The UN and the use of force
or land forces (Article 42) did not stand up to the pressure of the Cold War. I will give only a brief account of the Security Council’s actions during the Cold War in order to determine how far the early actions set the pattern for more recent action. This chapter will show how the Charter scheme has been transformed in practice, how the UN Security Council has used its powers to respond to threats to the peace, breaches of the peace, and acts of aggression. The focus will be on the practice of the UN, and certain operations will be considered in detail in order to illuminate the application in practice of Chapter VII of the Charter and the development through practice of the institution of peacekeeping.
The veto of the five permanent members of the Security Council under Article 27(3) was used 279 times between 1945 and 1985; from 1946 until 1970 it was almost exclusively the USSR, facing a western majority in the General Assembly, that prevented the adoption of resolutions by the Security Council. In 1970 the USA made its first veto, and from then on came to replace the USSR as overwhelmingly the main user of the veto.4 But of course it was not only the actual use of the veto that prevented action by the Security Council; threats to use the veto also prevented the adoption of resolutions or secured their revision to something more acceptable to the permanent member concerned.
During the Cold War the Security Council occasionally threatened to use Chapter VII; often it called for action without taking any binding decisions. Very rarely did it succeed in taking binding decisions under Chapter VII in response to threats to the peace, breach of the peace, and acts of aggression.5 When it did act under Chapter VII its approach was generally flexible rather than formalistic; it did not usually specify the exact article of the Charter under which it was acting.6 Security Council Resolution 598 (1987), belatedly demanding a mandatory ceasefire in the 1980–88 Iran–Iraq conflict, was unusual in that it expressly stated that the Security Council was acting under Articles 39 and 40. This reluctance by the Security Council to identify the precise legal basis, if any, for its resolutions has led to protracted and not always fruitful speculation by some commentators as to the legal basis of Security Council operations. It seems clear from the practice of the Council that no formal pronouncement with an express reference to Article 39 is required for action under Chapter VII; the use of the language of Article 39 is apparently sufficient.7
The Security Council has been extremely reluctant to find that there has been an act of aggression; it has done so only with regard to Israel, South Africa, and Rhodesia.8 It is also generally reluctant to condemn states by name. It has been only slightly readier to find a breach of the peace; it has done so with regard to Korea, Iraq/Kuwait, Argentina’s invasion of the Falklands, and the 1980–88 Iran–Iraq conflict. These are all inter-state conflicts. However, the Security Council has passed many resolutions determining the existence of a threat to the peace.9
The first time the Security Council took economic measures under Article 41 was against Rhodesia (now Zimbabwe) after the Smith regime illegally declared independence of the UK in 1965 in order to establish white minority rule. In 1966 the Security Council imposed an embargo on raw materials, oil, and arms in Resolution 232; this expressly stated that it was acting under Articles 39 and 41. In 1968 it expanded this to a more comprehensive embargo in Resolution 253, which stated that the Security Council was acting under Chapter VII. It made no reference to Article 41 until paragraph 9, which requested ‘all member states to take all possible action under Article 41 to deal with the situation in Southern Rhodesia, not excluding any of the measures provided in that article’. The later resolutions designed to strengthen sanctions against Southern Rhodesia also made express reference to Article 41. In contrast, when the Security Council subsequently took economic measures with regard to other states it did so without express reference to Article 41. In other ways these first sanctions set the pattern for subsequent measures.
First, the Security Council has consistently taken a wide view of the phrase ‘threat to international peace and security’ under Article 39. In these first resolutions on Southern Rhodesia it said that the situation resulting from the proclamation of independence by the illegal authorities in Southern Rhodesia was extremely grave and its continuance constituted a threat to international peace and security. This readiness to look at the wider consequences of a civil conflict or illegal overthrow of a government and to treat it as a threat to international peace and security has been apparent in much of the later practice of the Security Council. Second, the resolutions imposing sanctions were directed against a non-state entity and addressed to non-member states as well as members. Resolutions 232 (1966) and 253 (1968) specifically urged non-member states to act in accordance with the provisions of the present resolution. Resolution 314 (1972) was addressed to ‘all states’. The legal basis for this was spelled out in Resolutions 314 (1972) and 409 (1977) as residing in Article 2(6) of the UN Charter.10 Subsequent resolutions followed this pattern of reference to ‘all states’.
Third, in Resolution 221 (1966), passed to secure the effectiveness of the voluntary embargo called for in Resolution 217 (1965), the Security Council authorized the UK to use force to intercept ships on the high seas. This resolution did not include any reference to Chapter VII or to any specific article, although it did determine that the possibility of a breach of the oil embargo by tankers discharging oil intended for Southern Rhodesia in Mozambique amounted to a threat to the peace. It called upon the UK to prevent, by the use of force if necessary, the arrival in Mozambique of oil destined for Southern Rhodesia. Clearly such authorization does not fit within Article 41 which expressly excludes ‘measures involving the use of armed force’. But Resolution 221(1966) has been the model for many subsequent resolutions; it is sometimes said to be based on Article 42 and sometimes Chapter VII in general. This lack of concern with the specification of a precise legal basis for its actions has proved typical of the Security Council. Many commentators are content to base such resolutions authorizing force to secure the implementation of economic measures on ‘Article 41 and a half‘.11
Again in Resolution 418 (1977) imposing an arms embargo on South Africa, the first mandatory sanctions against a member state, the Security Council did not refer to Article 41 specifically; it made only a general reference to Chapter VII. This approach was followed in almost all subsequent resolutions authorising economic measures or the use of force.12 The resolution held that the military build-up by South Africa and its persistent acts of aggression against neighbouring states seriously disturbed the security of those states; South Africa was at the threshold of producing nuclear weapons. Therefore, having regard to the policies and acts of the South African government, the acquisition of arms by South Africa constituted a threat to the maintenance of international peace and security. The Security Council decided that all states should observe a mandatory arms embargo.
The action against Korea in 1950 was the only use of force authorized by the Security Council during the Cold War in response to a breach of the peace by a state.13 It was not quite what was envisaged in Chapter VII of the Charter and there is still controversy about its legality. The Security Council determined in Resolution 82 (1950) that North Korea had made an armed attack against South Korea and this constituted a breach of the peace. Neither was a member state and some states saw this conflict as a struggle within one divided state for decolonization rather than an invasion of one pro-western state by a socialist state. The absence of the USSR (in protest at the representation of China in the United Nations by the Taiwan government) enabled the Security Council to act.14 It passed Resolution 83 (1950) recommending member states to ‘furnish such assistance to South Korea as may be necessary to repel the armed attack and to restore international peace and security in the area’. But this action was far from what was provided in the Charter. The Council (in the absence of any standing army under Article 43 agreements) recommended action by states; it did not take any binding decision. And it did not itself establish a UN force. In Resolution 84 (1950) it recommended all member states providing military force and other assistance to make such forces available to a unified command under the USA; it requested the USA to designate a commander, but authorized the force to use the UN flag. Sixteen states contributed forces, but the USA played the dominant role. It was requested to provide the Security Council with reports as appropriate on the course of the action taken.15
The exact legal basis for the action against North Korea was not specified in the resolution recommending states to send troops and this has led to speculation ever since. Some argue that the action could not have been under Article 42 because that provision is not autonomous but depends on member states having made agreements under Article 43. Others reject this because Article 42 makes no reference to Article 43 and there is no indication elsewhere in the Charter that Article 42 must remain inoperative in the absence of Article 43 agreements. Moreover, given that Article 42 allows Security Council decisions to use force, this must be taken to include the lesser power to make recommendations to member states. Other writers argue that the Korean action was taken under Article 39 or under Chapter VII generally, or that it was collective self-defence.16 There is little in the resolutions or in the Security Council debates to resolve this controversy and it is not clear that it had any practical significance.
The division of powers between the Security Council and the General Assembly
The inaction of the Security Council during the Cold War led the General Assembly to assume a role greater than originally envisaged. The Charter provides for a division of functions between the two organs. Article 11(2) says that the General Assembly may discuss questions relating to the maintenance of international peace and security and make recommendations (except as provided in Article 12); but any such question on which action is necessary shall be referred to the Security Council. Article 12 is designed to prevent clashes between the two bodies; it provides that, while the Security Council is exercising its functions with regard to a particular dispute or situation, the General Assembly shall not make any recommendation unless the Security Council so requests. But these two provisions have been flexibly interpreted in such a way that there is no strict division of functions.17
The General Assembly, concerned at the inaction of the Security Council and its failure to play the role provided in the Charter, passed the Uniting for Peace Resolution in 1950. This allowed it to call emergency meetings in the event of Security Council failure because of lack of unanimity of the permanent members to exercise its primary responsibility for the maintenance of peace and security in any case where there appears to be a threat to the peace, breach of the peace or act of aggression. The General Assembly may then recommend collective measures, including the use of armed force if necessary.18 Using this procedure it recommended the establishment of peacekeeping forces in the Middle East. The legality of this was upheld by the International Court of Justice in the Certain Expenses case; it explained away the provision of Article 11(2) that ‘any such question on which action is necessary shall be referred to the Security Council by the General Assembly’ on the basis that the Security Council has a primary but not an exclusive responsibility for the maintenance of international peace and security. The Court also relied on the less convincing argument that it is only enforcement action and not peacekeeping action that must be referred to the Security Council.19
Article 12 has also been gradually eroded. The General Assembly has made recommendations even when the Security Council was dealing actively with an issue. If the Security Council was not actually exercising its functions at that moment, or if a resolution was blocked by a veto, the General Assembly has assumed it is free to make recommendations, provided that these did not directly contradict a Security Council resolution.20 The General Assembly has accordingly passed series of resolutions condemning certain behaviour when the Security Council could not agree on a resolution or could not take measures against a wrongdoing state. Some western states were unhappy at this; they said that the repetition of resolutions condemning states was a pointless rhetorical exercise. This was the response when the General Assembly called for the imposition of sanctions on South Africa after the USA and the UK had blocked this in the Security Council. More recently the General Assembly regarded itself as free to call on the Security Council to lift the arms embargo on Bosnia-Herzegovina when the Security Council had been divided as to whether to do so. Technically it may be possible to make out a case on the basis of the practice of the two bodies that this did not contravene Article 12, but it seems to be precisely the type of situation that Article 12 was designed to prevent.21
Another blurring of the divide between the General Assembly and the Security Council during the Cold War occurred because many states not members of the Security Council chose to address the Security Council to set out their positions.22 States such as France, Australia and the UK repeatedly complained that this was inappropriate; they accused these states of turning the Security Council into a mini-General Assembly. Thus France said that there was a growing tendency to transform the debates of the Security Council, which should be action-oriented, into a substitute for General Assembly debate and a forum for confrontation. The UK said that it would prefer speeches to be given only by member states and those specially affected.23 In recent years this use of the Security Council by non-members has become much less common. In contrast, developing states have taken to accusing the Security Council of encroaching on matters properly within the sphere of the General Assembly since the end of the Cold War.24 The Security Council has addressed issues of terrorism,25 proliferation of weapons of mass destruction26 and climate change.27
Peacekeeping during the Cold War
In response to the inability of the Security Council to take enforcement action under Chapter VII the institution of peacekeeping evolved during the Cold War.28 There was no express basis for this in the Charter, but the institution has evolved through the practice of the United Nations and its legality is no longer challenged by any state. Commentators have speculated that a legal basis may be found in the power of the General Assembly to establish subsidiary organs, or under Chapter VI on peaceful settlement, or under Article 40 on provisional measures.29 All of these may be theoretical possibilities, but in practice there has been no express reference to any of these in the resolutions establishing peacekeeping forces and the debate seems to be without practical significance. The UN Blue Books on Peacekeeping and the UN Peacekeeping website do not concern themselves with this problem.
Between 1948 and 1988 thirteen peacekeeping forces were established. It is common to divide the practice of peacekeeping in the Cold War into four periods; the nascent, (1948–56), the assertive (1956–67), the dormant (1967–73) and the resurgent (1974–87).30 Different writers have drawn up different lists of these forces over the years, but the UN’s own list can probably be treated as authoritative.31 There was a wide variety of types of operation which came to share the name of peacekeeping. Most of the Cold War peacekeeping operations were interposed between states; few were established to play a role in ending civil conflict.
The earliest were limited observation forces; the first major forces were UNEF, established by the General Assembly in the Middle East from 1956 to 1967, and ONUC, established by the Secretary-General with Security Council authorization in the Congo32 from 1960 to 1964. The former operation led to agreement on the basic principles underlying what later came to be known as peacekeeping operations; the latter revealed the difficulties that arise when these principles are compromised.
After UNEF was terminated the UN Secretary-General produced a report examining the ‘new and unique experiment’ and setting out guidance for future operations.33 The mandate of UNEF under General Assembly Resolutions 998 (1956) and 1000 (1956) had been ‘to secure and supervise’ the ceasefire and withdrawal of foreign forces from Egypt, and later to maintain peaceful conditions in the area by its deployment along the armistice line between Egypt and Israel. It had been agreed that the force should not include troops from the permanent members of the Security Council or of any other country which for geographical or other reasons might have a special interest in the conflict. It operated with the consent of the host state and was withdrawn when Egypt terminated its consent in 1967. In determining the composition of the force serious consideration was to be given to the views of the host state. UNEF had been interposed between regular, national military forces which were subject to a ceasefire. It had a clear-cut mandate and was neutral in relation to international political issues. It operated under a Status of Forces Agreement (SOFA), with the host state establishing the rights and privileges of the UN forces.
Interestingly, the Secretary-General said that the nature of peacekeeping precluded the employment of UN forces in situations of an essentially internal nature. Nor should such a force enforce any specific political solution; it would require specific authority for offensive action. It should use force only in self-defence. A wide interpretation of this right was not acceptable because it would blur the distinction between these operations and those under Chapter VII.
Most of the UN operations which later became known as peacekeeping operations followed these principles. But ONUC departed from them and showed the dangers of so doing. It was originally created to assist the government of Congo in the chaotic aftermath of independence in 1960. Its mandate was to give the government military and technical assistance after the collapse of essential services until national security forces were able fully to meet their tasks, but it became embroiled in the conflict when its original mandate was expanded. Resolution 161 (1961), although not formally passed under Chapter VII, used the language of Article 39 in its concern that the danger of civil war constituted a threat to international peace and security. It authorized ONUC to use force going beyond self-defence in order to prevent civil war; the resolution urged ONUC ‘to take all appropriate measures to prevent the occurrence of civil war in the Congo . . . including the use of force, if necessary, in the last resort’. Later Resolution 169 (1961) went further and not only affirmed the territorial integrity of Congo but authorized the Secretary-General to use force to end the attempted secession of the province of Katanga and to expel foreign mercenaries. This led ONUC to assume responsibilities that went beyond normal peacekeeping. Its numbers were increased to 20,000 to respond to the expansion of its mandate and it was involved in fighting against those seeking secession.34 The type of controversy that arose over the extension of peacekeeping in the Congo has recurred with regard to the operations in Yugoslavia and Somalia.
Of the fifteen forces established in the Cold War five still exist: three in the Middle East, UNMOGIP in Kashmir, and UNFICYP in Cyprus. This highlights a problematic characteristic of peacekeeping: that it may help to freeze the situation, or even protect an aggressor’s territorial gains.35
A NEW LEGAL ORDER? CHAPTER VII AFTER THE COLD WAR
The end of the Cold War brought with it a steep decline in the use of the veto and a massive increase in the activity of the Security Council. In 1990 the only vetos were two by the USA, one on a resolution about its 1989 intervention in Panama and one on a resolution to establish a Commission on Israel’s activities in the occupied territories. There were then no vetos until 1993; the first was by Russia on the funding of the peacekeeping force in Cyprus. The USA did not use its veto for five years from 1990; when it did revert to this, it was again to protect Israel from condemnation of its breaches of international humanitarian law in the occupied territories. This was its thirtieth veto in protection of Israel since 1972.36 It has continued to use its veto for this purpose.37 China has used its veto to prevent the renewal of a UN mission in Guatemala, to block the extension of the preventive peacekeeping force in Macedonia, and with Russia to prevent the condemnation of Myanmar (Burma) for human rights violations.38
The UN response to the Iraqi invasion of Kuwait gave rise to hopes of a new era for the UN and of a New World Order.39 This was only the second time that the Security Council had authorized armed action against an aggressor state. The Security Council met the day after the invasion and passed Resolution 660 (1990), declaring that there had been a breach of international peace and security; expressly acting under Articles 39 and 40 it condemned the invasion and demanded the withdrawal of Iraqi forces from Kuwait. It called on Iraq to withdraw and imposed economic sanctions in Resolution 661 (1990). When this proved ineffective to secure Iraq’s withdrawal from Kuwait, Resolution 678 (1990) authorized member states cooperating with the government of Kuwait to use ‘all necessary means’ to uphold and implement Resolution 660 (1990), calling on Iraq to withdraw from Kuwait and to restore international peace and security in the area.40 It is clear from the Security Council debates that this formula was understood to mean the use of force. The same (or similar) euphemistic formula has been used in almost all the subsequent resolutions authorising the use of force by states. In the case of Iraq no further resolution was passed until the ceasefire three months later and there was considerable controversy over lack of UN control over the operation conducted by the coalition forces. No time limit was set to the member state action; Security Council involvement was secured only by the duty on the member states to keep it informed.41
As with the Korean action, there was debate as to the legal foundation of the coalition action in Operation Desert Storm against Iraq. Unlike the resolutions on Korea, Resolution 678 (1990) does refer to Chapter VII, but it does not refer to any specific article. Also in contrast to the Korean action, the coalition forces in Iraq did not operate under UN flag or UN command; they were simply authorized to act against Iraq by the Security Council. Some claim this as an Article 42 action, others regard it as justified by Chapter VII generally; yet others say that it was collective self-defence authorized by the Security Council.42 The Secretary-General, in his Agenda for Peace, did not treat it as Article 42 action, but said simply that the Security Council had authorized member states to use force.43 The question is only of practical significance if the legal basis affects the scope of the permissible action that could be taken by states. Because the coalition forces did not in fact continue to use force to secure the overthrow of the government of Saddam Hussein, the disagreement as to the legal basis of the operation does not seem to have had practical consequences at the time.44 It is doubtful whether this would have counted as necessary and proportionate action if the force had been based on collective self-defence, but it could conceivably have been justified under Chapter VII as action necessary to restore international peace and security. Despite the uncertainty as to its legal basis, this operation marked the start of a new era for the UN and Resolution 678 (1990) provided a model for later authorization of the use of force by member states. However, the optimism prevalent at the time of Resolution 678 (1990) has since dissipated.
The Security Council has made vastly increased use of Article 41 in recent years.45 It has imposed sanctions to reverse aggression, to respond to serious violations of human rights and humanitarian law, to restore a democratically elected government, to counter terrorism and to prevent nuclear proliferation.46 It is only if such measures under Article 41 would be inadequate or have already proved to be inadequate that the Security Council may turn to measures involving armed force under Article 42. As in the case of the measures against South Africa, it has imposed measures without express mention of Article 41; for many years the Security Council simply referred to Chapter VII in general. However, in taking measures against Iran and North Korea it was careful to specify that it was acting under Article 41 in order to ensure that no claim could be made that the Security Council was implicitly authorizing the use of force.47 Starting with the comprehensive sanctions against Iraq after its invasion of Kuwait, the Security Council has taken measures with regard to Yugoslavia, Somalia, Libya, Liberia, Haiti, Angola, Rwanda, Sudan, Sierra Leone, Kosovo, Afghanistan, Ethiopia and Eritrea, the DRC, Côte d’Ivoire, Iran and North Korea. It has authorized force to secure the effective implementation of measures in a few of these cases (those of Iraq, Yugoslavia, Somalia, Haiti, and Sierra Leone).48 For example, Resolution 787 (1992) on sanctions against Yugoslavia (Serbia and Montenegro) ‘calls upon states acting nationally or through regional agencies or arrangements to use such measures commensurate with the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions of resolutions 713 (1991) and 757 (1992)’. As in the earlier authorization of the UK to use force to enforce the embargo on Rhodesia, the precise legal basis for this was not specified and remains unclear. More recently, the Security Council has authorized UN peacekeeping forces to assist in monitoring arms embargoes in Liberia, Côte d’Ivoire, the DRC and Lebanon.49
The above list of Article 41 measures includes several cases of sanctions against non-state actors, as in the first measures against Rhodesia; Article 41 does not specify any limitation on those against whom sanctions may be taken. Thus the Security Council condemned the failure of the Khmer Rouge in Cambodia to carry out their obligations under the 1991 Paris Peace Agreements and called for the implementation of an embargo imposed in the peace agreements on the supply of petroleum products to areas occupied by any party not complying with the agreements.50 Second, binding and more extensive measures were taken against UNITA in Angola when it refused to comply with the peace agreement and with Security Council resolutions.51 Third, in September 1994 sanctions were imposed against the Bosnian Serbs for their refusal to accept the peace settlement for the former Yugoslavia.52 Fourth, sanctions were imposed on the unrecognized Taliban regime in Afghanistan after their failure to surrender the terrorist leader, Usama Bin Laden, to a country where he would be brought to justice; these sanctions were subsequently extended to Al Qaida.53 Sanctions have also been imposed on named individuals responsible for behaviour in violation of Security Council demands or which threatens international peace and security.54
The Secretary-General’s view is that Article 41 measures are designed not to punish but to secure compliance with international obligations.55 Some of the measures are clearly not directed against any wrongdoer. Thus, certain of the arms embargoes were imposed not because a state had broken international law, but to try to ensure that a conflict did not escalate. The arms embargoes on Yugoslavia, Somalia, Liberia, under Resolution 788 (1992), Rwanda, Ethiopia and Eritrea, and the DRC were of this type, and the embargoes on Yugoslavia and Somalia were imposed with the consent of the governments. More recently, arms embargoes that were initially imposed as blanket prohibitions on the export of arms to a state have been modified to allow the provision of arms to the legitimate government or international forces but to prohibit their supply to illegitimate forces. This was done with regard to Rwanda, Sierra Leone, the DRC, Liberia and Somalia.56 Some of these measures have been described as a symbolic substitute for any real action by the international community, faced with the need to be seen to take some action in response to serious conflict.
Other arms embargoes were imposed in response to a breach of international law, such as those against the illegal regimes in Rhodesia and South Africa, and subsequently those against Libya for its sponsorship of terrorism; those against the FRY in 1998 for its behaviour in Kosovo;57 and those against Liberia for its unlawful intervention in Sierra Leone.58 Arms embargoes were also imposed against those who seized power illegally in Haiti59 and Sierra Leone,60 and an arms embargo was imposed on Côte d’Ivoire after the government had resorted to force in violation of a ceasefire.61 In some of these cases the state affected by the arms embargo challenged its legality or sought its removal on the ground that the embargo violated its right to self-defence. This was argued unsuccessfully by Bosnia-Herzegovina in an attempt to secure exemption from the arms embargo imposed on the whole of Yugoslavia, by Liberia to try to escape the measures imposed for its intervention in Sierra Leone, and with more success by Rwanda where the embargo was lifted as far as arms destined for the government were concerned, but otherwise remained in place.62
Generally, the resolutions passed under Article 41, in response to a violation of a Security Council requirement, specify the justification for the imposition of the measures and the action needed to secure their termination. For example, Resolution 757 (1992) imposing sanctions on Yugoslavia (Serbia and Montenegro) specified that this was in response to non-compliance with Resolution 752 (1992) demanding an end to intervention in Bosnia; it said that all states should adopt the comprehensive measures listed until the Security Council decided that Yugoslavia (Serbia and Montenegro) had complied with Resolution 752 (1992). Resolutions designed to stop the prolongation of a conflict may also specify the measures to be taken, or the conditions to be met, to secure the end of an embargo. Resolution 1521 (2003) extending the arms embargo and imposing an import ban on rough diamonds and timber from Liberia spells out in considerable detail the conditions that would have to be met for the termination of these measures. The measures taken against Côte d’Ivoire in Resolution 1572 (2004) were subject to review in the light of progress in the peace and national reconciliation process; the Security Council expressed its readiness to consider the modification or termination of the measures if the peace agreements had been fully implemented.
But sometimes it is unclear or controversial exactly what action would be required by the state subject to the Article 41 measures. The question of terminating the comprehensive sanctions against Iraq, in place since Resolution 661 (1990), led to divisions between members of the Security Council. The ceasefire Resolution 687 (1991) required the destruction of Iraq’s chemical, biological, and nuclear weapons and long-range ballistic missiles and an undertaking by Iraq not to develop any such weapons in the future; when this was achieved the Security Council would lift the sanctions imposed in Resolution 661 (1990). There were many conflicts over the implementation of this provision. Iraq repeatedly claimed to have complied with its disarmament obligations and was repeatedly found by the UN inspection team to have been concealing its weapons. Nevertheless, there were reports that certain members of the Security Council were ready to consider lifting the sanctions. As the Secretary-General said, the humanitarian situation in Iraq posed a serious moral dilemma for the UN. The UN had always been on the side of the weak and the vulnerable, yet here it was accused of causing suffering to an entire population. The UN was in danger of losing the propaganda war about who was responsible for the situation in Iraq, President Saddam Hussein or the UN.63 Eventually the USA and others turned to force in Operation Iraqi Freedom, rather than continue to rely on sanctions as a means of securing disarmament.64
There was also some concern over the sanctions against Libya, imposed in Resolution 748 (1992), adopted by 10–0–5; this said that the sanctions were imposed because of Libya’s refusal to provide a full and effective response to US, UK and French requests for the surrender of Libyan nationals, allegedly responsible for terrorist attacks. The sanctions would be lifted after Libya demonstrated by concrete actions its renunciation of terrorism. Libya challenged the validity of this resolution in the Lockerbie case before the ICJ. It argued either that the resolution did not in fact require the surrender of the alleged terrorists or, if it did, it was ultra vires and invalid.65 Support for the sanctions from African and Arab states showed signs of crumbling from 1997 onwards. After the two alleged terrorists were surrendered for trial in a Scottish court in the Netherlands the sanctions were suspended in 1999 and finally terminated in 2003.66 Similar resolutions more explicitly seeking the surrender of alleged terrorists from Sudan and Afghanistan were also passed and followed by the imposition of sanctions.67
Sanctions were imposed on North Korea and Iran in 2006 because of concerns over the proliferation of nuclear weapons. When North Korea carried out a nuclear weapons test in October 2006, Resolution 1718 (2006), passed unanimously, condemned the nuclear test; demanded that North Korea not conduct any further nuclear tests or launch of ballistic missile, retract its announcement of its withdrawal from the Non-Proliferation Treaty; and decided that it should suspend all activities related to its ballistic missile programme and should abandon its nuclear weapons programme in a verifiable and irreversible manner. Resolution 1718 (2006) also prohibited the provision of large-scale arms, nuclear technology and related training to North Korea, and imposed an asset freeze and travel ban on persons related to the nuclear-weapon programme. The conditions to be met for the lifting of the sanctions were that North Korea was to comply with the provisions of the resolution.
When Iran refused to abandon its nuclear enrichment programme, as required by Security Council Resolution 1696 (2006), the Security Council unanimously passed Resolution 1737 (2006). This subjected Iran to an import and export embargo on sensitive nuclear material and equipment as well as to a freeze on the assets of those involved in proliferation-sensitive nuclear activities. The IAEA was to report on Iran’s suspension of its uranium enrichment-related activities; the Security Council would terminate its measures when Iran had complied with the obligations imposed on it by the IAEA and the Security Council.
The increased use of sanctions after the end of the Cold War intensified concern over effectiveness, humanitarian considerations of the impact of the measures on the population of the target state and the economic impact on neighbouring states.68 The Secretary-General, in his Supplement to the Agenda for Peace, wrote of the difficulties of determining the objectives of Article 41 measures, of monitoring and of avoiding unintended effects. He described sanctions as a blunt instrument that may harm vulnerable groups, interfere with the work of humanitarian agencies, and conflict with the development objectives of a state. Also they may be counter-productive in that they may provoke a patriotic response as opposed to a rejection of those whose behaviour led to the imposition of sanctions.69 The measures imposed on Iraq in 1990, the most comprehensive and long-lasting in the history of the UN, prompted a reappraisal of Security Council sanctions. The Council shifted away from comprehensive sanctions to ‘smart’ or ‘targeted’ measures aimed at decision-making elites, that directly affect those responsible for the transgression without unduly harming the general population.70 Thus in many cases the measures were designed to restrict the freedom to travel of those who had illegally violated peace agreements or Security Council resolutions and also to freeze foreign bank accounts of those responsible for the unlawful action.71 The Security Council has also attempted to restrict the trade in ‘conflict diamonds’ and other natural resources which have been used by the warring parties to fund the conflict in states such as Angola, Sierra Leone, Liberia, the DRC and Côte d’Ivoire.72
There have been several attempts to draw up guidelines for an effective and humane system.73 It is now regular practice to appoint not only sanctions committees, but also independent expert groups to monitor the implementation of sanctions. An informal working group on General Issues of Sanctions was established in 2000 and issued its report in 2006.74 This made recommendations on the working methods of sanctions committees, the design of sanctions resolutions, the unintended impact of sanctions and other issues; it was welcomed by the Security Council in Resolution 1732 (2006). The Security Council is currently still working on the improvement of the sanctions system.75
PEACEKEEPING AFTER THE COLD WAR
The Security Council vastly increased its peacekeeping activities after the Cold War. The numbers give a clear picture of the scope of the change. In total there have been 63 operations. In the forty years from 1948 to 1988 there were thirteen operations; in the ten years from 1988 to 1998 over thirty new peacekeeping forces were established; and seventeen more in the last ten years.76 The majority of these new forces were deployed within states involved in civil wars rather than between states. In his 1995 Supplement to An Agenda for Peace the Secretary-General noted this transformation in the nature of peacekeeping. He wrote of peacekeeping as being in a time of transition and discussed the difficulties that had arisen. Because most peacekeeping after the Cold War had been within states, challenges had arisen that had not been encountered since the Congo operation in the 1960s. UN forces were faced by irregular forces rather than regular armies, civilians were the main victims of the conflicts, civil conflict brought humanitarian emergencies and refugees, state institutions collapsed. All these factors meant that international intervention had to go beyond military and humanitarian operations to bringing about national reconciliation and re-establishing effective government. Peacekeeping in such contexts was more complex and more expensive than more limited operations such as monitoring a ceasefire or controlling a buffer zone. This was to be a second generation of peacekeeping.77 According to the Secretary-General, the concept of peacekeeping is not static; there are as many types of peacekeeping operations as there are types of conflict.78
The forces established in 1999 in Kosovo and East Timor marked a further development:
[T]hey are qualitatively different from almost any other the Organisation has ever undertaken. In each place the United Nations is the administration, responsible for fulfilling all the functions of a State—from fiscal management and judicial affairs to everyday municipal services, such as cleaning the streets and conducting customs formalities at the borders. This is a new order of magnitude for an organization that more customarily provides States with technical assistance in such areas, rather than assuming complete responsibility for them. And it is a new order of magnitude for peacekeeping operations as well, making them extraordinarily complex and almost as dependent on civilian experts as on military personnel.79
Accordingly UNMIK and UNTAET could be seen as the third generation of peacekeeping.80
Most recently the UN has created new types of operation in Darfur and in Chad and the CAR. UNAMID and MINURCAT are hybrid operations involving cooperation between the UN and the AU and the EU; these mark a new era of cooperation with regional organizations.
Other significant developments include the greater emphasis on peace-building,81 conflict prevention and the establishment of preventive peacekeeping forces, and cooperation between UN and regional peacekeeping forces.82 At the start of the 21st century the UN Secretary-General set up the Brahimi Panel to make recommendations on conflict prevention, peacekeeping doctrine, peace-building strategy and administrative reform of the UN Department of Peacekeeping. The Brahimi Report was a central feature of the Millennium Summit of the UN Security Council in September 2000 and many of its recommendations have subsequently been implemented.83
The subsequent surge in peacekeeping has brought new challenges. The Brahimi Report had been based on the assumption that the DPKO would launch only one large new mission a year, but this has turned out to be an underestimate. The 140,000 peacekeepers authorized for deployment in twenty missions at the end of 2007 is the highest number in the history of the UN. This has placed a strain on systems and personnel in the field and on Headquarters staff. The Under-Secretary-General for Peacekeeping has spoken of the enormity of the current challenge; he argued that the situation requires a more systematic structural response. Therefore an ambitious reform project by the name of Peace Operations 2010 was initiated in 2006 with the aim of improving the professionalism, management and efficiency of UN peacekeeping.84 As part of this project, the new Secretary-General, shortly after taking office at the start of 2007, divided the DPKO into two, a Department of Peace Operations and a Department of Field Support.85 The Under-Secretary-General insisted that the priority of doctrine must stay uppermost in the restructuring process: ‘A doctrine of UN peacekeeping should ensure that, in the face of diverse operational environments, personnel and mandates, field activities should be guided by a coherent body of principles and procedures to enhance security and effectiveness.’ At the end of 2007 the DPKO was working to produce a Capstone Document to set out core doctrine on peacekeeping.
UN peacekeeping forces played a major role in the settlement of long-standing conflicts that had been fuelled by the Cold War. In 1988 the USSR announced its intention of withdrawing its troops from Afghanistan; this was followed by the 1988 Geneva Accords, a set of four agreements involving Afghanistan, Pakistan, the USA and the USSR. As part of this settlement the Security Council established UNGOMAP with the relatively limited mandate to investigate and report on possible violations of the Geneva Accords. Although it was set up as part of the UN Secretary-General’s Good Offices Mission, its use of military personnel meant that it was classified as a peacekeeping operation. It monitored the withdrawal of Soviet forces and also operated on the border between Afghanistan and Pakistan, investigating reports of violations of the non-interference and non-intervention obligations in the peace accords. It was terminated in 1990.86
The interconnected peace settlements in Namibia, Angola, and Mozambique also involved the creation of new UN peacekeeping operations. The United Nations had been concerned with Namibia since 1948, when South Africa first purported to incorporate the mandated territory. In 1966 the UN General Assembly terminated the South African mandate over Namibia and placed it under the responsibility of the UN, but South Africa continued illegally to occupy Namibia. In 1978 the Security Council agreed on a plan for Namibian independence in Resolution 435; western states sought a negotiated solution and the USA and the UK opposed further Chapter VII action against South Africa other than the arms embargo in Resolution 918 (1994). South Africa subsequently linked the question of the independence of Namibia and its compliance with Resolution 435 (1978) with the withdrawal of Cuban forces from Angola. The General Assembly and the Security Council rejected this linkage, but it nevertheless formed the basis of the agreement eventually reached in 1988 between Angola, Cuba, and South Africa. In 1989 the Security Council finally began to implement the Resolution 435 Settlement and, as part of this, agreed on the establishment of UNTAG. This was at the time an unusual operation, with functions going beyond traditional peacekeeping; it was the first of the ‘second generation of peacekeeping’. At its maximum it comprised 8,000 personnel. Its mandate was to ensure free and fair elections and to create the conditions that would make such elections possible. UNTAG included military, civilian, and police components. The military section was responsible for monitoring the ceasefire, the withdrawal of South African troops and some border monitoring. In March 1990 Namibia finally reached independence and UNTAG was terminated.87
The fate of Angola was tied to that of Namibia; it had been subjected to civil war ever since its independence from Portugal in 1975, with Cuba and the USSR supporting the government, and South Africa and the USA supporting the opposing UNITA forces.88 Also SWAPO operated from Angola in its operations to liberate Namibia from South African occupation. As part of the wider regional settlement in 1988, Angola, South Africa and Cuba agreed on the withdrawal of Cuban troops from Angola; Angola and Cuba asked for the establishment of a UN military observer force to verify compliance with their bilateral agreement on troop withdrawal. A small force, UNAVEM, was created and successfully completed this limited mission. Negotiations on the settlement of the internal conflict in Angola between the government and UNITA led to the 1991 Peace Accords for Angola and the creation of UNAVEM II. This was now given a much more extensive mandate; it was to verify implementation of the Peace Accords. This involved monitoring the ceasefire, the collection of the armed forces of the two parties into assembly areas and the demobilization of those forces, the formation of joint armed forces, the police, and supervising the elections. But serious problems arose; after the elections in October 1992 UNITA resorted to fighting and the situation deteriorated in early 1993. UNAVEM II operated as a channel for communications between the parties but its mandate came to seem unrealistic in the absence of an effective ceasefire. The Security Council reacted to UNITA’s non-cooperation with the peace process by imposing an arms and oil embargo on it. Negotiations eventually led to the Lusaka Protocol in October 1994 and a new attempt at securing a cease-fire. In 1995 UNAVEM III took over from UNAVEM II; it was assigned political, military, police, humanitarian and electoral functions. But the authorized number of troops were not provided and like its predecessor, it ran into difficulties because of delays and non-cooperation, mainly by UNITA. Its mandate was terminated in July 1997 and it was replaced by an observer mission (MONUA). But the security situation worsened and MONUA was not able to carry out its mandate; it was terminated in February 1999. Angola was once again in a state of war. The United Nations held UNITA and its leader, Jonas Savimbi, responsible for this crisis and imposed a series of sanctions on UNITA.89 After Savimbi’s death in February 2002 an effective ceasefire was agreed and approved by the UN and a peace-building force was created.90 Angola began to enjoy peace for the first time since its independence.
The UN experience in Mozambique was happier. Like Angola, Mozambique had been involved in civil war almost since the date of its independence from Portugal in 1975; again South Africa and western states denied the legitimacy of its government and supported forces aiming to overthrow it. The SWAPO liberation movement operated from Mozambique against South African occupation of Namibia. In 1992 a General Peace Agreement was signed between the parties and the UN was asked to oversee the implementation of this Agreement. The Security Council created UNOMOZ and over two years it verified the ceasefire and secured the assembly and demobilization of the opposing armed forces; it assisted in the creation of a new joint army; its police component monitored the national police; it coordinated humanitarian activities; assisted the massive repatriation programme; and secured the implementation of free and fair elections in October 1994.91
In Cambodia the 1991 Paris Agreements were intended to end many years of conflict. After the 1978 intervention in Cambodia by Vietnam to overthrow the Khmer Rouge regime of Pol Pot, states’ support for the competing parties divided partly on Cold War lines. The Vietnamese announced the withdrawal of their troops in 1989 and the permanent members of the Security Council worked together to achieve a negotiated solution. Under the Peace Agreement the UN was to organize free elections, coordinate the repatriation of refugees, coordinate economic rehabilitation and reconstruction, supervise and verify the withdrawal of foreign forces, the ceasefire and demobilization; coordinate the release of prisoners of war and foster an environment of peace and stability. The UN sent in an advance mission, UNAMIC; then UNTAC, one of the largest and most ambitious peacekeeping forces in the history of the UN, was deployed in 1992. UNTAC was made up of seven distinct components: human rights, electoral, military, civil administration, police, repatriation, and rehabilitation. At its largest it comprised 20,000 personnel. It was terminated in 1993.92
Finally, in Central America the long-lasting conflicts involving significant outside intervention by Eastern and Western blocs were terminated by the 1986 Esquipulas II Agreement between the five states of the region. As part of this agreement Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua agreed on the deployment of the first substantial UN peacekeeping operation in Latin America. Initially ONUCA was established to verify the commitments by the states parties to stop aid to opposition forces in other states and not to allow the use of their territory for attacks on other states. Mobile teams of military observers were created. The mandate was subsequently expanded to include verification of the cessation of hostilities and demobilization of irregular forces; and subsequently to monitor the separation of forces and the ceasefire in Nicaragua. ONUCA completed its mandate in 1992.93
In El Salvador it was replaced by ONUSAL in 1991; negotiations between the government and the opposition FMLN led to a series of agreements, culminating in the 1992 Chapultepec Agreement. Under these preliminary agreements ONUSAL was to monitor agreements between the government and FMLN; its initial mandate was to verify compliance with the Human Rights Agreement. The Chapultepec Agreement further expanded the role of ONUSAL to cover verification of the ceasefire and the separation of forces, prevention of the movement of forces, and the supervision of the destruction of its weapons by FMLN. ONUSAL was to have three, later four, divisions: Human Rights, Military, Police, and Electoral to supervise the different aspects of the peace agreement. It completed its functions in 1995.94
But the end of the Cold War also contributed to the outbreak of new conflicts. The break-up of Yugoslavia and the competing claims of Croats, Bosnians, and Serbs, led to conflict; the UN undertook several operations in the former Yugoslavia. The break-up of the USSR into its fifteen constituent republics also brought with it pressures for further subdivision on ethnic lines and the first UN peacekeeping force in the former USSR was established in Georgia in 1993. Conflict had broken out because of the determination of the Abkhazians to pursue independence, although at the time that Georgia became independent the Abkhazians were only a 20 per cent minority within Abkhazia. After a ceasefire was agreed between Georgian government and Abkhaz secessionist forces in July 1993 the Security Council created UNOMIG, an observer force of up to eighty-eight members with a traditional mandate to verify compliance with the ceasefire and investigate reports of violations. However, as soon as deployment began the ceasefire broke down; Abkhaz forces occupied the whole of the territory and displaced the Georgian inhabitants. Resolution 881 in November 1993 authorized the continued presence of UNOMIG, with an interim mandate to suit the changed circumstances. It was simply to maintain contacts with both sides and monitor the situation. After another ceasefire was agreed CIS peacekeeping forces were deployed; accordingly the mandate of UNOMIG was amended. Its strength was increased to 136 observers and it was given new tasks: the verification of the new ceasefire, the observation of the CIS peacekeeping forces, verification that the parties and their heavy military equipment were withdrawn from certain security zones, and monitoring the withdrawal of volunteer forces from outside Abkhazia.95 Political stalemate continued because of the fundamental disagreements between the government and the Abkhaz separatists on the recognition of the territorial integrity of Georgia and the repatriation of refugees.96 The Security Council repeatedly expressed regret that the Abkhaz side refused to engage in substantive political discussions.97