The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Security Council of the UN

Established under Chapter V of the UN Charter, the Security Council is the UN organ responsible for making decisions on issues concerning the maintenance of international peace and security, through a system of resolutions and votes.

Composition

The Council is composed of fifteen members, five of whom have a permanent seat (China, France, the Russian Federation, the United Kingdom, and the United States—collectively known as the P-5), and ten of whom are elected by the General Assembly every two years, with specific regard to equitable geographic distribution (Art. 23 of the UN Charter). The specific geographic allocation of seats was defined in a 1963 General Assembly resolution: three seats for African States, two for Asia, one for Eastern Europe, two for Latin America, and two for Western Europe and the rest of the world.

Some countries that have gained international influence are calling for a revision of the Charter and claiming the right to a permanent seat on the Security Council (Brazil, Germany, India, and Japan). They emphasize the fact that the world order has changed since 1945 and that the UN must adapt. To be adopted, however, such an amendment to the Charter must be approved by the current permanent five members.

Voting Procedure

Security Council resolutions are adopted by an affirmative vote of nine members, which must include the concurring votes of all five permanent members. The effective result is to give veto power to the P-5, since no resolution can be adopted if one of them is opposed to it (Art. 27.3 of the Charter).

This veto power can be avoided in two cases:

  • a decision on procedural matters can be adopted with any nine votes (Art. 27.2);
  • if a vote is the result of a decision taken under Chapter VI of the UN Charter (on Pacific Settlement of Disputes), any State party to the dispute in question must abstain from voting (Art. 27.3).

Functions and Powers

The Security Council exists “in order to ensure prompt and effective action by the UN.” The Member States have entrusted it with the “primary responsibility for the maintenance of international peace and security” (Art. 24.1).

To carry out its mandate, the Council may intervene in several different ways, as defined in Chapters VI, VII, VIII, and XII of the Charter.

Chapter VI: Pacific Settlement of Disputes

The Council acts as political mediator between States to help find peaceful solutions to disputes.

A situation may be brought before the Council by a State involved in the dispute or by any other State, or the Council may decide on its own to examine a situation (Arts. 33–35, 37). It can then make recommendations and suggest appropriate procedures. It may also carry out investigations.

In practice, most peacekeeping operations have been set up as a result of decisions taken under this Chapter. These operations are carried out with the agreement of the parties to the conflict, and their aim is to guarantee the compliance with a cease-fire or other types of accord reached by the parties. Such operations may be implemented by sending in observers, by positioning peacekeeping forces, or through other methods to monitor the agreement in question. These are all acts, therefore, that are carried out with the consent of the States involved.

The Security Council has the power—quite considerable from a legal standpoint—to qualify an act or determine its existence (Art. 39 of the UN Charter). There is no precise definition of a breach or threat to international peace and security, and the Council alone determines whether a given act constitutes such a threat or violation. The Council also determines whether an effort to achieve a pacific settlement of disputes has succeeded or failed and whether a threat to the international public order exists. It can then enact the necessary measures to end the crisis or threat, which may or may not involve the use of force.

The Security Council and the International Criminal Court (ICC)

The Statute of the International Criminal Court (ICC) responsible for prosecuting individuals accused of genocide, crimes against humanity, war crimes, and—once defined—aggression, preserves the Council’s prerogatives in situations reflecting a threat to, or breach of, the peace. The ICC also provides the Council with a new instrument of judicial pressure that can be applied to States in dealing with crises.

The ICC statute includes a provision allowing the Council to suspend a prosecution or investigation undertaken by the Court for a renewable period of twelve months (Art. 16 of the ICC Statute).

The Security Council can also refer a case to the prosecutor under Chapter VII of the UN Charter, thereby making compliance with the ICC binding on States. Hence, it can impose ICC jurisdiction on States that may not have ratified the ICC Statute (Art. 13 of the ICC Statute).

Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression

In cases that fall under the Council’s Chapter VII mandate, the Council disposes of increased powers. The decisions it takes in these situations are mandatory and binding on all Member States of the UN, including those involved in the conflict, and do not need any agreement on their part. The Council can choose different measures to maintain or enforce peace and security:

  • It can decide to adopt measures that do not involve the use of armed force, such as diplomatic and economic sanctions against States, non-state entities, or individuals (Art. 41 of UN Charter). Measures include complete or partial interruption of economic or diplomatic relations, or of rail, sea, air, postal, radio, or other means of communication; freezing of assets; or prohibiting some individuals from traveling.

Chapter VII allows the Security Council to subject some States to the jurisdiction of an international tribunal responsible for prosecuting war crimes, crimes against humanity, and genocide committed on the State’s territory. For example, two ad hoc International Criminal Tribunals were created to prosecute crimes committed in the former Yugoslavia and Rwanda. In 2005, the Security Council referred the situation in Sudan to the International Criminal Court to prosecute those responsible for crimes committed in Darfur. In February 2011, the United Nations Security Council also referred the situation in Libya since 15 February 2011 to the ICC prosecutor. This referral has given the ICC jurisdiction over States that were not party to the Rome Statute.

  • It may choose to employ forceful measures to maintain or restore peace (Art. 42).

In the case of armed intervention, the UN Charter includes a provision whereby the Council’s plan for the use of force would be implemented with the assistance of a Military Staff Committee (Art. 47); however, this Committee has never been functional.

Chapter VIII: Regional Arrangements

The Security Council encourages the pacific settlement of local disputes to be undertaken through regional agreements or agencies, provided that their goals and activities are “consistent with the Purposes and Principles of the United Nations” (Art. 52).

The Council can therefore utilize regional arrangements to enforce decisions it has taken relating to the maintenance or restoration of peace (Art. 53). In this manner, several peacekeeping operations have been “subcontracted” by the UN to regional organizations such as the North-Atlantic Treaty Organization (NATO) in former Yugoslavia, the Organization of African Unity (OAU—now called the African Union) in Liberia and Sudan, and the Organization for Security and Cooperation in Europe (OSCE) in Chechnya.

The Security Council takes on the legal responsibility for the way force is used (Art. 47.3 of the UN Charter). Any claims or complaints concerning failure to respect humanitarian law in implementing embargoes or in the use of international forces must be submitted to the Council.

In cases in which peacekeeping activities are delegated to regional organizations (e.g., NATO, OSCE, OAU, WEU), those entities take on the legal responsibility for the use of force. However, the Council remains responsible and therefore retains authority over these actions (Arts. 53, 54).

Chapter XII, which concerns the International Trusteeship System for non-autonomous territories, has fallen into disuse.

Finally, the Council is also theoretically responsible for establishing a system to regulate armaments.

Method of Operation

The Security Council is organized so as “to be able to function continuously” (Art. 28.1). If necessary, it can meet in an emergency and in places other than the UN headquarters (Art. 28.3). A situation can be brought to the attention of the Council by any Member State of the UN (Art. 35.1), as well as non-member States (Art. 35.2), the General Assembly (Art. 11.3), or the Secretary-General (Art. 99), or it may work on its own initiative (Art. 34).

The Council adopts decisions (generally referred to as resolutions), which are binding on States (Art. 25), or recommendations, which are not. Norms of international law adopted by international organizations pertain to the body of “soft law.” The force or status of law ascribed to such resolutions varies.

AggressionCollective securityInternational armed conflictInternational Criminal CourtInternational Criminal TribunalsInterventionNon-international armed conflictPeacekeepingPublic orderSanctions CommitteeSanctions (diplomatic, economic, or military)Self-defenseSoft lawUnited NationsVeto

For Additional Information: Knight, W. Andy. “The Future of the UN Security Council: Questions of Legitimacy and Representation in Multilateral Governance.” In Enhancing Global Governance: Towards a New Diplomacy? , edited by Andrew F. Cooper, John English, and Ramesh Thakur, 19–37. New York: United Nations University Press, 2002.

Roberts, Adams, and Benedict Kingsbury, eds. United Nations, Divided World: The UN’s Roles on International Relations . New York: Oxford University Press, 1993, esp. 63–193.

Weiss, Thomas, David P. Forsythe, and Roger A. Coate. The United Nations and Changing World Politics . Boulder, CO: Westview, 1997, 21–122.

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