The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (41 page)

Building on the Interlaken Process, the German Ministry of Foreign Affairs initiated a parallel effort to refine the implementation of travel bans and arms embargoes in 1999 and 2000. The so-called Bonn–Berlin Process considered ways of improving travel bans and arms embargoes. In the area of arms embargoes, it recommended the use of standardized lists of dual-use items drawn from the Wassenaar Arrangement, to assure common definitions of military-related technologies subject to restrictions. The recommendations emanating from the German initiative helped to advance the capacity of the Security Council to implement travel bans and arms embargoes.
⁷¹

In 2001, the government of Sweden launched a further initiative to improve sanctions policy-making at the United Nations. The Swedish programme brought together the world’s leading sanctions scholars, UN policy-makers, and international legal experts for a series of meetings in Uppsala and Stockholm to develop recommendations for strengthening the monitoring and enforcement of Security Council sanctions. Known as the Stockholm Process on the Implementation of Targeted Sanctions, the Swedish initiative added to the work already achieved by the Swiss and German governments and helped to advance international understanding of the requirements for effectively implementing targeted sanctions.
⁷²

The International Peace Academy (IPA) in New York played an important role in documenting the evolution of sanctions policy and highlighting the most significant sanctions reform issues. IPA hosted a number of luncheon seminars over the years, at which Security Council ambassadors and UN officials heard briefings from sanctions researchers and engaged in off-the-record discussions of the most pressing sanctions
policy issues. In February 2003, IPA hosted a briefing for the Stockholm Process at which Swedish officials presented their final report and discussed the findings and recommendations of their study with senior UN officials.

The effectiveness of targeted sanctions depends on the accuracy and legitimacy of the target designation process. As the Security Council moved toward the adoption of targeted financial sanctions and travel bans against specifically designated individuals and entities, the process of developing the lists of designees became increasingly important. It also became controversial, as concerns developed about the accuracy and reliability of the lists, and also about the legal and human rights of those designated. The designation lists utilized by the sanctions committees were neither comprehensive nor fully accurate. Monitoring reports for the Al-Qaida and Taliban Sanctions Committee documented instances of misspelled and improperly identified names and found that some countries were unwilling or unable to utilize the designation lists. As a result, the implementation efforts in certain countries were meagre or ineffective.
⁷³
A few of the individuals placed on the al-Qaida and Taliban designation list complained that they were wrongfully listed and that their civil and human rights had been violated. In a few instances, designated individuals took legal action to seek removal from the Security Council list.

The designation list of the Al-Qaida and Taliban Sanctions Committee was the most extensive Security Council list, with nearly 500 individuals and entities designated as at 2006.
⁷⁴
The global fight against terrorism was a major consideration driving the listing process. Designation lists were also created for the sanctions in Liberia, Côte d’Ivoire, the DRC, and Sudan. By 2006, the total number of individuals and entities on UN sanctions committee lists was over 900.
⁷⁵
This was a relatively small number, but concerns about the political and legal procedures involved in the listing process loomed large within the United Nations. More than fifty UN member states expressed concerns about the lack of due process and the absence of transparency involved in the listing process.
⁷⁶
The December
2004 report of the Secretary-General’s High-level Panel on Threats, Challenges and Change observed that ‘[t]he way entities or individuals are added to the terrorist list maintained by the Council and the absence of review or appeal for those listed raise serious accountability issues and possibly violate fundamental human rights norms and conventions.’
⁷⁷
The September 2005 World Summit Outcome document from the General Assembly urged the Security Council ‘to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions’.
⁷⁸

These concerns posed challenges to the legitimacy and effectiveness of Security Council targeted sanctions and the larger struggle to counter terrorism. They reflected different perspectives among UN member states about the relationship between the enforcement of Security Council mandates and the protection of civil and human rights. Some states emphasized the need to respond forcefully and swiftly to terrorist threats and objected to elaborate legal protections that might impede the sanctions process and provide loopholes through which terrorist supporters could escape pressure. Other countries emphasized the necessity of maintaining and strengthening legal and human rights protections as part of the fight against terrorism, arguing that security and justice are mutually reinforcing, not contradictory, and that strengthening legal and human rights protections enhances the global effort to counter terrorism.

UN declarations and resolutions have been unequivocal in urging strict adherence to human rights standards. Secretary-General Kofi Annan stated in September 2003:

At its ministerial meeting in January 2003, the Security Council adopted Resolution 1456 urging greater international compliance with UN counter-terrorism mandates but also reminding states of their duty to comply with international legal obligations, ‘in particular international human rights, refugee and humanitarian law’.
⁸⁰

In 2005, the three governments that had led previous sanctions reform processes – Switzerland, Germany, and Sweden – initiated a new process in cooperation with the Watson Institute for International Studies at Brown University to examine the legal
and procedural issues involved in the Security Council list designation process. They developed a series of recommendations for enhancing legal protections and upholding human rights principles in the development of targeted sanctions and counter-terrorism measures. The goal of the exercise was to develop recommendations for the Security Council. The three countries sought to maintain political support for targeted sanctions by assuring that the list designation process is conducted within a legal framework that is respectful of civil liberties and human rights. They did so by funding the Watson Institute process and providing a diplomatic venue for consideration of the subsequent findings and recommendations.

UN sanctions policy matured significantly between 1990 and 2006, as UN diplomats, expert investigators, academic scholars, non-governmental analysts, and many others contributed to a process of learning, adaptation, and reform. The result was a substantial transformation of sanctions policy-making. The poorly monitored, often blunt measures imposed in the early 1990s gave way to more targeted, selective sanctions supported by humanitarian assessment missions and expert panel reports. Many problems remained in the implementation of Security Council sanctions, but substantial progress has been made. Some of the obstacles to effective sanctions policy, such as power rivalries among the Permanent Members, are endemic to the international system, and were evident when sanctions episodes continued over time.
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But other challenges, such as the development of greater member state capacity for sanctions implementation, were addressed through specific forms of assistance and policy improvements, as members of the Security Council sought to mould the sanctions instrument into a more effective tool for preserving peace and security.

DAN SAROOSHI
^*

A
GREEMENTS
between political entities within defined geographical areas – whether between city states in antiquity or modern states today – have long been used as a way to try and avoid or minimize conflict between neighbours.
¹
It was only with the development of ‘universal’ systems of conflict avoidance that these arrangements
came to be regarded as ‘regional’.
²
This in turn led to the question of compatibility between universal and regional arrangements and the particularly difficult issue of at what level – the universal or the regional – should final decisions relating to peace and security be taken.
³
The latter issue became a source of controversy in negotiations leading to the establishment of the League of Nations
⁴
and was one of the more controversial issues at San Francisco in 1945.
⁵
In the case of the UN, the question was resolved at least in formal terms by the UN Charter which stipulates in Article 24(1) that the Security Council has primary responsibility in the international system for matters of peace and security,
⁶
and, moreover, in Article 53(1) that ‘[t]he Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.’

This chapter cannot address the multiplicity of types of issue relating to the use of force (including peacekeeping and diplomacy) raised by the relationship between the Security Council and regional arrangements.
⁷
Nor can it cover all of even the most important regional arrangements, such as the Organization of American States (OAS), the African Union (AU), the Economic Community of West African States (ECOWAS), and the League of Arab States.
⁸

The focus of this chapter is to consider certain aspects of the relationship between the UN and NATO. This relationship is particularly interesting since it involves the UN interacting with the most sophisticated military regional arrangement in existence, and led to NATO (in Bosnia in 1995 and Kosovo in 1999)
deciding to act for the first time outside its geographical area of operation. Several aspects of this relationship will be explored. The first relates to the relationship between the two entities when the Security Council, pursuant to Article 53 of the Charter, authorizes NATO to take military enforcement action. I will focus here on a case study of the authorization by the Security Council of NATO to protect UN-declared ‘safe areas’ in Bosnia to illustrate the issues that arise in such cases. The second aspect relates to the issues that arose when NATO decided to take military action without Security Council authorization in the case of Kosovo. Finally, this chapter makes some brief observations on the appropriateness of a regional arrangement such as NATO having the final decision on the question of whether force should be used in a particular case. Other issues, such as NATO’s UN-authorized peacekeeping operations in Bosnia in 1995–2004, and its involvement in the UN-authorized International Security Assistance Force in Afghanistan since 2001, are not considered here in detail.

Before discussing the two aspects of the UN–NATO relationship outlined above, it is necessary to consider the legal basis (competence) of the Security Council to authorize regional arrangements to carry out military enforcement action on its behalf. This competence relies on the Security Council being able to delegate its
Chapter VII
enforcement powers to regional arrangements such as NATO.

The ‘authorization’ by the Security Council of military enforcement action by a regional arrangement under
Chapter VIII
represents in substance the delegation by the Council of its
Chapter VII
powers.
Chapter VIII
of the Charter does not provide the Council with any substantive powers of enforcement to maintain peace in addition to the powers the Council already possesses under
Chapter VII
. Article 53(1) only gives the Council a specific competence to delegate
Chapter VII
powers to regional arrangements. Accordingly, the provision in Article 53(1) for the Council to utilize regional arrangements to carry out military enforcement action does not change the position that the powers which the Council is delegating to these arrangements, by virtue of its competence under this Article, are
Chapter VII
powers. The delegation of
Chapter VII
powers to a regional arrangement thus takes place by the Council using its specific competence so to delegate under
Chapter VIII
.

Article 53(1) provides that regional arrangements are not empowered to take enforcement action without prior Council authorization, that is without a delegation by the Council of its
Chapter VII
powers.
⁹
Accordingly, in this way the position of UN member states acting individually or through a regional arrangement is the same. In both cases, with the exception of military action taken in self-defence, a delegation of powers by the Council is necessary for any military action to be lawful. This position derives from the general prohibition on the use of force by states contained in Article 2(4) of the Charter, and relies on the position that there are no additional rights to use force which states derive by virtue of their membership in a regional arrangement even if that arrangement possesses independent legal personality. Just as there are no such additional rights which states have when acting through a regional arrangement, there are in general terms no additional obligations on states vis-à-vis the Security Council when they exercise delegated
Chapter VII
powers through the framework of a regional arrangement. As a result, the Security Council cannot require a regional arrangement, composed of UN member states, to carry out military enforcement action under
Chapter VIII
of the Charter. The reason for this is that the non-conclusion of the Article 43 agreements between states and the Security Council means that the Council cannot require states to carry out military enforcement action, and as such there can be no obligation on a regional arrangement, which is composed of these states, to have to take up a delegation of
Chapter VII
powers.