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The United Nations Security Council And International Conflict Resolution
[A CASE STUDY OF THE UN SECURITY COUNCIL WEAPON INSPECTION IN IRA]
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…it always
lies within the power of a state to Endeavour to obtain redress for
wrongs, or to gain Political or other advantages over another, not
merely By the employment of force, but also by direct recourse To war
(Hyde, 2003: 53).
He maintained that within that framework customary
international law also consistently recognized self-defence as a
legitimate basis for the use of force:
An act of self-defence is that
form of self-protection which is directed against an aggressor or
contemplated aggressor. No act can be so described which is not
occasioned by attack or fear of attack. When acts of self-preservation
on the part of a state are strictly acts of self-defence, they are
permitted by the law of nations, and are justified on principle, even
though they may conflict with the…right of other states (Hyde, 2003:
96).
Again, the recognized right of a state to use force for purposes
of self-defence traditionally included the pre-emptive use of force,
i.e. the use of force in anticipation of an attack. Hugo Grotius, the
father of international law, stated in the seventeenth century that; it
be lawful to kill him who is preparing to kill.
Emmerich (2002) a century later similarly asserted:
The
safest plan is to prevent evil, where it is possible. A Nation has the
right to resist the injury another seeks to inflict upon it, and to use
force…against the aggressor. It may even anticipate the other’s design,
being careful however, not to act upon vague and doubtful suspicious,
lest it should run the risk of becoming itself the aggressor (Emmerich,
2002: 24).
The classical formulation of the right of pre-emptive
attack was given by Secretary of State Daniel (2003) in connection with
the famous Caroline incident. In 1837 British troops under the cover of
night attack had sank an American ship, the Caroline in US waters
because the ship was being used to provide suppliers to insurrectionists
against British rule in Canada headquartered on an island on the
Canadian side of the Niagara River. The US immediately protested this
“extraordinary outrage†and demanded an apology and reparations. In the
curse of the diplomatic exchange Secretary of States Daniel Webster
articulate two conditions essential to the legitimacy of the pre-emptive
use of force under customary international law. According to him,
“An
intrusion into territory of another state can be justified as an act of
Self-defence only in those “cases in which the necessity of that self-
defence is instant, overwhelming, and leaving no choice of means and no
moment for deliberation (Daniel, 2003: 22).
In another note, he asserted that the force used in such circumstances has to be proportional to the threat;
It
will be for her majesty’s government to show, also that the local
authorities of Canada, even supposing the necessity of the moment
authorized them to enter the territories of the United States at all,
did nothing unreasonable or excessive; since the act, justified by the
necessity of self-defence, must be limited by that necessity, and kept
clearly within it (Daniel, 2003: 30).
According to 1996 ICJ Reports,
both elements- necessity and proportionality have been deemed essential
to legitimate the pre-emptive use of force in customary international
law.
EFFECT OF THE UNITED NATIONS CHARTER
According to David
(2005), with the founding of United Nations, the right of individual
states to use force was purportedly curbed. The UN Charter, States in
its preamble that the UN was established to save succeeding generations
from the scourge of war and its substantive provisions obligates Member
States of the UN to settle their international disputes by peaceful
means; (Article 2(3) and to refrain in their international relations
from the threat or use of force against the territorial integrity or
political independence of any State, or in any manner inconsistent with
the purposes of the United Nations, (Article 2 (4). In place of the
traditional right of States to use force, the Charter creates a system
of Collective Security in which the Security council is authorized to
determine the existence of any threat to the peace, breach of the peace,
or act of aggression and to decide what measures shall be taken…to
maintained international peace and security Article 39 (2003).
Gareth
(2001) asserted that while the Security Council’s power to approve
force in acting to maintain or restore international peace and Security
was left effectively open-ended, the traditional right of self-defence
was spelt out in Article 51 in terms that are very far from open-ended
and linked back to the council:
Nothing in the present charter shall
impair the inherent right of individual or collective self-defence if an
armed attack occurs against a Member of the United Nations until the
Security Council has taken measures necessary to maintain international
peace and security. Measures taken by members in the exercise of this
right of self-defence shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility
of the Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore
international peace and security (Gareth, 2001: 51).
A contemporary
example was when on June 7, 1981; Israel bombed and destroyed a nuclear
reactor under construction at Osirik, Iraq. According to Carter and
Trimble (1999), “the Security Council unanimously “condemned the
military attack by Israel is clear violation of the Charter of the UN
and the norms of international conduct and urged the payment of
“appropriate redressâ€.
Thus, in both theory and practice the
pre-emptive use of force appears to have a home in current international
law. Its clearest legal foundation according to David M. Ackerman is in
Chapter VII of the UN Charter.
In the words of Kofi Annan,
If
states reserve the right to act unilaterally, or in adhoc coalition
without waiting for agreement in the Security Council-this logic
represents a fundamental challenge to the principles on which, however
imperfectly, world peace and stability have rested for the last
fifty-eight years (Carter, 2004: 25).
As Gareth (2001) puts it. “The
problem is not with the principle of military action against
non-imminent threats as such, it is perfectly possible to imagine real
threats which are not imminent. The problem boils down to whether or not
there is credible evidence of the reality of the threat in question,
taking into account, as always, the capability and specific intent,
whether the military attack response was the only reasonable one in all
the circumstances; and crucially who makes the decision, in his words:
The
question is not whether preventive military action can ever be taken:
it is entirely within the scope of the Security Council’s power under
Chapter VII to authorize force if it is satisfied a case has been made.
The question is whether military threat can even be taken unilaterally
(Gareth, 2001: 55).
Thus as Wu Miaofa (2000) has rightly observed;
Politically,
the implications of the doctrines of pre-emption and unilateralism are
fundamentally destructive to the purpose and principles of the UN
Charter and the basic rules of the international system as an immediate
result, the UN Charter is in danger of deviating from its multilateral
nature toward a unilateralist one, which is bound to sap its capacity
for coping with various challenges to world peace and non-traditional
security threats such as terrorism and proliferation of weapons mass
destruction (Wu Miaofa, 2000: 16).
Thus the express terms of Article
51 refers to the right of self-defence if any armed attack occurs and
which has been interpreted by the international court of justice on
several occasion. For instance, in the Nicaragua case, the court held
that the right of individual or collective self-defence is triggered
only by acts grave enough to amount to an armed attack. According to the
court an armed attack triggering unilateral self-defence, may include
“the sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed farce against
another state of such gravity as to amount to…an actual armed attack
conducted by regular forces…
Finally, in the Nicaragua case
(Nicaragua V. US) 1986 ICJ 14 (June 27) where the court was assessing
the US claim that its use of force against Nicaragua was a lawful act of
collective self-defence of EI-Salvador, the court held that Nicaragua
was not shown to be responsible for providing weapons and supplies to
EI-Salvador rebels and that even if it had done so, the supply of
weapons was not the same as an armed attack and that, EI-Salvador had
not reported to the Security Council, nor had it invited the US to
assist in its self-defence.
This confirms the assertion made by
Gareth Evans earlier on that, the question is not whether preventive
military action can even be taken; that it is entirely within the scope
of the Security Council’s Power under chapter VII authorize force if it
is satisfied a case has been made. Therefore according to Mary (2013),
it is consistent with the authoritative interpretation of Article 51 by
the international court of justice (ICJ), the general consensus about
when an armed attack begins for purposes of the right of self-defence is
that an attack must be under way or must have already occurred in order
to trigger the right of unilateral self-defence. Any earlier response
requires the approval of the Security Council, there is no
self-appointed right to attack another State because of fear that State
is making plans or developing weapons unusable in a hypothetical
campaign.
THE USE OF FORCE ON IRAQ AND UN SECURITY COUNCIL
RESOLUTION
According
to Keir (2003), “UN Resolution 678 which was passed in 29 November 1990
towards the commencement of the Gulf War was the only UN Resolution
that explicitly authorized the use of force against Iraq and the only
action it authorization was such force as was necessary to restore
Kuwait sovereignty.†Liberation of Kuwait and restoration of peace and
security in that region was thus the objective.
In his words, “this was the only Security Council Resolution expressly authorizing the use of force (2003).
Ogaba (2003) supported this view when he stated that;
‘The
most unambiguous exposition of unilateralism under
the Clinton administration with
direct reference to the Iraq war was operation desert fox. The reason
for this description Emanates from the fact that UN Resolution 678 of
1990 Authorized the use of force with which Iraq was evicted From
Kuwait, following which the authority to use force Could only come from
the UN Security Council which never ranted it (Ogaba, 2003: 78).
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ABSRACT - [ Total Page(s): 1 ]This research effort grew out of concern for the increasing use of force in settlement of disputes by the United States which has the tendency to reduce the moral stature of the UN (above all, the security council) an organization committed to the maintenance of international peace and security. It seeks to analyse the role of the United Nations security council in international conflict resolution, using tonal conflict resolution, using the UN Weapons inspection in Iraq as a case study. This re ... Continue reading---
