U.N. Secretary-General Ban Ki-moon is briefing the Security Council today on the findings of the special mission set up to investigate the use of chemical weapons. The mission had a responsibility to investigate whether chemical weapons were used, but not to identify the perpetrators. The report hews to that line; it provides technical details on the attack and its consequences, but avoids conclusions on authorship.
The U.N. report has been released into an environment, at least in the West, where Syrian government responsibility is taken for granted. Western capitals have all accused the regime. Human Rights Watch has concluded that regime forces "almost certainly" launched the attack. Yet the report is being combed for any implicit conclusions on responsibility, and senior U.N. officials will face intense pressure from journalists to draw the seemingly obvious conclusion.
It's worth recalling that there's another U.N. investigation under way that has an explicit mandate to assign responsibility. Two years ago, the U.N.'s Human Rights Council created a commission, chaired by Brazilian Sergio Pinheiro and including former international prosecutor Carla Del Ponte.
The Commission was … tasked to establish the facts and circumstances that may amount to such violations and of the crimes perpetrated and, where possible, to identify those responsible with a view of ensuring that perpetrators of violations, including those that may constitute crimes against humanity, are held accountable.
This Reuters report makes clear that this commission is also engaged on the chemical weapons question, and in a potentially broader and more comprehensive fashion:
U.N. war crimes investigators know of 14 potential chemical attacks in Syria since they began monitoring Syrian human rights abuses in September 2011, the team's chairman said on Monday.
"We are investigating 14 alleged cases of chemical weapons or chemical agent use. But we have not established the responsibility or the nature of the materials that were used," Paulo Pinheiro, chairman of the U.N. Commission of Inquiry on Syria told a news conference.
How actively the Pinheiro-led commission now pursues its mandate may be an important question. The emerging deal on Syrian disarmament will require high and sustained levels of regime support. However strained, a level of official international ambiguity about who committed the August attacks may serve a strategic purpose in facilitating regime cooperation and Russian buy-in. Western governments didn't wait for the U.N. report to assign blame for the chemical attack and to threaten consequences. That pressure has yielded a disarmament process the West thinks has some potential. Ironically, Western officials may now not be enthusiastic about U.N. investigators connecting the dots on individual guilt.
In Geneva, Secretary of State John Kerry and his Russian counterpart Sergei Lavrov are negotiating the outlines of a UN Security Council resolution that would create a framework for the control or handover of Syria's chemical weapons. While the details of their discussion are unknown, one central question appears to be whether the resolution will invoke Chapter VII of the United Nations Charter. In recent years, Chapter VII—the section of the Charter that outlines the Security Council's coercive powers—has assumed talismanic significance. Here's a CBS News account:
The Western powers among the Security Council's permanent members -- France, the U.S. and the U.K. -- want a resolution under Chapter VII, which authorizes the use of force; Russia has suggested either a presidential statement or a resolution under Chapter VI, which mandates the peaceful dispute of settlements -- if there is a formal resolution at all.
There are a couple of misconceptions in this kind of shorthand, and the research organization Security Council Report produced a good primer several years ago to help clear up matters. First, the invocation of Chapter VII doesn't itself authorize force. Slews of Council resolutions reference Chapter VII without authorizing force. Specific language is required to do so, normally something along the lines of "all necessary means." Second, a resolution not under Chapter VII can be legally binding if the Council intends for it to be. Again, the specific Council language is what's critical:
The question as to whether the Council has imposed an obligation binding under articles 24 and 25 should be determined from the Council’s actual language in any given situation. And this seems true for resolutions adopted explicitly under Chapter VII as well, since they often also contain non-binding provisions such as recommendations. It is not the reference to a particular chapter that is the ultimate arbiter of whether a resolution contains binding provisions.
Those looking for clarity on whatever emerges from the Kerry-Lavrov confab need to look well beyond Chapter VII.
But it's also important to recognize that the key players drafting resolutions often don't want them to be clear. Resolutions are hard fought compromises, and points that can't be cleanly resolved are often papered over with language that can be interpreted in multiple ways. The famous Resolution 1441 on Iraq, for example, was designed to be unclear on the question of whether further Council action was necessary to authorize force. The Americans and British could point to language suggesting not, while the French and Russians inserted language implying the opposite. Absent that ambiguity, they likely wouldn't have struck a deal. Further back in history, the landmark Resolution 242 was studiously unclear on whether Israel had an obligation to withdraw from some or all of the territories it occupied during the 1967 war.
For leaders keen to show evidence of diplomatic progress, an ambiguous resolution is better than none at all.
Here's the formidable curriculum vitae of Russia's man at the United Nations, Vitaly Churkin. He speaks fluent English and has served previously as an ambassador to several countries and as a deputy foreign minister.
Bizarrely enough, Churkin also has some experience testifying before the United States Congress. In 1986, the Soviet government dispatched the junior diplomat to speak before Congress about the Chernobyl nuclear meltdown. From the Washington Post's account of that testimony:
For more than an hour, the well-tailored diplomat, displaying an array of English slang and the Gorbachev emphasis on image, parried with members of the House energy, conservation and power subcommittee. He fended off the political barbs of one congressman as "mumbo jumbo" and advised the panel not to use such a "commanding tone" if it hoped to elicit cooperation from Moscow.
When subcommittee Chairman Edward J. Markey (D-Mass.) demanded to know why the Soviet government has failed to inform its own people of the accident, Churkin replied that "the citizens who were affected by the accident are very well taken care of, and if they have any medical problems they will not even have medical bills to pay."
China has maintained a very low profile thus far on the Syria question. As is so often the case at the Security Council, it has preferred to let Moscow take the lead. While Russian diplomats relish skewering the West, China's officials almost always prefer a milder approach. Reuters reports this morning on the latest bromides from the Chinese foreign ministry:
Chinese Foreign Ministry spokesman Hong Lei would not say explicitly whether Beijing would back or oppose the French proposal, but implied some reservations.
"China supports the U.N. Security Council in playing an important role on issues of world peace and security and is willing to remain in touch with all sides on the next steps by the security council," he told a daily news briefing.
"We also believe that action by the Security Council must be based on consensus reached after full discussions by all sides, should help ameliorate the present tension in Syria, be helpful to maintaining peace and stability in Syria and the region and be helpful to a political resolution."
While their tones are very different, it's highly unlikely that Moscow and Beijing will diverge if and when it comes time to vote.
As the byzantine diplomacy on Syria continues, one thing is clear. In a dynamic environment, the UN Security Council can move from the cheap seats to center stage very quickly. At least for a moment, the multilateral process that President Obama described as "hocus pocus" is getting another look. The New York Times notes the sudden shift:
[A] senior White House official said Tuesday that administration officials — who just last week had been dismissing the United Nations as ineffective in the Syrian conflict — had begun working with American allies at the United Nations to further explore the viability of the Russian plan, in which the international community would take control of the Syrian weapons stockpile.
It's quite possible this will all amount to nothing, and that the West will ultimately strike Syria without the Council's blessing. But the volte-face is a good reminder that blanket judgements on the organization's utility are ill-advised. The Council is an important diplomatic tool but its impact is always going to depend on the particular political dynamics at work. Acknowledging that reality is difficult for both sides of the often overheated debate about the organization.
At long last, the International Monetary Fund has approved a new loan for Pakistan. The new package totals almost $7 billion. The last package collapsed amidst disagreement over whether Pakistan was complying with loan conditions and it's taken years to negotiate a new version. Pakistan's Express Tribune provides some context:
It is the 16th programme that Pakistan and the IMF have agreed since 1958.
Both parties have a chequered history, with Islamabad earning the reputation of a one-tranche nation – a veiled reference to the country’s track record of taking loans at critical times but abandoning them prematurely, either because a crisis of balance of payments averts or because further disbursements required some tough policy actions.
The Fund wants plenty of tough action this time as well, particularly on the country's tax system:
[T]o ensure medium-term fiscal sustainability and create fiscal space for social and investment spending, it is important to raise the tax-to-GDP ratio, including by broadening the tax base through a reduction in exemptions and concessions and extending taxation to areas currently not fully covered by the tax net. An overhaul of tax administration is also required, and provinces should contribute fully to the adjustment effort.
As the U.S. Congress ploddingly considers military action in Syria, the question of whether United Nations authorization is required isn't getting much attention. Not surprisingly, the Congress and the American people seem to believe the UN's imprimatur is significantly less important than whether intervention is likely to succeed.
In the academy and for the global governance crowd, however, the necessity of UN authorization is the question du jour. Battle lines have formed. One camp insists that UN authorization is essential, and that bypassing the Security Council risks weakening a critical element of the international order. Yale Law School professors Oona Hathaway and Scott Shapiro made that case forcefully in yesterday's New York Times. They insisted that by attempting to enforce the norm against the use of chemical weapons, the United States may be erodding a much more critical prohibition:
If we follow Kosovo and Iraq with Syria, it will be difficult, if not impossible, to stop others from a similar use of force down the line.
Consider the world that preceded the United Nations. The basic rule of that system, one that lasted for centuries, was that states had just cause to go to war when legal rights had been violated. Spain tried to justify its conquest of the Americas by saying it was protecting indigenous civilians from atrocities committed by other indigenous peoples. The War of the Austrian Succession was fought over whether a woman had a right to inherit the throne. The United States largely justified the Mexican-American War, including the conquest of California and much of what is now the Southwest, by pointing to Mexico’s failure to pay old tort claims and outstanding debts.
The problem with the old system was not that no one could enforce the law, but that too many who wished to do so could. The result was almost constant war.
If history was as the authors describe, their argument is tough to dispute. Who would really risk a slide back into the Hobbesian jungle just to punish Bashar al-Assad's beastliness? But their stark vision of the world before and after the United Nations Charter is only loosely tethered to reality. The notion that it was the UN Charter that ushered in the post-World War II era of relative peace between the major powers ignores the critical role of nuclear weapons and mutual assured destruction. They also vastly overstate the strength of the norm against the use of force without Council approval. Post-1945 history is littered with examples of states (big and small, democratic and nondemocratic) employing military force across borders without Council approval. It's really only since 1990-1991 that a fragile "Security Council norm" has emerged in practice. And the idea that this norm is what's keeping states from each other's throats is fanciful.
I say all this as someone who has argued that the UN Security Council is an important institution. But to my mind, its value is primarily political—it serves as a useful forum for key powers, it can provide them face-saving exits from crises, and it can slow the pace of events. (The veto power that Hathaway and Shapiro dismiss as a grievous historical mistake is in fact the basis of its utility in this function.) I'm not at all convinced that bypassing the Council over Syria would do significant damage to the institution or diminish these advantages. I don't see much evidence that the Kosovo war diminished the body's utility. And the much more consequential 2003 invasion of Iraq without explicit Council approval was followed by several very productive years of Council work. The body that many had thought to be grievously wounded approved big new peacekeeping missions and passed resolutions—usually unanimous—at a remarkable clip.
None of this means that intervention in Syria without UN approval is the right course of action. But fear that the world is on the cusp of a new war-of-all-against-all is not a good reason to oppose it.
Writing in the New York Times, recently retired NATO commander James Stavridis urges the alliance to lead the charge in Syria—and he sees no legal obstacles to its doing so:
Such action could be justified based on self-defense, owing to the threat posed to Turkey, a NATO member that has backed Mr. Obama’s call for an American-led intervention; the overall threat posed by weapons of mass destruction; and, more controversially, on the evolving international doctrine of a “responsibility to protect.” NATO has not moved forward so far, because of the absence of a United Nations Security Council resolution authorizing action against Syria, but that is not required under the rules of the alliance — indeed, NATO has previously acted with force without such approval, notably in Kosovo in 1999.
Whatever one thinks of the policy merits of his argument, his legal reasoning is thin. The self-defense argument on behalf of Turkey is a stretch, and Stavridis is reaching even further when he claims that NATO's rules don't require Security Council approval. In fact, the drafters of the North Atlantic Treaty went to great lengths to emphasize that the treaty doesn't alter members' obligations under the UN Charter. Article 7 of the treaty reads as follows:
This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.
David Bosco reports on the new world order for The Multilateralist.