Authors: Adam Roberts,Vaughan Lowe,Jennifer Welsh,Dominik Zaum
The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (91 page)
The pressure to comply is more focused when the Council names certain parties to the conflict, such as when it is ‘deeply concerned by the grave humanitarian situation and the continuing serious violations by the Taliban of human rights and international humanitarian law.’
16
The same is true for resolutions which address certain regions, such as when the Council expresses its deep concern at all violations of human rights and international humanitarian law, including atrocities against civilian populations, especially in the eastern provinces’,
17
or ‘especially the Kivus and Kisangani’,
18
and when it addresses all the parties to the conflict in Ituri and in particular in Bunia’.
19
Sometimes the Council addresses member states which are only indirectly affected by a particular armed conflict, such as when it is ‘[u]nderlining the importance of raising awareness of and ensuring respect for international humanitarian law, stressing the fundamental responsibility of Member States to prevent and end impunity for genocide, crimes against humanity and war crimes.’
20
It may even be seen as a form of general pressure to comply when the Council is ‘recognizing the role of the ad hoc tribunals for the former Yugoslavia and Rwanda in deterring the future occurrence of such crimes thereby helping to prevent armed conflict’,
21
or when the Council declares that it is ‘ready to impose certain measures on any person responsible for serious violations of international humanitarian law’.
22
The Security Council exercises more focused pressure to comply when it focuses on violations of certain elements of humanitarian law. This happens, for example, when the Council deplores violations of humanitarian law, ‘particularly discrimination against women and girls’,
23
or when it reaffirms certain rules, such as ‘the obligation of all parties involved in an armed conflict to comply fully with the rules and principles of international law applicable to them related to the protection of humanitarian personnel and United Nations and its associated personnel, in particular international humanitarian law’.
24
Other examples concern calls by the Council ‘to allow full unimpeded access by humanitarian personnel to all people in need of assistance’,
25
‘to refrain from any violence against civilians’,
26
‘to refrain from acts of reprisal’,
27
to refrain from the use of child soldiers’,
28
to ‘refrain from forcible relocation of civilians’,
29
or not to undertake demolitions of homes contrary to the law’.
30
Another way of exercising even more focused pressure to comply is the invocation of certain international conventions, such as the call on all parties to the conflict in the Democratic Republic of the Congo to protect human rights and respect international humanitarian law and the Convention on the Prevention and Punishment of the Crime of Genocide of 1948’.
31
It is rare, however, that the Council refers to specific provisions, such as when it
[e]mphasizes the responsibility of States to end impunity and to prosecute those responsible for genocide, crimes against humanity and serious violations of international humanitarian law, affirms the possibility, to this end, of using the International Fact-Finding Commission established by Article 90 of the First Additional Protocol to the Geneva Conventions,
32
or when it notes that under the provisions of Article 55 of the Fourth Geneva Convention…, the Occupying Power has the duty of ensuring the food and medical supplies of the population.’
33
Another form of a more focused pressure to comply is the reference to specific acts or persons. Thus, the Council can call upon the Polisario Front to release without further delay all remaining prisoners of war in compliance with international humanitarian law’,
34
or assert that it ‘[w]elcomes the release of 101 Moroccan prisoners of war’.
35
The Council ‘[e]mphasizes again the need to bring to justice those responsible for the serious violations of human rights and international humanitarian law that have taken place in Côte d’Ivoire since 19 September 2002’,
36
or addresses a certain government.
37
A very specific resolution concerns the Congo in which the Council
Condemns the massacres and other systematic violations of International Humanitarian Law and human rights perpetrated in the Democratic Republic of the Congo, in particular sexual violence…as a tool of warfare…perpetrated in the Ituri area by the Mouvement de Liberation du Congo (MLC) and the Rassemblement Congolais pour la Démocracie/National (RCD/N) troops,…Stresses that the military officers whose names are mentioned in the report of the United Nations High Commissioner for Human Rights in connection with serious violations of international humanitarian law and human rights should be brought to justice through further investigation, and if warranted by that investigation, held accountable through a credible judicial process;
Calls upon the Congolese parties, when selecting individuals for key posts in the transitional government, to take into account the commitment and record of those individuals with regard to respect for International Humanitarian Law and human rights and the promotion of the well-being of all the Congolese;…Reiterates that all parties claiming a role in the future of the Democratic Republic of the Congo must demonstrate their respect for human rights, International Humanitarian Law.
38
This resolution is rather exceptional in so far as it not only addresses specific violations by referring to the time and place of their commission, but also by referring to individual persons who are allegedly responsible for such violations and should be brought to justice.
39
Somewhat similar cases are those in which the Security Council refers to reports by the Secretary-General, and, for example, ‘[e]xpresses its serious concern at the evidence UNAMSIL has found of human rights abuses and breaches of humanitarian law set out in paragraphs 38 to 40 of the Secretary-General’s report…, [and] encourages…further assessment…’,
40
or ‘deplores all violations of human rights and international humanitarian law which have occurred in Sierra Leone during the recent escalation of violence as referred to in paragraphs 21 to 28 of the report of the Secretary-General, including the recruitment of children as soldiers’.
41
It must be emphasized, however, that such referrals to specific situations or even to individual persons in combination with specific norms are the exception. Mostly the Security Council speaks in broader terms.
Another important technique by which the Council seeks to achieve implementation of humanitarian law is through the adoption of resolutions that provide for institutional measures, and in particular for the investigation of violations of humanitarian law. Apart from the one referral so far of a situation to the International Criminal Court,
42
and the rare imposition of sanctions specifically for violations of international humanitarian law,
43
this is mostly done by way of mandating the Secretary-General and peacekeeping missions. The Secretary-General is naturally one of the most frequent addressees of Security Council resolutions, for example when the Council
[r]equests the Secretary-General to increase the number of personnel in MONUC’s human rights component to assist and enhance, in accordance with its current mandate, the capacity of the Congolese parties to investigate all the serious violations of international humanitarian law and human rights perpetrated on the territory of the Democratic Republic of the Congo.
44
The Secretary-General is often requested to submit reports or other information, for example, to submit …his next report on the protection of civilians in armed conflict’ and to include in this report any additional recommendations on ways the Council and other Organs of the United Nations…could further improve the protection of civilians in situations of armed conflict’,
45
or ‘to refer to the Council information and analyses from within the United Nations system on cases of serious violations of international law, including international humanitarian law and human rights law’.
46
Other resolutions ask the Secretary-General ‘to respond, as appropriate, to requests from African States…for advice and technical assistance in the implementation of international refugee, human rights and humanitarian law…including through appropriate training programmes and seminars’,
47
or to continue to ensure that training gives due emphasis to international refugee, human rights and humanitarian law’.
48
The Security Council further ‘[e]ncourages the Secretary-General to continue his efforts to despatch a mission to Afghanistan to investigate numerous reports of grave breaches and serious violations of international humanitarian law in that country, in particular mass killings and mass graves of prisoners of war and civilians and the destruction of religious sites’,
49
and supports his ‘proposal…to establish within UNSMA …a civil affairs unit with the primary objective of monitoring the situation, promoting respect for minimum humanitarian standards and deterring massive and systematic violations of human rights and humanitarian law in the future’.
50
Some resolutions address peacekeeping missions more generally,
51
although they are ultimately also addressed to the Secretary-General. The Council, for example, ‘indicates its willingness, when authorizing missions, to consider…steps in response to media broadcasts inciting genocide, crimes against humanity and serious violations of international humanitarian law’;
52
and affirms:
that, where appropriate, United Nations peacekeeping missions should include a massmedia component that can disseminate information about international humanitarian law and human rights law, including peace education and children’s protection, while also giving objective information about the activities of the United Nations, and further affirms that, where appropriate, regional peacekeeping operations should be encouraged to include such mass-media components.
53
Such resolutions can include decisions on the establishment of further institutions, for example by expressing Council support for the establishment of a civil affairs unit for the monitoring and promotion of the observance of humanitarian law,
54
or of institutions, such as ‘UNOMSIL…with the…mandate:…(c) To assist in monitoring respect for international humanitarian law’,
55
UNOMIL with the mandate to, inter alia, report on any major violations of international humanitarian law to the Secretary-General’
56
or MINUSTAH in order to collaborate with the High Commissioner for Human Rights,
57
or supporting the establishment of a Truth Commission.
58
Since UN forces do not have a general duty to take action against violations of international humanitarian law,
59
it is significant that such measures are at least sometimes included in their mandate.
DJUDICATION OR
C
LARIFICATION OF THE
L
AW
The adjudicatory function of the Council is represented by those resolutions which apply and/or interpret the law in relation to a particular set of facts. Such resolutions can be divided into three groups: the first group concerns cases in which the Council explicitly applies norms to specific facts; the second concerns general determinations of the applicability of humanitarian law with respect to certain conflicts, the third relates to more abstract interpretations of substantive provisions of this law in the light of a particular set of facts.
So far, the Council has not ventured to make conclusive adjudicatory determinations, except of course by way of creating independent criminal tribunals which would then make such determinations. It should be noted, however, that certain forms of focused pressure to comply, as they have been described above, simultaneously contain applications of norms to facts. The clearest cases are those in which sanctions are imposed for violations of international humanitarian law on specific individuals, or on members of a group of persons who are to be identified by a UN sanctions committee. The sanctions against the Taliban and al-Qaeda under Resolution 1267
60
are the best-known instances of this technique, but it has also been used in other contexts.
61
But the adjudicatory function is also exercised when the Council calls ‘upon the Polisario Front to release without further delay all remaining prisoners of war’,
62
or ‘[e]mphasizes again the need to bring to justice those responsible for the serious violations of human rights and international humanitarian law that have taken place in Côte d’Ivoire since 19 September 2002’.
63
The same is true, a fortiori, for resolutions which address specific violations not only by referring to the time and place of their committal, but also by referring to individual persons who are allegedly responsible for such violations and should be brought to justice.
64
Conversely, the Council occasionally determines that certain activities have been in compliance with international humanitarian law.
65