The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (44 page)

A clear example of this is provided by NATO’s use of military force without prior Security Council authorization in the case of Kosovo where the Council was constrained from acting by the threat of a Russian veto.

NATO carried out extensive military air strikes against the Federal Republic of Yugoslavia, which commenced on 24 March 1999, in order to force the Yugoslav government to, inter alia, stop ‘ethnic cleansing’ in the Yugoslav province of Kosovo. This action was undertaken without a prior express delegation of
Chapter VII
powers by the Security Council to NATO. The three relevant Security Council resolutions on Kosovo – resolutions 1160, 1199, and 1203 – did not authorize military action by states either acting individually or through a regional arrangement. As such, this action may at first seem to be clearly contrary to the general prohibition on the use of force
by states and the requirement of prior Security Council authorization of military action by a regional arrangement under Article 53, and thus unlawful.
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However, on 26 March 1999, two days after the commencement of NATO bombing, a Russian attempt to get the Security Council to adopt a resolution condemning the NATO military action failed, its 12–3 defeat being seen by some as providing at least a degree of legitimacy to the NATO military action.
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In strict legal terms, the action may possibly be justified by an emerging doctrine of humanitarian intervention which, if it does exist, would allow the use of force by states to stop the commission of gross and widespread violations of human rights that are occurring within a state. However, the question whether the doctrine of humanitarian intervention exists in customary international law is a complex matter which is beyond the scope of our current discussion.
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Nonetheless, any such doctrine would, if it does exist, have to recognize the primary role of the Security Council in this area, and as such its proponents advocate that it could only be used when the Council has made the following determinations: that a humanitarian catastrophe was occurring; that the situation constituted a threat to international peace; and where the Council had identified who was the entity responsible for the gross and widespread human rights violations, in other words who should be the target of the military action.
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These requirements are fulfilled by the Security Council resolutions on the Kosovo crisis.

If a doctrine of humanitarian intervention does exist then in addition to the above three requirements for its use the UN Charter requires also that there at least be evidence that the Security Council was being prevented from acting to address such a
situation: such evidence being provided by, for example, the persistent use of a negative veto being cast by one of the Permanent Members.
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The primary role of the Security Council concerning the use of force requires the fulfilment of all these conditions.
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The development of a practice whereby the decision to use military force to enforce earlier Council decisions was taken outside the sphere of the Council would be regrettable for a number of reasons. Primary among them is that one of the great achievements of the Charter was the centralization in the Council of the decision to use military force to protect common standards on behalf of the community of states. This is also, importantly, what the law would seem to require. As Judge Higgins, has pointed out extra-judicially: ‘There is no entitlement in the hands of individual members of the United Nations to enforce prior Security Council resolutions by the use of force.’
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NATO activism has questioned the very issue of where should the balance lie when allocating authority between universal (i.e. the UN) and regional arrangements in the management of conflict. NATO certainly has its own ideas here. Consider, for example, the 1999 NATO Strategic Concept adopted by NATO heads of state and government which provides as follows:

NATO does indicate in general terms that it will work with other international organizations to prevent conflict, but the claim being made in its strategy document, adopted at the highest level, is clear: NATO will act even when it cannot get a green light from the Security Council in order to protect ‘Alliance security interests’ as they are broadly defined in Paragraph 24. This is seen as being preferable to unilateral state action in such cases.
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This interpretation must, however, be tempered with the very real contribution that NATO has made to broader peace and security in the former Yugoslavia through its use of close air support and air strikes pursuant to UN authority as set out above, but also its crucial role in implementing the Dayton Peace Accords through IFOR (Implementation Force) and its successor forces SFOR (Stabilization Force) and Kosovo Force (KFOR): in all three cases NATO was delegated authority to use military force. One also must take account of the very substantial contribution that NATO has made to restoring security in Afghanistan through its leadership of the International Security Assistance Force (ISAF) which has since 15 October 2003 operated pursuant to Security Council Resolution 1510.

However, even from a policy perspective, let alone the legal position, the argument that regional arrangements should have the right to initiate the use of force without a Security Council mandate lacks cogency. As John Norton Moore has stated:

Most issues of peace and security affect all members of the world community. The very nature of the objective being considered – the control of conflict between and within states – requires a common approach in order to provide true security for all states, regardless of what region of the world they happen to fall into. Moreover, a universal forum is a more broadly based forum for the resolution of security issues,
both in the sense of greater assurance that decision will reflect common community interest, and in the sense of greater effectiveness by inclusion of the major powers in the decision process. A universal security organization should encourage regional settlement of disputes, however, in situations in which the interests at stake are primarily regional, in which regional machinery offers more effective conflict management, or in which the parties to a dispute genuinely prefer a regional forum.

To move back to a practice where states decide unilaterally to take military action, albeit nominally acting within the context of a regional organization, while invoking common interests as a source of legitimacy for their actions, represents a regrettable retrogression in world order. And yet in a number of ways the Security Council as an institution is not at present up to the task of maintaining peace and security in an effective and just manner.

Another problematic issue is the veto. In many ways, the veto is a symptom of a possibly deeper problem: an uncertainty among states whether the Security Council is the right entity to be making decisions about the use of military force. While a multilateral forum is necessary, is the Security Council in its present form and with its present processes the right one? The orthodox view is that of course it is, and that the Security Council is all we have got. But does the Security Council today actually possess the authority and legitimacy that one would expect of a governmental organ taking decisions about the use of military force? Why is it that domestic constitutional and public law constraints that operate within a state to constrain the use of military force by a state are largely inapplicable in the context of the Security Council? And why is it that states which are dictatorships – whose representation of the peoples living within the territories of their states is questionable – should be able to contribute by their participation in the Security Council to the formulation of common standards on behalf of the international community of states and also participate in the decision whether force should be used to uphold these standards? These questions essentially of legitimacy are not of course specific only to the use of military force by regional organizations, but they do have particular relevance to our present discussion. For example, what legitimacy does a regional organization such as ECOWAS possess when it carries out military action in its member states (e.g. in Liberia) to prop up governments when it is itself composed of states some of which are ruled by military dictatorships?

In a case where the Security Council is willing and able to act to maintain or restore peace, then in order to maintain the primary role and authority of the Council in
the area of peace and security there should not be a bypassing of the security system of the Charter by a regional arrangement acting without a UN mandate. One of the major achievements of the Charter was to enact a general prohibition on the threat or use of force by states (except when acting in self-defence) and to centralize decisions relating to the use of force to achieve objectives on behalf of the international community in the UN Security Council. In practice, the Council has often delegated its powers in this regard either to ad hoc coalitions of UN member states or to regional arrangements. This represents a maturation of the system since the international community is accepting, implicitly, that these entities when exercising the delegated powers will be able to act in the interests of the international community and not simply in pursuit of their own interests.

One of the key institutional lessons from the operation of the UN–NATO relationship in the former Yugoslavia is that once the Security Council decides to delegate its military enforcement powers then the decision to use these powers should be left solely to NATO. The dual-key arrangements that were used in relation to the so-called ‘safe areas’ in Bosnia saw prevarication by the UN with fatal consequences. The UN as an organization – specifically the Office of the Secretary-General – is simply not well-suited to make decisions relating to the use of force and this points to a greater role for regional arrangements acting on behalf of the UN. NATO has taken such effective action on behalf of the UN in a number of cases – IFOR, SFOR, KFOR, and ISAF – but from a legal perspective the important issue in all of these cases is that the overall political authority to terminate such action rests with the Council.

JEREMY GREENSTOCK

T
HE
UN Charter places the primary responsibility for maintaining international peace and security on members of the Security Council, acting on behalf of the whole membership. The intention of the founders in 1945 was to establish a collective approach to matters of peace and war and to deter individual states from taking matters into their own hands. The founders were confident in their expectation that member states of the UN, with the searing experience of two world wars fresh in their minds, would see it as being in their interests to respect the Charter, including Article 25.
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This responsibility is regularly proposed for re-quotation in Security Council resolutions, usually with the aim of reminding particular states that national objectives must be subordinated to the collective interest.

In practice, they rarely are. The reasons for that are less than perfectly understood around the globe, yet they lie at the heart of many of the political and security
problems that the international system continues to confront in the twenty-first century. The UN Secretary-General appealed to the 2005 UN World Summit to forge a consensus on the security threats facing the international community and on the collective response required, but the different perceptions amongst different cultures and political systems of what comprises security make this a formidable task.
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In studying how the Security Council discusses and attempts to manage the threat of war, this chapter will try to throw light on the way in which the human impulsion to use force to protect or advance specific interests plays itself out in the modern international arena and comes up against the provisions of the UN Charter.