Omissions, Acts, and the Security Council's (in)Actions in Syria, 31 B.U. Int'l L.J. 413 (2013)
This essay explores the responsibilities of Security Council members for abuses perpetrated in foreign humanitarian crises. As death tolls mount and massive violations of human rights continue in Syria, the Security Council plods along, doing little to respond to the escalating violence there. Some have portrayed the Council as a mere bystander, an onlooker with no connection to or responsibility for the atrocities undertaken by others. In another view, the Council is not merely standing by, but instead is complicit in the violence because it does nothing. Drawing on insights from the criminal law, this essay considers how we can better understand what it means to be a bystander in the context of humanitarian crises. Specifically, this essay examines two questions. First, it considers whether the resistance of Anglo-American criminal law to bystander liability should be replicated in the context of international affairs. Investigating the rationales for limited bystander liability in criminal law and the distinct rationales present in international law, this essay argues that even though the responsibility of the Security Council for international peace and security provides a strong reason for placing heightened expectations on the Council in the event of humanitarian crises, distinct concerns in international law caution against treating Council members as obligated to intervene in foreign states. Second, this essay draws on the criminal law distinction between acts and omissions to explore whether Security Council conduct in the context of humanitarian crises should properly be labeled participation or inaction. I contend that in light of the Security Council's defined role under the U.N. Charter, a lack of involvement on the part of the Council should be understood as an affirmative choice, rather than as a failure to act. Exploring the broader moral intuitions of both criminal law and international law about the conduct of certain actors toward suffering caused by third parties, this essay seeks to illuminate some assumptions at work in our understanding of the Security Council's role in humanitarian crises, thus furthering debates about the Council and humanitarian intervention, a crucial question in contemporary international law and politics.