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Saanya Vashisth
Jindal Global Law School
"In some cases, the measured use of force is all that protects us from a chaotic world ruled by force"- President Bush[1]
Introduction
Article 2 (4) of the United Nations Charter[2] states that the member states should refrain from use of force against the territorial integrity or the political independence of any state or use of force in a manner that is inconsistent with the goals of United Nations. United Nations Security Council (UNSC), one of the principal organs of the United Nations, must also comply with the established principles of the International Law. This has been stated by the International Court of Justice in the Lockerbie case[3] as well and was further corroborated in the Wall case wherein it was stated that some basic principles of the International Humanitarian Law would be considered as the principles of International Law.[4] This can be seen through the International Court of Justice giving a few principles of the International Humanitarian Law, the status of Jus Cogens which leads to those principles gaining fundamental supremacy and cannot be overridden by other agreements or customary International Law. Thus, we can see that the use of terms by the UNSC should be used in accordance with International Humanitarian Law, and there is a presumption of compliance. This means, when the UNSC adopts resolutions or takes actions, it is assumed that these actions will comply with the principles of International Humanitarian Law, as it is an essential part of international law that the Council is required to follow. Thus, the UNSC has been posed with the determination of use of force and regulating it to observe article 2 (4) of the UN charter.
UNSC Wearing the Regulator's Hat
The role of UNSC has been laid down in significant detail under the Chapter VII of the UN charter. The article 39 under the UN charter[5] chalks out the responsibility of the UNSC to determine any threats relating to the maintenance of peace which can then be averted through the measure adopted by the UNSC. Further, article 41[6] talks about the role of UNSC in deciding alternate measures to the use of armed force to give effect to the decisions taken by the UNSC wherein the UNSC has the authority to “call upon” the member states to apply these measures. These alternate measures, as given under the article, can include the complete or partial interruption of economic relations or the different means of communication. This is a crucial tool to leverage at the behest of UNSC. This can be seen through the use of this tool by the UNSC in the cases of implementation of naval embargoes as a response to the threats posed to the international peace and security under article 41 of the charter. A case in point can be the adoption of the Resolutions 787 & 820 by the UNSC during the Bosnian War wherein the UNSC imposed the arms embargo and economic sanctions which led to the trade restriction of arms and other prohibited goods into the conflict zone which finally led to the negotiation of the Dayton Peace Agreement that led to an end to the conflict between the states.[7]
In addition to this, article 42 of the UN charter[8] states that in case the UNSC deems the measure taken under the article 41 which gives the provision for alternate measures to the use of force in order to maintain the international peace and security, then the UNSC can opt for measures wherein the air, sea or land forces of the UN Members can be deployed for restoring the peace in the region. This article is an extremely important provision through which the UNSC can regulate the use of force. This can be seen through the case of peace engagement mission sent to Somalia in the 1990’s in order to restore and maintain the peace in Mali through the implementation of peace agreement through the use of force is necessary in case necessary.[9] However, the implementation of this article and the manner in which it is implemented defies the goals as given in the UN Charter.
Analysis
This can be seen through the case study of adjudging the UNSC’s Role in regulating the use of force in the case of attack on the Al-Jamahiriya TV station in Libya. Resolution 1773 was adopted in this case which allowed the member states to take necessary actions for the protection of civilians in Libya at the time during the Gaddafi Uprising. putting the resolution in effect, the NATO justified it bombing at a broadcasting station stating that the TV station was a threat to the civilians because it furthered the narrative of the organization which brought article 42 to the forefront. Thus, in this case, the resolution 1773 became the legal basis for the attack by NATO on the broadcasting station. This further shows that the broad mandate given by the UNSC can have unintended consequences wherein the wordings have been broad enough to lead the threshold for the use of force extremely low and lead to question the principles of proportionality and distinction under the Indian Humanitarian Law to be violated.[10]
Another case in point can be the Iraq Invasion wherein the UNSC adopted the resolution 1441 which stated that the Iraq was in “material breach” of its disarmament obligation. This led to Iraq receiving a final opportunity to comply with the previous resolution. In the present case, however, the resolution did not have any provision which talked about the consequences that the state might face in case of continuous non- compliance of its obligation. The allied forces, that is, the US and its allies, invaded Iraq and justified the invasion by arguing that resolution 1441 provided for use of force as these resolutions were cited as the basis for military action under article 42 of the UN charter. This case also shows that the broad-based mandate of UNSC along with the freedom to interpret them in any manner can be a cause for unintended consequences taking place. Further, the inability of the UNSC to firstly, enforce the resolution and then, reach a consensus on the consequences for non-compliance was one of the primary reasons for the US and its allies overstepping the authority of the UNSC.[11]
Conclusion
I believe that the UNSC although plays a pivotal role in regulating use of force, it needs to find balance between maintain rule of law and accountability.[12] The UNSC which aims at achieving the rule of law, needs to implement the rule of law internally within the organization as well. The resolutions adopted by the UNSC should not be as broadly worded and the scope of implementation and interpretation should have a narrow scope. Further, the UNSC, that has been posed to comply with the International Humanitarian Law, increases the responsibility of the UNSC to mandate compliance with principles of International Humanitarian Law. The UNSC, further needs to recalibrate on its provisions for enforcing its resolutions and the consequences for non-compliance. Further, the veto power at times acts as a hurdle in the implementation and enforceability, there should be provisions made to reduce the misuse of that power. One of the solutions for this could, reducing the power imbalance between the United Nations General Council or making a separate distinct council for unblocking the veto votes when necessary.[13] I also believe that keeping the proportionality and distinct principle in mind the country targeting the state under article 42 should also be held liable if necessary. Further, I believe that the bias of nations, which could be coming from their geopolitical interests need to also be taken into consideration while formulating the resolutions rather than having it as the elephant in the room. This would allow the UNSC to follow a more non-partisan and impartial approach. Gauging from all the information mentioned above, I believe while UNSC has been successful, it also has been faced with challenges and been asked questions and in order to answer these questions, the old medicine shall not work for the new ills, there needs to be recalibration and dialogue to make it more effective.
References
[1]“President Bush Discusses Iraq Policy at Whitehall Palace in London” (National Archives and RecordsAdministration)<https://georgewbushwhitehouse.archives.gov/news/releases/2003/11/20031119-1.html>; accessed May 2, 2023
[2] United Nations Charter (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI art 2(4).
[3] Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident in Lockerbie (Request for the Indication of Provisional Matters) [1992] ICJ Rep 3.
[4] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2007] ICJ Rep 89.
[5] United Nations Charter (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI art 39.
[6] United Nations Charter (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI art 41.
[7] McLaughlin R, ‘United Nations Mandated Naval Interdiction Operations in the Territorial Sea?’ (2002) 51 International and Comparative Law Quarterly 249. Accessed 2 May 2023.
[8] United Nations Charter (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI art 42.
[9] Ibid.
[10] Lehmann JM, “All Necessary Means to Protect Civilians: What the Intervention in Libya Says about the Relationship between the Jus in Bello and the Jus Ad Bellum” (2012) 17 Journal of Conflict and Security Law 117. Accessed 2 May 2023.
[11] Carswell AJ, “Unblocking the UN Security Council: The Uniting for Peace Resolution” (2013) 18 Journal of Conflict and Security Law 453. Accessed 2 May 2023.
[12] Farrall JM, “Rule of Accountability or Rule of Law? Regulating the UN Security Council's Accountability Deficits” [2014] SSRN Electronic Journal. Accessed 2 May 2023.
[13] Carswell AJ, “Unblocking the UN Security Council: The Uniting for Peace Resolution” (2013) 18 Journal of Conflict and Security Law 453. Accessed 2 May 2023.
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