Buch, Englisch, Band 19, 178 Seiten, Format (B × H): 157 mm x 235 mm, Gewicht: 417 g
Buch, Englisch, Band 19, 178 Seiten, Format (B × H): 157 mm x 235 mm, Gewicht: 417 g
Reihe: Hersch Lauterpacht Memorial Lectures
ISBN: 978-0-521-19413-6
Verlag: Cambridge University Press
Autoren/Hrsg.
Fachgebiete
- Sozialwissenschaften Politikwissenschaft Internationale Beziehungen Internationale Organisationen und Institutionen
- Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Kriegsrecht, Territorialrecht, Humanitäres Recht
- Sozialwissenschaften Politikwissenschaft Militärwesen Friedenssicherung, Krisenintervention
- Sozialwissenschaften Politikwissenschaft Internationale Beziehungen Vereinte Nationen, UN Organisationen
- Sozialwissenschaften Politikwissenschaft Militärwesen Nationale und Internationale Sicherheits- und Verteidigungspolitik
Weitere Infos & Material
Preface
Foreword by Kofi Annan
Introduction
The Iraq–Kuwait conflict
Appendix to Chapter 1: UN resolutions relating to the Iraq–Kuwait conflict
Bosnia
Appendix to Chapter 2: UN resolutions relating to Bosnia
Kosovo
Appendix to Chapter 3: UN resolutions relating to Kosovo
The Iraq War
Appendix to Chapter 4: UN resolutions relating to the Iraq War
Conclusions
Index
Introduction
In an interview with the BBC World Service on 16 September 2004, Secretary-General Kofi Annan said that the United States-led invasion of Iraq in 2003 had been an illegal act that contravened the United Nations Charter.1 The remarks which were teased out of him by a persistent interviewer provided an unexpected coda to a long-running saga, the origins of which could be traced back more than a decade.
The furore caused by these remarks in the United States was not due to the use of the word ‘illegal’ but to their timing. The characterization of the invasion of Iraq as illegal was hardly news. It is true that hitherto, the Secretary-General had done his utmost to avoid using so direct a condemnation of the war, but he had made it clear on numerous occasions that absent a specific authorization of the Security Council the use of force in the 2003 invasion of Iraq would not be and was not in conformity with Charter. The timing of the remarks, however, a few short weeks before a closely contested presidential election, had been seen by some in the Bush administration and by many in the neo-conservative community as a deliberate attempt to influence the outcome of the election.2
It is doubtful, to say the least, that any Secretary-General would be rash enough to attempt to influence the outcome of an election in any Member State, least of all in the United States, but the BBC interview and the uses to which it was put by the media and the chattering classes, especially in the United States, demonstrated the vulnerability of high-level international officials to pressure from both inside and outside government.
The interview had long-term and very damaging consequences for the United Nations as an institution and for the Secretary-General both in his capacity as the chief administrative officer of the Organization and personally. It contributed to the unleashing of a campaign against the Secretary-General and the Secretariat, the likes of which had not been seen since the days of McCarthy, and through a witch-hunt, otherwise known as the Volcker Inquiry, came within a paragraph of forcing the resignation of the Secretary-General. Kofi Annan in fact became the second Secretary-General within less than a decade to fall victim to American presidential politics, Boutros Boutros-Ghali having been forced out of office by an American veto during the 1996 presidential campaign.
What had attracted such visceral distaste of the Secretaries-General by the world's only super-power? Both Boutros-Ghali and Annan had been appointed like all Secretaries-General with the support of the United States and had enjoyed for a time excellent relations with Washington. But both had had the misfortune, or the challenge, of occupying the office of Secretary-General in the post-Cold War period when the use of force with or without Security Council authorization had become more prevalent in a variety of situations. Both had exhibited a tendency towards independence of thought which Washington found difficult to accept in what one commentator has described as an era of ‘foreign policy evangelicalism’.3 The importance of multilateralism, of the principles enshrined in the United Nations Charter and a preference for peaceful settlement of disputes over use of force except in the very last resort, all created a fertile ground for differences between the dominant member state and the Secretaries-General appointed to head the Secretariat.
Reference is made here to the Secretariat of the United Nations rather than to the Secretary-General. The term Secretariat is used here in the sense of Articles 7 and 97 of the Charter, i.e., the Secretariat as a principal organ of the United Nations comprising a Secretary-General and such staff as the Organization may require. There is a threefold significance in this for the purpose of examining the role of the Secretariat in regard to the use of force.
Firstly, the Secretariat's capacity to act autonomously stems from the organic nature of the Organization. The very ambiguity of the role of the Secretariat as outlined in Chapter XV of the Charter lends itself to such a view. More precisely there are a number of elements contained in Chapter XV that underscore such a role: the absence of clear indications as to the limits of the Secretariat's role; the broad implied powers of the Secretary-General under Article 99; and the exclusively international character of the responsibilities of the Secretary-General and of the staff. Historically, the powers of the Secretary-General and the concept of the international civil service have been the pillars on which the Secretariat's role has been constructed.
Secondly, while it is true that the Office of Legal Affairs has existed in one form or another from the inception of the Organization, and it is through that Office that formal legal advice is provided throughout the Organization, the Office of Legal Affairs is by no means the only Secretariat department which contributes to the formation of legal statements and pronouncements by the Secretary-General. This is especially true of the period covered in this book and when major policy speeches of the Secretary-General were being crafted.
Thirdly, if the Secretariat is to play a role in the public legal discourse it must have a voice and that voice can only be the Secretary-General.4 While all Secretaries-General develop their own conception of the office, and the degree to which the law may play a role in their individual conception may vary, historically all of them have identified with and understood the importance of the Charter principles and the role of international law in the exercise of their functions. This is particularly true of the three Secretaries-General who held office in the post-Cold War period. As Stephen Schwebel has noted, when the powers established by Article 99 are taken together with the ‘strategic world position’ of the Secretary-General as the person who ‘more than anyone else will stand for the United Nations as a whole’, it can be said that Article 99 together with Article 98 provides a legal base for the ‘political personality’ of the Secretary-General.5
The role of international law and of the international lawyer in the Secretariat of the United Nations is a complex one. It is after all a political organization. Needless to say the profile of that role has undergone considerable change over the years as the practice of the Organization has evolved but also as a reflection of the personalities, predilections and knowledge of individual Secretaries-General. In 1948, the British Year Book of International Law published an article entitled ‘The Development of International Law through the Legal Opinions of the United Nations Secretariat’.6 The author was Oscar Schachter who at the time held the position of Senior Legal Counselor in the United Nations Legal Department.
Schachter had very clear, one might say audacious, views as to the place of law in the United Nations and the role of the Secretariat. Notwithstanding the political character of the United Nations Charter, the actions of Member States and of the organs of the United Nations were not, in his view, simple ‘acts of policy’, free of legal restraints. For whatever reason, members of the United Nations found it necessary to ‘maintain that their acts are in conformity with legal principles and procedures’.7 In the context of a rules- and law-based Organization, as he saw it, the Secretariat of the United Nations had a particular role to play because apart from the International Court of Justice, the Secretariat is the only principal organ which is not composed of Member States. Its members, like the Court, serve in an individual capacity and they are required by the Charter not to seek or receive instructions from any government or any external authority. In other words, as international civil servants they had a duty to give impartial legal advice independent of the interests of individual governments.
This role was quite different from that of the International Court of Justice because, as Schachter put it, ‘in practice there is a need for impartial legal advice which can be given at the time a question is under consideration and which does not have the formality of a judicial pronouncement’. There was no formal authority for this general legal advisory function but the Secretariat at that very early stage in the history of the Organization had adopted a role which filled a practical need to provide day-to-day legal advice to the organs of the Organization.
The proposition that the United Nations Secretariat could or should perform such a general legal advisory function would today be regarded by many as a fantasy. Indeed the confident assertion in the 1948 British Yearbook article that the competence of the Secretariat to furnish legal advice, even in connection with controversial political issues before the Security Council, had been confirmed by the practice of that organ as early as 1946, today reads more like a historical artifact than a recognizable description of the role of the Secretariat. As Michael Wood observed in his 2006 Lauterpatch Lectures, the Security Council is not given to legal introspection and when it does seek legal advice it relies almost exclusively on the legal advisers of the missions and not the Secretariat.8
If that is the case and the legal advice of the Secretariat is not generally sought by the Security Council, or for that matter the General Assembly, on controversial political issues, why do the views of the Secretariat on the use of force matter? There are many reasons why these views matter and not only in a theoretical sense but in a very real political and operational sense. Firstly, as we have already pointed out, the Secretariat through the Secretary-General's political personality has an important voice in the public discourse concerning the legal aspects of the use of force. This was abundantly clear during the prelude to and in the aftermath of the Iraq War when the media was virtually saturated with opinions on the question of the legality of the war. It is a truism, as Schachter among others pointed out, that Member States as a general rule like to maintain that their acts are in conformity with the Charter and international law and in that sense the views of the Secretary-General are extremely important in the market place of public opinion. Secondly, even if the Secretariat's views are not solicited directly by the Security Council on matters involving the use of force, the fact that the Secretariat has a particular view on a given question becomes known to Member States in a variety of ways and may very well influence their approach to that particular issue. Thirdly, the international organization lawyer, as the late Sir Arthur Watts observed, occupies a unique position within the Secretariat of an organization like the United Nations in the space that he described as lying between the politically desirable and the legally defensible. It is from this vantage point that the lawyers are frequently called upon to provide legal advice to the Secretary-General and to the Secretariat departments. The legal advice to departments such as the Departments of Political Affairs and Peacekeeping has significant political and operational consequences while the advice given to the Secretary-General shapes his actions and informs his public pronouncements.
In this book I propose to examine the role and the views of the Secretariat regarding the use of force during a period of time that became known as the unipolar world. Specifically, the period in question is bracketed by the Iraq–Kuwait conflict of 1991 and the Iraq War in 2003, but it also included Somalia, Rwanda, Bosnia and Kosovo. I will examine the Secretariat's position regarding the use of force in four of these conflicts, the Iraq–Kuwait conflict, Bosnia, Kosovo and the Iraq War, each of which presented the Secretariat with very different challenges and sets of issues. The first of these presented itself as the dawn of a new world order, but soon came to be seen by the Secretariat as an incipient breakdown of the old order represented by the Charter in the face of a new kind of imperialism. The Bosnia conflict, which grew out of the breakup of the Yugoslav Republic in the early 1990s, placed wholly unrealistic expectations on United Nations peacekeeping and resulted in confusion and a disconnect between political decision-making by the Security Council and the realities on the ground. The relationship between the Security Council and the Secretariat in these years was fractured and polemical. The Kosovo conflict, coming so soon after the terrible events of Srebrenica, challenged the legal and moral authority of the Charter while at the same time offering the Secretary-General an opportunity to exercise his leadership at a time when the institutional political organs of the United Nations were divided. Finally, the Iraq War presented the Secretariat with the challenge of a use of force which it perceived as lacking in legitimacy and which to all intents and purposes was illegal since it was in breach of fundamental Charter principles.
In tracing and examining the role of the Secretariat with regard to the use of force in these conflicts my perspective is, of course, legal. But whether the legal issues raised were of a broad constitutional nature or of a very specific operational nature, they cannot be disassociated from the overall political framework and context in which they arose. I have attempted to present the issues as they arose and without the benefit of hindsight and I make no particular claim as to the wisdom of the Secretariat's views. History will be the ultimate judge of that.
1 Extensive segments of the interview were published on the BBC news on-line on 16 September 2004. The BBC's correspondent at the United Nations headquarters in New York pointed out that the Secretary-General had made similar comments before but in a more diplomatic way.
2 Randy Scheunemann, a former advisor to the US Defence Secretary, Donald Rumsfeld, told the BBC ‘I think it is outrageous for the Secretary-General, who ultimately works for the member states, to try and supplant his judgement for the judgement of the member states…To do this 51 days before an American election reeks of political interference’. See BBC news on-line, 16 September 2004. Mr Scheunemann's neo-conservative credentials are impeccable. In addition to Secretary Rumsfeld, he had been a foreign policy adviser to Senators Trent Lott and Bob Dole. In 2002 he was a founder of the Committee for the Liberation of Iraq and an enthusiastic supporter of Ahmad Chalabi, the Iraqi exile who was a Pentagon favourite in the run-up to the ‘liberation’ of Iraq. In 2008 he was a foreign policy adviser to Senator John McCain in his unsuccessful bid for the Presidency of the United States.
3 R. Skidelsky, ‘The American Contract’, Prospect, 1 July 2003.
4 For an insightful analysis of the role of the Secretary-General in promoting international law through respect for Charter-based principles, see
I. Johnstone, ‘The Role of the UN Secretary-General: the Power of Persuasion based on Law’, Global Governance, 9 (2003), 441–58
5 S. M. Schwebel, The Secretary-General of the United Nations: his Political Powers and Practice, Cambridge, Massachusetts: Harvard University Press, (1952), 299
6 O. Schachter ‘The Development of International Law through the Legal Opinions of the United Nations Secretariat’, British Yearbook of International Law, 91 (1948), 105
7 Ibid., 92.
8 M. Wood, ‘The UN Security Council and International Law’, Lecture Series, (Lauterpacht Centre for International Law, 2006)
