Ensayo presentado en la Conferencia sobre el Consejo de Seguridad de Naciones Unidas, organizada por The Netherlands Institute of International Relations ‘Clingendael’ [Nov, 2014]
Much has been written about the inadequacy of the United Nations Security Council (UNSC) in the current world politic (1). For an international body created out of the worst atrocities committed against mankind, the UNSC has displayed over the years symptoms of political entrenchment natural, some would argue, to its composition and objectives. As the political global climate progressed from the Cold War to the War on Terror to a multipolar system of international relations, the UNSC has maintained its same characteristics grounded in political calculations and national interest. Beyond the discussion of veto capabilities and asymmetries of power among Council members, the UNSC is also a reflection of the overall structure it belongs: the United Nations. A project that sought to prevent conflicts and advance opportunities worldwide, is today challenged by emerging nations and structures that call for clearer roles and responsibilities in the international system. Moreover, the paradigm of human rights has provided a language to create new norms and seek compliance from states regulating an array of behaviors previously unchecked. The combination of this emergent language, new actors and new rules puts to test an organization founded in 1945.
While it is challenging to produce innovative ideas in a brief paper, this essay tries to make a racconto of key policies, actors and new structures in place that might provide opportunities for the UNSC and the UN to compromise reform as a commitment for international peace and security. Specifically, from the theoretical framework provided by the Responsibility to Protect, the paper examines the critical importance of accountability in international relations, thus, turning to the innovative institutional arrangement of the International Criminal Court and the Human Rights Council. In conclusion, if powerful states are not willing to find compromises, new structures, backed by emerging nations, should push for complementary powers in alternative bodies to tackle the most pressing issues of the current global order.
Translating Responsibility into Accountability
In an effort to create policy options to respond to situations like the Rwandan genocide, the war in the former Yugoslavia and NATO’s ultra virus (yet legitimate) expanding power, the International Commission on the Intervention and State Sovereignty’s (ICISS) report was adopted in principle, in 2005, as the ‘Responsibility to Protect’ (R2P) doctrine (2). R2P emerged as a norm preventing violations of human rights such as crimes against humanity, war crimes, ethnic cleansing and genocide when a state fails to protect its citizens. Although state sovereignty was reaffirmed, it also meant the obligation to safeguard the wellbeing of citizens beyond the absolute right to merely rule over the populous (3). This, in part, also meant that states must follow international human rights law (4). Equally, if the state fails to protect its citizens or is in fact the perpetrator of gross violations of human rights, the international community has a duty to prevent atrocities and intervene, this being the responsibility of the UNSC (5). In this sense, states are no longer unaccountable to other states if they fail to protect or commit gross violations of human rights against its citizens.
In this context, R2P highlights two main characteristics of the post-cold war global order: accountability and responsibility among states. It took decades for states to compromise on the 2005 R2P doctrine and it is still taking further political steps to implement this idea properly. In the current security situation, however, R2P has been forgotten as a policy option while national interests have re-surfaced as the prime modus vivendi in the UNSC. Needles to point to the reader the number of conflicts threatening the international order, but what states do not realize completely is that their lack of compromise and action on these issues is, in fact, one of the causes of conflict. One could also argue that socio-economic factors also play a role, nonetheless, the lack of resolute international action on security issues has encouraged further disorder.
Left with minimal political maneuver and locked in an interest-driven competition among UNSC permanent members, the creation and strengthening of new institutions that rescue norms of accountability and responsibility in the international system have become paramount (6). More so for states that value a multipolar system and that have traditionally favor reform and greater power-sharing institutions. Many of these countries are today emerging nations or part of value- driven coalitions. For example, nations like Brazil and institutions like the International Criminal Court and the Human Rights Council have become, in Barnett’s words, “autonomous actors with power to influence world events” (7).
Challenging the Apparent: The ICC and the Human Rights Council
Trapped in discussions about its meaning and reach, member states of the UN did not follow through recommendations to operationalize R2P. However, at the same time, new norms of accountability and responsibility developed by non-P5 countries, appeared in other institutions. This is the case of the reformed and upgraded UN Human Rights Council and the fully functional International Criminal Court. The role of countries like Canada, Norway, The Netherlands, Argentina, Brazil, Jordan and Singapore, among others, has been critical for these two institutions. Mindful of this brief piece, it is key to say that both institutions have rich histories that reveal changing intentions among states and their alignment to norms that enforce accountability mechanism and appoint responsibilities. Both the ICC and the UN Human Rights Council can be seen as avenues to create, in Barnett and Finnemore’s language, “best practices (determining) what constitutes acceptable and legitimate state behaviour”(8). By providing these two institutions with political support, emerging nations might be able to reverse the current trend of lack of enforcement and compliance with international law. In turn, such actions should be coupled with an honest high-level discussion about the future of the UNSC, especially as it prepares to celebrate 70 years of existence.
The ICC and the Human Rights Council provide an avenue to tackle issues of international peace and security through policies and court cases that point at the validity of norms of accountability and responsibility among states. For example, the ICC created in 1998 and envisaged as court of last resort, can deter further violations of human rights in member states while prosecuting those most guilty of crimes in the Rome Statute (9). In this sense, responsibility is assigned to an institution and accountability for international peace and security is achieved through prosecutions. In the case of the Human Rights Council, the body’s flexible policy-making might be an asset to seek compliance to international law. This is the case, for example, of fact-finding missions, like the current one in Syria (10). Through this process, violator states are pressured to comply with international peace and security standards. These, in turn, can be coupled with a future ICC action. However, these narrow proposals can be blocked or lobbied by states to preclude action. Both the ICC and the Human Rights Council rely on soft power capabilities and are highly regulated by diplomatic tactics. Thus, compromising a reform plan for the UN as a whole, need to take into consideration several institutions that have a stake in international peace and security policies. The next section explores some possibilities of compromising reform that in turn strengthen the accountability and responsibility mechanism in the Human Rights Council and International Criminal Court.
As explained before, since the failure of the R2P doctrine in the UNSC to formulate new policy options for international peace and security, there has been a lack of compliance with accountability and responsibility norms. With the emergence of stronger Human Rights Council and a fully functional ICC, some of this trend might be slightly reversed in recent years. Although, as explained below, these two institutions still face considerable opposition from world powers and have limited political reach for comprehensive solutions. Thus, the question about reform in international peace and security has to be transferred not to the UNSC alone, but to all institutions associated with the UN. It is the position of this author that through a collection of innovative institutional powers (like those in the Human Rights Council and ICC), new policies can be developed. The objective of utilizing existing institutional powers or creating new ones with low political cost is to reach key areas of compromise between several UN agencies. While carefully bearing in mind the duties of the UNSC under the UN Charter, perhaps its also time for the International Court of Justice to examine the exponential growth of customary law and its implications for UN bodies. In this sense, here are some areas of potential compromises in reforming accountability and responsibility mechanism in the UNSC and beyond. Each recommendation is mindful of the overall objective of improving how states and institutions deal with issues of international peace and security.
United Nations Security Council
- Creation of Committee monitoring compliance of ICC-referred cases (Libya; Sudan)
- Creation of Sub-committee on ICC-related suspects within the existing Security Council Committee on Sanctions.
- Request the Security Council Working Group on Peacekeeping Operations to develop arrest-powers procedures for Peacekeeping operations of those indicted in ICC-referred cases.
- Implement to its fullest the Secretary General’s guidelines for contact with ICC suspects in all Security Council-related activity (S/2013/210) (11)
- Consider a ‘gentlemen agreement’ on an ICC-referral resolution precluding use of veto in all situations where crimes enlisted in the Rome Statute have been verified. (12)
- Conduct a joint and open meeting with the United Nations Human Rights Council at the beginning and end of each General Assembly year-calendar on issues of common importance.
International Criminal Court
1. Consider in the context of a Review Conference of the Rome Statute:
- Increased cooperation with INTERPOL for indictees’ arrest.
- Cooperation with member states’ war crime specialized units.
- Request the UN finance UNSC-referrals to the Court.
- Create formal mechanism for cooperation with:
- Human Rights Council in Fact-Finding missions.
- United Nations General Assembly in matters related to resolutions invoking ‘Uniting for Peace’ (General Assembly resolution 377 (V) on 3 November 1950).
5. Include referalls from the General Assembly under Res 377.
United Nations Human Rights Council
- Create formal mechanism for cooperation with the ICC in all fact-finding missions on member states of the Rome Statute.
- Require Rome Statue crimes in national legislation as a membership criterion to the Council.
- For countries investigated by the ICC, include a section on compliance and cooperation in the Universal Periodic Review
- Strengthen NGO participation in the Council working procedure.
United Nations General Assembly
- Create a working group within the Sixth Committee to recommend steps to operationalize and trigger Resolution 377 (Uniting for Peace) when conditions are met.
- Request an opinio juris from the International Court of Justice whether Res 377 grants ICC-referrals to the General Assembly.
International Court of Justice
- Review actions by the UNSC on matters of jus cogens, upon the request of a member state.
- Consider clarifying customary law in terms of number of accessions to treaties, upon the request of a member state.
The combination and mutual implementation of these policies might open the space for compromise in reforming mechanisms of accountability and responsibility within the UNSC and UN as a whole. At the same time, if compromises are reached at small scales, they might serve as a blueprint for larger compromises among states. The objective of these recommendations, nonetheless, is to envisage ways to act upon duties of accountability in the current global order. Similarly, it might put pressure on P5 members to correct the current appalling trajectory of the UNSC while compromising on gradual and measured reforms.
This brief paper considered the ‘Responsibility to Protect’ doctrine as a starting point in enforcing mechanisms of accountability and responsibility in international relations. For this paper, the concepts of accountability and responsibility have been considered as the main markers for international peace and security. In this context, with the failure of R2P and the inadequacy of the UNSC to act on such issues, the paper proposed gradual and measured compromises on specific reforms in multiple UN organs and the International Criminal Court. By utilizing innovative and existing institutional arrangements, the reforms proposed here might open the space for further negotiations while safeguarding the critical importance of accountability and responsibility for international peace and security.
1- Weiss, Thomas G., David P. Forsythe, Roger A. Coate, and Keyy-Kate Pease. The United Nations and Changing World Politics. Philadelphia: Westview Press, 2010; Rosenau, James N. “Governance in the Tewnty-first Century.” Global Governance (1995): 13-43; Sharma, Serena K. “Toward a Global Responsibility to Protect: Setbacks on the Path to Implementation.” Global Governance, 2010: 121–138.
2- ICISS, The Responsibility to Protect, Gareth Evans & Mohamed Sahnoun, International Development Research Center, Ottawa, Canada; UNGA, A/60/L.1, 2005 World Summit Outcome. New York: United Nations, 2005.
3- Bellamy, Alex J. “The Responsibility to Protect – Five Years On.” Ethics and International Affairs 24, no. 2 (2010): 143-169.
4- ICISS, The Responsibility to Protect, Gareth Evans & Mohamed Sahnoun, International Development Research Center, Ottawa, Canada
5- UNGA, A/60/L.1, 2005 World Summit Outcome. New York: United Nations, 2005.
6- Sikkink, Kathryn. The Justice Cascade: How Human Rights Prosecutions are Changing World Politics. New York and London: W. W. Norton & Company, 2011.
7- Finnemore, Michael Barnett and Martha. “The Power of Liberal International Organizations.” In Power and Global Governance, by Michael Barnett and Raymond Duvall, 161-84. New York: Cambridge University Press, 2005.p. 162
8- Finnemore, Michael Barnett and Martha. “The Power of Liberal International Organizations.” In Power and Global Governance, by Michael Barnett and Raymond Duvall, 161-84. New York: Cambridge University Press, 2005. P.162
9- Sikkink, Kathryn. The Justice Cascade: How Human Rights Prosecutions are Changing World Politics. New York and London: W. W. Norton & Company, 2011; SCHABAS, W. A. 2007. An Introduction to the International Criminal Court, Cambridge, Cambridge University Press.
10- United Nations Human Rights Council’s Resolution 19/22
12- For example through a Human Rights Council Fact-Finding Mission.