The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (92 page)

Resolutions which explicitly or implicitly make determinations with respect to the applicability of humanitarian law make up a rather large group. The most important examples are the resolutions concerning the occupied Palestinian territories,
⁶⁶
terrorism,
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ethnic cleansing during the Yugoslav conflict,
⁶⁸
and the Western Sahara conflict.
⁶⁹

The resolutions concerning the occupied Palestinian territories do not merely express general support for the efforts to reach peace:
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they also more specifically address ‘the need for all concerned to ensure the safety of civilians, and to respect the universally accepted norms of international humanitarian law’ in the Jenin refugee camp,
⁷¹
and clarify a long-time contentious question of applicability by stressing ‘the need for respect in all circumstances of…the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949’.
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Since 1999, the Security Council has stressed the need for ‘respect for international humanitarian law and human rights’
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in the fight against terrorism, a demand that has been expressed more specifically in a Declaration by the Security Council at a meeting on the Minister of Foreign Affairs level: ‘States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.’
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However, the Council has, so far, not gone any further and has made no more precise statement as to the scope of application of humanitarian law to the fight against terrorism.
⁷⁵

In resolutions concerning Bosnia and Herzegovina and the Western Sahara the Council, by condemning specific violations of humanitarian law, has clarified the applicability of this body of law to these conflicts. More than once the Council has emphasized that the practice of ethnic cleansing ‘constitutes a clear violation of international humanitarian law and poses a serious threat to the peace effort’.
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Similarly, in resolutions concerning Western Sahara, the parties were called upon ‘to abide by their obligations under international humanitarian law to release without further delay all those held since the start of the conflict’.
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Later, the Security Council more specifically called for the ‘release without further delay [of] all remaining prisoners of war in compliance with international humanitarian law’.
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By using the term ‘prisoner of war’ the Council made it clear that it considered the Geneva Conventions to be the legal regime applicable to the situation.

Other resolutions do not merely invoke but also clarify the substantive content of humanitarian law by dealing with specific questions such as the right of access for humanitarian organizations,
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the possible extent of amnesties,
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the duty to protect refugees
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and attacks against civilians and UN personnel.
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Lately, the Council has even articulated ‘that the governments in the region have a primary responsibility to protect their populations, including from attacks by militias and armed groups’.
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Shortly before the Kosovo intervention by NATO forces, the Security Council by, inter alia, relying on humanitarian law articulated a legal basis, albeit in careful language, for a right of access of humanitarian organizations to the theatre of conflict:

Another example concerns the Yugoslav conflict where the Security Council gave interpretative guidelines concerning the requirements for a fair and objective implementation of an amnesty. The Council urged Croatia

In addition, the Security Council clarified that the law limits the possibilities for extending amnesties in the case of ‘international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’.
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Other resolutions note ‘that the overwhelming majority of internally displaced persons and other vulnerable groups in situations of armed conflict are civilians and, as such, are entitled to the protection afforded to civilians under existing international humanitarian law’,
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or affirm ‘the primary responsibility of States hosting refugees to ensure the security and civilian and humanitarian character of refugee camps and settlements in accordance with international refugee, human rights and humanitarian law.’
⁸⁸

These examples show that the adjudication and/or clarification of specific questions of humanitarian law have become part of Security Council practice. Although they are still the exception, their frequency appears on the increase. Assertions or clarifications concerning the general applicability of humanitarian law form the largest group among them. The interpretation of specific substantive norms takes place only occasionally and does not concentrate on particular areas of humanitarian law. The same is true for instances in which the Council, explicitly or implicitly, applies norms to a particular set of facts.

Since the adoption of Resolution 1373, deciding on measures that member states have to implement to suppress the financing of terrorism, one of the most interesting developments in the practice of the Security Council is resolutions which can be described as having a legislative effect.
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While resolutions which impose new international obligations on all states have not yet been adopted in the area of international humanitarian law, the Council does occasionally make general normative pronouncements, as in Resolution 1674 on the protection of civilians in armed conflict.
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Such resolutions mostly reaffirm the existing body of law and express normative and practical priorities, and are thus good indicators of the general direction in which the normative development is heading. In other resolutions, the Council involves itself in supporting preparatory legislative activities, in hortatory form, as when it expresses its support of ‘the work of the open-ended inter-sessional working group of the Commission on Human Rights on a draft optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict’.
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Another example is the recommendation ‘that the subject matter jurisdiction of the special court should include notably…crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under relevant Sierra Leonean law’.
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Whereas a certain movement towards more explicit legislative Security Council resolutions can be observed in other areas,
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such resolutions do not yet seem to play a role in the context of humanitarian law.

The Security Council mostly reaffirms the body of humanitarian law in general terms. It is cautious not to appear to legislate or to change existing law. The Council still follows the example it gave while establishing the International Tribunals for the Former Yugoslavia and Rwanda
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when it was careful not to alter the substantive law the tribunals would have to apply.
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A certain number of resolutions clarify the law by adjudicative interpretation, but this mostly concerns rather general and uncontroversial questions. The Council does not pretend to act as a judicial organ and rarely addresses specific legal questions.
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In that respect the Council still follows its practice at the time of the establishment of the ICTY when it left the question to the judgment of the tribunal itself whether the conflict in Bosnia-Herzegovina was of an internal or an international character.
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Concerning its legislative function, the policy of the Council seems to be restricted to propelling new factors, such as sexual violence, into the discussion of humanitarian law.
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Theoretically, the Security Council has a large potential to act legislatively: when acting under
Chapter VII
of the UN Charter, the Council can theoretically suspend the treaty law which exists under or alongside the Charter. Nevertheless, the Security Council is only at the beginning of a practice of overriding international law
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and it is rather unlikely that such a practice would affect international humanitarian law very much. This is because a significant part of international humanitarian law is not simply treaty law, but belongs to customary law and even to
ius cogens.

Thus, ultimately, the Security Council’s focus is still very much on the implementation of humanitarian law. It draws attention to particular events, regions, and forms of violations and it predetermines judicial assessments by denoting manifest violations. Additionally, the Council is engaged in institution-building and is mainstreaming certain issues in a way that cannot be described as merely hortatory. While the reaffirmation of the law and the denunciation of its violation are important functions of the Council, increasing emphasis lies on institutional mechanisms for enforcing international humanitarian law, such as sanctions, peacekeeping missions, and demands for implementation by states and by international agencies. The frequency and occasional specificity with which the Council invokes, applies, and interprets international humanitarian law now make it, together with the ICRC, the major intergovernmental institution acting in this field.

If the preceding description and analysis is correct and representative of Security Council practice, Roberts and Guelff’s observation cited at the beginning of this chapter can be somewhat substantiated. While the Council has by now reaffirmed the application of international humanitarian law, in whole and in part, to particular events and conflicts, it is, on the one hand, still rather reluctant to define the content of the law. On the other hand, it has increasingly developed new mechanisms and techniques to stress and implement the responsibility of individuals and states.

JENNIFER M. WELSH
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A
MONG
the many ways the UN Security Council has implemented its special responsibility for managing international peace and security, one of the most controversial is its authorization of the use of force for humanitarian purposes. This chapter examines Council practice in this area – often referred to as ‘humanitarian intervention’
¹
– focusing mainly on the post-Cold War period. Excluded from the analysis are military actions which may have had a humanitarian component (for example, NATO’s actions in Bosnia), but which had other guiding objectives. In analysing interventions with a humanitarian purpose, I argue that while the Council initially was reluctant to authorize force in circumstances involving the mistreatment of a state’s civilians, it has gradually asserted its competence through an expanded definition of what constitutes a threat to international peace and security. It has also committed itself in principle, through four resolutions, to improving the physical and legal protection of civilians in situations of armed conflict. Nonetheless, the Council has often proven unwilling to give its authorization for military action when the consent of the target country is clearly absent. This reluctance has led to sharp criticism of the United Nations in general, and the Security Council in particular, most notably in the ongoing case of crimes against humanity in the Darfur region of Sudan.

The UN Charter is silent on the question of whether states can use military force to address a humanitarian crisis occurring within the sovereign jurisdiction of another member state of the UN. As others in this volume have noted, the two main exceptions to the Charter’s prohibition on the use of force in Article 2(4) are military actions deemed to be in self-defence (Article 51) or actions authorized by the Security Council under
Chapter VII
. This framework for the use of force reflects the purpose of the treaty signed in 1945. By consulting the
travaux préparatoires
for the Charter, one finds a strong commitment to delegitimizing acts of war outside the context of self-defence, and to transferring authorization for the use of force to the Council.
²
Part of the explanation for the unwillingness to endorse widespread powers of intervention, as Adam Roberts has noted, was ‘a natural concern not to frighten off the very entities, namely states, of which the UN was to be formed’.
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