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The devastating events of 9/11 triggered the adoption of Resolution 1373 (2001) by the UN Security Council, a contentious development which was much debated and was widely seen as presaging a new type of activity by the Security Council – legislating for all UN member states. And yet, in the counter-terrorism sphere at least, the Council’s legislative activity in the years following 9/11 was relatively modest. Both quantitatively and qualitatively, that activity has been far exceeded by the Council’s response to the emergence of ISIL in 2014. This more recent activity is of interest beyond the confines of counter-terrorism, but has received far less scrutiny to date. This article will remedy this gap, revisiting, in light of the recent activity, the relative merits and disadvantages of making counter-terrorism law through Security Council resolutions. It makes two main contentions. The first is that – due to some factors which were anticipated in the early 2000s and many which were not – Security Council resolutions on terrorism constitute a distinctive category of international law-making and pose serious challenges for the application of organizing principles and processes of general international law. The second is that, for these reasons as well as doubts as to the necessity and efficacy of recent action, making counter-terrorism law through Security Council resolutions should be the exception rather than the norm.
This article discusses the military campaign against the ‘Islamic State’ (Daesh) in an attempt to illustrate the gaps in the international legal framework that regulates the use of force in dealing with a challenge such as that presented by the Islamic State. This case study was demanding given the need to reconcile state-centred rules with a diverse reality which includes several players, and particularly non-state armed groups in control of territory and population. In order to deal with this issue, the article proposes the invocation of a functional approach, compared with a binary approach, which is suitable in cases where several players exercise power in the same territory. In particular, it suggests that the Islamic State could have been treated functionally as a state for the purposes of self-defence or collective security measures, rather than invoking legal doctrines of unclear status that might result in undermining the international legal system they are invoked to protect.
Over the past seventy-five years, the UN has evolved significantly, often in response to geopolitical dynamics and new waves of thinking. In some respects, the UN has registered remarkable achievements, stimulating a wide range of multilateral treaties, promoting significant growth of human rights, and at times playing a central role in containing and preventing large-scale armed conflict. As part of the special issue on “The United Nations at Seventy-Five: Looking Back to Look Forward,” this essay argues that the organization has been the most impactful in three areas: producing, shaping, and driving key ideas, particularly on development and rights; generating such effective operational agencies as UNICEF and the World Food Program; and, especially in the immediate post–Cold War period, addressing major conflict risks through the Security Council. Since then, however, the UN has struggled to meet emerging challenges on many fronts and been increasingly hampered by internal ossification and institutional sprawl as well as internecine dysfunction. The twenty-first century has confronted the UN with further challenges relating most notably to climate change; to risks arising from new technologies; and to the increasingly fraught relationships between China, Russia, and the United States. If the past seventy-five years can offer one lesson, it is that new thinking and new ideas will need to drive the organization to evolve still further and faster, or else risk irrelevance.
Laws and norms that focus on women's lives in conflict have proliferated across the regimes of international humanitarian law, international criminal law, international human rights law and the United Nations Security Council. While separate institutions, with differing powers of monitoring and enforcement, implement these laws and norms, the activities of regimes overlap. Women's Rights in Armed Conflict under International Law is the first book to account for this pluralism and institutional diversity. This book identifies key aspects of how different regimes regulate women's rights in conflict, and how they interact. Using country case studies to reveal the practical implications of the fragmented protection of women's rights in conflict, this book offers a dynamic account of how regimes and institutions interact, the extent to which they reinforce each other, and the tensions and gaps in regulation that emerge.
Chapter 5 focuses on the ICC’s relationship with the UN Security Council. Under the Rome Statute, the Council has several important roles: Article 13(b) provides that the Security Council may trigger the jurisdiction of the Court (the ‘referral power’), and under Article 16 the Council may halt any ICC investigation for twelve months at a time (the ‘deferral power’). In the 2010 Kampala Amendments, the Security Council was given a third role with respect to the Court’s jurisdiction over the crime of aggression. The first part of Chapter 5 critically examines the ways in which the Council has used Article 16 in an attempt to limit the jurisdiction of the Court. It then discusses the Article 13(b) referral power by using the Darfur and Libya situations as case studies. It argues that the legal basis for the ICC’s authority in those situations is grounded in the implied consent of Sudan and Libya to the jurisdiction of the Court by virtue of their membership of the UN. The final part of Chapter 5 considers the role of the Security Council with respect to the crime of aggression and the consequences of this for States not party to the Rome Statute.
This chapter traces the origins of the veto power of the permanent members of the UN Security Council from the negotiations leading into the San Francisco Conference to the finalization of the UN Charter. It then examines early response to Security Council paralysis – resolutions in the late 1940s by the General Assembly calling for veto restraint as well as the “Uniting for Peace” Resolution in 1950. Even though expectations for the Security Council have probably gone beyond the intention of the drafters of the UN Charter, especially since the end of the Cold War it is clear that when there is sufficient political will, this body has the legal ability to prevent or stop many situations of catastrophic consequences to communities, countries, and regions around the world. Concomitantly, when the Council does not take on such a role, there is widespread disenchantment with its performance. The lack of responsiveness to the commission of mass atrocity crimes (genocide, crimes against humanity, and/or war crimes), which have occurred virtually unimpeded in places such as Rwanda, Darfur, Syria, Sri Lanka, Myanmar, and Yemen has come at a staggering toll in terms of lives lost. Much of the time, inaction by the Council can be specifically traced to use of the veto, or the threat of the veto, by one or more of the permanent members. This chapter makes the case that it is time to reconsider existing hard law legal obligations and recognize that these in fact impose limitations on the use of the veto in the face of atrocity crimes.
This chapter discusses the contributions of the landmark trial of Liberian President Charles Taylor, the first African former head of State, to be tried and convicted by an international criminal tribunal in a contested proceeding. Taylor was convicted in April 2013 for his role in planning, aiding, and abetting war crimes, crimes against humanity, and other serious violations of international humanitarian law which occurred during the Sierra Leone Conflict. The chapter examines the controversies associated with former President Taylor’s prosecution and the novel arguments addressing the waiver of immunity by a tribunal that was treaty-based and not created using the Security Council’s Chapter VII powers. Taylor argued that he was entitled to immunity under international law because the Special Court was a domestic court. In addition to examining the caselaw of the International Court of Justice, on which the Special Court relied to find that Taylor was not immune from prosecution, the chapter continues to discuss the historical and symbolic implications of this major prosecution for international criminal law. Finally, the chapter examines how the Special Court Taylor immunity decision has impacted the current case law relating to immunities and prosecution of heads of State at the International Criminal Court.
Before investigations may begin, the jurisdiction of the Court with respect to a ‘situation’ must be triggered in one of three ways: a resolution of the United Nations Security Council, referral by a State Party and decision of the Pre-Trial Chamber authorizing the Prosecutor to proceed proprio motu. When the Security Council or a State Party refers a situation, the Prosecutor conducts a preliminary examination before deciding to proceed with an investigation. Should the Prosecutor decline to investigate, the Security Council or the State Party may apply for judicial review of the decision by the Pre-Trial Chamber. Special rules apply for triggering of jurisdiction over the crime of genocide by a State Party or by the Prosecutor. Pursuant to Article 16, the Security Council may temporarily block prosecution of a situation.
Chapter 2 focuses on the assemblage work of UN1267 ISIL and Al-Qaida Analytical Support and Sanctions Monitoring Team – a small group of security experts supporting the Sanctions Committee to administer the list. It engages with the practical problem of how to target ‘global terrorism’, which has not yet been defined in international law. Drawing primarily from actor-network theory and governmentality scholarship, the chapter shows how the technology of the list itself plays a crucial role in rendering this problem governable. The practice of UN listing experts is analysed at two specific sites - in ‘consultation meetings’ with national security and intelligence officials directed at populating the list with potential targets and in collaboration with experts from other international organisations to make the list interoperable with global policing data (Interpol) and the passenger data held by the global aviation industry (ICAO and IATA). Such seemingly mundane technical practices usually escape academic attention. But this chapter shows how analysing expert knowledge practices, data infrastructures and governance devices (like the list) can reveal important insights into how global security law is being made into something powerful, durable and global.
The spread of violent extremism, 9/11, the rise of ISIL and movement of 'foreign terrorist fighters' are dramatically expanding the powers of the UN Security Council to govern risky cross-border flows and threats by non-state actors. New security measures and data infrastructures are being built that threaten to erode human rights and transform the world order in far-reaching ways. The Law of the List is an interdisciplinary study of global security law in motion. It follows the ISIL and Al-Qaida sanctions list, created by the UN Security Council to counter global terrorism, to different sites around the world mapping its effects as an assemblage. Drawing on interviews with Council officials, diplomats, security experts, judges, secret diplomatic cables and the author's experiences as a lawyer representing listed people, The Law of the List shows how governing through the list is reconfiguring global security, international law and the powers of international organisations.
The human rights movement is by no means uniform and a series of challenges, both within the movement and in respect of its role as a political actor, have become more pronounced with the increasing power of human rights and its advocates. This development has cast the light on human rights advocates, such as NGOs, and has raised questions both of legitimacy – who are you to make claims in the name of human rights or on behalf of certain people? Are you living up to human rights principles in your own practice? – and effectiveness – are you really making the positive difference in people’s lives you claim to make? Responses to these challenges testify to a growing self-awareness and critical assessment of the nature of human rights work, which includes an evaluation of the efficacy of strategies used to promote and protect human rights. Inevitably, human rights advocates are increasingly drawn into the political domain and are faced with the difficult task of marrying principle with pragmatism. This chapter explores the tensions arising in these contexts and assesses the strategies used by human rights actors, namely documentation, human rights reporting, advocacy, awareness-raising, training and education and, where relevant, litigation
Chapter 1 introduces The Law of the List and the ISIL and Al-Qaida listing regime, sets out the key research questions it addresses and highlights the relevant literatures that are engaged with. It introduces the three key analytical moves of this book – (i) studying global law as a legal assemblage, (ii) examining risk and preemption as practices of governmentality, and (iii) rethinking the problem of exceptional governance. The introductory chapter also positions this book as a methodological experiment in situated knowledge production. The author’s own role within the listing assemblage as a practising lawyer representing listed individuals is discussed. Drawing on Science and Technology Studies (STS) scholarship, it is argued that methods are performative. They enact and interfere with the worlds they describe and so are intensely political. Three distinct methodological moves of this book are also highlighted - studying the ISIL and Al-Qaida list as a multisited research object by focusing on local global ‘structure-making sites’; empirically examining the role of practices in global security law and governance; and using leaked documents to study global security law that would otherwise be secret. The chapter closes with a brief overview of the structure of the book.
The UN Security Council, the main seat of power in the present UN with the authority to take binding decisions and to implement them with force if necessary, was created with a fatal flaw in the veto power of its five permanent members. This has prevented the UN from achieving its essential purpose to maintain peace and security, resolve disputes between states, regulate armaments and prevent interstate conflict. All past proposals for Security Council reform have failed because Charter reform is also subject to the veto. This chapter proposes to replace the Security Council with an Executive Council under the authority of the General Assembly responsible for implementation, management and effective operation of the United Nations, with collective security implementation as only one of a range of executive functions. It would consist of 24 members providing a balanced voice for all member states. The veto would be eliminated, to be replaced by a two-thirds majority in important matters. The Executive Council could coordinate and where necessary consolidate the many existing bodies and functions in the UN system. Specialized offices for peace and security would be strengthened or created within the Secretariat.
This chapter is concerned with exploring the mutually constitutive character of the international law of nuclear weapons, and the Cold War and post–Cold War environs in which that law was to be developed. In one direction it is argued that a consensual treaty-based system of law-making prevailed during the Cold War, which shifted to a system of Security Council legislation in the post-Cold War era, and that this reflected a parallel shift from a multipolar to a unipolar geopolitics. In another direction, however, it is also argued that the international law of nuclear weaponry also contributed to the production of its own political environs by both legitimating the possession of nuclear weaponry and controlling its spread.
Borrowing Gerry Simpson’s taxonomy, it was and remains common to think of the Soviet Union as both a ‘great power’ and an ‘outlaw state’. Some historical accounts portray Soviet law as elaborate, specific and complex; but simultaneously, others portray ‘Soviet law’ as a sham. This essay argues that the Soviet approach to Cold War international law hews closer to the former image than the latter. It appears that Soviet faith in international law grew over the course of the Cold War, rather than diminished. This essay is a tentative sketch of the transformation of Soviet faith in law over the course of the Cold War.
Whilst the role of the UN and the institutional space it opened for staging the Congo crisis are undoubtedly important for international law, this chapter focuses primarily on the political event of Lumumba’s 1961 assassination. Lumumba became the site of extensive Cold War anxieties and postcolonial aspirations, as an embodiment of the communist threat to some and of a pan-African future to others. His death provoked the ascription of an excess of meaning to a single politician, a victim standing metonymically for the broader violation of Congolese sovereignty. Both larger than life as a postcolonial martyr and overdetermined as a communist, Lumumba was a contested figure in the Cold War political imaginary.
This chapter focuses upon the making of the Suez Crisis in international law. It is argued that paying attention to how a crisis was made out of the nationalisation of the Suez Canal Company helps us to understand the making of Cold War international law in two ways. First, it invites us to move away from the standardised narratives of the significance of the Suez Crisis for international law as, for example, the realisation of the United Nations Charter’s prohibition on the use of force or the moment at which peacekeeping emerged as an innovative (executive) solution to international crises. Secondly, an attention to the production of crisis pulls back from narratives of the Cold War that emphasise its ‘non-juridical’ character. In contrast to this, I argue that the crises that apparently plagued the Cold War world were so significant precisely because they marked a radical challenge to the existing international legal order. The Suez Crisis can be seen, then, as a jurisdictional contest over the authorship of international law, or as a struggle over the authority to authorise.
The interaction of international counter-terrorism laws with IHL is an area of renewed focus, amid widespread concern that the former are being (mis)applied to criminalise the provision of humanitarian assistance envisaged under the latter. The Security Council has begun to consider this issue in resolutions adopted in March and July 2019, but difficult questions of law and fact remain. These questions have significant practical consequences—for humanitarian agencies and those they seek to assist, as well as for States that must weigh different, and possibly conflicting, legal obligations. Much of the analysis to date and the solutions proposed, pay insufficient attention to the specifics of each legal regime.