The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union

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The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union

in Max Planck Yearbook of United Nations Law Online


I See primarily Article 53 UN Charter. 2 B. Simma (ed.), The Charter. of the United Nations: A Commentary, 1995, 751. Note that Dailler and Pellet speak of the provisions being caduques, that is: null and void. See P. Dailler/ A. Pellet, Droit International Public, 1994, 887.

3 Y. Blum, "Russia Takes Over the Soviet Union's Seat at the United Na- tions", EJIL 3 (1992), 354 et seq. (360-361). It must be noted, however, that according to widely held opinion among legal scholars, the Russian Federa- tion was entitled to the USSR's seat in the Security Council due to its legal identity with the former USSR, see A. Zimmermann, Staatennachfolge in v6lkerrechtliche Vertrage, 2000, 85. 4 Legal Consequences for States of the Continued Presence of South Africa in Namibia (Soutb-West Africa) notwitbstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 et seq. (22, para. 22).

5 C. Grey, International Law and the Use of Force, 2000, 86-87. 6 M. Shaw, International Law, 2003, 1034-1035. 7 Case concerning Military and Paramilitary Activities in and against Nica- ragua, ICJ Reports 1986, 14 et seq. (103, para. 195).

8 Grey, see note 5, 97. 9 For instance see A. Cassese, International Law, 2001, 315. 10 Grey, see note 5, 109 and 110. 11 I. Brownlie, International Law and the Use of Force by States, 1963, 301. iz Nicaragua case, see note 7, (94, para. 176); and Legality of tbe Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226 et seq. (245, para. 41).

13 Simma, see note 2, 677. 14 Nicaragua, case, see note 7, 104, para. 195.

15 Article 27 (2) and (3) of the Charter of the United Nations reads: 2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members. 3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from vot- ing. 16 Dailler/ Pellet, see note 2, 929.

17 B. Conforti, "Le pouvoir discretionnaire du Conseil de sécurité en matiere de constatation d'une menace contre la paix, d'une rupture de la paix ou d'un acte d'agression", in: R.J. Dupuy (ed.), The Development of the Role of the Security Council, Workshop of the Hague Academy of International Law, 1993, 14 et seq. (52-53). Translated from the French. 18 United Nations Security Council, Note by the President of the Security Council, Doc. S/23500 of 31 January 1992. Emphasis added.

i9 For Iraq-Kuwait, see S/RES/660 (1990) of 2 August 1990; for Yugoslavia, S/RES/713 (1991) of 25 September 1991. 20 See S/RES/688 (1991) of 5 April 1991. 21 Consider for instance, the aftermath of nuclear tests of India and Pakistan in May 1998, where the Council reiterated the statement made at the level of the Heads of State within the Security Council in 1992: "that the prolif- eration of all weapons of mass destruction constitutes a threat to interna- tional peace and security", see S/RES/1172 (1998) of 6 June 1998. In March 2003, the Council accepted a Declaration regarding "the proliferation of small arms and light weapons and mercenary activities" as it considered that such propagation constituted a "threat to peace and security in West Africa", see S/RES/1467 (2003) of 18 March 2003. 22 See S/RES/794 (1992) of 3 December 1992; S/RES/929 (1994) of 22 June 1994; and S/RES/1078 (1996) of 9 November 1996. 23 See S/RES/940 (1994) of 31 July 1994.

z4 See S/RES/1101 (1997) of 28 March 1997; and S/RES/1114 (1997) of 19 June 1997. zs See J. Allain, "The Legacies of Lockerbie: Judicial Review of Security Council Action or First Manifestation of 'Terrorism' as a Threat to the Peace?", EJIL 15 (2004), (Forthcoming). zb See S/RES/1269 (1999) of 19 October 1999. z� See Declaration on the Global Effort to Combat Terrorism, attached to United Nations Security Council Resolution 1377, S/RES/1377 (2001) of 12 November 2001.

28 I. Claude, Swords into Plowshares: The Problems and Progress of Interna- tional Organization, 1965, 106. 29 G. Ress, "Article 53", in: Simma, see note 2, 687. 30 Note that Article 53 does provide for an exception in regard to so-called enemy States; See discussion above. Article 53 thus continues: [...] with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in re- gional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for pre- venting further aggression by such a state. 2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signa- tory of the present Charter.

31 Ress, see note 29, 730. 32 See arts 1 and 7, North Atlantic Treaty of 4 April 1949.

33 See arts 1 and 3, Protocol of Amendment to the Inter-American Treaty of Reciprocal Assistance of 26 July 1975.

34 In the lead up to the NATO action the UN Security Council passed the following resolutions: S/RES/1160 (1998) of 31 March 1998; S/RES/1199 (1998) of 23 September 1998; and S/RES/1203 (1998) of 24 October 1998. 35 As quoted in B. Simma, "NATO, the UN and the Use of Force: Legal As- pects", EJIL 10 (1999), 1 et seq. (7). Note also that Belgium has sought to justify its actions as part of NATO against Yugoslavia in their case before the ICJ as being legal, as a case of humanitarian intervention. See A. Schwabach, "Yugoslavia v. NATO, Security Council Resolution 1244, and the Law of Humanitarian Intervention", Syracuse Journal of International Law and Commerce 27 (2000), 77 et seq. (91). 36 See, for instance, M. Reisman, "Kosovo's Antinomies", AJIL 93 (1999), 860 et seq. (862); while Pellet considers the issue directly in A. Pelet, "Brief Remarks on the Unilateral Use of Force", EJIL 11 (2000), 385 et seq. Note also that NATO acted ultra vires the North Atlantic Treaty which, as men- tioned earlier, is a defensive pact.

37 Independent International Commission on Kosovo, Kosovo Report: Con- flict, International Response, Lessons Learned, 2000. 4. When considering the issue in more detail, the Commission "puts forward the interpretation of the emerging doctrine of humanitarian intervention. This interpretation is situated in a grey zone of ambiguity between an extension of interna- tional law and a proposal for an international moral consensus. In essence, this grey zone goes beyond strict ideas of legality to incorporate more flexible views of legitimacy." Emphasis in the original, see 164. 38 A. Cassese, "Ex iniuria ius oritur: We are Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?", EJIL 10 (1999), 23 et seq. (25). Emphasis added.

39 L. Henkin, "Editorial Comments: NATO's Kosovo Intervention: Kosovo and the Law of 'Humanitarian Intervention"', AJIL 93 (1999), 824 et seq. (824-825). ). 40 I say, for the most part, because there has been a movement by the UN Sec- retary-General, Kofi Annan, to endorse a paradigm shift which has been put forward by the quasi-governmental, 2001 International Commission on Intervention and State Sovereignty, which seeks to speak in terms of a "responsibility to protect" rather than a "right of humanitarian interven- tion" ; See International Commission on Intervention and State Sover- eignty, Responsibility to Protect, 2001, 11-12 and 16-17; wherein the justifi- cation is given regarding the shifting of the parameters of the discourse. For the endorsement by the UN Secretary-General see Secretary-General, "Genocide is a Threat to Peace Requiring Strong, United Action: Secre- tary-General Tells Stockholm International Forum", Press Release, Doc. SG/SM/91226/Rev.l (2004) of 11 February 2004. 41 See A. C. Arend/ R. Beck, International Law and the Use of Force: Beyond the UN Paradigm, 1993, 122-123 and 124-125. Peter Hilpold makes the in- teresting argument that while the justification of "humanitarian interven- tion'' would have been available in both these cases, the states instead justi- fied their military interventions on the very weak basis of claiming self- defence. Hilpold writes; "The fact that both Vietnam and Tanzania have tried to justify their actions by allegations that do not withstand an even

rudimentary scrutiny [i.e.: recourse to self-defence] while the humanitarian argument would have been at hand speaks volumes for the legal quality both states have attributed to this concept: it seems that neither of the two states attributed much reputation to this concept''. See P. Hilpold, "Hu- manitarian Intervention: Is There a Need for a Legal Reappraisal?", EJIL 12 (2001), 437 et seq. (444-445). 42 S. Chesterman, Just War or just Peace?: Humanitarian Intervention and International Law, 2001, 84. This assessment seems to hold: See Arend/ Beck, see note 41, 128 where they state that; "[...] since the Second World War there may well have been no authentic example of a 'humanitarian in- tervention'". Such a view is also held in S. Murphy, Humanitarian Inter- vention; The United Nations in an Evolving World Order, 1996, 142-143. For those examining, grosso modo, the same cases but coming to different conclusions see: F. Teson, Humanitarian Intervention: An Inquiry into Law and Morality, 1988, 155-200; and F. K. Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention, 1999, 102-135. 43 Non-Aligned Movement, "Declaration of the Group of 77 South Summit", 10-14 April 2000, para. 54. Available at . 44 Non-Aligned Movement, "Final Document of the XIII Conference of Heads of State or Government of the Non-Aligned Movement Kuala Lumpur", 24-25 February 2003, para. 16. Available at .

45 See L. Damrosch/ B. Oxman, "Editor's Introduction - Agora: Future Implications of the Iraq Conflict", AJIL 97 (2003), 553 et seq. (555). 46 W. Taft/ T. Buchwald, "Preemption, Iraq, and International Law", AJIL 97 (2003), 557 et seq. (559). 47 Ibid.

48 Ibid., 563. 49 Ibid., 557-558. 50 Ibid., 560. sl Ibid., 562.

52 Ibid., 563. 53 Cassese, see note 9, 310-311. Emphasis in the original. 54 Grey, see note 5, 112. See also Simma, see note 2, 675-676, where it is stated "that recourse to traditional customary law does not lead to a broadening of the narrow right of self-defence laid down in Art. 51. An anticipatory right of self-defence would be contrary to the wording of Art. 51 ('if an armed attack occurs') as well as its object and purpose, which is to cut to a minimum the unilateral use of force in international relations. [...] This in- terpretation corresponds to the predominant state practice, as a general right to anticipatory self-defence has been invoked under the UN Char- ter". Or Cassese who, having examination of the manner in which coun- tries have reacted to claims of pre-emptive self-defence, notes: "it is appar- ent that such practice does not evince agreement among States [...] with re- gard to anticipatory self-defence", see note 9, 309.

ss Consider the following from the Nicaragua case, see note 7, 98: "If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications con- tained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule''.

56 See D. Wippman, "Enforcing the Peace; ECOWAS and the Liberian Civil War", in: L. Damrosch (ed.), Enforcing Restraint: Collective Intervention in Internal Conflicts, 1993, 167 et seq. 57 H. Howe, Ambiguous Order: Military Forces in African States, 2001, 136.

58 J. Levitt, "Humanitarian Intervention by Regional Actors in Internal Con- flicts : The Cases of ECOWAS in Liberia and Sierra Leone", Tem. Int'l & Comp. L. J. 12 (1998), 333 et seq. (347). 59 S/RES/788 (1992) of 19 November 1992. bo S/RES/866 (1993) of 22 September 1993. 61 S/RES/1132 (1997) of 8 October 1997. 62 Ibid., para. 8.

63 S/RES/1162 (1998) of 17 April 1998. 64 See B. Kioko, "The Right of Intervention under the African Union's Con- stitutive Act: From Non-Interference to Non-Intervention", Int'l Rev. of the Red Cross 85 (2003), 807 et seq. (821). 65 Article 10 (c), Economic Community of West Africa States, Protocol relat- ing to the Mechanism for Conflict Prevention, Management Resolution, Peace-Keeping and Security of 10 December 1999.

66 United Nations Secretariat, Report of the Independent In9uiry into the Ac- tions of the United Nations during the 1994 Genocide in Rwanda, Doc. S/1999/1257(1999) of 16 December 1999, 3. 67 Organization of African Unity, The International Panel of Eminent Per- sonalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events, 2000, para. 13.1. 68 United Nations Secretariat, see note 66, 38; see also L. Melvern, A People Betrayed: The Role of the West in Rwanda's Genocide, 2000, 180. 69 The quotation is from OAU, see note 67, para. 19.28. 70 Organization of African Unity, ibid., Introductory Chapter, para. 3.

71 Ibid., see Conclusions at Chapter 24. 72 See T. Butcher, "Gaddafi casts a shadow over African Union", The Daily Telegraph of 8 July 2002, 12. 73 See C. Packer/ D. Rukare, "The New African Union and Its Constitutive Act", AJIL 96 (2002), 365 et seq. (365).

74 See Constitutive Act of the Africa Union of 11 July 2000. 75 See Article 24, Charter of the United Nations. 76 Article 5 of the Constitutive Act, see note 74, entitled Organs of the Union: 1. The organs of the Union shall be: (a) The Assembly of the Union; (b) The Executive Council; (c) The Pan-African Parliament; (d) The Court of Justice; (e) The Commission;

(f) The Permanent Representatives Committee; (g) The Specialized Technical Committees; (h) The Economic, Social and Cultural Council; (i) The Financial Institutions; 2. Other organs that the Assembly may decide to establish. 77 Ibid. 78 See article 5, Protocol on Amendments to the Constitutive Act of the Afri- can Union of 3 February and 11 July 2003, which reads: "In Article 5 of the Act (Organs of the Union), the insertion of a new sub- paragraph (f) with consequential renumbering of subsequent subpara- graphs : (f) The Peace and Security Council [...]" 79 Article 2, Protocol Relating to the Establishment the Peace and Security Council of the African Union of 9 July 2002.

8° Ibid., article 4. gl Ibid., article 7 (3). 82 Ibid., article 7 (2 and 4).

83 See African Union, "The Protocol of the Peace and Security Council enters into Force", Press Release, No. 117/2003 of 26 December 2003. Available at . 84 See article 10, Constitutive Act, see note 74. 85 Article 5 (1), Protocol Relating to the Establishment, see note 79.

86 Ibid., article 5 (2) 87 African Union, "African Union Elects Members of the Peace and Security Council and Two New Commissioners", Press Release No. 18/2004 of 16 March 2004. Available at . Note that the African region they represent is stated in parenthesis. gg Though the Peace and Security Council may meet elsewhere upon invita- tion of a state, provided that two-thirds of the members agree. See article 8 (4), Protocol Relating to the Establishment, see note 79. Such a session did take place in Cape Town, South Africa on 3 May 2004. See Peace and Secu- rity Council, Communiqu6 of the Peace and Security Council, PSC/PR/Comm. (VII) of 3 May 2004.

89 Article 8, of the Protocol, see note 79.

90 African Union, "Alpha Omar Konare Assumes Office as Chairperson of the Commission of the African Union", Press Release No. 075 A/2003 of 16 September 2003. Available at . 91 Article 10 (2)(c), Protocol Relating to the Establishment, see note 79. 92 Peace and Security Council, Communique of the Peace and Security Council, PSC/PR/Comm. (V) of 13 April 2004, paras D(7) and E(4). 93 Article 10 (3)(b), Protocol Relating to the Establishment, see note 79. 94 Ibid., article 10 (3)(c). If the first handful of sessions of the Peace and Secu- rity Council are to set a precedent, it is clear that the Chairperson will be active in preparing such reports and documents. Consider the reports pre- pared for the fifth and sixth sessions of the Peace and Security Council by the Chairperson on situations in Comoros, Cote D'Ivoire, Democratic Re- public of the Congo, Somalia, and Sudan. Available on the website of the Institute of Security Studies, South Africa, at .

95 See article 12 (2 through 4), Protocol Relating to the Establishment, see note 79. 96 For consideration of the African dispute settlement regime and the devel- opment of the OAU Mechanism consider J. Allain, "The Evolution of Dis- pute Settlement in Africa: From Pacifism to Militarism", South African Yearbook of International Law 23 (1998), 65 et seq. 97 Article 22 (2), Protocol Relating to the Establishment, see note 79. 98 Ibid., article 13 (1).

99 Ibid., article 13 (3). Note that the modalities of the dealing with post- conflict and humanitarian situations are addressed in the Protocol in arts 14 (Peace Building) and 15 (Humanitarian Action). loo Ibid., article 13 (8) and (9). 101 See African Union, "First Meeting of the African Ministers of Defence and Security on the Establishment of the African Standby Force and the Com- mon African Defence and Security Policy", EXP/Def.& Sec.Rpt.(IV) Rev.l 1 of 17-18 January 2004. Available on the website of the Institute of Security Studies, South Africa, at . 102 African Union, Solemn Declaration on a Common African Defence and Se- curity Policy, Second Extra-Ordinary Assembly of the Union of 28 Febru- ary 2004, 19, Section A(l)(iii).

103 Article 21 (2 and 3), Protocol Relating to the Establishment, see note 79. l04 See African Union, "The Government of Finland Donates 750.000 Euros to the AU Peace Fund", Press Release No. 122/2003 of 31 December 2003. Available at . tos African Union, "The Government of the Kingdom of Norway and the Af- rican Union sign an Agreement for the Grant of US$ 424.000 to the AU Peace Fund", Press Release No. 95/2003 of 17 November 2003. Available at . lob Protocol Relating to the Establishment, see note 79, article 11 (2).

107 Ibid., article 11 (4). 108 Ibid., article 16 (1). io9 Ibid., see article 16 (2 through 9).

110 Ibid., article 12 (2)(b). 111 African Union, Solemn Declaration on a Common African Defence and Se- curity Policy, Second Extra-Ordinary Assembly of the Union of 28 Febru- ary 2004, 26, para. 25. Note that each of the sub-regional organizations gives an indication as to its geographic reach except for IGAD; its member- ship includes: Djibouti, Eritrea, Ethiopia, Kenya, Somalia, Sudan and Uganda. 112 Peace and Security Council, Communique of the Peace and Security Council, PSC/PR/Comm. (III) of 27 March 2004, para. 6. 112 Ibid., article 10 (3)(b). 113 Peace and Security Council, Communique, PSC/AHG/Comm. (X) of 25 May 2004, para. C (7).

114 For discussion of the Pan-African Parliament, see K. Magliveras/ G. Naldi, "The Pan-African Parliament of the African Union: An Overview", Afri- can Human Rigbts Law Journal 3 (2003), 222 et seq. 115 For consideration of the African Commission on Human and Peoples' Rights, see Nsongurua Udombana, "Can the Leopard Change its Spots? The African Union Treaty and Human Rights'', Am. U. Int'l L. Rev. 17 (2002), 1177 et seq.

116 Article 7 (1), Constitutive Act of the Africa Union, see note 78. 117 African Union, Rules of Procedure of the Assembly of the Union, ASS/AU/2(I), 9-10 July 2002.

118 The proposal was meant to move towards a collective security arrangement to defend African states from outside aggression such as had been visited upon Libya in 1986 by the United States of America. 119 E. Baimu/ K. Sturman, "Amendment to the African Union's Right to In- tervene : A Shift from Human Security to Regime Security?", African Secu- rity Review 12 (2003), 37 et seq. (38). 120 Ibid., 39.

121 See article 4, Protocol on Amendments to the Constitutive Act of the Afri- can Union of 3 February and 11 July 2003. Emphasis added. 122 For the development of jurisprudence regarding these crimes before the ICTY and ICTR see J. Ackerman/ E. O'Sullivan, Practice and Procedure of the International Criminal Tribunal for the Former Yugoslavia: with Se- lected Materials from the International Criminal Tribunal for Rwanda, 2000. For the International Criminal Court, consider W Schabas, An In- troduction to the International Criminal Court, 2001. 123 Kioko, see note 64, 815.

124 Balmy/ Sturman, see note 119, 43 ; and Kioko, see note 64, 816. 125 Kioko, see note 64. 126 Baimu/ Sturman, see note 119, 42.

iz� For further manifestations of this anomaly within the Protocol establishing the Peace and Security Council see article 4 (j) and article 6 (d). 128 See African Union, List of Countries which have Signed, Ratified, Acceded to The African Union Convention on the Protocol On the Amendments to the Constitutive Act of the African Union. See the website of the African Union at: . Note that, by way of article 13, the Protocol will only enter into force thirty days after the deposit of in- struments by two-thirds of the members of the AU: that is when a total of thirty-six states have ratified.

1z9 J. Cilliers/ K. Sturman, "The Right Intervention: Enforcement Challenges for the African Union", African Security Review 11 (2002), 29 et seq. (36- 37). t3o Article 4 (k), Protocol Relating to the Establishment, see note 79. Emphasis added.

131 Article 3 (e) Constitutive Act of the Africa Union of 11 July 2000.

132 Emphasis added. For discussion of Regional Mechanisms see Section V 2. c. above. 133 Article 17 (1), Protocol Relating to the Establishment, see note 79.

i3a Kioko, see note 64, 815. 135 Kioko, ibid., 821.

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