The Age of International Law in Security Council’s Practice

The resolutions on the protection of civilians in armed conflict were first introduced in 1999 ⁹ on ground of humanitarian concerns. ¹⁰ Aimed at protecting civilians as persons protected under international law, ¹¹ this set of resolutions is regarded as a contribution towards the effective implementation of existing humanitarian law. ¹² Resolution 1894(2009) states:

[T]he Geneva Conventions of 1949… together with their Additional Protocols constitute the basis for the legal framework for the protection of civilians in armed conflict. ¹³

The legal basis of the SC commitment to the protection of civilians in armed conflict ¹⁴ also includes other relevant international instruments such as the Hague Conventions (1899 and 1907), the UN Convention on the Rights of the Child (1989), ¹⁵ and the Convention on the Safety of United Nations ad Associated Personnel (1994). ¹⁶ Relevant SC decisions are mentioned along with primary sources of international law as well. ¹⁷ From this perspective, violations of relevant rules of applicable international humanitarian and human rights law appear to be the threshold of legitimacy for SC actions. ¹⁸ This seems to be confirmed by the explicit recognition that ‘peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being.’ ¹⁹

Other factors contributing to exacerbate the negative impact of conflicts on civilians include the proliferation of arms, in particular small arms and light weapons, ²⁰ and disarmament. ²¹ Accordingly, the SC notes that the implementation of relevant international instruments, such as the Convention on the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction (1997), may have beneficial effects on the safety of civilians. ²²

The considerations above suggest that this set of resolutions strongly contributes to strengthening existent international legal instruments. For example, the SC recognizes that one of the core challenges to the effective protection of civilians in armed conflict consists in enhancing compliance with international law. ²³ Accordingly, rules and principles of international law, the UN Charter and SC resolutions are often mentioned in the same provision and appear to stay on an equal footing. ²⁴ However, the scrutinized SC decisions do not create new legal obligations beyond the SC commitment to the protection of civilians in armed conflict. What emerges from the text of SC resolutions and PRSTs under scrutiny is that international law is recognized as the benchmark of legitimacy of SC actions. ²⁵ For example, a passage from resolution 1296(2000) reads:

[The SC] Notes that the deliberate targeting of civilian populations or other protected persons and the committing of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security. ²⁶

In light of the preceding, the issue of the effectiveness of this set of resolutions turns out to be of paramount importance in determining whether international law is able to contain, wholly or partially, the discretionary powers of the SC. The progressive consideration by the SC of the protection of civilians as a thematic issue has led to the adoption of the Aide Memoire as a means to facilitate its consideration of issues pertaining to civilians. ²⁷ The Preamble to the Fifth Edition (2014) reads:

Enhancing the protection of civilians in armed conflict is at the core of the work of the United Nations Security Council for the maintenance of peace and security. ²⁸

Primarily aimed at facilitating SC deliberations on the establishment, change or close of peacekeeping operations, ²⁹ the Aide Memoire may also provide guidance in circumstances outside the scope of peacekeeping operations which may require the urgent attention by the SC. ³⁰ The document is based on the SC previous consideration of these issues and lists SC resolutions and PRSTs that make reference to such concerns. ³¹ However, the Preamble to the Aide Memoire provides that its adoption is without prejudice to the provisions of SC resolutions and other decisions. ³² Considering that the rationale behind SC interventions is represented exclusively by violations of rules and principles of international law, ³³ two issues emerge.

On one hand, Section F of the fifth edition of the Aide Memoire (2014) regulates the issue of compliance by parties to an armed conflict with applicable international humanitarian law and human rights law. Paragraph 2 thereof, in particular, explicitly recognizes the power of the SC to apply targeted sanctions against those parties that commit violations of applicable international humanitarian law and human rights law. ³⁴