(From the Manila Standard Today.com column of Atty. H. Harry L. Roque, Jr. posted on September 19, 2013) http://manilastandardtoday.com/2013/09/19/obama-and-the-future-of-the-un/
While all our attention was divided between the Priority Development Assistance Fund scam and the war in Zamboanga, we failed to give sufficient attention to an important development that could change the course of history. I am referring to President Barrack Obama’s seeming resolve to resort to unilateral use force in Syria.
I cannot help but be sympathetic to Obama’s cause. We have observed for the last two and a half years how innocent civilians have been fired upon by armed elements of the Syrian security force. While the shootings have become regular, the fact that there has not been an organized armed group opposing the Assad regime does not even make the laws and customs of warfare applicable to the conflict. The shootings have been so widespread that the UN now estimates the death toll to have reached 100,000 since 2011, when demonstrators were first upon by the ruling Ba‘ath government.
Now, the US President claims that in addition to conventional weapons, the Assad regime has resorted to the use of chemical weapons against its people. This was the last straw for the US President.
Unfortunately, the issue on the unilateral use of force goes beyond whether a state can intervene on humanitarian grounds. The issue in fact, is the very survival of the United Nations system, imperfect as it may be.
When countries of the world signed the UN Charter after the second World War, it was their intention to spare mankind form the “scourge” of yet another world war. The means that to achieve this was to prohibit the use of force save for two well-defined exceptions: by way of self defense, where a state is attacked and the use of force to repel it is necessary and proportional; and two, when the use of force is authorized by the United Nations Security Council as a collective security measure under Chapter 7 of its Charter.
What is material to Obama’s threat of resort to unilateral force is not the exception of self-defense, as the US has not been the object of a military attack. It is whether the use of unilateral force may be resorted to. I say unilateral the US action contemplated does not have the sanction of the Security Council.
Truth to tell, this has not been the first time that the Security Council failed to authorize the use of force. At the height of the internal chaos in Congo, it was the General Assembly, through the “uniting for peace resolution” and not the Security Council, that authorized the sending of peace-keeping forces in the Central African state to restore peace and order. Russia then vetoed or threatened to veto any resolution in the Security Council authorizing such a deployment. When the UN sought to collect from Russia its proportional contribution to the effort, Russia refused to pay, arguing that the peacekeeping force was contrary to the UN Charter since it was created sans a Security Council resolution. The International Court of Justice ruled that Russia must pay because while the Security Council has primary jurisdiction in the maintenance of international peace, it does not have a monopoly over this.
The issue in Syria today is more serious than what happened in Congo because even the closest allies of the US, the UK in particular, have refused to resort to the use of force in contravention of the UN Charter, The issue is not whether there is a humanitarian reason to intervene, as there has been since 2011, but whether we can do away with the UN Charter today and the means envisioned by it to maintain international peace.
We do not doubt for a second that Assad and his men should be held criminally for their acts. This is why the international community has created the International Criminal Court. Neither do we deny the urgency of the humanitarian crisis at the moment. At issue, however, is this: If countries were to use force on their own, contrary to the UN charter, what would be a better alternative to the current system?
It is wrong the Russia has been blocking efforts to authorize the use of force in the Security Council against the Assad regime. But even so, the risk of countries resorting to unilateral force at their discretion is even more frightful. It may result in worse humanitarian disasters compared to those already happening on the streets of Damascus.
Moreover, if humanitarian intervention has already crystallized in international law as a further exception to the prohibition on the use of force, there is a mechanism in the UN Charter itself that may be resorted to amend its provisions on the use of force. Absent such an amendment, any unilateral use of force would constitute an even worse threat to international peace.