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The United Nations and Atrocity Crimes: the Over- Politicisation of Decision- Making in the Security Council

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The United Nations and Atrocity Crimes: the Over- Politicisation of Decision- Making in the Security Council UCL GLOBAL GOVERNANCE INSTITUTE WORKING PAPER SERIES The United Nations and Atrocity Crimes: The Over- Politicisation of Decision- Making in the Security Council Martin Davenas 2018/6 Abstract This paper critically assesses the ability of the United Nations (UN) to respond to atrocity crimes such as genocide, war crimes, crimes against humanity or ethnic cleansing. It argues that, as a result of the over-politicisation of the decision-making process in the Security Council (SC), the UN has failed on many occasions to protect human lives and human rights. Too often, the international community has ignored urgent crises or responded too late. In other cases, interventions ostensibly carried out in the defence of human rights have been used to further the specific interests of powerful states and/or they have had serious adverse effects on local populations. The paper concludes that this has larger consequences for the legitimacy of the SC and the UN as a whole, pointing to the urgent need to reform the decision-making process in the SC. This paper is published as part of the UCL Global Governance Institute’s Working Paper series. More GGI publications are available at: https://www.ucl.ac.uk/global-governance/research-articles Suggested citation: Davenas, M. (2018). The United Nations and Atrocity Crimes: The Over-Politicisation of Decision-Making in the Security Council, UCL Global Governance Institute Working Paper Series, 2018/6. Dissertation submitted in part-fulfilment of the Masters Course in Human Rights Law, Queen Mary University of London (QMUL), September 2018. Web: www.ucl.ac.uk/global-governance / E-mail: [email protected] Contents 1. Introduction .................................................................................................................... 1 1.1. The Notion of Atrocity Crime ............................................................................. 2 1.2. The Role of the Security Council in Relation with Human Rights and Humanitarian Law ............................................................................................. 4 1.3. The Issue of Over-Politicisation ......................................................................... 5 2. The Security Council: A Fertile Ground for the Over-Politicisation of Issues ........... 8 2.1. The Wide Range of Prerogatives of the Security Council................................... 8 2.2. Inequality in the Security Council ..................................................................... 12 3. The Role of the Veto in the Security Council’s Inability to Protect Victims from Atrocity Crimes ............................................................................................................. 16 3.1. A Late Reaction to Apartheid in South Africa .................................................. 16 3.2. A Shield for States Committing Human Rights Violations ................................ 19 3.3. Failure to Act and Unauthorised Use of Force ................................................. 21 4. The Pernicious Effects of UN Responses to Atrocity Crimes ................................... 23 4.1. The Direct Adverse Effects of UN Measures on Human Rights ....................... 23 4.2. The Consequences of Failed Interventions on the Organisation’s Unity .......... 26 5. Conclusion .................................................................................................................... 30 Bibliography Primary Sources ............................................................................................................. 34 Secondary Sources ........................................................................................................ 35 1. Introduction Dag Hammarskjöld, Secretary-General of the United Nations (UN) between 1953 and 1961, once famously said that the UN was created not to give mankind heaven but to save it from hell.1 However, upon reading the numerous criticisms against the world organisation, one could wonder if it has indeed managed to do so. The UN serves a great many purposes: it pursues international peace and security, the development of friendly relations among nations, co-operation in solving international problems and in promoting and encouraging respect for human rights and fundamental freedoms, and finally it aspires to be a centre for harmonising the action of nations towards those purposes.2 As underlined by the fourth purpose, the UN aims at being a forum where nations would coordinate their action and compromise in order to tackle world problems and ensure international peace and security. However, the UN has on many occasions failed to fulfil that promise. It has often been unable to prevent ‘hell’ which is one of the main reasons it has come under heavy fire: ‘It has infuriated with its numbing bureaucracy, its institutional cover-ups of corruption and the undemocratic politics of its security council. It goes to war in the name of peace, but has been a bystander through genocide’.3 This work is not a summary criticism of the UN as a whole, but a study of the decision- making process in the UN Security Council (SC) with regard to responding to mass violations of human rights, and more specifically ‘atrocity crimes’. It cannot be denied that the UN has had successes, as asserted by Connors and Schmidt, who write that ‘[t]he growth of the UN human rights protection system has contributed to an improvement in the human rights situation in many countries and many thematic areas’, and add that the visibility of the UN's human rights work ‘ensures dissemination of knowledge of international human rights standards and mechanisms’.4 However, this paper argues that, as a result of over-politicisation in the SC, the UN has failed on many occasions to protect human lives and human rights. Too often, the international community has ignored urgent crises or responded too late. In other cases, interventions ostensibly carried out in the defence of human rights have been used to further the specific interests of powerful states and/or they have had serious adverse effects on local populations. The paper concludes that this has larger consequences for the legitimacy 1 Dag Hammarskjöld, Address at University of California Convocation, Berkeley, California, 13 May 1954, United Nations Press Release SG/382 <http://ask.un.org/faq/14623> accessed 29 June 2018. 2 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, art 1. 3 Chris McGreal, ‘70 years and half a trillion later: what has the UN achieved?’ The Guardian (7 September 2015) <https://www.theguardian.com/world/2015/sep/07/what-has-the-un-achieved-united- nations> accessed 15 April 2018. 4 Jane Connors and Markus Schmidt, ‘United Nations’ in Daniel Moeckli et al (eds), International Human Rights Law (2nd edn, Oxford University Press 2014) 395. 1 of the SC and the UN as a whole, pointing to the urgent need to reform the decision-making process in the SC. This introductory chapter examines the key notions of atrocity crimes and over- politicisation and the role of the SC in responding to serious human rights violations. 1.1. The Notion of Atrocity Crime The Framework of Analysis of Atrocity Crimes (FAAC) of the UN Office of the Special Advisers on the Prevention of Genocide and the Responsibility to Protect is a document released in 2014 and intended to be a tool for the prevention of these crimes against humankind. The acts associated with these crimes ‘affect the core dignity of human beings’5 and as such they are a matter of grave concern for the international community. These crimes are genocide, war crimes and crimes against humanity as well as ethnic cleansing, which is not an independent crime in international law, but encompasses violations of international human rights or humanitarian law which may constitute one of the three legally recognised atrocity crimes. It is necessary to define these crimes: War crimes are ‘serious breaches of international humanitarian law committed against civilians or enemy combatants during an international or domestic armed conflict’.6 Genocide, on the other hand, is not exclusively limited to situations of armed conflict. The crime of genocide is an act committed ‘with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. This act can be killing members of the group, or causing them serious bodily or mental harm, the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group, the imposition of measures intended to prevent births within the group, and finally the forcible transfer of children of the group to another group.7 The notion of crimes against humanity was first defined in the Charter of the Nuremberg Tribunal of 1945,8 and today, the Rome Statute of the International Criminal Court (ICC) gives a list of acts such as murder, enslavement, 5 UN Office of the Special Advisers on the Prevention of Genocide and the Responsibility to Protect, ‘Framework of Analysis for Atrocity Crimes – A Tool for Prevention’ UN.org (2014) <https://www.un.org/en/genocideprevention/publications-and-resources.html> downloaded 8 March 2018. 6 UN Office of the High Commissioner for Human Rights (OHCHR), DRC: Mapping Human Rights Violations 1993-2003, (Info Note No2, ‘War Crimes, Crimes against Humanity and Genocide’) <https://www.ohchr.org/Documents/Countries/CD/FS-2_Crimes_Final.pdf> accessed 7 June 2018. 7 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948,
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