Authors: Adam Roberts,Vaughan Lowe,Jennifer Welsh,Dominik Zaum
The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (43 page)
In order to streamline decision-making within the United Nations chain of command … [a]s regards close air support to defend United Nations peace-keepers, my Special Representative has today delegated the necessary authority to the Force Commander, who is authorized to delegate it further to the Commander of the United Nations Protection Force (UNPROFOR) when operational circumstances so require…. I should like to stress that the above measures are all being taken with a view to implementing existing Security Council resolutions, in particular resolution 836 (1993), and are consistent with that resolution.
32
This change in the command arrangements reflected the extreme dissatisfaction with the ‘dual-key’ arrangements and its failings as shown in the case of Srebrenica, and in effect led to the transfer of command of military force away from the UN (specifically the Secretary-General and his Special Representative for the former Yugoslavia) and towards NATO.
There was some concern expressed that there was as a result of such a delegation no UN civilian involved in the chain of UN decision-making to ask NATO for close air support, and that this was not a desirable situation. However, such a contention does not take into account two important considerations. First, that the principle of unity of command in military operations is crucial.
33
Secondly, that the Force Commander (including any officer under him with delegated powers) is under the authority and control of the Secretary-General, and as such the Secretary-General can stipulate at any time the principles which the Force Commander should take into account when making a decision to call in military support to defend UN peacekeepers.
34
In the specific case of ‘air strikes’ mandated by Resolution 836, the delegation of power here was taken up by certain member states who chose to act through a regional arrangement, NATO, of which they were all members. There was also, interestingly, a degree of Russian participation in the NATO planning for military action in connection with the UN-declared ‘safe areas’ in Bosnia: a Russian representative was stationed in NATO headquarters and was in constant contact and consultation with the NATO chain of command.
In a NATO Council meeting of 9 February 1994 it was decided to authorize air strikes if Bosnian Serb forces and the Bosnian government did not, within ten days, withdraw or regroup and place under the control of UNPROFOR all heavy weapons located in an exclusion zone, described as ‘an area within 20 kilometres of the centre of Sarajevo’.
35
To ensure the implementation of these measures, NATO members decided that heavy weapons remaining within the operational area at the end of the stated time and not under the control of UNPROFOR would be subject to air strikes carried out in close coordination with the UN Secretary-General. This became known as the ‘Sarajevo ultimatum’.
36
NATO members also agreed to the UN Secretary-General’s request to authorize the Commander-in-Chief of Allied Forces in Southern Europe to launch air strikes against artillery positions from which attacks on civilian targets in Sarajevo originated.
37
Subsequently, the
Bosnian government suggested that a meeting of the Security Council should be called to discuss NATO action. This suggestion was taken up, and the Council subsequently held a meeting on 14 February 1994. The discussion in the Council focused on, inter alia, NATO’s ultimatum to the Serbian forces which were besieging Sarajevo. There was overwhelming support by states for the position that the NATO ultimatum was mandated by Council Resolution 836.
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Similarly, the UN Secretary-General welcomed the NATO ultimatum in respect of Sarajevo, and later relating to Gorazde, as being in accordance with the resolution.
39
Was the imposition of the ultimatum within the scope of the delegated powers? It would seem that the decision to impose the ultimatum is a reasonable interpretation by member states, acting through NATO, of their mandate under Resolution 836 and the later Resolution 844
40
to protect the safe areas. In this way, the NATO ultimatum can be conceived of as an exercise of
Chapter VII
powers on behalf of the international community.
41
The involvement of the UN Secretary-General was of particular importance for many states, since they considered it as a way for the Council to be able to exercise its overall authority and control over the action. As the Norwegian government stated in the Council debates: ‘[i]t is ultimately the responsibility of the Secretary-General to decide on the steps that may be taken, as the overall political authority rests with the United Nations.’
42
In accordance with this approach, the UN
Secretary-General noted in respect of air strikes by NATO, ‘[i]t is of course understood that the first decision to initiate the use of air resources in this context will be taken by the Secretary-General in consultation with the members of the Security Council.’
43
This report – and thus the approach – of the Secretary-General was adopted by the Council in resolution 844. Similarly, in a report dated 2 August 1993, the UN Secretary-General stated that,
the purpose of the use of air power… is to promote the fulfilment of objectives approved by the Security Council…. For this as well as pragmatic reasons, I have consistently taken the position that the first use of air power in the theatre should be initiated by the Secretary-General… In approving the report of the Secretary-General of 14 June 1993 in its Resolution 844, the Security Council has endorsed this approach… It is therefore my understanding that the decision to use air power in Bosnia and Herzegovina pursuant to UN resolutions must continue to rest with the Secretary-General… You may recall that action by NATO to enforce the no-fly zone was subject to specific authorization by the Force Commander of UNPROFOR.
44
The modus operandi for the use of air strikes became known as the ‘dual-key’ approach: whereby both the UN Secretary-General and NATO could initiate a call for air strikes, but the other side must agree for the use of force to go ahead, each side having a power to veto the decision to use force. This authority and control by the UN Secretary-General, being exercised on behalf of the Council, over the use of such military force is an important factor that militates in favour of the lawfulness of the delegation of powers in Resolution 836.
The Members of the Security Council who affirmed the legal basis for the NATO ultimatum were clear also in affirming that the Secretary-General and NATO had the power to decide whether the use of force was required and that no further recourse to the Security Council was necessary.
45
In other words, the UN Secretary-General and member states who were acting through NATO had been delegated a power to issue decisions which bind UN member states, a power of decision which they could back up with the use of military enforcement action, namely air strikes, in the face of noncompliance. The Security Council possesses the power under Article 25 and
Chapter VII
of the Charter to make decisions that impose binding legal obligations on UN member states. The imposition of the NATO ultimatum was in effect an exercise of this power of the Security Council, but through the mechanism of delegation.
46
However, as indicated above, the lawfulness of such delegations of power depend on the Council being able to exercise a sufficient degree of authority and control over the exercise of the delegated powers such that it could decide to change at any time the way in which those powers were being exercised. In this case, we find that the NATO ultimatum is lawful, since the Council exercises this degree of authority and control, through the UN Secretary-General, over the enforcement of the decision.
Moreover, further agreement was sought by the UN Secretary-General from NATO for the carrying out of air strikes for the protection of the other five ‘safe areas’ in Bosnia.
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However, an additional NATO ultimatum to besieging Serb forces was only issued in respect of Gorazde.
48
The legal considerations relating to
the Sarajevo ultimatum apply equally to the imposition by NATO of its ultimatum relating to Gorazde.
49
While the Sarajevo ultimatum was at least successful in securing a partial withdrawal of Serbian heavy weaponry from around Sarajevo by the expiry of the deadline, the Gorazde ultimatum was not so effective with disastrous consequences to civilians in terms of loss of life.
50
It was the opinion of the Government of Bosnia and Herzegovina that the terms of Resolution 836 imposed an obligation on NATO to take the action mandated by the Council. A letter dated 8 February 1994 from the Bosnian representative to the President of the Security Council provides:
Pursuant to resolutions 824 (1993) and 836 (1993), the United Nations Security Council has already adopted the necessary mandate and authority for ‘Member States, acting nationally or through regional arrangements’ to ‘take the necessary measures, including the use of force, in reply to bombardments against the safe areas’. In this context, NATO is obliged to act in accordance with the responsibilities and obligations delegated to it by the United Nations and the member states thereof. In response to the continuing siege of Sarajevo and the unprecedented bombardments of Friday, 4 February and Saturday, 5 February, the member states should have the opportunity to examine and evaluate, in an open debate of the Security Council, what steps have been undertaken or are contemplated by NATO having assumed the authority and responsibilities delegated to it by the United Nations.
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However, the content of any such ‘obligation’ cannot be legal, but is only political. The delegation of
Chapter VII
powers by the Council to a regional arrangement provides a mandate for, but does not require, military enforcement action. Thus it is inaccurate to speak in terms of an obligation, since neither NATO nor in fact UN member states on an individual basis are bound by law to carry out any action.
52
It was not until August 1995 in response to yet another shelling of Sarajevo that an intensive campaign of air strikes was carried out against the Bosnian Serbs to protect the safe areas and force a peace settlement. This campaign was known as Operation Deliberate Force. The NATO Secretary-General announced on 30 August 1995 that NATO military aircraft had commenced attacks on Bosnian Serb military targets in Bosnia.
53
The decision to initiate operations was taken jointly by the UN Force Commander and the NATO Commander-in-Chief, Allied Forces Southern Europe.
54
The declared aim of the operation was to ‘reduce the threat to the Sarajevo Safe Area and to deter further attacks there or on any other Safe Area. We hope that this operation will also demonstrate to the Bosnian Serbs the futility of further military actions and convince all parties of the determination of the Alliance to implement its decisions.’
55
There were conditions specified which the Bosnian Serbs had to fulfil before the air strikes would be terminated. In a letter of 3 September 1995 from General Janvier to the Bosnian Serbs, these were stated to be: ‘the end of attacks by the Bosnian Serbs on Sarajevo or other Safe Areas; the withdrawal of Bosnian Serb heavy weapons from the total exclusion zone around Sarajevo, without delay; complete freedom of movement for UN forces and personnel and NGOs and unrestricted use of Sarajevo airport’.
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There was concern expressed by the Russian representative to the Security Council that these air strikes were not in conformity with Security Council resolutions.
57
Subsequently, the Russian representative criticized the NATO action on, inter alia, the grounds that no consultations had been held with Council Members as to the decision to initiate the use of force.
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However, the delegation of powers to member states in Resolution 836 clearly envisaged the use of force to achieve such objectives as the Secretary-General and member states deemed necessary to protect the Safe Areas.
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The UN Secretary-General fully supported the NATO action.
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As a result of this military action, the Bosnian Serbs agreed to conclude on 14 September 1995 in Belgrade a framework agreement on compliance with NATO’s conditions. Subsequently, the NATO leaders determined that the Bosnian Serbs had complied with their conditions and air strikes were suspended.
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This operation was clearly a case where NATO had accepted a delegation of
Chapter VII
powers from the Security Council and it was successful in achieving its limited objective. However, the problems arising from the ‘dual-key’ procedures
and in particular the perception that the UN’s decision-making was cumbersome and ineffective arguably led to the UN being marginalized in the post-Dayton situation in the former Yugoslavia. From December 1995 the Implementation Force (IFOR), put in Bosnia to implement the Dayton Peace Accords, and its successor from 1996, the Stabilization Force (SFOR), both operated under the authority and subject to the direction and political control of the North Atlantic Council through the NATO chain of command.
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In more recent years the Council has had a less central role in the control of conflict: this seems to have been largely due to disagreement amongst the Permanent Members, but it may also be a result of its experience in the former Yugoslavia.
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Often the disagreement between the Permanent Members is not over the existence of a threat to the peace in a particular case, that is, what community standards will trigger a collective security response and when have these been violated. Instead, the Permanent Members disagree on how to act in responding to these threats, and whether force should be used. This has caused a contraction in the collective security role of the Council. There is the danger here that the Council will become in practice limited to making Article 39 determinations, but decisions to use military force will be taken outside the sphere of the Council.