The Security Council has failed Syria: time to question its authority

In his final address to the Human Rights Council, UN High Commissioner for Human Rights Prince Zeid decried the “pernicious use of the veto” by the permanent members of the UN Security Council – China, Russia and the United States in particular – that blocks any unity of action to reduce the suffering of innocent victims of mass atrocities. Zeid spoke of “the most prolific slaughterhouses of humans in recent times”, referring to the horrific battlegrounds in Syria, the Congo, Yemen, Burundi and Myanmar.

“Second to those who are criminally responsible”, he declared, the “responsibility for the continuation of so much pain lies with the five permanent members of the UN Security Council.”

The escalating situation in Afrin and Eastern Ghouta in Syria has once again put a spotlight on the dysfunctional nature of the Security Council in carrying out its “primary responsibility for the maintenance of international peace and security,” as outlined in the UN Charter.

The Security Council fails its responsibility 

Time and again, genocide, mass atrocities, and crimes against humanity proliferated while the Security Council looked on, unable and unwilling to exert certifiable pressure to fulfill the promise of “never again”, seen, among others, in Biafra, Cambodia, Bosnia, Rwanda, Darfur, and for the past seven years in Syria.

Russia and China have sided with the Syrian regime and shield it against any action with the threat or usage of a veto. In 2014, Russia and China rejected a resolution to refer widespread atrocities in Syria to the International Criminal Court.

An institution that appears moribund

In a recent open letter calling on the UN member states to fulfill their obligations under the Responsibility to Protect doctrine with regard to the Assad regime’s massive attacks on civilians, over 200 intellectuals and activists declared that to the extent that the Security Council “has been able to pass resolutions, they have proved ineffectual. All they have done is provide a fig leaf to an institution that appears moribund”.

According to the UN, in the last ten years Russia has cast 18 negative votes, China eight and the United States two. Before this, the US used the veto more frequently, in particular to block resolutions on human rights violations in Palestine and the occupied territories. The last time that France and the UK cast a veto was in 1989.

In face of the stymying action on the Security Council France and Mexico launched an initiative in 2014 supported by around 100 countries to call on the P5 to voluntarily pledge not to use the veto in case of genocide, crimes against humanity and war crimes. In addition, a coalition of UN member states called the Accountability, Coherence and Transparency (ACT) Group proposed a code of conduct endorsed by 115 countries to require all members of the Security Council refrain from vetoing any credible draft resolution intended to prevent or halt mass atrocities.

The power of the General Assembly

These initiatives have had little impact. It is thus time to go further. The Uniting for Peace resolution adopted in 1950 by a two-thirds majority of the General Assembly created a prerequisite for a check on the Security Council. It establishes that if the Council fails to maintain international peace and security due to discord among the P5, the General Assembly shall consider the matter with a view to recommending collective action, including armed force if need be. This instrument is a legal basis for the General Assembly’s power to overrule vetoes in the Security Council.

Two UN bodies, set up by the Human Rights Council and the General Assembly respectively, are already collecting evidence for crimes committed in Syria, preparing the ground for criminal cases against those responsible that have the potential to be taken up by the International Criminal Court at some point.

The General Assembly could declare a referal to the ICC adopted

Among other things, a new resolution referring Syria to the International Criminal Court could be brought before the Security Council. If vetoed again, the General Assembly could step in and declare it adopted. The question of whether this would be in accordance with the UN Charter and international custom could be made the subject of a case at the International Court of Justice.

The court should recognize that UN procedural law, such as the veto, is less fundamental than the principles of universal human dignity and equality upon which the UN was founded, and that where these conflict, it is the latter which must prevail. The permanent membership in the Security Council and the veto right were insisted upon by the victorious powers after the Second World War. This arrangement is at odds with the reality of today’s multipolar world.

Though the outcome of such a case would be uncertain, it would be an unprecedented challenge to the Security Council’s current stonewalled state. Perhaps even more convincingly, it is far more palatable than to stand by and do nothing.

A full-fledged review of the UN Charter

Eventually, a full-fledged review of the UN Charter as promised in 1945 is unavoidable. The ongoing violence in Syria, and the impotence of the UN in the face of it, is further evidence, as if any was needed, that the UN system requires a dramatic and thorough overhaul.

This process should not only lead to an abolishment of the veto but also to a directly elected UN Parliamentary Assembly, as a voice of the people, that complements today’s General Assembly. UN member states have long batted around the idea of the General Assembly’s so-called “revitalization”. In the long run, it is only in conjunction with such a citizen-elected body that the General Assembly will have sufficient legitimacy to achieve a central role in world affairs.