There have been a few comments on our last post on Syria dealing with the possibility of intervention based on an assertion of self-defense by Turkey. I thought it might be best to address them together in a separate post.
The first issue that came up was the possibility that the international community could intervene if Syria were to be suspended or expelled from the United Nations. The underlying legal assertion being that the prohibition on the use of force contained in the UN Charter is a contractual obligation flowing only between the States party/member of the United Nations. The wording of Article 2(4) of the Charter would seem to indicate otherwise. It reads,
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations
Members agree not to use force in their international relations, full stop. It does not provide, as argued, that this prohibition applies against only other members of the UN. In any case, it is now generally recognized that the prohibition on the use of force is a binding norm of customary international law (See, Antonio Cassese, Diritto Internazionale, Bologna 2005). Member or not of the United Nations, Syria benefits from the prohibition on the use of force absent United Nations Security Council authorization.
A second point raised what that the events in Syria amount to genocide and crimes against humanity and therefore the ICC is competent to act. This is undoubtedly true; a UN report has classified the events in Syria in these terms. However, this fact alone does not found jurisdiction for the ICC, which is instead governed by Articles 12 and 13 of the Rome Statute. These articles set out that there is jurisdiction only in cases where the territorial State (where the crimes took place) or the State of which the accused is a national have accepted the competence of the Court or when the United Nations Security Council has referred the given situation to the Court. None of these circumstances exists in the case of the ongoing events in Syria. Ergo, the ICC does not have jurisdiction to act regarding alleged crimes in that country.
The last legal point raised was the alleged consensus of the United Nations Security Council regarding action in Syria. The view noted that neither Russia nor China shared this view and had prevented any formal adoption on intervention. The view appears to be that if the majority of the Security Council is in favor of action then this is tantamount to authorization by the Council. This is however in error. The Security Council cannot act without the affirmative votes or abstention of all five permanent members of the Council, including Russia and China. This is the so-called “veto power”. For better or for worse, all permanent members must agree (or abstain) to avoid deadlock.
Finally, a moral obligation to act in the face of allegations of international crimes was raised. I will abstain from this argument as it is extra-legal and raises many issues (worthy of discussion) that are outside the scope of the original post.
Thank you very much for the comments; they were very thoughtful and insightful.