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Use Of Force Notes

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A. ENFORCEMENT ACTION BY THE SECURITY COUNCIL UNDER CHAPTER VII UN CHARTER The SC has primary responsibility for enforcement action to deal with breaches of the peace, threats to the peace or acts of aggression (Art 24 UN Charter). The aims of the drafters of the UN Charter was not only to prohibit the unilateral use of force by states in Art 2(4) but also to centralize control of the use of force in the Security Council under Chapter VII. In authorizing the use of force under Chapter VII, the SC acts on behalf of the Members who agree to accept and carry out the decisions of the SC (Arts 25 and 48); further, binding decisions of the SC, being obligations under the Charter, prevail over obligations contained in any other agreement (Art 103) though presumably not over peremptory norms. Thus the SC could not direct a Member to commit or permit the occurrence of genocide (Genocide Convention). Individual member states have the right to individual or collective self-defence, but only 'until the Security Council has taken measures necessary to maintain international peace and security'. (Art 51) Article 24

1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration. Article 25 The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. Article 48 The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

Article 103 In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

1. ARTICLE 39 UN CHARTER 'The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures should be taken in accordance with Arts 41 and 42 to maintain or restore international peace and security'. Art 39 functions as the gateway to Chapter VII: before taking action, the Council must first determine the existence of a threat to or breach of the peace, or an act of aggression. (i) Threats to the peace The tribunal in Tadic noted that declaration of a threat entails a factual and political judgment, not a legal one. Severe interstate violence, serious violations of human rights and humanitarian law and terrorism have been designated as threats to the peace. The concept has been further expanded to include not only situations in which the use of armed force appears imminent but those where factors subsist that may lead to the use of force. In 1992, the President of the Security Council stated that non-military sources of instability in the economic, social, humanitarian and ecological fields have become 'threats to peace and security', though the Security Council has yet to expressly utilize this 'expanded' mandate (ii) Breach of the peace Typically relates to hostility between the armed units of two states. (iii) Act of aggression Art 1 of GA Resolution 3314 ('Definition of Aggression') defines 'aggression' broadly as: the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition Art 2 of the Resolution provides that: The first use of armed force by a state in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the SC may, in conformity with the Charter, conclude that a determination that an act of

aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity Art 3 lists a series of acts considered instances of aggression. Noteworthy is the final paragraph, which covers: 3(g) the sending by or on behalf of a state of armed bands, groups or irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein. The phrase 'or its substantial involvement therein' indicates that the formulation extends to the provision of logistical support.

2. RESPONSES TO THE THREATS TO OR BREACHES OF THE PEACE Following an Art 39 determination, the SC may decide that provisional (Art 40), non-forcible (Art 41), or forcible (Art 42) measures shall be taken to maintain or restore international peace or security. (i) Provisional measures: Art 40 In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures. Before making recommendations or deciding on measures under Art 39 the Security Council may order the imposition of provisional measures under Art 40. Provisional measures leave unaffected the legal position of parties to the dispute. Thus the Security Council could not call on a Member to acknowledge its own breach of Art 2(4) or its violation of another Member's territorial sovereignty. It can, however, call on Members to observe a ceasefire or withdraw troops from certain areas. Measures under Art 40 can be binding on Members. The binding character of the measure will be predicated on the use of mandatory wording in the resolution, e.g. 'orders', 'demands' or 'decides' versus 'calls for' or 'appeals'. (ii) Measures under Article 41 UN charter The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal,

telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Generally, the resolutions passed under Art 41, in response to a violation of a SC requirement, specify the justification for the imposition of the measures and the action needed to secure their termination. But sometimes, it is unclear or controversial exactly what action would be required by the state subject to the Art 41 measures. For example, the question of terminating the comprehensive sanctions against Iraq, in place since Resolution 661, led to divisions between members of the SC. The ceasefire Resolution 687 required the destruction of Iraq's chemical, biological and nuclear weapons and long-range ballistic missiles and an undertaking by Iraq not to develop any such weapons in the future; when this was achieved the SC would lift the sanctions imposed in Resolution 661. Iraq repeatedly claimed to have complied with its disarmament obligations and was repeatedly found by the UN inspection team to have been concealing its weapons.

Nevertheless certain members of the SC were ready to consider lifting the sanctions. The humanitarian situation in Iraq posed a serious moral dilemma for the UN. The UN was accused of causing suffering to an entire population. Eventually, the USA and others turned to force in Operation Iraqi Freedom, rather than continue to rely on sanctions as a means of securing disarmament. The increasing use of sanctions after the end of the Cold War intensified concern over effectiveness, humanitarian considerations of the impact of the measures on the population of the target state and the economic impact on neighbouring states. The Sec-Gen, in his Supplement to the Agenda for Peace, wrote of the difficulties of determining the objectives of Art 41 measures, of monitoring and of avoiding unintended effects. He described sanctions as a blunt instrument that may harm vulnerable groups, interfere with the work of humanitarian agencies, and conflict with the development objectives of a state. They may be counterproductive in that they may provoke a patriotic response as opposed to a rejection of those whose behaviour led to the imposition of sanctions. The measures imposed on Iraq in 1990 prompted a reappraisal of SC sanctions. The SC shifted away from comprehensive sanctions to 'smart' or 'targeted' measures aimed at decision-making elites, that directly affect those responsible for the transgression without unduly harming the general population. Thus in many cases, the measures were designed to restrict the freedom to travel of those who had illegally violated peace agreements or SC resolutions and also to freeze foreign bank accounts of those responsible for the unlawful action. There have been several attempts to draw up guidelines for an effective and humane system. There is now a Sanctions Assessment Handbook and further

guidelines contained in the 2005 World Summit Outcome Document. It is regular practice to appoint sanctions committees and independent expert groups to monitor the implementation of sanctions The Sec Gen's view is that Art 41 measures are designed not to punish but to secure compliance with international obligations. Thus, certain arms embargoes are imposed not because a state had broken international law, but to try to ensure that a conflict did not escalate (e.g. Yugoslavia, Somalia and Liberia). (iii) Enforcement action through Art 42 Art 42 UN Charter Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

3. IRAQ 1990-1 In response to the Iraqi invasion of Kuwait, the SC, in Resolution 660, it declared that there had been a breach of international peace and security; expressly acting under Arts 39 and 40 it condemned the invasion and demanded the withdrawal of Iraqi forces from Kuwait and the restoration of international peace and security in the area. Economic sanctions were imposed against Iraq in Resolution 661. When this proved ineffective to secure Iraq's withdrawal, Resolution 678 authorized the use of 'all necessary means' against Iraq by member states to 'uphold and implement Resolution 660'. It is clear from the SC debates that this formula was understood to mean the use of force, and the same euphemistic formula has been used in almost all the subsequent resolutions authorizing the use of force by states. There was debate as to the legal foundation of the coalition action in Operation Desert Storm against Iraq. Resolution 678 does refer to Chapter VII, but it does not refer to any specific article. Some claim it was an Art 42 action, others regard it as justified by Chapter VII generally; yet others say that it was collective selfdefence authorized by the Security Council. SC Resolution 687 (1991) imposed an elaborate cease-fire regime including comprehensive economic sanctions and disarmament requirements.

4. SUBSEQUENT USE OF CHAPTER VII: EXPRESS AUTHORISATION There now seems to be general agreement that it should not be for the UN itself to conduct enforcement operations. Instead, there is consensus that it is for the Security Council to authorize members states to take enforcement action, even if the precise legal basis for this in the Charter is not clear. The Panel on UN Peace Operations said that 'the UN does not wage war. Where enforcement action is

required it has consistently been entrusted to coalitions of willing states with the authorization of the SC, acting under Chapter VII of the Charter'. The Sec Gen, in the Supplement to the Agenda for Peace, has recognised that this delegation of UN functions to member states is necessary, given the limited resources at the disposal of the UN and its inability to mount an enforcement action. At the time of Operation Desert Storm there was concern about the lack of UN control over the decision as to when to start the operation and over the conduct of the campaign, about the wide and unclear mandate and about the lack of a time limit on the coalition action. There is also a danger that states operating under UN authorisation would gain legitimacy to further their own interests, possibly by intervening in a conflict. For instance, there was some suspicion of the motives of the US which led Operation Turquoise in Rwanda, and the action was criticized for providing a safe haven for the perpetrators of genocide. When the SC subsequently authorized member state operations it increasingly took care to ensure a greater degree of SC control. For instance, member states involved in NATO operations in Kosovo were required to act in close coordination with the Sec-Gen. Member state operations were subject to fixed time limits and all had to be renewed by the SC. The states concerned were required to report to the SC on a regular basis on the implementation of the resolution. (i) Kosovo After the NATO Operation against Yugoslavia in 1999, Yugoslavia agreed to end the violence in Kosovo and to complete a rapid withdrawal of all its military police and paramilitary forces. These were to be replaced by international civil and security presences. SC Resolution 1244 acted under Chapter VII in authorizing member states and relevant international organizations to establish Kosovo Force (KFOR). The resolution spelled out in detail the responsibilities of KFOR; it did not expressly authorize force The formula adopted was that the Security Council authorized member states and relevant international organizations to establish the international security presence in Kosovo 'with all necessary means to fulfil its responsibilities under the resolution'. This was apparently a compromise formula, seen by the West as wide enough to cover enforcement action, but by China and Russia as not an express authorisation to use force. (ii) Afghanistan Following Operation Enduring Freedom, taken in response to 9/11, which brought about the overthrow of the Taliban regime and the installation of a new government, SC Resolution 1386 created the International Security Assistance Force and authorised it to 'take all necessary measure' to assist the Afghan government in maintaining security and required it to report periodically to the Security Council.

Questions were raised about the compatibility of the two operations: ISAF was to work for the stabilization of Afghanistan whereas Operation Enduring Freedom was still pursuing the 'war on terror'. In Sept 2007 the Sec-Gen reported that the 'inherent dangers of two forces operating in the same battle space with different mandates requires more proactive coordination to ensure the success of the ISAF mission'. ISAF struggled to address the challenges arising from terrorist activities by the Taliban, Al Qaeda and other armed groups. It ceased combat operations and was disbanded in December 2014. (iii) Iraq Resolution 1511 was passed in Oct 2003, and acting under Chapter VII, the SC authorized a multinational force (MNF) under unified command to 'take all necessary measures to contribute to the maintenance of security and stability in Iraq'. The force was to be under US command, and the US was to report to the SC on its efforts and progress. The SC was to review the requirements and mission of the force not later than one year from the date of the resolution, and the mandate of the force was to expire 'upon the completion of the political process' described in the resolution.

Where they were not able to secure express authority to use force, certain states sought to justify their use of force as impliedly authorized by the SC. Is implied or revived authorisation an adequate legal basis for the use of force?
(i) Iraq 1991-2002 SC Resolution 688 condemned the repression of the Kurds and Shiites. It was not passed under Chapter VII and did not authorize force to protect the Kurds and Shiites. Nevertheless, the USA, UK and France referred to this resolution in explanation of their action in intervening in Iraq to establish no- fly zones. The UK and the USA spoke of Resolution 688 allowing a response to Iraqi action and said their actions in establishing were 'consistent with', 'in implementation of', 'in support of' and 'pursuant to' the resolution. The UN Sec-Gen, responding to calls from Iraq to condemn the US and UK air attacks, emphasized that only the SC was competent to determine whether its resolutions were of such a nature and effect as to provide a lawful basis for the no-fly zones and for the actions that have been taken in their enforcement. This statement implicitly rejects any claims by the USA and the UK to justify their action unilaterally on the basis of Resolution 688. The doctrine of implied authorization was also used to justify the use of force against Iraq to secure its cooperation with Resolution 687. When UN weapon inspectors reported that Iraq was obstructing their work, the US and UK began Operation Desert Fox, a series of air strikes with the aim of degrading Iraq's capability to build and use WMDs. The UK argued that there was a clear legal basis for military action, as SC Resolution 1205, which condemned the decision

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