Tag Archive | "Syria"

Grading the United Nations at 70 years old

(Denver Post) By Ved Nanda

The euphoria that accompanied the creation of the United Nations in 1945 has long since



given way to frustration and disappointment. Established in the aftermath of the death and destruction of World War II to “save succeeding generations from the scourge of war,” it has succeeded in preventing another global war, but peace still remains illusory.

Armed conflicts in Syria, Iraq, Afghanistan, Libya, the Congo, Yemen, and other places attest to this grim reality. And the killing fields of Cambodia, the genocide in Rwanda, and the tragedy of Srebrenica show the international community’s failure to make good on its promise.

Benefiting from the experience of the failed League of Nations, the U.N. founders proclaimed in its charter the main purposes: to maintain international peace and security, to promote and protect human rights, and to effectively address pressing international economic and social issues such as development through international cooperation.

For a fair assessment of the U.N. on its 70th anniversary this fall, we need to look at its record in achieving these goals.

Under the U.N. framework, the Security Council, in which the veto power is wielded by five permanent members — China, France, Russia, the United Kingdom and the United States — is primarily responsible for peace and security. The founders envisioned that these five members would provide an umbrella of collective security for the world. That is why these became the only countries exclusively authorized to possess nuclear weapons.

But the Cold War quickly intervened. The U.S. and the Soviet Union — then the two superpowers — were embroiled in a prolonged ideological struggle, which led to an era of client states and proxy wars. The outcome was a paralyzed Security Council and stillbirth of the collective security system. This period lasted until the collapse of the Soviet Union.

At that time, there was renewed promise that the five permanent members (P-5) would work together to fulfill the expectations of the Security Council’s role on peace and security, and the first Gulf War showed a glimpse of that possibility. But the window again closed with Russia and the West at loggerheads on several geopolitical issues.

This tussle notwithstanding, the P-5 have found their interests aligned on countering terrorism, piracy, nuclear nonproliferation, on imposing collective sanctions on Iran, and now the Iran nuclear deal. They have also given their blessings to peacekeeping operations, and President Obama is to host a peacekeeping summit in New York in September. But more often, they disagree, such as on Syria.

Because the collective security apparatus did not work, the U.N. instituted peacekeeping as a band-age for trouble spots. From the early days of U.N. peacekeeping between India and Pakistan, these operations have expanded considerably, now in 16 countries with an enhanced mandate to protect civilians.

More than 100,000 personnel from more than 100 countries are engaged. The operation is costly — $8 billion-plus — and there are tremendous challenges. Critics often point to inefficiencies and abuses in the system, which badly needs clearly defined mandates, selection of peacekeepers based on experience and training, an effective oversight process, and well-defined exit strategies. The value of these operations, however, cannot be overstated.

The geopolitical circumstances have shifted the landscape. The 50 original charter signatories have grown to 193. No longer are peace and security issues confined to conflicts between and among states, as non-state actors such as the Islamic State, terrorists, and criminal elements challenge the traditional structure. And mass migration, climate change, environmental degradation, food insecurity, and violent extremism, among other forces, are major global security problems.

More than 50 million people are forcibly displaced today, and given the tragic incidents of hundreds of asylum-seekers drowning in the Mediterranean Sea and thousands on the move in Europe, the international community is undoubtedly failing them. Will the U.N. system, which is already showing its age, be able to deliver on these challenges?

On human rights, the U.N. indeed has undertaken impressive initiatives. Given the vivid demonstration of the Nazi Germany’s atrocities at home and aggression abroad, the founders realized that peace and security and human rights are inextricably intertwined. Accordingly, human rights found a place of honor on the U.N. agenda. The Universal Declaration of Human Rights, adopted in 1948, followed by binding international treaties on civil and political rights and economic, social, and cultural rights, culminated in an “international bill of rights.”

Since then, a number of international agreements have set universal standards for the promotion and protection of the rights of women, children, indigenous peoples, and disabled persons, for example. International agreements on the prohibition of atrocity crimes — genocide and torture, ethnic cleansing, and war crimes — and the creation of an International Criminal Court to hold egregious violators accountable are attempts to end all impunity. And credit for the independence of dozens of former colonial states goes to the U.N.’s decolonization process.

The U.N. World Conferences on Women — especially the 1995 Beijing Conference — set the goals of gender equality, active participation of women in decision-making, reproductive rights, and voluntary family planning. U.N. Women, a U.N. entity, now has a universal mandate to promote the women’s rights agenda.

Impressive international agreements are now in place on a wide range of other issues of human interaction, including the environment, the Earth’s ozone layer, the oceans, trade, outer space, terrorism, disarmament, aviation and shipping. The U.N. specialized agencies are addressing these issues. For example, the World Health Organization leads the global response to pandemics by creating awareness and mobilizing member states’ quick action on these threats.

The U.N. is attempting to shape a livable future on earth through a “sustainable development agenda,” which envisions linkage between economic viability, social development, and environmental aspects. It is an effort to bridge the initial North-South divide under which the developed states focused primarily on environmental protection, and developing countries on development needs. In 2005, the U.N. adopted the Millennium Development Goals, which focused on reducing poverty, hunger and child mortality, ensuring women’s empowerment, and providing clean water. Many of these goals, set to expire at the end of this year, have been largely met, and in September the U.N. will launch the Sustainable Development Goals, to last until 2030. These goals aim at ending poverty and hunger in all their forms everywhere, achieving gender equality, and ensuring access to clean water, sanitation, and affordable, reliable, and modern energy for all.

Indeed, the U.N. has had spectacular successes and monumental failures. It provides this interdependent world a platform where nations can enter into dialogue and negotiate to resolve their conflicts and address pressing challenges. Undoubtedly the organization suffers from a large bureaucracy, mismanagement, and inefficiency. Its governance structure has pointedly come under harsh criticism, a valid concern, indeed.

Currently the expansion of the Security Council is a contentious issue. Among the P-5 there is no representation from Africa or Latin America. The Asia-Pacific region, which comprises 55 percent of the world’s population and 44 percent of its annual income, has just one representative: China. This calls the Security Council’s legitimacy into question, and on Sept. 14 the General Assembly renewed the efforts for reform.

The veto power, which is responsible for the impasse and hence inaction at the Security Council to solve crises such as Syria, should be altered. But the P-5 defend it, and none would be willing to relinquish it. To illustrate, the Russian ambassador to the UK recently called the permanent members’ right to veto, a guarantee of checks and balances. And any alteration of the U.N. governance structure would require two-thirds of the membership of the General Assembly, 129 votes, not an easy task.

Secretary-General Ban Ki-moon’s term expires at the end of 2016. Jockeying for the job is in full swing. While East Europeans feel that it is their turn and the former president of Slovenia is a strong contender, there is powerful sentiment that the time is ripe for the first woman to take the helm.

There is truth in the cliché that if we did not have a United Nations we would have to invent one. However, while it is accurate that the U.N. can do only what its members will let it do, it must have the capacity to adapt to the changed geopolitical setting and a new economic and social landscape. Crucial questions are how to end red tape and bureaucracy; how to ensure effective monitoring and accountability mechanisms; and how to bring the governance structure in tune with modern-day realities.

Unless they are answered, the U.N.’s capability to effectively address the challenges and crises of the present and future is in question. The United States, which acknowledges the benefits of U.N. membership, must give its full support.

Ved Nanda (vnanda@law.du.edu) is Thompson G. Marsh Professor of Law and director of the Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law.


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Mistaken as Terrorists: How innocent Syrian refugees are prevented from resettling in the US

The Syrian refugee crisis is one of the most horrific this generation has ever seen.

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

The United States, which has a long history of welcoming refugees into its borders and giving protection to those fleeing from persecution, has yet to put a significant resettlement initiative for Syrian refugees into motion. The United States has resettled 546 Syrian refugees since the crisis began.  UNHCR, on the other hand, hopes to resettle 50,000 Syrian refugees in 2015, and another 50,000 Syrian refugees in 2016 in permanent resettlement placements around the world.  The lack of action on the part of the United States is due, in part, to its strict immigration laws in regards to terrorism.  The Terrorism Related Inadmissibility Grounds (“TRIG”) sweep broadly over many individuals who are not dangerous in any way.  The TRIG statutory language, codified in the Immigration and Nationality Act (“INA”) prevents many innocent Syrians from finding a stable and safe living situation.

There are two areas of the INA that stand as a significant obstacle for many Syrian refugees wanting to resettle in the United States. First is the definition of “terrorist activity,” defined in INA §212(a)(3)(B)(iii) as “any activity that is unlawful under the laws of the place where it is committed.” Because the law defines any military action against a regime as “terrorist activity,” individuals who were once seen as friends of the Untied States are now labeled as terrorists. For Syrians, opposition fighters are labeled as terrorists and are excluded from entering the United States, even though the United States government supports them. In contrast, those who were in Assad’s army, which the United States opposes for its violations of international law, would still be admissible, because the statute only applies to non-state actors.

Second, many Syrians may be found inadmissible due to their insignificant material support to a Tier I or Tier II terrorist organization (designated terrorist organizations by the Secretary of State and Attorney General, respectively). In INA §212(a)(3)(B)(iv)(VI), the giving of material support to a terrorist organization labeled as “terrorist activity.”  DHS, in past oral arguments before the BIA, has stated that they would consider even the most minimal support given to a terrorist organization, like a glass of water or five cents, as material support.  Syrians deemed inadmissible due to their material support of a terrorist organization include a family that sheltered an opposition fighter in their home when their town was being bombed, a young boy who joined the opposition fighters for a short time when his father was killed, eventually leaving the war to join his mother and siblings, and even the man who sold falafel sandwiches to opposition fighters in a war-zone.

In order for the United States to continue its longstanding tradition of welcoming people fleeing from persecution, the TRIG laws need to be changed.  DHS needs to use its discretionary authority and expand the available TRIG waivers. Civilians living in Syria were subject to innocent contact with Tier I and Tier II terrorist organizations on a regular basis; this is the nature of living in a conflict zone.  The armed group that took control over the territory they lived in became their customers in their stores—innocent, insignificant material support is unavoidable.  Additionally, exceptions should be given on a case-by-case basis to former combatants who pass a security background check and are not barred for any other statutory reason, including those who were children at the time they were combatants, or to individuals who did not participate in targeting civilians.

Kitty Robinson is a 2L at the University of Denver and is the incoming Candidacy Editor for the Denver Journal of International Law and Policy  

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Lawsuit challenges Japan’s high standard for refugees

Fumio Kishida

Japanese Foreign Minister Fumio Kishida, right, visits Zaatari refugee camp near Mafraq, some 8 kilometers (5 miles) from the Syrian border. Credit to: Asian Correspondent. http://cdn.asiancorrespondent.com/wp-content/uploads/2013/07/Mideast-Jordan-Japan_Crav_opt.jpg

In early March, four Syrian men filed a lawsuit against Japan’s Ministry of Justice, challenging the rejection of their refugee applications.  The group arrived in Japan in 2012 and applied for refugee status, citing the potential for persecution for their participation in pro-democracy protests against the Syrian government.  The Ministry rejected their refugee status in early 2013, and instead granted them each a temporary residence permit under a “humanitarian perspective.”  This type of permit allows the men to work full time and to participate in the national health care and other social programs.  But while this seems like a compromise, the permits must be renewed every year, unlike refugee certificates which are permanent; and permit holders are excluded from certain assistance programs such as language training and employment help that the government grants to certified refugees.  Perhaps the greatest disadvantage the lack of refugee status prevents for the Syrians is the difficulty, or near impossibility, it is to get their families into the country.  Their lawsuit seeks to obtain official refugee status and the full rights and protections that it provides.

Japan’s Immigration and Refugee Recognition Act explicitly refers to the 1951 Convention in its definition of “refugee” as well as in the reasons a temporary refuge may be granted at the border.  Further, the Ministry of Justice itself uses the Convention’s definition of a refugee in its guidelines for refugee status.  The Convention defines a refugee as a person who has a “well-founded fear” of persecution.  In practice, the Ministry tends to grant refugee status to those who are in danger of being “personally targeted” by their home government which, according to the lawsuit, is a higher standard than what the Convention requires.

The Convention’s language of having a “well-founded fear” is too vague on its face to offer any sort of guidance, and the term has no further definition anywhere in the Convention.  Instead, the United Nations High Commissioner for Refugees (UNHCR), provides a handbook to “guide government officials, judges, practitioners, as well as UNHCR staff applying the refugee definition.”  In this handbook, the UNHCR considers the term “well-rounded fear” to have both a subjective and objective element.  Subjective in the person’s motivation for seeking the refugee status; and objective in viewing that motivation within the context of their country of origin or what brought about the motivation in the first place.  When considering whether there is a “well-founded fear”, the UNHCR places most of the weight on the subjective element while the objective element provides a context to assess the credibility of the refugee.

With this framework in mind, will the Syrian refugees’ case against the Ministry be successful?  The answer, naturally, depends most notably on the Ministry’s use of “personally persecuted” when determining refugee status.  Assuming that the terms “personally persecuted” mean that the person is being targeted by their home government and will be arrested the moment they step off the plane, it would seem that the Ministry puts more weight on the objective element of having a “well-rounded fear” instead of the subjective element as the UNHCR states.  Indeed, if a requirement for refugee status is to be a target, then this would effectively do away with the term “well-founded fear of persecution” and replace it with “actual persecution.”  Supporting this interpretation are further explanations in the UNHCR handbook.  A refugee’s fear of persecution, according to the handbook, need not be based on their own personal experiences or the fact that they have previously been persecuted.  The fear could be based on persecution of people in a similar situation, or persecution of friends or family.  The UNHCR further considers that “fear” applies both to those who have actually been persecuted and those who wish to avoid being persecuted.  The Ministry’s standard of “personally persecuted” could be found to be incompatible with 1951 Convention and the standards of the UNHCR.

Japan has been a party to the 1951 Convention since 1981 and has given no reservations or declarations to any provision.  As such, the Ministry of Justice should be bound by the provisions in the Convention and it is likely that it has applied a higher standard than is necessary.  If the lawsuit is successful, it will provide hope for the hundreds of refugee seekers who have been denied the status due to Japan’s rigid and restrictive system.

Leonard Large is a 3L at the University of Denver Sturm College of Law and is Candidacy Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Protecting refugees in the midst of war


Destruction in Yarmouk. Credit: HaAretz. http://www.haaretz.co.il/st/inter/Heng/news/images/yar2.jpg

In the early days of April, the Islamic State (ISIS or ISIL) pushed closer to the center of Damascus, the Syrian capital, than they had been able to before.  They did this by seizing the majority of the Al-Yarmouk camp, a large refugee district in the southern part of the city.  The camp had once held 160,000 refugees from Palestine, but since the beginning of the Syrian Civil War, the refugees have dispersed, leaving 18,000 within the camp.

Even before this ISIS invasion, al-Yarmouk was “a humanitarian nightmare.”  The camp was “ruled” by various factions and armed groups, siphoning scarce food away from the refugees and towards the fighters and their families.  For the last two years, the camp has been subject to a siege that has made the food situation even more grave.  Recently, al-Yarmouk had falled under the control of the Syrian rebel group Nusra Front, whom some eyewitnesses say were fighting alongside ISIS, but who has claimed neutrality in the struggle since. Now, the festering humanitarian crisis in al-Yarmouk has somehow gotten worse.  Mere days after this incursion began, reports of killings and beheadings had already circulated.  The Syrian government has dropped several barrel bombs on the camp. Just as deadly, United Nations Relief and Works Agency (UNRWA) has been unable to send its usual food or convoys into the camp since the fighting started.  This means that the 18,000 residents of the camp have no food, no water, and very little medicine.  Moreover, only 93 people have been evacuated, leaving the rest stuck in this deadly zone. If nothing is done, “Yarmouk shall remain a testament to the collective human failure of protecting civilians in times of war.” (Saeb Erekat, as quoted in the New York Times.)

The al-Yarmouk situation sheds light not only on the dangers of ISIS and the plight of Palestinian refugees, but also the inadequacy of international humanitarian law in dealing with such situations.  There is an international obligation to protect refugees (1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees) as well as an obligation to protect civilians in times of war (The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949); Additional Protocol I (1977)).  And yet, no one is protecting the 18,000 people trapped in al-Yarmouk.  No one, it seems, is even considered responsible for the 18,000 refugees there.

Perhaps the problem is ISIS itself.  The Geneva Convention is designed to deal with states.  Neither ISIS nor Nusra Front is a state.  Therefore, neither feels bound to protect the civilians in al-Yarmouk.  It is doubtful whether either would even be held responsible for the harm done to civilians in the course of their battle.  While the Syrian government may be held responsible, their attitude (particularly in dropping barrel bombs on the camp) indicates that they feel the refugees are a secondary concern.  So when the state who should be responsible refuses to act to protect the civilians and the non-state actors concerned refuse to “stop the fighting” or let others in to evacuate citizens, who under international law is responsible?

This situation highlights perfectly the need to officially implement a Responsibility to Protect.  Ideally, the United Nations should be able to send in a force to evacuate the refugees, by force if necessary.  If the United Nations cannot or will not act quickly enough, anyone else should have not only the right, but the obligation to do so to protect those 18,000 lives.  But while that reformulation of the law is easy—and indeed, already in progress—the next question is both unsettled in law and difficult practically: where would that nation evacuate those refugees to?  If al-Yarmouk was already a humanitarian mess before the ISIS invasion, what good would relocating those people to another shabby, hastily constructed camp, with minimal food convoyed to them on a daily basis?  Is it as easy to obligate a state to take in 18,000—or 160,000—refugees as to march in and save them from certain death?  Is this not a grave oversight in our conception of both a Responsibility to Protect and our refugee law?

I have no good answers to this, but unfortunately, the refugees of al-Yarmouk do not have the luxury to wait for good answers.  Our international humanitarian law is not equipped to handle this—so we must use the law that we have and create the rest after, based on our victories or mistakes from this situation.  If we do not, al-Yarmouk, as Mr. Erekat has said, “shall remain a testament to the collective human failure of protecting civilians in times of war.”

Samantha Peaslee is a 3L at the University of Denver Sturm College of Law.  She is the Senior Managing Editor for the Denver Journal of International Law and Policy.

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Loss of Culture: Can laws prevent the destruction of antiquities?  

“Without memory, there is no culture. Without memory, there would be no civilization, no society, no future.” – Elie Wiesel


ISIS fighters destroy antiquities in Iraq. Courtesy of Chicago Tonight. hicagotonight.wttw.com/2015/03/10/destruction-antiquities-iraq

Over the course of human history, great and mighty civilizations have emerged, such as the Romans and Aztecs,
only to fall to plague, pestilence or conquest. However, the lasting effects of these civilizations are the archaeological sites and artifacts left behind. Artifacts, like the Rosetta Stone, the Terra Cotta Army, and the David, and ancient ruins, like Machu Picchu, the Coliseum, and the Great Wall of China, give the world insight into how ancient civilizations lived, and contribute to the future development of the human race. Through the discovery and preservation of artifacts such as these, the human race can continue to preserve ancient cultures and ensure that they may help shape the future of humanity.

Recent world events show a lack of regard for preserving these jewels of the past in the 21st century.  For example, the world was recently shocked by Islamic State’s destruction of ancient artifacts and archaeological sites in Syria and Iraq. This is not unprecedented, however, as this type of destruction happens all over the world; not just in the Middle East, but in South America, and China, and is attributable to numerous causes, including urban development and war.

The international community has attempted to ensure the integrity of the world’s cultural sites through the creation of the United Nations Educational, Scientific, and Cultural Organization and two international treaties: the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Convention Concerning the Protection of the World Culture and Natural Heritage, also knows the 1972 World Heritage Convention, created the World Heritage List allowing for archeological sites of “outstanding universal value” to be placed on a list that tries to keep the sites protected. For example, the Statute of Liberty, the Tower of London, and the city of Venice are just some of the sites on the World Heritage List. The World Heritage List also includes cites that are in danger, such as the Old City of Jerusalem and its Walls.

Although these safe guards ensure archaeological sites and artifacts are recognized, and the conventions include sanctions which deter member States from breaching the conventions, it is the sovereign duty of each State to ensure that its archeological sites are protected. It is also the duty of each State to bring charges against parties that destroy or harm archaeological sites. In some cases, when a State does nothing to protect a site, or does not punish parties who destroy artifacts, the archeological artifact can be lost forever. Even though state parties to the above-mentioned treaties agree to protect their antiquities, the international community does not enforce its sanctions provisions against states who fail to protect. As of yet, no State has been brought before the International Court of Justice for a lack of protection. For example, China did little to protect artifacts when construction for an IKEA store unearthed an ancient tomb. Although China imposes a fine on companies who destroying ancient tombs, it does not enforce these law strongly, and as a result, an irreplaceable piece of history has been lost. The larger issue is that China was not brought before the ICJ for failure to protect in this case.

The larger issue is that state sovereignty protects most state decisions regarding antiquities. Also, under the treaty, only a State Party may bring a suit against another State Party for violation of a treaty or convention provision. Thus, the principally affected shareholders, like the existing Mayan populations in Belize whose ancestor’s pyramids were destroyed, have no avenue by which to make the State answer for its lack of protection. In most cases, States are able to pressure principally affected stakeholders into forgoing a public fight, likely due to lack of enforcement by the international community. For example, the 1972 World Heritage Convention only asks Party States to “endeavor, in so far as possible” to protect the culture of the State. These archeological sites and artifacts are the backbone of ancient civilizations, and in essence are owned by the people of the State and the existing decedents of those civilizations. Yet, principally affected stakeholder have no recourse to stop the destruction.

So what can be done?

A model that States can follow to ensure preservation of archeological sites and artifacts is that of the United States. The United States strives to ensure the rights to cultural sites and artifacts are given to decedents of the creating civilization. The Native American Graves Protection and Repatriation Act of November 16, 1990 gives the right of ownership over human remains and sacred objects to Native American tribes, after certain requirements are met, such as showing a relationship of lineal descent. Likewise, the Archaeological Resources Protection Act of 1979 protects the archaeological sites and resources of Native American lands. If other States follow a similar model as that of the United States, then the archeological sites and artifacts have a better chance of survival. Even if a State does everything to try and curb the destruction of archeological sites and artifacts, once destruction has occurred, the history, the memory, the civilizations are lost forever.

Teresa Milligan is a 2L law student at the University of Denver Sturm College of Law and is Editor in Chief for the Denver Journal of International Law and Policy.

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ISIS leader Abu Bakr al-Baghdadi and Al-Qaeda chief Ayman al-Zawahiri

Critical Analysis: Will al-Qaeda Rejoin Forces with ISIS?

by Casey Smartt, Denver Journal of International Law and Policy

October 14, 2014


By now, most, if not all, world leaders have taken notice of the threat posed by Islamic State in Iraq and Syria (“ISIS”). Currently, 14 nations have joined the United States’ fight against ISIS in Syria and Iraq. However, al-Qaeda still maintains a strong presence in the Middle East. As such, how plausible is a nightmare scenario where the two previously affiliated groups join forces?

To answer this question, one must understand the origins of ISIS. In October 2004, Abu Masab al-Zarqawi and his militant group Jama’at al-Tawhid wal-Jihad, pledged allegiance to Osama Bin Laden’s terrorist group, al-Qaeda. In doing so, they became known as al-Qaeda in Iraq (“AQI”). In the 2006 surge, US troops claimed defeat over AQI because they killed al-Zarqawi. However, in 2011, AQI rebooted as ISIS and slowly but surely, began rebuilding its ranks. But, ISIS’ relationship with al-Qaeda began to deteriorate because of ISIS’ brutality against civilians. Further, ISIS, now ruled by Abu Bakr al-Baghdadi, ignored al-Qaeda’s leader’s, Ayman al-Zawahiri, commands to stop expanding into the Syrian civil war during the Spring of 2013. Not only did ISIS defy orders, they also began attacking al-Qaeda’s Syrian affiliate, Jabhat al-Nusra. This aggressive act of defiance led al-Zawahiri to officially sever ties with ISIS in February 2014.

ISIS leader Abu Bakr al-Baghdadi and Al-Qaeda chief Ayman al-Zawahiri

ISIS leader Abu Bakr al-Baghdadi contested Al-Qaeda chief Ayman al-Zawahiri’s ruling and the group continued to operate in Syria. Photo credit: AFP through Al Arabiya News.


Nevertheless, the international response to ISIS’ merciless rampage through Iraq and Syria has given the former allies a reason to once again join forces. This is because the U.S. airstrikes have supposedly targeted al-Nusra forces. This has given al-Qaeda a strong incentive to team with ISIS. Moreover, a number of fighters from other Islamist groups are defecting to ISIS because it is now seen as more capable of creating an Islamic State. Thus, al-Qaeda could be forced to adopt the “if you can’t beat them, join them” philosophy. An al-Nusra spokesperson, Abu Firas al-Suri has already spoken out against the airstrikes, stating “This is not a war against al-Nusra, but a war against Islam.” ISIS also has a strong incentive to make a deal with al-Qaeda because air strikes are slowly crippling their resources. ISIS and al-Nusra have already formed a brief alliance in the takeover of Arsal, a small town that sits alongside the Lebanese-Syrian border. ISIS and al-Nusra fighters captured a number of Lebanese policemen and soldiers. A video released by the Nusra Front shows an al-Nusra fighter shooting a Lebanese soldier in the head, while another begs Hezbollah to leave Syria. Other images purportedly showed the beheading of another Lebanese soldier. This is a preview of what would happen if al-Qaeda with its funding resources teamed up with the super-organized ISIS fighters.


However, an actual alliance between al-Qaeda and ISIS is unlikely to happen. This is because any formal agreement made by al-Qaeda would require the approval of its leader, al-Zawahiri. He is a staunch critic of ISIS. In 2005, al-Zawahiri wrote a letter that accused ISIS’ brutal tactics, then AQI, of damaging al-Qaeda’s image among potential Muslim recruits. Further, Aymenn Jawad Al-Tamimi, a researcher at the Interdisciplinary Center in Israel, told The World Post “Baghdadi’s demand to be recognized as Caliph is simply too much for al-Qaeda.” It appears that any “team effort” by al-Qaeda and ISIS will be done in a smaller capacity, such as an al-Qaeda affiliate coordinating with ISIS.  Thus, the nightmare scenario, while possible, has too many political hurdles to pose a significant threat.

Casey Smartt is a 3L law student at the University of Denver Sturm College of Law and Cite & Source Editor for the Denver Journal of International Law and Policy.

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ISIL fighters marching in Raqqa, Syria.

Uncertainty of U.S. Government Intervention over ISIS

One of the predominant issues in recent world news has been the current actions of the Islamic State of Iraq and the Levant (ISIS) and the tensions that the U.S. and Syria now face in response to those actions.  The issue is not new, especially since the ISIS group has prospered since U.S. troops left the Syria and Iraq region in 2011, but the conflict has been escalating this year to a breaking point.  This article will explain the origins of ISIS, detail the current state of affairs in Syria and Iraq, and explain the current political struggle the U.S. has in addressing this threat, including the legal implications of taking action against the group in Syria.

As background, the Islamic State in Iraq was created by Abu Ayybu al-Masri in 2006, and was originally a part of al-Queda.  The current leader, Abu Bakr al-Baghdadi, took over control after Abu Ayyub al-Masri was killed in 2010.  The group then absorbed another militant group in Syria in 2014 and changed their name to the Islamic State in Iraq and the Levant (ISIS) in April 2013.  In February 2014, al-Queda renounced all association with ISIS in due to months of infighting, and because ISIS was considered too violent. In March, ISIS started its military campaign by first taking over the Syrian city of Raqqa, and now currently controls territory in both Iraq and Syria.  ISIS continues to terrorize parts of northern and western Iraq as well as parts of Syria.

ISIL fighters marching in Raqqa, Syria.

This undated file image posted on a militant website on Jan. 14, 2014, shows fighters from the al Qaida-linked Islamic State of Iraq and the Levant (ISIL) marching in Raqqa, Syria. Image Source: ABC News, AP.

One of the unique tensions with ISIS is that many of their fundamental principles go beyond those held by other Muslims.  ISIS believes that all of the Muslims in the world should live under one Islamic state which shall ruled by sharia rule.  The goal for ISIS is to create its own Islamic State in the region between west and northern Iraq and eastern Syria. Their ruthless tactics have not only created tensions with Western States and Syria’s President Assad, but have also created tensions with other al-Queda jihadists groups like the Jabhat al-Nusra group who is now clashing with ISIS, and starting to fight against ISIS to slow down their progress.

Despite efforts by Jabhat al-Nursa to slow progress, ISIS has continued to expand into Iraq and Syria.  They have recently taken Mosul, Iraq’s second most populated city, as well as an oil field in Syria.  Although the ISIS’ movement across the land is of significant concern to President al-Assad, the concern that impacts the U.S. is the mass casualties and humanitarian violations that ISIS commits every time it conquers another region.  Some of the crimes included killing captured Syrian soldiers, killing Kurds in Iraq, and recently the beheading of American journalist, James Foley, which occurred in Syria.  UNICEF estimated that the ISIS in now responsible for the displacement of up to 25,000 Yazidis and the death of 40 children.  As a result of the tensions in Iraq, the U.S. has lunched airstrikes into Iraq to slow ISIS’s progress, but have yet to launch airstrikes into Syria because of the potential political and legal repercussions.

One of issues with the U.S. potentially deciding to launch airstrikes in Syria is the potential legal ramifications.  One of the issues is that Syria may not be able to fight the ISIS on their own, because their counter-attack is based only a mutual dislike of the ISIS by certain groups, like Jabhat al-Nursa.   At this point, the U.S. does not have a stated policy on how they will proceed, but some now believe that the U.S. may choose to use force for Syria.  One of the questions for an U.S. action may be whether there is a justification for use of force under international law.   Part of the justification may be that the U.S. is using the threat to come to the aid of Iraq.  Another justification would be to either use a Security Council Resolution or receive consent from Assad to use force.              Depending on the political ramifications, the U.S. may decide to use either justification.

At this point there situation appears to be at a standstill.  President Obama appears to be weighing the potential of expanding the airstrikes into Syria.  Part of the issue would be if the U.S. decides to strike that action could be considered an act of aggression against Syria.  On the other hand, if Obama decides to work with President Assad it may be considered an act of support of Assad, something which could be difficult considering the allegations the Assad has been turning a blind eye to al-Queda fighters using Syria as a base camp for training.  Regardless of what President Obama decides, this is an issue that will continue to be prevalent in world news until resolved.  The key will be resolving the issue in manner that both protects the citizens at risk and ensures that tensions between the U.S. between Syria do not rise more than that in a manner that is legally justifiable.

Katelin Wheeler is a 4L at the University of Denver, Sturm College of Law, and Business Editor for the Denver Journal of International Law and Policy.


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demonstrations in syria in 2011

The Chemical Weapons Convention: Preventative Measures Against Horror (Part 3 of 3)

This is the third blog post in a series of three blog posts discussing how the Chemical Weapons Convention prevents the use of chemical weapons through proactive measures by prohibiting both the use of and the preparation to use chemical weapons.  The first blog post described key features of the Chemical Weapons Convention.  The second blog post compared the Chemical Weapons Convention to other sources of international law addressing chemical weapons.  This third and final blog post examines recent events in Syrian Arab Republic, as a case study, to illustrate the concepts discussed in the first and second blog posts.


Part III: Chemical Weapons and the Syrian Civil War

War is crushing the Syrian Arab Republic (“Syria”).  The Chemical Weapons Convention (“CWC”) cannot fix the all the problems in Syria, but hopefully it can fix the problem of chemical weapons.[i]  Removing such a destructive force from the arsenal of the government and preventing further use of chemical weapons on civilians would be no small achievement.  This final blog post describes the role of international law in addressing the use of chemical weapons in Syria.  First, this post summarizes the conflict in Syria to date.  Next, it describes the international reaction to the use of chemical weapons in Syria in 2013.  Finally, this post explains the importance of Syria’s adoption of the CWC, and examines potential obstacles from allegations of new chlorine gas attacks in Syria during April 2014.


A. Background on the Syrian Civil War

demonstrations in syria in 2011

Political demonstrations in Syria in 2011 (AFP/Ghetty Images)

The Syrian conflict started in March 2011, when government security forces fired live ammunition at protesters.  The pro-democracy protests started during the “Arab Spring,” with demonstrations against authoritarian law and corruption in the government led by president Bashar al-Assad.  By the end of 2011, a full-fledged civil war raged in Syria.  Generally, government forces are fighting to preserve the current Assad regime, and rebels are fighting to topple the Assad regime.  However, the opposition-rebel forces lack ideological cohesiveness, and “at this point, a revolt against a dictatorship has morphed into a sectarian conflict with diverse international sponsors.”[ii]  Russia and Iran support the government forces.

The rebels have various underwriters and various—sometimes incompatible—goals.  One 2013 report asserted that “the rebels” really consisted of 1,000 sub-groups, but those groups typically align themselves with one of the larger opposition groupsInfighting between rebel groups has fractured the opposition forces.  Many radicalized, non-Syrian, and sectarian motivated, fighters make up the Islamic State of Iraq and al-Sham (“ISIS”); “al-Sham” refers to Syria, Greater Syria, or the Levant “in the context of global jihad.”   Most news sources describe ISIS as an al-Qaeda affiliate, but ISIS and al-Qaeda may have broken ties.  Reports attribute both sectarian and secular motives to the various homegrown groups of rebel fighters.  The Western-backed, Free Syrian Army (“FSA”) may provide some hope for Syrian stability, but the FSA faces challenges with fighting against al-Assad and against ISIS.  ISIS reportedly murdered an FSA commander last year.  The FSA itself is fractured.  Additionally, the Syrian National Coalition represents opposition interests during non-violent negotiations, such as the failed Geneva peace talks, and recently attempted to gain a seat in the Arab League.

The Syrian civil war includes some sectarian conflict between the ruling minority Alawites and the majority Sunni population.  Sunni Muslims make up 74% of the Syrian population, and the majority of rebel fighters.  Alawites make up just 12% of the Syrian population, but Alawites hold a disproportionate number of positions “in Syria’s security apparatus, government and military leadership” due to the Alawite al-Assad family’s control over Syria for the last forty years.  The Alawi faith shares some theological beliefs and roots with Shi’a Islam, but the Alawites broke from the Shi’ites 1,000 years ago.

Irrespective of the initial or current ideological basis for this war, its costs should not be underestimated.  More than 150,000 people have died, including 51,212 civilians.  Civilians comprise one-third of the casualties in the Syrian civil war.  According to the UNHCR, more than 2.5 million refugees fled Syria.  Humanitarian organizations and journalists accuse both the rebels and the government of various war crimes.[iii]  Some rebels—though most reports attribute this behavior to radicalized groups, such as ISIS—target civilians based on location and on religion.  Human Rights Watch reports that rebels kidnapped and murdered Alawite civilians.  ISIS also targets Christians, and in one city, reportedly charges Christian males seventeen grams of gold to guarantee their safety.  Rebels recently released two Spanish journalists after six months in captivity.

refugee camp in damascus

Yarmouk refugee camp in Damascus in Jan. 2014
(UNRWA—Getty Images)

The government regularly targets, kidnaps, tortures, and murders civilians.  Government forces kill women, children, and babies in  to intimidate and diminish support for the opposition.  They target airstrikes on civilians by dropping “barrel bombs” from helicopters on neighborhoods that support the rebels.  Barrel bombs—oil drums filled with shrapnel and explosives—are “devastating and indiscriminate weapons.”    More civilians than fighters have died in government airstrikes.  Government forces began blocking injured civilians from medical treatment and snatching the injured from hospital beds immediately after the protests broke out in 2011.[iv]  Government forces also kidnap, torture, and murder doctors who treat those injured within rebel held areas.  Clearly, the use of chemical weapons only represents one horror in this war.


B. International Reaction to Use of Chemical Weapons on Syrian Civilians

The international community’s response to the atrocities occurring in the Syrian civil war is generally divided.  For example, in July 2012, Russia and China vetoed a third United Nations’ (“U.N.”) measure designed to pressure al-Assad with sanctions.  Russia continues to block any measures that could result in military intervention against al-Assad.  Perhaps there is some truth to statements that social media is more useful to Syrians than the U.N. Security Council.

Similarly, the international community responded haphazardly to reports of the use of chemical weapons on Syrian civilians last year.  International law provided no option for preemptive measures to prevent the use of chemical weapons in Syria.  As discussed in the first post of this series, the Organization for the Prohibition of Chemical Weapons (“OPCW”) investigators could not investigate the chemical weapons capabilities of Syria before it adopted the CWC.  As discussed in the second post of this series, no source of international law—other than the CWC—enables investigation or sanctions against a country for preparing to use chemical weapons.  Thus, until Syria ratified the CWC in 2013, under international law, nothing could be done about the reported chemical weapons stockpile held by the Syrian government since the 1970s.

After allegations of actual use of chemical weapons surfaced in Syria, the applicable international law changed.  International treaty law still provided no solution.  Syria acceded to the Geneva Protocol in 1968, but the Geneva Protocol could not protect civilians in Syria’s civil war because—as described in the second blog post of this series—the Geneva Protocol does not apply to non-international conflicts.  However, customary international law prohibits the use of chemical weapons in non-international conflict.  Under the Secretary-General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons, established in 1987, the U.N. Secretary-General can initiate investigations into alleged use of chemical weapons.[v]  Thus, the U.N. Secretary-General established theU.N. Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic (“U.N. Mission”) on March 21, 2013 in response to reports of chemical weapons use in Syria.[vi]  Upon request of the U.N., both the OPCW and the World Health Organization provided resources to assist the U.N. investigation.  Before the U.N. asked for the OPCW’s help, the OPCW put out this press release, which noted its concern about alleged chemical weapons use in Syria and its availability to the U.N. under the CWC’s terms.  Syria was not a party tothe CWC at that time, but the terms of the CWC require the OPCW to “put its resources at the disposal of the Secretary-General” upon a U.N. request for assistance regarding the alleged use of chemical weapons by a non-party to the CWC.[vii]

The U.N. Mission confirmed five instances of chemical weapons use in Syria in 2013 in the “Ghouta area of Damascus on 21 August 2013, [and] on a smaller scale in Jobar on 24 August 2013, Saraqeb on 29 April 2013, Ashrafiah Sahnaya on 25 August 2013 and Khan Al Asal on 19 March 2013.”[viii]  After confirming the use of chemical weapons, the U.N. initially took no position on which side used the weapons.  The final report from the U.N. Mission focused on the scientific proof for each site and the methodology used to confirm chemical weapons use. but other analysts suggested that the forensic evidence in the September 2013 report pointed to the al-Assad government.  However, in a report issued in March of 2014, U.N. investigators attributed at least some of the attacks to the government due to “the nature, quality and quantity of the agents.”

opcw inspectors in syria

OPCW inspectors in Syria (BBC)

On September 14, 2013, following the U.N. Mission’s report, a U.S.-Russian diplomatic intervention produced a chemical weapons disarmament settlement.  As part of the settlement, Syria agreed to adopt the CWC and submit to its extensive verification regime.  Presumably, the Syrian government only agreed to the disarmament to prevent unilateral U.S. military intervention, a distinct possibility before the settlement.  On September 19, 2013, the U.S. and Russia described the plan for Syria’s chemical weapons disarmament in a joint letter to the U.N.; the annex to that letter described the accelerated destruction plan for Syria and the actions the U.S. and Russia would take in the OPCW’s Executive Council to implement the plan.  Within a week, the Security Council unanimously adopted S.C. Resolution 2118, which enacted the plan and required accelerated OPCW action  to destroy Syria’s chemical weapons.[ix]

If Syria fails to follow the requirements of the CWC and the OPCW, Resolution 2118 provides a clear path for U.N.-backed intervention.  If the U.N. never acts, as described in the first blog post, the CWC theoretically provides an alternative mechanism for collective action by State Parties for non-compliance with the CWC.


C. The OPCW and the CWC in Syria

The progress since Syria ratified the CWC is promising.  Syria is generally cooperating with the accelerated destruction schedule for its chemical weapons.  A team of U.N. and OPCW specialists is working together in Syria.  On October 24, 2013, Syria submitted formal initial declarations to the OPCW, in compliance with the timeline set by the Executive Council.[i]  The OPCW-U.N. team visited most of the sites declared in the initial declarations that followed Syria’s adoption of the CWC.  The team started destroying those sites with “low tech, quick and cheap” methods, including smashing equipment and filling it in with concrete.  The OPCW-U.N. Joint Mission reported the removal of half of Syria’s chemical weapons stockpile in March, the removal of 72.3%, as of April 16, 2014, and the removal of 92.5%, as of April 24, 2014.  After months of progress towards the deadline for complete destruction by the end of June, recent reports call into question whether Syria will meet that deadline.

At the time of writing, the Syrian civil war rages on.  As part of the agreement in September, Syria agreed to attend peace talks with the opposition.  Unfortunately, those peace talks failed.  After Syria agreed to the disarmament deal in September 2013, many expressed concern that removing chemical weapons received too much focus.  Unfortunately, as a corollary to al-Assad’s agreeing to chemical weapons disarmament and ratification of the CWC, most serious pressure from the West has stopped.  As part of a plea for help from the West, one Syrian opposition leader said, “Assad has handed over the chemical weapons to save himself.”  France is pushing the Security Council for ICC prosecution of Syrian war crimes, despite the likely Russian veto.  Ban Ki-moon also criticizes the lack of access for aid to 9.3 million civilians.  Hopefully these issues will be addressed after Syria—again, hopefully—meets the upcoming chemical weapons disarmament deadline.


D. Conclusions and Future Concerns

Like any specialized legal system, the CWC cannot solve all the problems in this domestic conflict.  The CWC’s narrow purpose is to prevent the use and the possibility of the use of chemical weapons.  To this end, the OPCW already removed huge amounts of chemical weapons from Syria and destroyed its chemical weapons factories.  The al-Assad government agreed to intrusive OPCW monitoring.  Even if the Syrian civil war continues, the CWC provides strong, but imperfect, protection against one of the worst war atrocities.  The CWC and the OPCW will be tested by recent allegations that chemical weapons attacks occurred in Syria in April 2014.

Unfortunately, both the rebels and the government agree that at least one new chemical weapons attack recently occurred in Syria.  The rebels blame the government and the government blames the rebels for the attack, as initially occurred after the attacks in August 2013.  The rebels reportedly have pictures and a video of suggesting the government attacked a village with chlorine gas.  The government reported on state-run Syrian television that a rebel group called Nusra Front is responsible for the chlorine gas attack.

Harm from chlorine gas varies with the victim’s type of exposure to the choking agent, which was used in World War I.  Chlorine is a chemical with both prohibited and non-prohibited uses under the CWC.  Theoretically, such chemicals must be declared to the OPCW because they are subject to OPCW monitoring.  The OPCW noted that Syria made declarations about production of chemicals for non-prohibited purposes, as required by the CWC.  The OPCW has yet to make a statement about whether Syria identified the production of chlorine in any declarations.

Public statements by Samantha Power, U.S. ambassador to the U.N., illustrate the problematic timing of these allegations.  When questioned about the new allegations, Ms. Power noted that the whole purpose of removing the chemical weapons from Syria was “to prevent further use.”  She refused to comment on U.S. reaction, but she casually mentioned “the credible threat of military force [is] on the table.”  After weeks of media reporting on the new attacks, the OPCW issued a press release on April 29, 2014, announcing the formation of a fact-finding team to investigate the new allegations.

The OPCW-U.N. team faces the possible breakdown of the disarmament plan.  The international reaction to these attacks must be carefully considered, to avoid undoing the progress made so far.  Interested observers should watch for statements from the OPCW, regarding their investigation into these attacks, and for any public statements from key players on the Security Council—primarily the U.S. and Russia—that could foreshadow U.N. action under Resolution 2118.  While there are options for military intervention, they will likely be unpopular in the war-weary U.S.  Moreover, eliminating a chemical like chlorine from an entire country seems impossible.  Chlorine poses a huge enforcement issue: can the OPCW rid Syria of a chemical used in homes throughout the world?  Probably not.  Despite the strengths of the CWC and the OPCW, the new attacks diminish the likelihood of complete chemical weapons disarmament in Syria.


Katharine York is a third year law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law and Policy


[i] See Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, opened for signature Jan. 13, 1993, S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 45 [hereinafter CWC].

[ii] Ibrahim J. Gassama, The Incoherence and Functional Incompetence of International Law: Toward a New Paradigm of Human Relationship, 37 Fordham Int’l L.J. 53, 96-97.

[iii] See generally Human Rights Council, Oral Update of the Independent International Commission of Inquiry on the Syrian Arab Republic (2014) (describing torture and targeting of civilians by both the government and the rebels), available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/OralUpdate18March2014.pdf.

[iv] Amnesty Int’l, Health Crisis: Syrian Government Targets the Wounded and Health Workers 4-6 (2011), available at http://www.amnestyusa.org/sites/default/files/mde240592011en_22.pdf.

[v] G.A. Res. 42/37 C, U.N. Doc. A/RES/42/37 C (Nov. 30, 1987).

[vi] UNODA, Fact Sheet: United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic (2014), available at https://unoda-web.s3.amazonaws.com/wp-content/uploads/2014/01/UN_Mission-Syria_Jan_2014.pdf.

[vii] CWC, supra note 1, Verification Annex, Part XI, para. 27.

[viii] UNODA, supra note 6.

[ix] S.C. Res. 2118, U.N. Doc. S/RES/2118 (Sept. 27, 2013), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2118%282013%29.

[x] See the first blog post in this series for more information about the initial implementation of the CWC.

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Critical Analysis: Report that alleges systematic killing in Syria released days before the start of the Geneva II peace conference

A report released just days before the scheduled start of the Geneva II peace conference “is a smoking gun,” for a war crime prosecution of Syrian President Bashar al-Assad’s regime according to David Crane, one of the report’s authors. Copies of the report, which allege the systematic killing of detainees in Syrian jails, were sent to both CNN and The Guardian. The Guardian noted the release “appears deliberately timed to coincide with this week’s UN-organized Geneva II peace conference.”

Detained Syrian men, blindfolded and handcuffed, in Qusair, near Homs. Photograph: Sana/Reuters.

Detained Syrian men, blindfolded and handcuffed, in Qusair, near Homs. Photograph: Sana/Reuters.

Evidence in the report comes from a single, unidentified Syrian government defector who shared close to half of the 55,000 images – equating to approximately 11,000 victims – he smuggled on memory sticks out of the war-torn nation. The defector worked as a photographer in the military police, and claims the photos were used to prove execution orders had been carried out, and to allow for death certificates to be provided without the need to show family members the bodies. The death certificates listed the cause of death as a heart attack or breathing problems that occurred in the hospital.

“Any prosecutor would like this kind of evidence – the photos and the process. This is direct evidence of the regime’s killing machine,” according to Crane. Activists say an estimated 50,000 detainees are unaccounted for, while tens of thousands of Syrians have been held and released. Released prisoners have shared stories of widespread use of executions and torture.

The gruesome photos include a variety of injuries, including beatings, strangulation and other forms of torture according to the report. A majority of the victims were men, estimated between 20-40 years old. One of report’s authors, Sir Desmond de Silva, the former chief prosecutor of the Special Court for Sierra Leone, told CNN the emaciated bodies were “reminiscent of the pictures of those [who] were found still alive in the Nazi death camps after World War II.”

Representatives from approximately 30 countries are scheduled to attend the Geneva II Conference in an attempt to implement the Geneva Communiqué. The communiqué is intended as a resolution to the civil war in Syria, which has claimed more than 100,000 lives and displaced 9.5 million. The two main protagonists in the conflict have irreconcilable objectives: namely the role current President Bashar al-Assad would play in the transitional governing body called for in the communiqué. The force of the talks will also be limited by the absence of several of the largest opposition groups including the Syrian National Council.

Caroline Marfitano is a 2L at the University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

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Critical Analysis: Can We Abolish the United Nations Security Council Veto? Thoughts in Honor of the +100,000 People Dead So Far In Syria

In a previous article on this blog, I discussed a tradition particular to this school –that of Myres McDougal – a tradition I am proud to be a part of. Myres McDougal advocated for law to be a subtle mixture of positive rule and moral aspiration. He emphasized that “the global public order of human dignity” should undergird any legal system.

Thus, since my turn is up again to put some of my thoughts into words, I feel obliged to stir the pot a bit (who will read another article on UN Security Council reform and the veto?) and urge us to take the opportunity to circumvent, do away with, ignore what may be positive laws that protect the UNSC’s structure and veto, and to answer the call of moral aspiration.

The Michigan Stadium holds 100,000+ people. Image Source: Wikipedia

The Michigan Stadium holds 100,000+ people, a conservative estimate of those lost in Syria. Image Source: Wikipedia

Moral aspiration or moral obligation?

The image to the right represents 100,000 people, a conservative estimate of the number of people who have died in Syria to date. Each of them is a parent, a child, a brother or sister. I recognize that the current status of the debate on what to do about Syria is quite different from when I first became interested in exploring UNSC reform.  Reform first came to mind when China and Russia cast a double veto that blocked the Western and Arab League-backed resolution condemning Syria for its brutal crackdown on citizen protests and calling for regime change. While calls are being made to circumvent the UNSC, perhaps by invoking the Responsibility to Protect, the international community does not yet seem comfortable with the legitimacy of the collective use of force for humanitarian purposes without UNSC approval.  Therefore, the UNSC veto is still a critical and relevant topic.

Moral aspiration should compel ordinary global citizens to pressure the international community to do what it has to in order to respond effectively to the humanitarian crisis in Syria, even if it means flexing, circumventing, or ignoring certain laws that lead to a UNSC stalemate. Too often, we resort to a pragmatic approach because we think that the Permanent 5 will not give up their power without bringing down the entire system, or that perhaps it will be impossible to get them to do so. Wouters and Ruys urge that one cannot afford to be overly pragmatic on this point. What is at stake is the very survival, legitimacy and efficiency of the collective security system in the 21st century. I think the individual lives at stake are just as important. Therefore at least a substantive debate on the veto power is needed.

However, one such argument is that the UNSC already has a moral obligation to do better. This obligation, put forward by the four sponsoring States when the UNSC was created 1945, was based on the need to guarantee peaceful relations among the world’s main powers –which needed the assurance of their support to make it sufficiently credible and vigorous. This goal, the Allied Powers argued, could only be achieved by introducing a mechanism to safeguard the vital national interests of the most important UN Member States. The reverse side was the responsibility of these privileged members to maintain international peace and security through the United Nations.[1]

The Veto As It Is Used Today

The Council has had successes, but its record is more distinguished by its repeated failure to reach agreement on how to adequately deal with threats to peace and security. A principal reason for this has been the refusal of one or another of the Permanent Members to set aside their own interests.[2] Additionally, the veto is often “used in order to protect countries with which [permanent members] have close cultural, economic and/or political ties,” most notoriously in situations of mass genocidal killings.[3]

Since the beginning of its work, there have been 265 vetoes cast in the Security Council. The U.S.S.R./Russia Federation has cast 126, the United States 82, the United Kingdom 32, France 18, and China 7. The vetoes cast by Russia and the United States were cast largely in the period of the Cold War, and by each of them in defense of their client states. For example, Russia would veto on behalf of Eastern European clients and the United States would often veto for Israel.[4]

Thus the great privilege and great responsibility given to the Permanent Five has come to be appropriated by them as a right. The P-5 have behaved and continue to behave in ways that suggest that they see the power that they hold as rightful and free, to be exercised by them in whatever manner they choose. The notion that this power was given to them, over strenuous objections, because of the good that it might do in preserving the peace, has been substantially replaced by the idea that they have a power that they can use to protect and extend their own individual national interests.[5]

The Veto As It Was Intended to Be Used

The veto power was intended as a means of preserving unanimity between the Great Powers at the time, and far from being a menace to the small powers, it was their essential safeguard. Without that unanimity, all countries, large and small, would fall victims to the establishment of gigantic rival blocs, and in fact, the whole system would be threatened by such a situation.[6] There was no way the Great Powers would agree to take on responsibility for global peace and security without some guarantee that they wouldn’t be ruined at some point in the future. Thus, included in the veto was the ability to use it to protect “matters of vital importance to a permanent member.”[7]

This was not an easily settled issue. There was much debate and the entire world was very nervous about giving the P-5 such an extraordinary power. Efforts to influence Security Council permanent members’ voting behavior began within months of the Security Council’s first meeting. To convey the message that the veto ought to be used sparingly, opponents of the veto sought to instill in the permanent members a sense that exercise of the veto power was a profound act of disruption that had a moral dimension.[8] At that time, then Australian delegate to the Security Council, Herbert Evatt, stated before the Council that the veto “puts a special responsibility upon those members of the Council whose single vote may veto the action of the rest,” and he implored the permanent members to give “very serious consideration” before they chose to exercise their veto power.[9] Evatt was seeking to challenge any understanding of the veto as a morally neutral act; he aimed to present it instead as a destructive power that imposed on its holder a responsibility to the rest of the world. To Evatt, the exercise of the veto constituted a moral act that should require deliberation and should risk consequences. Forcing the vetoing state to bear the harsh light of publicity was part of his campaign against it. He was part of the efforts that ultimately lead UNSC voting results to be publicly available.[10]

What are ways we can remind the UNSC of this moral obligation or enforce it otherwise?

Evatt’s efforts suggest one strategy for counteracting the veto, which may have been diluted during the information age – public shaming. In her article “Shame in the Security Council,” Saira Mohamed unwraps shame as a powerful tool that has been used in situations like these in the past.[11] In fact, our very own Myres McDougal was active on this issue at the time as well. Myres argued that in order to veto a resolution, a state must “risk the censure of world opinion.”[12]  He did not want an absence from the UNSC to be counted as an abstention. A permanent member should not be allowed to obstruct global action simply by hiding; the power to defeat an effort at international cooperation should “be exercised in a formal, open manner, for all the world to see and hear.” Implicit in the argument was the notion that vetoing a measure should not be too easy, too casual, lest a permanent member too freely use its power in violation of the will of the rest of the world.

Should the UN Security Council veto be abolished?

Several options have been proposed, among them the idea that the UN Security Council veto should be abolished.

This argument can be brought into the modern era by creating some legal requirement that states explain their use of the veto, and some legal standard (clear and convincing evidence) that they must meet in convincing the international community that their decision was based on reasoned concern for international peace and security. Part of this might be defining when a matter is a “vital national interest.”[13] Vetoing U.N. action against a state that is clearly in violation of international law and practice because that state is an ally should not be acceptable.

McDougal, however, went one step beyond Evatt.[14] He expressly asserted that a permanent member should be given the right of veto only if it was subject to the possibility of condemnation for exercising that right. If a state was going to veto a resolution, it should have to pay a price. This brings up another idea –why can’t we create some kind of adjudicatory body[15] that can hear claims that a state vetoed for reasons other than ultimate concern for international peace and security? Could the ICJ hear such claims?[16] Then we could create some form of punishment for states that do not uphold their highest of moral obligations.

One author suggests that the General Assembly should suggest that the Permanent Members be allowed to declare that they are casting a negative vote, without having such vote constitute a veto.[17] Professor Michael J. Kelly suggests a procedural veto (although this would be in conjunction with additional Permanent Member seats for underrepresented countries –another important issue). The procedural veto is one by which the permanent members for Latin America, Africa and Asia may veto an item just as one of the other permanent members may do with its substantive veto. However, when the procedural veto is cast, the matter is not automatically dead. Instead, it is referred to a special session of the General Assembly for consideration. A majority vote in the Assembly after brief debate, either for or against the matter without possibility of amendment, will then determine the matter’s future.

Proposals have been offered that limit the situations in which the veto can be used. One frequently recurring proposal consists in waiving the veto power in all proceedings arising under Chapter VI of the UN Charter on the peaceful settlement of disputes, or Chapter VII.[18] A variation on this idea is to establish a mechanism allowing for a veto to be overruled in the advent of genocide, ethnic cleansing, or large-scale massacres of civilians.[19]

A radical idea….

A majority of UN Member States support the abolition of the veto. Such a reform is being promoted by the African Union, the Arab League, the Group of Non- Aligned Nations, but also by numerous western countries. Apart from the P- 5 hardly any State explicitly supports the existing veto power (Poland, Australia, and Singapore figuring among the rare exceptions).[20]

A radical idea (that I like), suggested by Ambassador Richard Butler, is that the United States lead the way in modernization by declaring to the world that it will give up its veto. The United States could then seek to establish a two-thirds majority vote for the passage of any substantive decisions in the UNSC. The United States would then call upon all the P-5 members to do the same and make the fulfillment of its offer conditional upon the other four following suit.[21] Ambassador Butler calls this an act of leadership that would be “profound, imaginative, and graceful.” Quite in keeping with the tradition of Myres McDougal!

Call for further thoughts

I recognize that abolishing the veto is not the only answer to responding to the humanitarian crisis in Syria, nor is it necessarily the most effective one. I only wanted to take the time to find out what was being said about abolishing the veto for this post. I would love to hear any alternative suggestions you may have –as long as they are revolutionary! Of course, these are only my initial investigations. I welcome and invite comments, criticisms, and suggestions about abolishing or reforming the veto. Thank you!

For updates on UN Reform efforts, see http://www.centerforunreform.org/.


Jaime Menegus is a 3L and a Staff Editor for the Denver Journal of International Law and Policy


[1] Jan Wouters & Tom Ruys, Security Council Reform: A New Veto for a New Century? 29 (Academia Press 2005), available at http://www.egmontinstitute.be/paperegm/ep9.pdf.

[2] Richard Butler AC, Reform of the United Nations Security Council, 1 Penn St. J.L. & Int’l Aff. 23, 34 (2012), available at http://elibrary.law.psu.edu/jlia/vol1/iss1/2/.

[3] Brian Cox, United Nations Security Council Reform: Collected Proposals and Possible Consequences, 6 S.C.J. Int’l L. & Bus. 89, 119-20 (2009), available at http://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=1035&context=scjilb.

[4] Butler, supra note 2, at 31.

[5] Id.

[6] Id. at 29.

[7] Cox, supra note 3, at 121.

[8] Saira Mohamed, Shame in the Security Council, 90 Wash. U. L. Rev. 1191, 1214-15 (2013), available at http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=6014&context=lawreview.

[9] Id. at 1216.

[10] Id.

[11] Id.

[12] Myres S. McDougal & Richard N. Gardner, The Veto and the Charter: An Interpretation for Survival, 60 Yale L.J. 258, 286 (1951), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3481&context=fss_papers.

[13] Butler, supra note 2, at 34; Wouters & Ruys, supra note 1, at 33.

[14] Mohamed, supra note 8, at 1218.

[15] Wouters & Ruys, supra note 1, at 37.

[16] Kamrul Hossain, The Challenge and Prospect of Security Council Reform, 7 Regent J. Int’l L. 299, 300 (2010).

[17] Amber Fitzgerald , Security Council Reform: Creating a More Representative Body of the Entire U.N.

Membership, 12 Pace Int’l L. Rev. 319, 353 (200), available at http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1231&context=pilr.

[18] Wouters & Ruys, supra note 1, at 25.

[19] Id. at 37.

[20] Id. at 25.

[21] Butler, supra note 2, at 39.

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