The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (97 page)

The UN force was mandated to incorporate the troops from the AU already in the field, solicit contributions from other states, and eventually assume full authority for the mission on 31 December 2007. On the last day of 2007, at a ceremony marking the transfer of control over the mission from the AU to the UN, Secretary-General Ban Ki Moon was still emphasizing the critical gaps in resources that would hinder UNAMID’s effectiveness, and called on member states to provide personnel, helicopters, and heavy transport equipment. At the time of writing, only 9,000 of the roughly 20,000 promised blue helmets were on the ground in Darfur.

The period from May 2006 to January 2008 illustrates clearly how the Security Council’s increased willingness to authorize force for humanitarian purposes is still confronted with two obstacles. The first is the UN’s limited capacity to assemble the necessary troops from member states. Even if the Security Council overcomes objections to the legitimacy of acting within the domestic jurisdiction of a member state, its authorization to use force has not always been followed by a quick mobilization of forces. The unwillingness on the part of key states to take part in such missions was clearly a problem in the critical phase of the Rwandan genocide, and is an ongoing problem in the case of Darfur. It also highlights that when blame is directed at the UN for ‘failing to act’, the dereliction of duty is as much that of the member states as it is of the Security Council.

The second ongoing challenge facing the Council as it engages in interventions for humanitarian purposes is the question of consent from the government of the state in question. Action mandated under
Chapter VII
of the Charter does not depend on the consent of the target state; however, the Security Council has at times sought to gain an explicit invitation for reasons of either pragmatism (the host government’s consent can make a military operation easier to carry out) or principle (consent is viewed by many states, including China, as an expression of sovereign equality). In the cases of Haiti, Kosovo, and East Timor, consent of the host government was critical in securing the agreement of key members of the Council to UN involvement. But closer analysis reveals that such consent was in many ways coerced, thereby raising questions about both the necessity of this precondition for action and the process for legitimating Security Council decisions.

When the Council passed Resolution 1706 in August 2006 to expand the UN mission in Sudan to cover Darfur, it ‘invited’ but did not require the consent of the Sudanese government. Instead, it relied on the principles contained in previous resolutions on the ‘Protection of Civilians in Armed Conflict’ as justification for its action. Yet, in practice, member states proved reluctant to endorse or participate in a mission that did not enjoy Khartoum’s permission. During the autumn of 2006, the Government of Sudan continued to raise serious objections to the Council’s plans, claiming that the AU had no right to transfer its peacekeeping mission to the United Nations. As a result of the continuing intransigence of the Government of Sudan, objections to strong action from key states (such as Russia and China), and the inability of those who favoured action to commit ‘hard’ resources, the Security Council’s efforts to address this particular humanitarian crisis were delayed and compromised, casting a shadow over its professed commitment to intervene, where warranted, for the protection of civilians.

RICHARD CAPLAN

T
HE
end of the Cold War has witnessed the re-emergence of international territorial administration as an instrument of conflict management. In a manner reminiscent of such bygone institutions as the International Control Commission for Albania (1913–14) and the League of Nations administrations of the Saar Basin (1920–35), the Free City of Danzig (1920–39) and the Colombian town and district of Leticia (1933–4), international organizations have assumed extensive administrative control over war-torn and contested territories during the past fifteen years. In Eastern Slavonia, Bosnia and Herzegovina, Kosovo, and East Timor, these organizations have exercised authority so far-reaching that they have become, in effect, surrogate sovereign authorities pending the implementation of a negotiated peace agreement and/or the establishment of a self-sustaining peace.

The United Nations has played a prominent role in the administration of these territories. It is not, however, an entirely unprecedented role for the organization. In the Congo, between 1960 and 1964, the UN exercised various administrative prerogatives, while in West New Guinea (Indonesia) between 1962 and 1963, the UN possessed plenary administrative authority. Plans for UN-administered territorial regimes were also drawn up for Jerusalem (1947), Trieste (1947), and South West Africa/Namibia (1967), although these plans were never realized. The purposes for which these territorial administrations were envisioned have varied but they have all been characterized by temporary UN control of the principal governance functions of the state or territory in question.

Numerous UN organs and agencies have participated in the administration of these territories. This chapter focuses on the role of the Security Council in particular. The discussion proceeds in two parts. First, there is an examination of the Charter basis for territorial administration in its various guises. There then follows an analysis of the principal functions that the Security Council performs with respect to the administration of war-torn and contested territories specifically.

The UN administration of war-torn and contested territories is not a formal practice or institution. It has no specific UN Charter mandate and there is no dedicated UN bureaucracy to support it even if these operations have attracted considerable human and material resources from within the organization and by its member states. While there is an explicit Charter basis for various kinds of territorial administration, these provisions of the Charter do not extend to sovereign states incapacitated by conflict or to sub-state entities whose status is or has been in dispute – the circumstances in response to which international territorial administrations have been established in the past fifteen years.
¹
Nevertheless, these other operations have some relevance for recent experience and it is useful, therefore, to note them briefly before proceeding to a discussion of the UN administration of war-torn and contested territories.

There is an explicit Charter basis for three (or perhaps, more accurately, two-and-a-half) types of territorial administration: the administration of non-self-governing territories, which is the subject of
Chapter XI
of the Charter; the administration of other dependent territories placed under the trusteeship system, which is the subject of
Chapters XII
and
XIII
; and the Allied military occupation of Germany and Japan, which is dealt with in Article 107 of the Charter.

Trust and non-self-governing territories together comprise what are known as ‘dependent territories’. These are colonies, protectorates, mandate territories, and all other territories subject to or integrated into another state without the free decision of the territory or without the status of equal rights within that state.
²
Trust territories differ from non-self-governing territories insofar as the former are administered under the supervision of the UN Trusteeship System, which imposes more exacting reporting requirements on the trustee than on the administering authorities of other dependent territories. Furthermore, trust territories are subject to oversight by the UN Trusteeship Council. The distinction between trust and non-self-governing territories was introduced largely in deference to the United Kingdom (and other colonial powers) who at the end of the Second World War were unwilling to place their colonies under the Trusteeship System.
³
With the ascendance of the right of self-determination and the concomitant decline of the imperial system, the differences between the two types of territories became blurred such that independence – an option once envisioned only for trust territories – would become available to all dependent territories. The independence of Palau in 1994 – the last remaining trust territory – meant that the Trusteeship System effectively ceased to exist.
⁴
(There remain some sixteen non-self-governing territories, however.) There have been calls, as a result, to eliminate the Trusteeship Council. Heads of state and government gathered at the World Summit in September 2005 – the high-level plenary meeting of the 60th Session of the UN General Assembly – proposed deleting
Chapter XIII
(‘The Trusteeship Council’) from the Charter and all references to the Council in
Chapter XII
.
⁵

Both trusteeship and other dependent territorial administrations are associated largely with the decolonization process and not with war, which is the focus of this volume, hence they will not be discussed here at any length.
⁶
A further important distinction between dependent territories and war-torn or contested territories is that the administration of the former has been or is performed by an administering power other than the United Nations – that is, individual members of the United Nations who have assumed such responsibility. However, in a post-colonial age it would be politically unacceptable to entrust responsibility for the administration of a territory to a single state, even if elaborate accountability mechanisms were to be established. Moreover, the costs of administration would likely be too great for any single state to bear. As a result, the function has been performed either by the United Nations or, in the case of Bosnia and Herzegovina, by an ad hoc entity operating with the endorsement of the UN Security Council.
⁷

The third Charter-based territorial administration – the Allied occupation of the enemy states of the Second World War – is only mentioned in the Charter for the purpose essentially of exempting the Allied powers from possible Charter obligations in the course of their occupation and administration of these states, which is why it constitutes the ‘half case’ in the two-and-a-half cases referred to above. Article 107 states: ‘Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Government having responsibility for that action.’ The Charter, in effect, gives ‘negative authorization’ to these particular territorial administrations cum military occupations (and to no others). As with the Trusteeship Council, heads of state and government meeting at the 2005 World Summit called for the removal of references to ‘enemy States’ in the UN Charter (Articles 53 and 77 as well as 107).
⁸

The fourth category of international territorial administration, and the most pertinent in the post-Cold War era, does not have an explicit Charter basis: it is the direct UN administration of war-torn or contested territories. There have been three such administrations established to date in the post-Cold War period: the UN Transitional Administration in Eastern Slavonia, Baranja, and Western Sirmium (UNTAES) from 1996 to 1998; the UN Interim Administration Mission in Kosovo (UNMIK) from 1999 and ongoing; and the UN Transitional Administration in East Timor (UNTAET) from 1999 to 2002.

These administrations have been established for several related reasons. In the case of Eastern Slavonia, a Serb-controlled region of Croatia during the wars of Yugoslav dissolution, the Croatian government and the local Serb leadership agreed to the establishment of an interim UN administration in November 1995 to ‘govern’ the territory and to help implement an agreement between the parties that foresaw the peaceful reintegration of the territory into Croatia within two years.
⁹
The Croatian government threatened to recover the territory using military means, as it had done with other Serb-held regions of the state, and the UN administration made it possible to achieve the restoration of Croatian sovereignty in a manner that helped also to ensure some measure of protection of Serb rights.
¹⁰
In Kosovo, the Albanian-majority province of Serbia, the UN Security Council authorized the establishment of a territorial administration in June 1999 in the wake of the NATO bombing campaign against Yugoslavia in response to Belgrade’s violent repression of the Albanian population – an air assault that prompted the complete withdrawal of the Yugoslav authorities from the province. UNMIK was established to perform basic civilian administrative functions and to promote ‘substantial autonomy and self-government’ pending determination of the final status of the territory.
¹¹
In East Timor in 1999, similarly, UNTAET was given full responsibility for the administration of this former Portuguese and then Indonesian-occupied territory when, following a ‘popular consultation’ that saw the overwhelming majority of East Timorese opt for independence, the Indonesian armed forces and locally organized militia unleashed a devastating wave of violence before withdrawing from the territory. The UN administered East Timor until it achieved independence in May 2002.
¹²

What these three territories have in common is the following: they were all wracked by violent conflict that either created an acute administrative, political and strategic vacuum – as it did in the cases of Kosovo and East Timor – or left local structures intact but where the internal situation was a highly unstable one and the parties sought or at least accepted international assistance in implementing a peace settlement – as was the case in Eastern Slavonia (and the non-UN territorial administration of Bosnia and Herzegovina). The principal purposes of these UN administrations have thus been threefold: to provide transitory administrative services (governance); to promote the development of democratic self-governing institutions (institution and capacity building); and to facilitate either a predetermined political settlement (e.g. reintegration or independence) or a process leading to the specification of an outcome.