Will the United Nations Connect the Dots in Syria?

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.

The Multilateralist

Chapter and Verse of Security Council Resolutions

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.