The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (151 page)

⁶⁶
See UN doc. S/PRST/2000/20 of 2 June 2000. The Panel’s mandate was extended to contribute effectively to the monitoring of sanctions in SC Res. 1457 of 24 Jan. 2003.

⁶⁷
UN doc. S/2000/1195 of 20 Dec. 2000.

⁶⁸
SC Res. 1343 of 7 Mar. 2001.

⁶⁹
UN doc. S/2001/1015 of 26 Oct. 2001.

⁷⁰
Swiss Confederation, United Nations Secretariat, and Watson Institute for International Studies at Brown University,
Targeted Financial Sanctions: A Manual for Design and Implementation – Contributions from the Interlaken Process
(Providence, RI: Thomas J. Watson Jr. Institute for International Studies, 2001).

⁷¹
Michael Brzoska (ed.),
Design and Implementation of the Arms Embargoes and Travel and Aviation Related Sanctions: Results of the ‘Bonn–Berlin Process’
(Bonn: Bonn International Centre for Conversion, 2001).

⁷²
Peter Wallensteen, Carina Staibano, and Mikael Eriksson (eds.),
Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Options
(Uppsala, Sweden: Uppsala University Department of Peace and Conflict Research, 2003).

⁷³
UN doc. S/2003/1070 of 2 Dec. 2003. See especially ‘Appendix VI, Analysis of reports submitted by Member States’, paras. 28–43.

⁷⁴
United Nations Security Council,
The New Consolidated List of Individuals and Entities Belonging to or Associated with the Taliban and Al-Qaida Organisation as Established and Maintained by the 1267 Committee
, available at
www.un.org/Docs/sc/committees/1267/1267ListEng.htm

⁷⁵
Targeted Sanctions Project, ‘Strengthening Targeted Sanctions Through Fair and Clear Procedures’, White Paper, Watson Institute for International Studies, Brown University, 30 Mar. 2006, 6, available at
watsoninstitute.org/pub/Strengthening_Targeted_Sanctions.pdf

⁷⁶
Ibid.

⁷⁷
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, para. 152.

⁷⁸
GA Res. 60/1 of 24 Oct. 2005, para. 109.

⁷⁹
Kofi Annan, ‘Conference Report’ Keynote Address, Conference on ‘Fighting Terrorism for Humanity,’ International Peace Academy, New York, 22 Sep. 2003, 10.

⁸⁰
SC Res. 1456 of 20 Jan. 2003, para. 6.

⁸¹
See Lisa Martin,
Coercive Co-operation: Explaining Multilateral Economic Sanctions
(Princeton: Princeton University Press, 1992).

^*
This article draws on Dan Sarooshi, ‘The UN System for Maintaining International Peace: What Role For Regional Organizations Such as NATO?’,
Current Legal Problems
, 52 (1999).

¹
David Bederman,
International Law in Antiquity
(Cambridge: Cambridge University Press, 2001); and, more generally, Rosalyn Higgins and Dan Sarooshi, ‘Institutional Modes of Conflict Management’, in John Norton Moore and Robert Turner (eds.),
National Security Law
(Durham, NC: Carolina Academic Press, 2005), ch. 5.

²
Bruno Simma,
The Charter of the United Nations: A Commentary
, 2nd edn. (Oxford: Oxford University Press, 2002), 813.

³
Ibid.

⁴
Ibid.

⁵
Ibid., 813–15.

⁶
Art. 24(1) of the Charter provides: ‘In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.’

⁷
There have been a number of instances where regional arrangements (e.g. the North Atlantic Treaty Organization, the Organization of American States, and the Economic Community of West African States) have used force both with and without Security Council authorization. For a number of these cases, see, for example, Higgins and Sarooshi, ‘Institutional Modes of Conflict Management’; Simma,
The Charter of the United Nations
, 807–95; C. Gray,
International Law and the Use of Force
, 2nd edn. (Oxford: Oxford University Press, 2000), 200–37; Rosalyn Higgins, ‘Peace and Security. Achievements and Failures’,
European Journal of International Law
6, no. 3 (1995), 445–60; Dan Sarooshi,
The United Nations and the Development of Collective Security
(Oxford: Oxford University Press, 1999), ch. 6;Kofi Kufuor, ‘The Legality of the Intervention in the Liberian Civil War by the Economic Community of West African States’,
African Journal of International & Comparative Law
5 (1993), 525–60; and Christoph Schreuer, ‘Regionalism v. Universalism’,
European Journal of International Law
6, no.3 (1995), 477–99.

⁸
See also references above, n. 7. For a discussion of the relationship between the Security Council and ECOWAS, see also Adekeye Adebajo’s discussion in
Chapter 21
.

⁹
See, for example, Dan Sarooshi, ‘Humanitarian Intervention and Humanitarian Assistance: Law and Practice’,
Wilton Park Paper 86
, (1994). Compare the case of military enforcement action by the Economic Community of West African States (ECOWAS) in Liberia, as explained in
Chapter 21
; and Christine Gray, ‘Regional Arrangements and the United Nations Collective Security System’, in Hazel Fox (ed.),
The Changing Constitution of the United Nations
(London: BIICL, 1997), 91, 107. But there is, nonetheless, an argument made by some academics as to whether a prior delegation of powers or authorization is required for regional arrangements to use force, see, for example, Jean Allain, ‘The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union’,
Max Planck Yearbook of United Nations Law
, 8 (2004).

¹⁰
See Hans Kelsen,
The Law of the United Nations
(London: Stevens & Sons, 1950), 327. For the opposing view that a regional arrangement should only be concerned with the keeping of peace within the arrangement and cannot as such be utilized to take measures outside the regional community, see Pierre Vellas,
Le Régionalisme International et l’Organisation des Nations Unies
(Paris: A. Pedone, 1948), 206.

¹¹
See, for example, Hans Kelsen, ‘Is the North Atlantic Treaty a Regional Arrangement’,
American Journal of International Law
45, no. 1 (1952), 162–6.

¹²
A possible additional reason for such a legal characterization was to avoid the more onerous reporting obligation of a regional arrangement under Article 54 of the Charter. The obligation on a regional arrangement to report to the Security Council is broader than the reporting obligation on States exercising self-defence under Article 51 of the Charter. Article 54 requires a regional arrangement to inform the Council not only of measures already undertaken, but also those being contemplated: an
ex ante
obligation to inform. While the reporting obligation in Article 51 is less stringent, since it only requires states to report to the Council those self-defence measures already taken: it is an
ex post
obligation to inform.

¹³
The NATO decisions which allowed the arrangement to carry out operations outside its traditional area of operation are discussed in the following section.

¹⁴
Adria-, AWACS- und Somalia-Einsaetze der Bundeswehr, Entscheidungen des Bundesverfassungsgerichts, (1994
) 90
BVerfGE
286. Cf. Markus Zökler, ‘Germany in Collective Security Systems – Anything Goes?’,
European Journal of International Law
6, no. 2 (1995), 279.

¹⁵
See Gray, ‘Regional Arrangements’, 113, 115–16.

¹⁶
Srebrenica was designated a ‘safe area’ in SC Res. 819 or 16 Apr. 1993. Sarajevo, Bihac, Gorazde, Tuzla, and Zepa were designated ‘safe areas’ in SC Res. 824 of 6 May 1993.

¹⁷
SC Res. 836 of 4 June 1993.

¹⁸
It is clear from the statements by states such as France, Hungary, and Spain in the Security Council that SC Res. 836 envisaged the use of force to achieve these objectives. See UN doc. S/PV.3228 of 4 June 1993, 13, 52–3, and 59. SC Res. 836, moreover, expanded the mandate of UNPROFOR to enable it to deter attacks on the safe areas by, inter alia, authorizing UNPROFOR, acting in self-defence, to take measures necessary, including the use of force, to respond to bombardments or armed incursions into the safe areas. See also Marc Weller, ‘Peace-keeping and Peace-Enforcement in the Republic of Bosnia and Herzegovina’,
Zeitschrift für Ausländisches (Öffentliches Recht und Völkerrecht
56 (1996), 108. However, UNPROFOR, as a lightly armed peacekeeping force, did not have the capability to carry out such action in an effective manner.

¹⁹
UN doc. S/25939 of 14 June 1993, 2.

²⁰
Ibid., 4.

²¹
Moreover, in resolution 844 the Council in operative para. 4 stated that it ‘[r]eaffirms its decision in paragraph 10 of resolution 836 (1993) on the use of air power, in and around the safe areas, to support UNPROFOR in the performance of its mandate, and encourages Member States, acting nationally or through regional organizations or arrangements, to coordinate closely with the Secretary-General in this regard’.

²²
To ensure a quick NATO response to such a request by the UN, NATO liaison officers were stationed at UNPROFOR Headquarters in Zagreb and in Sarajevo (Dick Leurdijk,
The United Nations and NATO in the Former Yugoslavia: Partners in International Cooperation
, (The Hague: Netherlands Atlantic Commission, 1994), 16.)

²³
UN doc. S/1994/94 of 28 Jan. 1994, 2.

²⁴
See the report of the Secretary-General, UN doc. S/1994/300 of 16 Mar. 1994, 15.

²⁵
Ibid.

²⁶
The Spanish representative, for example, stated: ‘It is clear that to achieve these objectives it is crucial that NATO guarantee the security of the personnel of UNPROFOR, of the Office of the High Commissioner for Refugees (UNHCR) and of the other international agencies…. We therefore deem it appropriate for the SG to have delegated to his Special Representative the authority needed to approve any request which may be made in that respect by the UNPROFOR Commander, a delegation of authority which extends to operations of immediate air support in defence of United Nations personnel in any area of Bosnia and Herzegovina.’ (UN doc. S/PV.3336 of 14 Feb. 1994, 29.) See also the statement by the representative of Bangladesh: UN doc. S/PV.3336 (Resumption 3), 217–18.

²⁷
ANATO official is quoted as saying: ‘We are going to make a very strong recommendation to the United Nations that it should delegate to theatre level.’ (
International Herald Tribune
, 26 July 1995, 6.)

²⁸
Higgins states that this is a reason why ‘it may be thought [the decision-making procedures are] weighted in favour of inaction.’ (Higgins, ‘Achievements and Failures’, 455.)

²⁹
The Secretary-General in a report to the Security Council dated 30 May 1995 stated that incidents around and in Sarajevo in May 1995 caused the Secretary-General’s Special Representative to consider using air power. He notes that ‘the decision not to do so was criticized by some Member States.’ (UN doc. S/1995/444, 2.)

³⁰
An official UN Report states: ‘The tragedy that occurred after the fall of Srebrenica is shocking…. It is shocking, first and foremost, for the magnitude of the crimes committed. Not since the horrors of the Second World War had Europe witnessed massacres on this scale. The mortal remains of close to 2,500 men and boys have been found on the surface, in mass graves and in secondary burial sites. Several thousand more men are still missing, and there is every reason to believe that additional burial sites, many of which have been probed but not exhumed, will reveal the bodies of thousands more men and boys. The great majority of those who were killed were not killed in combat: the exhumed bodies of the victims show that large numbers had their hands bound, or were blindfolded, or were shot in the back or the back of the head. Numerous eyewitness accounts, now well corroborated by forensic evidence, attest to scenes of mass slaughter of unarmed victims.’ (Report of the Secretary-General pursuant to General Assembly Resolution 53/35, ‘The fall of Srebrenica’, UN doc. A/54/549 of 15 Nov. 1999, para. 467.)

³¹
The failure by the UN chain of command in the case of Srebrenica led to GA Res. 53/35 of 30 Nov. 1998 requesting the establishment of a comprehensive report on the events that took place in Srebrenica after it had been declared a ‘safe area’ by the Security Council on 16 Apr. 1993. For the facts on the fall of Srebrenica and the failure by the UN chain of command to call in close air support despite repeated requests for such support by the Dutchbat Commander in Srebrenica, see UN doc. A/54/549 of 15 Nov. 1999, paras. 239–317.

³²
UN doc. S/1995/623 of 1 Aug. 1995, 2–3. The UNPROFOR Commander mentioned in this letter is the Commander of UNPROFOR in Bosnia. With effect from Apr. 1995 the Croatian and Macedonian segments of UNPROFOR had been renamed, so from then on ‘UNPROFOR’ referred exclusively to the force in Bosnia. The overall Force Commander, with headquarters in Zagreb, continued to have responsibility for what were now three distinct UN peacekeeping forces in the former Yugoslavia – in Croatia, Bosnia, and Macedonia.

³³
See Derek Bowett,
United Nations Forces
(London: Stevens, 1964), 342.