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Diplomacy in Action

63. Legal Adviser address to International Institute of Humanitarian Law in San Remo (Sept. 9, 2005)


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Remarks of John B. Bellinger, III
Legal Adviser, U.S. Department of State

United Nations Security Council Resolutions and the Application of International Humanitarian Law, Human Rights and Refugee Law

International Conference
San Remo, Italy
September 9, 2005


I am delighted to have an opportunity today to address one of the more current issues related to the development and implementation of international law – the inter-relationship between Security Council action and specialized bodies of international law such as the law of war and human rights law. At the outset, I’d like to thank the International Institute of Humanitarian Law and its staff, President Patrnogic, and the Italian Government for hosting this conference and giving me an opportunity to address you today.

INTRODUCTION

We all know that the Council has traditionally played an important role in promoting the respect for and implementation of these specialized bodies of international law. However, over the course of the last twelve years, most significantly in the context of the international crises and armed conflicts such as those in former Yugoslavia, Rwanda and Iraq, an unmistakable trend has developed. In these situations, the Council has shown an increased willingness not only to stress the need to respect and implement these bodies of law, but – acting under Chapter VII authority when necessary to respond to threats to international peace and security – to create mechanisms that ensure accountability or to adapt and amplify these bodies of law to address the unique circumstances of the particular situation.

The United States has supported and encouraged this trend, and will continue to do so in appropriate cases. In taking such action, the Council is able – on a legal level – to forge flexible arrangements that are tailored to the problem at hand and overcome impediments that would otherwise exist if the operation were not taking place under a Chapter VII framework.


INTERNATIONAL LAW AND U.S. FOREIGN POLICY

Before turning to these questions, though, I want to make a few preliminary remarks about the U.S. Government’s view of the critical importance of international law in regulating the behavior of the international community.

Strengthening the rule of law internationally and promoting the development of international law has been and remains a fundamental objective of the United States. The rule of law has been an essential element of America’s democracy and a pillar of our foreign policy since the founding of our country.

The United States places great value on international law and institutions. Historically, the United States has been a key player in the negotiation of treaties and the establishment of international mechanisms for the peaceful resolution of disputes. We have always sought to expand respect for and adherence to the rule of law both in the domestic affairs of states and in their relations with each other.

Secretary Rice has repeatedly reaffirmed this commitment. In her words, “[o]ne of the pillars of that diplomacy is our strong belief that international law is vital and a powerful force in the search for freedom. The United States has been and will continue to be the world's strongest voice for the development and defense of international legal norms.” One of Secretary Rice’s first addresses was to the American Society of International Law, the most important gathering of international lawyers in the United States.

President Bush recently reiterated his commitment to meeting our international treaty obligations following the ICJ’s decision in the case concerning Avena and other Mexican nationals by determining that state courts should give effect to the ICJ’s decision. Just last week the United States Government filed a brief in state court in Texas informing the court of the President’s determination.

Shortly after the President’s decision to comply with the Avena decision, the United States renominated Judge Thomas Buergenthal to the ICJ. Judge Buergenthal has impeccable credentials and has enjoyed a remarkable career as an international law professor and leader in the formation and development of the Inter American Court of Human Rights. He is held in very high regard by the international community and his renomination reflects the importance the United States attaches to the work of the ICJ.

Even on issues such as those involving the ICC, where the United States has voiced political concerns, we have undertaken to work with the international community through the Security Council to a satisfactory resolution. Thus, Secretary Rice worked hard last spring to find an acceptable formula for a Security Council resolution to address the issue of accountability in Sudan. While the United States continues to maintain fundamental objections to the ICC, we did not veto UNSCR 1593, which referred the situation in Darfur to the ICC, because we recognized the need for the international community to work together to end the atrocities in Sudan and speak with one voice to bring to account the perpetrators of those crimes. The United States will continue to be a strong advocate of accountability and a critical contributor to peacekeeping and related humanitarian efforts in Sudan.

Both Secretary Rice and I have been speaking more frequently about the U.S. commitment to rule of law and international rules, and that is one reason why I wanted to join you today for this conference. In June, I visited the Hague to make the same points. I was privileged then to meet two of my co-panelists: Judge Koroma and Professor Pocar. It is to be expected that countries and lawyers will not always agree on the content of international law, but Secretary Rice and I want to state clearly that the United States is committed to honoring its international obligations and to ensuring respect for the rule of law.

THE SECURITY COUNCIL AND SPECIALIZED BODIES OF LAW

I’d like to turn now to our issue for today: the relationship between the Security Council and the development and implementation of international law, and in particular specialized bodies of law such as the law of war and human rights law. What trends have developed? Should the United States and others in the international community support these trends?

The Council has supported and shaped international law in a number of ways in recent years.

First, the Council has played an important role in encouraging States to respect and implement the law of war and human rights law through regular statements in Council resolutions.

In the context of addressing problems involving international peace and security, the Council regularly calls upon states to respect and implement their obligations under international law, including human rights law, refugee law, and the law of war.

Council activity in the law of war area also includes numerous resolutions related to children and armed conflict, the protection of civilians in armed conflict, and women and armed conflict. Largely, these resolutions have reiterated accepted norms established by various international instruments. Each resolution has also represented an opportunity for the Council to encourage, endorse, urge, and call upon States to respect and implement their obligations, often offering specific suggestions to promote implementation.

For example, since 1999 the Council has adopted a series of resolutions on the topic of providing better protection to civilians in armed conflict. These discussions have produced a series of resolutions, notably resolutions 1265 and 1296, and Presidential Statements from the Council as well as Reports from the Secretary General. In the same timeframe, the Council has passed six resolutions addressing Children and Armed Conflict. While these resolutions reiterate the duties of states under the relevant international instruments, the Security Council offers suggestions for the effective implementation of the obligations. More recently, the Council adopted Resolution 1612, which in addition to taking steps such as the establishment of new reporting and monitoring mechanisms, takes a significant additional step forward by specifically contemplating the possibility of imposing sanctions aimed against parties to armed conflicts that are in violation of applicable international law relating to the rights and protection of children in armed conflicts.

Second, the Council has increasingly taken action to ensure the application of the law of war, human rights law and other specialized bodies of law by creating, under the authority of Chapter VII of the U.N. Charter, institutions or mechanisms that are competent to enforce the law or provide accountability.

The two most important examples of Council action in this regard are the creation of the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to ensure that those responsible for committing war crimes, crimes against humanity and genocide on the territory of the former Yugoslavia and in Rwanda would be held accountable. These tribunals are obviously significant for their role in ensuring accountability, and they have produced an important body of decisions that will inform our interpretations of the law of war for decades to come.

A related example of this type of action is the approach taken by the Council in relation to the establishment of the Special Court for Sierra Leone in Resolution 1315. The “Special Court for Sierra Leone” was created jointly by the Government of Sierra Leone and the United Nations, through an agreement signed on January 16, 2002, but it is an “international body that is independent of any government or organization.”

Finally, in the most recent development in this area, last March the Council adopted resolution 1593 to refer the situation in Darfur to the ICC. From the U.S. point of view, important elements of the resolution included the provisions effectively excluding cases involving nationals of non-Rome State parties related to UN Security Council-established or authorized operations in Sudan, together with a political oversight role for the Council.

Finally, the Council has invoked its Chapter VII authorities to create specific legal frameworks to address threats to international peace and security. While these frameworks typically incorporate specialized bodies of law as part of the legal foundation of the Council’s response, there are cases in which the Council has adapted these bodies of law in order to meet the threat. This is a significant development.

Before turning to these cases, I want to pause on this proposition that Council action can have the effect of tailoring a specialized body of international law to better work in a specific set of circumstances.

The Council has authority under Chapter VII, when necessary for the maintenance of international peace and security, to authorize measures that may be inconsistent with otherwise applicable treaties. Under Article 103 of the UN Charter, “[i]n the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter prevail.”

The occupation of Iraq presents a good example of Council action in this area, and also provides an excellent illustration of the important role that the Council can play in resolving possible differences within the international community over what specific rules of international law govern the international community’s response to crisis.

Prior to the Iraq intervention, lawyers for the United States and its Coalition partners thoroughly analyzed a complex range of issues related to the expected occupation of Iraq. This review involved developing an understanding of how the law of occupation – in particular the Hague Regulations and Geneva Convention – would likely apply to Coalition activities. At the same time, there already existed a broad and complex range of Chapter VII Security Council resolutions addressing a number of issues, including Iraqi requirements to disarm, economic and arms embargos, and restrictions related to the production and sale of Iraqi petroleum products. As the Coalition analyzed the principles of occupation law, we were careful also to analyze the extent to which pre-existing Chapter VII resolutions included provisions that might themselves establish authorities or limitations that might interact with those otherwise applicable under occupation law.

In the course of this review, we found that we faced some difficult tasks in reconciling the legal rules. For example, how should authorities and limitations contained in the Hague Regulations related to the right of an occupying power to produce and use natural resources, and to expend their sales proceeds, be evaluated in light of provisions in Security Council resolutions that by their terms clearly limited the sale of Iraqi oil and use of oil proceeds?

Such questions were ultimately addressed by the Security Council in its series of Iraq resolutions – resolutions 1483, 1511 and, ultimately, 1546. Resolution 1483, adopted in May 2003 by the Security Council under Chapter VII of the UN Charter, provided for a distinct stage of transitional governance in Iraq prior to the assumption of authority by an internationally recognized, representative government. While resolution 1483, in its preambular paragraphs, recognized the specific authorities, responsibilities and obligations under applicable international law of the United States and its Coalition partners as occupying powers, it also set forth specific rules to govern particular aspects of the occupation.

Two examples illustrate the ways in which these resolutions helped to clarify the Coalition’s legal authority in administering Iraq.

First, returning to the question of administering Iraq’s oil resources, resolution 1483 modified the legal framework contained in prior resolutions and specified the authorities related to the sale of Iraqi oil and use of proceeds. Oil sales and use of proceeds are specifically authorized – indeed, they are facilitated by a grant of immunity by the Security Council – and subject to international mechanisms to guarantee the transparent use of proceeds for the benefit of the Iraqi people. Thus, it seems clear that resolution 1483 both clears away the previously existing Council limitations on oil sales and contemplates that oil proceeds may be used to fund long-term economic reconstruction projects to benefit Iraq (an activity that would at least arguably be outside the scope of authorities provided by the Hague Regulations).

A second example is the treatment of the political transformation of Iraq. Some commentators take the position that occupation law establishes limitations on the ability of the occupying power to alter institutions of government permanently or change the constitution of a country. Resolutions 1483, 1511 and 1546, however, remove any doubt that these are key objectives related to the political transformation of Iraq. The legal framework for political transition established by these resolutions has now taken Iraq through the occupation and two interim governmental stages, and – with the continued support of the international community – will hopefully culminate in the passage of a new Iraqi constitution on October 15.

The United Kingdom’s High Court of Justice has recently issued a significant judicial decision that specifically addresses another Iraq-related example of the phenomenon that we are discussing today – that of the authority of the MNF under resolution 1546 to detain security internees and the relationship of that authority to existing human rights law. In the Al Jeddah case, an individual detained by British forces in Iraq challenged the detention as inconsistent with human rights guarantees provided under the United Kingdom’s domestic law implementing the European Convention on Human Rights. The UK High Court was specifically called upon to address whether the rules established by a resolution adopted under Chapter VII could apply in lieu of the rules applicable under such treaties.

In assessing the language of Resolution 1546, the Court in Al Jedda concluded that internment was clearly authorized and, noting that the standard justifying detention is drawn from Article 78 of the Fourth Geneva Conventions, that the procedures contained in Article 78 govern the detention process.

The Court next turned to the question of whether the authorization provided by UNSCR 1546 could override the provisions reflected under the UK’s domestic law implementing the ECHR. The Claimant argued that such an authorization could not supervene human rights law. Again, the Court disagreed, finding that the provisions of the UN Charter, in particular those authorities established under Chapter VII of the Charter, clearly allow the Security Council, when necessary to discharge its primary responsibility for maintaining international peace and security, to authorize detention for imperative reasons of security even if such detention were inconsistent with provisions in human rights treaties, and that actions taken in pursuance of UNSCR 1546 prevail over other treaty obligations such as Article 5 of the ECHR.

CONCLUSION

To conclude, these examples represent a good illustration of the Security Council’s increasing willingness to address threats to international peace and security by invoking its Chapter VII authorities to create mechanisms to ensure accountability for specialized bodies of law, and to tailor those bodies of law when specialized legal frameworks are needed to effectively address the problem.

There are no doubt legitimate questions that could be asked about far to take such an approach. At the same time, we must recognize that – in order to address the most serious threats to international peace and security – the UN Charter clearly contemplates that the Council may need to specifically address matters normally within the sovereign control of states, or take action that has the effect of altering the obligations of states under international conventions. On this latter point, it is also worth mentioning that much of the conventional law of war – including the 1907 Hague Regulations and the 1949 Geneva Conventions – are based on concepts of conflict from the last century that do not necessarily address political and economic realities of the 21st century.

In this light, we believe that these authorities are critical if the Council is to be effective in dealing with some of the most difficult problems facing the world. We welcome the Council’s approach in these situations and will continue to support the Council in these efforts.



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