A CRITIQUE OF THE ROLE OF THE UNITED NATIONS SECURITY COUNCIL IN PROMOTING PEACE AND SECURITY UNDER INTERNATIONAL LAW

A CRITIQUE OF THE ROLE OF THE UNITED NATIONS SECURITY COUNCIL IN PROMOTING PEACE AND SECURITY UNDER INTERNATIONAL LAW

 

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction

The International community continues to experience human suffering on a scale unparalleled in human history despite all efforts made at international, regional and sub-regional levels. This stems primarily from some complex and often prolonged conflicts which initiatives to address the peace, security and stability challenges by the United Nations (UN), the international community and a range of regional and sub-regional organizations have failed to prove the efficacy of these organizations, which nonetheless, continue the battle to find a lasting solution. The plight of every society nowadays is to attain a reasonable level of economic growth, better standard of living and peace at all cost. No society can achieve these objectives without a reasonable level of peace and security. Peace and Security are virtues that are desired by individuals, families, countries, continents and the world as a whole. A peaceful and secured environment is a safe haven for investors which will definitely trigger economic growth and development. No investor will like to invest his hard earned savings in an unsecured environment. That is why so many countries spend huge resources both financial and human in order to ensure that there is peace and security so as to attract investors.

The cost of maintaining peace and security is far less expensive than halting war or breaches of peace. It is estimated that the United Nations spent about 200 billion dollars on several military interventions in 1990 in Bosnia Herzegovina, Somalia, Rwanda, Haiti, Persia Gulf, Cambodia and El Salvador of which a preventive approach would have cost her just the sum of 130 billion dollars.^[1]

This is to reiterate the fact that peace and security is gold. These virtues are neededat every level if mankind must sit and ponder of the future. Governments have never stopped at any level to put all their efforts together to ensure that there is peace and security in their countries. That is why there is the police force, the soldiers and private security providers trained in different specialties and fields; all with the aim of providing peace at its highest level. Governments have not stopped at anything to give their security agents proper training, to organize refresher programs for them and to send them to foreign countries for better security

skills.

Despite the efforts made at the national levels to maintain and promote peace and security, the international community has not relented in its efforts to ensure that peace and security is at its maximum level at every corners of this earth. That is why the creation of the League of Nations² (LON) was so important to foster world peace and security. It failed in the mission for which it was created witnessed by two world wars that led to untold human and material loss. The LON lost credibility in the eyes of the international community. The United Nations Organisation³ (UNO) was then created to replace the LON with the principal objectives being to maintain international peace and security⁴. The United Nations(UN) through the Security Council⁵ (SC) has been doing a lot in its bid to maintain and promote peace and security worldwide. Regional organizations too, do help in the maintenance of international peace and security. This was recognized, encouraged and authorized by the founders of the United Nations

 

Kofi,  A. A., (2002) Prevention of Armed Conflict; Report of the Secretary General. UN Publication, New York P. 36 ² Alan, B., (2000) The Unfinished Nation. Mc Graw Hill, Boston Massachusett, 3^rd  Edn p. 69.

See also Boger, L. W., (1977)  Imperialism At Bay; Oxford University Press; Oxford p. 263

See also The league existed from 1920 to 1946. The first meeting was held in Geneva, on November 15, 1920, with 42   nations represented. The last meeting was held on April 8, 1946;

• Alan, B.; p 160 op. cit p.2

See also Boger, L. W.; P.864 Op cit p. 2

• 1(1) UN Charter ;26 June 1945.Available athttp://www.UN.org/aboutun/Charteraccessed on 3/4/ 2013 at 2:03pm

⁵ibid Art. 24

and the drafters of its charter (UN) and is articulated in Chapter VIII^[2]. Some of these regional bodies are the Organization of Security and Cooperation in Europe (OSCE), the Economic

Community of West African States (ECOWAS),the Southern African Development Community (SADC), North Atlantic Treaty Organisation (NATO) made up of an alliance of 26 countries from North America and Europe, African Union (AU), The Organisation of American States (OAS) etc.

The SC has been taking various measures to arrive at its objectives of maintaining peace and security which is its principal task since it was created^[3]. Weapons monitoring and checks have been greatly embarked upon^[4], sanctions applied in certain circumstances and military interventions in other circumstances, no fly zone, arms embargo etc. In some instances the SC has intervened in a country‘s territorial jurisdiction with tangible reasons to maintain and promote peace and Securitywhile in others, there has been no tangible and objective reason for intervention or interventions to protect the interest of a member (Libya, Iraq). At some instances, the SC has had a very tough time in getting a general agreement from its permanent members in intervening^[5]. The various interventions by the SC or any of the regional or sub regional bodies have been bedeviled by huge financial, material and human loss both at the level of the intervening body and the fighting groups.Mankind‘s efforts to achieve this have been plagued by terrorism, attack of smaller state (weaker) by bigger and more powerful states.

Since the failure of the League of Nations and the creation of the United Nations, the Security Council has always had as task the maintenance of international peace and security.The big issue is that warring situations are still experienced in many parts of the world like Syria,

Central African Republic and South Sudan; terrorism in Mali, Somalia, Nigeria, Kenya etc.

There is the quest and stockpileofWeapons of Mass Destruction (WMD)by some countries like North Korea, Iran, Israel, India, and Pakistan that is further rendering SC efforts in the maintenance of peace and security more difficult.All these situations and events bring to the writer much doubt as to effectiveness of the Security Council of maintaining and promoting world peace and security.These and many other questions are the researcher`s point of focus in the course of this work.

1.2 Statement of the problem

Since the signing of the UN Charter on October 24^th1945, and the assigning of the various task in it to the various bodies, the SC has been at work performing its own task of maintaining peace and security. Due to changing human activities, interests, priorities and time, many concepts, ideologies, philosophies, and norms have also changed. Some international law scholars are of the opinion that the members of the Security Council (SC) are acting on their own interest^[6] in pursuing the work assigned to them. According to these scholars, if the SC was doing her job well, the world would not have been in such a chaotic state in which it is today¹¹. To some Scholars the SC is doing the job assigned to her very well. That the aspect of bias is not in any way found in the agenda of this body. The SC is executing the main purpose for which the UN was created. i.e., to maintain world peace and security and thus stop the world from experiencing another scourging war like World War One (WW I), andWorld War Two (WW II).

Since 1945 with the creation of the UN and given the mandate to maintain world peace and security to the SC, the world has experienced so many situations of breach of the peace that has reshaped the reasoning the world powers. The Security Council has been facing a number of challenges in the course of performing its duty of promoting and maintaining world peace. Some challenges like the Israel-Palestine constant unrest and given the number of UN resolutions Israel has ignored or broken, and international laws broken, in addition, the issue of UN Security Council reform and the difficulties encountered, the issue of the veto which is the biggest stumbling block to any kind of agreement on really serious matters, the challenge of Cooperative Security and National Interest also looms among the security members.^[7] These issues have caused the researcher to develop some doubt as to the effectiveness of the UNSC in performing its functions as prescribed by the UN Charter.

1.3Aim and objectives of the study

The aim of this research is to examine the effectiveness of the SC functions ofmaintaining peace and security in the world. This work aimsat unveiling the entire task of theUNSC of maintaining and promoting world peace and security. That is, the degree of its commitments in instances where there is a breach of the peace, threat to the peace and acts of aggression and the necessary measures taken in such circumstances. It is also to study the various measures undertaken by the UNSC to promote world peace and security. It is the interest of this work to look into the thingsthat are causing the Security Council not to perform its functions well. In this light, therefore, proffer some recommendations that may be considered by the council for a better and peaceful world.

The objectives of this study is to,

1. examine the effectiveness of the UNSC in its principal role of maintaining peace and security given the high level of breach of peace the world is experiencing.
2. examine the measures to take in a breach of peace situation given the political nature of the UNSC manipulation of issues with its veto power that delays the adoption of faster measures to handle such situations.
3. contribute to topical discourse on the analyses of peace and security which are the primary role of the UNSC that came up with the fall of the League of Nations to take over the functions of the defunct body;

1.4Scope of the Study

Peace and Security are concepts that are highly studied, preached, promoted and encouraged to be practiced in international law and the international Community as a whole. The scope of this research covers the role of the Security Council in maintaining peace and securitybesides the other functions it performs. The SC proactive functions in the area of peace and security are also examined in the scope of this work.  The power given her by the Charter of the United Nations also comprises the scope. The scope of this work will also cover situations from 1994 during the Rwandan genocide era to bombing of the world Trade Centre and the Arab Spring. Analyses on this topic are done taking references from various corners of the world.

International agreements, treaties, resolutions and laws have helped in carrying out this study.

 

1.5Methodology of the research.

The methodology adopted in this work is doctrinal. Resort here is made to relevant provisions of international law, international law text books, United Nations documents, journals on international law, regional instruments, statutes, law reports, resolutions, UN Charter, treaties, protocols, conventions and internet materials.

1.6Literature review

 

While a considerable number of studies have been conducted on the UNSC, they do not address, at least in comprehensive terms, a proper functioning of the Security Council and whether it is succeeding in its mission and to what extent it is playing her mandated function. This literature review focuses mainly on recent material on this topic, including text books, edited books and journals written on peace and security issues of the UN. It also lists relevant articles on peace and security in the UN Charter. Few of such literature will be reviewed below.

Oppenheim, L., in his bookThe Future of International Law^[8] looks at the present peace and security state of the world today basing his idea on the Charter of the UN. He writes that the authors of the UN Charter proposed that the organization should seek to ―save succeeding generations from the scourge of war.‖ Understandably, they had in mind avoiding world wars and other large interstate conflicts. Sixty years later, there have been hardly any horrifying wars among the militarily strongest states. This fortunate outcome probably has had less to do with the functioning of the United Nations system than with the perceived costs of interstate war in the nuclear age, and increasing doubts about the economic advantages of conquest. According to this writer, the major threats to international peace and security are radically different today from those anticipated by the framers of the UN Charter. Today, international institutions must be reformed to address two principal sets of security threats. The first in the North is terrorist use of weapons of mass destruction (and especially nuclear weapons) in major urban areas. The second is in the South, where there is internal war, state collapse and consequent personal insecurity; violently abusive government; in some cases, risk of attack by strong states or neighbours. What worrythe most today are these weapons that are frequently being used by terrorist and insurgents. They do not manufacture them. They are manufactured and sold by these big powers and they are obviously used by these inhumane fellows.

During situations of breach of the peace, strong and powerful states benefits from the smaller and militarily weaker states and subject them to annexation.^[9] or direct control exercised by major powers playing great games in the international community or fighting wars with each other. Nonetheless, the same technological advances that have helped to bring about major power peace have created a new security threat that will grow worse as technology improves and scientific knowledge spreads. This writer points out that interstatewar is generally disfavoured by WMD, but the horrific destructive potential of these weapons makes them more attractive for terrorist use by non-state or state-supported actors, and also a vastly greater concern.

The main security threats in the rest of the worldOppenheim, L.,  points out are quite different. Since 1945, about22 million people have died as a direct result of civil wars, almost entirely outside the economically most developed countries. This figure does not include the many millions killed in one-sided massacres orchestrated by governments, such as in Rwanda, Argentina, Cambodia, and Uganda under Amin and Obote. By comparison, about 3.3 million people were killed in interstate wars in this period. These three problems are internal war, mass killing by governments, and interstate war andrepresent the major security risks for much of the developing world, in decreasing order of global severity. These latter problems are indirectly related to one of the early successes of the United Nations system; the promotion and management of mainly peaceful decolonisation in Africa, Asia, and the Middle East. The UN

Charter was signed by 51 countries in a world with about 60 independent states. Today there are 191 members, half of whom gained independence since 1960. Decolonisation filled the international system with new states whose economies and administrative structures were often fragile and underdeveloped. These states have been especially prone to civil war and abusive rule. This author argues that the UN system, or a redesigned parallel or alternative system with some similar basic commitments, is potentially more valuable for promoting peace and security now than it ever was during the Cold War.

Whether the UN in its present form is the best body to perform these functions is a difficult question that this research attempts to give a response to. On the one hand, the thrust of what is required to meet the new international security threats runs against two premises of the UN Charter. The Charter sought to regulate interstate relations, but not ―internal‖ matters such as civil war and its effects, or national decisions about armaments programs. Second, the Charter conceived of the UN as an organization open to all states irrespective of the form of government. This writer argues that some of the new security challenges such as preventing human rights abuses by governments, and authorising the use of force might be better met by an organisation with membership limited to democracies.On the other hand, the UN Charter has proven a powerful yet flexible document. It may be possible to suggest effective solutions to the new challenges within its basic structure. This writer failed to discuss the various means of handling dispute like peacemaking, peace keeping and peace enforcement when there is a breach of peace situation.

To proceed, Murphy,J.F., inThe Evolving Dimensions of International Law hard choices for the world community ( 2010)^[10] explains that, as is well known, the primary motivation of the founders of the United Nations was to create an international institution that would be more effective than the League of Nations was in maintaining international peace and security. Under the U.N. Charter the Security Council is given the ―primary responsibility for the maintenance of international peace and security,‖and it was the vision of the founders of the United Nations that the permanent members of the Security Council, especially the United States and the Soviet Union, would continue the cooperation that characterized their actions during World War II and be the backbone for the efforts of the new institution to prevent and, if necessary, to suppress by armed force aggression and other threats to and breaches of the peace. With rare exceptions the vision of the founders has not been realized. To be sure, the record is not one of consistent failure. From time to time various permanent members have played key roles in efforts to meet aggression or threats to the peace.

The High-level Panel‘s report sets forth a large number of wide-ranging

recommendations for possible reform of the United Nations, including structural reforms. Of the recommendations for structural reforms, the one that has received the greatest attention is that the Security Council be expanded along the lines of two possible models. One would add additional permanent members without a veto, along with further term-limited members; the other would add only additional term-limited members. Both would expand the total size of the Security Council to twenty-four members. He also mentioned that The United Nations, sadly, has drifted far from its founding vision. Its Charter neither calls for a democratic council nor relegates the collective use of force to a last resort. It was a wartime document of a military alliance, not a universal peace platform. A key question arising from these developments is where do we go from here? If the permanent members of the Security Council will not fulfil their responsibilities, or at best do so only sporadically, who or what shall enforce the peace? Various possibilities have been suggested. These include, among others, a renewed commitment on the part of the permanent members to fulfill their responsibilities; a greater role for more ―robust‖ U.N. peacekeeping; greater involvement in peace enforcement by regional agencies, including especially the African Union; an alliance of democratic states, including one with its own institutional military capability; and somecombination of these possibilities. He pointed out that the founders of the United Nations recognised the possibility that a permanent member might itself create a threat to or breach of the peace.This writer only pointed out the various shortcomings of the UNSC in maintaining peace and security but did not tell us how the problem should be resolved as far as their functions are concerned. He did not say what measures are to be taken if the UNSC fail to carry out its responsibility of maintaining world peace and security.

 

In addition, Manusama, K., in his bookThe United Nations Security Council in the PostCold War Era Applying the Principle of Legality. (2006) ^[11] looks at this topic tracing its roots from the Covenant of the League of Nations, the Kellog-Briand Pact, and the UN Charter that did not seek to abolish the use of force entirely. Due to the continuing need for force in certain cases, the right to use it was centralised in the Security Council as an exception to Article 2(4) of the UN Charter. Thus, Article 2(4) of the UN Charter must be read in conjunction with other provisions of the Charter, and more specifically the provisions on the collectivesecurity system. Collective security developed from the nineteenth century system from the balance of power and coincides with the development of an increasingly strict prohibition on the use of force.

Although the collective security system is ultimately characterised by the centralised use of force, it has multiple functions and employs divergent means at its disposal.

According tothe writer, the collective security system as laid down in Chapters VI and

VII of the UN Charter reflects that both peaceful and forceful means can be employed by the

Security Council to maintain or restore international peace and security. Although the UN Charter in its Chapter VI does not contain coercive measures, strictly speaking, it can be regarded as one of the non-military measures available to the Council. Article 42 of the UN Charter authorises the Security Council to use force on two conditions. First, as noted, forceful Security Council action must be preceded by a determination that the situation constitutes a threat to or breach of the peace or act of aggression in accordance with Article 39. It must be noted that, based on the difference in language between Articles 2(4) and 39 and the political discretion of the Council to make such a determination, there is no necessary link between or identity of the two. Secondly, Article 42 attaches the condition that the Security Council shall consider whether or not ―measures provided for in Article 41 would be inadequate or have proved to be inadequate‖ before it decides on any military action. However, as the wording of the provision reflects, the Council does not need to apply the Article 41 measures before resorting to the forcible measures under Article 42, as it must be able to act promptly, efficiently and effectively. Thus, having made the determination, e.g. that a threat to peace exists, it can choose to take military action immediately if it considers that measures other than the use of force would not be sufficient to restore or maintain peace and security. The effectiveness of such a system is largely dependent on the means at the disposal of the responsible organ. Article 43of UN Charter provides for the conclusion of special agreements between the UN and the member states to provide armed forces to take Security Council military enforcement action. The writer notes that, no such agreements have ever been concluded or are likely to be so in the near future. The Cold War animosity and the veto power blocked any chance of obtaining a consensus on the modalities of a UN standing army. Yet, as Franck notes, ―when an arm intended to effect an institutional purpose is amputated, the Organization tends to grow a replacement.‖ Peacekeeping is an example of such a replacement, as is the use of force by states following authorisation by the Security Council. This hybrid form of the lawful use of force and its resemblance to collective self-defense has sparked much academic debate on the source and nature of such actions. Theauthor did not say in this work of the effects and consequences of collective use of force in international law by the SC as a means of maintaining world peace and security. He has also made of the use of the veto power to hamper collective use of force but did not expound on the effect of this veto power in International Law.

Also, another International law erudite on the World stage John Rourke in his book International Politics on the World Stage,^[12]saysthe opening words of the UN Charter dedicated the organization to saving succeeding generations from the scourge of war, which has twice brought untold sorrow to mankind. The UN attempts to fulfill this goal by creating norms against violence, by providing debate as an alternative to fighting, by intervening diplomatically to avert the outbreak of war or to help restore peace once violence occurs, by instituting diplomatic and economic sanctions, by dispatching UN forces to repel aggression to act as a buffer between warring countries, and by promoting arms control and disarmament. One way that the UN helps promote international peace and security is by creating norms against violence, and other forms of violence. To accomplish this, the UN works in such areas as promoting the concept of nuclear nonproliferation through the International Atomic Energy Agency, (IAEA) limiting chemical and biological weapons, and promoting rules for the restrained conduct of war when it occurs.

Countries that signed the Charter pledged to accept the principles that armed forces shall not be used save in the common interest and further agreed to refrain in their international relations from the threat or use of force except in self defense. This writer has given pertinent idea on how peace issues should be managed. He has vehemently rejected the use of force as a means of resolving dispute. This is because no war has ever come to an end without the parties coming to the negotiation table.Providing a debate alternative is the second peace-enhancing role of the UN and some other International Governmental Organisations (IGOs) is serving as a passive forum in which members publicly air their point of view and privately negotiate their differences. This author fails to bring out the various techniques that should be used at the negotiating table to bring peace and security.

More so, Brabandere, D. E., in Post-conflict Administrations in International Law (2009)

^[13] sees territorial administration under the Trusteeship System established under Art. 81 of the UN Charter as a way to ensure social justice, economic empowerment and above all bring peace and security to the international community. Interestingly, at that time, Article 24 of the UN Charter, in which UN Members confer on the Security Council the primary responsibility for the maintenance of international peace and security, was seen as the legal basis for the administration of the Colonial Territories. It was argued that the situation presented a threat to international peace and security, and that, considering that the Security Council was given the responsibility to deal with the situation on the basis of Article 24 of UN Charter, that provision was sufficient to authorise the exercise of administrative powers by the UN.  This can in fact be seen as an application of the doctrine of ‗implied powers‘ which is currently one of the legal

bases of Security Council action with regard to the administration of territory.

While the context in which the Trusteeship System was envisaged cannot be compared to the peace-building missions themselves, the purpose of the trusteeship system reveals similarities with post-conflict administrations and reconstruction. The trusteeship system‘s main purpose was the progressive transfer of former colonies towards independence or self-government. Article 76 of the UN Charter contains the basic objectives of the System: the furtherance of international peace and security, the promotion of the political, economic, social and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence. In addition, encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion, and guaranteeing equal treatment in social, economic, commercial and justice matters for all UN

Members and their nationals were main aims of the trusteeship system. Article 39 of the UN Charter states that ―the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations‖. But the SC in the case of Sierra-Leon failed to see that there was an impending breach of peace and security and did not even give the ECOMOC forces the authority to go keep the peace there when it was demanded. ECOMOC entered on its own authority until when it was succeeding that the SC granted her the authority and backdated it.

This article gives the Security Council first the power to deal with a given situation; that is, a threat to the peace, a breach of the peace or an act of aggression and secondly the power to make recommendations to the parties concerned. Operations authorised under Article 39 of the

UN Charter the writer says, are therefore, based not only on the Security Council‘s recommendatory power, but also on the consent of the state concerned. Next to

recommendations, Article 39 of the Charter also gives the Security Council the power to decide, after determining a threat to the peace, a breach of the peace or an act of aggression, to take

‗measures‘ in accordance with articles 41 and 42 of the Charterexampleswhich obviously do not exclude other measures. If the Security Council considers that the measures provided for in Article 41 would be inadequate or have proved to be inadequate, the Security Council can authorise military action under Article 42 of the UN Charter. Such military action may include such demonstrations, blockades, and other operations by air, sea or land forces, as may be necessary to maintain or restore international peace and security. This article is thus the appropriate legal basis for the military components of peace-building operations and international administrations, as evidenced in the case of Afghanistan mentioned above, in which the military and civil missions were established under distinct resolutions.

The latest operations in which the UN was invested with far-reaching administrative competences were all authorised by the Security Council. Nevertheless, the question whether the General Assembly is competent to authorise the establishment of a peace-building missions is still relevant to a certain extent, given that several precedents were established by the General

Assembly. This was the case with the administration of West Iran, the ‗Council for Namibia‘ and the proposed administration of Jerusalem. One has to keep in mind that the circumstances of the specific case will directly influence the establishment of administrativemissions by either the General Assembly or the Security Council. The UN Charter specifies that, besides the general functions entrusted to it, the General Assembly ―may consider the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both‖. Article 11(2) of the UN Charter further states that ―the General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the

Security Council or to both‖. Accordingly, with regard to its capacity to deal with a situation, the General Assembly is competent to discuss all matters relating to the maintenance of international peace and security, and to make recommendations in that regard, except when the Security Council is exercising the functions assigned to it by the UN Charter in respect of that dispute or situation. This author has not pointed out here how the world will look like if the UNSC fails to determine a situation as a threat to the peace, breach of the peace or acts of aggression.

Furthermore, Caflisch, L., (2007)^[14] tries to look at the way the Security Council manage peace and security in the world by referring situations to the International Criminal Court. Article 13(b) of the Statute gives the Security Council an express power to refer cases to the Prosecutor in a ―situation in which one or more of such crimes appears to have been committed‖. This is one of the ways in which the Prosecutor may be seized of a case under the Statute. Article 13(b) of the Statute requires that the Council resolution making the referral has to be adopted under Chapter VII of the UN Charter. In order to adopt a Chapter VII resolution, the Security Council must make an Article 39 determination that a particular situation constitutes a threat to, or breach of, the peace or act of aggression. What this means is that the Security Council must make an Article 39 determination that the commission of these crimes either in themselves or as part of a broader situation  constitutes a threat to, or breach of, the peace or act of aggression, and as such that a referral to the Prosecutor is necessary. This links the peace and security mandate of the Security Council to the justice mandate of the ICC. As such, this may potentially constitute an impediment to the independent functioning of the ICC. In fact it is unclear why Article 13(b) obligates the Security Council to have to adopt a Chapter VII resolution, as opposed to a nonChapter VII resolution, in order to make a referral to the Prosecutor. If it was to ensure that the referral decision would be subject to the power of veto of the permanent members, then it was not required as a matter of United Nations law. The power of veto over Security Council decisions pertains to all ―nonprocedural‖ matters, in accordance with Article 27(3) of the Charter. The writer stresses that it is inconceivable that a non-Chapter VII decision by the Council to refer a situation to the Prosecutor for consideration for prosecution could be characterized as a matter of Security Council procedure, and thus not be subject to a veto. The reason why this Chapter VII requirement is being questioned by this writer is that it raises the spectre of whether the Security Council will be willing simply to accept a decision by the Prosecutor or even possibly the Court not to proceed with a trial of at least one person from the situation that has been referred. The ICC Statute has raised the stakes by requiring a Chapter VII decision and thus, arguably, raised the expectation of members of the Security Council that effective action in the form of a prosecution or at the very least an investigation will follow.This writer leaves a loophole of what will happened if the ICC does not see any reasonable evidence to try the matter referred to by the UNSC.

In addition, Roht-Arriaza^[15] writes that in 1970, the U.N. General Assembly in a resolution on war criminals and crimes against humanity noted that such crimes were still being committed in various parts of the world and that thorough investigation, as well as the arrest, extradition, and punishment of persons guilty and the establishment of criteria for compensation of victims, were important elements in the prevention of such crimes and in the safeguarding of international peace and security. It called on states to take appropriate measures to arrest and extradite war criminals and persons who have committed crimes against humanity and to agree that such crimes should not be subject to statutes of limitation.

He points out that, three years later, the General Assembly adopted the Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity. The Principles do establish a duty to prosecute, preferably by the state in which the crimes were committed. They indicate that “crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence . . . shall be subject to tracing, arrest, trial and, if found guilty, to punishment.” Roht-Arriaza,N.,(1995)leaves us with the dilemma that despite the stringent measures at curbing this inhumane way of treatment of mankind by some individuals the punishment given them is still mild so what harsher method should be added?

Over, W.,(2004) in his book^[16] says in practice, ―peace and security‖ issues remained the decisive motivation for actual interventions over the past few decades. For example, interventions in Haiti and Kosovo in the late 1990s were decided by the legal justification of peace and security for the region. Humanitarian reasons were viewed only as add-ons. Hence, the debate between global security and democratic aims was not fully resolved in the new century. A dispute of equal importance involved the often-heated discourse among humanitarian interventionists. One faction felt that human rights and humanitarian aid was an entitlement for all, irrespective of whether particular groups or nations were harming their own or other peoples the international community according to him has to intervene for the sake of promoting peace and security. However, these goals are also enhanced significantly, perhaps decidedly, by meaningful attention to the standards set forth in the UN Universal Declaration of Human Rights and its subsequent conventions. He says that prescient observers have insisted, long-term peace and security will occur only when basic inequalities are overcome worldwide. This rather straightforward truth can be realized by following various paths, as long as there is a general acknowledgment that the hitherto opposing factions must work sincerely and consistently for both general approaches.

To go further, Merav.D.,(2010)^[17]expressing his mind on the fact that the world will enjoy a better peace and security if nuclear weapon is eliminated. He point out that in 2009, President Barack Obama declared that the United States was committed to seeking ―the peace and security of a world without nuclear weapons.‖ He qualified this commitment, however, by stating that ―This goal will not be reached quickly perhaps not in my lifetime.‖ He also added that ―as long as nuclear weapons exist, the United States will maintain a safe, secure, and effective arsenal.‖ In a speech to the German Parliament on April 27, 2009, Steinmeier announced that he ―shares this vision‖ of ―peace and security in a world without nuclear weapons,‖ referring to the appeal of the four senior statesmen of January 2009. More explicitly, he called for ―truly renewing the core of the Nuclear Non Proliferation Treaty,‖ e.g. ―the nuclear disarmament of the atomic powers on the one side, and the prevention of nuclear proliferation on the other‖, ―a verified cutoff of nuclear material‖, and progress on an international fuel cycle center. This writer points out how on April 27, 2009, the opposition parties the Greens, Free Democrats (FDP), and the Left filed petitions demanding the withdrawal of U.S. tactical nuclear weapons from Europe and ending

NATO‘s nuclear sharing. Their calls were rejected by the votes of the governing CDU-SPD coalition, although Foreign Minister Steinmeier spoke in favor of a withdrawal of all nuclear weapons from Germany.

To proceed, Belachew, G.,(2009)^[18] on his part argues that if the interest of the major global players that constitute the P5 of the UN Security Council and champion in international peace and security, how can we understand that they themselves contribute to the perpetuation of the

Congolese conflict? He says china began to show its interest in the DR Congo immediately after Laurent Kabila took power. In mid-December 1997 Kabila visited China and announced that the DR Congo government had chosen china as a model for Congo because the Chinese economy is growing rapidly, and it was transforming itself through its own efforts. In 2007 china agreed to lend the democratic republic of Congo $5 billion to modernize its infrastructure and mining sector. Accordingly, $3 billion were earmarked for strategic highway and railroad projects, whereas $2 billion was earmarked to revive Congo‘s mining sector of copper, cobalt, gold, nickel, uranium and diamonds (Reuters 2007). But at the same time China is one of the leading arms exporters to Congo (Control Arms Campaign 2006). Various business enterprises violate the OECD guidelines for multinational corporations. Of 85 business enterprises that have violated the principles according to a report in 2002, 21 companies are Belgian, 12 South African, 10 British, 8 American, 5 Canadian and 4 each for Germany and Zimbabwe. Various individuals with close ties to Presidents Joseph Kabila, Paul Kagame, Robert Mugabe and Yoweri Museveni of DRC, Rwanda, Zimbabwe and Uganda; Victor Bout (the notorious former Soviet military major who retired from the service in 1993 and became an international arms dealer); and a number of Antwerp-based diamond dealers were reportedly connected to illegal business in Congo (Nzongola-Ntalaja 2004: 17) this writer fails to show in this work how to deal with the permanent five powers who are mandated to keep peace and security and they turn around to put their interest first and thus breach the peace.

To conclude, Dekker,G.N.,(2001)^[19]  in his book says that the international community must cooperate in the maintenance of peace and security. He says one of the first areas where the necessity of co-operative behaviour between States has been recognised is in the maintenance of international peace and security. As a guiding principle, it can be upheld that most of the time most of the States benefit most from a situation of international peace and security. At the same time, he says it should be acknowledged that in exceptional circumstances the international community as a whole will benefit more from (limited) warfare than from a peace situation in which a State is allowed to pose a serious threat to international peace and security; the collective security system of the United Nations (UN) is based on this concept. He stresses that the concept of the system of collective security is based on the renunciation of force, except in self-defence, on commitment to the peaceful settlement of international disputes and on the obligation to support collective measures, both military and non-military, to defeat any threat to the peace, breach of the peace, or act of aggression. The Charter provides that disputes shall be settled peacefully in such a manner that international peace and security, and justice, are not endangered and prohibits the threat or use of force by States in their international relations against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the UN. This writer does not bring out in this work why countries continue to amass ammunition especially the very destructive types despite international recognition of collective security. He did not also bring out the way they have committed to eradicate these dangerous weapons.

 

1.7 Justification of the study

The international community is experiencing situationsofwar in many countries like Syria, Central African Republic, South Sudan, IraqandLibya; terrorism is witnessed in Mali, Somalia, Nigeria, Kenya etc. There is mad quest for Weapons of Mass Destruction (WMD) and stockpile of it in countries like North Korea, Iran, Israel, India, and Pakistan.^[20]Regional bodies like North Atlantic Treaty Organisation (NATO) and ECOMOG turn to perform this function of peacekeeping much better than the UNSC entrusted with such primary responsibility. Even the desire of these regional bodies to carry on this function is sometimes frustrated by the attitude of the UNSC that refuse to give them the authorization as per the UN Charter²⁶.All these situations and events bring to the researcher much doubt about the Security Council performance ofits duties as intended and thus spur up this research.

Also, countries have contributed a lot to see that the Security Council achieves its goal. Contributions have been made in terms of finances, human capital, armaments, land ceded for military operations and other material contributions. This study is thus carried out to see if the works carried out by the Security Council is commensurate with the efforts put in by the member countries and the desire of the international community.This work also sought to see if much effort should be made in terms of the contribution and in what ways it should be made to see that the SC upgrades her efforts to see that the world is in peace and security; the route to any development.

 

1.8 Organisational layout

In this thesis, there are five chapters. The first chapter deals with the general introduction. This includes the problem of the research, aims and objectives, the scope of the research, the methodology, literature review, justification of the study and then the organizational layout.

Chapter two of this work deals with conceptual clarification. Here, concepts like the meaning and nature of international law, meaning and nature of concepts of peacemaking, peacekeeping and peace enforcement are elucidated. Then peace and security are also conceptualized and explained.

Chapter three unveils the role of the SC in promoting peace and security in

International Law. Here,issues discussed are the legal bases of peacekeeping in international law, then the Meaning and Establishment of the SC of the United Nations. This is followed by the role of the SC of the UN, and thenan assessment of the achievements of the UNSC in selected areas.Case study is selected from Africa and Asia. In Africa,the researcher looked at the cases of Libya, Rwanda, Democratic Republic of Congo and Darfur. In Asia, studies is conducted on Iraq and Afghanistan.

In chapter four, the limitations and criticisms of the UNSC are examined. Here, this workexamined the limitations deriving from the text of the UN Charter, then the limitations deriving from the purposes and principles of the UN Charter. This is followed by the limits fashioned to discretionary powers. Under this head, an analyses of the critique of the UNSC is done wherein elucidation is made on aspects like the arm arsenal of the permanent members, the

SC manner of functioning, its double standard attitude, its resources, structure, and veto power of the permanent members. This research also saw how a misuse of the veto power has changed the attitude of the international players.

Chapter five concludes this work with summary,recommendation andconclusion. In it, the summary of the thesis, followed by the findings and then the recommendationsare examined.

[1] Anna. A.,(2005) Transforming Conflict and Building Peace. Sida Publishers, Sweden; p. 1

[2] Ibid

[3] Art. 24 UN Charter op. Cit p. 2

[4] Press TV news; Wednesday 16 Jan 2013, 800am

UN,  The Disarmament Commission of the UN  functions ;available at http://www.undoc.org/disarmamentaccessed on 08/10/2015at 12:15pm

UN,The International Atomic Energy Agency (IAEA) available at http://www.undoc.org/disarmament accessed on 08/10/2015 at 2:15 PM

[5] The case of the Syrian crisis

[6]Le Debate Panafricain ,Afrique Media;.(live) Sunday 24 Feb. (2013); 12:30 PM

Pascal, T.,(2003)The Security Council at the Dawn of the Twenty First Century; To What Extent is it Willing and 

   Able to Maintain International Peace And Security, UN Publication, Geneva, Switzerland P.25pasca^eixeira11 Le Debate Panafricain.  Afrique Media; Op cit. p.4

[7] Lyall, M., (2014) Challenges Facing the UN Security Council: Past, Present and Future.  Chatham House available at www.chathamhouse.org accessed on 4/11/2015 at 2:30 PM

[8] Oppenheim, L., (2010) The Future of International Law, Oxford University Press, London. P. 43

[9] The case of Russia in Crimea is a glaring example.

[10] Murphy,J.F.,(2010) The Evolving Dimensionsof International Lawhard choices for the world community;Cambridge University Press, Cambridge. p. 114

 

[11] Manusama, K., (2006) The United NationsSecurity Council in thePost-Cold War EraApplying the Principle of Legality.Martinus Nijhoff Publishers, Leiden. P.97

[12] Rourke, J.T., (2000),International Politics on the World Stage,UniversityofConnecticutpress,  Connecticut, p. 246

[13] Brabandere, D. E., (2009) Post-conflict Administrations in International Law, Martinus Nijhoff Publishers, Leiden, Netherlands. p.37

 

 

[14] Caflisch, L., (2007) Promoting Justice, Human Rights and Conflict Resolution through International Law: Martinus Nijhoff Publishers. Leiden, The Netherlands. P.426

[15] Roht-Arriaza,N.,(1995)Impunity and Human Rights in International Law and Practice, Oxford University, Press, Inc. London P. 52

[16] Over, W.,(2004) World Peace, Mass Culture, and National Policies; Praeger London,P.100

[17] Merav.D.,(2010) Reducing and Eliminating Nuclear Weapons: Country Perspectives on the Challenges to Nuclear Disarmament available at www.fissilematerials.org accessed on 10/08/2015 P.87

[18] Belachew, G.,(2009)Anatomy of Violence Understanding the Systems of Conflict and Violence in Africa; Ashgate Publishing Ltd, Farnham Surrey, England P.123

[19] Dekker,G.N.,(2001) The Law of Arms Control: International Supervision and Enforcement , Martinus Nijhoff Publishers,Hague, The Netherlands.P.37

[20] SIPRI, (2013) SIPRI Yearbook 2013, Armament Disarmament and international Security. The main exporters of major arms 2008-2012, 1 USA, 2. Russia, 3. Germany, 4. France, 5. China,  6.UK, available at

http://www.sipriyearbook.org accessed on 21 August 2015 at 4:26 pm ²⁶ Art. 53(1) UN Charter op cit. p.2

 

A CRITIQUE OF THE ROLE OF THE UNITED NATIONS SECURITY COUNCIL IN PROMOTING PEACE AND SECURITY UNDER INTERNATIONAL LAW

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