Chapter Four
Security Council Interventions outside an Explicit Occupation Framework
Th e United Nations Security Council, using its coercive powers to restore and maintain “international peace and security” under Chapter VII of the Charter of the United Nations, has authorised a range of interventions in recent years which challenge notions of rule of law or judicial reconstruction by military forces,1 similarly to the challenges posed by occupation law. Th ese include inter- ventions by UN forces with the consent of a government in the host state, inter- ventions where UN forces comprise a “transitional authority” exercising all or some of the powers of government, and interventions where the UN expresses support but allows interventions to occur under national command.2 It matches the American rhetorical and strategic focus on the rule of law as one of the “nonnegotiable demands of human dignity” along with a range of individual rights.3
1 24 October 1945, San Francisco, 1 UNTS 41, entered into force 1 November 1945 (‘UN Charter’); Michael A. Newton, “Harmony or Hegemony: Th e American Military Role in the Pursuit of Justice” (2004) 19 Conn J Int’l Law 231, 232 2 Examples include intervention in Iraq based on host state consent (UNSC Resolution 1546 (2004)), extended annually in Resolutions 1637 (2005), 1723 (2006) and 1790 (2007); United Nations Transitional Authority in East Timor (UNTAET; UNSC Resolution 1272 (1999)), United Nations Transitional Authority in Cambodia (UNTAC; UNSC Resolution 745 (1992)) and United Nations Mission in Kosovo (UNMIK; UNSC Resolution 1244 (1999)) as transitional authorities; and national command-based intervention in the Unifi ed Task Force (UNITAF), working with United Nations Operation in Somalia 1 (UNOSOM I), authorised in UNSC Resolution 794 (1992), or the United Nations Assistance Mission in Rwanda (UNAMIR), in which forces under national command agreed to “co-operate” with the UN Secretary General to achieve the designated mission (UNSC Resolutions 872 (1992) and 929 (1994)). 3 Including “free speech; freedom of worship; equal justice; respect for women; reli- gious and ethnic tolerance; and respect for private property:” Th e National Security Strategy of the United States of America, (September 2002), 9
Th e Security Council has not authorised an intervention where the Resolution itself acknowledges the application of occupation law, although Resolution 1483 (2003) in particular has been described as a “rather unstable merger” between occupation law and Chapter VII powers in the early days of the Coalition intervention in Iraq.4 Th erefore the questions arise: what law does apply to Security Council-authorised interventions, and how does that body of law authorise or accept intervention in domestic judicial systems to achieve the rule of law, in a legal environment which demands self-determination and favours national jurisdiction in criminal prosecutions?5 Further, how does the use of military interveners aid or hinder such programs? Th ese issues are espe- cially important where the Security Council confers its authority on military intervention in an independent state.6 In Iraq after the end of occupation in 2004, military interveners took an active role in judicial reconstruction, contrary to the reality that the success of intervention is in establishing the secure environment required for the later, self-realisation of the rule of law.7 An analysis of the course of that interven- tion, as well as military interventions in other states, follows a conceptual rather than chronological path in this chapter. Th is recognises that widespread public rejection of the intervention in Iraq by Coalition forces acting with UN author- ity, notwithstanding the consent of Iraqi authorities, provides a useful coun- terpoint to other interventions focussed on self-determination, particularly Timor-Leste, in discussing legitimacy. It is legitimacy, in the sense of social acceptability,8 which will be seen as an essential element in rule of law forma- tion, as opposed to the restoration of order and security.
4 Hilary Charlesworth, “Law After War” (2007) 8 MJIL 233, 239. 5 For example, the principle of complementary jurisdiction in the Preamble and art 1, Statute of the International Criminal Court, concluded 17 July 1998, Rome, 2187 UNTS 3, entered into force 1 July 2002, UN Doc. A/CONF.183/9* (‘Rome Statute’). 6 General concerns have been raised about rule of law interventions which lack explicit authority from the Security Council that the intervener “should sub- ject their intervention to the adjudication by the International Court of Justice,” including at the instance of the state subject to intervention. Th e benefi t of inter- national judicial oversight, in Sampford’s view, is that the complaining state, to obtain redress, must also submit itself to examination as to its compliance with the international rule of law, including human rights, so that the “mechanism for subjecting interveners to the rule of law, desirable of itself, also deals with one of the strongest objections to it:” Charles Sampford, “Reconceiving the Rule of Law for a Globalizing World” in Spencer Zifcak (ed), Globalisation and the Rule of Law (2005), 25. In such manner could the intervener demonstrate their own subjection to the international rule of law – and, it would appear, prove its own legitimacy – but it has not yet been adopted in practice. 7 Newton, above n 1, 238. 8 Drumbl has formulated legitimacy as “the condition that arises when authority is