by Alexander Mercouris for Russia Insider
At the beginning of Russia’s intervention in Syria – in an interview for Radio Sputnik – I predicted the Russians would seek legal cover for their actions in the form of a Security Council mandate.
In the event, months of intense diplomatic activity have resulted in three separate but complimentary Security Council Resolutions, all passed in just a few weeks.
Taken together with reports of continued advances by the Syrian army, these Resolutions give Russia what is starting to look like a winning hand.
To understand this however requires looking at each of these Resolutions in detail, and then seeing how they all work together.
The first of these Resolutions is Resolution 2249 passed unanimously on 20th November 2015. Its full text can be found here.
Its key provision is paragraph 5 which reads as follows:
“5. (The Security Council) Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria.”
I have discussed Resolution 2249 previously here.
Some readers on the thread of my earlier discussion pointed out that Resolution 2249 was actually proposed to the Security Council not by Russia but by France.
That however was simply an act of courtesy – undertaken for very practical reasons – extended by Russia to France in the immediate aftermath of the Paris attack.
The Russians had been working hard for weeks to get a Resolution like Resolution 2249 passed. They had even proposed two drafts. Until the Paris attack all these efforts had got nowhere because of opposition from the US.
Following the Paris attack the Russians negotiated directly with the French, and agreed that it would be the French who would propose the Resolution to the Security Council.
They did this both as an act of courtesy to the French, and in order to ensure the US would support the Resolution. The US could not oppose a Resolution proposed by its NATO ally France in the immediate aftermath of the Paris attack.
That this is what happened is clear not just from the events that led up to the passing of the Resolution, but from the text of the Resolution itself, which follows closely Russian thinking.
Resolution 2249 targets the various terrorist jihadi groups that have proliferated in Syria and Iraq since the start of the wars in those two countries. First and foremost these are the Islamic State, but also – in the Resolution’s words – “individuals, groups, undertakings, and entities associated with Al-Qaeda, and other terrorist groups”.
“Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts”.
In Britain this provision has been seized on by the British government to justify its bombing campaign in Syria.
It should be said clearly that it does no such thing.
The key point is that the “necessary measures….to prevent and suppress terrorist acts” authorised by the Resolution, must – as clearly set out in the Resolution – be “in compliance with international law, in particular with the United Nations Charter.”
International law does not permit a bombing campaign by one country of the territory of another country save (1) with the consent of the government of the country whose territory is being bombed; or (2) following a mandate from the Security Council under Chapter VII of the UN Charter (Chapter VII is the part of the UN Charter which empowers the Security Council to act where there is a threat to peace); or (3) as an act of self-defence under Article 51 of the UN Charter.
The British government has not obtained or sought to obtain the consent of the Syrian government to attack the Islamic State on Syrian territory.
Resolution 2249 does not authorise action under Chapter VII. In fact Resolution 2249 makes no reference to Chapter VII – the Russians were careful to make sure it did not.
The British government argues it is acting in self-defence under Article 51 in accordance with the so-called “pre-emption” principle, which allows a country to launch a pre-emptive attack on another country if it has good grounds to believe it is about to be attacked itself. The British government claims this principle gives it the right to bomb the Islamic State in Syria because the Islamic State poses an “immediate threat” to Britain, even if it is a threat that has not yet been realised.
This is a bogus argument, a fact accepted by the great majority of international lawyers, including British international lawyers.
Article 51 can only be used in this way where the Security Council is not acting or has not had time to act.
In this case the Security Council has acted by passing Resolution 2249. There are no grounds to say Britain can bomb the Islamic State in Syria under Article 51 because the Security Council has not acted, when it has plainly done so.
The right of self-defence in Article 51 anyway only arises where there has been an attack – or where there is an imminent threat of an attack – by one sovereign state upon another.
The Islamic State is not a sovereign state. It is a rebel entity in control illegally of certain territories within the territories of the sovereign states of Iraq and Syria, with whose governments it is at war.
Article 51 does not authorise an attack on the Islamic State inside the territory of states with which it is at war unless the governments of those states agree to it, or the Security Council authorises it.
In the case of Britain – and the US and France and the other states of the US-led coalition – neither the permission of the Syrian government or of the Security Council has been sought or provided.
Resolution 2249 therefore authorises the military action Russia and Iran are taking in Syria with the consent of the Syrian government, but not the military action taken by anyone else without the Syrian government’s consent.
It specifically does not authorise the military action taken by the members of the US-led coalition. Military action in Syria by the countries that make up this coalition – the US, Britain, France and the rest – remains illegal.
What Resolution 2249 does is give the Russians and the Iranians – but no-one else – the Security Council’s authority to conduct military operations against jihadi terrorists in Syria, because they have the permission of the Syrian government to do this.
That is the purpose of Resolution 2249 and that is why the Russians worked so hard to get it passed.
Why did the Russians need Resolution 2249 when they already had the permission of the Syrian government?
The reason for that is that the Russians understand very well that the US and its allies dispute the legitimacy of the Syrian government.
That opens up the possibility that at some time in the future the US and its allies might argue that Russia is acting illegally in Syria because it is acting with the consent of a government that has supposedly “lost” its legitimacy, and which is therefore no longer the true government of Syria.
Resolution 2249 scotches that possibility by giving the Russians a Security Council mandate before that argument is ever made.
KERRY’S VISIT TO MOSCOW AND RESOLUTIONS 2253 AND 2254
These two Resolutions – Resolutions 2253 and 2254 – were voted through on successive days (17th and 18th December 2015) hot on the heels of US Secretary of State Kerry’s visit to Moscow.
Clearly they were the subject of prolonged negotiations between Russia and the US.
Kerry’s visit to Moscow was in order to seal the deal.
The result is that both Resolutions had the formal backing of the US.
The first Resolution – Resolution 2253 – was proposed by the US and Russia.
The second Resolution – Resolution 2254 – was proposed to the Security Council by the US. However, as was the case with Resolution 2249, this is a formality taken to ensure US support. As is clear from its text, Resolution 2254 – just like Resolutions 2249 and 2253 – reflects Russian not US thinking and is clearly the product of Russia’s diplomacy.
Of these two Resolutions, the more important is Resolution 2253.
Unlike Resolutions 2249 and 2254, this is a Chapter VII Resolution.
It imposes financial sanctions on the Islamic State, other jihadi groups and their supporters.
It is a gigantic Resolution, running to 28 pages, of a highly technical nature. Because it is so long and so technical its full implications have not been widely understood. Its full text can be found here.
Resolution 2253 imposes on the Islamic State and on various other jihadi groups the usual range of financial and other sanctions (asset freezes, travels bans etc) the Security Council is authorised to impose by Chapter VII of the UN Charter.
It also sets up the usual range of monitoring and enforcement mechanisms (sanctions’ committees etc) to enforce these sanctions. The greater part of the Resolution is taken up with these questions.
The key point to Resolution 2253 is however that it criminalises what the Russians say Turkey and some of the Gulf States have been doing by providing help to the Islamic State and to the various other jihadi groups that they support.
Since this is a very complex and technical Resolution, this point has generally been overlooked.
The best summary of the Resolution’s objectives is set out in its preamble:
“(the Security Council) Reaffirming its resolution 1373 (2001) and in particular its decisions that all States shall prevent and suppress the financing of terrorist acts and refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists….”
The Resolution then sets out various detailed provisions to achieve this objective.
Paragraph 2(c) imposes a comprehensive arms embargo on the Islamic State and other jihadi groups.
Paragraph 13 prohibits providing the Islamic State and other jihadi groups with any form of economic assistance.
Paragraph 12 affirms that providing any form of prohibited assistance to the Islamic State and the other jihadi groups is a crime.
Arguably, since a Security Council Resolution says this, that make this crime an international crime, which may mean that individuals who commit it can be prosecuted in the courts of any country and not just their own country or the country where they live.
That this is indeed so is suggested by paragraph 20, in which the Security Council pointedly reminds UN member states that they have a legal duty to pass legislation to make this a crime under their domestic law.
That suggests that if member states fail to do this, or if they pass such legislation but fail to act on it, then other member states have a legal duty to execute the will of the Security Council by acting to bring people to justice in their place.
If so then Resolution 2253 has indeed made providing help to the Islamic State and to other jihadi groups in Syria an international crime.
The Russians have publicly accused Turkey of doing precisely the things – supplying arms and economic and financial assistance to the Islamic State and other jihadi groups – that Resolution 2253 expressly prohibits and says are a crime.
The Russians in recent weeks have also made very serious allegations concerning the illegal oil trade between Turkey and the Islamic State, which if true Resolution 2253 also says would be a crime.
There are also widespread concerns – expressed not just by the Russians – that the Islamic State and other jihadi groups are being financially supported by other governments and by wealthy individuals in some of the Gulf States.
At the G20 summit in Antaliya Putin famously showed the other G20 leaders evidence that this was indeed the case, and said publicly that some of the assistance the Islamic State and other jihadi groups are getting is coming from within certain G20 states.
If these various claims are true, then all those involved in carrying out these actions, in Turkey, the Gulf States and elsewhere, must now take into account the fact that the Security Council in a Resolution under Chapter VII has said that what they are doing is a crime, and probably an international crime, for which they can be tried in the courts of countries other than their own.
Here is what paragraph 13 of the Resolution says about what sort of activities are prohibited. Note the particular emphasis given to the illegal oil trade:
“13. (The Security Council) Reiterates Member States’ obligation to ensure that their nationals and persons in their territory not make available economic resources to ISIL, Al-Qaida, and associated individuals, groups, undertakings, and entities, recalls also that this obligation applies to the direct and indirect trade in oil and refined oil products, modular refineries, and related material including chemicals and lubricants, and other natural resources, and recalls further the importance of all Member States complying with their obligation to ensure that their nationals and persons within their territory do not make donations to individuals and entities designated by the Committee or those acting on behalf of or at the direction of designated individuals or entities”.
If Erdogan’s son and members of Erdogan’s family really are involved in the illegal oil trade with the Islamic State, and if some Saudi and Qatari individuals and even princes really are providing financial assistance to jihadi groups in Syria, then they are committing a crime, which is probably an international crime, for which they can now be tried in the courts of countries other than their own. One such country where they can now be tried is of course Russia.
That certain countries – Turkey and the Gulf States – are very unhappy and are probably very alarmed by this Resolution, is suggested by one small but interesting fact.
This is that no representative of any of these countries turned up to the Security Council to address the session where the Resolution was passed. Nor did any representative of the Saudi dominated Arab League. That no representative from any of these states attended the session is confirmed by the UN’s summary of the discussion that preceded the vote on the Resolution.
Only one Arab state – Jordan – is currently a member of the Security Council. Its ambassador did attend and speak at the session, and did support the Resolution.
Jordan has however in recent weeks distanced itself from the other members of the anti-Assad coalition – a fact that became clear during the Jordanian King’s recent visit to Moscow, which coincidentally happened on the same day that the Russian SU24 was shot down.
States that are not members of the Security Council can however ask to attend and speak at a session that is discussing an issue they consider important to themselves, and so can bodies like the Arab League. Syria and Ukraine do this often – as has the Arab League in the past – and their requests to do so are almost always granted.
It is interesting that neither Turkey nor any other Arab state apparently asked to address the Security Council on this occasion, even though their interest in the subject under discussion is obvious.
The third Resolution, Resolution 2254, was passed on the following day. Its text can be found here.
This Resolution provokes bitter feelings.
It sets out a road-map for a negotiated settlement of the Syrian conflict.
In doing so it revives the Annan peace plan that was agreed in Geneva in 2012.
That the Resolution revives the Annan peace plan is admitted by paragraph 1, which refers to the final communique of the 2012 Geneva conference where the Annan peace plan was agreed:
“1. (The Security Council) Reconfirms its endorsement of the Geneva Communiqué of 30 June 2012, endorses the “Vienna Statements” in pursuit of the full implementation of the Geneva Communiqué, as the basis for a Syrian-led and Syrian-owned political transition in order to end the conflict in Syria, and stresses that the Syrian people will decide the future of Syria”.
The Annan peace plan called for a ceasefire, negotiations to set up a transitional government, further negotiations to agree the terms of a new constitution for a non-sectarian ie. non-Islamist Syrian state, and eventual UN supervised elections when all this had been done.
Paragraph 4 of Resolution 2254 says all the same things, though it adds a highly ambitious and probably over-optimistic timetable:
“4. (The Security Council) Expresses its support, in this regard, for a Syrian-led political process that is facilitated by the United Nations and, within a target of six months, establishes credible, inclusive and non-sectarian governance and sets a schedule and process for drafting a new constitution, and further expresses its support for free and fair elections, pursuant to the new constitution, to be held within 18 months and administered under supervision of the United Nations, to the satisfaction of the governance and to the highest international standards of transparency and accountability, with all Syrians, including members of the diaspora, eligible to participate, as set forth in the 14 November 2015 ISSG Statement”.
The most important provisions in paragraph 4 are those which say that the process must be “Syrian-led” and that the final outcome must be “credible, inclusive and non-sectarian (ie. non-Islamist) governance”.
This in essence is what the Russians have been calling for since 2011 when the Syrian conflict first started. Ever since then they have called for talks between the Syrian parties to settle the conflict peacefully.
Back in 2011 President Assad agreed to the same thing – just as he agreed in the autumn of that year to an Arab League peace plan that said essentially the same thing, and to the Annan peace plan that said the same thing the following year.
It could all have been set out in a Security Council Resolution at any time since then, and could certainly have been so after all the parties supposedly agreed to it in Geneva back in 2012.
The reason no Security Council Resolution like Resolution 2254 was passed in 2012 – or even sooner – is because the Syrian opposition backed by the US has always said they will not negotiate with the Syrian government whilst it is still led by President Assad, and the US has refused to support until now a Security Council Resolution that does not back this demand.
In other words the US and the Syrian opposition and the other Western states demanded President Assad’s removal – a possible outcome of the negotiations – as a precondition for the negotiations taking place.
That would have rendered the negotiations pointless since there would have been nothing serious to talk about except how to transfer power from President Assad to his opponents.
Three and a half years later, after Syria has been completely devastated by a terrible civil war, the US has – very grudgingly and only for the moment – dropped this demand.
It appears nowhere in Resolution 2254, and Secretary of State Kerry’s words show that the US has finally accepted the logic of Russian thinking on this issue, which is that demanding that President Assad goes as a precondition for talks taking place, simply guarantees that the talks will never take place, and that the war will continue.
Kerry now says that demanding President Assad goes as a precondition for the talks is “a non starting position, obviously”.
That of course is true. It is a tragedy that so many thousands of people have had to die before this truth was accepted.
It is because the US has finally dropped demand that President Assad goes which has made Resolution 2254 finally possible
The result is that three years late the Security Council has finally passed a Resolution that enshrines what is in effect Annan’s peace plan, giving it the authority of the Security Council and of international law.
Henceforth Syrian opposition groups – and the states which support them – which continue to insist on President Assad’s departure as a precondition for talks, are acting in defiance of the Security Council, making them legally responsible for any prolongation of the war that results from their stance.
This trio of Resolutions has to be treated as a major victory for Russian diplomacy – one that looked unthinkable just a few months ago.
In four years of conflict the Security Council has been deadlocked. Now, in quick succession, it has passed three Resolutions all of which follow Russian thinking.
They (1) give a Security Council mandate for Russia’s actions in Syria; (2) require Turkey, the Gulf States and others to cease their support for jihadi groups in Syria and for the Islamic State -with the threat of criminal prosecution if they don’t; and (3) endorse a peace plan for Syria in every respect identical to the one the Russians have always called for ever since the conflict began in 2011.
These Resolutions do not however mean that the Syrian conflict is near to being over, or that Russia – or Syria or Iran – have “won”.
The supporters of regime change – whether in Washington, Paris, London, Riyadh and Ankara – or in Syria itself – have not gone away or given up their plans.
They continue to insist that President Assad’s ouster is the only outcome they will accept.
This remains the objective of the US, and there is no evidence it has given up on it.
The strongly negative attitude to the Russian diplomatic breakthrough of the Western regime change community is shown by one curious fact. This is that Samantha Power, the US’s UN ambassador and regime change crusader in chief, has somehow contrived to avoid casting the US’s vote for a single one of the three Resolutions that have just passed. On each occasion that the Security Council voted for one of these Resolutions the US’s vote was wielded by someone else.
Nor will Turkey any of the Gulf states that want regime change in Syria cease to support their clients in Syria, even if it is now a criminal act for them to do so.
On the contrary a struggle is already underway over which groups fighting in Syria should be listed as terrorist groups or not, with regime change supporters in the West, in Turkey and in the Gulf all pressing to have groups they support labelled “non-terrorist” so they can continue to support them.
Nonetheless the Resolutions do matter and have made a difference.
Russia’s approach to Syria has now received vindication from the UN and has the full weight of international law behind it.
The Russians can henceforth insist that their point of view on any subject pertaining to the Syrian conflict – whether it concerns the closing of the Turkish border, the ending of the illegal oil trade, or the shape of the eventual Syrian settlement – is the only one that has the full weight of international law and of the international community behind it, since it is the one that the Security Council has determined.
The Russians are also now in a far stronger position to press their claim that those who are act in a contrary way – President Erdogan first and foremost – are acting illegally, in defiance of the Security Council and of the international community, and should be held to account for it.
As to how the Russians have achieved such a victory, that is a complex question, but the shift in the military balance in Syria caused by the Russian military intervention, and the revulsion amongst the Western public against the Islamic State and jihadi terrorism generally stirred up by the attack on Paris, have obviously been the decisive factors.
In every conflict, particularly one as complex and as finely balanced as the Syrian conflict, it is the side which over time manages to accumulates the most advantages that in the end wins.
As the Syrian army continues its offensive, the trio of Security Council Resolutions Russian diplomacy has secured, together with the shift in the military balance on the ground, are starting to give the Russians what looks like a winning hand.
The big question over the next few weeks is to what extent the Russians – and their Syrian and Iranian allies – will be able to capitalise on this, and how they will press the advantage they have now secured.