JURIST Guest Columnist Patricio Galella of The Ohio State University Moritz College of Law argues that if diplomacy with Syria fails, and the UN Security Council is deadlocked, states would face a lasting dilemma: violate international law by using force without Security Council authorization or stay still and confirm the weakness of the UN system of collective security…

On September 4, 2013, the US Senate Foreign Affairs Committee (“Committee”) approved a joint resolution authorizing a limited and specified use of force against Syria as a result of its use of chemical weapons against civilian population on August 21 in Ghouta, and the brutal repression in the last two years. The Committee considered that the use of chemical weapons was in direct contravention of Syria’s international obligations under the UN Charter, the Geneva Conventions [PDF] and the Protocol to the Hague Convention [PDF] on the Prohibition of the Use of War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, and also violated the standards set forth in the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, even if Syria is not a party in that treaty.

The authorization granted by the Committee is based upon core national security interests of the US and it contains four objectives: 1) to respond to the use of weapons of mass destruction by the government of Syria; 2) to deter Syria’s use of such weapons; 3) to degrade Syria’s capacity to use such weapons in the future; 4) to prevent their transfer to terrorist groups or non-state actors. The resolution does not authorize the deployment of troops on the ground.

A simple look at the language used in the resolution shows that the authorization is aimed at responding and deterring, aims that are related more with punishment than with a lawful use of military force. According to international law, a state may lawfully use force in two cases: in self-defense after an armed attack (article 51 of the UN Charter) and when an authorization has been granted by the UN Security Council (UNSC) under chapter VII of the UN Charter which regulates threats to peace and aggression. In the current Syrian crisis, there has clearly not been an armed attack against the US nor a UNSC authorization to use military force. In this context, the use of force by the US to punish and deter Syria’s use of chemical weapons would likely be considered as an armed reprisal, as pointed out by Shane Darcy in a recent post. The UN Charter does not contain a specific prohibition of reprisals but its provisions concerning the peaceful settlement of conflicts and the use of force in limited cases as well as its purposes are considered as norms that forbid armed reprisals [Ian Brownlie, Use of Force in Self-Defence, British Yearbook of International Law, Vol. 37, 1961, pp. 233-34]. This interpretation has been confirmed by the UNSC through resolution 188 (1964) [PDF], in which it affirmed that reprisals involving the use of force were incompatible with the purposes and principles of the UN Charter. Furthermore, in 1970, the UN General Assembly (UNGA) adopted the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states in accordance with the charter of the United Nations proclaiming that states have the duty to refrain from acts of reprisal involving the use of force.

Recent developments in the Syrian crisis show, however, that the use of military force by the US is on hold. On September 27, 2013, the UNSC adopted resolution 2118, which declares that the use of chemical weapons is a threat to international peace and security, prohibits Syria from using, developing, producing, acquiring, stockpiling or retaining those weapons, or transferring them to other states or non-state actors, and orders Syria to cooperate with the inspections by the Organisation for the Prohibition of Chemical Weapons. But what would happen if Syria does not comply with the resolution and serious violations of human rights continue? The resolution states that in case of non-compliance, the UNSC will decide on the adoption of measures under Chapter VII of the UN Charter. As is well known, these measures include, among others, economic sanctions, severance of diplomatic relations or even the use of military force. Thus, resolution 2118 does not trigger any automatic use of military force in case of non-compliance. But again, what if the UNSC cannot authorize further measures, including the use of force, because of a veto of its permanent members? This is an old but key issue that points to the Achilles heel of the system of collective security: a paralysis of the UNSC and its impossibility to exercise its primary responsibility for the maintenance of international peace and security.

One way to overcome this paralysis could be the referral of the case to the UN General Assembly, in application of the Uniting For Peace resolution adopted in 1950. Section A of this resolution states that where the UNSC, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, the UNGA shall seize itself of the matter. The UNGA could, with the support of 2/3 of its members, recommend the UN members collective action, including the use of force.

The UK has expressed that the doctrine of humanitarian intervention could be the legal basis for the use of force in the Syrian crisis. This doctrine is based on the assumption that when the UNSC is deadlocked and there are serious violations of human rights that affect the international community as a whole, the use of military force to stop these violations can be justified and legitimate. According to a recently released memorandum [PDF], the UK argues that a humanitarian intervention is lawful if three conditions are met: i) the existence of extreme humanitarian distress on a large scale; ii) there is no practicable alternative to the use of force, derived for instance from a paralysis of the UNSC; iii) use of force must be proportionate and necessary to the aim. Although this doctrine has legitimate aims (put an end to atrocities), the truth is that as international law stands today, this doctrine is still illegal and very controversial among international scholars.

This being said, what are the options? Let us give diplomacy a chance, hope that Syria gives up its stockpiles of chemical weapons and puts an end to the serious violations of human rights. Though late, the UNSC would have exercised its primary function for the maintenance of international peace and security. But, if diplomacy fails and, hypothetically, the UNSC cannot adopt further measures, states would face a lasting dilemma: violate international law and use military force in the face of a threat to international security without UNSC authorization or stay still and confirm the weakness of the UN system of collective security when the UNSC is deadlocked. Perhaps, it is time to seriously consider a reform of the functioning of the UNSC or, as has been recently proposed [in French] by Laurent Fabius, the French Foreign Affairs Minister in a recent article in Le Monde, to agree in a compromise among the permanent members to renounce to the use of the veto power when mass crimes have been committed.

Patricio Galella is Visiting Research Scholar at the Ohio State University Moritz College of Law. He holds a Masters Degree in International Affairs from l’Institut d’Etudes Politiques, Paris, and in International Law from University Complutense of Madrid, Spain.

Suggested citation: Patricio Galella Use of Force Against Syria: Alternatives in the Event of UN Security Council Deadlock, JURIST – Forum, Oct. 11, 2013, http://jurist.org/forum/2013/10/patricio-galella-syria-securitycouncil.php.