- By David BoscoDavid Bosco is a Foreign Policy contributing editor and assistant professor at American University's School of International Service. He is at work on a book about the International Criminal Court's first decade.
The outlines of a United Nations Security Council resolution on Syria are now clear. The permanent five members have struck a deal, and it’s expected that the full Council will approve it as early as this evening.
As with most contentious Council resolutions, this one has multiple layers, lots of ambiguity, and is subject to a range of different interpretations. Colum Lynch sees in the outcome Russian mastery of the UN’s procedures:
A draft U.N. resolution that was endorsed this afternoon by the U.N.’s five big powers — and which is expected to be approved by full the Security Council in a matter of days — threatens no automatic penalties against Syria if it fails to comply with its obligations or even if it launches a fresh chemical attack….
But if Syria cheats, the president will find himself constrained from acting. Under the terms of the resolution, a committee of diplomats and functionaries from the United Nations and the Organization on the Prohibition of Chemical Weapons will determine whether Syria has violated the terms of the agreement.
The matter would then be taken up by the U.N. Security Council. In principle, Russia has agreed that in the event of a Syrian violation it is prepared to impose measures under Chapter Seven of the U.N. Charter — a provision that is used to authorize sanctions or the use of military force.
But it doesn’t have to. A provision of a confidential draft resolution proposed last week by Russia suggests how difficult it may be to convince Russia to press ahead with any stern measures. First, Russia insisted that evidence of a violation be "indisputable and proved" and that it must be of a particular "gravity" to merit the adoption of a new resolution. So far, according to U.S. and European officials, Russia has disputed what they believe is indisputable evidence that Assad used chemical weapons against his own people on August 21. The latest draft has also dropped a provision calling for the International Criminal Court to investigate and prosecute those responsible for using chemical weapons. Instead, he council will merely states that perpetrators of such attach should be held accountable for their crimes.
Writing at Think Progress, Hayes Brown offers a much more sanguine view:
What the two sides agreed to as a compromise in the draft resolution agreed to on Thursday is elegant in its simplicity and tremendously important for future resolutions. Rather than the preferred language of “Acting under Chapter VII of the United Nations Charter” to indicate its binding nature, the draft resolution instead reads “Underscoring that Member States are obligated under Article 25 […] to accept and carry out the Council’s decisions.” Which is true and plain as can be within the Charter.
The use of that language clearly managed to win over the Russians and Chinese and allow for a much stronger resolution than would otherwise be expected given the high stakes. In particular, the draft makes judicious use of some of the strongest phrasing available to the Council — such as “Demands,” “Decides,” and “shall” — that give the decisions made heft under international law and indicates commitments that the international community doesn’t just recommend but fully requires Syria to follow through on.
My lawyerly side also likes that the resolution moves beyond the silly notion that Chapter VII resolutions are legally binding while others are not. But that’s a sideshow. The key question, of course, is how the Council will judge whether Syria has complied and what it will do if Syria hasn’t. The question of who determines non-compliance is left a bit vague in the draft resolution. But as Colum Lynch noted, outside actors appears to be in control. The resolution provides that the Council:
Decides to review on a regular basis the implementation in the Syrian Arab Republic of the decision of the OPCW Executive Council and this resolution, and requests the Director-General of the OPCW to report to the Security Council, through the Secretary-General, who shall include relevant information on United Nations activities related to the implementation of this resolution, within 30 days and every month thereafter, and requests further the Director-General of the OPCW and the Secretary-General to report in a coordinated manner, as needed, to the Security Council, non-compliance with this resolution or the OPCW Executive Council decision…
It’s almost certainly a good thing from the standpoint of enforcement that the Council itself doesn’t determine noncompliance. The OPCW chief is a Turkish national with plenty of NATO experience and may be primed to declare that the Syrian regime isn’t playing ball. But it is almost certain that a determination of compliance will be a drawn-out affair that affords the regime time. If the Assad regime is smart, it will maintain a slow but steady pace of concessions on the ground even as it pushes its advantage over rebel forces. (The regime will very likely be able to keep a strategic reserve of chemical weapons out of international hands in case of emergency). But let’s say that the OPCW does finally throw up its hands. What happens then? The penultimate paragraph of the draft provides that the Council:
Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter;
As implied threats go, this is pretty weak sauce. Depending on how one defines "measures", this could mean simply another stern resolution, sanctions, an ICC referral, or, conceivably, an authorization of force. Past resolutions in similar contexts have included much more threatening language, such as "serious consequences." In short, if the OPCW decides Syria is out of compliance, the Council has pledged to do something under Chapter VII. And anyone familiar with the Council’s work knows that a Council pledge is what Mary Poppins would call a pie-crust pledge: easily made, easily broken.
I draw two conclusions from the Council’s work. First, this is not nothing. It sets into a place a process for, at the very least, reducing Syria’s chemical stockpile and making it harder to deploy. If one’s aim is nothing more than to insist that the international community won’t shrug at the use of these weapons, this resolution counts as a success. Any leader contemplating their use knows that he will likely face some kind of international response.
But in the broader political and strategic context, the resolution is a victory for the Assad regime and its Russian backers. The status quo is working in their favor. A few weeks ago, the regime faced the imminent threat of military force that might have changed that status quo. Now, it faces the annoyance of inspectors and an obligation that may or may not be enforced to hand over its chemical weapons. Meanwhile, the regime’s campaign to defeat its opponents can continue mostly unimpeded. As a bonus, regime officials don’t face the threat of international prosecution. For regime leaders battling for survival, that threat probably wouldn’t have mattered all that much. But it’s nice not to worry about.
I actually don’t chalk this up to Western diplomats having been outnegotiated by wily Russian veterans. Once the threat of imminent military force receded, leverage on this issue shifted decisively. The West needed a resolution to prove that something was being done and that its somewhat ham-handed threat of force had been worthwhile. And when you sorely need something at the Security Council, that means you’ve got to pay the price, often in rubles.