Published online by Cambridge University Press: 19 March 2012
This Article discusses the competences and powers of the UN Security Council in securing compliance with international humanitarian law, in particular through the adoption of the measures provided in Chapter VII of the Charter: The competence of the Council in this field can be founded on several legal grounds: on a broad interpretation of the notion of “threat to the peace” (Article 39 of the Charter), on Article 94(2) with regard to the International Court of Justice's judgments establishing violations of the jus in bello and also on the customary duty to ensure respect for international humanitarian law as reflected in Article 1 Common to the 1949 Geneva Conventions on the Protection of the Victims of War. In particular, such customary provision empowers the Security Council to react to any violation of international humanitarian law regardless of a nexus with concerns of international stability. Although the Council has adopted a variety of measures in relation to violations of the laws of war, the most incisive ones are those provided in Articles 41 and 42 of Chapter VII, which however are not without problems. The role the Security Council has played in the enforcement of international humanitarian law has been criticized because of its selective and opportunistic approach, which is due to the political nature of the organ. Also, in several instances the Council, far from securing compliance with the jus in bello, has instead interfered with its application. However selective and imperfect the Council's approach might be, though, its power to adopt decisions binding on UN members and its competence to take or authorize coercive measures involving the use of force make it potentially a formidable instrument against serious violations of international humanitarian law, partly remedying the lack of enforcing mechanisms in the treaties on the laws of war.
1 This Article uses “international humanitarian law,” “jus in bello,” “laws of war,” and “law of armed conflict” synonymously.
2 A. van Baarda, Theodoor, The Involvement of the Security Council in Maintaining International Humanitarian Law, 12 Netherlands Q. Hum. Rts. 137, 142 (1994)Google Scholar.
3 S.C. Res. 237, para. 2, U.N. Doc. S/RES/237 (June 14, 1967).
4 S.C. Res 436, para. 2, U.N. Doc. S/RES/436 (Oct. 6, 1978) calls upon all involved to allow the ICRC into the conflict area to evacuate the wounded and provide humanitarian assistance.
5 Schotten, Gregor & Biehler, Anke, The Role of the UN Security Council in Implementing International Humanitarian Law and Human Rights Law, in International Humanitarian Law and Human Rights Law: Towards a New Merger in International Law 309, 312 (Arnold, Roberta & Quénivet, Noëlle eds., 2008)Google Scholar. It appears that, during this period, the Council mainly focused on the Middle East and the Palestinian Occupied Territories, the conflict between Iran and Iraq and the invasion of Kuwait (Bourloyannis, Christiane, The Security Council of the United Nations and the Implementation of International Humanitarian Law, 20 Denv. J. Int'l L. & Pol'y 335, 353 (1992)Google Scholar).
6 María Teresa Comellas Aguirrezábal, La incidencia de la práctica del Consejo de Seguridad en el derecho internacional humanitario 24 (2007)Google Scholar.
7 Abi-Saab, Georges, Conclusions, in Les Nations Unies et le droit international humanitaire: Actes du Colloque international à l'occasion du cinquantiéme de l'onu 307 n.8 307 (Condorelli, Luigi, La Rosa, Anne-Marie & Scherrer, Sylvie eds., 1996)Google Scholar.
8 On securing compliance with the provisions protecting children in armed conflict, see Happold, Matthew, Protecting Children in Armed Conflict: Harnessing the Security Council's “Soft Power,” 43 Isr. L. Rev. 360 (2010)CrossRefGoogle Scholar. On the protection of women, see Anke Biehler, Protection of Women in International Humanitarian Law and Human Rights Law, in Arnold and Quénivet, supra note 5, at 355, 372-75.
9 On this aspect, see Comellas Aguirrezábal, supra note 6, at 201 ff.
10 Report of the International Law Commission to the General Assembly  1 Y.B. Int'l L. Comm'n 281, U.N. Doc A/CN.4/13. See Schotten & Biehler, supra note 5, at 311.
11 G.A. Res. 2444 (XXIII), U.N. Doc. A/RES/2444(XXIII) (Dec. 19, 1968).
12 Human Rights Council Res. 9/9, Annual Reports of the HRC, 9th Sess., Sept. 9-24, 2008, A/HRC/RES/9/9 at 1 (Sept. 18, 2008). As observed in the Commentary to Article 89 of Additional Protocol I to the 1949 Geneva Conventions “[a]cting for the protection of man, also in time of armed conflict, accords with the aims of the United Nations no less than does the maintenance of international peace and security” (Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 para. 3596 (Sandoz, Yves, Swinarski, Christophe & Zimmermann, Bruno eds., 1987)Google Scholar).
13 Fry, James D., The UN Security Council and the Law of Armed Conflict: Amity or Enmity?, 38 Geo. Wash. Int'l L. Rev. 327, 333 (2006)Google Scholar.
14 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ 16, 294, para. 115 (June 21) [hereinafter Namibia Advisory Opinion] (Dissenting Opinion of Judge Fitzmaurice).
16 The other two situations triggering Chapter VII powers, breaches of peace and acts of aggression, refer to the outbreak of an inter-state armed conflict.
17 Österdahl, Inger, Threat to Peace: The Interpretation by the Security Council of Article 39 of the UN Charter 85 (1998)Google Scholar.
18 It is well-known that the drafters of the Charter deliberately left the notion undefined (United Nations Conference on International Organization, Documents, Vol. XII, 1945, 505).
20 Id. Gaja argues that the extensive interpretation of the notion of “threat to the peace” “trouve surtout sa raison d'être dans l'exigence de répondre à des violations d'obligations essentielles pour la société internationale. … [L]es nouvelles frontières du concept de menace à la paix, telles qu'elles ressortent de la pratique du Conseil, ont pour conséquence de restreindre l'admissibilité des réactions individuelles” (Gaja, Giorgio, Réflexions sur le rôle du Conseil de sécurité dans le nouvel ordre mondial. A propos des rapports entre maintien de la paix et crimes internationaux des Etats, 97 Revue Générale de Droit International Public 297, 307, 309 (1993)Google Scholar).
22 Note by the President of the Security Council at 3, U.N. Doc. S/23500 (Jan. 31, 1992).
23 S.C Res 808 at 2, U.N. Doc. S/RES/808 (Feb. 22, 1993).
24 S.C. Res 955 at 1, U.N. DOC S/RES/955 (Nov. 8, 1994). In other resolutions, e.g., Res. 794 (1992) with regard to Somalia, it is the consequences (“human tragedy”) of the violations of international humanitarian law and of the armed violence more than the violations themselves that were qualified as a threat to the peace (S.C. Res 794 at 1, U.N. Doc. S/RES/794 (Dec. 3, 1992)).
25 S.C. Res 1296, para. 5, U.N. Doc. S/RES/1296 (Apr. 19, 2000). See also S.C Res. 1674, para. 26, U.N. Doc. S/RES/1674 (Apr. 28, 2006), S.C. Res 1738, para. 9, U.N. Doc. S/RES/1738 (Dec. 23, 2006) and S.C. Res. 1894, para. 3, U.N. Doc. S/RES/1894 (Nov. 11, 2009) on the protection of civilians in armed conflict and Res. 1314 (2000) on children and armed conflict, that use identical language.
26 See, e.g., Egypt (U.N. SCOR, 55th Sess., 4130th mtg. (Resumption 1) at 12, U.N. Doc. S/PV.4130 (Resumption 1) (Apr. 19, 2000)); Morocco (U.N. SCOR, 64th Sess., 6066th mtg. (Resumption 1) at 22-23, U.N. Doc. S/PV.6066 (Resumption 1), (Jan. 14, 2009)); United Arab Emirates (id. at 8); Canada (U.N. SCOR, 64th Sess., 6151th mtg. (Resumption 1) at 8, U.N. Doc. S/PV.6151 (Resumption 1) (June 26, 2009)); Croatia (U.N. SCOR, 64th Sess., 6216th mtg. at 10, U.N. Doc. S/PV.6216 (Nov. 11, 2009)). An exception appears to be India's claim that Chapter VII does not apply to breaches of international humanitarian law (Wellens, Karel, The UN Security Council and New Threats to the Peace: Back to the Future, 8 J. Conflict Sec. L. 15, 60 (2003)Google Scholar).
27 See the Dissenting Opinion of Judge Weeramantry in Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. UK; Libyan Arab Jamahiriya v. US), Order on Request for the indication of Provisional Measures, 1992 I.C.J. 160, 176 (Apr. 14): “the determination under Article 39 of the existence of any threat to the peace, breach of the peace or act of aggression, is one entirely within the discretion of the Council. It would appear that the Council and no other is the judge of the existence of the state of affairs that brings Chapter VII into operation.”
28 Dissenting Opinion of Judge Fitzmaurice, supra note 14, para. 116-17. The qualification as a threat to the peace of the failure of Libya to extradite the alleged perpetrators of the Lockerbie bombing and to renounce terrorism “by concrete actions,” contained in Res. 748 (1992), has for instance been criticised (Lamb, Susan, Legal Limits to United Nations Security Council Powers, in The Reality of International Law. Essays in Honour of Ian Brownlie 361, 378–79 (Goodwin-Gill, Guy S. & Talmon, Stefan eds., 1999)Google Scholar).
29 Prosecutor v. Tadić, Case no. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 29 (Oct. 2, 1995) [hereinafter Tadić].
30 Benedetto Conforti, The Law and Practice of the United Nations 177 (2005)Google Scholar (emphasis in the original).
31 See Franck, Thomas M., Fairness in the International Legal and Institutional System, 240 Recueil Des Cours 9, 191 (1993-III)Google Scholar; Lamb, supra note 28, at 385.
32 In his Separate Opinion in the Genocide case, Judge ad hoc Lauterpacht recalled that the ICJ's power of judicial review “does not embrace any right of the Court to substitute its [own] discretion for that of the Security Council in determining the existence of a threat to the peace, a breach of the peace or an act of aggression, or the political steps to be taken following such a determination.” Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Further Requests for the Indication of Provisional Measures, 1993 I.C.J. 407, para. 99 (Sept. 13) [hereinafter Genocide case].
33 Bothe, Michael, Les limites des pouvoirs du Conseil de sécurité, in The Development of the Role of the Security Council Workshop of the Hague Academy of International Law 67, 70 (Dupuy, René-Jean ed., 1992)Google Scholar.
34 Herdegen, Matthias, Die Befugnisse des UN-Sicherheitsrates: Aufgeklärter Absolutismus im Völkerrecht? 16 (1998)Google Scholar.
35 S.C. Res. 808 (supra note 23, at 2) with regard to Bosnia and Herzegovina makes the example of mass killings and ethnic cleansing. France, sponsor of the resolution, declared that the violations of international humanitarian law in Bosnia were a threat to the peace because their commission would inflame the conflict (U.N. SCOR, 48th Sess., 3175th mtg. at 8, U.N. Doc. S/PV.3175 (Feb. 22, 1993)). See S.C. Res 955, supra note 24; S.C. Res 1296, supra note 25, para. 5; S.C Res. 1674, supra note 25, para. 26; S.C. Res 1738, supra note 25, para. 9; S.C. Res. 1894, supra note 25, para. 3; S.C. Res. 1314, para. 9, U.N. Doc. S/RES/1314 (Aug. 11,2000).
36 See infra Section I.D.
37 See, e.g., Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgement, 2005 I.C.J. 168, para. 345 (Dec. 19, 2005).
38 U.N. Charter, art. 94, para. 2.
41 Mosler, Hermann & Oellers-Frahm, Karin, Article 94, in The Charter of the United Nations: A Commentary Vol. 2, 1174, 1177 (Simma, Bruno et al. eds., 2d ed. 2002)Google Scholar; Schachter, supra note 39, at 19-20; Tanzi, supra note 40, at 561.
42 Mosler & Oellers-Frahm, supra note 41, at 1177; Schachter, supra note 39, at 22; Gill, T.D., Legal and Some Political Limitations on the Power of the UN Securiy Council to Exercise its Enforcement Powers Under Chapter VII of the Charter, 26 Netherlands Y.B. Int'l L. 33, 59–60 (1995)Google Scholar.
43 In any case, given the broad interpretation of the notion of “threat to the peace” by the Council, the problem seems of limited practical relevance (Tanzi, supra note 40, at 561).
44 Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques, art. V, Dec. 10, 1976, 1108 U.N.T.S. 151.
45 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, art. XII (4), Jan. 13th, 1993, 1974 U.N.T.S. 45.
46 Rome Statute of the International Criminal Court, art. 13(b), Jul. 17, 2000, 2187 U.N.T.S. 3. This right has been exercised for the first time with regard to the situation in Darfur (S.C. Res. 1593, para. 1, U.N. Doc. S/RES/1593 (Mar. 31, 2005)).
47 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 89, June 8th, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]. A similar provision is contained in the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the event of Armed Conflict, art 31, Mar. 26th, 1999, 2253 U.N.T.S. 172. According to the Commentary to Article 89, “serious violations” of the Conventions or of the Protocol means “conduct contrary to these instruments which is of a serious nature but which is not included as such in the list of ‘grave breaches’” (Sandoz, Swinarski & Zimmermann, supra note 12, para. 3591). This call for cooperation in reacting against at least the most serious violations of international (humanitarian) law is also contained in Article 41(1) of the Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001 and endorsed by the UN General Assembly, which provides that “States shall cooperate to bring to an end through lawful means any serious breach” of an obligation arising under a peremptory norm of general international law (Rep. of the Int'l Law Comm'n, 53rd Sess, Apr. 23–June 1, July 2–Aug. 10, 2001 at 286 U.N. Doc. A/56/10; GAOR, 56th Sess., Supp. No. 10 (2001)). The Commentary to the article states that this “[c]ooperation could be organized in the framework of a competent international organization, in particular the United Nations” (Id. at 287).
48 See infra note 122.
49 Namibia Advisory Opinion, supra note 14, at 22, para. 22. See also Wolfram Karl, Bernd Mützelburg & Georg Witschel, Article 108, in Simma, supra note 41, at 1341, 1346, paras. 11–12.
50 See Conforti, supra note 30, at 66-67, & 208, who gives the examples of the validity of Security Council non-procedural decisions adopted with the abstention of one or more permanent members and the delegation of the use of force by the Council to Member States. Those who see the Charter as a “constitution” come to a different conclusion (see, e.g., Fassbender, Bardo, The United Nations Charter as Constitution of the International Community, 36 Colum. J. Transnat'l L. 529, 586, 600 (1998)Google Scholar).
52 Emphasis added. See also Additional Protocol I, supra note 47, art. 1(1), and Convention on the Rights of the Child, art. 38(1), Nov. 20 1989, 1577 U.N.T.S. 3. A similar provision does not appear in Additional Protocol II but it has been argued that, as the situations covered by this Protocol also fall within the scope of application of Common Article 3 of the Geneva Conventions, the obligation to respect and ensure respect applies to non-international armed conflicts as well (Condorelli, Luigi & de Chazournes, Laurence Boisson, Quelques remarques à propos de l'obligation des Etats de «respecter et faire respecter» le droit international humanitaire «en toutes circonstances,» in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 17, 17 (Swinarski, Christophe ed., 1984))Google Scholar. It has been demonstrated that the obligation to ensure respect contained in Common Article 1 of the Geneva Conventions was initially intended by the drafters as referring to internal observance within the states parties to the Conventions (Roberts, Adam, The Laws of War: Problems of Implementation in Contemporary Conflicts, 6 Duke J. Comp. & Int'l L. 11, 29–30 (1995)Google Scholar). The new, broader interpretation of Article 1, which also addresses states not involved in the armed conflict, was solemnly supported by the above mentioned Res. 2444 (XXIII) on Human Rights and Armed Conflict, adopted by the 1968 International Conference on Human Rights with no vote against (supra note 11). This interpretation has also been endorsed by the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 199-200, para. 158 (July 9) [hereinafter Wall Advisory Opinion]: “It follows from that provision [Common Article 1] that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with” (emphasis added).
53 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14Google Scholar, para. 220 (June 27). This is also the ICRC position, see 1 Customary International Humanitarian Law 509–13 (Henckaerts, Jean-Marie & Doswald-Beck, Louise eds., 2005)CrossRefGoogle Scholar. See also Condorelli & Boisson de Chazournes, supra note 52, at 27-29.
54 Tadić, supra note 29, para. 93. See also de Chazournes, Laurence Boisson & Condorelli, Luigi, Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests, 82 Int'l Rev. Red Cross 67, 70 (2000)Google Scholar.
55 It has been observed that “[h]umanitarian principles have value per se and should not be considered only when security issues which endanger international peace and security are at stake” de Chazournes, Laurence Boisson, The Collective Responsibility of States to Ensure Respect for Humanitarian Principles, in Monitoring Human Rights in Europe 247, 255 (Bloed, Arie, Leicht, Liselotte, Nowak, Manfred and Rosas, Allan eds., 1993)Google Scholar). Common Article 1 does not however, impose on the Council an obligation to act. Indeed, it has been suggested that state practice shows that “Article 1 allows third states to intervene, but does not oblige them to do so” (Kolb, Robert & Hyde, Richard, An Introduction to the International Law of Armed Conflicts 288 (2008)Google Scholar). The ICRC Study on customary international humanitarian law appears to share this view: Rule 144 vaguely provides that states “must exert their influence, to the degree possible, to stop violations of international humanitarian law” (Henckaerts & Doswald-Beck, supra note 53, at 509). According to Kalshoven, “the primary legal obligation arising from common Article 1 is for States Parties to impose respect for the applicable rules of international humanitarian law, ‘in all circumstances’, on their armed forces, including armed groups under their control, and on their populations,” as only for this obligation can states be held legally responsible, while when it comes to respect by their peers, States are only under a moral incentive or obligation (Kalshoven, Frits, The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit, 2 Y.B. Int'l Human. L. 3, 60 (1999)Google Scholar). See similarly the Separate Opinion of Judge Kooijmans in the Wall Advisory Opinion, supra note 52, at 232-34, paras. 46-50. The existence of a positive duty to ensure respect for international humanitarian law “at the very least by third parties controlled by that state” is claimed by Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law 31 (1989)Google Scholar. See generally id. at 30-31.
56 Such use of the UN would be contemplated in an emerging norm of customary international law (Picone, Paolo, Comunità Internazionale e obblighi «erga omnes» especially 215–18, 273–74, 306–08, 332 (2006)Google Scholar). Another commentator has also emphasized that “[t]he existence of community organs allows us to speak of an organized entity possessing a right, and the actual ability, to demand the performance of obligations erga omnes” (Fassbender, supra note 50, at 592) (emphasis added). See also the words of the Libyan representative during the debate on the protection of civilians in armed conflict: “The international community, represented mainly by this Council, not only has the right to take measures but has the responsibility to act if the parties directly concerned have not managed to protect civilians or have shown a lack of will to do so” (U.N. SCOR, 64th Sess., 615 1st mtg. at 20, U.N. Doc. S/PV.6151 (June 26,2009)) (emphasis added).
57 For the notion of dédoublement fonctionnel, see Scelle, Georges, Précis de droit des gens: Principes et systématique Vol. II 10–12 (1934)Google Scholar.
58 2005 World Summit Outcome, G.A. Res. 60/1, para. 139, U.N. Doc. A/RES/60/1 (Sept. 16, 2005) [hereinafter World Summit Outcome Document]. On the “responsibility to protect” see Roscini, Marco, Neighbourhood Watch? The African Great Lakes Pact and ius ad bellum, 69 Zeitschriftfür Ausländisches Öffentliches Recht und Völkerrecht 931, 948–55 (2009)Google Scholar, and the bibliography cited therein.
59 See the reaffirmation of the de jure applicability of the IV Geneva Convention to the territories occupied by Israel since 1967. The first express reference in this regard is contained in S.C. Res. 271, para. 4, U.N. Doc. S/RES/271 (Sept. 15, 1969), although the Council had already implicitly recognized this in Res. 237, supra note 3, para. 2. See also S.C. Res. 469, U.N. Doc. S/RES/469 (May 20, 1980), S.C. Res. 471, U.N. Doc. S/RES/471 (June 5, 1980), S.C. Res 607, U.N. Doc. S/RES/607 (Jan. 5, 1988) and S.C. Res. 636, U.N. Doc. S/RES/636 (July 6, 1989), which reaffirm the applicability of arts. 1, 27, 47 and 49 of the IV Geneva Convention to the Palestinian Occupied Territories, respectively. The Council has also urged Israel to recognize the de jure application of the IV Geneva Convention (S.C. Res. 681, para. 4, U.N. Doc. S/RES/681 (Dec. 20, 1990)). These calls have however proved not to be very effective, although they might have been one of the factors bringing Israel and the Palestinians to the negotiating table (Michael Bothe, The United Nations Actions for the Respect of International Humanitarian Law and the Coordination of Related International Operations, in Condorelli, La Rosa & Scherrer, supra note 7, at 213, 220).
60 See, e.g., S.C. Res. 819, para. 8, U.N. Doc. S/RES/819 (Apr. 16, 1993) on Bosnia and Herzegovina, that qualifies impeding the delivery of humanitarian assistance as a serious violation of international humanitarian law.
61 S.C. Res. 681, supra note 59, para. 6, with regard to the Palestinian Occupied Territories.
62 The first time a state was censored for breaching international humanitarian law was in S.C. Res. 446, para. 2, U.N. Doc. S/RES/446 (Mar. 22, 1979), which strongly deplored the establishment of Israeli settlements in the Palestinian and Arab territories. For condemnations of violations of international humanitarian law in general, see, e.g., S.C. Res. 540, U.N. Doc. S/RES/540 (Oct. 31, 1983) with regard to the Iran-Iraq conflict; S.C. Res. 876, U.N. Doc. S/RES/876 (Oct. 19, 1993) with regard to Abkhazia; S.C. Res. 1565, U.N. Doc. S/RES/1565 (Oct. 1, 2004), S.C. Res. 1711, U.N. Doc. S/RES/1711 (Sept. 29, 2006) and S.C. Res. 1736, U.N. Doc. S/RES/1736 (Dec. 22, 2006) with regard to the Democratic Republic of the Congo (DRC); S.C. Res. 1865, U.N. Doc. S/RES/1865 (Jan. 27, 2009) with regard to Côte d'Ivoire; and S.C. Res. 1881, U.N. Doc. S/RES/1881 (July 30, 2009) with regard to Darfur. See also the presidential statement adopted in January 2009 condemning all violations of international humanitarian law and demanding that all relevant parties cease those violations (S.C. Pres. Statement 2009/1 at 1, U.N. Doc. S/PRST/2009/1 (Jan. 14, 2009)). For condemnations of certain specific conduct or provisions, see, e.g., S.C. Res. 1231, para. 3, U.N. Doc. S/RES/1231 (Mar. 11, 1999) with regard to attacks on civilians and the recruitment of child soldiers in Sierra Leone; S.C. Res. 771, para. 2, U.N. Doc. S/RES/771 (Aug. 13, 1992) with regard to ethnic cleansing in the former Yugoslavia; S.C. Res. 864 para. 13, U.N. Doc. S/RES/864 (Sept. 15, 1993) with regard to attacks on UN personnel in Angola; and S.C. Res. 1925 at 2, U.N. Doc. S/RES/1925 (May 28, 2010) with regard to targeted attacks against the civilian population, widespread sexual violence, recruitment and use of child soldiers and extrajudicial executions in the DRC.
63 One may recall, in this regard, the creation of the Commissions of Experts for the former Yugoslavia and Rwanda and of an Inquiry Commission for Darfur (S.C. Res. 780, para. 2, U.N. Doc. S/RES/780 (Oct. 6, 1992), S.C. 935, para. 1, U.N. Doc. S/RES/935 (July 1, 1994) and S.C. Res. 1564, para. 12, U.N. Doc. S/RES/1564 (Sept. 18, 2004), respectively). If the influence of the reports by the Commissions of Experts for the former Yugoslavia and Rwanda is debatable, the Security Council seems to have followed the indications of the Darfur Commission, which recommended referral of the situation to the ICC (Cryer, Robert, The Security Council and International Humanitarian Law, in Testing the Boundaries of International Humanitarian Law 245, 262–63 (Breau, Susan C. & Jachec-Neale, Agnieszka eds., 2006)Google Scholar). The Security Council has also requested the UN Secretary-General, special representatives, States, non-governmental organizations and peacekeeping forces to collect information (e.g., S.C. Res. 918 at 2, U.N. Doc. S/RES/918 (May 17, 1994); S.C. Res. 674, para. 2, U.N. Doc. S/RES/674 (Oct. 29, 1990); S.C. Res. 771, supra note 62, para. 5; S.C. Res. 1865, supra note 62, para. 25; S.C. Res. 1893, para. 12, U.N. Doc. S/RES/1893 (Oct. 29, 2009); S.C. Res. 1925, supra note 62, para.17; S.C. Res. 1933, para. 22, U.N. Doc. S/RES/1933 (June 30, 2010)).
64 See Additional Protocol I, supra note 47, para. 90. See also the words of the Swiss representative in the Security Council, S/PV.6151 (Resumption I), supra note 26, at 6 (“Switzerland recalls the existence of the International Humanitarian Fact-Finding Commission established by the First Additional Protocol to the Geneva Conventions. We encourage the Security Council to give a mandate to that permanent commission rather than appointing ad hoc commissions of inquiry”). In S.C. Res. 1265, para. 6, U.N. Doc. S/RES/1265 (Sept. 17, 1999) and S.C. Res. 1894, supra note 25, para. 9, however, the Council recalled the possibility of using the International Fact-Finding Commission.
65 See, e.g., S.C. Res. 814, para. 8, U.N. Doc. S/RES/814 (Mar. 26, 1993) and S.C. Res. 1863, para. 3, 15, U.N. Doc. S/RES/1863 (Jan. 16, 2009) with regard to Somalia, S.C. Res. 876, supra note 62, para. 4, with regard to Abkhazia, S.C. Res. 1881, supra note 62, para. 7 and S.C. Res. 1919 at 2, U.N. Doc. S/RES/1919 (Apr. 29, 2010) with regard to Sudan, S.C. Res. 1868 at 3. U.N. Doc. S/RES/1868 (Mar. 23, 2009); S.C. Res. 1890 at 2, U.N. Doc. S/RES/1890 (Oct. 8, 2009) and S.C. Res. 1917 at 3, U.N. Doc. S/RES/1917 (Mar. 22, 2010) with regard to Afghanistan.
66 In order to establish whether a resolution has been adopted under Chapter VII in the absence of an express reference, one should look, for instance, at whether the resolution also simultaneously adopts measures under Articles 40, 41 or 42, or whether it expressly qualifies the situation as a threat to the peace, breach of the peace or act of aggression, or whether it refers to a crisis involving the use of armed force. See Conforti, supra note 30, at 180.
67 S.C. Res. 1265, supra note 64, para. 4.
68 Comellas Aguirrezábal, supra note 6, at 113. See, e.g., S.C. Res. 1564, supra note 63, para. 1, with regard to Sudan and S.C. Res. 1893, supra note 63, at 1 with regard to Côte d'Ivoire.
69 See, e.g., S.C. Res. 1493, para. 8, U.N. Doc. S/RES/1493 (July 28, 2003) with regard to the DRC and S.C. Res. 1556 at 2, U.N. DOC. S/RES/1556 (July 30, 2004) with regard to Sudan.
70 See, e.g., S.C. Res. 819, supra note 60, para. 8, with regard to the former Yugoslavia, S.C. Res. 1744, para. 11, U.N. Doc. S/RES/1744 (Feb. 21, 2007) and S.C. Res. 1910, para. 17, U.N. Doc. S/RES/1910 (Jan. 28, 2010) with regard to Somalia, and S.C. Res. 1923, para. 22, U.N. Doc. S/RES/1923 (May 25, 2010) on Chad and the Central African Republic.
71 See, e.g., S.C. Res. 1592, at 2, para. 3, U.N. Doc. S/RES/1592 (Mar. 30, 2005) with regard to the DRC and S.C. Res. 1863, supra note 65, para. 19, with regard to Somalia.
72 See, e.g., S.C. Res. 471, supra note 59, para. 3, with regard to the Palestinian Occupied Territories.
73 See, e.g., S.C. Res. 1653, para. 6, U.N. Doc. S/RES/1653 (Jan. 27, 2006) with regard to the African Great Lakes. S.C. Res. 1012 at 1, U.N. Doc S/RES/1012 (Aug. 28, 1995), requesting the Secretary-General to set up an international commission of inquiry on Burundi, recalls that “impunity … leads to violations of international humanitarian law.”
74 See, e.g., S.C. Res. 465, para. 7, U.N. Doc. S/RES/465 (Mar. 1, 1980) and 471, supra note 59, para. 5, with regard to the Palestinian Occupied Territories.
75 It is worth recalling that the limit of domestic jurisdiction does not prejudice the application of Chapter VII enforcement measures (U.N. Charter art. 2, para. 7).
76 Security Council Report, Protection of Civilians 9 (Oct. 14, 2008), http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/XCuttingPOC2008.pdfGoogle Scholar [hereinafter Security Council Report]. Economic sanctions have been defined as “measures not including the use of military force and taken individually or collectively by States to put pressure on an individual State (the targeted or embargoed State), with a view to inducing the authorities of that State to adopt a specified course of action” (Gasser, Hans-Peter, Collective Economic Sanctions and International Humanitarian Law, 56 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 871, 876 (1996)Google Scholar (footnote omitted)).
77 Security Council Report, supra note 76, at 9. See S.C. Res. 1844, U.N. Doc. S/RES/1844 (Nov. 20, 2008) on Somalia, as well as S.C. Res. 1907, U.N. Doc. S/RES/1907 (Dec. 23, 2009) with regard to Eritrea.
78 In his 1995 “Supplement to the Agenda for Peace,” the UN Secretary-General famously described sanctions as a “blunt instrument” that inflicts suffering on the vulnerable groups in the target country and which has “unintended or unwanted effects” (U.N. Secretary-General, Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, para. 70, U.N. Doc. A/50/60-S/1995/1 (Jan. 25, 1995)).
79 See, e.g., S.C. Res. 757, para. 4(c), U.N. Doc. S/RES/757 (May 30, 1992) that excludes foodstuffs and medical supplies from the embargo against Yugoslavia (Serbia and Montenegro). See also S.C. Res. 661, para. 3(c), U.N. Doc. S/RES/661 (Aug. 6, 1990), S.C. Res. 666, para. 1, U.N. Doc. S/RES/666 (Sept. 13, 1990) and S.C. Res. 986, paras. 1-2, U.N. Doc. S/RES/986 (Apr. 14, 1995) with regard to Iraq, S.C. Res. 1127, para. 5, U.N. Doc. S/RES/1127 (Aug. 28, 1997) with regard to UNITA in Angola, S.C. Res. 1591, para. 3(g), U.N. Doc. S/RES/1591 (Mar. 29, 2005) with regard to Sudan and S.C. Res. 1596, para. 16, U.N. Doc. S/RES/1596 (May 3,2005) with regard to the DRC.
80 See, e.g., S.C. Res. 787, paras. 9-10, U.N. Doc. S/RES/787 (Nov. 16, 1992) with regard to Yugoslavia and S.C. Res. 1132, U.N. Doc. S/RES/1132 (Oct. 8, 1997) with regard to Sierra Leone.
81 See, e.g., S.C. Res. 1478, U.N. Doc. S/RES/1478 (May 6, 2003) and S.C. Res. 1521, U.N. Doc. S/RES/1521 (Dec. 22, 2003) in relation to Liberia; S.C. Res. 1493, supra note 69, S.C. Res. 1596, supra note 79, and S.C. Res. 1807, U.N. Doc. S/RES/1807 (Mar. 31, 2008) in relation to the DRC; S.C. Res. 1556, supra note 69, and S.C. Res. 1591, supra note 79, in relation to Sudan; S.C. Res. 1572, U.N. Doc. S/RES/1572 (Nov. 15, 2004) in relation to Côte d'Ivoire; S.C. Res. 1306, U.N. Doc. S/RES/1306 (July 5, 2000) in relation to Sierra Leone.
82 Security Council Report, supra note 76, at 27. In a recent debate on the protection of civilians in armed conflict, China declared itself “not in favour of the Council resorting to the use of or threatening the use of sanctions at every turn” (S/PV.6151, supra note 56, at 13). On whether economic sanctions are an adequate response to violations of international humanitarian law, see Bourloyannis, who argues that in cases of use of prohibited weapons or indiscriminate attacks on civilians an arms embargo seems appropriate, but if it is directed at all parties to the conflict it would disadvantage those belligerents that comply with international humanitarian law. On the other hand, an arms embargo only targeting those who breach international humanitarian law might alter the military balance between the parties. In case of violations of the law of occupation, a comprehensive economic embargo does not seem appropriate, as it would increase the suffering of the population living in the occupied territory and in the target state (Bourloyannis, supra note 5, at 354-55).
83 Challenges against targeted sanctions listings have been brought before different fora, most famously before the European Court of Justice. See Cannizzaro, Enzo, A Machiavellian Moment? The UN Security Council and the Rule of Law, 3 Int'l Org. L. Rev. 189 (2006)CrossRefGoogle Scholar; De Sena, Pasquale & Vitucci, Maria Chiara, The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values, 20 Eur. J. Int'l L. 193 (2009)CrossRefGoogle Scholar; Gattini, Andrea, Joined Cases C-402/05 P & 415/05 P Yassin Abdullah Kadi, A1 Barakaat International Foundation v. Council and Commission, judgment of the Grand Chamber of 3 September 2008, nyr., 46 Comm. Mkt. L. Rev. 213 (2009)Google Scholar; Michaelsen, Christopher, Kadi and Al Barakaat v Council of the European Union and Commission of the European Communities: The Incompatibility of the United Nations Security Council's 1267 Sanctions Regime with European Due Process Guarantees, 10 Melb. J. Int'l L. 329 (2009)Google Scholar; Porretto, Gabriele, The European Union, Counter-Terrorism Sanctions against Individuals and Human Rights Protection, in Fresh Perspectives on the ‘War on Terror’ 235 (Gani, Miriam & Mathew, Penelope eds., 2008)Google Scholar.
84 World Summit Outcome Document, supra note 58, para. 109.
85 Watson Inst. for Int'l Studies, Strengthening Targeted Sanctions Through Fair and Clear Procedures (2006) available at http://www.watsoninstitute.org/pub/Strengthening_Targeted_Sanctions.pdfGoogle Scholar. The Report subsequently became both a General Assembly and Security Councilofficial document (Identical Letters dated May 19, 2006 from the Permanent Representatives of Germany, Sweden and Switzerland to the United Nations addressed to the President of the General Assembly and the President of the Security Council, UN Doc. A/60/887-S/2006/331 (June 14, 2006)) and was updated in 2009 (Biersteker, Thomas et al. , Addressing Challenges to Targeted Sanctions: An Update of the “Watson Report” (2009), http://watsoninstitute.org/images_news/FB09_sanctionsreport.pdfGoogle Scholar (hereinafter Addressing Challenges to Targeted Sanctions)).
86 S.C. Res. 1730, para. 1, U.N. DOC. S/RES/1730 (Dec. 19, 2006). See Addressing Challenges to Targeted Sanctions, supra note 85, at 12-14. Further guarantees, including the introduction of an independent and impartial ombudsperson to look into requests for delisting targeted individuals and entities, have subsequently been introduced by the Council, but only with regard to the sanctions regimes against international terrorism and not in relation to other sanctions (S.C. Res. 1735, U.N. Doc. S/RES/1735 (Dec. 22, 2006); S.C. Res. 1822, U.N. Doc. S/RES/1822 (June 30, 2008); S.C. Res. 1904, U.N. DOC. S/RES/1904 (Dec. 17, 2009)).
87 S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) and Res. 955, supra note 24, respectively. According to Meron:
[t]he singling out of violations of humanitarian law as a major factor in the determination of a threat to the peace creates an important precedent, and the establishment of the tribunal as an enforcement measure under the binding authority of chapter VII … may foreshadow more effective international responses to violations of humanitarian law.
88 S.C. Res. 692, U.N. Doc. S/RES/692 (May 20, 1991). It has been noted that “[c]laims for compensation of violations of humanitarian principles can clearly be brought before the Commission …” (Boisson de Chazournes, supra note 55, at 253). In fact, even if Iraq's responsibility arises from a violation of Jus ad bellum and not of other international law (including jus in bello), the Commission has played a function in the reparation of violations of international humanitarian law in case of state responsibility. The creation of a similar compensation commission has been recommended by the Inquiry Commission for Darfur (U.N. Secretary-General, Letter dated Feb. 1, 2005 from the Secretary-General addressed to the President of the Security Council, paras. 590-603, U.N. Doc. S/2005/60, (Feb. 1,2005)).
89 S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005).
90 Tadić, supra note 29. paras. 32 ff. (which confirmed the view of the Trial Chamber on the point), Prosecutor v. Tadić, Case No. IT-94-1-T, Decision on Defence Motion on Jurisdiction in the Trial Chamber, paras. 25-31 (Aug. 10, 1995); Prosecutor v. Kanyabashi, Case No. ICTR-96-15-T, Decision on the Defence Motion on Jurisdiction, paras. 17 ff (June 18, 1997). Both courts concluded that the creation of the international criminal tribunals could be seen as a measure adopted under Article 41 of the UN Charter. See, contra, Arangio-Ruiz, Gaetano, On the Security Council »Law-Making,” 83 Rivista di Diritto Internazionale 609, 724 (2000)Google Scholar; and Picone, who sees the creation of the ICTY as the exercise of new powers by the Security Council and as a sanction adopted by the organ in reaction to the violations of erga omnes obligations committed by the belligerents in Yugoslavia (supra note 56, at 353-75, especially at 358).
91 According to the ICTY “[i]t would be a total misconception of what are the criteria of legality and validity in law to test the legality of such measures ex post facto by their success or failure to achieve their ends” (Tadić, supra note 29, para. 39). On the role played by the ad hoc tribunals in the judicial enforcement of international humanitarian law, see Pocar, Fausto, Criminal Proceedings before the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 5 Law & Practice of Int'l Cts. & Tribs. 89 (2006)CrossRefGoogle Scholar.
92 International Committee of the Red Cross, Report on the Protection of War Victims, 33 Int'l Rev. Red Cross 391, 427–28 (1993)Google Scholar (“international humanitarian law could not possibly provide a State not involved in the conflict with a pretext for intervening militarily or for deploying forceful measures outside the framework provided for by the United Nations Charter”); Commentaries on Article 1(1) and Article 89 of Additional Protocol I, in Sandoz, Swinarski & Zimmermann, supra note 12, paras. 46, 3598; Henckaerts & Doswald-Beck, supra note 53, at 512-13. See also the Palestinian Wall Advisory Opinion, supra note 52, para. 159.
93 Commentary on Article 89 of Additional Protocol I, in Sandoz, Swinarski & Zimmermann, supra note 12, para. 3597. The above mentioned World Summit Outcome Document makes it clear that the international community can take collective action against, inter alia, the commission of war crimes only “through the Security Council” (World Summit Outcome Document, supra note 58, para. 139). In the thematic debate on the protection of civilians in armed conflict, the Russian representative in the Security Council stated that “[t]he international community can only take appropriate steps, especially when it comes to the use of force, under the auspices and with the consent of the Security Council, as well as in accordance with the Charter of the United Nations” (S/PV.6216, supra note 26, at 16).
94 Boisson de Chazournes and Condorelli, supra note 54, at 82.
95 See International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Rules of Procedure and Evidence (as further amended 18 January 1996). U.N. Doc. IT/32/Rev. 7 (Jan. 18, 1996). Arrests of several war criminals have as a consequence been executed by UN forces in the former Yugoslavia. This rule-making power of the Tribunal with regard to arrests is not without problems and was challenged before the Tribunal itself: see Lamb, supra note 28, at 379-84.
96 S.C. Res. 1270, para. 14, U.N. Doc. S/RES/1270 (Oct. 22, 1999); Holt, Victoria, Taylor, Glyn & Kelly, Max, Protecting Civilians in the Context of UN Peacekeeping Operations, Independent Study Jointly Commissioned by the Department of Peacekeeping Operations (DPKO) and the Office for the Coordination of Humanitarian Affairs (OCHA) 36–37 (2009)Google Scholar [hereinafter DPKO/OCHA Study]. However, as the Study has demonstrated, what the Security Council means by “protecting civilians from imminent threat” is not always clear or consistent (id. at 75-77). From the most recent document, it appears that the UN is moving towards a broader notion of protection of civilians which goes beyond physical protection (DPKO/Department of Field Support. A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping 20 (2009)Google Scholar [hereinafter A New Partnership Agenda]).
97 See, e.g., the UN Mission in the DRC (MONUC), now renamed UN Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) (S.C. Res. 1291, Para. 8, U.N. Doc. S/RES/1291 (Feb. 24, 2000); S.C. Res. 1493, supra note 69, para. 25; S.C. Res. 1856, para. 5, U.N. Doc. S/RES/1856 (Dec. 22, 2008); S.C. Res. 1906, para. 6, U.N. Doc. S/RES/1906 (Dec. 23, 2009); S.C. Res. 1925, supra note 62, para. 11), the UN Mission in Sudan (UNMIS) (S.C. Res. 1590, Para. 16, U.N. Doc. S/RES/1590 (Mar. 24, 2005) and S.C. Res. 1706, para. 12, U.N. Doc. S/RES/1706 (Aug. 31, 2006)), the AU-UN Operation in Darfur (UNAMID) (S.C. Res. 1769, para. 15, U.N. Doc. S/RES/1769 (July 31, 2007) that does not refer to the fact that civilians must be “under imminent threat of physical violence”), the UN Interim Force in Lebanon (UNIFIL) (S.C. Res. 1701, para. 12, U.N. Doc. S/RES/1701 (Aug. 11, 2006)), the UN Mission in the Central African Republic and Chad (MINURCAT) (S.C. Res. 1861, para. 7, U.N. Doc. S/RES/1861 (Jan. 14, 2009) and S.C. Res. 1923, supra note 70, para. 8) and the UN Operation in Côte d'Ivoire (UNOCI) (S.C. Res. 1528, para. 8, U.N. Doc. S/RES/1528 (Feb. 27, 2004), S.C. Res. 1609, para. 8, U.N. Doc. S/RES/1609 (June 24, 2005), S.C. Res. 1739, para. 5, U.N. Doc. S/RES/1739 (Jan. 10, 2007), S.C. Res. 1933, supra note 63, para. 16(b)). The Council has also authorized the EU operation in Chad and in the Central African Republic to take all necessary measures to protect civilians in danger (in particular refugees and displaced persons) and humanitarian personnel and to facilitate the delivery of humanitarian aid (S.C. Res. 1778, para. 6, U.N. Doc. S/RES/1778 (Sept. 25,2007)). See also S.C. Res. 1671, U.N. Doc. S/RES/1671 (Apr. 25,2006) authorizing the deployment of EUFOR R.D. Congo in the DRC and S.C. Res. 1528, supra, para. 16, authorizing the French forces to use all necessary means to support UNOCI.
98 S.C. Res. 1674, supra note 25, para. 16 and S.C. Res. 1894, supra note 25, para. 19.
99 The debate on the protection of civilians in armed conflict first took place on February 12 and 22, 1999 and occurs twice a year. It has led to the adoption of five thematic resolutions on this topic (S.C. Res. 1265, supra note 64 and S.C. Resolutions 1296, 1674, 1738, and 1894, supra note 25) and to several presidential statements (the first being S.C. Pres. Statement 1999/6, U.N. Doc. S/PRST/ 1999/6 (Feb. 12, 1999)). Other thematic Security Council debates involve the protection of women and children in armed conflict and sexual violence in situations of armed conflict. As observed by Costa Rica, these debates “must be an instrument to guide and to facilitate specific decision-making” (U.N. SCOR, 64th Sess., 6066th mtg. at 8, U.N. Doc. S/PV.6066 (Jan. 14, 2009)). It should also be recalled that, on January 29, 2009, the Council held a private meeting on the subject “Maintenance of International Peace and Security: Respect for International Humanitarian Law” under the auspices of the French Presidency, in order to identify measures that the Council could adopt to more effectively prevent and stop violations of international humanitarian law: this was the first time that respect for international humanitarian law was addressed as a separate issue. However, it is unclear whether there will be a follow-up (see Security Council Report, Respect for International Humanitarian Law (2009) available at http://www.securitycouncilreport.org/atf/cf%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Update%20Report%2027%20January%202009_IHL.pdf)Google Scholar.
100 The first meeting took place in January 2009 on the mandate of the UN Operation in Côote d'Ivoire. China has so far not participated in the works of the Group. The representative of Viet Nam observed that “the establishment of any new mechanism within the Security Council must be thoroughly studied before a decision is made in order to avoid operational and institutional duplication, as well as financial implications” (S/PV.6151, supra note 56 at 9). In January 2009, the Security Council also adopted an Aide Memoire, first developed in March 2002 at the Council's request (S.C. Pres. Statement 2002/6, U.N. Doc. S/PRST/2002/6 (Mar. 15, 2002)) and revised in 2003 (S.C. Pres. Statement 2003/27, U.N. Doc. S/PRST/2003/27, Annex (Dec. 15, 2003)), in order to facilitate its consideration of the issue of the protection of civilians in armed conflict. Based on the Council's practice, the aide-memoire identifies measures that the Council should adopt to respond to protection concerns, including targeted sanctions against the perpetrators of violations (id. at 12) and the referral of situations to the ICC.
101 Security Council Report, supra note 76, at 18. MONUC also received similar criticism (Gray, Christine, International Law and the Use of Force 318 (3d ed. 2008)Google Scholar). The DPKO/OCHA Independent Study analyzes how certain peacekeeping operations (UNMIS, UNAMID, UNOCI and MONUC) have implemented protection of civilians mandates in the field (DPKO/OCHA Study, supra note 96, at 156-207).
102 S/PV.6151, supra note 56, at 12. See DPKO “Capstone Doctrine,” that reaffirms the necessity of a “clear and achievable mandate” (DPKO and Department of Field Support, United Nations Peacekeeping Operations: Principles and Guidelines (“Capstone Doctrine”) 51 (2008), http://pbpu.unlb.org/pbps/Library/Capstone_Doctrine_ENG.pdf)Google Scholar.
103 A New Partnership Agenda, supra note 96; DPKO/OCHA Study, supra note 96.
104 U.N. Charter, art. 42. The Council does not however have a procedural obligation to adopt sanctions first, as it could consider that they are inadequate in the light of the circumstances without actually trying them.
105 Tadić, supra note 29, para. 39.
106 Gardam, Judith G., Legal Restraints on Security Council Military Enforcement Action, 17 Mich. J. Int'l L. 285, 307 (1996)Google Scholar. See also Gowlland-Debbas, Vera, Security Council Enforcement Action and Issues of State Responsibility, 43 Int'l & Comp. L.Q. 55, 90 (1994)CrossRefGoogle Scholar.
107 Gardam, supra note 106, at 307. See also Bothe, supra note 33, at 78-79.
108 Gill, supra note 42, at 132.
109 See Bothe, supra note 33, at 227. As observed by Australia in a recent debate on the protection of civilians, “there is clearly a need for greater consistency in the Council's approach. Too often still, the Council appears unwilling to address the plight of civilians in many internal armed conflicts, notwithstanding the obvious destabilizing effects and regional consequences of such conflicts. In failing to do so, the Council falls short of its obligations under the Charter.” Even though the Council has effective tools at its disposal, “[w]hat is lacking, at times, … is the political resolve of the Council to use those tools to protect civilians and of the broader membership to support such Council action” (S/PV.6151 (Resumption 1), supra note 26, at 13). The Croatian representative also made clear that the Council needs to have “a more consistent approach at the country-specific level” and that “we must abandon selective approaches to violations of international humanitarian law” (S/PV.6066, supra note 99, at 19-20). See also the statements of Nicaragua (S/PV.6151 (Resumption 1), supra note 26, at 16) and Pakistan (S/PV.6066 (Resumption 1), supra note 26, at 36), which highlight the inequity in the international response to gross violations of international human rights and humanitarian law.
110 The Security Council has mainly focused on the respect for the Geneva Law more than for the Hague Law (Cryer, supra note 63, at 274).
111 In another case, S.C. Res. 1603, at 2, U.N. Doc. S/RES/1603 (June 3, 2005), where the Council dealt with allegations of sexual offences committed by UN peacekeepers in Côte d'Ivoire, it “slipped into euphemism” and qualified those actions as “misconduct” and affirmed that the troops “should limit their behaviour,” even though it had condemned violations of international humanitarian law by all the parties to the conflict in previous resolutions (Cryer, supra note 63, at 261).
112 Comellas Aguirrezábal, supra note 6, at 195-96. S.C. Res. 1860, U.N. Doc. S/RES/1860 (Jan. 8, 2009) on Gaza, for instance, does not mention the importance of respect for international humanitarian law, which led Switzerland to regret that references to the jus in bello, and to the Geneva Conventions in particular, “have become the object of political negotiation and discretion” (S/PV.6066 (Resumption 1), supra note 26, at 2).
114 See World Summit Outcome Document, supra note 58, para. 139 that affirms collective action through the Security Council under Chapter VII in reaction to the commission of war crimes will be taken “on a case-by-case basis.” Such an obligation does not exist even when the Council acts under the customary provision reflected in Article 1 Common to the Geneva Conventions: see supra note 55.
115 Österdahl, Inger, The Exception as the Rule: Lawmaking on Force and Human Rights by the UN Security Council, 10 J. Conflict Sec. L. 1, 14 (2005)Google Scholar.
116 Gill, supra note 42, at 129.
117 Report on the Protection of War Victims, supra note 92, at 428 (emphasis omitted). See also Pfanner, Toni, Le rôle du Comité international de la Croix-Rouge dans la mise en œuvre du droit international humanitaire, in Eur. Comm'n, Law in Humanitarian Crises vol. I, 177, 224 (1995)Google Scholar; van Baarda, supra note 2, at 146-48. Condorelli refers to the inevitability of the “amalgame action humanitaire-sanction … lorsque la première est imposée au sens du Chapitre VII” (Luigi Condorelli, Conclusions générales, in Condorelli, La Rosa & Scherrer, supra note 7, at 463).
118 Report on the Protection of War Victims, supra note 92, at 429.
119 S.C. Res. 1497, U.N. Doc. S/RES/1497 (Aug. 1, 2003).
120 S.C. Res. 1593, para. 6, U.N. Doc. S/RES/1593 (Mar. 31, 2005).
121 Gaja, Giorgio, Immunità squilibrate dalla giurisdizione penale in relazione all'intervento armato in Liberia, 86 Rivista di Diritto Internazionale 762, 763 (2003)Google Scholar.
122 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 49, Aug. 12, 1949, 75 U.N.T.S. 3 1; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 50, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, art. 129, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of war, art. 146, Aug. 12, 1949, 75 U.N.T.S. 287. Under those provisions, contracting States are under an obligation either to prosecute the accused of grave breaches, regardless of his/her nationality, or to extradite him/her to another contracting party concerned if such a party “has made out a prima facie case.”
123 S.C. Res. 1483, at 2, U.N. Doc. S/RES/1483 (May 22, 2003). It is well-known that the occupying Powers have significantly changed the Iraqi political, military and economic system (Wolfrum, Rüdiger, The Adequacy of International Humanitarian Law Rules on Belligerent Occupation: To What Extent May Security Council Resolution 1483 be Considered a Model for Adjustment?, in International Law and Armed Conflict: Exploring the Faultlines 497, 503 (Schmitt, Michael N. & Pejic, Jelena eds., 2007)Google Scholar). See Coalition Provisional Authority Order Number 39: Foreign Investment (2003), that introduces important changes to Iraqi investment law, Coalition Provisional Authority Order Number 37: Tax Strategy for 2003 (2003), which revises the tax system, and Coalition Provisional Authority Order Number 64: Amendment to the Company Law No. 21 of 1997 (2004) amending Iraqi company law. Kolb observes that the Security Council could derogate from specific non-fundamental rules of the law of occupation if the maintenance of international peace so requires, but not from fundamental rules and not from the whole body en bloc (Kolb, Robert, Occupation in Iraq Since 2003 and the Powers of the UN Security Council, 90 Int'l Rev. Red Cross 29, 33 (2008)Google Scholar). Zwanenburg adds that, on the basis of Articles 25 and 103 of the Charter, “the Security Council can derogate from the law of occupation at least with regard to non-peremptory norms, but if it does so it should provide an alternative standard of behaviour” (Zwanenburg, Marten, Existentialism in Iraq: Security Council Resolution 1483 and the Law of Occupation, 86 Int'l Rev. Red Cross 745, 762–63 (2004)Google Scholar).
124 Scheffer, David J., Beyond Occupation Law, 97 AM. J. Int'l L. 842, 851 (2003)CrossRefGoogle Scholar. See generally id. at 844-46. Res. 1483 is however ambiguous, as its paragraph 5 calls “upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907” (S.C. Res. 1483, supra note 123).
125 Convention (IV) respecting the Laws and Customs of War on Land, Annex: Regulations concerning the Laws and Customs of War on Land, art. 42, Oct. 18, 1907. See Kolb, supra note 123, at 41-43; Zwanenburg, supra note 123, at 756.
127 Tadić, supra note 29, para. 28.
129 U.N. SCOR, 58th Sess., 4761st mtg. at 11-12, U.N. Doc. S/PV.4761 (May 22, 2003).
130 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, para. 79 (July 8).
131 According to de Wet, “[t]his… would undermine the logic that states cannot confer more powers to organs of international organizations than they can exercise themselves” (De Wet, Erika, The Chapter VII Powers of the United Nations Security Council 189 (2004)Google Scholar). De Wet also suggests that, as Article 1 (3) includes among the UN purposes the achievement of international cooperation in the solving of international problems of, inter alia, a humanitarian character, “the basic rules of international humanitarian law … constitutes a further limitation on the enforcement powers of the Security Council under Chapter VII of the Charter” (id. at 204). The fact that the UN has repeatedly committed itself to respect international humanitarian law and has contributed to its development has also estopped its organs from conduct that would breach its core principles, as “this would constitute an act of bad faith on the part of the organisation” (id. at 206).
132 Prosecutor v. Kupreškić et. al., Case no. IT-95-16-T, Judgment, para. 520 (Jan. 14, 2000).
133 Several commentators have argued that Article 103 allows the Security Council to overrule not only international agreements, but also customary international law. See, e.g., Rudolf Bernhardt, Article 103, in Simma, supra note 41, at 1292, 1299; Report of the Study Group of the Int'l Law Comm'n on the Fragmentation of International Law, finalized by Martti Koskenniemi, 58th Sess., May 1-June 9, July 3-Aug. 11, 2006, at 175-176, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006); Zwanenburg, supra note 123, at 761; Fassbender, supra note 50, at 586. See also the Declaration of Acting President Oda in the Lockerbie case, supra note 27, at 17, para. I. Contra, Arangio-Ruiz, Gaetano, Note e Commenti, Article 39 of the ILC First-Reading Draft Articles on State Responsibility, 83 Rivista di Diritto Internazionale 747, 752 (2000)Google Scholar; Zemanek, Karl, The Legal Foundations of the International System, 266 Recueil des Cours 9, 232 (1997)Google Scholar; Liivoja, Rain, The Scope of the Supremacy Clause of the United Nations Charter, 57 Int'l & Comp. L.Q. 583, 602–08 (2008)CrossRefGoogle Scholar.
134 See, e.g., the Separate Opinion of Judge Lauterpacht in the Genocide case: “The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot—as a matter of simple hierarchy of norms—extend to a conflict between a Security Council resolution and jus cogens” (supra note 32, at 440, para. 100). See also Cannizzaro, supra note 83, at 211-15; de Wet, supra note 131, at 188-89. The problem would however be as to exactly which international humanitarian law provisions would have such a fundamental character.
135 Schwebel, Stephen M., The Roles of the Security Council and the International Court of Justice in the Application of International Humanitarian Law, 27 N.Y.U. J. Int'l L. & Pol. 731, 732 (1995)Google Scholar.
136 As observed by a commentator, the Council's “composition, procedures and practices are completely indefensible if we assume that its tasks extend to assessing and enforcing the conditions of good life—including rules of international law—among and within States” (Koskenniemi, supra note 19, at 344).
137 See S.C. Resolutions 1674, at 2, 1738 at 1 and 1894, at 1 (supra note 25), on the protection of civilians in armed conflict, and the presidential statement adopted on January 14, 2009 (S.C. Pres. Statement 2009/1, supra note 62). The primary responsibility of the parties to the conflict to ensure the protection of civilians has also been recalled by several representatives in the Security Council debates, e.g., Croatia (S/PV.6151, supra note 56, at 7), Qatar (id. at 29), South Korea (S/PV.6151 (Resumption 1), supra note 26, at 29), United States (S/PV.6066, supra note 99, at 21), United Kingdom (id. at 23), United Arab Emirates (S/PV.6066 (Resumption 1), supra note 26, at 7); Russian Federation (S/PV.6216, supra note 26, at 16); Tanzania (U.N. SCOR, 64th Sess., 6216th mtg. (Resumption 1) at 27, U.N. Doc. S/PV.6216 (Resumption 1) (Nov. 11, 2009); Hungary (id. at 44)). Other representatives more generally referred to the primary responsibility of “states” (e.g., Japan (S/PV.6151, supra note 56, at 11), Costa Rica (id. at 14), Morocco (S/PV.6151 (Resumption 1), supra note 26, at 17), Jordan (id. at 14), Sri Lanka (id. at. 23), Guatemala (id. at 27), Viet Nam (S/PV.6066, supra note 99, at 10), Turkey (id. at 12), France (id. at, 25), Colombia (S/PV.6066 (Resumption 1), supra note 26, at 28), Uruguay (id. at 5), Kenya (id. at. 30), Venezuela (id. at 32); Sudan (S/PV.6216 (Resumption 1), supra at 42).