The Role Of The UN Security Council In Protecting Human Rights:

The Role of the UN Security Council in Protecting Human Rights: Prospects and Challenges

Expert Workshop, 6 June 2012, 12am-5:30pm Venue: German Institute for Human Rights, Zimmerstraße 26/27, Berlin

Introduction

Against the background of the current German term on the UN Security Council (SC) and the latest public discussion about major human rights violations in the popular uprisings in Libya and Syria, the German Institute for Human Rights and the Friedrich-Ebert-Stiftung wanted to take a fresh look at the role of the UN Security Council in Protecting Human Rights. In a jointly organized expert workshop and a subsequent public panel debate, international experts discussed the corresponding issues with German experts and political practitioners both from the field of human rights and security policy. Already in the run-up to the event the organizers came to realize the sensitivities in both the security and the human rights expert community when it came to address the intersection and nexus between these two established policy fields. Yet, the discussion and topical developments in recent years – which were reflected during the meeting – underlined the merit and necessity of discussing the corresponding policy challenges from both sides.

This report provides an insight into the major points of discussion during the workshop, not in the form of minutes but in the sense of a synthesis of the discussion which was held under Chatham House Rule. Therefore the report does not refer to individual statements and is merely a personal reflection of the organizers of those points they took from the discussion. It also does not account for the strict chronological order of the debate but rather tries to synthesize the arguments according to thematic clusters.

The UN-Security Council and Human Rights – an Overview

One concrete point of reference for the debate was an International Policy Analysis on “The UN Security Council and Human Rights - State Sovereignty and Human Dignity”. The paper was authored by Prof. David P. Forsythe and published in the run-up to the meeting 1. The major theses on which the discussion repeatedly drew were the following:

- Non-permanent member states of the SC can have an impact on its work

- Non-state actors also can play a crucial, even though still limited, role with regard to the work of the council

- The SC remains an important venue to address major human rights violations

1 This paper is online available at: http://library.fes.de/pdf-files/iez/09069.pdf

- Double standards at the SC with regard to addressing human rights violations remain

In the course of the discussion this picture was further enhanced. Especially with regard to the awareness of the SC to human rights (HR) considerations and its willingness to take account of corresponding situational information on HR, significant progress was acknowledged by various participants. While human rights issues and other internal matters were considered a taboo for the Council during most of the Cold War, this pattern changed in the 1990s. With internal conflicts coming to dominate Council deliberations after the end of the Cold War, discussions about human rights issue came to the fore as well. It was stated that while in 1993 only one resolution included a reference to human rights issues, in 2007 already 13 resolutions took up such issues. The earlier tendency to refer consideration of human rights issues to other bodies like the Human Rights Commission and later the Human Rights Council (HRC) has clearly been overcome today. This tendency however was also critically assessed by participants who stressed the need for a clear definition of competences between the SC and the HRC against the threat of mission creep.

Participants emphasized that the SC gradually also became more open with regard to inputs from the HRC and the UN High Commissioner for Human Rights (UNHCHR). Especially the latter now regularly takes part in certain Council meetings, providing direct information on human rights violations. A mechanism for feeding additional human rights related information into the Council’s work which has been commended by participants is the arrangement of meetings according to the “Arria Formula”. These are informal meetings hosted by one member of the Security Council to which other Council members are invited and during which experts and civil society representatives can share their insights with the Council.

Further useful ways to bring human rights related issues to the attention of the Council that were referred to positively during the debate were the new “Horizon Scanning” briefings for the Council by the UN Department for Political Affairs (DPA) as well as a new working group on Children in Armed Conflicts2.

Developments in Syria and Libya

In the course of the debate, there was frequent reference to the latest developments with regard to SC action on Libya and Syria3. Especially controversial was the question of the consequences of the engagement in the case of Libya for the Council’s role in the Syria case. Some participants argued that the mandate provided through resolution 1973, which authorized coercive measures to provide for the protection of civilians in Libya, was overstepped and misused for regime change. This transgression, it was argued, would provide one explanation for Russian and Chinese hesitation to act under Chapter VII of the UN Charta in the case of Syria. On the other side there was doubt as to whether a different implementation of resolution 1973 would have changed anything with regard to

2 Further information available at: http://www.un.org/children/conflict/english/securitycouncilwg.html 3 There were singular references to other country cases on the SC’s agenda with particular relevance from a Human Rights Perspective, like the enforcement action mandate to protect civilians in Côte d’Ivoire.

Russian and Chinese hesitation to put stronger pressure on the regime in Damascus. All in all however, the failure to take more consistent action with regard to developments in Syria was broadly interpreted as a failure of the SC and its member states4.

Two further aspects that were intensively discussed in light of the cases of Libya and Syria referred to the difficulty of obtaining “neutral” information from inside countries in the face of alleged mass atrocities and to the role that regional organizations’ support for intervention plays in the context of UN-SC deliberations.

Overall the discussion about these two cases was framed specifically in the context of the ongoing debates on the concept of Responsibility to Protect (R2P). This concept as well as the most recent related conceptual input about a Responsibility while Protecting (RwP) were also discussed beyond the two recent cases where R2P was invoked.

R2P, RwP and thresholds for UN-SC engagement

Against the background of the recent controversies over the invocation of R2P in the cases of Syria and Libya, one part of the discussion focused on the potential to define certain thresholds or criteria and corresponding mechanisms to define when the SC would be obliged to intervene. Comparing the reactions to the situations in Syria, Libya, Zimbabwe and Sudan it was argued that so far there are no identifiable criteria which would trigger SC action. In addition the political nature of the Council was stressed by some participants also alluding to the fact that council members were of course still predominantly pursuing national interests. A different strand of this discussion suggested the need to have one expert organ/institution (like the ICC) that could flag situations that require UN-SC action.

For those cases where the council mandates an intervention there was also a debate about the potential for limitations of such interventions. Among other things it was suggested that mandates should be provided with a time limit for an intervention and that monitoring mechanisms should oversee whether operations stay within the limitations devised in the mandate. Such measures are also referred to in the Brazilian concept-proposal of RwP. Finally there was one call for the further operationalization of the third pillar of R2P.

In the course of this discussion there were also repeated reminders issued that the concept of R2P must not be narrowed to its third pillar, which entails provisions for international interventions in the case of mass atrocities. In contrast, a stronger focus on the preventive pillar of the R2P concept was called for.

Finally, the general acceptance of the concept of R2P also was discussed. While some participants stressed the broad support the basic concept has found so far, others argued that there still is no

4 One reference that was repeatedly cited for such assessment was a statements issued in the context of the launch of Amnesty International’s latest annual report which claims that “At the United Nations, the Security Council seems ineffective, out of step and increasingly unable to fulfill its mandate”, see http://www.amnestyusa.org/news/press-releases/failure-of-leadership-rendering-un-security-council- irrelevant-says-amnesty-international-as-its-ann

common understanding when R2P has to be invoked, especially when it comes to concrete country cases.

Criticism of the practice of the SC: inconsistency and double standards

With regard to the practice of the SC, the role of its permanent members figured prominently in the debate. The special role of the P5, their veto-power and exclusive negotiations were cited as major reasons for the inconsistencies in the council’s practice of addressing human rights violations. At the same time there was also some critique of non-permanent members who so far failed to effectively challenge the dominance of the P5 in order to provide for more accountability and consistency of the SC’s work. It was argued that the non-permanent members too often follow a path of voluntary self- restraint in challenging the P5, a tendency also labeled as sort of a “Stockholm Syndrome”. However, this assessment was rather controversial. One suggestion to reduce the inconsistency of the Council’s dealing with cases of massive human rights violations was to intensify its cooperation with regional organizations.

Reform perspectives for the Council with regard to HR issues

Aside from the narrow discussion about military interventions mandated by the Council, there was a wider range of reform issues for the SC that were discussed during the workshop, in particular those with regard to its work on human rights issues.

The reform aspects that were seen most optimistically referred to concrete practice of the Council’s work and its working methods. While an official reform of the rules of procedure was still regarded to be some way off, concrete reform steps could build on improvements in council practice that have been mentioned above, like the introduction of regular horizon scanning briefings by DPA, the working group on children in armed conflict and the practice of Arria formula meetings. All of these tools could be further developed and it was also stressed that these practical measures by no means are guaranteed to last if there is no clear pressure by member states. The latter danger was illustrated with regard to the horizon scanning briefings by DPA which had simply not been included in the working schedule by the corresponding presidencies of the Council for a couple of months.

Apart from the routines of Council work the value and necessity of further thematic and conceptual deliberations of the Council was stressed. One important topic which should be further developed by the Council is the concept of protection of civilians that has already figured prominently in a couple of SC thematic debates. With regard to such thematic discussions and deliberations of the Council the role of non-permanent members was particularly stressed: Since they would usually seek to leave a positive legacy from their term on the SC, they have a very good record in putting progressive items on the Council’s agenda. One positive example that was highlighted during the debate was the German effort to get the Council to address the security relevant implications of climate change – which has particularly serious implications for human rights, too. On the other side there was also the above mentioned critique of supposedly voluntary self-restraint in challenging the P5.

At the same time the prospects for reform of the membership of the Council – i.e. the issue of enlargement of the Council – was regarded quite pessimistic by participants. While there were some statements still supporting the call for enlargement in both categories, permanent and non- permanent members alike, there were also voices questioning the need for additional permanent members on the Council. Especially against the background of the positive assessment of the potential and actual role played by non-permanent members, the question was controversially discussed whether an enlargement merely of non-permanent members would not be more promising in terms of more effective SC action on human rights issues. It was also hypothetically questioned whether a Council with more permanent member states would have come to significantly different results with regard to the recent controversial decisions.

With particular regard to the role of the permanent members of the Council, the issue of their veto power figured prominently in the debate. While there was not much hope for the P5 surrendering their veto power anytime soon, there was a particular call to strengthen advocacy for a voluntary restraint in the use of the veto.

Finally, the role and potential of Nongovernmental Organisations (NGOs) figured prominently in the discussion about strengthening the SC’s performance with regard to human rights. While the access of NGOs to the Council was described as rather limited and informal (eg in the form of Arria-formula meetings), the presence of NGOs around the Council was regarded as highly valuable. They serve as important multipliers and channels for information from and to NGOs not present in New York and contribute to a critical monitoring of the Council.

Further points of discussion: General Assembly, Human Rights Council and ICC

Apart from the role of the Council itself, there was also some debate emerging about its role relative to the role of other (UN) bodies. With regard to the Human Rights Council the above mentioned concern of mission creep of the SC in comparison with the HRC was countered by a call for a strengthened exchange between the two bodies. Apart from this relationship, the role of the General Assembly was referred to in the debate as well. Its potential to put pressure on a deadlocked SC by means of a “Uniting for Peace”-Resolution was emphasized. In addition, the GA could obtain advisory opinions on certain issues from the International Court of Justice (ICJ) and should also try to influence the debate on the general concept of R2P by means of thematic resolutions. Finally, the critical and still ambiguous relationship between the Security Council and the International Criminal Court (ICC)5 was brought up by participants.

Marius Müller-Hennig Peter Litschke

5 Another recent publication that informed the workshop adresses specifically this relationship: Lawrence Moss (2012): “The UN Security Council and the International Criminal Court - Towards a More Principled Relationship” see: http://library.fes.de/pdf-files/iez/08948.pdf