Peace and Security Achievements and Failures

IV. The Next Phase: A Call for Stocktaking

While there remains a general reluctance to impose the measures envisaged under Articles 41 and 42 of the Charter, the rate of use of economic measures has undoubtedly increased since the end of the Cold War. 1945 to 1990 saw just the arms embargo against South Africa of 1977, and the comprehensive economic and diplomatic sanctions mounted against Rhodesia from 1966-1979. Recently we have seen wide-ranging sanctions against Iraq from 1990; an arms prohibition on the totality of the former Yugoslavia since 1991, an arms embargo against Somalia from 1992, broad economic sanctions against Serbia and Montenegro from 1992, an arms embargo against Liberia in 1993, selectively tailored sanctions against Libya from 1992, economic measures directed against Haiti in 1993, and the UNITA held areas of Angola in the same year.

The tempo is manifestly increasing, even if the imposition is somewhat selective in the sense that other States meriting such a response have escaped sanctions. Even when acts manifestly contrary to international law and the Charter have occurred - the Moroccan military occupation of the Western Sahara, the Israeli group expulsion of the Hamas, the Indonesian occupation of and human rights violations in East Timor, for example, - the Security Council has retained the right to seek a solution that does not involve the imposition of sanctions.

As for military enforcement, it remains the case that Korea in 1950 and Iraq in 1991 are the only two examples. The precise status of each remains a matter of debate. In both, determinations under Article 39 were made. In Korea, States were called upon to offer assistance to South Korea in its self-defence under unified command, making it uncertain whether the action was under Article 42 (notwithstanding the failure of the Security Council to have concluded agreements under Article 43) or under Article 51 (though no Security Council pre-authorization would then be needed). And in the case of Iraq the early resolutions carefully referred to Article 51 as well as to Chapter VII - and those resolutions were affirmed in Resolution 660 which authorized the coalition of States to take all necessary measures to secure the objectives set out in the earlier resolutions. Again, the same uncertainty exists as to whether this should properly be regarded as an Article 42 or Article 51 action.

It also remains the case that - in the absence of the agreements envisaged under Article 43 of the Charter - the United Nations has never yet decided upon military enforcement. The reasons for the inability of the UN to put in place the military enforcement measures of Articles 42-48 during the Cold War are well rehearsed. By failing to go back to these possibilities at the end of the Cold War the Security Council has deliberately ensured that it will not have an effective enforcement capability, in which military action could be rapidly ordered, and perceived as being on behalf of, and participated in by, the UN membership as a whole. It must in fairness be said that there has been a general consensus - albeit tacit - that the Article 43 route was not the one to follow.

It necessarily follows that the only alternative is pragmatism. For all the rhetoric at the end of the Gulf War that the UN would now be able to act as it was meant to under the Charter, and enforce the peace, it is clearly not so. It has chosen not to be able to act as it was meant to under Articles 42-48; and the appetite for enforcement has turned out to be extremely limited. It is perceived that only a handful of States have an enforcement capacity. They find the burden onerous, financially, militarily - and in terms of public opinion. The concomitant of a growing global democracy is a free press and the opinion there expressed is often nationalistic. The refusal to recognize, from the outset, and most certainly at several discrete moments such as the shelling of Dubrovnik and the destruction of Vukovar, the situation in the former Yugoslavia as violence across State lines recognized as such by the international community, and thus requiring military enforcement, is wilful. It reflects a variety of factors - a desire not rapidly to repeat the Gulf experience, a sense that on this occasion there was no national interest, and a despair about being able to `impose a political solution'. A State which is attacked in a manner of extraordinary barbarity is entitled to expect the Security Council to take military action under Chapter VII and not disqualify itself by reference to dispute settlement difficulties under Chapter VI. The constant invocation by European national leaders of the lack of a national interest in military enforcement in the former Yugoslavia merely evidences a problem at the heart of the `new style flexible measures'. Collective security under the Charter was never meant to be predicated upon short-term national interest. It was the long-term interest in international peace and security that was to be the motivating factor. If the enforcement of peace is to be left to a decision by those with the capability as to whether an attacked State `matters' or not, the reality is that the UN has no real collective security capability at all. And insisting that situations manifestly calling for enforcement are in fact situations calling for the new style UN peace-keeping operations is simply a turning away from unpleasant realities.

While it is, in my view, lamentable that States have failed to seize the opportunity offered by the end of the Cold War so far as effective UN enforcement is concerned, the lessons that the UN itself seems to draw from the Bosnia debacle (and indeed from the very different lessons of the failure in Somalia) are disturbing. Instead of deciding by reference to objective criteria the category of UN action required, the contemporary thinking seems to be resolutely against differentiation, with events being allowed to dictate the character of the operation, which might change from moment to moment, or have within it totally irreconcilable elements:

[T]he principles and practices which had evolved in the Cold War period suddenly seemed needlessly self-limiting. Within and outside the United Nations, there is now increasing support for `peace-keeping with teeth'. When lightly armed peace-keepers were made to look helpless in Somalia and Bosnia, member states and public opinion supported more muscular action... Today's conflicts in Somalia and Bosnia have fundamentally redrawn the parameters. It is no longer enough to implement agreements or separate antagonists; the international community now wants the United Nations to demarcate boundaries, control and eliminate heavy weapons, quell anarchy, and guarantee the delivery of humanitarian aid in war zones. These are clearly the tasks that call for `teeth' and `muscle', in addition to the less tangible qualities that we have sought in the past. In other words, there are increasing demands that the United Nations now enforce the peace, as originally envisaged in the Charter.¹⁷

Several observations may be made, beyond noting the tendency to conflate all experience, to reject all differentiation. Any demands that `the United Nations now enforce the peace, as originally envisaged in the Charter', will certainly not be met by treating situations requiring enforcement as requiring `muscular peace-keeping'. That is not what the Charter envisaged. What the Bosnia experience shows is that when States put peace-keepers in place - including those with the prime mandate to deliver humanitarian aid - then all realistic prospect of `enforcing the peace' has gone. The enforcement of the peace of the victims of violation of Article 2(4) had already effectively been put aside by this selection of method of UN operation.

And insofar as resolutions make some later provision for protection, such as the establishing of safe havens, enforcement of these provisions also becomes intertwined with the protection of the UN personnel. Thus Resolution 836 authorized UNPROFOR `acting in self defence, to take the necessary measures, including the use of force, to reply to bombardments against the safe areas by any of the parties'. (Italics added). The safety of the peace-keepers becomes in effect the sole consideration. And, even then, fear of reprisals against national contingents serving in the UN operation becomes the dominant factor, and there is no realistic `enforcement' of any sort - even when the NATO capability and the Security Council authority to act has been put in place. In February 1994 the killing of 68 civilians in Sarajevo by mortar fire led to an unprecedented response. The UNPROFOR Commander threatened to call in NATO airstrikes against Serb gun positions in the hills surrounding Sarajevo unless the guns were removed from range or placed under UN control. The ultimatum was complied with. In early April 1994 NATO executed two air support missions directed against Bosnian Serbs in the Goradze area. The request was made by UNPROFOR to protect UN military observers and liaison officers on the ground, but it also contributed to ending the Serb shelling of the city. But the UN has not followed up on that experience of the importance of credible enforcement. In later comparable circumstances of flagrant violations of the safe areas, ultimata for compliance have been indicated and ignored, with no military consequence and at the end of 1994 the siege of Bihac (another `safe area') and associated shelling and loss of life went unpunished. The violations were instead responded to by improved UN offers on the diplomatic front.

The failure to protect the designated safe areas publicly revealed the profound disagreements within the expanded UN peace-keeping system. NATO had put in place the capacity to respond to UN requests for air strikes. But when these were asked for by the Nordic battalion in Tuzla, they received neither the support of the UN Commander in Bosnia, Sir Michael Rose, nor of Mr. Akashi, the Secretary-General's Special Representative. The UN policy was that such strikes could take place only when an attack was in progress. It hardly needs to be said that, with the sort of NATO-UN arrangement in existence, that condition will hardly if ever be met. The policy is an invitation for frequent attacks on the UN of short duration. NATO publicly expressed its disquiet at UN prevarication.

In May 1995 a negotiated truce ended, with the seizure by the Bosnian Serbs of heavy weapons that had been handed over to the UN and the use of such weapons in the Sarajevo `safe area'. NATO airstrikes were once again ordered. The Bosnian Serbs responded by seizing 370 UN peace-keepers as hostages. This crisis was eventually resolved by diplomacy. The UN insisted that it had made no promises in order to secure the release of the hostages. But no overt promises need to be made - no one can doubt that the UN cannot in the future envisage even very occasional airstrikes while its peacekeepers are in place.

And the lesson still has not been learned. The lesson is that mixed mandate actions are doomed to failure.¹⁸ Rather than acknowledge this, the response was an attempt by the United Kingdom, France and the Netherlands to establish a UN Rapid Reaction Force, whose function - never entirely clear - was said to be to protect UNPROFOR from a repeat of the humiliations of May 1995 and perhaps also to be part of a NATO operation for the withdrawal of UNPROFOR, should that later be decided upon. But its role was clearly not in any direct sense to protect civilians in the various `safe areas' or to ensure the fulfilment of UNPROFOR's mandate generally. Indeed, the Secretary-General's Special Representative was at pains to assure the Bosnian Serbs that the new UN unit would present no threat to them. If NATO's involvement already represented a mixed mandate in the former Yugoslavia, then the proposed Rapid Reaction Force constituted a further mixing of the mandate. For reasons already identified its desirability is highly dubious. In any event, it is unlikely to be put to the test as the idea that it should be funded by the UN generally has not been acceptable to the United States.

It is timely to call a pause and to take stock of the recent efforts of the UN in the field of peace and security. Some tentative conclusions may be advanced.

1. The UN must face the issue of an enforcement capability and its responsibilities in this regard. The authorization of `coalition forces' appears to be all that is on offer (and the United States has also made clear that it would not place its forces under unified command). This technique is not per se unacceptable, but it is also clear that this ensures that enforcement will only take place when there is a perceived national interest in doing so on the part of the major military powers. States, especially those ill-placed to rely on self-defence alone, are entitled under the UN Charter to turn to the Security Council in case of armed attack. The members of the UN have turned away from the opportunity provided by the ending of the Cold War to rectify this situation.

2. While the rigidities of the Cold War should not constrain us in the forthcoming phase of the UN's life, this does not mean that all legal considerations should be put on one side, and that the only factors should be `pragmatism', `flexibility', and `dealing on a case by case basis'. The techniques of classifying and categorizing provide an operational discipline for protagonists and participants alike. A continued understanding of normative ground rules about the circumstances in which enforcement on the one hand, and peace-keeping on the other, is to be regarded as appropriate, is the best guarantee of respect for the UN and the achievement of its objectives. Excessive `flexibility' is a recipe for operational uncertainty and non-compliance by the protagonists.

3. While the desire by the UN Secretariat to acquire `flexibility' is understandable, its disadvantages have been underestimated. It appears now to be a source of pride to the UN that `peace-keeping will have to be developed on a case by case basis' and that `No two conflicts which may merit the involvement of international peace-keeping forces are alike'.<sup>19</sup> But pragmatism must have its limits if contributors and protagonists are to know what to expect. We seem today to have swung so far from principle towards `flexible pragmatism' that there is no clear understanding at all of what the UN may, and should, do in different particular circumstances.

4. Enforcement should remain clearly differentiated from peace-keeping. Peace-keeping mandates should not contain within them an enforcement function. To speak of the need for more `muscular peace-keeping' simply evidences that the wrong mandate has been chosen ab initio. Although the UN may endeavour to separate out these `combined' functions (through peace-keeping lying with the UN, and `enforcement-in-support' lying with NATO), the protagonists will inevitably perceive calls from the UN to NATO as entailing a loss of UN impartiality. And the incoherence in decision-making and the confusions in the varying command structures encourage contempt for a UN seen as weak as well as partisan.

5. It follows from all of the above that the technique of `safe havens' is not to be regarded as desirable.

6. There is little advantage, and considerable disadvantage, in setting classic peace-keeping on one side in favour of the new `mixed function peace-keeping' enumerated in Agenda for Peace and since. Again, this has served to sow the seeds of uncertainty and confusion, while placing in jeopardy - perhaps irredeemably - all that had so painstakingly been built up over the years in the UN peace-keeping operations.

7. No peace-keeping force should be put in the field without prior agreement on a cease-fire and a realistic political prospect of the seriousness of that undertaking. The key peace-keeping function should remain the security of the peace on the ground. Only then should ancillary functions be added. Humanitarian assistance, electoral observation, human rights monitoring should be additional to the securing of peace, and not in lieu of it. Never again should the UN engage in a form of peace-keeping which endeavours to provide food while allowing the slaughter to continue.

8. The experiment in `achieving a secure environment' - perhaps through the efforts of individual States - ahead of the placing of a UN peace-keeping operation to maintain the peace, and perhaps engage in ancillary functions, should be allowed to continue. The Somalia and Haiti experiences point to date in somewhat different directions. The lesson seems to be that the provision, in a first phase, of a secure environment so that the UN can proceed to the second, humanitarian assistance phase, is only likely to be achieved if a dictatorial government is to be required to depart and a new democratic government installed. When there are collapsed structures of State authority or attempts are made to `deal' with human rights violating governments, the mission will almost certainly not succeed.

9. It remains an inescapable truth that financial commitment is the yardstick of seriousness of intention about maintaining peace. In the absence of material provision, that is no real political will to keep the peace. Throughout the history of the United Nations its members have not been willing to pay the modest sums needed to secure the performance of its tasks. In this, alone, nothing has changed since the end of the Cold War. The financial arrears in July 1994 stood at nearly 30% higher than in July 1993 - when the situation was already very serious.²⁰ The traditional financial irresponsibility continues unabated in this new era.

17 K. Annan, UN Under-Secretary General for Peacekeeping Operations, NATO Review, October 1993, at 4.

18 See Higgins, `The New United Nations and the Former Yugoslavia', 69 International Affairs (1993) 465. See also Zemanek, `Peace-keeping or Peace-making', in N. Blokker and S. Muller (eds), Essays in Honour of Henry Schermers, Vol. I.

19 K. Annan, NATO Review, October 1993, at 5.

20 For details, see the speech given by the Secretary-General on 21 March 1995 at Yale University, `Managing the Peace-keeping Challenge', SG/SM/5589, 22 March 1995.

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