Interfaz al SMC

44. Since 2012 the literature concerning the debate on humanitarian intervention in Syria at the level of the United Nations, and in particular within the Security Council, has mushroomed. This is easy to understand because Syria, unfortu- nately, constitutes the most important hard contemporary test case for theories with regard to this type of cross-border state intervention.48 _{It almost goes} without saying that it is in the framework of this note not possible to reconstruct that debate to the fullest. In line with the foregoing presentation of the debate at the level of the most relevant allies, NATO and the EU, the presentation of the debate at the level of the United Nations in this paragraph is limited to the most crucial elements of the debate concerning the poison gas attack on Douma on 7 April 2018 and the military response by the United States, the United Kingdom and France to that attack on 14 April 2018. To further the understanding of the sharp political confrontation that in those days took place at UN headquarters it is important to know that a few weeks earlier – on 24 February 2018 – the Security Council adopted Resolution 2401 (2018), inter alia: demanding all parties to cease hostilities without delay; reiterating the demand, reminding in particular the Syrian authorities, that all parties immediately comply with their obligations under international law, including international human rights law, as applicable, and international humanitarian law; calling upon all parties to immediately lift the sieges of populated areas, including in Eastern Ghouta, Yarmouk, Foua and Kefraya; and demanding that all parties allow the delivery of humanitarian assistance, including medical assistance, ceasing depriving civilians of food and medicine indispensable to their survival.49

VI.1. The vetoed (draft) resolutions of 10 April 2018

45. On 10 April 2018 the Press Service of the Security Council issued a report saying that:

“The Security Council, voting today on three separate draft resolutions in response to recent allegations of a chemical weapons attack in the Syrian town of Douma, failed to rally the votes needed to launch an ‘independent

48 See Edwards and Cacciatori, 2018; Erameh, 2017; Lagerwall, 2018; Melling and Dennett, 2018; Sarvarian, 2016, and Stahn, 2013.

mechanism of investigation’ into the incident, as delegates voiced frustration over the continued paralysis and the expanding rifts between nations”.50

The first draft resolution, submitted by the United States, requested the Secretary-General to submit recommendations about the mechanism, including its terms of reference. This draft resolution requested the Secretary-General to submit to the Security Council recommendations regarding the establishment and operation of the United Nations Independent Mechanism of Investigation (UNIMI), “based on the principles of impartiality, independence and profes- sionalism, to identify to the greatest extent feasible, individuals, entities, groups, or governments who were perpetrators, organizers, sponsors or otherwise involved in the use of chemical weapons, including chlorine or any other chemical” in Syria. This draft resolution was not adopted, following a vote of 12 in favour to 2 against (Bolivia, Russian Federation) and 1 abstention (China) owing to a veto by the Russian Federation.51

The second, competing, draft resolution was submitted by the Russian Feder- ation, but was rejected by a recorded vote of 6 in favour (including Bolivia, China and the Russian Federation) to 7 against (including France, the Neth- erlands, Poland, Sweden, the United States and the United Kingdom) with 2 abstentions (Côte d’Ivoire, Kuwait). By the terms of this text the Council would have established a UNIMI “to identify beyond reasonable doubt facts which may lead to the attribution by the Security Council of the involvement in the use of chemicals as weapons, including chlorine or any other toxic chemical” in Syria. The draft resolution also urged the UNIMI “to fully ensure a truly impartial, independent, professional and credible way to conduct its investigations on the basis of credible, verified and corroborated evidence”.52

One of the main differences between these two draft resolutions of course concerns the extent to which the UNIMI itself would dispose of the competence to establish the responsibility for the use of chemical weapons.

The third draft resolution was again tabled by the Russian Federation and did not contain a proposal to establish an independent mechanism of investigation but asked the Council to reiterate its condemnation in the strongest terms of any use of any toxic chemical as a weapon in Syria, to express its alarm at the allegations of use of such substances in Douma on 7 April, and to express its full support to the OPCW Fact-Finding Mission. This draft resolution was equally not adopted by a vote of 5 in favour (including Bolivia, China and the Russian

50 United Nations, Meetings coverage, SC/13288, 10.4.2018. 51 Security Council, Draft Resolution, S/2018/321, 10.4.2018.

52 Security Council, Draft Resolution, S/2018/175, 10.4.2018. As far as the position of Russia with regard to intervention in Syria since 2012 is concerned, see Averre and Davies, 2015; Ferdinand, 2013, and Odeyemi, 2016.

Annex D. The Dutch Position on the Response to the Attack on Douma 63 Federation) to 4 against (France, the United Kingdom, the United States and Poland) with 6 abstentions (including Kuwait, the Netherlands and Sweden).53 46. In a related meeting of the Council, the representative of the Netherlands, Karel

Van Oosterom, noted that his delegation had supported the United States draft and expressed extreme disappointment that an attempt to set up an effective mechanism had failed again. If the Russian Federation thought that alleged chemical weapons attacks were fabrications, he said, then it should not have used its veto. The Netherlands would vote against the Russian draft, which fell short in every possible way: “Impunity must not prevail.”

The following references to the statements of the representatives of its closest allies sufficiently illustrate their position:

– United States (Nikki Haley): the draft resolution that the United States sponsored called for unfettered humanitarian access and created the independent mechanism of investigation to determinate accountability. The one submitted by the Russian Federation gave itself the chance to choose its investigators and help determine the outcome of the investigation;

– France (François Delattre): allegations of recent attacks in Douma by the Syrian regime could constitute war crimes, stressing that, to allow such assaults would “let the genie of chemical weapons use out of the bottle” and pose an existential threat to all people. The American draft would provide a mandate for an independent mechanism of investigation to assign responsibility for the Douma attacks, stressing that only that combination of specific mandates would effectively act as a deterrent;

– United Kingdom (Karen Pierce): it was a sad day for the people of Douma, who now had no protection of the international community. With its veto, the Russian Federation had crossed a line and history was repeating itself a year after the events in Khan Shaykhun. Last autumn the Russian Federation had vetoed a renewal of the mandate of the Joint Investigative Mechanism on three occasions because it preferred to cross a line on weapons of mass destruction than risk the sanctioning of Syria.

The representative of the Russian Federation (Vassily Nebenzia) said, inter alia, that the United States was attempting to mislead the international community. The draft would have been an attempt to “recreate the Joint Investigative Mechanism – whose mandate had not been renewed in late 2017 – which had become a puppet of anti-Damascus forces and shamed itself by rendering a guilty verdict against a sovereign State with no evidence”. Visits to incident sites and protecting the chain of evidence must be working principles, while the Council could determine – on the basis of reliable evidence – who was

responsible for using chemical weapons. Nothing along those lines was contained in the United States draft.