By H. Harry L. Roque
The media reported recently that 110 missiles were fired by the United States and its allies against unspecified targets in Libya. These missiles were presumably fired pursuant to United Nations Security Council Resolution 1973 which, among others, gave member-nations of the United Nations a mandate to “to take all necessary measures x x x to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi”; and further, “to take all necessary measures to enforce compliance with the ban on flights”. These measures were enacted by the Security Council pursuant to Chapter 7 of the UN Charter. They are aimed at addressing a “threat to international peace” and are legally enforceable.
Resolution 1973, although an unusual way of enforcing international humanitarian and human rights law, is far from being novel. It has been the technique of the Security Council, commencing with the humanitarian crisis that struck the former Yugoslavia and Rwanda in the mid-1980’s, to characterize gross and systematic violations of human rights as threats to international peace to justify the imposition of sanctions. This includes military sanctions of the type that we are currently witnessing in Libya. But commendable as the practice has been, resort to coercive sanctions even for the most noble of purposes has been legally controversial, if not actually fraught with infirmities.When member-nations of the UN vowed to end wars by making them illegal, it was also their intention that in an effort to promote international peace, the UN itself, in addition to the long established right of states to resort to self-defense, would have a monopoly on the lawful use of force. This was the contemplation behind these provisions under Chapter 7 of the Charter, which has been referred to as “collective security measures”.
Again, intent-wise, the drafters of the Charter envisioned this to be implemented through a UN Force under the collective leadership of the Chiefs of Staff of the 5 permanent member-nations of the United Nations Security Council. The Charter also specified that the UN Force would be manned pursuant to an “agreement” to be entered into by UN member nations. Unfortunately, history would prove that the UN Force—its collective leadership, and the manner it would be manned—would prove elusive. In fact, since the establishment of the UN, there has only been one instance when the UN Force functioned as contemplated. This was during the Korea conflict in the 1950s.
Since then, all resort to collective security measures have been done either through UN “peacekeeping forces” whose existence and composition have not been pursuant to the language of Chapter 7 itself. The legal justification is that these forces were activated pursuant to resolutions which authorized “all necessary means” to compel a state to cease and desist from its breach of an international law norm. Likewise, it has been argued that these forces, albeit not pursuant to the language of the Charter, are nonetheless not prohibited by the Charter, and hence are permissible.
As we witness the continuing military engagement by US and its allied forces in Libya, I cannot help feel a bit uneasy over the fact that military action conducted by individual sovereign states may be conducted coincidentally because of Security Council authorization; but also on the basis of a country’s oftentimes selfish national interest. This is why the drafters of the UN Charter wanted a formation of a UN Force outside the influence of a single country.
Moreover, if it is the case that the literal provisions of the Charter have proven to be unrealistic, there exists a procedure by which the Charter itself may be amended. Unless and until it is in fact amended, the reality remains that while collective security measures are the subject of existing state practice, the fact that it is not in compliance with the language of the charter itself may weaken, rather than strengthen the normative value of the prohibition on the use of force. This, in turn, will cause irreparable injury to world peace.