The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (20 page)

However, there are also some conflicting concerns that the Security Council is being sidelined by its inability to take enforcement action through its own forces and by its reliance on ‘coalitions of the willing’. After Operation Desert Storm (when there was little Security Council control over the operation after the initial authorization) there have been stronger attempts to secure adequate Security Council control over action by ‘coalitions of the willing’. Security Council resolutions authorizing force by member states have called for regular reports, and set time limits on the operations.
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Questions have also been raised over the constitutional relationship between the Security Council and regional organizations under
Chapter VIII
of the Charter, and in particular as to the proper scope of enforcement action by regional organizations under Article 53. The hope has often been expressed that regional and sub-regional organizations such as the African Union and ECOWAS and the Organization of American States will be able to intervene to supplement the work of the UN, when its resources are overstretched.
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The legal implications of this are controversial.
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In some cases such as the Kosovo war in 1999, express authorization of the use of force was not possible because of the opposition of some members of the Security Council. Nevertheless, certain states tried to claim Security Council authority for their use of force: they argued that material breach of previous resolutions could justify the use of force by states to implement the will of the international community, even without an express Security Council authorization.
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This argument has proved extremely controversial. In the case of Iraq those states supporting Operation Iraqi Freedom in 2003 claimed that no new authorization of force by the Security Council was necessary: the original authorization of force against Iraq in Resolution 678 was still in force ten years later and was revived by Iraq’s material violations of the obligations imposed on it under the ceasefire regime of Resolution 687, and under Resolution 1441 of 8 November 2002. This argument was rejected not only by Russia and China, but also by NATO states such as France and Germany.
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Therefore, over the last sixty years the Charter scheme has never been implemented in the manner that a literal reading of the text might suggest. Since the end of the Cold War we have seen the reinvigoration of the Charter scheme, but not as originally planned. In 2005, sixty years after its foundation, the UN Charter system was subjected to a fundamental re-examination; the UN World Summit provided an opportunity to reform the UN to meet the challenges of the twenty-first century. As part of this process, the Charter provisions on collective security and the use of force were reassessed. Deep divisions inside and outside the Security Council over the legality of the war against Iraq in 2003 had provoked talk of a crisis for the UN and questions about the future of collective security. After the invasion, the UN Secretary-General famously spoke of a ‘fork in the road’ for the UN: what was to be the future of the collective security system?
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Could the UN meet the new threats facing the world or did it risk irrelevance as President Bush had threatened?

The Secretary-General accordingly set up a High-level Panel on Threats, Challenges and Change in December 2003 to consider new challenges to international peace and security, to identify the contribution to be made by collective action in response to those challenges, and to recommend changes in the UN system necessary to ensure effective action.
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He subsequently produced his own report,
In Larger Freedom
, in response to the High-level Panel, making proposals for the heads of state and government due to meet at the 2005 World Summit.
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The UN World Summit came to the very striking conclusion that no reform of the Charter provisions on collective security was needed: ‘the relevant provisions of
the Charter are sufficient to address the full range of threats to international peace and security.’
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Despite all the talk of the need for transformation of the collective security system in the face of new threats, there was broad agreement between the High-level Panel, the Secretary-General, and the World Summit that the UN Charter provisions on collective security should not be amended: states should make the existing system work rather than seek a change in the rules. The legal framework of the system has proved flexible enough to survive the transformation of the international scene over the last sixty years.

The basic prohibition on the use of force is set out in Article 2(4) of the UN Charter, but the Security Council only rarely refers to this provision expressly in its resolutions. It does not make express determinations of violations; instead it very occasionally ‘recalls’ Article 2(4) in the preambles to its resolutions.
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The conclusions to be drawn from Security Council resolutions on the interpretation of Article 2(4) are therefore indirect, a matter of inference. If the Security Council condemns a particular use of force, or calls for the withdrawal of troops by a particular state, then it may be inferred in some cases that there has been a breach of Article 2(4). However, such condemnations are comparatively unusual. It is more common for the Security Council to call in general terms for an end to the fighting, the withdrawal of troops by both sides, and for peaceful settlement of a dispute, or for observance of a ceasefire.

In part this is because the Security Council is a political body. It has the primary responsibility for ‘the maintenance of international peace and security’ under Article 24 of the Charter, and thus generally prefers not to condemn, but rather to try to secure a settlement without assigning blame or legal responsibility under Article 2(4). Also the diversity of the language of the Charter helps to explain why the Security Council has not made greater express reference to Article 2(4). The Security Council’s functions with regard to enforcement action are set out in
Chapter VII
. The terminology in this Chapter is different from that used in Articles 2(4) (prohibition of use of force) and 51 (self-defence if an armed attack occurs). The Security Council’s focus is accordingly not primarily on the limitations on the use of force in Article 2(4).

Also, the imposition of measures under Article 41 by the Security Council cannot necessarily be taken as evidence of a violation of Article 2(4). Although the term ‘sanctions’ has often been used to describe Article 41 measures, this can be misleading. Article 41 provides for ‘measures not involving the use of armed force to give effect to [the Security Council’s] decisions’. These are not necessarily punishment for a breach of the law; their aim may be to secure compliance with Security Council requirements. During the Cold War such measures were taken only in the cases of South Africa and Southern Rhodesia; subsequently there has been a significant increase.
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Some are clearly not sanctions, but are designed to stop the escalation of a civil war and are imposed on all parties. Others are taken in response to non-cooperation with UN peace efforts. Thus arms embargoes were imposed on one side in conflicts in Rwanda, Sierra Leone, and Liberia. Some are directed against non-state actors such as UNITA, the Bosnian Serbs, and the Taliban regime in Afghanistan for its failure to surrender Osama Bin Laden. However, measures were ordered against Iraq for its invasion of Kuwait, Libya for its sponsorship of terrorism, and Liberia for its unlawful intervention in Sierra Leone. These may indeed be seen as sanctions for a breach of international law, but no express reference to Article 2(4) is made.

During the Cold War there were unresolved doctrinal disagreements between developed and developing states on Article 2(4), as to whether the prohibition applied only to armed force or whether it also covered economic coercion, and also as to whether force could be used by anti-colonial movements to achieve self-determination. Attempts at law-making on these issues by the General Assembly failed because of fundamental disagreements between states. In the Security Council also no authoritative position on the law could be adopted; its debates reveal the opposing positions of states on this issue.

There were also disagreements about the application of Article 2(4) to intervention in civil wars. There was general agreement on the law, but political differences between states made the application of the legal rules problematic. It was generally agreed that intervention in a conflict serious enough to be characterized as a civil war was legally prohibited, even at the invitation of the government, unless there had been prior outside intervention. But states typically divided over the following questions: Is there a civil war? Which is the true government? Did it invite outside assistance? Was there outside intervention? These divisions meant that the Security Council was not able to pronounce on the legality of, for example, the US invasion of Grenada or the USSR invasion of Afghanistan. Since the end of the Cold War the Security Council has been more willing to pronounce on such issues and often, though not always, to uphold the rights of democratically elected governments.

Just as the Security Council does not commonly pronounce on the interpretation or application of Article 2(4), so, similarly, its resolutions do not make express determinations under Article 51. During the Cold War the Security Council was not in practice able to step in to take over the responsibility of self-defence from an injured state, except in the controversial case of Korea. Moreover, some states failed to report their actions in individual or collective self-defence to the Security Council, as they were required to do by Article 51.
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References to self-defence or to Article 51 in resolutions and statements of the Security Council are rare; they are to be found in regard to the rights of neighbouring states against apartheid-era South Africa, of Kuwait against Iraq, and of the Democratic Republic of Congo against Uganda and Rwanda.

The debates of the Security Council and state practice show agreement on the core right of self-defence against an armed attack, and on the requirements that self-defence be necessary and proportionate,
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but from the time of the foundation of the UN there have been doctrinal divisions between states on the scope of the legal right of self-defence under the Charter, with certain developed states generally taking a wider view and Eastern bloc and developing states arguing for a restrictive interpretation of Article 51. Was the right to self-defence a narrow right, limited to cases where an armed attack had occurred or was there a wider customary law right, preserved by the reference to ‘inherent right’ in Article 51? At first these divisions centred on whether the right to self-defence includes anticipatory action against an imminent attack and the right to use force to protect nationals abroad. Later questions also arose as to whether national liberation movements have a right to use force in self-defence against colonial occupation on the basis that colonialism was aggression. The divisions were apparent in UN debates and in the attempts to legislate on the use of force in General Assembly resolutions.

During the Cold War some academic writers argued for the reinterpretation of Article 2(4) on the basis that the Charter collective security system was not
working. Article 2(4) should therefore be interpreted to allow the use of force to further the aims of the UN. An invasion by one state of another state to rescue nationals or to prevent a humanitarian catastrophe should not be seen as harming the territorial integrity or political independence of a state, nor as contrary to the purposes of the UN. Pro-democratic invasions could be legal under Article 2(4). This restrictive interpretation of the prohibition of the use of force was put forward by the Yale school in the US. However, this doctrine was rarely used by states and met little acceptance in practice.

A similar argument was also made on Article 51: given the non-functioning of the Security Council, states should be allowed to exercise a wide right of self-defence.
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Logically the opposite position is just as persuasive: that exactly because the Charter system was not working it was even more important for states not to resort to force. States remained divided on self-defence; the majority took a narrow view; a few militarily powerful states such as the USA and Israel took a wide view.

But there has been little practice in support of this wide view; states did not often invoke anticipatory self-defence.
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The International Court of Justice has repeatedly avoided a decision on this question.
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Security Council and General Assembly debates showed the divisions between states. And the condemnations of such use of force by the Security Council were agreed on by member states for a variety of reasons. Thus Israel’s pre-emptive attack on Iraq’s nuclear reactor in 1981 was unanimously condemned in the Security Council, but for varying reasons. Some states said that Israel had not exhausted peaceful means; others said that there was no threat; others said that there was no right of pre-emptive self-defence.
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This is typical of the practice of the Security Council and helps to show how the assessment of the legal significance of its resolutions is a complex process.

There have also been divisions on the right to use force to secure self-determination; developing and Eastern bloc states defended this right. Generally the legal basis for this was not specified, but arguments were occasionally made that such use of force was not prohibited by Article 2(4), as that provision applied only to states, or that Article 51 allowed a people with the right of self-determination to use force in self-defence against colonial occupation. The legal division was never resolved; resolutions masked the disagreements; the only agreement possible was that the use of force
against
a people with the right of self-determination was unlawful. This issue is still problematic in the context of the definition of terrorism, with many developing states arguing for a distinction between freedom fighters and terrorists.