The UN Report, What It Means to the US
I read Captain Ed’s post. Then I spent the next two + hours reading and writing my take on this report. It’s pretty interesting and also fairly strait forward. While a bit longer than normal, keep in mind the report is 92 pages on PDF, before the annexes:
After spending over an hour and a half reading the UN report, certain things emerge at least to my non-legal mind.
1.They do a surprisingly good job of reflecting on some of the core problems within the UN, among them:
* a lack of credibility, related to both a lack of military force and will to use what they have.
*An over dependence on the few that can provide significant force, i.e., US, UK, FR, AU
2. The UN is actively trying to curb US power, while trying to justify their own relevancy-no surprise there, examples:
*82. Many people assumed it was quite natural that the United States should seek Security Council support for going to war against Iraq in 2003. Superpowers, however, have rarely sought Security Council approval for their actions. That all States should seek Security Council authorization to use force is not a time honoured principle; if this were the case, our faith in it would be much stronger. Our analysis suggests quite the opposite - that what is at stake is a relatively new emerging norm, one that is precious but not yet deep-rooted.
*83. The case of Iraq prompted much difference of opinion. Some contend that the Security Council was ineffective because it could not produce Iraqi compliance with its resolutions. Others argue Security Council irrelevance because the Council did not deter the United States and its coalition partners from waging
war. Still others suggest that the refusal of the Security Council to bow to United States pressure to legitimate the war is proof of its relevance and indispensability: although the Security Council did not deter war, it provided a clear and principled standard with which to assess the decision to go to war. The flood of
Foreign Ministers into the Security Council chambers during the debates, and widespread public attention, suggest that the United States decision to bring the question of force to the Security Council reaffirmed not just the relevance but the centrality of the Charter of the United Nations.
3.There is some attempt to make the US appear to be ‘over-reacting’, to the terrorism threat:
*113. A different threat is posed by radiological weapons, which are more weapons of mass disruption than mass destruction. Radiological weapons can use plutonium or highly enriched uranium but can rely simply on radioactive materials, of which there are millions of sources used in medical and industrial facilities worldwide.
*82. The immediate destructive effect of a radiological or “dirty” bomb is only as great as its conventional explosive, and even the radiation effects of such a bomb are likely to be limited.
4. Africa, including Rwanda genocide is featured prominently and as reason enough not to ‘over-react’ to 9/11.
*87. The biggest failures of the United Nations in civil violence have been in halting ethnic cleansing and genocide. In Rwanda, Secretariat officials failed to provide the Security Council with early warning of extremist plans to kill thousands of Tutsis and moderate Hutus. When the genocide started, troop
contributors withdrew peacekeepers, and the Security Council, bowing to United States pressure, failed to respond. In Bosnia and Herzegovina, United Nations peacekeeping and the protection of humanitarian aid
became a substitute for political and military action to stop ethnic cleansing and genocide. In Kosovo, paralysis in the Security Council led the North Atlantic Treaty Organization (NATO) to bypass the United Nations. Only in one instance in the 1990s - in East Timor - did the Security Council, urged on by the Secretary-General, work together with national Governments and regional actors to apply concerted pressure swiftly to halt large-scale killing.
* 40. The credibility of any system of collective security also depends on how well it promotes security for all its members, without regard to the nature of would be beneficiaries, their location, resources or relationship to great Powers.
*41. Too often, the United Nations and its Member States have discriminated in responding to threats to international security. Contrast the swiftness with which the United Nations responded to the attacks on 11 September 2001 with its actions when confronted with a far more deadly event: from April to mid-July 1994, Rwanda experienced the equivalent of three 11 September 2001 attacks every day for 100 days,31 all in a country whose population was one thirty-sixth that of the United States. Two weeks into the genocide, the Security Council withdrew most of its peacekeepers from the country.32 It took almost a month for United Nations officials to call it a genocide and even longer for some Security Council members.33 When a new mission was finally authorized for Rwanda, six weeks into the genocide, few States offered soldiers.34 The mission deployed as the genocide ended.
*42. Similarly, throughout the deliberation of the High-level Panel on Threats, Challenges and Change, we have been struck once again by the glacial speed at which our institutions have responded to massive human rights violations in Darfur, Sudan.
5. The environment, poverty, and HIV take precedence over other threats, they are implied though undocumented causal effects of terrorism-contrary to the reality of middle class/Middle East/Islamic extremism.
6. Related to number 5 is another implied thesis, that if the ‘developed’ countries would ‘really care’ for those less well off, terrorism would be reduced if not eliminated:
*145. Terrorism attacks the values that lie at the heart of the Charter of the United Nations: respect for human rights; the rule of law; rules of war that protect civilians; tolerance among peoples and nations; and the peaceful resolution of conflict. Terrorism flourishes in environments of despair, humiliation, poverty, political oppression, extremism and human rights abuse; it also flourishes in contexts of regional conflict and foreign occupation; and it profits from weak State capacity to maintain law and order.
*146. Two new dynamics give the terrorist threat greater urgency. Al-Qaida is the first instance - not likely to be the last - of an armed non-State network with global reach and sophisticated capacity. Attacks against more than 10 Member States on four continents in the past five years have demonstrated that Al-Qaida and associated entities pose a universal threat to the membership of the United Nations and the United Nations itself. In public statements, Al-Qaida has singled out the United Nations as a major obstacle to its goals and defined it as one of its enemies. Second, the threat that terrorists - of whatever type, with whatever motivation - will seek to cause mass casualties creates unprecedented dangers. Our recommendations provided above on controlling the supply of nuclear, radiological, chemical and biological materials and building robust global public health systems are central to a strategy to prevent this threat.
7. There appears to be an attempt, at least to my reading, of socialism writ large:
*89. The role of the United Nations in preventing wars can be strengthened by giving more attention to developing international regimes and norms to govern some of the sources and accelerators of conflict. A very wide range of laws, norms, agreements and arrangements are relevant here, covering legal regimes
and dispute resolution mechanisms, arms control and disarmament regimes, and dialogue and cooperation arrangements. Some examples are set out below.
*90. In the area of legal mechanisms, there have been few more important recent developments than the Rome Statute creating the International Criminal Court. In cases of mounting conflict, early indication by the Security Council that it is carefully monitoring the conflict in question and that it is willing to use its powers under the Rome Statute might deter parties from committing crimes against humanity and violating the laws of war. The Security Council should stand ready to use the authority it has under the Rome Statute to
refer cases to the International Criminal Court.
8. I Think this may be the section I find the most interesting:
*Collective security and the use of force Synopsis:
What happens if peaceful prevention fails? If none of the preventive measures so far described stop the descent into war and chaos? If distant threats do become imminent? Or if imminent threats become actual? Or if a non-imminent threat nonetheless becomes very real and measures short of the use of military force seem powerless to stop it? We address here the circumstances in which effective collective security may require the backing of military force, starting with the rules of international law that must govern any decision to go to war, if anarchy is not to prevail. It is necessary to distinguish between situations in which a State claims to act in self-defence; situations in which a State is posing a threat to others outside its borders; and situations in which the threat is primarily internal and the issue is the responsibility to protect a State’s own people. In all cases, we believe that the Charter of the United Nations, properly understood and applied, is equal to the task: Article 51 needs neither extension nor restriction of its long-understood scope, and Chapter VII fully empowers the Security Council to deal with every kind of threat that States may confront. The task is not to find alternatives to the Security Council as a source of authority but to make it work better than it has. That force can legally be used, does not always mean that, as a matter of good conscience and good sense, it should be used. We identify a set of guidelines - five criteria of legitimacy - which we believe the Security Council (and anyone else involved in these decisions) should always address in considering whether to authorize or apply military force. The adoption of these guidelines (seriousness of threat, proper purpose, last resort, proportional means and balance of consequences) will not produce agreed conclusions with push-button predictability, but should significantly improve the chances of reaching international consensus on what have been in recent years deeply divisive issues. We also address here the other major issues that arise during and after violent conflict, including the needed capacities for peace enforcement, peacekeeping and peacebuilding, and the protection of civilians. A central recurring theme is the necessity for all members of the international community, developed and developing States alike, to be much more forthcoming in providing and supporting deployable military resources. Empty gestures are all too easy to make: an effective, efficient and equitable collective security system demands real commitment.
9. There seems to be a real attempt to declare the US acted illegally in Iraq:
*185. The Charter of the United Nations, in Article 2.4, expressly prohibits Member States from using or threatening force against each other, allowing only two exceptions: self-defence under Article 51, and military measures authorized by the Security Council under Chapter VII (and by extension for regional organizations under Chapter VIII) in response to “any threat to the peace, breach of the peace or act of aggression”.
*186. For the first 44 years of the United Nations, Member States often violated these rules and used military force literally hundreds of times,104 with a paralysed Security Council passing very few Chapter VII resolutions105 and Article 51 only rarely providing credible cover. Since the end of the cold war, however, the yearning for an international system governed by the rule of law has grown. There is little evident international acceptance of the idea of security being best preserved by a balance of power, or by any single - even benignly motivated - superpower.
*187. But in seeking to apply the express language of the Charter, three particularly difficult questions arise in practice: first, when a State claims the right to strike preventively, in self-defence, in response to a threat which is not imminent; secondly, when a State appears to be posing an external threat, actual or potential, to other States or people outside its borders, but there is disagreement in the Security Council as to what to do about it; and thirdly, where the threat is primarily internal, to a State’s own people.
10. It appears to me that they are attempting to take away the right of ‘preemption’ to perceived threat:
*188. The language of this article is restrictive: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures to maintain international peace and security”. However, a threatened State, according to long established international law,106 can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate. The problem arises where the threat in question is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile intent, of nuclear weapons making capability.
*189. Can a State, without going to the Security Council, claim in these circumstances the right to act, in anticipatory self-defence, not just pre-emptively (against an imminent or proximate threat) but preventively (against a non-imminent or non-proximate one)? Those who say “yes” argue that the potential harm from some threats (e.g., terrorists armed with a nuclear weapon) is so great that one simply cannot risk waiting until they become imminent, and that less harm may be done (e.g., avoiding a nuclear exchange or radioactive fallout from a reactor destruction) by acting earlier.
*190. The short answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion,
negotiation, deterrence and containment - and to visit again the military option.
*191. For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed
action, to be accepted. Allowing one to so act is to allow all.
*192. We do not favour the rewriting or reinterpretation of Article 51.
*196. It may be that some States will always feel that they have the obligation to their own citizens, and the capacity, to do whatever they feel they need to do, unburdened by the constraints of collective Security Council process. But however understandable that approach may have been in the cold war years, when the United Nations was manifestly not operating as an effective collective security system, the world has now changed and expectations about legal compliance are very much higher.
11. The balance of the report mostly addresses peacekeeping and nation building, the later the UN has had some luck with.
After spending over an hour and a half reading the UN report, certain things emerge at least to my non-legal mind.
1.They do a surprisingly good job of reflecting on some of the core problems within the UN, among them:
* a lack of credibility, related to both a lack of military force and will to use what they have.
*An over dependence on the few that can provide significant force, i.e., US, UK, FR, AU
2. The UN is actively trying to curb US power, while trying to justify their own relevancy-no surprise there, examples:
*82. Many people assumed it was quite natural that the United States should seek Security Council support for going to war against Iraq in 2003. Superpowers, however, have rarely sought Security Council approval for their actions. That all States should seek Security Council authorization to use force is not a time honoured principle; if this were the case, our faith in it would be much stronger. Our analysis suggests quite the opposite - that what is at stake is a relatively new emerging norm, one that is precious but not yet deep-rooted.
*83. The case of Iraq prompted much difference of opinion. Some contend that the Security Council was ineffective because it could not produce Iraqi compliance with its resolutions. Others argue Security Council irrelevance because the Council did not deter the United States and its coalition partners from waging
war. Still others suggest that the refusal of the Security Council to bow to United States pressure to legitimate the war is proof of its relevance and indispensability: although the Security Council did not deter war, it provided a clear and principled standard with which to assess the decision to go to war. The flood of
Foreign Ministers into the Security Council chambers during the debates, and widespread public attention, suggest that the United States decision to bring the question of force to the Security Council reaffirmed not just the relevance but the centrality of the Charter of the United Nations.
3.There is some attempt to make the US appear to be ‘over-reacting’, to the terrorism threat:
*113. A different threat is posed by radiological weapons, which are more weapons of mass disruption than mass destruction. Radiological weapons can use plutonium or highly enriched uranium but can rely simply on radioactive materials, of which there are millions of sources used in medical and industrial facilities worldwide.
*82. The immediate destructive effect of a radiological or “dirty” bomb is only as great as its conventional explosive, and even the radiation effects of such a bomb are likely to be limited.
4. Africa, including Rwanda genocide is featured prominently and as reason enough not to ‘over-react’ to 9/11.
*87. The biggest failures of the United Nations in civil violence have been in halting ethnic cleansing and genocide. In Rwanda, Secretariat officials failed to provide the Security Council with early warning of extremist plans to kill thousands of Tutsis and moderate Hutus. When the genocide started, troop
contributors withdrew peacekeepers, and the Security Council, bowing to United States pressure, failed to respond. In Bosnia and Herzegovina, United Nations peacekeeping and the protection of humanitarian aid
became a substitute for political and military action to stop ethnic cleansing and genocide. In Kosovo, paralysis in the Security Council led the North Atlantic Treaty Organization (NATO) to bypass the United Nations. Only in one instance in the 1990s - in East Timor - did the Security Council, urged on by the Secretary-General, work together with national Governments and regional actors to apply concerted pressure swiftly to halt large-scale killing.
* 40. The credibility of any system of collective security also depends on how well it promotes security for all its members, without regard to the nature of would be beneficiaries, their location, resources or relationship to great Powers.
*41. Too often, the United Nations and its Member States have discriminated in responding to threats to international security. Contrast the swiftness with which the United Nations responded to the attacks on 11 September 2001 with its actions when confronted with a far more deadly event: from April to mid-July 1994, Rwanda experienced the equivalent of three 11 September 2001 attacks every day for 100 days,31 all in a country whose population was one thirty-sixth that of the United States. Two weeks into the genocide, the Security Council withdrew most of its peacekeepers from the country.32 It took almost a month for United Nations officials to call it a genocide and even longer for some Security Council members.33 When a new mission was finally authorized for Rwanda, six weeks into the genocide, few States offered soldiers.34 The mission deployed as the genocide ended.
*42. Similarly, throughout the deliberation of the High-level Panel on Threats, Challenges and Change, we have been struck once again by the glacial speed at which our institutions have responded to massive human rights violations in Darfur, Sudan.
5. The environment, poverty, and HIV take precedence over other threats, they are implied though undocumented causal effects of terrorism-contrary to the reality of middle class/Middle East/Islamic extremism.
6. Related to number 5 is another implied thesis, that if the ‘developed’ countries would ‘really care’ for those less well off, terrorism would be reduced if not eliminated:
*145. Terrorism attacks the values that lie at the heart of the Charter of the United Nations: respect for human rights; the rule of law; rules of war that protect civilians; tolerance among peoples and nations; and the peaceful resolution of conflict. Terrorism flourishes in environments of despair, humiliation, poverty, political oppression, extremism and human rights abuse; it also flourishes in contexts of regional conflict and foreign occupation; and it profits from weak State capacity to maintain law and order.
*146. Two new dynamics give the terrorist threat greater urgency. Al-Qaida is the first instance - not likely to be the last - of an armed non-State network with global reach and sophisticated capacity. Attacks against more than 10 Member States on four continents in the past five years have demonstrated that Al-Qaida and associated entities pose a universal threat to the membership of the United Nations and the United Nations itself. In public statements, Al-Qaida has singled out the United Nations as a major obstacle to its goals and defined it as one of its enemies. Second, the threat that terrorists - of whatever type, with whatever motivation - will seek to cause mass casualties creates unprecedented dangers. Our recommendations provided above on controlling the supply of nuclear, radiological, chemical and biological materials and building robust global public health systems are central to a strategy to prevent this threat.
7. There appears to be an attempt, at least to my reading, of socialism writ large:
*89. The role of the United Nations in preventing wars can be strengthened by giving more attention to developing international regimes and norms to govern some of the sources and accelerators of conflict. A very wide range of laws, norms, agreements and arrangements are relevant here, covering legal regimes
and dispute resolution mechanisms, arms control and disarmament regimes, and dialogue and cooperation arrangements. Some examples are set out below.
*90. In the area of legal mechanisms, there have been few more important recent developments than the Rome Statute creating the International Criminal Court. In cases of mounting conflict, early indication by the Security Council that it is carefully monitoring the conflict in question and that it is willing to use its powers under the Rome Statute might deter parties from committing crimes against humanity and violating the laws of war. The Security Council should stand ready to use the authority it has under the Rome Statute to
refer cases to the International Criminal Court.
8. I Think this may be the section I find the most interesting:
*Collective security and the use of force Synopsis:
What happens if peaceful prevention fails? If none of the preventive measures so far described stop the descent into war and chaos? If distant threats do become imminent? Or if imminent threats become actual? Or if a non-imminent threat nonetheless becomes very real and measures short of the use of military force seem powerless to stop it? We address here the circumstances in which effective collective security may require the backing of military force, starting with the rules of international law that must govern any decision to go to war, if anarchy is not to prevail. It is necessary to distinguish between situations in which a State claims to act in self-defence; situations in which a State is posing a threat to others outside its borders; and situations in which the threat is primarily internal and the issue is the responsibility to protect a State’s own people. In all cases, we believe that the Charter of the United Nations, properly understood and applied, is equal to the task: Article 51 needs neither extension nor restriction of its long-understood scope, and Chapter VII fully empowers the Security Council to deal with every kind of threat that States may confront. The task is not to find alternatives to the Security Council as a source of authority but to make it work better than it has. That force can legally be used, does not always mean that, as a matter of good conscience and good sense, it should be used. We identify a set of guidelines - five criteria of legitimacy - which we believe the Security Council (and anyone else involved in these decisions) should always address in considering whether to authorize or apply military force. The adoption of these guidelines (seriousness of threat, proper purpose, last resort, proportional means and balance of consequences) will not produce agreed conclusions with push-button predictability, but should significantly improve the chances of reaching international consensus on what have been in recent years deeply divisive issues. We also address here the other major issues that arise during and after violent conflict, including the needed capacities for peace enforcement, peacekeeping and peacebuilding, and the protection of civilians. A central recurring theme is the necessity for all members of the international community, developed and developing States alike, to be much more forthcoming in providing and supporting deployable military resources. Empty gestures are all too easy to make: an effective, efficient and equitable collective security system demands real commitment.
9. There seems to be a real attempt to declare the US acted illegally in Iraq:
*185. The Charter of the United Nations, in Article 2.4, expressly prohibits Member States from using or threatening force against each other, allowing only two exceptions: self-defence under Article 51, and military measures authorized by the Security Council under Chapter VII (and by extension for regional organizations under Chapter VIII) in response to “any threat to the peace, breach of the peace or act of aggression”.
*186. For the first 44 years of the United Nations, Member States often violated these rules and used military force literally hundreds of times,104 with a paralysed Security Council passing very few Chapter VII resolutions105 and Article 51 only rarely providing credible cover. Since the end of the cold war, however, the yearning for an international system governed by the rule of law has grown. There is little evident international acceptance of the idea of security being best preserved by a balance of power, or by any single - even benignly motivated - superpower.
*187. But in seeking to apply the express language of the Charter, three particularly difficult questions arise in practice: first, when a State claims the right to strike preventively, in self-defence, in response to a threat which is not imminent; secondly, when a State appears to be posing an external threat, actual or potential, to other States or people outside its borders, but there is disagreement in the Security Council as to what to do about it; and thirdly, where the threat is primarily internal, to a State’s own people.
10. It appears to me that they are attempting to take away the right of ‘preemption’ to perceived threat:
*188. The language of this article is restrictive: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures to maintain international peace and security”. However, a threatened State, according to long established international law,106 can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate. The problem arises where the threat in question is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile intent, of nuclear weapons making capability.
*189. Can a State, without going to the Security Council, claim in these circumstances the right to act, in anticipatory self-defence, not just pre-emptively (against an imminent or proximate threat) but preventively (against a non-imminent or non-proximate one)? Those who say “yes” argue that the potential harm from some threats (e.g., terrorists armed with a nuclear weapon) is so great that one simply cannot risk waiting until they become imminent, and that less harm may be done (e.g., avoiding a nuclear exchange or radioactive fallout from a reactor destruction) by acting earlier.
*190. The short answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion,
negotiation, deterrence and containment - and to visit again the military option.
*191. For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed
action, to be accepted. Allowing one to so act is to allow all.
*192. We do not favour the rewriting or reinterpretation of Article 51.
*196. It may be that some States will always feel that they have the obligation to their own citizens, and the capacity, to do whatever they feel they need to do, unburdened by the constraints of collective Security Council process. But however understandable that approach may have been in the cold war years, when the United Nations was manifestly not operating as an effective collective security system, the world has now changed and expectations about legal compliance are very much higher.
11. The balance of the report mostly addresses peacekeeping and nation building, the later the UN has had some luck with.
posted by Am I Conservative or Lil' Libertarian? | 8:21 PM
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