Syria Between Change and Challenge: An Analysis of the Binding Nature of Security Council Resolution 2254

In light of the political transformations taking place in Syria following the fall of Bashar al-Assad’s regime, the issue of United Nations Security Council Resolution 2254 emerges as a controversial topic between the new Syrian leadership, various factions of the Syrian people, and international entities.

On December 17, 2015, members of the Security Council called for a comprehensive political process led and controlled by Syrians, based on the fundamental principles outlined in Resolution 2254 (2015), facilitated by the United Nations. In this context, they support the efforts of the UN Special Envoy to Syria, Geir Pedersen, to facilitate this Syrian-led process. This political process must meet the legitimate aspirations of all Syrians, provide protection for them, and enable them to determine their future in a peaceful, independent, and democratic manner. The countries and organizations that met in Aqaba on December 12, 2015, called for supporting a comprehensive transitional political process in accordance with Resolution 2254.

The new leadership views the resolution as irrelevant, arguing that it was designed to address a political reality associated with the former regime and that most of its provisions have either been implemented or overtaken by events, including the release of detainees and the initiation of the political transition process. They add that it is unreasonable to invite Bashar al-Assad, who fled to Moscow, for renegotiations.

On the other hand, a large portion of the Syrian people believes that the resolution was originally unimplementable, given that the previous regime did not commit to its contents. They also express doubts about the role of the United Nations in the coming phase, accusing the organization of not playing an effective role in recent years and ignoring the suffering of Syrians in opposition-held areas, where the UN envoy to Syria never visited but instead conveyed Assad’s diktats.

Some others advocate for maintaining the content of the resolution as a reference for the political transition and reconstruction process, considering it still provides a practical framework for achieving democratic transformation, ensuring women’s rights, and establishing the rule of law.

At the same time, fears are rising regarding the new leadership’s inclinations, with some fearing that its current soft rhetoric may be merely a pragmatic tactical step to consolidate its power before returning to autocratic practices, especially since this leadership has not undertaken any ideological review during its journey, which shifted from a split from ISIS, then al-Qaeda, to its current form.

The question now is: What is Resolution 2254, and is it legally binding for the new Syrian authorities under international law?

1. Historical Overview:

In the face of popular demands, the Syrian regime adopted a policy of repression as its preferred option since the 1980s. This strategy reached its peak in the spring of 2011, with the outbreak of a conflict that led to one of the worst humanitarian disasters of the 21st century. The situation soon became complicated, opening the door for interventions from international and regional organizations, as well as other countries, some of which supported the existing regime while others sought to overthrow it.

In November 2011, the Arab League took an unprecedented step by suspending Syria’s membership. On December 26 of the same year, the League sent 165 observers, with the regime’s consent, to implement a plan that included halting violence, releasing detainees, withdrawing tanks from cities, and ensuring media freedom. However, none of these goals were achieved. In January 2012, the League escalated its position and, on January 22, addressed the UN with a roadmap to resolve the crisis, which included a ceasefire, the formation of a national government, and the transfer of power from Bashar al-Assad to his deputy. However, this proposal faced a double veto from Russia and China.

In February 2012, the UN appointed Kofi Annan as a joint envoy to the UN and the Arab League. Annan proposed a six-point plan, which included halting violence under UN supervision, delivering humanitarian aid, releasing detainees, ensuring press freedom, and respecting the right to protest. Despite the regime’s acceptance of this plan and the Security Council’s adoption of Resolution 2042 to support it, efforts failed as the conflict intensified.

In June 2012, “Geneva 1” was announced, focusing on political transition through the formation of a transitional government with full executive powers. However, the Russian and Chinese vetoes again hindered its implementation, leading to the end of the UN mission (MISNUS) in August 2012.

Diplomatic efforts continued with the appointment of Lakhdar Brahimi to replace Kofi Annan. However, Brahimi resigned in May 2014 after the failure of the “Geneva 2” conference due to sharp divisions between the opposition and the regime. The opposition focused on forming a transitional government without Bashar al-Assad, while the regime insisted on combating terrorism as a priority.

Russia supported the Syrian regime politically and militarily and launched its direct military intervention in September 2015. In the context of Russian-American cooperation, an international support group for Syria was formed, which led to the adoption of Resolution 2254 in December 2015. The resolution effectively legitimized Russian military intervention on Syrian soil. It called for the formation of a transitional governing body and the conduct of elections within 18 months but lacked mandatory measures to ensure its implementation, making it ineffective, especially given the military gains achieved by the regime during that period.

Despite international and Arab efforts, initiatives to end the Syrian crisis failed. The international division hindered the implementation of political plans, while the conflict continued to escalate humanitarian suffering, making the Syrian crisis one of the greatest disasters of the modern era.

2. The Content of Resolution 2254 (2015):

The preamble of the resolution reaffirms Syria’s unity, sovereignty, independence, and territorial integrity, stating that the only solution to the Syrian crisis lies in an inclusive political process led by the Syrians themselves. It also builds upon previous Security Council decisions, particularly Resolution 2118 of 2013, and the Geneva Declaration of 2012.

The resolution calls for an immediate cessation of hostilities against civilians, while continuing the fight against terrorist groups such as ISIS and al-Nusra Front. It emphasizes the need for all parties to adhere to a ceasefire as part of the political process. The resolution also calls for official negotiations between the Syrian government and the opposition under UN auspices, starting on January 1, 2016, and suggests the formation of a transitional governing body with full executive powers, with the drafting of a new constitution during the political transition and the organization of free and fair elections within 18 months, with the participation of all Syrians, including expatriates.

Regarding the fight against terrorism, the resolution focuses on adherence to international law and relevant Security Council resolutions, calling on member states to refrain from supporting terrorist groups in any form. It also calls for unhindered access to humanitarian aid to all besieged and affected areas and stresses the importance of respecting international humanitarian law to protect civilians and ensure their security.

The resolution urges the United Nations, through its Special Envoy, to support the political process and provide periodic reports on progress. It emphasizes that the Syrian people alone have the right to determine their future, in a manner that meets their legitimate aspirations for freedom and dignity.

However, given the current circumstances, it is impossible to adhere to the deadlines and dates outlined in the resolution. Even regarding the role of UN supervision, it could be bypassed if the political process is genuine and credible.

3. Binding Nature of the Resolution:

Resolution 2254 was adopted by unanimous consent of all 15 members of the Security Council. However, the Security Council, which holds primary responsibility for maintaining international peace and security, adopted the resolution under Chapter VI of the UN Charter.

Under Chapter VI of the Charter, the Council can invite parties to a dispute to settle it by peaceful means and issue recommendations for methods of settlement or its conditions. The adoption of Resolution 2254 under this chapter meant that the Council did not consider the situation in Syria to constitute a threat to international peace and security, despite the conflict’s effects exceeding Syria’s borders, particularly with regard to displacement, the recruitment of mercenaries, and direct intervention by several countries. This is due to the political nature of the Council’s considerations, as the Security Council is primarily a political institution. Nevertheless, it can make decisions that create legal obligations.

The absence of a designation of the Syrian situation as a threat to international peace and security, and the adoption of the resolution under Chapter VI, does not imply that the resolution is merely a non-binding recommendation. On the contrary, the resolution is legally binding but does not specify any enforcement measures in the case of non-compliance. Therefore, Syria’s failure to implement this resolution, regardless of the government in power, does not lead to any practical consequences. In other words, the resolution is legally binding, but its non-enforcement results in moral responsibility. This is what has allowed the regime to procrastinate and evade its provisions, benefiting from Russian and Chinese support in the Security Council.

It is worth noting that the Russian and Chinese vetoes have blocked all attempts by France and other European countries to refer the Syrian file to the International Criminal Court. This support was clearly demonstrated when, for the first time, the Security Council was able to classify what happened in Syria as a threat to international peace and security and adopted Resolution 2118 under Chapter VII of the UN Charter after the chemical weapons attack in Eastern Ghouta in the summer of 2013.

Under Chapter VII of the Charter, the Security Council can impose economic sanctions or, as a last resort, authorize the use of force, either by member states, coalitions of member states, or through UN-authorized peacekeeping operations, to maintain or restore international peace and security.

Although the Council acted under Chapter VII, Resolution 2118, related to dismantling Assad’s chemical arsenal, was completely devoid of any economic or military sanctions on the regime in case of non-compliance.

The contradiction now lies in the fact that the new authorities have declared their commitment to implementing the provisions of Resolution 2118, despite the absence of any mention of sanctions and despite the fact that the resolution concerns Bashar al-Assad’s regime, which used chemical weapons, as well as the large role assigned to the United Nations in ensuring its implementation beyond mere supervision, while rejecting the implementation of Resolution 2254 for the same reasons.

Conclusion

International law typically does not concern itself with the form of government or constitutional provisions, whether the state is democratic or dictatorial, as it views this matter equally. However, the situation in Syria was addressed by Resolution 2254, which calls for the realization of the Syrian people’s aspirations for freedom and democracy. It should be noted here that Security Council resolutions are binding on the concerned states, whether issued under Chapter VI or VII, and these resolutions address the state itself, not the regime.

The sanctions imposed on Iraq after its invasion of Kuwait in the 1990s were not fully lifted until 2016, nearly 13 years after the fall of Saddam Hussein’s regime. Therefore, Resolution 2254 is binding on the Syrian state, regardless of the ruling regime. Based on this, the content of the resolution refers to the parties to the conflict in Syria without specifying the regime or the opposition. Despite the change in the form of the conflict, it remains ongoing, as the current Syrian authority does not control all Syrian territory, and the people’s aspirations for change and freedom are still present.

On the other hand, Resolution 2254 was issued under Chapter VI, meaning its implementation depends on goodwill and voluntary commitment, without coercive means. However, Western countries have linked the lifting of sanctions on Syria to the implementation of this resolution. These sanctions have burdened the previous regime and weakened it to the point where it was unable to provide basic services, which greatly undermined its legitimacy even among its own social base.

The application of the resolution does not require, as some suggest, the return of the former regime’s president from Moscow for dialogue. Instead, it requires the implementation of the resolution’s core elements, which include achieving the people’s aspirations for freedom and pluralism. This can be done through the establishment of an inclusive government, the drafting of a new constitution, and organizing free elections. The role of the United Nations is limited to monitoring and evaluating the process, paving the way for a gradual lifting of sanctions as progress is made at each stage.

The apprehension about Resolution 2254, while emphasizing adherence to Resolution 2118, may stem from a misunderstanding of international law or the essence of the resolution itself, and it may reflect a desire to establish a mere symbolic political process aimed solely at bolstering the legitimacy of the current one-party government, thereby stifling political transition and closing the door to change. Such an approach may lead Syria back into a spiral of chaos and infighting, possibly even leading to a civil war and the division of the country, especially since the current authority has not conducted any ideological review of its core ideologies. Additionally, its apparent rhetorical flexibility may be nothing more than pragmatism adopted by political Islam movements in what they call the “empowerment phase.”

References

• Le droit public après les bombes, Projets de réformes constitutionnelles et législatives pour une Syrie démocratique, Le droit public après les bombes

• V. Huet, « L’autonomie constitutionnelle de l’État : déclin ou renouveau ? », Revue française de droit constitutionnel, n° 73, 2008/1, p. 65-87

• Nations unies, Conseil de sécurité, Résolution 2054 (2015), 18 décembre 2015, S/RES/2054 (2015).

• Nations unies, ONU Info, « Le Conseil de sécurité annonce la fin de la Mission de supervision des Nations unies en Syrie », 16 août 2012

• J. Gifkins, « The UN Security Council Divided: Syria in Crisis », Global Responsibility to Protect, vol. 4, n° 3, 2012, p.    377-39

• N. Kozhanov, « Russia’s Military Intervention in Syria Makes It a Key Regional Player », Chattam House, 2 octobre 2015, en ligne ; URL : https://www.chathamhouse.org/2015/10/russias-military-intervention-syria-makes-it-key-regional-player (consulté le 23 octobre 2021)