The UN's selective intervention

Many people are puzzled by what appear to be inconsistencies in the UN’s peace-enforcement efforts. Why did the UN act so decisively to eject Iraq from Kuwait in January 1991, yet allow itself to be humiliated in Bosnia? Why didn’t the UN do something about Rwanda or Tibet?

The answers to all these seeming inconsistencies lie in the Charter of the United Nations. To appreciate this, we need to look not only at the relevant sections of the Charter, but also at the circumstances surrounding their interpretation.

The Charter of the UN is a wonderfully inspired document. It is, basically, a set of treaties, a framework for international co-operation. The Charter was drafted by politicians and by statesmen of great vision and hope but who, nonetheless, were very pragmatic and also very much aware of the uncertainties lying ahead.

Unlike most legal documents, which are drafted by lawyers, the Charter is rather imprecise. This imprecision was deliberate. The intention was partly to give room for flexibility in interpretation, and partly to avoid the rigidity of rules and the inability to reconcile differences which caused the demise of the League of Nations.

There are three different methods of interpreting an international treaty:

• By the literal interpretation which looks exclusively at the words of the document. At first glance there is nothing contentious about using this method, but the difficulty arises when words are translated into other languages. For example, the literal interpretation of Article 27(3) implies that all Permanent Members would have to vote for a draft resolution in order for it to be passed; an abstention would constitute a veto. Yet there has been a consistent practice of not treating abstentions as vetoes.
   
• By looking at the intentions of the parties to the treaty and examining the historical context in which the treaty was negotiated and at the records of the negotiations themselves.
   
• By practice or “precedent”. This is by far the most common way of interpreting the Charter. When an organisation is empowered to take decisions by majority vote, it is inevitable that the practice supported by the majority of the member states will come to be regarded as the practice of the organisation itself, and will be used as a means of interpreting the treaty setting up the organisation.

As the Security Council is the only organ of the UN, which is empowered to take decisions, the interpretation of the Charter has very important consequences.

Article 39 states: “That the Security Council shall determine the existence of any threat to peace …” Putting it more directly, the Security Council decides what constitutes a threat to peace, and by strict definition, a local conflict, no matter how unpleasant it may be, is not necessarily a threat to peace.

Article 43 states: “All members of the United Nations … undertake to make available … armed forces, assistance and facilities … for the purpose of maintaining international peace.” This does not mean that the Security Council can order a state to take part in military action in the same way that it can order a state to take part in non-military action, such as sanctions.

This is important to bear in mind. All politicians, in any country, are reluctant to risk the lives of their soldiers, when there is no apparent relevance to the interests of their own nation. Besides, how many conflicts should the UN be involved in? Who would pay? Is the UN sufficiently equipped to act as policeman in all the troubled areas of the world?

Article 2(7) states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state …”

This Article has given rise to more controversy than most, but, in practice, the Security Council is hesitant to intervene in what can be described as a civil war. One reason for this is that it is difficult to justify intervening in one without intervening in them all and doing that is not something they would willingly contemplate.

Article 27(3), which refers to the “veto”, is also an important reason why the UN cannot intervene in certain situations. For example, the Security Council cannot even consider the annexation of Tibet and the disgraceful abuse of human rights there, because China happens to have the veto.

There is also an indirect effect of the veto. For example, the Security Council does not deal with Israel’s foray into Lebanon because Israel is considered to be an ally of a member of that Council.

These are some of the reasons why the UN is unable to intervene in many of the situations where people rightly expect it to do so.

However, the growing tide of refugees who are displaced by civil war or by persecution, and who are putting enormous political and economic strain, not only on the host countries, but whose mere presence is causing the spread of unease and of intolerance worldwide, is an indictment of the current interpretation of the Charter, which only allows the UN to offer humanitarian aid.

What can be done?

It is important to realise, that the flexibility of the Charter not only allowed its interpretation to evolve in a certain way, but also that, because of the Cold War, certain aspects of the Charter were given more emphasis, and were made more use of than others.

Take for example Article 51, which states: “… The Charter shall not impair the inherent right of individual or collective self-defence …”

Because of the Cold War, this Article has assumed enormous importance. The formation of various military alliances were justified on the basis of this Article. Members of these military alliances had the right to make, or to acquire, arms for their own or for their collective self-defence. Other nations, not belonging to a particular alliance, and who happened to have strategic importance, were also encouraged to arm themselves for “self-defence”. At the height of the Cold War, the super-powers vied with each other for influence, usually by supplying armaments for “self-defence”. Iraq and Somalia are just two such examples.

Article 51 does seem to have been interpreted too freely by the Permanent Members of the Security Council. The member states of the General Assembly can, and should take the initiative to correct the rather cavalier interpretation of this Article. They could seek clarification in the International Court of Justice, (ICJ) not only as to how much armaments are required for self-defence by a given member state, but more importantly, they could ask the ICJ to request the Permanent Members co-ordinate the supply of those armaments.

Members of the General Assembly can do this, by insisting that more emphasis is placed on the implementation on Article 26, which states: “… in order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources …”

They could also point out that, although Article 24 gives primary responsibility for the maintenance of international peace to the Security Council, it does not preclude the General Assembly from exercising a secondary or residual responsibility.

There are other aspects of the Charter where the General Assembly could insist on greater emphasis.

As previously mentioned, Article 2(7) has been frequently cited as the reason for not allowing the UN to intervene in a nation’s “domestic” affairs. However, the last part of the paragraph states that “… this principle shall not prejudice the application of enforcement measures under Chapter VII”.

If a certain civil war is in danger of destabilising a whole region by spreading the development of intolerance among its neighbours, than the Security Council could regard that as a threat to peace, and take appropriate measures.

Another difficulty regarding Article 2(7) is to define what is a genuine “domestic affair” and what is a failed state, where the role played by central government is absent or in name only, where international criminality can flourish, and where minorities are not protected.

The General Assembly and the Security Council could also place far more emphasis on Article 1(3), which states one of the important purposes of the UN being “… promoting and encouraging respect for human rights and fundamental freedoms …” They can insist on far more determination than they hitherto have shown, that this Article is adhered to.

Another aspect of the Charter, which has been totally ignored by the Security Council is Article 47(3), which states that “The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forces placed at the disposal of the Security Council”.

Until this Article was rescinded recently, the UN had only nominally led all the UN enforcement actions. In every case the forces involved have been under the ultimate command of their own governments. This has also meant that the UN was, essentially, limited to use the type of intervention that these forces were trained for. The UN had no chance to develop its own strategy and its own ethos as was originally intended under Article 47. Instead, it was hampered and tainted by the inadequacies of the available, conventional and often heavy-handed military doctrine.

It is important to bear in mind that the United Nations is not a world government, but “… a gathering of sovereign states, and what it can do depends on the common ground between them”.

In An Agenda for Peace, the Secretary General of the UN at the time, Boutros Boutros-Ghali, highlighted a reason for the organisation’s shortcomings:

The adversarial decades of the cold war made the original promise of the … Organisation impossible to fulfil.

He went on to say that the statements adopted at the conclusion of the first meeting held by the Security Council at the level of Heads of State and Government in January 1992, “… represented an unprecedented recommitment, at the highest political level, to the Purposes an Principles of the Charter.” Sadly, this recommitment has been sidelined by events.

Without necessarily devising new structures, or planning to give new powers to the UN, the way to tackle the seemingly endemic conflicts around the world already exists. A great deal can be done by the International Court of Justice, working at the behest of the member states of the General Assembly, and activating those aspects of it which encourage genuine political, economic and cultural co-operation not only between governments, but also between the peoples of the world.