The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (19 page)

Times change, of course, as do the perceptions, values, and needs of the member states. In launching the ambitious and ill-fated reform exercise that was to dominate his last three years in office, Kofi Annan improbably told the member states in 2003 that ‘we have come to a fork in the road. This may be a moment no less decisive than 1945 itself, when the United Nations was founded.’
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Two years later, he wrote of ‘a new San Francisco moment’.
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Hyperbole aside, the Secretary-General’s efforts to invoke the spirit of the founding conference raise a provocative question: if the member states were to reconvene today to redraft the Charter, would they provide the Council with such a range of tools for maintaining international peace and security or permit it such wide discretion in when and how they are employed? Would they want a more active or tamer Council? Would they entrust any group of member states with the kinds of powers, responsibilities, and flexibility granted to the Big Five in San Francisco? Recent events suggest not. Even an alliance in wartime, with strong and determined leadership, almost denied this leap of faith in 1945. Today, the international system lacks coherence and definition. Mistrust among the member states abounds. Leadership is neither given nor accepted gracefully or gratefully.

In 1999, Kofi Annan had it right when he spoke of the Charter as ‘a living document, whose high principles still define the aspirations of people everywhere for lives of peace, dignity and development’.
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It is a living document, as well, because it gave the Security Council room to adapt to changing circumstances. Like each of the UN’s other principal organs, the Security Council has been slow – very slow – to embrace formal structural change in its composition and decision-making rules. But it has adopted, over the past dozen years, some substantial modifications in its working methods, scope of work, and instruments of persuasion and coercion.
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Though its more sensitive deliberations remain closed to public observation, it has become far more open to a wide range of inputs, whether from member states, the Secretariat, agencies, non-governmental organizations (NGOs), or independent experts. Non-members often participate in its work and that of its twenty-eight subsidiary bodies, including on some of the most sensitive matters on its agenda, such as terrorism, non-proliferation, and humanitarian emergencies, as well as a variety of regional and local issues around the world.
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It frequently undertakes missions to areas of tension and conflict to interact with local actors and to get a better feel for current developments. To many smaller member states, the benefits of further steps toward transparency, accountability, and inclusiveness in the Council’s working methods are far more apparent than those that might be associated with widening the circle of big states on the Council.
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The Council remains, as it was in 1945, undependable, unaccountable, and unrepresentative. None of the reforms proposed over the past sixty years, however, offer any real prospects of fixing any of these core liabilities. Unfortunately, these liabilities come with the territory: a world of sovereign nation states that sometimes summon the will to find common ground and, more rarely still, act on it. But on those rare occasions, as well as on those in which communication among potential adversaries is facilitated, the Council remains a place of hope, a place to do some serious business, and a place few member states would do without, reform or no reform.

CHRISNNE GRAY

T
HE
founders of the UN created an elaborate scheme, a treaty-based system which required states both to impose limits on their own right to resort to force and to depend on a collective response for protection. The aim was, first, to prohibit the unilateral use of force by states other than in self-defence. Article 2(4) expressed this prohibition in wide terms, outlawing the ‘use of force’ rather than ‘war’.
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Secondly, the system aimed to centralize the use of force under the control of the Security Council. Under
Chapter VII
of the UN Charter the Security Council was to act in case of a threat to the peace, breach of the peace, or act of aggression (Article 39). It could take provisional measures (Article 40), measures not involving
the use of force (Article 41), and measures involving the use of force (Article 42). The Security Council was to have its own standing army (under Article 43 agreements with member states) and a Military Staff Committee was to advise and assist in military planning (Article 45–7).
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States retained their right of self-defence, but here too the Security Council was to have a role. Under Article 51: ‘Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.’ The aim was to ensure that the Council was informed about the use of force by states, and that it could then take action where necessary.
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Also, a state’s right to self-defence is only a temporary right ‘until the Security Council has taken measures necessary to maintain international peace and security’.

However, the Charter collective security scheme did not operate as planned. Not surprisingly, the prohibition on the use of force did not stop states from resorting to force; there have been over 100 major conflicts since 1945.
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Nevertheless, there was general agreement among states and commentators that the prohibition on the use of force in Article 2(4) represented customary international law; the fact that there were breaches did not destroy the normative status of the prohibition.
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But the Security Council proved unable to respond effectively to the use of force by states during the Cold War; the veto (and the threat of the veto) by the five Permanent Members obstructed action by the Security Council. The use of force in Czechoslovakia, Hungary, Afghanistan, and Vietnam could not even be put on its agenda. The Security Council was not able to condemn illegal use of force; it was not able to implement
Chapter VII
in the way planned. A standing UN army, that could carry out forcible measures to maintain or restore international peace and security in the case of threats to the peace, breach of the peace, or act of aggression, was never established.

Moreover, the threats to international peace and security which materialized after the foundation of the UN were mostly different in nature from those expressly provided for in the Charter in response to the experience of the Second World War. There were relatively few interstate wars of the type envisaged by Article 2(4) which prohibited the threat or use of force ‘in international relations’. The conflicts in Iran–Iraq, Iraq–Kuwait, the Falklands, between Israel and its neighbours, and
between Eritrea and Ethiopia were exceptional rather than typical. In several cases the characterization of the conflict as international or internal proved problematic, as in Korea, Vietnam, and the former Yugoslavia. In many cases the conflict was complex in nature; in Africa many conflicts such as those in Angola and Mozambique during the Cold War and, more recently, those in Sierra Leone and the Democratic Republic of Congo (DRC) involved a mixture of civil war and international conflict. New threats to international peace and security came from civil wars and from civil wars with outside intervention. The decolonization process also brought divisions between states as to whether national liberation movements had the right to use force in their struggle for self-determination.
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However, the UN system proved sufficiently flexible to allow the Security Council to take forcible measures not expressly provided for in the Charter. Although the Security Council was not able to order the use of force by its own standing army (as provided under Articles 42 and 43), it could ‘authorize’ or ‘call on’ member states to use force. During the Cold War, it did so in the cases of the Korean war and Rhodesia.
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It said that North Korea had made an armed attack on South Korea and that this constituted a breach of the peace. It accordingly recommended member states to furnish assistance to South Korea to repel the armed attack and restore international peace and security.
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In the case of Rhodesia the Security Council authorized the UK to use force to intercept ships on the high seas in order to stop the import of oil by the illegal regime in Southern Rhodesia. In these resolutions the Security Council did not expressly refer to specific articles of the UN Charter, but it did use the language of Article 39. This established the pattern for the future. The precise legal basis for these two early authorizations of force was not specified and there has been much academic speculation on the subject.
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Also, although the Security Council was generally unable to act against aggressor states, it did take other action in the maintenance of international peace and security. The UN created the institution of peacekeeping, even though there was no express basis for peacekeeping operations in the Charter scheme.
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Such UN peacekeeping operations were to be conducted with the consent of the host state, to be impartial in nature, and were not to involve the use of force other than in self-defence. However, these limitations on peacekeeping have been challenged, as in the Congo (1960–4), and later in Bosnia–Herzegovina and Somalia. Since the end of the Cold War the Security Council has been much more active in peacekeeping;
it has often used
Chapter VII
of the UN Charter in creating peacekeeping forces or to authorize them to take robust action. There is an ongoing debate about the proper nature of peacekeeping, but it is fair to say that the main problems facing the UN in this sphere have been in securing adequate resources.

The end of the Cold War meant that the Security Council became more active, not only in peacekeeping, but also in authorizing member state action under
Chapter VII
of the Charter. The Security Council asserted extensive powers to intervene in conflicts by taking a wide interpretation of Article 39; it may act if it determines that there is a threat to the peace, breach of the peace, or act of aggression.
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As during the Cold War, such determinations are often made without express reference to Article 39. Similarly the Security Council has never referred to Article 42, and only occasionally made express reference to Article 41. The Security Council has rarely found an act of aggression, and on the few occasions where it has done so – in the cases of Israel’s attacks on Tunisia, apartheid South Africa, and white minority-rule Southern Rhodesia (now Zimbabwe)
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– it has used the term without express reference to
Chapter VII
. It has determined the existence of a ‘breach of the peace’ in the cases of interstate conflicts: Korea, the Falklands (Malvinas), Iran–Iraq, and the Iraqi invasion of Kuwait. Findings of ‘threat to the peace’ have been much more common, and this has been widely interpreted. The wide use of Article 39 has been crucial in the development of the Security Council’s role, especially after the end of the Cold War. Thus it has found the power to intervene on the basis of a threat to international peace and security where there was a purely civil war, as in Somalia; an overthrow of democracy, as in Haiti; and a collapse of law and order, as in Albania.

Following the precedents of its actions with regard to Korea and Southern Rhodesia, the Security Council has made use of
Chapter VII
to authorize a whole range of forcible actions by member states – acting in ‘coalitions of the willing’, ranging from limited short-term operations to massive long-term interventions.
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The catalyst in this process, seen at the time as heralding a ‘New World Order’, was Security Council Resolution 678 of 29 November 1990. This condemned Iraq for its 1990 invasion of Kuwait; it used the language of Article 39 in finding a breach of the peace, and ‘authorized member states cooperating with the government of Kuwait to use all necessary means’ to secure the withdrawal of Iraq from Kuwait and to restore international peace and security in the area. The US-led Operation Desert Storm drove Iraqi forces from Kuwait, and Iraq was then subjected to an elaborate ceasefire regime under Resolution 687.
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Subsequently many further operations
involving the use of ‘all necessary means’ – now the routine formula for the use of force – have been authorized by the Security Council. It has become clear that such authorizations were not limited to action in collective self-defence as had initially been argued by some commentators with regard to Operation Desert Storm.

A new concern has since emerged, that the Security Council has become
too
active. In contrast to the expression of regret over its inaction during the Cold War, some states and commentators now saw a danger that the Security Council would act illegitimately or even that it would exceed its legal powers. There has been much discussion of possible limitations on the Security Council and of the need to ensure principled decision-making. But a suggestion that the Security Council should adopt five criteria of legitimacy to govern its decision-making on the use of force proved unacceptable to states. The High-level Panel set up by the UN Secretary-General to consider the future of the collective security system recommended that force should be used only if there is a serious threat, for a proper purpose, as a last resort, involving proportional means, and when military force is likely to have better results than inaction.
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But this attempt to increase the objectivity of Security Council decision-making – probably an illusory goal – failed when states at the UN World Summit in 2005 were not willing to adopt the five criteria. Recent attempts to increase the legitimacy of the Security Council by enlarging its membership have also failed.