The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (93 page)

This is not to say, however, that the framers of the Charter were unconcerned about human rights violations occurring within member states of the United Nations. With the memory of the holocaust still fresh in diplomats’ minds, representatives argued forcefully that the promotion and protection of human rights had to be one of the core purposes and principles of the new organization.
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This is reflected in the human rights commitments in the Preamble and in Articles 1(2), 1(3), and 55. Moreover, one can interpret the Charter as leaving open the possibility of interventions for humanitarian purposes through Security Council action. As Roberts argues, while Article 2(7) is normally taken as
the
definitive statement of non-intervention in domestic affairs, the final phrase of that same article allows for enforcement actions under
Chapter VII
. This, combined with the provisions of Articles 39 and 42, gives the Council the right to define what constitutes a threat to international peace and security and to decide on the appropriate type of military action – should it deem it to be necessary to counter that threat.
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The Council proved reluctant to engage in an expansive definition of threats for most of the Cold War period. Of the three main instances that most closely resemble ‘humanitarian interventions’ – India in East Pakistan (1971),
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Vietnam in Cambodia (1978), and Tanzania in Uganda (1979) – only the former two were discussed within the Council, and in both cases humanitarian rationales for military action were hotly contested. Nicholas Wheeler concludes that the behaviour and rhetoric of member states during these cases indicate that humanitarian claims were not accepted as a legitimate basis for the use of force in this period.
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The attitude of the UN Secretary-General at the time of the Indian intervention, however, was quite different. U Thant’s attempts to persuade Security Council members to take action foreshadowed future developments in the area of humanitarian intervention, particularly his argument that Pakistan’s internal repression constituted a threat to international peace and security that the Council had a responsibility to address.
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The end of the Cold War brought about a change in the Security Council’s capacity and willingness to manage a series of new threats to international peace and security. This is especially true in cases of grave danger to civilians within the frontiers of UN member states. The cases below, while not an exhaustive treatment of Council practice, discuss the main instances in which force was considered for humanitarian purposes. The chronology reveals that, while the Council initially framed such interventions as ‘exceptional’ measures, and non-precedent setting, by the end of the 1990s it had become more confident in its expanded definition of threats to international peace and security.

Security Council Resolution 688, passed on 5 April 1991 in the aftermath of the UN-authorized use of force against Iraq over Kuwait,
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is often cited as a milestone in the Council’s practice with respect to humanitarian crises, given its interpretation of what constituted a threat to international stability.
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The resolution was designed to address Saddam Hussein’s repression of the Kurdish population in northern Iraq, which led to the flight of up to a million civilians – many into neighbouring Turkey.
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France and Turkey brought the issue of the suffering refugees before the Council, with France arguing that failure to protect the Kurds would damage the ‘political and moral authority’
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of the Council, and Turkey insisting that the movement of so many civilians was affecting regional security. Following the passage of the resolution, the US, in cooperation with the UK and France, sent troops into northern Iraq to provide for the safety of Kurdish refugees and facilitate the delivery of humanitarian assistance.
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In reality, however, the resolution was less revolutionary than it appears, and did not necessarily offer a precedent for future interventions for humanitarian purposes.
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Resolution 688 is striking for two reasons. To begin, it was the first of the Council’s resolutions on the Iraq-Kuwait crisis to recall the contents of Article 2(7). The Council’s deliberations over the resolution indicate that most member states perceived the relevant threat to international peace and security to be the ‘transboundary effects’ of the conflict in Iraq – the flow of refugees across international frontiers – rather than the actual suppression of the Kurds within the borders of Iraq.
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This justification allowed the supporters of Resolution 688 to avoid the seeming contradiction between the Charter’s commitment to non-intervention and its promotion of human rights. As the US representative in the Council put it:

Secondly, as scholars have noted, Resolution 688 gave at best ‘meagre legal cover’ for the extended Western military intervention in Iraq.
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Indeed, it was the first of the Council’s resolutions on Iraq-Kuwait
not
to refer explicitly to
Chapter VII
. While the Security Council appealed to states and NGOs to contribute to humanitarian relief efforts, it did not explicitly authorize an enforcement action – despite US claims that Resolution 688 justified its warning to Iraq that any military activity by Saddam Hussein north of the 36th parallel would be met with force. The rationale for the Western coalition not seeking a specific Council mandate for Operation Provide Comfort is clear: the debate in the Council illustrates that the Soviet Union and China would have vetoed any effort to authorize the use of force in defence of humanitarian assistance or human rights. The strength of these states’ commitment to upholding Article 2(7) of the Charter prevented the Security Council from crossing that significant ‘normative Rubicon’.
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Between 23 January 1992 and 4 November 1994, the Security Council passed seventeen resolutions concerning the breakdown of order and humanitarian crisis in Somalia,
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only one of which was not adopted unanimously. The US-led intervention in Somalia is particularly notable, given it is the first occasion on which the Council authorized military action under
Chapter VII
without the consent of the sovereign government
and
for solely humanitarian reasons.
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The degree of consensus within the Council on the legitimacy of military action by the Unified Task Force (UNITAF) is all the more interesting, in light of the discussion above about member states’ concerns not to contravene Article 2(7) in the case of northern Iraq.

The Council’s attention focused on Somalia relatively late in the crisis, given its preoccupation with the situation in Iraq and the civil war brewing in the former Yugoslavia.
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Its first decision, Resolution 733, made reference to
Chapter VII
and highlighted the conflict’s ‘consequences on stability and peace in the region.’
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While the precise nature of the enforcement mechanisms to be used under
Chapter VII
was not specified, the objectives were limited to the implementation of an arms embargo against the two main warring camps in the Somali conflict, led by Mohamed Farah Aidid and Ali Mahdi. Following the fragile ceasefire signed in March 1992 (facilitated by the UN’s special envoys), the Council members’ primary concern shifted away from the armed factions towards civilians, and the need to ensure that humanitarian assistance reached the population. During the debate over Resolution 746, there was only passing reference to the flow of refugees across borders and a clear indication that member states regarded civilian suffering alone as a justification for a Security Council response.
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The preambular paragraph to the resolution describes the Council as ‘deeply disturbed by the magnitude of human suffering caused by the conflict and concerned that the continuation of the situation in Somalia constitutes a threat to international peace and security.’
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Nonetheless, the Council’s first steps during the spring of 1992 can at best be described as timid, given the scale of the humanitarian crisis: the dispatch of fifty unarmed observers to monitor the ceasefire
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and an agreement in principle to send a small contingent of peacekeepers (with the consent of the warring factions) to facilitate humanitarian assistance. UNOSOM I had little impact, in large part because of the absence of a governing agent in Somalia and the unwillingness of the warlords to honour the ceasefire. While the mission’s mandate and strength were later expanded through Resolution 775 of 28 August 1992, which authorized the deployment of a peacekeeping force of 3,500, there were long delays in implementing this decision, due to the logistical and financial constraints operating on key states that were to make up the force.
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More significantly, there was still no specific mandate permitting the use of force.

The key resolution on the Somali crisis came only at the end of 1992, after the United States made an offer to provide 20,000 troops to address the unfolding humanitarian disaster. In Resolution 794 (which was adopted unanimously), the Council authorized an enforcement mission whose troops would be under US command and control.
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Under paragraph 10, UNITAF (in what became known as Operation Restore Hope) was authorized to ‘use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia’. Moreover, the use of force was justified solely on the basis of the ‘magnitude of the human tragedy caused by the conflict in Somalia’.

While the text of the resolution appeared to alter dramatically the Council’s long-standing interpretation of its roles and responsibilities under Article 39 of the Charter, an analysis of the debate among Security Council members indicates wariness about establishing any new precedent for interference in the domestic affairs of sovereign states on humanitarian grounds. In the words of the Chinese representative: ‘As we understand it, according to the recommendations of the Secretary-General, the military operation authorized by the draft resolution is an exceptional action in view of the unique situation in Somalia.’
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What made the case so unique, diplomats argued, was the lack of a responsible government that could act as an interlocutor at the UN for the purposes of permitting a military action designed to facilitate humanitarian assistance. This made it unnecessary for member states to reference Article 2(7) in the resolution (which they had done in the case of Resolution 688 on northern Iraq). In practical terms, however, the combined efforts of UNITAF and UNOSOM I ‘had established an unprecedented level of UN intervention in a previously sovereign state’.
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The actions taken by the UN, and specifically the Security Council, in response to the overthrow on 30 September 1991 of Jean-Bertrand Aristide (the first democratically elected President of Haiti), constitute another notable change in the Council’s conception of a threat to international peace and security.
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The most significant decision, Resolution 940, was unprecedented in two respects: the United States, for the first time, sought UN authority for the use of force within the Western hemisphere; and the Security Council showed it was prepared to authorize force to unseat one regime and install another within a member state.
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The refusal of the de facto regime to reinstate Aristide, coupled with reports of the persecution of Aristide’s supporters, led to mounting pressure (particularly from the UN Secretary-General) on the Council to take action. On 7 June 1993, the Haitian Ambassador to the UN wrote to the President of the Security Council requesting that the Council make ‘universal and mandatory’ the sanctions that had been established by the Organization of American States in 1991.
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On 16 June 1993, the Council unanimously adopted Resolution 841 under
Chapter VII
, instituting a worldwide fuel and arms embargo on Haiti and freezing the assets of the Haitian state. In passing Resolution 841, the Council had two primary concerns: the current ‘incidence of humanitarian crises, including the mass displacements of population’ and the
potential
increase in Haitian refugees as a threat to regional security, stating ‘that the persistence of this situation contributes to a climate of fear of persecution and economic dislocation which could increase the number of Haitians seeking refuge in neighbouring member states’. These factors led the Council to determine ‘that, in these unique and exceptional circumstances, the continuation of this situation threatens international peace and security in the region’.
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During the debate in the Council, Canada, the United States, France, and Venezuela strongly supported the resolution, whereas Pakistan, China, and Brazil were more sceptical. For the Chinese, the crisis was depicted as ‘essentially a matter which falls within the internal affairs of the country, and therefore should be dealt with by the Haitian people themselves’.
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In the end, however, China did vote in favour of the resolution, and (along with Pakistan and Brazil) voiced two arguments similar to those noted above in relation to Somalia. The first was the ‘unique and exceptional’ character of the situation, specifically identified by the representative of Pakistan as ‘the request by the legitimate government of Haiti that the Security Council make universal and mandatory the measures recommended by OAS’.
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Secondly, China and others argued that the prior action on the part of OAS and the GA had established a framework that ‘warrant[ed] the extraordinary consideration of the matter by the Security Council and the equally extraordinary application of measures provided for in
Chapter VII
’.
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