In the Syrian Labyrinth: The Impasse of International Law

By James Luchte, teleSUR

16 March 16

The tragedy of Syria serves as an object lesson for the persistent failure of international law.

s hundreds of thousands have been killed, injured or displaced, as the country lies in ruins, the United Nations has once again been exposed as unable to fulfil its stated mandate to protect the sovereignty of independent nations.

The situation in Syria is one of extensive covert and overt foreign intervention with the horrifying results of death, ethnic cleansing, and the systematic destruction of a country which, prior to the intervention, was stable and prosperous – even thriving. Such was a country seeking to open itself up to the international community, becoming a preferred destination of foreign investment and tourism.

It is not that there have been no voices, however, raised in protest against the violation of Syria’s sovereignty and the questionable activities which have been orchestrated to create its on-going descent into the maelstrom of suffering and destruction.

Vladimir Putin and Sergey Lavrov have contended from the beginning that the covert support by the Obama administration and its allies in the Gulf of so-called “moderate rebels” was a clear violation of international law.

Yet, as with the myriad and arguably illegal interventions by the United States, beginning shortly after the formation of the United Nations, international law has remained impotent as the United Nations Security Council (UNSC) has remained inexorably divided, and thus, paralyzed to undertake its stated responsibilities.

Such division and paralysis, however, has not ruled the day in every situation – only in situations in which a conflict reflected a division between the five permanent members (P-5) of the UNSC. To this extent, the application of binding international law has had little impediment when it has come to African leaders, who have disproportionately found themselves made subject to binding resolutions of international law.

Indeed, the United Nations Charter – as was its intention from the beginning - is not the actual law of international relations as was the case with the articles of the Covenant of the League of Nations. The Charter remains, for the most part, an aspirational document in which resolutions may only have binding validity as actual international law if they are supported and enforced by the UNSC.

Such a state of affairs has been described in contemporary international relations theory as the play between the “legalized hegemony” of the UNSC (permanent and non-permanent members) and the “organized hypocrisy” of the non-binding functionality of the United Nations as a whole. In other words, the United Nations was formed as an oligarchy of the allied powers of 1945. Resolutions from the General Assembly may be proposed, debated and passed continually (such as the dozens of resolutions against the Israeli occupation of Palestine), but none of these are binding as international law unless affirmed by the UNSC.

In this way, the judgments of Vladimir Putin and Sergey Lavrov that the United States and its allies have violated international law in Syria have no validity – even if such judgments reflect both the letter and spirit of the United Nations Charter. Russia has also made much of its technical compliance with international law in Syria as it is the only external participant in the conflict which has been explicitly invited by the duly elected government. Yet, such claims also have no validity as they have no mandate from the UNSC.

During the final discussions and debates leading to the original formation of the United Nations in 1945, many nations objected to the veto power of the permanent members, citing the possibility that one or more of these members could at some point become a “menace” to peace. Such a situation, which has arguably, time and again, become an actuality, would not only prevent the fulfilment of the United Nations Charter, but would also give the organization no real options to rectify such a dangerous state of affairs.

Indeed, if one considers the capacity for amendment or review of the Charter, specifically in Articles 108 and 109, respectively, there is presented no real “power to act” on the part of the General Assembly in the event of a menace to peace on the UNSC. While there is the stipulation of a two-thirds majority of member nations to pass an amendment, the United Nations Charter has the additional requirement of the agreement of the UNSC.

The fears of the many nations who had foreseen that one or more of the P-5 could become a menace to peace have arguably been realized – in Vietnam, Iraq, Libya and innumerable other situations. There is moreover no recourse to rectify this situation – while also maintaining the United Nations - outside of the remote possibility of a “perfect storm” in which the UNSC would voluntarily agree to allow for the transformation of the organization by removing the flaw that was built into the original agreement.

In response to these fears, the victorious nations merely insisted on the veto. Only the UK initially suggested that a UNSC permanent member could recuse itself in issues which specifically pertained to itself. But, in the end, it too went along with the tide of unanimity that has become the character and defect of the United Nations since its inception. The reluctant nations were essentially told that either the P-5 have their veto or there would be no United Nations at all. In this way, these nations, the fears of which have indeed become prophetic in countless tragedies over the last 70 years, were forced into acquiescence to the legalized hegemony of triumphant powers.

With no recourse or real prospects for change, moreover, the United Nations has become a variegated global institution with little or no legal validity except for the original “forced choice” of governance by a problematic oligarchy. Such a dysfunctional situation reveals the impasse of international law, one that offers little or no hope for democratic transformation. We can only hope for Ariadne’s thread out of the labyrinth while we engage in the organized hypocrisy we fear will never be enough to indefinitely postpone the eruption of total war.