MIGHT NEEDS RIGHT, SECURITY COUNCIL REFORM MEETS THE ICC

- December 13, 2007

United Nations Security Council, UNSC, reform will ultimately become an issue of "to be or not to be". However, because there are no Hamlets on this stage, the case for action will have to arise from the supporting cast.

To be clear, the United Nations is not in danger of disappearing as an organization. Neither is the United Nations as a whole on the brink of irrelevance. Rather, the United Nations Security Council is at risk of losing its credibility as an institution with the capacity to execute its primary mission: to address “threats to international peace and security.”

Multilateralism, for the moment at least, has lost its mojo. The dominant forces in the current US Administration are only part of the downer mood. Unfortunately even many that rhetorically advocate multilateralism do not necessarily have the UN in consideration as the forum to consummate critical policy. So termed advocates of multilateralism in the US may not have the Security Council in mind as they do the “allies,” the meaning of which alternates from the P4 to NATO to P3. In fact, many of the current day advocates of multilateralism betrayed it during the crisis of the previous century. This is what made multilateralism vulnerable and defined the United Nations as a bad word for much of the voting constituency in the United States. However, let’s not be so quick to put the blame on the United States for the erosion.

UNITED NATIONS ABUSED TO DEFLECT ACCOUNTABILITY

      
The fall of the Berlin Wall and the consensus of the first Gulf War against Saddam Hussein seemed to foreshadow a new world order given structure by the UNSC. The warm, fuzzy feeling did not last long.

The conflicts, more accurately aggressions and ethnic cleansings, genocide within the former Yugoslavia were a chill shower coming after a cold war. The first response was for most of the world powers to shrivel away from a decisive step, and in favor of actions that

would insincerely project vigor. France, under President Mitterrand, and the United Kingdom under the leadership of Prime Minister Major employed a torrent of verbal and symbolic gestures that had the sincerity of pick-up lines in a disco at 2:00AM. While there was some effort to convey commitment through action, in the end only a lack of will was confirmed to the aggressors such as Milosevic, as well as the remainder of the global community.

Prime Minister Margaret Thatcher, (1992), already out of office, was not shy about expressing disagreement and dismay with her successor, Prime Minister Major’s lack of faithfulness in bringing about decisive action. In our initial meetings in the summer of 1992, she was frank about not being heard by her successor. Her frustration would later become more public.

CONVENIENT TROUSERS FOR THE "WOBBLY KNEED"

          
It is true that Prime Minister Thatcher’s old partner, President Bush, had finally gone “wobbly kneed” in addressing the aggression against Bosnia & Herzegovina. It was Mitterrand’s and Major’s governments, though, that exploited the United Nations to conceal their own weakness, or at least lack of will and sincerity. By association, the United Nations became seen as impotent. Whether then Secretary General Boutros Ghali actually supported the French and UK policy of the time is not entirely clear, but wittingly or otherwise, he provided convenient cover.

In a discussion in the summer of 1992, Secretary General Boutros Ghali told me that he could not act more resolutely because of the UNSC and arms embargo. However, in public statements he fully sided and supported the policy of the P-4 toward BiH. Interestingly, a few years after his expedited departure from the UN’s top post, I ran into the ex-Secretary General in Paris attending the same forum. Rather than the cold stare that I had expected on the basis of our frequent duels, Boutros Boutros Ghali rushed through the crowded conference room toward me and provided a hardy embrace. He whispered, “In hindsight perhaps we see things differently.”

I have no doubt that Boutros Ghali felt his office exploited if not abused. The UK and France were careless or shortsighted or both in how they managed the opportunity within the Security Council bestowed upon them by the demise of the old cold war system. While Mitterrand was especially eager to deal out the United States of a new European defense layout, some in the United States probably were not so disinclined to see the Security Council prove its ineptness, especially without US leadership.

JOHN BOLTON ON BOSNIA AND THE COUNCIL IN 1992

 
In the late fall of 1992, the debate regarding Bosnia & Herzegovina had moved to the General Assembly. Under the insistence of BiH’s UN diplomats and other friends, the full membership of the UN, the General Assembly would place the UNSC in the position of receiving rather than directing instructions. It was a presumptuous advance by the UNGA, but the UNSC had exposed itself as inept and incapable in addressing the threat to international peace and security. It did not matter that the General assembly did not have the institutional authority to direct the Security Council. The Council had waned and lost credibility.

To the particular objection of the French and UK delegations, the 1992 General Assembly resolution on Bosnia & Herzegovina contained a particular provision calling for the lifting of the arms embargo on the state. I made a visit to the State Department to persuade the departing Bush administration to support the resolution in the General Assembly. The British and French representatives were confident that “no light” would shine through any difference between their and the US policy on BiH.

My host was the Undersecretary John Bolton, a decade before his accession to the post of US Permanent Representative to the UN. His office was already packed into a stack of boxes reflecting the Clinton election victory a month earlier and his pending departure. After a brief exchange in his office, he invited me to stay a bit longer at the Christmas Party for his office staff.

Next day I returned to New York. The French and UK officials were stunned to learn that the US would support a UN General Assembly resolution effectively instructing the Security Council on any issue. The French and British had believed that they could preempt both the US and their European partners through a united position within the Security Council. Instead, they had managed to effectively divide the Council. Ultimately this distinction between the Mitterrand and Major Governments and the Clinton Administration was manifested during much of the remainder of the conflict.

FOREIGN MINISTER LAVROV, AS RUSSIA'S ABMASSADOR AT THE UN

             
The Security Council has never recovered that opportunity of the early 1990’s. It is also fair to ask whether the new Russia has in the meantime gotten back the audacity of the old Soviet Union. The current debate on Kosovo has seen a Russian assertiveness not even matched in the Security Council of the mid 1990’s when Ambassador Sergey Lavrov, now Russia’s Foreign Minister, roused his delegation’s bluster and authority.

As Moscow has recently reasserted political muscle, undoubtedly Foreign Minister Lavrov has learned well from then Ambassador Lavrov’s experience. While bluster and rhetoric may garner headlines, delay, or “silent veto,” may be most effective in gaining concessions.

WHOSE EUROPE IS IT?

 
The most telling rapport foreshadowing today’s debate on UNSC reform was between the UK and France, on one side, and the remainder of the European Union on the other. The UK and French delegations managed their Security Council seats as purely national prerogatives. However, when it came to votes, they expected all EU states to follow their lead.

This precedent has caused much of the remaining members of the UN body to be suspicious of reforms that would give EU states even grater potential for dominating the UNSC membership. Under the current system, there is the prospective for EU member states to hold 5 of the 15 Security Council seats: 2 permanent seats of France and the UK, 2 elected from the “Western Europe and others” group, and 1elected from the “Eastern Europe” group.

In the latest election for the non-permanent seat from the Eastern Europe group in the fall of 2007, Croatia was effective in its candidacy by underlining that it was not an EU member. Despite its long term aspirations, Croatia advanced that it was not obliged to vote with the Union as compared to its opponent in the election, the Czech Republic, who was bound as EU member to most closely coordinate its Security Council actions.

This event might be viewed in isolation except that it brings to greater clarity one of the major obstacles to reform. The EU cannot hope to have a new permanent member or enlargement of the Council with more opportunities to elect EU non-permanent members while maintaining current prerogatives.

The current status of France and the United Kingdom are vulnerable to reformist ideas. Adding another EU permanent member, especially with veto power, is untenable even if Germany manages to gain the support of all its EU partners, (in my opinion not a likely outcome). There is worthy consideration for a “permanent EU seat.” However, how then to rationalize this with two members, France and the UK who are obliged to coordinate common foreign policy, holding indefinitely and with veto power separate and presumably independent permanent seats.

“A NEW ERA”

  
Ambassador Danilo Turk, currently President-Elect of Slovenia and anticipating his nation’s EU Presidency starting January 2008, has made similar observations in recent interviews. President-Elect Danilo Turk is especially well versed on the subject having represented Slovenia as its Ambassador at the UN, including a two year term in the Council, and subsequently serving in the UN Secretariat. (Read President-Elect Danilo Turk’s interview in the EuropeanCourier.org of December 3, 2007) As President-Elect Danilo Turk states the issue is not so much the “over-representation”, but “rather the way Europe is represented in the Security Council. When Europe becomes capable of forming a single foreign policy or foreign policy, which could be represented by one permanent seat of the European Union, I think that it would be a new era.”

That new era ultimately will come, and it will most probably be long time before it arrives. President-Elect Turk accurately also identifies Security Council reform being more a product of intra-EU reformulations rather than a prerogative of the United Nations membership as a whole, unfortunately.

The Security Council is truly in rehab mode waiting to complete, or maybe just start, its transformation until such time that the EU sees itself ready for reform. And, once the EU further defines itself, will the United States, Russia and China just fall into place. Probably not, except for reasons that magnify the connection between self interest and reform.

CAN THE SECURITY COUNCIL AFFORD THE DELAY? AND MEET THE NEW CHALLENGES?

 
The Security Council will not dissolve. The same rationale that impedes reform also makes the Security Council a too valuable instrument in maintaining the current political and defense hierarchy. Do not give too much weight to those who drub multilateralism as an impediment to national prerogative and action. That certainly was not the case in either Iraq conflict. The Council just as readily advances as it might impede unilateral agendas, maybe even more so than evident from public debate. Multilateralism may serve broader international interests, but it also is most effective as a tool in the hands of those committed to perpetuating the standing hierarchy. The top of the pyramid profits most from the status quo and its instruments.

The challenge to the Security Council’s foremost role is more likely to come from other multilateral evolutions. Regional institutions and authorities may be already eclipsing the Council in some areas. However, while such may have practicality and expediency as an advantage, they may lack broad international application or legitimacy.

The International Criminal Court has broad international legitimacy and was ushered in with enthusiasm after the apparent success of the International Criminal Tribunal for the former Yugoslavia, (and Rwanda). This ad-hoc Tribunal(s) was established by Chapter 7 authority of the UNSC, under the special circumstances and demands for justice. The Security Council, at least as a whole, was not inclined or able to tackle the issue of international justice on a broader scope. So, the broad membership of the United Nations began meetings during the mid-90’s to put a process into motion.

THE CHALLENGE OF THE RULE OF LAW

 
The Yugoslav Tribunal provided guidance and inspiration to experts, NGO’s and discerning national representatives. However, when we, the delegates representing most of the UN membership met in Rome in the summer of 1998, it was outside the authority of the Security Council. We signed the Rome Statute outlining the future ICC by the end of that summer session. However, there was still an expectation that the ICC could take a decade or more to reach the minimum 40 states deemed necessary for initiation of authority and effective operation of its institutions.

The ICC though became operational earlier and with much broader support, practical and rhetorical, than anticipated. Most relevantly, it has something that the Security Council cannot claim: the rule of law and judicial authority.

        
The ICC is not just a court, but prosecutors and other necessary offices. It has its own separate constituency assembly and revenue generation aside from that of either the UNSC or UN General Assembly. It continues to actively evolve its statues, rules of procedure and legal administration. In a world where the concept of the “rule of law” attracts more rhetorical and practical support, especially as a counter to double standards and selective enforcement, the ICC has something that the UNSC can only desire: the legitimacy of law crafted from shared values for the common good.

The UNSC has the capacity to enforce/implement resolutions under Chapter 6 or 7. The ICC does not have enforcement capacity and needs to rely upon third parties. This has certainly been an impediment to greater development of the International Court of Justice, ICJ. And, we might be tempted to conclude that the ICC poses no different or greater test than the ICJ. However, the ICJ developed within a different time and is more directly tied to the United Nations system as a whole, from election of judges, resources and enforcement. The relationship between the ICJ and UNSC has settled into one of not so equals. The P-5 have managed to exert influence and coincidentally or not, the decisions of the ICJ are apt to reflect political will and not necessarily the other way around. The most relevant precedent is: lack of enforcement of ICJ judgments in favor of real politic. The recent ICJ judgment on the Genocide case of BiH versus Serbia/Montenegro is only the latest example. However, the ICC has not, at least yet, been taken for granted as an always approving spouse to the Security Council.

COMPLEMENTARITY OR CONFRONTING VALUES

   
The United States has not joined the ICC and under the Bush Administration has adopted even a more adversarial approach. During the previous Clinton Administration, the US and the other P-5 took a rather unified position in trying to impose the Security Council into almost all aspects of the ICC’s legal deliberations, such as indictments, as well as operational management. The issue of defining and activating various elements of the ICC’s statutory authority remains. The P-5 are particularly defending turf when it comes to defining and prosecuting the crime of aggression.

In the end, the ICC may need to seek out the Security Council for enforcement, but not necessarily. On the other hand, the Security Council will need the complement, the legitimacy offered by the ICC as an institution founded on legal and judicial authority. More to the point, in order for the P-5 to gain certain prerogatives within reach of the ICC, its most powerful members may have to compromise by offering greater democratic representation and transparency within the Security Council. The courtship is already underway, but this time the hope is that there will be more a matrimony of equals reflected in greater egalitarianism within the work of the Security Council as well.

Whether there ever was an inclusive motive behind Woodrow Wilson’s vision, today’s UN Security Council reform will be edged forward by real politic. Idealism and the rule of law will be understood as part of the trade, but not necessarily the objective by those who sit on top of the pyramid.
 

Muhamed Sacirbey

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Mr. Muhamed Sacirbey holds B.A. degree in history and J. D. degree from Tulane University in New Orleans. He also holds M.B.A. degree from Columbia University. Prior to becoming Bosnia’s Foreign Minister and Ambassador to the United Nations, he practiced as an attorney in New York City and worked for several years as an investment banker. He presently writes his book “A Convenient Genocide, in a fishbowl ” and is a commentator on human rights and political issues.

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