The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (21 page)

The use of force by NATO in Kosovo (1999), the terrorist attacks of 11 September 2001 and their aftermath, the US and UK invasion of Iraq (2003): all these pose fundamental questions about the law on the use of force and the role of the Security Council.

First, is there now, after the Kosovo action, a right or even a duty of humanitarian intervention? It is well established that the Security Council has the power under
Chapter VII
of the Charter to authorize action to avert humanitarian catastrophe, and it has done so in the cases of Somalia and Haiti. However, it has sometimes proved difficult to secure agreement in the Security Council, as with regard to Kosovo. Therefore the question has arisen whether states may intervene unilaterally when the Security Council fails to act. The UK was the first state to argue for the emergence of such a legal right to intervene in the event of ‘humanitarian catastrophe’, originally with regard to the protection of the Kurds and Shiites in the no-fly zones of Iraq. However, its attempt to persuade the Security Council to adopt a legal framework for this emerging doctrine was not successful. Some states remained distinctly sceptical of any such unilateral right, arguing that it would be a tool for powerful states to claim the moral high ground while pursuing their own political agenda. The Security Council was divided on the authorization of military action against Serbia and Montenegro for its harsh treatment of the ethnic Albanians in Kosovo; China and Russia opposed any military intervention. NATO proceeded unilaterally, but its members were divided as to the exact legal basis for their action. The precise conditions for humanitarian intervention remained unclear. The High-level Panel and the Secretary-General did recommend the adoption by states of a ‘responsibility to protect’ in cases of humanitarian disaster – rather more attractive language than that of humanitarian intervention – and this was accepted by the World Summit in its Outcome Document.
³³
But divisions remained as to whether the right to use force could only be authorized by the Security Council or whether states could use force unilaterally. The 116-member Non-Aligned Movement has made a point since Kosovo, and subsequently in response to the High-level Panel Report, of registering its opposition to any unilateral right. Moreover, the slow and inadequate response to events in Darfur in Sudan since 2003 (as earlier in the case of Rwanda) has demonstrated yet again that the main problem in this area is not with the law, but with the political willingness of states to act.
³⁴

Another important question on the use of force which has come to the fore since the end of the Cold War, and especially since 9/11, is whether the world is facing new threats which justify a wider right for states to use force. The proclamation of a
‘global war on terror’ has led some to call for a reappraisal of international law on the use of force. Many Western states accept the view of the USA that there is now a danger, not only of attack from global terrorists, but also that rogue states will acquire weapons of mass destruction and will assist global terrorists. The question is whether this requires a shift in the law on self-defence. States were divided before 9/11, with the USA and Israel claiming a wide right of self-defence against terrorist attacks on their nationals abroad, and a right to take deterrent and anticipatory or pre-emptive action. But there was no general agreement that this was consistent with Article 51.

After the terrorist attacks of 9/11 on the World Trade Centre and the Pentagon the Security Council in Resolutions 1368 and 1373 reaffirmed strongly that terrorism was a threat to international peace and security.
³⁵
It also affirmed a right of self-defence, but the exact scope of that right in the context of terrorist attacks is still problematic. Interpretation of Resolutions 1368 and 1373 is not straightforward; they refer to self-defence in their preambles, in itself a rare event, but much is left unclear. Is the concept of armed attack in Article 51 now wide enough to cover attack by non-state actor? What degree of state involvement, if any, is required to justify a forcible response against terrorists present in that state’s territory,
³⁶
and what is an appropriate response? Is forcible pre-emptive or preventive action permitted and, if so, when? The right of the US to use force in self-defence in Operation Enduring Freedom in Afghanistan in response to the attacks of 9/11 was generally accepted, and NATO for the first time invoked Article 5 of its constituent treaty asserting a right of collective self-defence.
³⁷

The High-level Panel Report and, more surprisingly, the Secretary-General’s report,
In Larger Freedom
, took a radical and controversial view of the right of self-defence, in line with that of certain developed states rather than that of the rest of the world.
³⁸
They asserted that it was well-established that Article 51 allowed preemptive forcible action in the face of an imminent threat. However, this was attacked by many states, including the Non-Aligned Movement and the statement was not included in World Summit Outcome Document.

The US has gone even further than claiming a right to anticipatory self-defence against an imminent attack; it has asserted a very wide right of purely preventive self-defence. In its National Security Strategy (September 2002) it said that new threats meant that it was necessary to re-examine the concept of imminence.
³⁹
But there has been little support by states for such a wide doctrine of preventive force. Even the UK has not been willing to go so far. Both the High-level Panel and the Secretary-General took the clear view that if there was no imminent threat then a state wanting to use force should go to the Security Council. The use of force against Iraq in 2003 proved extremely divisive and there was no general acceptance of any right to purely preventive action in the absence of express Security Council authorization.
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To recap, the High-level Panel and the Secretary-General in his report,
In Larger Freedom
, did not recommend formal amendment of the basic provisions on the unilateral use of force by states, Article 2(4) on the prohibition of the use of force and Article 51 on the right of self-defence. They did make controversial proposals on the interpretation of the basic provisions on self-defence and on humanitarian intervention. The former proved unacceptable to the vast majority of states and were not included in the World Summit Outcome Document. The latter question of humanitarian intervention also proved controversial. The debates between states on the reports and at the 2005 World Summit made it clear that there are still major disagreements between states on the basic limitations on the use of force, as there had been since the founding of the UN. Thus the World Summit produced a mixed result as regards collective security and the use of force. On the one hand, there was a positive reaffirmation of the Charter scheme; on the other, it was clear that there could be no new agreement on general rules on the use of force because of continuing differences between states.

ADAM ROBERTS

S
INCE
the formation of the United Nations the creation of a standing UN military force has been proposed repeatedly. Such a force has been seen as a means of improving the organization’s response to urgent problems of war, civil war, and mass killings; as a way of expediting the provision of peacekeeping forces to back up ceasefire and peace agreements; and as a basis for preventive deployments to ward off imminent dangers. The Security Council has generally been envisaged as having a key role in the creation and direction of such a force.

This chapter reviews proposals for standing forces of various kinds, including those for individually recruited UN forces and for a UN rapid-reaction capability drawing on national contingents. It seeks particularly to identify the different practical tasks that such forces have been envisaged as serving. It touches on regional as well as global forces. It considers the implications of the 1994 Rwanda crisis, which strengthened calls for standing forces, and of the Darfur crisis since 2003. It explores what happened to the various proposals, and why the idea entered a period of decline. Finally, it enumerates some of the problems regarding the creation and operation of such forces; and offers conclusions about the long-standing question of improving the UN’s response capability.

Although, as this chapter indicates, there are grounds for scepticism about proposals for UN standing forces, the crises which such forces are intended to address are both serious and urgent. By almost universal consent, improvement in the international community’s rapid-response capability is needed. The nub of the issue is: what is realistically achievable in a world where the demand for UN rapid-response forces is likely to be huge, the interest of states in responding to that demand is not unlimited, and the capacity of the Security Council to manage crises effectively is often questioned? And what can be learned from the history reviewed here?

In
Chapter VII
of the UN Charter, Articles 43 to 48 envisaged forces being at the disposal of the Security Council exclusively in the context of enforcement operations. These provisions have never been implemented. Since the earliest years the Security Council has not in fact had armed forces at its disposal in the manner envisaged in the Charter.

In March 1946, in the speech at Fulton, Missouri, in which he observed that an iron curtain had descended across Europe, Winston Churchill said of the United Nations Organization: ‘We must make sure that its work is fruitful, that it is a reality and not a sham, that it is a force for action, and not merely a frothing of words.’ He proposed, as a first step to strengthen the UN, the creation of an international air force, with each state providing a number of squadrons. He went on to warn: ‘It would nevertheless be wrong and imprudent to entrust the secret knowledge or experience of the atomic bomb, which the United States, Great Britain, and Canada now share, to the world organisation, while it is still in its infancy.’
¹
This reflected the provision in Charter Article 45 that ‘Members shall hold immediately available national air-force contingents for combined international enforcement action.’ On this matter, no action followed Churchill’s words.

In 1946–7, when the UN’s Military Staff Committee was set up, it was asked to examine the question of contributions of armed forces to the Security Council. It duly published a report in which the five powers agreed, at least in theory, on the desirability of establishing forces available to the Security Council. However, the report reflected significant disagreements among the Permanent Five about the size, composition, and basing arrangements of national contributions. The whole
enterprise was abandoned.
²
This was part of a broader failure to implement the ambitious provisions of
Chapter VII
specifying a framework for the maintenance and application of armed force under Security Council auspices.

Trygve Lie, the first Secretary-General of the UN, was anxious to salvage something from this failure. He dealt daily with difficult situations, such as Palestine, in which, in his judgement, the UN needed greater capacity to impose its will. These were among the reasons why he made a number of proposals for standing forces – albeit with modest capacities and objectives. As he wrote in his memoirs:

The ‘trial balloon’ was launched on 10 June 1948 in a speech at Harvard University. Lie noted that Senator Vandenberg had introduced a resolution into the US Senate calling for ‘maximum efforts to obtain agreements to provide the United Nations with armed forces as provided by the Charter’. He urged the conclusion of military agreements under Article 43 of the Charter, and called for ‘the establishment of a comparatively small guard force, as distinct from a striking force’.
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There was very little detail.

A month later, in his Annual Report, Lie repeated his call for a Guard Force: