The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (141 page)

⁶⁹
See
Chapter 24
by Jennifer Welsh. A prominent example of involvement in the internal affairs of a state is the Council’s deliberations with respect to Haiti in SC Res. 841 of 16 June 1993. This was followed by a resolution authorizing the use of force in Haiti – SC Res. 940 of 31 July 1994. The fact that there had been large numbers of refugees fleeing from Haiti contributed to the situation being viewed as a threat to international peace and security.

⁷⁰
SC Res. 1373 of 28 Sep. 2001 and 1566 of 8 Oct. 2004, on threats to international peace and security caused by terrorist acts; and SC Res. 1540 of 28 Apr. 2004 on nuclear non-proliferation.

⁷¹
This interpretation is given added weight by the terms of Art. 2(3) of the Charter: ‘All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.’

⁷²
UN doc. S/PRST/2006/28 of 22 June 2006.

⁷³
The question in the
Lockerbie
cases arose in a hearing on an application for provisional measures, and was neither argued nor considered at the length that would have been possible at a hearing on the merits.
ICJ Reports 1992
, p. 3, at paras. 37–43. The cases, brought by Libya against the UK and US, were formally discontinued in 2003. The treaty obligations in question in this case were under the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.

⁷⁴
For a useful survey taking into account recent developments, see Karl Zemanek, ‘Is the Security Council the Sole Judge of its Own Legality? A Re-Examination’, in August Reinisch and Ursula Kriebaum (eds.),
The Law of International Relations – Liber Amicorum Hanspeter Neuhold
(Utrecht: Eleven International Publishing, 2007), 483–505. His conclusion is clear: ‘Yes, under present circumstances and presumably for some time to come, the Security Council is in fact the sole judge of its own legality. Even though it shouldn’t be.’ (p. 505.)

⁷⁵
ICTY Appeals Chamber,
Prosecutor
v.
Duško Tadi
, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995,
International Legal Materials
35 (1996), 38–41.

⁷⁶
SC Res. 1267 of 15 Oct. 1999, on the situation in Afghanistan.

⁷⁷
Case T-306/01
Ahmed Ali Yusuf and Al Barakaat International Foundation
v.
Council and Commission
(2005) paras. 270–82, and Case T-315/01
Yassin Abdullah Kadi
v.
Council and Commission
(2005) paras. 219–31. See also Case T-253/02
Chafiq Ayadi
v.
Council
, and Case T-49/04
Faraj Hassan
v.
Council and Commission.
All of these cases are currently the subject of appeals at the Court of Justice of the European Communities. In addition, see the UK case of
Al-Jedda
v.
Secretary of State for Defence
, [2007] UKHL 58, in the House of Lords in 2007 where arguments concerning Art. 103 arose.

⁷⁸
European Court of Human Rights, Grand Chamber, Decision on the Admissibility of
Behrami
v.
France
and
Saramati
v.
France, Germany and Norway
, 2 May 2007. Available at
www.echr.coe.int/echr

⁷⁹
For a discussion of accountability and the Security Council, see Ruth W. Grant and Robert O. Keohane, ‘Accountability and Abuses of Power in World Politics’, IILJ Working Paper 2004/7, Global Administrative Law Series, available at
www.iilj.org/papers/2004/2004.7.htm
These authors suggest two models for accountability: the power-wielder can be held accountable either to the persons affected by the exercise of power (the participation model) or to those who delegate power to the body that wields it (the delegation model). They explore the delegation model further, and reject the participation model, given the lack of a clear global ‘demos’. The international law literature on the accountability of international organizations is thin, the only comprehensive study being the one done by the International Law Association in 2004. See International Law Association,
Report of the Seventy-first Conference
(London: ILA, 2004), 164–234. The report brings out in some detail that, even while it is not possible to offer an ecumenical definition of the term ‘accountability’ and its consequences, it is possible to isolate a number of characteristic elements, give and take the considerable degree of variation that would have to be admitted when fitting them to the circumstances of particular international organizations. Available at
www.ila-hq.org/html/layout_committee.htm
then following in turn the links for list of committees; former committees which have completed their work; and accountability of international organizations.

⁸⁰
Analogous problems arise out of the annual report of that other autonomous organ, the International Court of Justice, though there at least the Assembly is directly responsible for providing the Court’s budgetary resources.

⁸¹
For a useful discussion of how the provisions of Art. 17 have been implemented in practice, and how the development of peacekeeping has been accommodated, see Simma (ed.),
Charter of the United Nations
, vol. I, 343–9.

⁸²
The classic study is Rosalyn Higgins,
The Development of International Law Through the Political Organs of the United Nations
(London: Oxford University Press, 1963).

⁸³
SC Res. 1368 of 12 Sep. 2001 and SC Res. 1373 of 28 Sep. 2001.

⁸⁴
See Cesare P. R. Romano, André Nollkaemper, and Jann K. Kleffner,
Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia
(Oxford: Oxford University Press, 2004).

⁸⁵
See, for example, the UN paper describing the genesis of the Lebanon tribunal: UN doc. S/2006/893 of 15 Nov. 2006.

⁸⁶
Human Security Report 2005
, 148–9.

⁸⁷
For a classic short exposition of this argument, see Kenneth N. Waltz,
The Spread of Nuclear Weapons: More May Be Better
, Adelphi Paper no. 171 (London: International Institute for Strategic Studies, 1981).

⁸⁸
See Kenneth Waltz, ‘The Stability of a Bipolar World’,
Daedalus
93, no. 9 (1964), 881–909.

⁸⁹
See John E. Mueller,
Retreat from Doomsday: The Obsolescence of Major War
(New York: Basic Books, 1990).

⁹⁰
See Adam Roberts,
Civil Resistance in the East European and Soviet Revolutions
, Einstein Institution Monograph Series no. 4 (Cambridge, Mass.: The Albert Einstein Institution, 1991); and Adam Roberts and Timothy Garton Ash (eds.)
Civil Resistance and Power Politics
(Oxford: Oxford University Press, 2009).

⁹¹
Such governmental concern about the effect of the General Assembly’s ceasefire resolution was evident in the Suez crisis in Oct.–Nov. 1956. See e.g., on Israeli attitudes, Maj.-Gen. Moshe Dayan,
Diary of the Sinai Campaign
(London: Weidenfeld & Nicolson, 1966), 127–9; and on Anglo-French attitudes, Anthony Nutting,
No End of a Lesson: The Story of Suez
(London: Constable, 1967), 131–5.

⁹²
See Simon Chesterman,
Shared Secrets: Intelligence and Collective Security
, Lowy Institute Paper 10 (Sydney: Lowy Institute for International Policy, 2006).

⁹³
On the day of the Madrid bombing, the Council passed SC Res. 1530 of 11 Mar. 2004, stating that it ‘
Condemns
in the strongest terms the bomb attacks in Madrid, Spain, perpetrated by the terrorist group ETA on 11 March 2004’. On this occasion the member states were not acting with sufficient judiciousness. There was no need to attribute the bombing to any particular group at that stage. It was obvious at the time, and confirmed later, that a likely source of the bombing was an Islamic extremist group, and not the Basque organization ETA.

⁹⁴
See Paul Volcker,
The Management of the United Nations Oil-for-Food Programme
(New York: 7 Sep. 2005). One of a series of five major reports of the Independent Inquiry into the UN Oil-for-Food Programme chaired by Volcker, it stated (at pp. 2–5) that the UN needed stronger executive leadership and also major administrative reform; but also stated that the members of the Security Council must shoulder their share of the blame for uneven and wavering direction of the programme.

⁹⁵
One reported case of corruption in connection with supplies for UN peacekeepers concerned Compass, a major catering enterprise, which announced in Oct. 2006 that it had agreed to pay up to £40 million to settle two lawsuits brought against it by rival food companies for allegedly bribing a Russian UN official with hundreds of thousands of dollars to win contracts worth millions of pounds to supply UN peacekeepers. Hans Kundnani, ‘Compass Settles Claims of Bribery in UN Contracts’,
The Guardian
(London), 17 Oct. 2006, 27. In the course of 2006 an array of new measures were introduced at the UN to make the organization more transparent, accountable, and ethical. In November 2006 Chris Burnham, retiring as UN Under-Secretary-General for Management, summarized these measures.
UN News Service
, 15 Nov. 2006, available at
www.un.org/apps/news

⁹⁶
The problem of sexual abuse and exploitation by blue helmets surfaced in 2004. In 2005 a UN report found that a ‘shockingly large number’ of peacekeepers had engaged in such practices in the Democratic Republic of Congo (DRC), with payments for sex sometimes ranging from two eggs to $5 per encounter. The victims included many abandoned orphans who were often illiterate. The UN responded with policy decisions and disciplinary action. By the end of Nov. 2006, 319 peacekeeping personnel in all missions had been investigated. These probes resulted in the summary dismissal of18 civilians and the repatriation on disciplinary grounds of 17 police and 144 military personnel – information from peacekeeping pages of UN website, including
www.un.org/Depts/dpko/dpko
accessed 5 Jan. 2007.

⁹⁷
For a well-informed and positive view of the UN’s roles by a distinguished US legal expert, see Michael J. Matheson,
Council Unbound: The Growth of UN Decision Making on Conflict and Post-conflict Issues after the Cold War
(Washington, DC: US Institute of Peace Press, 2006).

⁹⁸
Reports of many Security Council missions may be found at
www.un.org/Docs/sc/missionreports.html

¹
International Commission on Intervention and State Sovereignty,
The Responsibility to Protect
(Ottawa: International Development Research Centre, 2001), 3.

²
High-level Panel,
A More Secure World: Our Shared Responsibility – Report of the High-level Panel on Threats, Challenges and
Change, UN doc. A/59/565 of 2 Dec. 2004, synopsis, para. 11. The Panel goes on to note, however, that the founders ‘also understood well, long before the idea of human security gained currency, the indivisibility of security, economic development and human freedom’. This was certainly true of the American, Chinese, and, to a lesser extent, British planners, but the Soviets were initially reluctant to dilute what they hoped would be a single-minded focus on military security in the new body. See, for example, the account of then Secretary of State Edward R. Stettinius, Jr, who claimed that at Dumbarton Oaks ‘the Soviet Union, and to a lesser extent Churchill, did not seem to understand the American concern for an organization that was broader than just a security organization.’
Roosevelt and the Russians: The Yalta Conference
(Garden City, NY: Doubleday and Company, 1949), 17. One of the leading British architects of the UN, the historian Charles K. Webster, credits US leadership with the creation of the economic, social, and functional organs of the UN system. ‘The Making of the Charter of the United Nations’,
History
, 32, no. 115 (Mar. 1947), 20.

³
In Larger Freedom: Towards Security, Development and Human Rights for All – Report of the Secretary-General
, UN doc. A/59/2005 of 2 Mar. 2005, para. 154. See also ‘Address to the General Assembly’, UN doc. SG/SM/8891 – GA/10157 of 23 September 2003. Yet a few years before, in September 1999, he had a very different message for the General Assembly: ‘In response to this turbulent era of crises and interventions, there are those who have suggested that the Charter itself – with its roots in the aftermath of global inter-State war – is ill-suited to guide us in a world of ethnic wars and intra-State violence. I believe they are wrong’: UN doc. SG/SM/7136 of 20 Sep. 1999.