1999.  These are facetious arguments.

The responsibility to protect (R2P) doctrine was elaborated a decade ago because of the sense that the international community had failed during the ’90s in Somalia, Rwanda and Bosnia.  It was adopted by the UN in 2005.  But R2P was meant to guide the international community – specifically the 15 members of the Security Council – in their decision on the use of force.  Use of force against states – except in direct self-defense – must be decided in line with Chapters 6, 7 and 8 of the UN Charter.  The UN Charter – to which all members adhere – determines international law in the matter of intervention in the internal affairs of sovereign states.  The role of deciding lies entirely with the UN Security Council and not any one – or group – of members.  And the Perm Five can veto any draft resolution.

The Kosovo intervention – NATO bombing of Serbia – was done without a UNSC resolution. Some cite it, however, as a precedent for Syria.  But while Chapter 8 of the Charter allows regional organizations such as NATO to play a role in intervention and peacekeeping, it must be authorized by the UNSC first.  Article 53 is clear:  “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council” except in the case of self defense.

The responsibility to protect is an international responsibility and not the exclusive burden of any one country, not even the US.  The international community should respond to the use of chemical weapons and might have already pulled itself together to attempt to bring peace to Syria even before this.  But the use of force now or at any time should be left to the Security Council to decide.  President Obama should now earn his Noble Peace Prize by scrupulously following international law.  There is no reason for the US to act as an outlaw just because Assad has.

Gerard M. Gallucci is a retired US diplomat and UN peacekeeper. He worked as part of US efforts to resolve the conflicts in Angola, South Africa and Sudan and as Director for Inter-American Affairs at the National Security Council. He served as UN Regional Representative in Mitrovica, Kosovo from July 2005 until October 2008 and as Chief of Staff for the UN mission in East Timor from November 2008 until June 2010. He will serve as Diplomat-in-Residence at Drake University for the 2013-14 school year.

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