The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (96 page)

Turning to the remaining interventions, the story is more mixed. In the case of northern Iraq, Operation Provide Comfort did succeed in saving thousands of Kurdish refugees by bringing them down from the mountains and into safe havens. However, it is important to reiterate that this was a victory for Western forces, and not a UN-mandated mission. Moreover, it is clear that the legitimacy of the rescue effort rested on the very fact that it was to be temporary, and not followed up by such further and more explicit encroachments on Iraqi sovereignty as would have been required to bring about lasting security. In the case of Somalia, the UN-mandated Operation Restore Hope was effective in providing food to over a million Somalis, thereby contributing to the end of the famine by 1994. But some analysts have questioned whether starvation was the most pressing problem when UNITAF entered the country,
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while others believe the mission involved too much collusion with the warlords.
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It is easier to reach a definitive conclusion on the subsequent mission, UNOSOM II, which was weaker in terms of both military strength and Somali support. It is questionable, as noted above, whether the troops in this united force could
ever
have achieved the ambitious objectives set out by the Security Council in Resolution 814, which included political reconciliation – particularly once the Council sanctioned the arrest of Aidid and compromised UNOSOM’s neutrality. But it is crucial to note that the Security Council itself lost control of the mission it had mandated. As the Commission of Inquiry established by the Council concluded in 1994, many of the major operations undertaken under the UN flag in Somalia ‘were totally outside the command and control of the United Nations’.
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The above review of a decade of Security Council practice has shown that the record of the Council in responding to humanitarian crises within the jurisdiction of member states is an uneven one. Moreover, the attitude of states towards the legitimacy of intervention has varied widely. Given this variation, some scholars and practitioners have suggested that the Council needs general rules or criteria to assist it in determining whether, when, and how to intervene in situations where massive human rights violations are occurring. The advocates of this position (which include former Prime Minister Tony Blair
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and former Australian Foreign Minister Gareth Evans
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) have argued that such a checklist would help to establish a robust culture of justification that would both prevent illegitimate interventions and enable quicker action in conscience-shocking situations.

In fact, the question of whether the Security Council should be guided by clearer criteria in its decision-making with respect to humanitarian intervention is not new. Following the brutal treatment of the Ibo tribe by Nigerian troops in 1967 during the conflict over secession for Biafra, two American legal scholars petitioned the UN to adopt a ‘Protocol of Procedure for Humanitarian Intervention’, to be drafted by the International Law Association.
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But the campaign in favour of establishing guidelines for the use of force was given greater impetus following the controversy over both Rwanda and Kosovo and the 2001 ICISS report.
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The issue of criteria was also addressed by the High-level Panel of experts chosen by Kofi Annan in September 2003 to address the growing tensions in the UN’s management of international security. The panel’s final report,
A More Secure World,
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adopts the approach of ICISS in listing five criteria for the Security Council to use in determining whether military action in response to a security threat would be considered legitimate: seriousness of the threat; proper purpose; last resort; proportional means; and the balance of consequences (i.e. that force cannot be justified if it is likely to make matters worse). These recommendations were echoed by Kofi Annaninhis March 2005 document,
In Larger Freedom,
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which called on the Security Council to adopt a resolution setting out the five criteria listed above and to express its intention to be guided by them when deciding to authorize or mandate the use of force. ‘By undertaking to make the case for military action in this way’, reads paragraph 126, ‘the Council would add transparency to its deliberations and make its decisions more likely to be respected, by both Governments and world public opinion.’

The question of whether codifying criteria would actually enhance decision-making by the Council with respect to humanitarian intervention has been analysed by scholars elsewhere.
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The point to highlight here is that the United States (along with some other P5 members) has never been enthusiastic about the proposal. During the 2004 US Presidential election, candidates Bush and Kerry raised concerns about any measures that might tie US hands in advance, thereby compromising the sovereign right of the US to decide when to go to war. It also remains unclear how the Council would operationalize abstract guidelines in the context of chaotic and rapidly changing humanitarian crises. In light of these objections, state representatives failed to endorse the Secretary-General’s set of criteria for the use of force at the UN Summit of World Leaders, held in September 2005.

The diplomatic lobbying on behalf of the ‘responsibility to protect’ fared somewhat better, as delegates to the summit included the principle in its Outcome Document.
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The key clause, Article 139, states:

However, there are two main ways in which this text weakens earlier formulations of the international responsibility to protect. First, whereas the ICISS report suggests that responsibility for protecting citizens would transfer to the international community if a host state proved itself ‘unable or unwilling’ to act, the Outcome Document replaces this with the stronger hurdle of ‘manifest failure’
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Moreover, Article 139’s articulation of the responsibility to protect is preceded by Article 138, which declares that individual sovereign states still bear the
primary
responsibility to protect their population from atrocities such as war crimes or ethnic cleansing. This puts the international community into a ‘fallback’ position, and gives states room to argue about the appropriate basis for moving from the national to the international level. So, for example, those states that in 2004 opposed the application of sanctions against Sudan over the humanitarian catastrophe in Darfur contended that action by international or regional organizations was premature, since it could not be definitively concluded that Sudan had failed to live up to its responsibilities.
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Secondly, while ICISS and the High-level Panel spoke of a collective responsibility on the part of the international community to respond to the slaughter of civilians, the text above places the responsibility in the hands of the Security Council, acting under
Chapter VII
. In other words, no new law has been created; existing collective security mechanisms are to be used. This notion of a ‘UN responsibility to protect’ moves away from the boldness of the ICISS report in terms of its willingness to entertain alternatives, should there be failure by the P5 to agree on military action to address humanitarian crises.

Kofi Annan’s address at the 2005 summit proclaimed that heads of state had, for the first time, accepted ‘clearly and unambiguously’ a collective responsibility to protect civilian populations from genocide, war crimes, ethnic cleansing, and crimes against humanity: ‘Excellencies, you will be pledged to act if another Rwanda looms.’
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This declaratory commitment, however, seemed hollow as the humanitarian catastrophe continued to unfold in Darfur, with hundreds of thousands of civilians displaced by the fighting between government and rebel forces.

From December 2003, when Annan issued a statement warning about the deteriorating situation in Darfur, to May 2004, when the Council issued a Presidential Statement expressing its ‘grave concern,’
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the Security Council refrained from involvement in the crisis. Indeed, because no member of the Council wanted to table the issue of Darfur as an agenda item, the initiative came from the UN Secretariat.
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This reluctance of the Security Council to discuss Darfur was due to two factors: the opposition of the African governments on the Council (Angola, Algeria, and Benin), which argued that action would constitute interference in a member state’s internal affairs; and the concern voiced by other governments that a confrontational approach to the crisis might disrupt peace talks between Khartoum and insurgent groups in southern Sudan. But visits to the region by both Kofi Annan and then-US Secretary of State Colin Powell, combined with a briefing to the Council by the Secretary-General’s Special Representative Jan Pronk, led to the plight of Sudanese refugees and the attacks of pro-government Arab
Janjaweed
militia being elevated on the Security Council’s agenda.

The efforts of the Bush administration to pressure the Council into taking a strong line on Darfur ran into the opposition of China and Russia (along with Non-permanent Member Pakistan), which insisted that Khartoum be given more time to meet its promise to control the militia. On 30 July 2004, the Security Council passed Resolution 1556, condemning the human rights atrocities being committed by the
Janjaweed
against Sudanese civilians and threatening the Government of Sudan with ‘measures as provided for in Article 41 of the Charter’ if it failed to disarm the militia and bring the perpetrators to justice.
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While this Article is normally used to impose economic sanctions, the word ‘sanctions’ did not appear in the resolution – a US concession for those who objected to the Council threatening this step.
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In addition, though there was recognition of a responsibility to protect, there was ambiguity about how that responsibility should be allocated, particularly among the Government of Sudan, the African Union (AU), and the UN.
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At this point, the Council maintained that the primary responsibility for protecting civilians remained with the Sudanese government, and that the AU was the legitimate regional partner to lead in that protection. There were, however, limitations to such as strategy, as the Secretary-General himself noted: ‘It is good that the Council has chosen to work through African institutions,
provided that members do not forget the Council itself retains primary responsibility
for the maintenance of international peace and security…What is happening in the Sudan…is a grave challenge not only to Africa but to all humanity.’
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Even after Colin Powell stated in September 2004 that his government believed genocide had been committed in Sudan, the response of the Security Council remained limited to monitoring the peace agreement, implementing an arms embargo against parties to the civil conflict, and establishing a commission to investigate reports of violations of international humanitarian law.
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Upon receiving the report of the Commission,
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the Security Council took the unprecedented step on 31 March 2005 of referring the Darfur case to the International Criminal Court.
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Resolution 1593 was notable not only because it was the Council’s first referral to the ICC, but also because the US government had continually insisted it would block any Security Council attempt to legitimize the Court. In the end, the US agreed to drop its opposition and abstain during the vote, ‘because of the need of the international community to work together to end the climate of impunity in Sudan.’
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Clearly the ICC reference could not serve as a substitute for more robust measures to end the systematic atrocities being committed against civilians in Darfur. In January 2006, after almost two years of relying upon African-led monitoring and peacekeeping missions, the Secretary-General finally admitted that the AU’s forces had failed to curb the violence and would need to be replaced by a stronger and better financed UN force The Security Council followed suit, by passing a resolution in May 2006 that accelerated plans for a UN peacekeeping mission.
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Resolution 1679 was contingent upon a peace agreement being signed by the Sudanese government and Darfur’s main rebel groups, as well as agreement by the African Union to transfer authority for its 7,300-member force to the UN by the end of September 2006.

In deference to Khartoum’s repeated objections about the presence of Western troops in its territory, the Security Council eventually established an AU/UN Hybrid Operation in Darfur (UNAMID) in July 2007, which would continue to employ a significant number of African personnel. Invoking
Chapter VII
, Resolution 1769 authorized UNAMID to take all necessary action to support the Darfur Peace Process and to protect civilians, without ‘prejudice to the responsibility of the Government of Sudan.’
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