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3 United Nations Security Council, Responsibility to Protect, and Sanctions

3 United Nations Security Council, Responsibility to Protect, and Sanctions

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164 |



MONITORING AND ENFORCING HUMAN RIGHTS



human rights. The powers are primarily peaceful (Chapter VI) but extend to authorisation of the use

of force (Chapter VII). One characteristic of contemporary international human rights is the

increased willingness of the Security Council, indeed the United Nations, to intervene in quasiinternal matters. There are a number of examples; what follows is but a sample:

Resolution 1973 (2011) on Libya, which authorised the use of force to protect the civilian

population.

Resolution 1860 (2009) on Israel, Palestine and the violence in the Gaza Strip, following on

from many previous resolutions, including 1850 (2008).

Resolution 1368 (2001) on threats to international peace and security caused by terrorist acts.

Resolution 569 (1985) on South Africa, condemning a number of human rights infringements.

Resolution 4 (1946) on the Spanish question demonstrating the relationship between internal

politics and international peace and security.



Question



Ascertain the veracity of the allegation that politics and not respect for human dignity dictate the actions of the Security

Council. Especially have regard to the potential for veto by the permanent members of the Security Council (i.e. France, People’s

Republic of China, Russian Federation, United Kingdom and United States of America).

In accordance with the provisions of the United Nations Charter, the Security Council has primary

responsibility for peace and security matters. Accordingly, it may act when violations of human

rights constitute a threat to international peace and security. There is growing support for (though

equally marked scepticism of) the concept of responsibility to protect (R2P) in international law.

Under that doctrine, States are obligated to be proactive, even intervening, when serious violations

of human rights and humanitarian law occur.

Office of the Special Adviser on the Prevention of Genocide, ‘The Responsibility to Protect’

(www.un.org/en/preventgenocide/adviser/responsibility.shtml)

Prevention requires apportioning responsibility to and promoting collaboration between

concerned States and the international community. The duty to prevent and halt genocide and

mass atrocities lies first and foremost with the State, but the international community has a

role that cannot be blocked by the invocation of sovereignty. Sovereignty no longer exclusively

protects States from foreign interference; it is a charge of responsibility where States are

accountable for the welfare of their people.



The extent to which the doctrine extends is debatable. Is it simply genocide, or can serious and

systematic abuse of other human rights constitute grounds for intervention? Proponents of this

doctrine note the resolution on Libya as a prime example of R2P in action. Extracts of the relevant

resolution follow:

SECURITY COUNCIL RESOLUTION 1973 (2011)

Protection of civilians

4. Authorizes Member States that have notified the Secretary-General, acting nationally or

through regional organizations or arrangements, and acting in cooperation with the SecretaryGeneral, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970

(2011), to protect civilians and civilian populated areas under threat of attack in the Libyan

Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form

on any part of Libyan territory, and requests the Member States concerned to inform the



UNITED NATIONS SECURITY COUNCIL: RESPONSIBILITY TO PROTECT, AND SANCTIONS | 165



Secretary-General immediately of the measures they take pursuant to the authorization

conferred by this paragraph which shall be immediately reported to the Security Council;

...

No Fly Zone

6. Decides to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order

to help protect civilians;

7. Decides further that the ban imposed by paragraph 6 shall not apply to flights whose sole

purpose is humanitarian, such as delivering or facilitating the delivery of assistance, including

medical supplies, food, humanitarian workers and related assistance, or evacuating foreign

nationals from the Libyan Arab Jamahiriya, nor shall it apply to flights authorised by paragraphs 4 or 8, nor other flights which are deemed necessary by States acting under the authorisation conferred in paragraph 8 to be for the benefit of the Libyan people, and that these flights

shall be coordinated with any mechanism established under paragraph 8;

8. Authorizes Member States that have notified the Secretary-General and the SecretaryGeneral of the League of Arab States, acting nationally or through regional organizations or

arrangements, to take all necessary measures to enforce compliance with the ban on flights

imposed by paragraph 6 above, as necessary, and requests the States concerned in cooperation

with the League of Arab States to coordinate closely with the Secretary-General on the

measures they are taking to implement this ban, including by establishing an appropriate

mechanism for implementing the provisions of paragraphs 6 and 7 above,

9. Calls upon all Member States, acting nationally or through regional organizations or

arrangements, to provide assistance, including any necessary overflight approvals, for the

purposes of implementing paragraphs 4, 6, 7 and 8 above;

...

Enforcement of the arms embargo

13. Decides that paragraph 11 of resolution 1970 (2011) shall be replaced by the following

paragraph: “Calls upon all Member States, in particular States of the region, acting nationally

or through regional organisations or arrangements, in order to ensure strict implementation

of the arms embargo established by paragraphs 9 and 10 of resolution 1970 (2011), to inspect

in their territory, including seaports and airports, and on the high seas, vessels and aircraft

bound to or from the Libyan Arab Jamahiriya, if the State concerned has information that

provides reasonable grounds to believe that the cargo contains items the supply, sale, transfer

or export of which is prohibited by paragraphs 9 or 10 of resolution 1970 (2011) as modified

by this resolution, including the provision of armed mercenary personnel, calls upon all flag

States of such vessels and aircraft to cooperate with such inspections and authorises Member

States to use all measures commensurate to the specific circumstances to carry out such

inspections”;

...

16. Deplores the continuing flows of mercenaries into the Libyan Arab Jamahiriya and calls

upon all Member States to comply strictly with their obligations under paragraph 9 of resolution

1970 (2011) to prevent the provision of armed mercenary personnel to the Libyan Arab

Jamahiriya;



Among the powers available to the Security Council in fulfilment of its mandate are the use of

force (as a last resort) and a variety of mechanisms for ensuring the peaceful resolution of disputes.

The resolution on Libya is a good example of the use of force being authorised in restrictive

circumstances to ensure the protection of the fundamental rights of civilians. Note, however,

the impasse in 2012 with respect to action on Syria – see Chapter 4 for the General Assembly’s

response to this.



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MONITORING AND ENFORCING HUMAN RIGHTS



Question



To what extent does a resolution such as that on Libya unnecessarily threaten the sovereignty of the subject country? Is the

infringement of sovereignty justified by the idea of protecting civilians?

One peaceful option open to the Security Council is the imposition of sanctions on a State. The most

substantive raft of sanctions ever imposed were those against Iraq in 1991.

SECURITY COUNCIL RESOLUTION 661 (1990)

Acting under Chapter VII of the Charter,

1. Determines that Iraq so far has failed to comply with paragraph 2 of resolution 660 (1990)

and has usurped the authority of the legitimate Government of Kuwait;

2. Decides, as a consequence, to take the following measures to secure compliance of Iraq

with paragraph 2 of resolution 660 (1990) and to restore the authority of the legitimate

Government of Kuwait;

3. Decides that all States shall prevent:

(a)

(b)



(c)



The import into their territories of all commodities and products originating in Iraq or

Kuwait exported therefrom after the date of the present resolution;

Any activities by their nationals or in their territories which would promote or are calculated to promote the export or trans-shipment of any commodities or products from Iraq

or Kuwait; and any dealings by their nationals or their flag vessels or in their territories in

any commodities or products originating in Iraq or Kuwait and exported therefrom after

the date of the present resolution, including in particular any transfer of funds to Iraq or

Kuwait for the purposes of such activities or dealings;

The sale or supply by their nationals or from their territories or using their flag vessels of

any commodities or products, including weapons or any other military equipment, whether

or not originating in their territories but not including supplies intended strictly for medical

purposes, and, in humanitarian circumstances, foodstuffs, to any person or body in Iraq

or Kuwait or to any person or body for the purposes of any business carried on in or

operated from Iraq of Kuwait, and any activities by their nationals or in their territories

which promote or are calculated to promote such sale or supply of such commodities or

products;



4. Decides that all States shall not make available to the Government of Iraq, or to any

commercial, industrial or public utility undertaking in Iraq or Kuwait, any funds or any other

financial or economic resources and shall prevent their nationals and any persons within their

territories from removing from their territories or otherwise making available to that

Government or to any such undertaking any such funds or resources and from remitting any

other funds to persons or bodies within Iraq or Kuwait, except payments exclusively for strictly

medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs;

5. Calls upon all States, including States non-members of the United Nations, to act strictly

in accordance with the provisions of the present resolution notwithstanding any contract

entered into or licence granted before the date of the present resolution;

6. Decides to establish, in accordance with rule 28 of the provisional rules of procedure, a

Committee of the Security Council consisting of all the members of the Council, to undertake

the following tasks and to report on its work to the Council with its observations and recommendations:

(a)



To examine the reports on the progress of the implementation of the present resolution

which will be submitted by the Secretary-General;



UNITED NATIONS SECURITY COUNCIL: RESPONSIBILITY TO PROTECT, AND SANCTIONS | 167



(b)



To seek from all States further information regarding the action taken by them concerning

the effective implementation of the provisions laid down in the present resolution;



7. Calls upon all States to co-operate fully with the Committee in the fulfilment of its tasks,

including supplying such information as may be sought by the Committee in pursuance of the

present resolution.



Perhaps it could have been anticipated, but the impact of these sanctions was most dramatic on Iraqi

civilians. Consequently, the United Nations implemented its now somewhat discredited oil-for-food

programme. Investigations are ongoing into the programme and its effect. There is little doubt that

the United Nations will be more reticent over the issue of sanctions in the future. Note the provisions

of Security Council Resolution 1718 (2006) and 1874 (2009) following the Democratic People’s

Republic of Korea’s nuclear tests in October 2006 and June 2009 and the sanctions imposed on Iran

since 2006 for its failure to halt its uranium enrichment programme. Humanitarian actions are

clearly protected. The following resolution heralded the easing of sanctions against Iraq for humanitarian reasons ensuring protection of civilians against sanctions thereafter.

SECURITY COUNCIL RESOLUTION 986 (1995)

The Security Council

Recalling its previous relevant resolutions,

Concerned by the serious nutritional and health situation of the Iraqi population, and by the

risk of a further deterioration in this situation,

Convinced of the need as a temporary measure to provide for the humanitarian needs of

the Iraqi people until the fulfilment by Iraq of the relevant Security Council resolutions,

including notably resolution 687 (1991) of 3 April 1991, allows the Council to take further action

with regard to the prohibitions referred to in resolution 661 (1990) of 6 August 1990, in

accordance with the provisions of those resolutions,

Convinced also of the need for equitable distribution of humanitarian relief to all segments

of the Iraqi population throughout the country,

Reaffirming the commitment of all Member States to the sovereignty and territorial integrity

of Iraq,

Acting under Chapter VII of the Charter of the United Nations,

1. Authorizes States, notwithstanding the provisions of paragraphs 3 (a), 3 (b) and 4 of

resolution 661 (1990) and subsequent relevant resolutions, to permit the import of petroleum

and petroleum products originating in Iraq, including financial and other essential transactions

directly relating thereto, sufficient to produce a sum not exceeding a total of one billion United

States dollars every 90 days for the purposes set out in this resolution and subject to the

following conditions:

(a)



Approval by the Committee established by resolution 661 (1990), in order to ensure the

transparency of each transaction and its conformity with the other provisions of this

resolution, after submission of an application by the State concerned, endorsed by the

Government of Iraq, for each proposed purchase of Iraqi petroleum and petroleum

products, including details of the purchase price at fair market value, the export route, the

opening of a letter of credit payable to the escrow account to be established by the

Secretary-General for the purposes of this resolution, and of any other directly related

financial or other essential transaction;

(b) Payment of the full amount of each purchase of Iraqi petroleum and petroleum products

directly by the purchaser in the State concerned into the escrow account to be established

by the Secretary-General for the purposes of this resolution;



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MONITORING AND ENFORCING HUMAN RIGHTS



As with all international organisations, the ultimate sanction is expulsion from the organisation.

Those who do not comply with the membership criteria can be asked to leave. Note for example,

the provisions of the Human Rights Council on membership – those States with poor human rights

records can be suspended. This occurred for the first time on 1 March 2011 when the General

Assembly resolved to suspend Libya from membership of the UN Human Rights Council – GA

Resolution 65/265 (2011). Libya’s membership was subsequently reinstated.

Question



Why are the United Nations, and indeed regional organisations, reluctant to use the ‘ultimate sanction’ of expulsion against a

State which does not comply with the norms of international and regional law?



5.4 International Criminal Courts, Tribunals and Processes

While technically not international human rights, but rather international criminal law, international criminal law has, as it evolved, made clear that individuals may be prosecuted for very serious

infringements of international human rights.

International criminal law builds on the work of the Nuremberg and Tokyo tribunals established after the Second World War and, more recently, the work of the two International Criminal

Tribunals (for Rwanda and the former Yugoslavia).



5.4.1 Ad hoc International Criminal Tribunals

Ad hoc International Criminal Tribunals were established under the auspices of the United Nations

to oversee the prosecution of those involved in the atrocities in Rwanda and the former Yugoslavia.

Both these bodies were established by the Security Council and operate as international bodies.

SC RESOLUTION 955 (1994) on the establishment of an international tribunal for Rwanda

1. Decides hereby, having received the request of the Government of Rwanda (S/1994/1115), to

establish an international tribunal for the sole purpose of prosecuting persons responsible for

genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations

committed in the territory of neighbouring States, between 1 January 1994 and 31 December

1994 and to this end to adopt the Statute of the International Criminal Tribunal for Rwanda

annexed hereto;

2. Decides that all States shall cooperate fully with the International Tribunal and its

organs in accordance with the present resolution and the Statute of the International Tribunal

and that consequently all States shall take any measures necessary under their domestic law

to implement the provisions of the present resolution and the Statute, including the obligation

of States to comply with requests for assistance or orders issued by a Trial Chamber under

Article 28 of the Statute, and requests States to keep the Secretary-General informed of such

measures;

3. Considers that the Government of Rwanda should be notified prior to the taking of decisions

under articles 26 and 27 of the Statute;

4. Urges States and intergovernmental and non-governmental organizations to contribute

funds, equipment and services to the International Tribunal, including the offer of expert

personnel;

5. Requests the Secretary-General to implement this resolution urgently and in particular

to make practical arrangements for the effective functioning of the International Tribunal,



INTERNATIONAL CRIMINAL COURTS, TRIBUNALS AND PROCESSES



| 169



including recommendations to the Council as to possible locations for the seat of the

International Tribunal at the earliest time and to report periodically to the Council;

6. Decides that the seat of the International Tribunal shall be determined by the Council

having regard to considerations of justice and fairness as well as administrative efficiency,

including access to witnesses, and economy, and subject to the conclusion of appropriate

arrangements between the United Nations and the State of the seat, acceptable to the Council,

having regard to the fact that the International Tribunal may meet away from its seat when it

considers it necessary for the efficient exercise of its functions; and decides that an office will

be established and proceedings will be conducted in Rwanda, where feasible and appropriate,

subject to the conclusion of similar appropriate arrangements;

7. Decides to consider increasing the number of judges and Trial Chambers of the

International Tribunal if it becomes necessary.

RESOLUTION 827 (1993) on a tribunal for Yugoslavia

2. Decides hereby to establish an international tribunal for the sole purpose of prosecuting

persons responsible for serious violations of international humanitarian law committed in the

territory of the former Yugoslavia between 1 January 1991 and a date to be determined by

the Security Council upon the restoration of peace and to this end to adopt the Statute of the

International Tribunal annexed to the above-mentioned report;

3. Requests the Secretary-General to submit to the judges of the International Tribunal,

upon their election, any suggestions received from States for the rules of procedure and

evidence called for in Article 15 of the Statute of the International Tribunal;

4. Decides that all States shall cooperate fully with the International Tribunal and its

organs in accordance with the present resolution and the Statute of the International Tribunal

and that consequently all States shall take any measures necessary under their domestic law

to implement the provisions of the present resolution and the Statute, including the obligation

of States to comply with requests for assistance or orders issued by a Trial Chamber under

Article 29 of the Statute;

5. Urges States and intergovernmental and non-governmental organizations to contribute

funds, equipment and services to the International Tribunal, including the offer of expert

personnel;

6. Decides that the determination of the seat of the International Tribunal is subject to the

conclusion of appropriate arrangements between the United Nations and the Netherlands

acceptable to the Council, and that the International Tribunal may sit elsewhere when it

considers it necessary for the efficient exercise of its functions;

7. Decides also that the work of the International Tribunal shall be carried out without

prejudice to the right of the victims to seek, through appropriate means, compensation for

damages incurred as a result of violations of international humanitarian law;

8. Requests the Secretary-General to implement urgently the present resolution and in

particular to make practical arrangements for the effective functioning of the International

Tribunal at the earliest time and to report periodically to the Council;

9. Decides to remain actively seized of the matter.



At present the work of these courts is being wound up. The Security Council approved an extension

of mandates for this purpose, authorising the appointment of additional ad litem judges to help the

tribunals towards a timely conclusion of proceedings. For the Rwandan tribunal, 31 December

2014 is the planned date for the conclusion of activities (SC Resolutions S/RES/2054 (2012)).

The tribunal on the former Yugoslavia has now secured the arrests of all indictees and is

working to a timetable to conclude trials.



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