The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (152 page)

³⁴
In fact this is precisely what the Secretary-General did in the case of the former Yugoslavia, when he later specified the basis upon which such a decision should be taken: see UN doc. S/1995/444 of 30 May 1995, 16–17.

³⁵
‘Decisions taken at the meeting of the North Atlantic Council on 9th February 1994(1)’, NATO Press Release (94) 15, 9 Feb. 1994.

³⁶
Leurdijk,
The United Nations and NATO in Former Yugoslavia
, 51.

³⁷
Ibid.

³⁸
See, for example, the statement in the Security Council by the representative of the US government: ‘Weapons not under United Nations control may be subject to air strikes. During the 10 days the North Atlantic Treaty Organization (NATO) will also respond, in coordination with the United Nations, to the artillery or mortar ire that has wreaked such havoc in Sarajevo. These decisions are consistent with resolutions approved by the Council. They do not require further Council action. We need to remind ourselves that the decision to initiate air strikes rests in the hands of the Secretary-General, and it was the Council that put it there.’ (UN doc. S/PV.3336 of 14 Feb. 1994, 19.) See also the statements by the representatives of France, the Netherlands, Egypt, Belgium, Norway, Turkey, Afghanistan, Nigeria, and Malaysia (ibid.). Compare, however, the position of the Russian government which stated that the ultimatum was made by an organ which ‘has no authority to take decisions on the substance of a settlement in Bosnia…. A decision on such a request [to use force] must be taken by the Secretary-General after consultation with the members of the Security Council.’ (Letter dated 10 Feb. 1994 from the Permanent Representative of the Russian Federation to the United Nations addressed to the President of the Security Council, UN doc. S/1994/152; see also UN doc. S/PV.3336, 39.)

³⁹
UN doc. S/1994/444 of 14 Apr. 1994, para. 49.

⁴⁰
SC Res. 844 of 18 June 1993. The Council in operative paragraph 4 of Resolution 844 stated that it
‘[r]eaffirms
its decision in paragraph 10 of resolution 836 (1993) on the use of air power, in and around the safe areas, to support UNPROFOR in the performance of its mandate, and
encourages
Member States, acting nationally or through regional organizations or arrangements, to coordinate closely with the Secretary-General in this regard’.

⁴¹
Several states supported this approach: for example, the representative of Tunisia in a statement in the Security Council seemed to adopt the NATO ultimatum as that of the international community. He observed: ‘Today, after the warning issued by NATO, the international community is demonstrating a firm will to put an end to the massacres and to find the ways and means to do so.’ (UN doc. S/PV.3336 (Resumption 2), 161.)

⁴²
UN doc. S/PV.3336 (Resumption 1), 94. See also the statements by the representatives of Canada (UN doc. S/PV.3336 (Resumption 1), 137); and Tunisia (Un doc. S/PV.3336 (Resumption 2), 161).

⁴³
Un doc. S/25939 of 14 June 1993, 4. Similarly, in a NATO Council meeting of 4 Aug. 1993, Canada (together with the UK, Belgium, and France) in particular stressed the need for UN control over events while the US seemed prepared to concede such a UN role only in cases where aircraft were called upon to protect UNPROFOR but not with regard to other uses against Serb targets. (Helmut Freudenschuß, ‘Between Unilateralism and Collective Security: Authorizations of the Use of Force by the UN Security Council’,
European Journal of International Law
, 5/4 (1994), 511.) Freudenschuß states that, ‘[i]n the course of the next few days, the US – under strong pressure from its allies – first conceded that the choice of targets for air strikes must be approved by both NATO and the UN and ultimately agreed that the first such attack required approval by the Secretary-General.’ Leurdijk states that in respect of the NATO ‘ultimatum’ there are the following three possible answers to the question of who would give the order to launch an air operation: ‘1) in the event of an attack or threat of attack against UNPROFOR, the UN Secretary-General had already delegated this power to his representative in former Yugoslavia, who could also ask for close air support from NATO’s CINCSOUTH [Commander-in-Chief of NATO’s Southern Command]; 2) in the event of further artillery or mortar attacks against the civilian population of Sarajevo, CINCSOUTH had received authority from the NAC on 9 Feb. to act at the request of the UN, so that the UN special representative and the UNPROFOR commander could ask him for air strikes; 3) NATO, in coordination with UN Secretary-General Boutros-Ghali, would take decisions regarding the control of heavy weapons after the expiry of the “ultimatum”’. (Leurdijk,
The UN and NATO in Former Yugoslavia
, 55.)

⁴⁴
Moreover, the North Atlantic Council subsequently affirmed in express terms the position that the first use of air power must receive the authorization of the UN Secretary-General: ‘Decisions Taken at the Meeting of the North Atlantic Council on 9th August 1993’, Press Release (93) 52,
Atlantic
News, No. 2547, 26 Aug. 1993.

⁴⁵
See, however, the earlier position of the Russian government that the UN Secretary-General should consult with the Security Council before deciding to authorize the use of force under Resolution 836: Letter from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General, UN doc. S/1994/138 of 8 Feb. 1994.

⁴⁶
The Security Council has also delegated this power to issue decisions that bind Member States to UN subsidiary organs, see, for example, in the case of the UN War Crimes Tribunals: Dan Sarooshi, ‘The Powers of the United Nations International Criminal Tribunals’,
Max Planck Yearbook of United Nations Law
2 (1998), 147–50.

⁴⁷
The UN Secretary-General in a letter to the Secretary-General of NATO dated 18 Apr. 1994 stated: ‘The tragic events which are currently taking place in Gorazde demonstrate the need for the North Atlantic Council to take a similar decision with respect to the five other safe areas declared by the Security Council, namely the towns of Tuzla, Zepa, Gorazde, Bihac and Srebrenica and their surrounding areas. I should accordingly be grateful if you could take action to obtain, at the earliest possible date, a decision by the North Atlantic Council to authorize the Commander-in-Chief of NATO’s Southern Command to launch air strikes, at the request of the United Nations, against artillery, mortar positions or tanks in or around the above-mentioned safe areas which are determined by UNPROFOR to be responsible for attacks against civilian targets within those areas. The arrangements for the coordination of such air strikes would be elaborated through direct contacts between UNPROFOR Headquarters and NATO’s Southern Command, as has already been done in the case of close air support for the self-defence of United Nations personnel in Bosnia and Herzegovina and air strikes in and around Sarajevo.’ (UN doc. S/1994/466 of 19 Apr. 1994, 2–3.)

⁴⁸
On 22 Apr. 1994 the North Atlantic Council imposed two ‘ultimatums’ in respect of Gorazde. For the details of the first ultimatum, requiring Serb forces to cease fighting in Gorazde, withdraw troops, and allow access for humanitarian aid to the city, see UN doc. S/1994/495 of 22 Apr. 1994, 2–3. Details of the second ultimatum, establishing a military exclusion zone around the city, and threatening action if there were Bosnian Serb troop concentrations or if safe areas would be attacked by heavy weapons are reproduced in UN doc. S/1994/498 of 22 Apr. 1994, 2–3.

⁴⁹
Accordingly, the lawfulness of the NATO ultimatum in respect of Gorazde was expressly affirmed by the following states in the Security Council: Turkey, Sweden, Spain, Rwanda, and New Zealand. See UN doc. S/PV.3367 of 21 Apr. 1994.

⁵⁰
Press Statement on 21 Feb. 1994 by NATO Secretary-General Manfred Worner following expiry of the deadline for withdrawal of heavy weapons from in and around Sarajevo, in
NATO Review
22, Apr. 1994. See also UN doc. S/PV.3344 of 4 Mar. 1994, 4; and Leurdijk,
UN and NATO in Former Yugoslavia
, 55–6.

⁵¹
UN doc. S/1994/134 of 8 Feb. 1994. See also the statement by the representative of Jordan in the Security Council: UN doc. S/PV.3336 (Resumption 2), 155.

⁵²
Nonetheless, there were additional air strikes carried out by UN Member States acting through NATO in coordination with the UN Secretary-General’s Special Representative. As the Secretary-General stated on 24 May 1995: ‘the use of air power was authorized not only for the defence of UNPROFOR personnel but also to deter attacks on the safe areas. UNPROFOR has requested NATO to use its air power on nine occasions when my Special Representative has deemed such action necessary and appropriate. In all cases air power was used against Bosnian Serb targets or targets in Serb-controlled parts of Croatia that had been operating in support of the Bosnian Serbs. On 12 Mar. 1994, close air support was requested when UNPROFOR troops came under ire near Bihac but was not implemented because of bad weather. On 10 and 11 Apr. 1994, close air support was provided near Gorazde… On 5 Aug. 1994, air strikes were made against targets in the Sarajevo exclusion zone. On 22 Sep. 1994, an air strike was made near Sarajevo following an attack on an UNPROFOR armoured car. On 21 and 23 Nov. 1994, air strikes were made against Udbina airfield in Croatia, which had been used to launch air attacks in the Bihac safe area, and against surface-to-air missiles in western Bosnia and Herzegovina and in the Krajina region of Croatia that had threatened NATO aircraft’ (UN doc. S/1995/444 of 30 May 1995, 16–17).

⁵³
Statement by NATO Secretary-General, NATO Press Release (95) 73, 30 Aug. 1995.

⁵⁴
Ibid.

⁵⁵
Ibid.

⁵⁶
As contained in Statement by NATO Secretary-General, Sep. 1995, NATO Press Release (95) 79.

⁵⁷
UN Press Release DH1969, 31 Aug. 1995.

⁵⁸
UN doc. S/PV.3575 of 8 Sep. 1995, 3.

⁵⁹
See also, in the context of Operation Deliberate Force, the following supportive statements by states in the Security Council: the United Kingdom, United States, Nigeria, Indonesia, Italy, and Turkey, in UN doc. S/PV.3575 of 8 Sep. 1995.

⁶⁰
UN Press Release DH/1971, 5 Sep. 1995.

⁶¹
Joint Statement by General Janvier and Admiral Smith, NATO Press Release (95) 43, 21 Sep. 1995.

⁶²
Both IFOR and SFOR were authorized by UN Security Council resolutions but were not under the direct control of the UN. On these forces, see, for example, D. Sarooshi,
The United Nations and the Development of Collective Security
(Oxford: Oxford University Press, 1999) 382–95 and citations contained therein.

⁶³
There is also the very important case here of Somalia where the UN Secretary-General, through his Special Representative, sought to carry out military enforcement action using UN troops (UNO-SOM II) with extremely problematic consequences: see Sarooshi, ibid., 263–9.

⁶⁴
This is the view of Simma, who finds that the NATO action in Kosovo is unlawful, although he does find that in the circumstances it may, however, have been at least on moral grounds a justifiable violation of the law: B. Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’,
European Journal of International Law
10/1 (1999), 1–22.

⁶⁵
Only three states voted in favour of this draft resolution in the Security Council: Russia, China, and Namibia. For detailed consideration of this draft resolution, see Adam Roberts, ‘The So-Called “Right” of Humanitarian Intervention’,
Yearbook of International Humanitarian Law
3 (2000) (The Hague: T.M.C. Asser Press, 2002), 28.

⁶⁶
For contrasting views on this highly contentious doctrine of humanitarian intervention in international law more generally see, Christopher Greenwood, ‘Humanitarian Intervention: The Case of Kosovo’,
Finnish Yearbook of International Law
(1999), 141–75; Roberts, ‘The So-Called “Right” of Humanitarian Intervention’, 28; Sarooshi, ‘Humanitarian Intervention and Humanitarian Assistance: Law and Practice’; Robert Jennings and Arthur Watts (eds.),
Oppenheim’s International Law
, vol. 1 (London: Pearson, 1996), 440–4; Fernando Tesón, ‘Collective Humanitarian Intervention’,
Michigan Journal of International Law
17, no. 2 (1996), 323–72 ; Richard Falk, ‘The Complexities of Humanitarian Intervention: A New World Order Challenge’,
Michigan Journal of International Law
17, no. 2 (1996), 491–515; Yogesh Tyagi, ‘The Concept of Humanitarian Intervention Revisited’,
Michigan Journal of International Law
16, no. 3 (1995), 883–910; Nigel Rodley (ed.),
To Loose the Bands of Wickedness: International Intervention in Defense of Human Rights
(London: Brasseys, 1992); Nigel Rodley, ‘Human Rights and Humanitarian Intervention: The Case Law of the World Court’,
International and Comparative Law Quarterly
38, no. 2 (1989), 321–33; and Richard Lillich (ed.),
Humanitarian Intervention and the United Nations
(Charlottesville: University Press of Virginia, 1973).

⁶⁷
Christopher Greenwood,
Economist
, 3 Apr. 1999, 20.

⁶⁸
It is well settled in the practice of the Security Council that it can otherwise deal with human rights issues and delegate its
Chapter VII
powers to states to take action to deal with such issues.

⁶⁹
Moreover, if the Council were subsequently to become involved with a humanitarian intervention action which had already commenced, by, for example, authorizing states acting individually or through a regional arrangement to carry out a delegated mandate, then the objectives stipulated by the Council would, by operation of law, prevail over any contrary objectives which States or a regional arrangement had up until that time been pursuing. This is due to the effect of Article 103 of the Charter.