The United Nations Security Council and War. The Evolution of Thought and Practice since 1945
About: This article is published in Journal of international humanitarian legal studies.The article was published on 2011-01-01. It has received 30 citations till now. The article focuses on the topics: International security & Collective security.
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01 Jan 2013
TL;DR: In this paper, a legal theory on the interplay between international human rights law (IHRL) and the law of armed conflict (LOAC) is presented, and the operational consequences of this interplay on targeting and operational detention in counterinsurgency.
Abstract: In the past decade, few topics have attracted more attention among international lawyers than the interplay between international human rights law (IHRL) and the law of armed conflict (LOAC). At the same time, the multiple - often multinational and extraterritorial - military operations in response to the ‘new threats’ to (inter)national security posed by non-State actors have incited a debate among security experts on how to counter insurgencies. This study ties these legal and security debates together, and in doing so focuses specifically on two traditional, but controversial kinds of military power, namely targeting and operational detention. Counterinsurgency doctrine recognizes both as indispensible instruments to defeat an insurgency. At the same time, they are seen as strategic hazards that are to be applied with consideration and care for fundamental counterinsurgency principles. To end today’s ‘wars amongst the people’, such as those in Iraq and Afghanistan, counterinsurgent States have come to realize that it is in their strategic interest to ensure that the conduct of their troops remains within the boundaries of the applicable law. However, especially targeting and operational detention raise controversial issues in IHRL and LOAC as well as their interplay, which is even more complicated by the specific characteristics of modern-day insurgencies. This study aims to contribute to the development of the legal theory on the interplay of IHRL and LOAC, and to value the operational consequences of this interplay on targeting and operational detention in counterinsurgency. It makes a considered plea to look beyond normative conflict between these two regimes and focus upon which legal and factual paradigm (hostilities or law enforcement) best fits a particular situation. Among the issues covered in this study are the concepts of insurgency and counterinsurgency; the conceptual underpinnings of IHRL and LOAC; the ‘humanization’ of armed conflict; the international law on the interplay of norms in general and the maxim of lex specialis derogat legi generali in particular. Other topics include the applicability of IHRL and LOAC in counterinsurgency operations; and the regulation of targeting and operational detention under IHRL and LOAC, including controversial topics such as the concept of direct participation in hostilities, the existence of a requirement of ‘least harmful means’ in the concept of military necessity, and the requirements pertaining to security detention in non-international armed conflicts.
46 citations
TL;DR: The authors investigates the impact of the 1999 intervention in Kosovo on the notion of sovereignty as responsibility and argues that the intervention provided an important catalyst that brought to light a broad consensus about sovereignty-as-responsibility and highlighted areas in need of refining.
Abstract: This article investigates the impact of NATO's 1999 intervention in Kosovo on the notion of sovereignty as responsibility. It argues that the intervention provided an important catalyst that brought to light a broad consensus about sovereignty as responsibility and highlighted areas in need of refining. International debate about the intervention brought to light a broad consensus around the principle that sovereigns do not have unlimited rights to treat their citizens however they please but highlighted concerns about the modalities of operationalizing such a principle. Not least, states were concerned about the potential for unilateral armed intervening. As such, the debate sparked by NATO's intervening revolved more around second-order questions about the authority to intervene and prudential questions about its impact on regional stability than on the question of whether international society should be engaged in a domestic humanitarian crisis. This pointed to the idea that a grand consensus on sovereignty as responsibility might be possible if its scope for justifying armed intervention was constrained to only those cases where the Security Council authorizes action. It was precisely this formula that emerged from the 2005 World Summit.
35 citations
Cites background from "The United Nations Security Council..."
...On the other hand, the majority of Council members argued that human rights abuse in Kosovo constituted a clear threat to regional peace and security (see Wheeler 2000, p. 259; Welsh 2008, pp. 548 /549)....
[...]
01 Jan 2015
28 citations
TL;DR: In this article, the authors assess the EU's performance in the UNSC by looking at two particular aspects of the EU-UNSC interaction: first, the broader political and financial contribution of EU member states in UNSC functioning and second, the engagement of EU states in the different stages of the UN Security Council reform process.
Abstract: Performance in the United Nations (UN) is a key element of the EU’s ‘effective multilateralism’ strategy, especially in the UN Security Council (UNSC) that constitutes one of the two most significant political organs of the organization. In this article, we assess the EU’s performance in the UNSC by looking at two particular aspects of the EU-UNSC interaction: first, the broader political and financial contribution of EU member states in the UNSC functioning and second, the engagement of EU member states in the different stages of the UNSC reform process. On the first aspect, the analysis suggests a positive EU performance, with some inevitable variation across the cases examined, reflecting different political constellation dynamics in the intra-EU deliberations. On the second aspect, there is a clear lack of a coherent, articulated EU position beyond the rhetorical adherence to the necessity of institutional reform, highlighting the minimal EU relevance for its priority stakeholders to meet the...
22 citations
Cites background from "The United Nations Security Council..."
...As regards the former, the UNSC is the most important political organ of the UN (Lowe et al. 2008; Malone 2007)....
[...]
TL;DR: In this paper, the concept of indirect speech is introduced and it can contribute to understanding "legitimacy talk" regarding international institutions, where one kind of speech occurs when one kind...
Abstract: This article introduces the concept of indirect speech and shows what it can contribute to understanding ‘legitimacy talk’ regarding international institutions. Indirect speech occurs when one kind...
22 citations
Cites background from "The United Nations Security Council..."
...For some observers, ‘representation’ has, in fact, become so central to the discussions of Security Council reform that it has become ‘a proxy for legitimacy’ generally (Lowe et al., 2008: 33)....
[...]
References
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01 Jan 2013
TL;DR: In this paper, a legal theory on the interplay between international human rights law (IHRL) and the law of armed conflict (LOAC) is presented, and the operational consequences of this interplay on targeting and operational detention in counterinsurgency.
Abstract: In the past decade, few topics have attracted more attention among international lawyers than the interplay between international human rights law (IHRL) and the law of armed conflict (LOAC). At the same time, the multiple - often multinational and extraterritorial - military operations in response to the ‘new threats’ to (inter)national security posed by non-State actors have incited a debate among security experts on how to counter insurgencies. This study ties these legal and security debates together, and in doing so focuses specifically on two traditional, but controversial kinds of military power, namely targeting and operational detention. Counterinsurgency doctrine recognizes both as indispensible instruments to defeat an insurgency. At the same time, they are seen as strategic hazards that are to be applied with consideration and care for fundamental counterinsurgency principles. To end today’s ‘wars amongst the people’, such as those in Iraq and Afghanistan, counterinsurgent States have come to realize that it is in their strategic interest to ensure that the conduct of their troops remains within the boundaries of the applicable law. However, especially targeting and operational detention raise controversial issues in IHRL and LOAC as well as their interplay, which is even more complicated by the specific characteristics of modern-day insurgencies. This study aims to contribute to the development of the legal theory on the interplay of IHRL and LOAC, and to value the operational consequences of this interplay on targeting and operational detention in counterinsurgency. It makes a considered plea to look beyond normative conflict between these two regimes and focus upon which legal and factual paradigm (hostilities or law enforcement) best fits a particular situation. Among the issues covered in this study are the concepts of insurgency and counterinsurgency; the conceptual underpinnings of IHRL and LOAC; the ‘humanization’ of armed conflict; the international law on the interplay of norms in general and the maxim of lex specialis derogat legi generali in particular. Other topics include the applicability of IHRL and LOAC in counterinsurgency operations; and the regulation of targeting and operational detention under IHRL and LOAC, including controversial topics such as the concept of direct participation in hostilities, the existence of a requirement of ‘least harmful means’ in the concept of military necessity, and the requirements pertaining to security detention in non-international armed conflicts.
46 citations
TL;DR: The authors investigates the impact of the 1999 intervention in Kosovo on the notion of sovereignty as responsibility and argues that the intervention provided an important catalyst that brought to light a broad consensus about sovereignty-as-responsibility and highlighted areas in need of refining.
Abstract: This article investigates the impact of NATO's 1999 intervention in Kosovo on the notion of sovereignty as responsibility. It argues that the intervention provided an important catalyst that brought to light a broad consensus about sovereignty as responsibility and highlighted areas in need of refining. International debate about the intervention brought to light a broad consensus around the principle that sovereigns do not have unlimited rights to treat their citizens however they please but highlighted concerns about the modalities of operationalizing such a principle. Not least, states were concerned about the potential for unilateral armed intervening. As such, the debate sparked by NATO's intervening revolved more around second-order questions about the authority to intervene and prudential questions about its impact on regional stability than on the question of whether international society should be engaged in a domestic humanitarian crisis. This pointed to the idea that a grand consensus on sovereignty as responsibility might be possible if its scope for justifying armed intervention was constrained to only those cases where the Security Council authorizes action. It was precisely this formula that emerged from the 2005 World Summit.
35 citations
01 Jan 2015
28 citations
TL;DR: In this article, the authors assess the EU's performance in the UNSC by looking at two particular aspects of the EU-UNSC interaction: first, the broader political and financial contribution of EU member states in UNSC functioning and second, the engagement of EU states in the different stages of the UN Security Council reform process.
Abstract: Performance in the United Nations (UN) is a key element of the EU’s ‘effective multilateralism’ strategy, especially in the UN Security Council (UNSC) that constitutes one of the two most significant political organs of the organization. In this article, we assess the EU’s performance in the UNSC by looking at two particular aspects of the EU-UNSC interaction: first, the broader political and financial contribution of EU member states in the UNSC functioning and second, the engagement of EU member states in the different stages of the UNSC reform process. On the first aspect, the analysis suggests a positive EU performance, with some inevitable variation across the cases examined, reflecting different political constellation dynamics in the intra-EU deliberations. On the second aspect, there is a clear lack of a coherent, articulated EU position beyond the rhetorical adherence to the necessity of institutional reform, highlighting the minimal EU relevance for its priority stakeholders to meet the...
22 citations
01 Jan 2012
TL;DR: In this article, the authors present a conceptual framework that links the motives and methods of intervention to civil war outcomes and post-war development and find no empirical evidence that external intervention is likely to make civil war shorter.
Abstract: Why do third-party interventions in civil wars sometimes positively contribute to fast conflict resolutions and post-war development and sometimes backfire? To solve this puzzle, I present a conceptual framework that links the motives and methods of intervention to civil war outcomes and post-war development. Two contrasting motives, self-interest and humanitarian concerns, lead to different intervention types. Self-interest prompts states to undertake unilateral and biased intervention. Humanitarian concerns encourage states to engage in multilateral intervention through the UN with a biased position. Interveners are more prudent in the use of force. They resort to violent methods only when critical security interests are at stake or when extreme humanitarian disasters occur. The method of intervention reflects interveners’ motives and significantly influences civil war processes and post-war development. The effects of intervention on civil war duration and outcome, however, tend to be inconsistent with interveners’ intentions. I find no empirical evidence that external intervention is likely to make civil war shorter. Whether interveners are motivated by humanitarian concerns or self-interest, they tend to fail to achieve their best outcome: a faster victory for their protege or a faster negotiated settlement. Instead, biased interveners succeed in retarding military victory by their protege’s rival. Neutral interveners play a role in delaying time until government victory, regardless of their intention. The effects of intervention on post-war development are somewhat consistent with interveners’ intention. Multilateral intervention motivated by humanitarian concerns tends to promote post-war well-being by increasing resources available for post-war reconstruction. On the other hand, unilateral intervention tends to impede the improvement of post-war quality of life. The use of force also has negative impacts on post-war development. The reason is that those interventions pursing self-interest
19 citations