Symposium on International Conflict and Security Law: A Research Handbook – International Peace through International Law

Symposium on International Conflict and Security Law: A Research Handbook – International Peace through International Law

[Vesselin Popovski is Professor and Vice Dean at Jindal Global Law School.]

International Conflict and Security Law, edited by Sergey Sayapin, Rustam, Atadjanov, Umesh Kadam, Gerhard Kemp, Nicolás Zambrana-Tevar, and Noelle Quenivét, is one of the most comprehensive volumes addressing the complex relationship between international law and peace and security, that I have ever read. It should be on everyone’s desk. The fundamental reach and cover of relevant issues and the extraordinary depth of the analysis of the book can serve in multiple capacity: as a reference book for international legal scholars, as a tour de l’horizon across a variety of timely global phenomena for researchers, as an inspiration for international lawyers and policy makers to develop further international law, both in terms of codification and implementation, and make the world a safer place.

This review touches upon five of the book chapters, adding a few thoughts to their otherwise excellent structure and coverage, without pretending to examine the many other essential issues reflected in the book.  

Anicée Van Engeland’s chapter “Human Rights: Between Universalism and Relativism” is engaging, ground-breaking and innovative. The author critically assesses how universalism focused on human rights’ similarities across borders, but left differences to the margin of appreciation, which in itself is problematic not only for the universality perspective, but consequently for peace and security, too. The chapter addresses controversial issues and asks fundamental questions: for example, whether international community should approach female circumcision as part of a culture, or accept child labor as part of a liberal reality. Should we compromise on the prohibition of torture in case of terrorism? Are we ready to accept different beliefs, values and practices that undermine universality, and endorse violations of these very same universal human rights? Can the acceptance of specificities endanger liberal peace?

Van Engeland argues that one needs to discuss the principle of universality in relation to liberalism and link it with liberal peace, as to fully apprehend human rights. The need to re-define universality in a post-colonial world arises from the fact that human rights, given their origins, spokesmen and preoccupations, have often been a vocabulary of the centre against the periphery, a vehicle for imperialism, rather than a safeguard from it. The UN interventions conducted in the name of human rights carry a neo-liberal agenda, and ensuring that human rights are universal has effectively internationalized this agenda. The big challenge remains whether the human rights discourse can create a universalist ethic, not premised on denial of difference or a nostalgia for a lost, imagined wholeness, not limited to a fantasy life of nations and to international community recreating the violent exclusion of the alien or the foreign. The alternative of regarding human rights as a neo-colonialist enterprise is to transcend the universalist-cultural debate; to re-build universality from the bottom-up, based on cross-culturalism; to re-open the debate on the entire normative scheme of the human rights corpus, and to reconstruct it. All societies and cultural settings must participate, if this new corpus is to claim genuine universality.

I would summarize that, as far as human rights were taken by the European Enlightenment and utilized in colonial mission civilisatrice, they certainly need to re-gain their universality, which dates centuries back before the Enlightenment. But I would not demand, as Mutua and others do, a “brand new, bottom-up universalism, that rejects Western hegemony, thereby questioning the liberal peace and security agenda”. The universality was always there, even back in the ancient times. It was not “the West”, who made human rights “universal”, trying to impose them on “the Rest”. Accordingly, human rights should not become a space for contest again, repeating exactly the mistake of “the West” to present a static attribute or characteristic of human rights to be either endorsed or rejected. A global all-inclusive action through politico-legal engagements, capacitating billions of people everywhere in all continents is the very lifeblood of human rights. The “Rest” should not blame the “West” for imposing the human rights universality on them, rather, it should claim the origins of human rights a priori. Human rights are not “Western”, but universal in their origin, and the “Rest” should not stop demonstrating this every day, instead of talking about cultural contexts. 

Onder Bakircioglu’s chapter “The Use of Force in International Law” is another jewel in this rich crown of excellent book contributions. I could not agree more with the author’s disappointment as to how – as early as in the 1945 San Francisco Conference – many States expressed concerns that the veto power infringed the idea of sovereign equality, and that a rigid designation of permanent five (P-5) members in the Security Council (SC) eventually rendered the UN system unresponsive to changing political realities. During the Cold War, the SC exclusive authority to intervene in serious international crises was practically unusable due to the differences between the P-5, who time and again casted vetoes to defend or further their national interests and foreign policies.

Bakircioglu correctly points out that ever since 9/11, and ensuing US military operations in Iraq and Afghanistan, followed by Russian interventions in South Ossetia (2008), Crimea (2014) and the rest of Ukraine (2022), international community has politically split, and the SC has been unable to carry out its primary functions, because any permanent member could block any collective action, particularly when such a State was directly involved in threatening international peace. When hegemonic powers violate the principles of the UN Charter and escape international accountability and sanctions through using the veto, very little can be done for peace and security. Some of the P-5 not only disintegrated from “guardians of peace” to the worst aggressors, but also protected friendly countries from accountability for genocidal policies (Myanmar), war crimes (Yemen, Gaza) and crimes against humanity (Sudan, Syria).

With this in mind, I would go further than Bakircioglu and explicitly demand elimination of the veto, ideally through Art. 109 Review Conference of the UN Charter. Nothing less would ensure that the future generations will live in peace. The right of veto, in the expression of the Ukrainian president Zelensky, became “the right to die” and it is time to abolish it. In unrivalled irony, Putin and his circle so easily and repeatedly denied exactly what their grandparents died for in World War II – to live in a world without wars – that Russia today does no longer deserve the permanent membership and the veto in the Council. The fact that two of the P-5, France and Britain, have never used their veto since 1989, signals that there won’t be any drama, if the other three, culpable of the continuing reining impunity for international crimes, are also denied the veto. A 2/3 majority in the General Assembly, lead by the “Global South”, should simply adopt a Resolution calling for Art. 109 Review Conference to amend the Charter,      instead of endlessly complaining about the right of veto and the arrogance of the P-5.

The next chapter by Rossana Deplano provides a detailed overview of all Security Council Resolutions adopted between 1946 and 2017, presenting the increase and significance of thematic, in addition to country-specific, resolutions, especially after 1999. Posing the question as to whether the SC is bound by, and refer to, international law, Deplano solidly demonstrates how the SC thematic resolutions – on protection of civilians, on the role of women in peace, on children in armed conflict, etc. – signify the SC commitment to international law. After a comprehensive analysis of the thematic resolutions, especially on protection of civilians, Deplano confirms the bias, where reference to binding international law instruments has a largely symbolic value and is applied in a selective way. This eventually disempowers the SC as a guardian of international peace. One plausible consequence can be that States may be more tempted to take unilateral or regional action to address humanitarian situations whenever the SC is deadlocked, on the basis that it has failed to implement binding obligations stated in its previous resolutions.

To add some examples to prove this hypothesis: Liberia in 1992 and Kosovo in 1999 are two situations where ECOWAS and NATO, in the absence of SC actions, intervened to address humanitarian crises. Similarly, when ISIL threatened the Yazidi minority in Syria in mid-2010s and facing the Russian veto, President Obama ordered unilateral support to protect the Yazidis from potential mass atrocities. The fundamental problem with P-5, using Chapter VII of the Charter only when it is convenient for them, continues to persist. The requirement in Art. 24(1) that the SC should act on behalf of all member-states, has been forgotten, and this is visible in the inconsistency of the SC practice dealing with threats to international peace and security. The P-5 utilize Chapter VII when it is in their interests, but forget about it when they prefer to deal with situations unilaterally. Syria is a good example, where the P-5 followed entirely their domestic political agendas and adopted very few and very “minimalistic” resolutions. The net result is that although we have generally well established mechanisms in Chapter VII, the veto power or the lack of political will by the P-5 block these mechanisms and render them irrelevant.  

The evolution of the SC towards thematic resolutions – which I covered in-depth in my 2014 Routledge book The Security Council as Global Legislator (I wish Deplano mentioned it) – has faced mixed developments recently. The rising antagonism in the SC after the Russian annexation of Crimea and the repeated Russian vetoes on Syria in the last decade put on hold the expected legislative role of the SC, despite some progress made on the working methods. In my book I expressed hopes that more thematic resolutions would be a positive development, as the veto is usually not applied to these resolutions. Deplano also argues that thematic resolutions delineate a different aspirational trajectory to maintain international peace and security, and that it is realistic and normatively desirable to create and consolidate theoretical frames providing a principled approach to collective security in the text of resolutions, with a view to invoke them as a benchmark of legitimacy of SC action or inaction. Doing so would create forms of political accountability of the SC before the international community for failure to implement the principles of international peace and security, it itself has elaborated, thus circumventing potential deadlocks caused by the veto. In other words, putting the SC under constant pressure would force it to be more proactive, and less speculative, in reaffirming de facto, and not only de jure, its status of guardian of international legality on a daily basis.

The thematic resolutions often follow and evolve from country-specific situations, for example SCR 1373 on counter-terrorism came after the SC addressed situations involving terrorism in the context of Libya (1991-92), Sudan (1996) and Afghanistan (1998-2001). The thematic resolutions are rarely vetoed exactly because they don’t attack a certain government. It is difficult, almost unthinkable, how a permanent member would veto a resolution, which appeals for protection of civilians, or expresses concerns with children in armed conflict outside of the context of a specific government, disregarding and violating these norms. However, it is disheartening to see how a permanent member may agree on all resolutions on protection of civilians and on children in armed conflict, but then veto a dozen of draft resolutions aimed at exactly the accountability of the Syrian government for disregarding civilians and children. Even worse, the same permanent member itself engaged in abducting tens of thousands of children from the occupied parts in Ukraine, violating these same thematic resolutions which once it supported.   

Deplano continues her excellent argumentation, that the thematic resolutions not only represent decades-long process of progressive reliance on international law as an objective language of communication, but also embrace the language of human rights as a reaction to outside pressure coming from NGOs and media, especially in the aftermath of humanitarian disasters that could have been stopped or prevented. As a result, the engagement of the SC with human rights has been mostly perceived in the negative as insufficient and inefficient. For example, the SC has always concerned itself with the protection of civilians, but ultimately, improving the UN civilian-protection efforts will depend more on the evolution of norms and practices external rather than on anything internal to the SC. Deplano uncovers inconsistent patterns of behaviour of the SC in the field of human rights, finding confirmation in the number of resolutions adopted to address selected conflicts only taking place on the African continent and after much outside pressure. By focusing on the role of thematic resolutions, the findings of the empirical study appear to point to the opposite direction: namely, that the SC has progressively committed itself to protect human beings, in addition to preserving State sovereignty, as a matter of principle rather than convenience.

The presence of the thematic resolutions as an established feature of the recent practice of the SC reveals an inherent tension between the formal commitment to uphold international law, as recognized in the text of resolutions, and the concrete steps taken to actualize it. The fact that the thematic resolutions mostly appear in the text of a handful of country-specific resolutions suggests that the reliance on international law by the SC is largely based on convenience. Specifically, it seems that the references to international legal instruments contained in the text of resolutions serve the purpose of justifying intervention in relation to selected conflicts rather than activating it as a matter of law. In this sense, international law turns out to be a form of apology. On the other hand, the fact that the thematic resolutions do not address any conflict in particular means that they lack concreteness, and thus resemble a form of utopia. The two conceptual oppositions, however, are not irreconcilable. Between the infinite flexibility of international law (apologism) and the moralistic nature of the law (utopianism), it is possible to assess the new roles to threats to international peace and security against a different background: one that reimagines the relationship between facts and norms in international law as a means to rethink the idea of an international rule of law. Accordingly, understanding the prospects offered by the innocent use of international law requires appreciating the SC’s conception of the rule of law, which in turn informs its conception of collective security.

I would only add that the concept of “international rule of law” is problematic, as far as we can have various understandings of it. I addressed the multiplicity, and the confusion, of what is international rule of law, in my book International Rule of Law and Professional Ethics (Ashgate 2014). By international rule of law, do we mean that respect for international law becomes itself a solid rule in international relations? Or does the domestic rule of law become “international”, by a majority of states gradually respecting the separation of powers between the legislative, the executive and the judiciary? Or do we define “international rule of law” as a commitment for the separation of powers between the actors of international law, for example between the principal organs of the United Nations? A better formula would be to talk about rule of law at international level.

The next chapter on Security Council sanctionsbyBen L. Murphyaddresses one of the most polarizing and antagonizing of all concepts in international law, not least because the lack of compulsory sanctions in international law hung for a long time as a dark cloud over the discipline and threatened its very existence. Murphy explains that the SC’s relationship with international law is much more complex and contested than this implies, as it takes on different faces—from law-maker, law-clarifier, law-applier, law-enforcer—in different contexts. The rationale underpinning SC imposed enforcement measures is not, first and foremost, punitive.

The primary purpose of the UN is not to enforce compliance with international law, per se, but to maintain international peace and security (not the same), and to that end to take effective collective measures for the prevention and removal of threats to the peace. Likewise, the purpose of SC enforcement is not to maintain or restore the law, but to maintain or restore peace, which is not always identical. From this it follows that the SC has the power to take enforcement actions even in case that no obligation expressly imposed on the members has been violated, provided that it considers such action necessary for the maintenance of international peace. While stating a breach of an international obligation when resorting to sanctions, the SC is under no obligation and sometimes does not offer a precise determination of the existence of a wrongful act. Furthermore, it may act pre-emptively to prevent a threat to the peace, without identifying that a certain international obligation has been breached. Therefore, Article 41 measures do not constitute ‘sanctions’ in the meaning of the classical Kelsenian international law.

I argued in the past, that Article 39 and SC’s subsequent practice together create an obligation not to engage in conduct which constitutes a threat to use force, illegalized by Article 2(4), therefore Article 41 sanctions would always be a response to illegality, addressing non-compliance of a state with its derivative obligation, enforced through the SC binding decision. Murphy accepts that states should be under a general obligation not to act in a way that threatens international peace de lege ferenda. I agree that in the absence of a clear violation of some other obligation, Article 39 provides an overall obligation not to threaten international peace. The question of whether a threat to the peace has occurred is a judgement that appears to be based primarily on a factual subjective finding, and it would be very difficult to measure these political considerations against legal criteria.

Compliance with international law is important and the SC must maintain the legal competence to enact collective sanctions, but it does not mean that sanctions can only be imposed in the name of enforcing international law per se. Sanctions are measures, which an organization, according to its rules, may be entitled to adopt against its members. This dispels the restrictive definition of sanctions as only relating to law enforcement, but, on another hand, the recent practice of targeting individuals would not fit this definition. Murphy is correct, that there is no harm in utilizing the term sanctions in the context of Article 41 measures; in fact, it has clearly been adopted as the term of art.

I fully agree and have little to add to Murphy’s brilliant analysis of the evolution from the blanket sanctions to (not so) smart sanctions. It has been time and again proven that blanket sanctions against authoritarian regimes do not produce the desired results, as tyrants can easily smuggle the goods and services they need, and accordingly the burden of the sanctions is relegated to the innocent population, which already suffers from the tyranny anyway. The shift towards “smart”, or targeted sanctions against specific individuals or entities within states has been gradually made. Murphy denotes a deep paradox: if targeted sanctions were established against human rights concerns relating to blanket sanctions, but these same targeted sanctions have been criticized for their potentially far-reaching encroachments on the rights and freedoms of some of those individuals, being targeted. Murphy illustrates the violations of human rights resulting from targeted sanctions as a caution, that the state-orientated institutional framework was architecturally unprepared to accommodate the individual as a new target of sanctions.

One last point re. sanctions connects with my previous commentary on the need to eliminate the veto. I find extraordinary that so much attention is paid on humanitarian consequences of sanctions, or the very rare human rights issues, arising from enlisting individuals. The big problem is not too much sanctions, but too little sanctions. With the Russian/Chinese veto, there are no UN-imposed mandatory sanctions not only on Russia, but also on Syria, Myanmar, Belarus, Venezuela, Iran, North Korea. When only small number of countries in the world sanction Russia, and even less sanction regimes, that openly or clandestinely trade with the aggressor in Ukraine, Russia can easily buy weapons and fuel the war. On the opposite, imagine a SC, liberated from the veto, imposing mandatory sanctions to be implemented by the entire world, and robustly enforcing them, including through sanctioning states that fail to comply with the already imposed sanctions.
Sergey Sayapinin his chapter “Transnational and International Criminal Law” makes a superb analysis of the role of various institutions of international criminal justice in prevention, prosecution and punishment of individuals for transnational and international crimes, and, by doing this, they contribute to the maintenance of international peace and security. States not only establish normative and judicial mechanisms at the international level, but also implement related substantive and procedural regulations in their domestic laws. Sayapin provides a marvelous overview of the customary principles of penal jurisdiction, followed by the main principles of international criminal procedure and modalities of international cooperation in penal matters. The chapter delves into the core crimes, examines the direct and indirect enforcement of international criminal law, and concludes with a section on transitional justice.

What is significant is that the international criminal law is stricto sensu based on the rules of public international law, that establish the criminality of the core crimes directly under international law, and regulate the prosecution of individuals for the commission of such crimes by international, hybrid, or domestic criminal tribunals, applying universal jurisdiction. The international criminal law also serves as a normative foundation for States to penalize other international crimes, delicts and infractions, even such – as Cherif Bassiounni’s list of 28 crimes – that are outside the jurisdiction of any international tribunal. The ICL is both international (negotiated and agreed by states), but also criminal (subjecting individuals, and not states, to justice). The indirect enforcement of ICL, compared to the direct enforcement in tribunals, is essential in domestic penal laws as one of the most important manifestations of state sovereignty. The ICC complementary jurisdiction to the domestic systems of criminal justice recognizes States’ primary role in prosecuting individuals for the commission of international crimes. If all States in the world take the necessary measures to implement ICL in their domestic laws and practices, there won’t be a need for international criminal courts. But we are far away from such an ideal, where all elements of relevant crimes are included in domestic criminal codes and law enforcement officials and judges are trained on their proper application, where all states are willing and able to effectively prevent, prosecute and punish individuals and legal entities for transnational crimes and crimes under ICL.

Sayapin alsoaddresses various parts of transitional justice, an opportunity separate from the penal prosecutions of perpetrators in criminal courts. He discusses the option of amnesty to selected perpetrators as an instrument in the transitional justice toolkit inasmuch as it is able to contribute to social reconciliation and peace. Amnesties can be general or selective, and in the latter case, prosecutions are reserved for the masterminds of the crimes, and amnesty is offered to lower-ranking perpetrators, with due regard to their subordinate roles in the criminal activities and their willingness to co-operate with the tribunals and provide evidence for the crimes of the higher ranking officials.

Finally, Sayapin also discusses universal jurisdiction, where States may assert their domestic jurisdiction with respect to international crimes irrespective of the place of their commission, the nationality of perpetrators and victims, and other customary jurisdictional links, is paramount. There are two main approaches to universal jurisdiction: the “pure” universal jurisdiction enables a State to prosecute anyone for genocide, crimes against humanity, or war crimes, committed anywhere in the world, with no regard to immunities attendant to a perpetrator’s official position, and even in absentia. A classic example is Belgium’s law on universal jurisdiction (1993). The “conditional” universal jurisdiction regime requires the presence of the suspect in the territory of the State asserting jurisdiction, and this approach is helpful, especially, in scenarios where multiple States assert universal jurisdiction with respect to the same crime.

I could only add, that the relationship between peace and security and international criminal justice is close, but not without some controversies. The slogan “Peace through Justice” has channeled efforts to bring to justice perpetrators, still it needs to be understood in its specific tensions too. Unavoidably, the pursuit of justice may jeopardize peace in the short term. Accordingly, the agents of peace should be separated from the agents of justice. Don’t blame prosecutors, if their work jeopardizes peace. And don’t ask peace-makers to testify in tribunals. When the ICC issued an arrest warrant on Putin, many worried that this could make him reluctant to negotiate a peace agreement at best, or push him to use nuclear weapons at worst. I would not worry about either of these. Putin has already proven unsuitable for peace negotiations, and nobody can ever trust a single word of commitment he may say. But also using nuclear weapons – highly unlikely as it is both meaningless and suicidal – would not change anything, at the end it will be the Russian military defeat that will bring peace to Ukraine.

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