Security Council Authorization Research Articles

Editorial - Post 9/11 Jus Belli

The new, and in many ways revolutionary, paradigm which came out of World War II, translated in the Charter of the United Nations, through the general principle of the prohibition of the use of force (Article 2(4)), was swiftly submitted to a reality check. Since then, the prohibition of the use of force and its exceptions, in particular, self-defence and Security Council authorisation under Chapter VII of the Charter, have faced constant challenges and doubts fuelled, in part, by geopolitical interests and inherent fragilities.

Beyond Borders: Unpacking us Military Involvement in Afghanistan as a Case Study in the Islamic World

Purpose: This study seeks to assess the adherence to international law in the 2001 U.S.-led military intervention in Afghanistan, prompted by the September 11 attacks. Additionally, it aims to investigate the impact of the Greater Middle East Initiative on U.S. policy towards the Islamic World, specifically Afghanistan, providing insights into legal intricacies and broader consequences. Theoretical Framework: This article engages in discussions among Western scholars on the Afghanistan war and U.S. military involvement but distinguishes itself by incorporating insights from Middle Eastern scholars. It aims to enrich the discourse by integrating perspectives from within the Middle Eastern scholarly community, offering a comprehensive view of these complex subjects. Methodology: Employing historical, descriptive, and in-depth analytical research methods, this study examines events around September 11, 2001, providing essential context for the subsequent U.S. military intervention. Descriptive methods offer a detailed account of the post-9/11 shift in U.S. policy, while in-depth analytical methods scrutinize legal dilemmas arising from the intervention, contributing to a comprehensive understanding of historical context, U.S. policy decisions, and legal complexities. Results: The results and discussion section explores the historical evolution of U.S. military engagement in 21st-century Afghanistan, analyzing its strategic shifts and the Taliban's adaptation to guerrilla warfare. It critically evaluates the international legal aspects of the Afghan War, assessing the legitimacy of the U.S.-led military intervention based on UN conventions, historical precedents, and key principles such as the right to legitimate defense, urgency, and proportionality. Conclusions: The aftermath of September 11, 2001, marked a transformative moment in U.S. policy towards Afghanistan and the broader Middle East, leading to the consequential Afghan War. Despite its geopolitical significance, the absence of explicit UN Security Council authorization prompts a critical examination of the war's legitimacy, revealing lapses in meeting criteria for the right to individual or collective legitimate defense and urging a reevaluation of established narratives in international relations and global politics.

What Blocked the UN’s Response to the Earthquakes in Northwest Syria? Reflections on a Humanitarian System Premised on Government Consent

Abstract This article reflects on the UN response to the earthquakes in Türkiye and Syria in February 2023, and specifically the fact that while the UN responded immediately in southern Türkiye, it did not do so in non-government-controlled northwest Syria. The UN explained that its ‘longstanding position’ was that aid could not be delivered across an international border without host government consent or Security Council authorisation. This article seeks to understand this position. It reviews the law applicable to cross-border humanitarian assistance, and the guidelines and tools that shape the UN’s emergency response. It argues that international law allows cross-border humanitarian assistance without host State consent; however, that the UN’s guidelines and tools do not facilitate the provision of assistance in such a scenario. The article concludes by calling for a review of the law, policies and guidelines that shape the way the UN responds to rapid-onset disasters in conflict contexts.

The Sanctions Debate in the Work of the United Nations Since the 2000 Working Paper

In recent years the lawfulness of certain types of sanctions and the question about the usefulness of sanctions in general have become topical and widely discussed issues. Of special significance is the expanding use by powerful states of unilateral coercive measures without Security Council authorisation, or beyond Security Council authorisation, to illustrate their displeasure with the domestic or foreign policies of certain members of the international community. Over time the nature of these measures has taken on diverse forms and their encroachment on human rights and freedoms has become a matter of international concern. This contribution examines the developments that have taken place in this context since the 2000 report of the Working Group on the negative impact of sanctions by focussing on the interventions by key United Nations bodies.

ERDOĞAN'S ENDLESS DREAMS

After the Justice and Development Party (AKP) rose to power in 2002, Turkey's Middle East policy underwent a radical change. Erdoğan's readings of the Arab Spring events are a vivid example of Turkey's new foreign policy. In the last months of 2019 and 2020, Turkey took two other important steps that have attracted the attention of the international community: engagement in Operation Peace Spring in northern Syria without UN Security Council authorization, and steps to reach an agreement with the Libyan government on oil and gas exploration in the Mediterranean in tandem with sending troops to Libya. Turkey's recent actions, which violate international law and UN resolutions, raise several questions: what changes have taken place in Turkey's foreign policy? What are its core drivers and main components? And what results will the new policy deliver in the future? We argue that Turkey's behavior conforms to the principles of offensive realism. The shift in Turkey's foreign policy and the trend toward offensive realism are rooted in the 2011 Arab Spring and subsequent events in the Middle East. The failed coup of 2016 accelerated these changes and pushed them in new directions. Turkey is now seriously aiming to maximize its power, particularly in the politico‐military field, which could increase tensions in the sensitive region. We submit that Turkey cannot be guided by offensive realism in the long term, however.

Does the EU Have Moral Authority? A Communicative Action Perspective on Sanctions

The European Union (EU) states in its 2016 Global Strategy that it intends to be a “responsible global stakeholder” and to “act worldwide to address the core causes of war and poverty, as well as to promote the indivisibility and universality of human rights” (European Union Global Strategy, 2016, pp. 5–8, 18). However, the Global Strategy is silent on the credentials or prerequisites that give the EU the authority to act globally and address conflicts and violations of human rights, including through the use of sanctions against non-EU states. How far the EU has the authority to use sanctions, which are essentially coercive measures, is especially relevant when the EU resorts to unilateral sanctions based on obligations owed <em>erga omnes</em>, namely measures without explicit United Nations Security Council authorisation and based on obligations owed to the international community as a whole. Drawing on Habermas’s theory of communicative action, this article introduces an analytical framework—the “moral dimension” of EU authority—which maps the substantive and procedural standards to guide the assessment of whether the EU has the appropriate credentials to qualify as an authority with the right to intervene forcibly into the internal affairs of non-EU states. The analytical value of the framework is examined empirically in the case study of the EU’s restrictive measures (sanctions) imposed in response to state violence against anti-government protests in Uzbekistan in 2005.

REVISITING THE RESPONSIBILITY TO PROTECT AS AN INTERNATIONAL NORM

The purpose of the paper is to revisit the origin of the principle of responsibility to protect (R2P) focusing on few cases and reflecting on the troubled journey that it has made maneuvering its structural constraints posed by hegemonic powers and geopolitical manipulations, by employing historical methods in tracking its evolution. The inter-state aggression during the Cold War, largely gave way to war and violence within, after the end of it, rather than between, states. There were two opposing views at the United Nations (UN): those who supported right of humanitarian intervention and those who viewed such a doctrine as an infringement upon national sovereignty. In this regard, R2P remains a developing principle and, the absence of definitive state practice in this area means that states wanting to intervene to protect foreign populations from atrocities are left without clear legal justification for such action. In the absence of UN Security Council authorisation, use of force under the banner of R2P remains contentious. Lastly, the paper discusses the prospects the principle will have in future as constraints and manipulations are still present.

Re-assessing the (Continued) Need for UN Security Council Authorisation of Regional Enforcement Action: The African Union Twenty Years On

This article examines the broad and varying spectrum of literature covering questions concerning the necessity of the United Nations Security Council’s authorisation of regional enforcement action. It has been well documented by now that the UNSC may, in fact, authorise the use of force (regional enforcement action) by regional organisations under Article 53 of the UN Charter. At the same time, some regional organisations, most notably the African Union, have developed their own legal regimes governing the use of force. The African Union’s constitutive instruments provide for the unilateral use of force without the need for UNSC authorisation. Even so, after twenty years it has yet to rely on its security framework for any unilateral use of force. This article examines these developments within the AU context and questions whether, scholarship and practice in mind, UNSC authorisation of regional enforcement action remains a requirement.

State Consent to the Provision of Humanitarian Assistance in Non-International Armed Conflicts

In light of repeated denials and obstruction of relief efforts by belligerent states, particularly when directed towards non-state armed groups designated as terrorist groups or justified as a legitimate response to the COVID-19 pandemic, this article provides a comprehensive analysis of the international legal position regarding the provision of humanitarian assistance in non-international armed conflicts. The article argues that although a general right of access has not crystalised, relief operations into territory under the effective control of a non-state armed group without state consent may be permissible with Security Council authorisation or otherwise, in appropriate circumstances, under the rules of state responsibility. More broadly, belligerent parties must abide by their legal obligations to ensure that the needs of civilians are met.

Exploring the UK's Doctrine of Humanitarian Intervention

ABSTRACT UK governments have often claimed that humanitarian intervention – without the consent of the target state and if necessary without express UN Security Council authorization – is legally permissible in exceptional circumstances, a stance that is highly controversial. The UK’s position is at odds with prevailing international legal doctrine, which is counterintuitive for a country that is generally committed to international law, the UN framework, and multilateralism. It is also in tension with normative developments related to human protection, such as the international ‘Responsibility to Protect’ principle, which established that coercive responses to human suffering must be authorized by the UN Security Council. This article explores the background to the UK’s position on humanitarian intervention, and it argues that this reflects an element of continuity in the UK’s foreign policy in historical perspective, as a legacy of global engagement and a sense of moral righteousness and duty. The article also considers whether the UK’s position may be contributing to an evolution of the norms governing the use of force for human protection.

The UN Security Council and EU CSDP operations: exploring EU military operations from an outside perspective

This article examines European Union (EU) military operations from the perspective of the United Nations (UN) Security Council and UN collective security. The EU has supported UN peacekeeping missions through its own military operations within the Common Security and Defence Policy (CSDP), based on the authorisation of these operations by the UN Security Council. However, the EU’s military operation on the Mediterranean Sea, Operation Sophia, was established in 2015 without such prior UN Security Council authorisation. Although the UN Security Council authorised the operation subsequently, it was received in a less positive light than previous operations and was criticised not only for the way in which it was established, but also for its performance. The article argues that this break with prior practice does not indicate a new direction being taken by the EU as it has retreated from this approach and established a new military operation in the Mediterranean (Operation Irini), again firmly in line with a mandate issued by the UN Security Council in 2020. The assessment of EU military operations can be complex as there might be other EU agencies involved in the process such as Frontex, and their role in future operations, in particular in the field of migration, should be monitored. Yet this internal complexity does not alter their evaluation under international law. As soon as EU military operations are conducted on the territory of a third State, the EU needs to secure either a UN Security Council authorisation or State consent. Looking at this process from the perspective of the UN Security Council sheds light on the complexity of EU military operations and their position within UN collective security.

Would Armed Humanitarian Intervention Have Been Justified to Protect the Rohingyas?

ABSTRACT The mass killings, large-scale gang rape and large-scale expulsion of the Rohingyas from Myanmar constitute one of the most repugnant world events in recent years. This article addresses the question of whether armed humanitarian intervention would have been morally permissible to protect the Rohingyas. It approaches the question from the perspective of the jus ad bellum criteria of just war theory. This approach does not yield a definitive answer because knowing whether certain jus ad bellum conditions might have been satisfied is difficult to judge without detailed knowledge of military intelligence assessments. Nevertheless, I argue that there was just cause for intervention according to both liberal and communitarian perspectives; that legitimate authority in the form of United Nations Security Council authorization would not have been morally necessary; that it is doubtful whether permissible intervention would have required humanitarian intent; that in late August 2017, intervention might well have been a last resort, but that morally relevant facts suggest intervention might have been disproportionate and lacked a reasonable chance of success, such that, all things considered, it would have perhaps been impermissible.

Negative surprise in UN Security Council authorization: Do the UK and French vetoes influence the general public’s support of US military action?

Authorization of the use of force by the United Nations Security Council (UNSC) is believed to increase levels of public support for military action. While scholars have performed sterling research both in theory and empirics on the power of UNSC authorization, there is still much that we do not understand. In particular, we believe that it is necessary to conduct a further study on ‘failed’ authorization cases. As Terrence Chapman points out in his theoretical framework, the general public can derive valuable information based on which of the permanent members of the Council casts a veto; this in turn affects public attitudes towards the use of force. An expected veto cast by the perpetual nay-sayer would not serve as information for the general public. However, if the veto is cast by an allied state of a proposer of the authorizing resolution, the negative vote functions as an information short-cut signaling that the use of force presents a variety of problems, thus reducing public support for the military action. Using online survey experiments, we find supportive evidence for this argument. Our data also suggest that surprising negative information changes the perceptions of legitimacy, legality, public goods, and US interest in a proposed military action, but is unrelated to the perception of costs, casualties or duration.

The Use of Force to Prevent Recurrence of Conflict: Where are the Limits of Self-Defense?

The prohibition on the use of force is the central pillar of the international system of peace and security, and yet contemporary conflicts continue to stretch and pressure this foundational rule. This article examines how international law applies to the use of force in the territory of another state for the purpose of preventing a resurgence of violence after a conflict has ended. In the absence of consent or UN Security Council authorization, can self-defense be a justification for a state to use force to prevent the resurgence of conflict? In January 2018, the United States announced an intended policy of maintaining military forces in Syria after the end of the conflict with ISIS, in order to prevent the resurgence of conflict, prevent Syria from being a platform for jihadists, and prevent Iran from extending a sphere of influence in the area. The backdrop to this decision is the well-accepted determination that the United States decision to pull out of Iraq at the end of 2011 created space for ISIS to emerge as a reconstituted version of al Qaeda in Iraq. The strategic and policy decision to maintain a military presence so as to prevent a rebirth or reconstitution of one of the most brutal terrorist groups of recent decades appears straightforward. A more complicated question, however, is how to assess the lawfulness of the use of force in the territory of another country in order to prevent the re-emergence of violence. This article addresses a series of issues that stem from the broader question of whether a state can use force to prevent the recurrence of conflict, including whether the meaning of armed attack remains constant regardless of whether it is assessed in the absence of conflict or immediately following the end of a conflict, and how necessity and proportionality apply to such uses of force in accordance with the foundational tenets of the international law of self-defense. The first section addresses introductory issues, including a brief explication of the international law of self-defense, the meaning of the term “use of force” in international law, and the ways in which different types of conflicts end and how to define or identify such endings. The second section analyzes the proper trigger for the right of self-defense, an armed attack or imminent armed attack, and explores whether and how the definition of and threshold for an armed attack might differ in post-conflict scenarios. For example, the nature of the enemy may produce different perspectives on whether and when certain acts constitute an armed attack in this phase between the end of a conflict and a potential re-emergence of violence, as could the location of the acts, the types of acts, or even the manner in which the conflict ended. Finally, the third section queries how necessity and proportionality, the key criteria for the use of force in self-defense, apply or should apply to this proposed scenario. Understanding the scope and parameters of necessity and proportionality demands an inquiry into the legitimate aims of self-defense, as well as a nuanced look at how necessity and proportionality operate and what these two essential criteria are designed to achieve and safeguard.

Uniting for Peace Not Aggression: Responding to Chemical Weapons in Syria Without Breaking the Law

In April 2018 in response to a chemical weapons attack in Syria, the USA, UK and France attacked Syrian chemical weapons facilities without Security Council authorisation. The intervention was illegal but widely supported. The events epitomised a declining respect for the international rules on the use of force and for the international institutions charged with implementing those rules-a trend that has correlated with an escalation in violent conflict throughout the world. In other words, the credibility of international law and institutions is declining just as we need them most. This article describes the chemical weapons attack in Syria in April 2018, the retaliatory strikes, and the justifications and reactions that followed. It then describes the applicable legal framework (the UN Charter, humanitarian intervention, the responsibility to protect and the Chemical Weapons Convention), and the normative implications of the strikes. It is argued that international law recognises neither a right of humanitarian intervention nor a right to use force to prevent the use of chemical weapons. What international law does recognise, as articulated in the General Assembly's Uniting for Peace Resolution, is the residual responsibility of the General Assembly to maintain international peace and security when the Security Council fails. It is argued that where the Security Council has clearly failed to exercise its responsibility, it is incumbent upon the Council through procedural vote to refer the situation to the General Assembly, and it is then incumbent upon the Assembly to act on its secondary responsibility. This is an under-utilised procedure that allows concerned States to respond to atrocities such as those in Syria without breaking the law.

Peacebuilding and the Responsibility to Rebuild

The Responsibility to Protect (R2P) principle, encompassing the three symbiotically linked responsibilities to prevent, respond and rebuild, was unanimously adopted at the United Nations World Summit in 2005. The responsibility to rebuild needs to be re-elevated to prominence as an integral component of R2P: conceptually, normatively and operationally; and its institutional homes in the UN system and the Secretary-General’s role clarified. The 2009 three pillar formulation of R2P works well in most contexts, but is problematic in that it buries and loses sight of the critical importance of the original ICISS third ‘responsibility to rebuild’ and reconstruct war-raved societies to the point of being viable and self-sustaining once again. Because R2P was adopted at a world summit, I begin by highlighting the distinctive attributes of summit diplomacy. Next, I derive some key lessons from the major international interventions of the twenty-first century and recall the context in which R2P was originally formulated in order to highlight the distinctive features of its contribution to international policy. I then describe three dimensions of the responsibility to rebuild – recovery, reconstruction and reconciliation – and the strategies and steps needed for the rebuilding agenda. Recalling that Security Council authorization of R2P coercive operations is a non-negotiable prerequisite, I suggest that the responsibility to rebuild can be reintroduced and implemented through the administrative and political leadership roles of the Secretary-General.

MILITARY INTERVENTION IN THE GAMBIA: LESSONS FROM THE IVORY COAST, LIBERIA AND SIERRA LEONE

This article analyses the recent Economic Community of West African States (ECOWAS) military intervention in the Gambia, primarily focusing on possible legal bases for the enforcement action. It examines the political situation following the release of the election results and details the international response to the post-election situation in the Gambia. Among the legal bases assessed include United Nations Security Council authorisation of regional enforcement action under Chapter VIII of the U.N. Charter through Resolution 2337 (2017), intervention by invitation and consent through prior treaty. In so doing, the article also illuminates the plausibility that the ECOWAS military intervention may be considered as unilateral enforcement action, a point further stressed through an analysis of prior ECOWAS interventions, most notable, the interventions into Sierra Leone and Liberia. Moreover, the intervention in the Ivory Coast following the 2010-2011 post­election crisis is also examined in showcasing the situational similarities between those in the Ivory Coast and those in the Gambia. In so doing, the article inter alia, explores the international legal framework pertaining to the prohibition of the threat and use of force; analysing its nature as well as exceptions to it. Article 2(4) of the U.N. Charter, read together with Article 53, therefore form the backbone of the contribution.

“Safe areas”: The international legal framework

AbstractIn recent years there have been repeated calls for the establishment of so-called “safe areas” to protect civilians from the effects of hostilities in a number of contexts. The present article presents the international law framework relevant to the establishment and operation of such areas: the provisions of international humanitarian law on protected zones; the rules regulating resort to armed force, Security Council authorization and mandates for the establishment of such areas by multinational forces in the absence of agreement between belligerents; and the refugee and international human rights issues raised by such zones. Using the example of the “protection of civilians sites” in South Sudan, the article then highlights some of the operational challenges raised by safe areas. It concludes with some reflections on how to enhance the likelihood that belligerents will establish such protected zones in the future.

The ECOWAS Intervention in the Gambia - 2017

This is a book chapter that examines the legality of the 2017 ECOWAS intervention in The Gambia. This chapter commences with a factual description of the crisis that broke out in The Gambia in the aftermath of the 2016 Presidential Election, which ultimately led to the Senegalese-led ECOWAS intervention in The Gambia on January 19, 2017. It also describes the positions adopted by the international community, including international and regional organizations, during the crisis and after the beginning of the intervention. This chapter then discusses the potential legal justifications for the intervention. These are: pro-democratic intervention, intervention by invitation, and UN Security Council authorization. It argues that the ECOWAS intervention is legally unjustifiable on any of these grounds. This is because pro-democratic intervention is not recognized as a legal basis for intervention, and because the Security Council did not authorize ECOWAS to intervene in The Gambia. This chapter also finds that, judged by the established rules of jus ad bellum governing intervention by invitation, the intervention was illegal. This is because President-Elect Adama Barrow did not exercise effective control – or indeed any control – over The Gambia when he invited ECOWAS to intervene to enforce the results of the 2016 Presidential Election. This chapter does argue, however, that when viewed in combination with earlier ECOWAS interventions in Liberia, Sierra Leone, and Cote d’Ivoire, the ECOWAS intervention in The Gambia could signify a shift in the rules of customary international law relating to intervention by invitation, whereby a legitimate, but ineffective, government may enjoy the right to invite foreign intervention. Finally, this chapter argues that ECOWAS violated the prohibition on the threat of the use of force by issuing what essentially amounts to an ultimatum to force former Gambian President Yahya Jammeh to relinquish power.

Enforcement action by regional organisations revisited: the prospective joint Arab forces

ABSTRACTThe League of Arab States has decided to create the Joint Arab Forces (JAF). This article will assess the various legal issues that arise as a result of the creation and mandate of the JAF under the relevant rules of international law, mainly Article 2(4) of the Charter on the prohibition of the use of force and Article 53(1) prohibiting regional arrangements from taking enforcement action absent Security Council authorisation. It will also discuss the consequences for the founding treaty of the JAF should it violate those international rules. By doing so, this paper argues that the gap between such practices by regional organisations and international law is not as wide as it would appear to be at first glance, contrary to what has commonly been argued in the past.