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The Rule of Law: the Security Council and Accountability

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The Rule of Law: the Security Council and Accountability Cross-Cutting Report The Rule of Law: The Security Council and Accountability Representatives of the Office of the Security Council Report’s second Cross-Cutting Council practice. The report then explores eight Prosecutor talk in the ICC before a public hearing on Libya’s challenge Report on the Rule of Law, a thematic issue which case studies to illustrate how the Council has to the admissibility of the case has been on the agenda of the Security Council addressed issues of accountability in specific sit- against Saif Al-Islam Qaddafi. since 2003, analyses statistical information on uations. In the main, the report finds that despite the rule of law in the decisions of the Security its rhetorical commitment to accountability as a Council and the Secretary-General’s reports to principle, and an understanding that account- the Council in 2011 and 2012. ability is a practical tool that can promote peace 2013, No. 1 18 January 2013 The report also focuses on the discourse and and security, the Council has been inconsis- practice of the Security Council regarding tent in its approach to this matter. It concludes This report is available online at securitycouncilreport.org. accountability and ending impunity for inter- that a more consistent approach by the Council, national crimes and gross violations of human with an added emphasis on accountability issues, For daily insights by SCR on evolving Security Council actions please rights as an aspect of the rule of law. It provides could have a positive impact on situations on subscribe to our “What’s In Blue” the legal context of the development of individ- its agenda and its effectiveness in maintaining series at whatsinblue.org or follow @SCRtweets on Twitter. ual accountability under international law and international peace and security. • tracks the historical background of pertinent Security Council Report Cross-Cutting Report January 2013 securitycouncilreport.org 1 Executive Summary Even before the rule of law has become matter. As several of the case studies dem- 2 Executive Summary integral to the peacekeeping and peace- onstrate, the Council at times used the tools 2 Background and Normative building efforts of the Security Council, the available to it to ensure accountability and Framework issue of accountability for serious human had an impact on the ground as well as in rights violations and international crimes long-term improvement in country situations. 2 Our 2011 Cross-Cutting Report on the Rule of Law has appeared regularly in the rhetoric of the But it has been inconsistent in emphasising Council. Transitioning from discourse to the importance of accountability mechanisms 3 The Rule of Law and Individual practice has not been simple, although the and measures, or following up on its own pre- Accountability Council has expanded its toolkit of options vious decisions regarding individual account- 3 Cross-Cutting Report to ensure accountability for such actions ability. In some situations, when it has ignored Methodology while discharging its primary responsibility issues of accountability, whether as a strategic 3 Key Developments of the Rule of for the maintenance of international peace decision in addressing a conflict or because it Law on the Thematic Level and security. was divided or lacked the political resolve, the 6 Statistical Analysis on The Rule This report will examine the recent Council may have negatively impacted on the Of Law practice of the Security Council regarding conflicts dealt with. While many variables are 6 Methodology accountability and ending impunity for seri- always at play in any given conflict, the cases ous crimes as an aspect of the rule of law, examined show that at times, the willingness 7 Resolutions nowadays a thematic issue regularly found or unwillingness of the Council to back its 7 Presidential Statements on its programme of work. own rhetoric with action can make a differ- 8 Reports of the Secretary-General In the main, the report finds that despite ence. Therefore, a more consistent approach 8 Accountability and International its rhetorical commitment to accountability by the Council, with an added emphasis on Crimes as a principle, and an understanding that accountability issues, could have a positive 10 Historical Context: The Security accountability is a practical tool that can impact on situations on its agenda and on Council and Accountability promote peace and security, the Council its effectiveness in maintaining international has been inconsistent in its approach to this peace and security. • 12 Case Studies 12 Yugoslavia and Rwanda (Ad Hoc Tribunals) 15 Afghanistan Background and Normative Framework 17 Democratic Republic of the Congo 23 Côte d’Ivoire Our 2011 Cross-Cutting Report of the Congo (DRC) and Liberia. on the Rule of Law The report found that the Council has 27 Sudan In our firstCross-Cutting Report on the Rule embraced the notion that establishing and 30 Kenya of Law published on 28 October 2011, we improving the rule of law in conflict and 32 Libya examined the relationship between inter- post-conflict situations is an integral part 35 Yemen national law and the Security Council and of the mandates it creates. This integration 37 Conclusions its treatment of the rule of law. The report takes on different forms and contexts, such complemented a broad new body of work as institutional reforms, ensuring the secu- 39 UN Documents and Useful collectively labelled “rule of law” in Security rity of civilians, and in particular improving Additional Resources Council deliberations and actions in the last human rights conditions as part of peace- 15 years or so, including an eponymous the- keeping and peacebuilding efforts. While gen- matic agenda item as of 2003. erally incorporating rule-of-law elements into The report examined two main aspects of its mandates and its thematic decisions, the the rule of law. First, it gauged the degree to Council has been inconsistent in its approach which the rule of law has been incorporated to the rule of law when addressing certain into the country-specific work of the Council, situations on the ground. including as an avenue to incorporate human Second, it examined the degree to which rights related action. The report included a the Council has been guided by the rule of statistical analysis of Council resolutions and law—taking into account the due process presidential statements and of the Secretary- rights of those affected by Council mea- General’s reports submitted to the Council. sures—in the course of its resort to tar- It also took an in-depth look at two of the geted sanctions under Chapter VII of the country-specific situations on the agenda of UN Charter. The report found that due to the Council, that of the Democratic Republic legal and political pressures, the Council has 2 whatsinblue.org Security Council Report Cross-Cutting Report January 2013 Background And Normative Framework (con’t) expanded the scope of due process rights it decision-making, legal certainty, avoidance other thematic issues such as children and affords individuals and entities affected by of arbitrariness and procedural and legal armed conflict and the protection of civilians. its sanctions. transparency.” The issue of “accountability to laws” and Cross-Cutting Report Methodology The Rule of Law and measures to ensure adherence to the law are As is customary with our Cross-Cutting Individual Accountability included in this rather robust and inclusive Reports, the next section will provide an The definition of the rule of law is not a mat- definition of the rule of law. The present update on Council practice pertaining to the ter of consensus. Within the UN system, the Cross-Cutting Report on the Rule of Law will rule of law undertaken since our 28 Octo- definition provided by the Secretary-General provide an insight into the work of the Coun- ber 2011 Cross-Cutting Report. We will then in his report entitled “The Rule of Law and cil through the lens of this particular aspect provide an update on the statistical analysis Transitional Justice in Conflict and Post- of the rule of law. In fact, the rule of law has of references to the rule of law in Council Conflict Societies” (S/2004/616) has carried been referred to by the Council when dis- resolutions and presidential statements and much weight. The Secretary-General defined cussing the need to end impunity and hold in the Secretary-General’s reports submitted the rule of law as: individuals accountable for their alleged to the Council in 2011 and 2012. The report “a principle of governance in which all crimes, in resolution 1315 (2000) on Sierra will then focus on Council practice regard- persons, institutions and entities, public Leone, for example. As will be seen below, ing individual accountability for international and private, including the State itself, are individual accountability for international crimes and human rights violations in the accountable to laws that are publicly promul- crimes and gross violations of human rights situations on its agenda. To do so, it will first gated, equally enforced and independently is also the basis for the development of inter- provide the legal context of the development adjudicated, and which are consistent with national criminal law, a field of law that the of individual accountability under interna- international human rights norms and stan- Council has contributed to before the rule tional law and will then track the historical dards. It requires, as well, measures to ensure of law became so prevalent in its own work. background of pertinent Council practice. In adherence to the principles of supremacy of With the rule of law becoming integral to the light of the background provided, the report law, equality before the law, accountability Council’s work, individual accountability has will explore several case studies that will illus- to the law, fairness in the application of the become an aspect if its rule-of-law related trate how the Council has been dealing with law, separation of powers, participation in activities in country specific situations and issues of accountability in specific situations.
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