Syria and the Crisis of Sovereignty
The Khan Shaykhun attacks were believed to have involved sarin gas, a nerve agent that was also used in the 2013 attack on the Damascus suburb of Ghouta. The Ghouta attack had prompted then-US President Barack Obama to consider airstrikes or other military action against facilities controlled by Bashar al-Assad in Syria; ultimately, however, a compromise was reached wherein the Assad regime agreed to surrender its chemical weapons stockpiles for inspection and removal by the Organisation for the Prohibition of Chemical Weapons (OPCW). The OPCW-UN Joint Mission in Syria has subsequently confirmed the inspection and destruction of 96% of stockpiles and production facilities declared by the Syrian government.
As High Representative for Disarmament Affairs Kim Won-Soo reminded an emergency session of the UN Security Council on Wednesday, however, there were a number of outstanding issues related to that initial declaration. The OPCW continues to operate a fact-finding mission in Syria, which investigates allegations of use of chemical weapons; where the mission finds proof that such chemicals were used, a Security Council-mandated Joint Investigative Mechanism (JIM) then tries to identify the perpetrators of such attacks.
At Wednesday’s meeting, members of the Security Council repeatedly cited these two mechanisms as a first-line response to the attacks in Khan Shaykhun. Certainly, determination of facts on the ground is a logical first step, and a largely uncontroversial measure. Yet it raises a larger question: Will those responsible for such attacks be held accountable for their crimes? Recent history in Syria and beyond offers little grounds for optimism in the short to medium term.
In Syria, the UN is confronted with an uncooperative head of state, bolstered by the support of veto-wielding members of the Security Council. In the face of Assad’s intransigence, every UN effort has floundered, whether it is to negotiate a political solution, to bring about ceasefires or cessations of hostility, to protect civilians or provide humanitarian assistance to besieged cities, and indeed even to prevent the use of chemical weapons or ensure accountability for any of these atrocities.
It is tempting to blame these failures solely on Assad and his Russian and Chinese supporters in the Security Council. Yet that explanation is inadequate: The veto may explain why no robust action has been taken in Syria—except against Daesh, where the interests of the permanent members and regional powers coincide—but it cannot explain why so many states continue to accord the Assad regime a presumption of legitimacy, notwithstanding its extensively documented history of repression. Nor can it explain why the same presumption was extended to others who used proscribed weapons against their own people.
Assad maintains that protests or conflict in Syria are domestic matters; how his regime responds to them is thus—in the language of the UN Charter—a matter that is “essentially within the domestic jurisdiction” of Syria, in which the UN cannot intervene. This claim would not hinder action mandated by the Security Council under Chapter VII of the Charter, but that would require Russian and Chinese acquiescence. Thus, the only remaining basis on which international action in Syria could even be contemplated is if sovereignty were deemed to be compromised by non-compliance with international norms—e.g. chemical weapons attacks, or arbitrary detention and torture. Previous attempts to suggest such a link, such as the “responsibility to protect” doctrine, proved to be too controversial for most states; at any rate, the Security Council seems unlikely to authorize military intervention on that basis in the near future. And intervention without such authorization—of the kind the US has just undertaken—is, as former US State Department legal scholar Ashley Deeks argues, “very difficult to defend as consistent with international law.”
In codifying the “sovereign equality of all its members,” the UN Charter created a system where any dilution of the norm of sovereignty theoretically affects all states. Such dilution is an unacceptable outcome for regimes who wish to preserve an untrammeled freedom of action within their own territory and they have remained vigilant against any such encroachments. By asserting its sovereignty, a state can thus resort to any number of means to prevent the UN from meaningfully addressing any conflict within its territory—even where the conflict involves illegal and proscribed forms of violence against protected populations, because the violation of those norms has no bearing on the claim of sovereignty. The late South African scholar Leo Kuper once bluntly characterized this claim– “…[The] sovereign state claims, as an integral part of its sovereignty, the right to […] engage in genocidal massacres against people under its rule, and [the UN], for all practical purposes, defends this right.”