08/30/2013 05:29 EDT | Updated 10/30/2013 05:12 EDT

Our Response to Syria Must Be Effective, But Also Legal

Ottawa and Washington -- The pictures and video of children, women, and men murdered or suffering from neuro-toxic symptoms from the attacks in eastern Damascus on August 21 has sparked outrage around the world. While Western powers have now concluded the use of chemical weapons is undeniable -- and that they were deployed by Bashar al-Assad's regime -- the UN weapons inspectors are also expected to complete their assessment in the next few days.

Although the shock and condemnation generated by the deployment of chemical weapons against a civilian population is unsurprising, this focus misses the larger, indisputable fact -- as the U.N. Independent Commission of Inquiry has documented -- that Assad's regime has been committing war crimes and crimes against humanity "daily" against its own people. On average, the monthly death toll in Syria is over 5,000. To date, more than four million Syrians have been internally displaced, over 100,000 killed -- some 450 by chemical weapons in this most recent lethal attack. Additional ongoing and severe abuses committed by Assad's regime include indiscriminate shelling and bombing, deliberate targeting of civilians by use of snipers, torture, extrajudicial killings -- and arbitrary detention.

These mass atrocities alone should have prompted global action. The international community has not only failed to live up to its responsibility to protect civilians from mass atrocity crimes -- an obligation unanimously agreed to by the largest gathering of heads of state at the UN World Summit in 2005 -- but its very inaction has encouraged escalating criminality by the Assad regime. But with the crossing of the red line on chemical weapons use refocusing international attention on Syria, we risk losing credibility -- and more Syrians risk losing their lives -- should we not start now taking meaningful action to protect civilians in Syria.

To that end, it is critically important that any intervention adhere to the requirements of international law. There has, understandably, been much hand-wringing over the impotence of the UN Security Council in addressing the situation in Syria given Russia intransigence. Indeed, it is shocking that after thirty months of atrocity crimes there has not been one U.N. Security Council Resolution invoking R2P and mandating international action.

But there is another creative way forward that will provide legitimacy and legality for international action.

Specifically, in response to Soviet objections to providing support to South Korea during the Korean War, the General Assembly adopted in 1950 a resolution called "Uniting for Peace." The most important part of this resolution states that where the Security Council, because of a lack of unanimity of its permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly should get involved.

In this situation, Uniting for Peace provides a clear path forward. First, a procedural resolution should be placed before the Security Council referring the situation in Syria to the General Assembly. As this is a procedural and not a substantive resolution, Russia and China's veto rights do not apply. Second, an emergency meeting of the General Assembly can be called into session within 24 hours under Uniting for Peace as long as seven Security Council members request this to happen. The last vetoed resolution on Syria before the Security Council had the support of 11 members with two abstentions and vetoes from Russia and China.

Third, a coalition of countries should propose a resolution in the General Assembly reaffirming its prior unanimous commitment to the responsibility to protect, noting the Security Council's lack of action, and making specific recommendations encouraging UN members to work collectively to stop the ongoing slaughter of civilians in Syria. The last resolution on Syria that was adopted by the General Assembly in May 2013 secured a vote of 107-12, with 59 abstentions. While there would likely be some decay in support of a United for Peace resolution given its implications, there is every reason to believe that with a broad coalition of sponsors strongly advocating for its adoption it could be adopted by a significant majority vote.

While the General Assembly cannot formally authorize the use of force as it is only empowered to make recommendations, its language could have the same practical effect -- lending legitimacy and legality to prospective action in Syria.

Our ongoing collective inability to end the mass atrocities being committed against the Syrian people creates an indelible stain on the moral fabric of the world while undermining the efficacy of R2P itself. The international community should have intervened long ago. But especially now that the red lines has been crossed, there are no more excuses. The time to act is now.

Irwin Cotler is a member of the Canadian Parliament and a former minister of justice and attorney general of Canada. Jared Genser is a lawyer and teaches a seminar on the Security Council at Georgetown University Law School. They are co-editors of The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Times (Oxford University Press).

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