Regulating Military Force Series – A UK Perspective on the Use of Force and the UN Security Council

Editors’ note: The author delivered remarks on the subject of this post at the conference “International Law and the Regulation of Resort to Force: Exhaustion, Destruction, Rebirth?” at the Centre for International Humanitarian and Operational Law, Palacký University in Olomouc, Czech Republic.

Having represented the UK overseas for a number of years, including at the UN and in the Security Council, I am aware that an expectation can arise that someone from that sort of background will defend everything that the Security Council is and has ever done.

In this post, my objective is not to praise the Security Council, nor in fact to bury it. Rather, I hope only to achieve the modest aim of explaining some of its practices and behaviours from the perspective of a lawyer and practitioner.

I was at the UK Mission to the United Nations from 2009 to 2013. I started as a legal adviser, and a few years later moved to be Deputy Head of the Political Section, running teams of negotiators in the Council and supporting the Ambassador when it came to final negotiations.

The Role of the Security Council in the Jus ad Bellum

I start with the stunningly obvious comment that the Security Council is not the be-all and end-all when it comes to the law relating to the use of force. In fact, much of the practice when it comes to the jus ad bellum originates outside the Security Council, which of course tells us something about the place of the Security Council in the ecosystem. We can look at what the Security Council does, mainly in the form of resolutions or other outputs. We can look at what States tell the Security Council they are doing, almost exclusively through the vehicle of letters under Article 51 of the Charter. And, finally, we can look at what the Security Council does not do and what States do not tell it they are doing. This last area, while the most difficult to research if you are on the outside, is sometimes the most illuminating.

What the Security Council does concerns mainly the operation of its Chapter VII powers, and in this post I focus on the authorisation of the use of force. What States tell the Security Council they are doing gives us real insight into State views on the extent of the right to self-defence. Looking at what countries said concerning the use of force against ISIS in Iraq and Syria was particularly interesting in that context. What the Security Council does not generally get involved in and what States often shy away from telling it is about the significant area of consent-based interventions in an internal conflict or about the narrower area of humanitarian interventions, where the UK and a few other States plough lonely furrows.

Against that background, I have three broad points. First, that the Council is concerned with preventing major wars between major powers and has had some success. Second, that where the Council has been ineffective regarding internal conflicts can often be explained by major power interests.  Third, that the Council was designed, and now operates, to ensure that when the permanent members act in their own interests, they cannot be dealt with through the authority of the Council.

Ending the Scourge of War – All War?

The original rationale of the Security Council, and indeed the wider United Nations organisation, was to prevent major wars between major powers. I would join others in arguing that, for all its many faults, the Security Council has actually played a major part in helping the world—so far—to avoid global conflagrations of the type that erupted in 1945, 1914 or even in 1792. There are far more qualified people than me to explore the statistics on these issues so let me summarise quickly by quoting from popular scientist and Harvard Professor Steven Pinker in his lecture on the “History of Violence” in 2011,

The extraordinary 65-year stretch since the end of the Second World War has been called the “Long Peace,” and has perhaps the most striking statistics of all, zero. There were zero wars between the United States and the Soviet Union (the two superpowers of the era), contrary to every expert prediction. No nuclear weapon has been used in war since Nagasaki, again, confounding everyone’s expectations. There have been no wars between any subset of the great powers since the end of the Korean War in 1953. There have been zero wars between Western European countries. The extraordinary thing about this fact is how un-extraordinary it sounds. If I say I’m going to predict that in my lifetime France and Germany will not go to war, everyone will say, “Yeah, yeah; of course they won’t go to war.” But that is an extraordinary statement when you consider that before 1945, Western European countries initiated two new wars per year for more than 600 years. That number has now stood at zero for 65 years.

Now I am sure that statement can be challenged, and there’s certainly something about its Euro-centric approach that probably bears wider examination, but I think the broad thrust of the facts is fairly incontestable. Of course, there have been periods of peace before, and so one could also challenge the causation between the current “Long Peace” to use Professor Pinker’s phrase and the work of the Security Council. But I think it would be difficult to argue that the existence of a standing diplomatic body, with a permanent presence and privileged rights for the major powers, has not made some significant contribution to the absence of a major open conflict between them.

None of what I’ve said alleviates the need for reform of the Council or to recognise that today’s major powers would be defined differently from those of 1945 or 1965. The official UK position on this has been supportive of reform for over a decade, and supports: permanent membership for Brazil, Germany, India, and Japan; permanent African representation; and the further expansion of the non-permanent category towards a total membership in the region of the mid-20s.

That said, my prediction would be that if and when the moment for reform finally comes, the new permanent members will be as concerned as the old ones about avoiding major wars between major powers.

Civil War and the Security Council

I recognise that the work of the Security Council over the years has been less effective at preventing the principal type of conflict that has afflicted the world since 1945, namely internal civil wars, almost always with some form of international spillover. While there have been progressive developments in the practice of peacekeeping missions, humanitarian mandates or in specific situations, the Security Council—even when united—has not been able to uniformly exert its will on the participants in internal conflicts (or sometimes their international backers).

When it has acted, the Security Council has often been criticised before, during, or after such action. The criticism before often focuses on a lack of action or a slowness to consider action. The criticism during is often that it is doing too much or too little. And the criticism afterwards is often that it damaged the international system or overinterpreted its power.

There are often three types of scenarios here. The first is where there are no significant major power interests, the second is where one or more major powers have an interest in one direction but others do not, and the third is where major powers have interests in conflict.

The first situation might be your average peacekeeping mission, the majority of which remains based in sub-Saharan Africa. Here the Council essentially tries its best to equip the missions to make a difference in reducing conflict, equipping them to defend themselves and civilians, and this work often continues even in the midst of wider Council tensions and paralysis.

The second situation would involve a scenario like Libya in 2011, where then leader Qadafi was threatening to “bathe the rebels in blood” and the West, led by France and the UK, felt morally obliged to intervene. Russia and China did not have an essential interest, and so did not object at the time. In the private consultations room—where most real Security Council business takes place—it was made clear to all present precisely what military action would happen if the Council authorised the use of force to protect civilians. Therefore, the recriminations that the Western coalition had overinterpreted the Chapter VII authorisation given to them by the Council were surprising and open to scepticism.

The third situation might involve hostilities in the Middle East or Syria, where there are clear major power interests which conflict with each other. To give an example I was again personally involved in, when the reverberations of the Arab Spring came to Syria, a major distinguishing feature was the Russian naval presence in the Mediterranean, housed in the base at Tartus on the south-western coast of Syria. Against this background, Russia again and again vetoed any initiatives aimed at preventing or deterring President Assad from fighting his own people. Russia often justified these on the basis of accusations of bad faith by the West in the Libya resolutions, but looking at its interests and the personal ties between leaders may offer different perspectives.

Protection of Vital Interests: a Feature, Not a Bug

This leads me to my third and final main point, that the Council operates to ensure that, when the permanent members go “beyond the pale” and take action outside of the Council in their own interests, which may or may not be lawful, the Security Council will not be able to act to restrain them – provided the State concerned is willing to exercise its veto. The obvious topical example here is Ukraine, where the Russian veto makes the Council unable to do anything effective. We could examine how the veto has been used over the years, and how there have been successful attempts to involve the General Assembly in scrutinising its use. However, the fact is that the Charter, which sits at the heart of our discipline as international lawyers, operates to allow the permanent members the ability to excuse themselves from the Council’s authority.

While this is a feature and not a bug, this fact links back to the first main point I made about the Security Council, and the UN, being designed to prevent major power conflict. Without this ability to go “beyond the pale,” would we be more or less likely to experience a major war between one or more permanent members and the likely global conflict that would ensue? Others are better placed to offer a counterfactual assessment of what might have been or what would or could be in the future. Regardless, from the perspective of international law and sovereign equality there is little dispute that it would be better if the veto did not exist. But from what I know of the current state of the debate on Security Council reform at the UN today, there are few who think revision of this aspect of the Charter will form part of any future deal on reform.

Concluding Thoughts

The points I have made in this post are not justifications or defences of the status quo, but merely my attempt to explain it from my personal perspective. As I see it, any recommendations or initiatives which are aimed at reforming the system will need to address these realities, something which I feel not all international lawyers and scholars face up to. I often hear comments or read learned articles which call for specific reforms or interpretations which are based on fairness or inclusion. These, however, often ignore the major power dynamics of diplomacy and the reality of working in the Security Council and would find no real support among the other major powers outside the current permanent members.

I am not arguing that we as international lawyers should submit to the brutal logic of the Melian Dialogues, where the ancient Athenians asserted that might was right. Merely that we should, in the cause of advocating reform, understand the realities of the system as it is now, and that the current system has had a positive impact on preventing major wars between the major powers.

As Benjamin Franklin put it in 1861: “There never was a good war, or a bad peace.”

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Photo credit: U.S. Department of State