The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (90 page)

Luttwak is far too extreme, and some of his contentions plainly flawed.
⁶⁰
Even were they not, the advice to ‘let wars burn themselves out’ is frequently unrealistic. Already in the nineteenth century public outcry often, though certainly not always, prompted intervention to prevent (or, on other occasions, at least humanize) Turkish suppression of revolts in the Balkans. Today such outcry has been greatly strengthened by both television and democratization. That said, there is substance in several of Luttwak’s attacks on UN operations, and though his perspective should be taken with much salt, it should not be overlooked.

A very different judgement is based on quantitative studies of recent conflicts. These have generated a reassuring consensus that the number of ‘conflicts’ has fallen sharply since its peak at the end of the Cold War, and that ‘battle-deaths’ have, apart from a brief revival in 1998–2000, been in decline since about 1986.
⁶¹
Admittedly we cannot speak with confidence about ‘war-related’ deaths (chiefly
from hunger and disease) or about the numbers killed in ‘genocides’ or other ‘onesided’ killings.
⁶²
But, after surveying the consensus about the decline in conflicts, and noting the ‘explosion of conflict prevention, peace-making and post-conflict peace building activities’ (a six-fold increase in the 1990s in UN preventive diplomatic missions, fourfold in UN peacekeeping activities, and elevenfold in the imposition of economic sanctions), Andrew Mack contends that though the concurrent fall

Mack’s claims are vulnerable to disaggregation. He concedes that ‘in the Middle East and North Africa, and in East Asia, Southeast Asia and Oceania the decline started earlier’ and for other reasons. Further, he links the ‘dramatic decline in political violence’ in Central-South America rather directly to the ‘end of the Cold War’, and he admits that in sub-Saharan Africa (where much UN activity was concentrated) the number of conflicts ‘remained high until 2002’, following which there has been insufficient time to be confident of any trend.
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But, if well-founded, Mack’s findings would obviously be highly important.

It may, therefore, be worth focusing briefly on Africa, a continent where (Mack says) by 2000 ‘more people were being killed in wars… than in the rest of the world combined’, but also one in which there are perhaps fewer political barriers than elsewhere to UN involvement. David Malone gave a bleak assessment as of ‘mid-2003’: the ‘Council spends the majority of its time on African issues, but frequently with little success’. On the credit side, he lists ‘the UN’s preindependence role in Namibia’ and its 1990s involvement in ending the civil war in Mozambique. ‘Less happy’ were its various interventions in Angola in the 1990s, while its ‘botched’ operations in Somalia have ‘produced negative fallout for UN peacekeeping operations ever since. Above all, the Council’s catastrophic performance in Rwanda in 1994 has yet to be fully digested’, while its ‘action on Western Sahara, the Central African Republic and Liberia was more window dressing than deeply substantive’.
‘The Council did little to solve the acute problems of… Guinea-Bissau’, while the ‘conflict in Eastern Congo… remains unresolved and dangerous.’ However, after a ‘catastrophic’ UN start, the situation in Sierra Leone was improving, and the Council’s efforts to address the crisis arising out of the Eritrea-Ethiopia war had been ‘ambitious’.
⁶⁵
A couple of years later one would be more optimistic about Guinea-Bissau, and would note gratifying improvements in Burundi, Sierra Leone, and (though UN input was relatively minor) Liberia. On the other hand, troops were in December 2005 again gathering on the Eritrea-Ethiopia border, while the UN was (or seemed
⁶⁶
) powerless in the face of Ethiopia’s reneging on its promise to implement the Boundary Commission’s 2002 award, and Eritrea in retaliation imposed increasing restrictions on the UN Mission in Ethiopia and Eritrea (UNMEE). Tension did relax slightly, but in May 2006 the Security Council cut UNMEE numbers further, following failed Ethiopia-Eritrea talks.
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Meanwhile, in the Sudan, 2004–5 brought remarkable, though still precarious, UN steps to end the interminable wars in the south, but at the same time saw the UN turn over the almost equal horror of Darfur in the east to a so far near ineffective African Union peacekeeping operation.

The record, then, is mixed. Mack’s ‘international activism’ ‘spearheaded’ by the UN is not without successes. But claims of its producing a ‘sharp decline in political violence’ should be modest. Nor can we disregard Luttwak’s charge that attempts (through ‘Operation Turquoise’ and refugee relief) to prevent ethnic war in Rwanda from spilling over into eastern Congo in fact had quite the opposite effect.

Is the glass, then, part full or part empty? It is hard to know the real expectations of the UN’s founders, but judging by their rhetoric (and that of the Charter), the Security Council’s glass is largely, though not quite, empty. It is seldom the medium through which high profile conflicts are addressed – ‘seldom’, though not ‘never’. Even as regards lesser conflicts, the Council’s agenda has proved remarkably selective. As Malone has it, Colombia, though ‘much discussed’ unofficially, is excluded

Judged, however, by less demanding criteria than those of 1945, the Council has often proved the best way of addressing distressing problems (albeit not usually those regarded as being of the greatest international magnitude), or of consolidating the initial successes of other actors in addressing them. Moreover, it has done so by drawing on a wide range of countries for its operations, in an inclusive way far more acceptable to the modern world than the most obvious precedent, the nineteenth-century handling of the Balkans by the Great Power Concert of Europe. From this perspective, the glass of water appears much fuller. Even so, the Council’s handling of African conflicts is at best mixed; and though the UN, along with other external actors, has influenced their outcome, forces within the countries involved have had far greater influence.

GEORG NOLTE
^*

S
INCE
the end of the Cold War, both the UN Security Council and international humanitarian law have moved to the centre of attention of international lawyers. However, little attention has been given to the relationship between the two. In their collection of
Documents on the Laws of War
, Roberts and Guelff explain why this relationship deserves to be explored:

It would go beyond the limits of this chapter comprehensively to assess the influence of the Security Council on humanitarian law. However, it may nevertheless be helpful to review a representative sample of Security Council decisions. This could make it possible to substantiate Roberts and Guelff’s observation.

The point of departure for this chapter is the analysis by van Baarda
²
who, in 1994, distinguished four different phases of Security Council involvement in maintaining humanitarian law: a first phase of ‘
tabula rasa
’ (until the Six-Day War of 1967) during which the Council did not address humanitarian law at all; a second phase of ‘reluctant involvement’ (between 1967 and 1979) in which the Council exceptionally addressed the issues of humanitarian protection and humanitarian assistance; a third phase of ‘moderate involvement’ (the 1980s) during which the number of relevant resolutions rose from twelve to thirty-six; and a fourth phase of ‘intensive involvement’ (starting in 1990).
³

This chapter builds on and continues van Baarda’s analysis. It examines all Security Council resolutions (but not Presidential Statements) from January 1993 to April 2006, which include the terms ‘humanitarian’, or ‘Geneva Convention(s)’ or ‘law(s) of war’. A search of those terms in the UN’s Official Document System leads to more than 400 such resolutions. While this approach is certainly somewhat formalistic, the material it yields is sufficiently representative to draw a meaningful sketch of Security Council practice in the last decade or so.

Fruitful criteria for classifying Security Council practice derive from the domestic analogy. The Security Council can be said to perform legislative, executive, and adjudicative functions.
⁴
The main function of the Security Council is obviously
executive.
Tied to its central function of maintaining peace and security, the Security Council undertakes a responsibility to monitor the implementation of international humanitarian law. As the Security Council itself has stated, it has a primary responsibility for the maintenance of international peace and security and, in this context, [reiterates] the need to promote and ensure respect for the principles and rules of international humanitarian law’.
⁵

Technically, the Security Council performs an
adjudicative
function through the International Criminal Tribunals on the former Yugoslavia and Rwanda, which are subsidiary organs of the Security Council.
⁶
Such adjudication, however, is independent from the Security Council proper and therefore cannot be considered as an adjudicative function of the Council in the full sense of the term.
⁷
Here, adjudication is understood as being a more or less conclusive determination in a more or less specific case that humanitarian law has or has not been, or is being, violated. Adjudication in this sense borders on a function which can be called clarification of the law. This function is located somewhere between the adjudicative and the executive realm.

The
legislative
function is also difficult to define very precisely.
⁸
In humanitarian law, as in other areas of international law, ‘legislation’ or law-making takes place in the form of a complex mixture of treaty-making, custom, soft law, and the codification and shaping of custom, in particular by military manuals. The question is which role the Security Council plays in this process of rulemaking, setting aside the special issue of the law of occupation as it has arisen in the context of the occupied Palestinian territories and Iraq.
⁹

The Security Council has developed a rather extensive practice with respect to the execution, or implementation, of humanitarian law. The pertinent resolutions can be divided into three categories: (1) those in which the Security Council puts pressure on parties to an armed conflict to comply with humanitarian law in general; (2) those in which it puts pressure on parties to an armed conflict to implement certain more specific rules of humanitarian law; and, finally, (3) those in which it takes institutional steps to implement humanitarian law.

The most general form of pressure to comply is expressed in those resolutions which deal with the implementation of international humanitarian law in general, regardless of any particular conflict. While the immediate executive effect of resolutions such as SC Resolution 1674, setting out the law relating to the protection of journalists in armed conflict, and their right to protection as civilians, may be rather limited,
¹⁰
they do express the normative priorities of the Council. Their main function is to set out the law, and such resolutions could accordingly be seen as quasi-legislative rather than executive.
¹¹

The softest form of executive activity in a particular conflict by the Council is the expression of ‘deep concern’ with respect to ‘grave violations of humanitarian law’,
¹²
or of being ‘[m]indful of the need for accountability for violations of international humanitarian law’.
¹³
Somewhat more directly, the Security Council sometimes demands that the parties to a conflict ‘fulfil their obligations under…international humanitarian law’.
¹⁴
Such general appeals are expressed in sharper language when the Council