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The ‘Actively Seized’ Security Council

By Cameron Hunt

20 September, 2008

With the Beijing Olympics now over, it seems that the international spotlight is slowly again returning to Darfur, Sudan, where things had been relatively quiet until recently. In what appears to be a fantastic coincidence, the BBC reported on 25 August 2008 — one day after the closing of the Games in Beijing — that “100 government trucks surrounded the Kalma camp” for Internally Displaced Persons (IDPs), in Southern Darfur, and made efforts “to disarm the camp’s residents”. According to United Nations (UN) sources, the consequent “excessive, disproportionate use of lethal force by the Government of Sudan security forces” lead to an estimated 64 deaths, and 117 wounded.

The timing of this event might not be so remarkable, if not for the fact that the BBC had reported on 22 November 2007 — some nine months prior — that, “In a notice seen by the BBC, the police said they would start removing arms from the [Kalma] camp on Saturday” — something which led aid agencies to warn at the time, that they were “concerned that a confrontation could leave scores dead and thousands displaced”. No reason appears to have been given for the delay in carrying out the notice, but according to the UN, when it was effected, “the camp residents seemed to carry only sticks, knives and spears”.

More recently, on 10 September 2008, it was reported that, according to information received from IDPs and Darfuri rebels, “Sudanese Government forces launched sustained aerial bombardments over the past week … in North Darfur state”. The UN ‘peacekeeping’ mission in Darfur was not able to confirm this information, as it “has not yet established a presence in the area because of security reasons”, but it could confirm that it had observed “an increase in aircraft traffic, particularly attack helicopters”. These reports might not seem so surprising either, except for the fact that the UN Security Council first ‘urged’ “the Government of Sudan to refrain from conducting military flights in and over the Darfur region in accordance with its commitments”, on 18 September 2004, by its resolution 1564 — having first ‘deplored’ “ceasefire violations by all parties, in particular the reports … of Government of Sudan helicopter assaults … on … villages”. Sudan, as a Member of the UN, is required by Article 25 of the UN Charter: “to accept and carry out the decisions of the Security Council”. This is why Council resolutions are said to be legally binding on all UN Members.

The first Security Council resolution adopted on the conflict in Darfur, which began in February 2003, was Council resolution 1556, of 30 July 2004. In that resolution, the Council: “Condemning all … violations of human rights and international humanitarian law by all parties to the crisis, in particular by the Janjaweed, including indiscriminate attacks on civilians, rapes, forced displacements, and acts of violence”; “Recalling that over one million people are in need of urgent humanitarian assistance, … and that without urgent action … the lives of hundreds of thousands of people will be at risk”; and, “Determining that the situation in Sudan constitutes a threat to international peace and security”, owing to its direct impact upon Chad and the Central African Republic; “Demands that the Government of Sudan fulfil its commitments to disarm the Janjaweed militias … and expresses its intention to consider further actions … on the Government of Sudan, in the event of non-compliance”. Finally in this resolution, the Council: “Decides to remain seized of the matter” — something it has declared in virtually every Council resolution on Darfur in the four years that have since ensued, as well as in many other of its resolutions.

Subsequently, we know that “without urgent action … the lives of hundreds of thousands of people” were indeed “at risk” — 300,000 people have now died as a direct result of the conflict in Darfur. Another 2.7 million Darfuris have been made homeless as a result of the ongoing fighting between Darfuri rebels, Government forces, and the Government-backed Janjaweed militias. The Janjaweed, for those that are not already aware, are Arab nomads that are armed and backed by the Administration in Khartoum, with the apparent purpose of eliminating any and all opposition to Khartoum’s policies, in Darfur. Given reports that many of the same Arab nomads have since settled on the lands that they had previously razed, lands where they had sometimes been denied access by the owners, the motivations of the Janjaweed seem fairly straight-forward. Literally, a Janjaweed, is “a man with a gun on a horse”.

Security Council resolution 1591, of 29 March 2005: “Deplores strongly that the Government of Sudan and rebel forces … have failed to comply fully with their commitments … [and] condemns the continued violations … including air strikes by the Government of Sudan … and rebel attacks on Darfur villages … and the failure of the Government of Sudan to disarm Janjaweed militiamen”; and, consequently, “Demands that the Government of Sudan … immediately cease conducting offensive military flights in and over the Darfur region”. Given that there has still not been news of any Government efforts to “to disarm Janjaweed militiamen”, it seems that Khartoum considers the disarmament of the residents of IDP camps far more pressing — despite “violations of human rights and international humanitarian law … in particular by the Janjaweed”, who remain armed, and who continue to attack IDP and refugee camps with impunity.

On 16 May 2006, as an outcome of the recently signed ‘Darfur Peace Agreement’, the Council declared by its resolution 1679, that it was “welcoming the statement … by the representative of the Sudan … of the Government of National Unity’s full commitment to implementing the Darfur Peace Agreement”; and, that it “Endorses the decision of the African Union … in view of the signing of the Darfur Peace Agreement, [that] concrete steps should be taken to effect the transition from AMIS [African Union Mission in the Sudan] to a [joint] United Nations operation” — the ‘United Nations-African Union Mission in Darfur’ (UNAMID). It was however another year before UNAMID was mandated by the Council, in its resolution 1769, of 31 July 2007, in which the Council: “Commending … the agreement of Sudan that the Hybrid operation shall be deployed in Darfur”; “Decides … to authorise and mandate the establishment, for an initial period of 12 months, of an AU/UN Hybrid operation in Darfur”; “Decides that [by] … no later than 31 December 2007, UNAMID … will assume authority … with a view to achieving full operational capability and force strength as soon as possible thereafter”; and, “calls for … in accordance with relevant provisions of international law, the full, safe and unhindered access of relief personnel to all those in need”.

UNAMID saw its mandate extended by another year on 31 July 2008, by way of Council resolution 1828, in which the Council: “Noting with strong concern ongoing attacks on the civilian population and humanitarian workers and continued and widespread sexual violence”; “Reiterating its deep concern for the decreasing security of humanitarian personnel, including killings of humanitarian workers … and the hindering of their access to populations in need”; “Demanding an end to attacks on civilians … including by aerial bombing”; “Welcomes the intention of the Secretary-General to deploy 80 per cent of UNAMID by 31 December 2008”; and, assuringly, “Decides to remain seized of the matter”.

There remains a great deal of confusion in the public sphere, particularly in the case of Darfur, as to precisely what the Security Council means when it declares that it shall “remain seized” — or even “actively seized” — of a particular matter. This declaration is in fact a direct reference to Article 12, Paragraph 1, of the UN Charter: “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation”. It is a declaration by the Security Council — whose 15 Members include the five veto-brandishing permanent members, such as China — that the General Assembly of the United Nations — in which all 192 UN Members are represented — has no grounds for making “any recommendation with regard to that dispute or situation”, of which the Council is already fully “seized”, and that it should therefore mind its own business.

The only real problem with this interpretation of Article 12, Paragraph 1, is that it is wrong, and that precedents first set in 1956 prove it to be wrong. The exact meaning of this Article was debated at length by the General Assembly during its discussions on, what became on 3 November 1950, Assembly resolution 377 A — the ‘Uniting for Peace’ resolution. This resolution, which was supported by all of the Security Council’s permanent members, excepting Russia — and which was in fact sponsored by the US, the UK, and France — made law, various interpretations of the powers of the General Assembly. During discussions at that time, the leading scholarly source on the UN Charter, who was quoted by representatives on both sides of the debate, was Professor Hans Kelsen, who was then teaching international law at the University of California. During plenary discussions on the 377 A draft, the Cuban representative read out the following passage on Article 12, Paragraph 1, from Professor Kelsen’s “recently published” book, The Law of the United Nations:

The words ‘while the Security Council is exercising ... the functions [assigned to it in the present Charter] …’ may be interpreted to mean: while a dispute or situation is still on the agenda of the Council. But it may also be interpreted to mean: while the Security Council is actually exercising its functions so that when the Council because of the exercise of the veto right is reduced to inaction, it should not be considered as ‘exercising’ its functions.

The Cuban representative continued: “Kelsen [also] … says that the organs … of the United Nations whose duty it is to apply the Charter are free to interpret as they think fit the provisions they have to apply”. This assertion by Kelsen very much lent its weight to the second interpretation of Article 12, Paragraph 1, that he had provided. Article 12 of the UN Charter falls under the “FUNCTIONS and POWERS” of the General Assembly — it was for the Assembly to decide whether or not “the Security Council is exercising … the functions assigned to it”.

During the meetings of the Assembly’s First Committee, which preceded plenary discussions on 377 A, the representative of France made clear the French position on Article 12: “In his opinion, the Security Council was not exercising its functions when it was no longer seized of a question”. He did not consider this to be a major restriction upon the Assembly’s powers however, as “It had already been agreed that the Security Council concluded a question … by a procedural vote”, meaning that such a decision could not be vetoed by a permanent member of the Council. The French representative went on to add that, “With regard to the vote by which the Security Council removed a question from its agenda … there were precedents which should be taken into account. For example, when, at its 202nd meeting the Council had removed the Greek question from its agenda”, by its resolution 34. The USSR, a permanent member of the Council, had voted against that resolution’s adoption.

The resultant interpretations of the General Assembly’s powers under the UN Charter, which were made law by Assembly resolution 377 A, were first utilized during the Suez Canal Crisis of 1956. That crisis began with the invasion of the Sinai Peninsula by Israeli forces, on the night of 29 October 1956, and was escalated the following day when the British government issued the Egyptians with an ultimatum to “accept occupation of Egyptian territory by British and French forces of key positions”, along the Suez Canal — the very same Canal that the Egyptian government had nationalized three months earlier. This intervention by the British and French was said to be “designed to ensure effective separation of the belligerents and also to guarantee freedom of transit through the Canal”. Egypt rejected the ultimatum, and according to its representative at the UN, “air raids were carried out … by British and French jet bombers, at 7 p.m., 8.45 p.m. and 10.30 p.m.”, on 31 October 1956.

The Security Council met immediately, in order to discuss the Crisis. The US introduced the first draft resolution, which called for: “Israel immediately to withdraw its armed forces behind the established armistice lines”. It was vetoed by the British and French — permanent members of the Council. The second draft resolution on the conflict, introduced by the USSR, called for the same, and also ‘called upon’ “all the parties concerned immediately to cease fire”. It too was vetoed by the British and French representatives, thereby paralysing the Council, and calling into play the Assembly’s residual powers. It was the Yugoslavian Council representative that raised the possibility of convening the first General Assembly ‘emergency special session’ (ESS), under the terms of resolution 377 A. He stated: “Should Security Council action be … stultified by the veto of the aggressors or by other means, the responsibility of the United Nations will not have ceased. It will have passed to all Members of the United Nations, to the United Nations as a whole.” That representative’s draft resolution, calling for the first General Assembly ESS, was adopted as Council resolution 119, despite the negative votes of the French and the British — according to the Charter interpretations embodied in resolution 377 A, the calling of an ESS was a procedural matter.

What is most interesting about Council resolution 119, is that it made no mention of removing the issue from the Council’s agenda — from the list of items of which it was ‘seized’ — as the Council had previously done in the case of the ‘the Greek question’. Despite the fact that the French and UK representatives raised two technical objections as to the legality of the first ESS, and to the circumstances in which it was called, no reference was made by either of them to this oversight — to Article 12 — even though the point had been discussed extensively only six years prior; in particular by the French. This is especially significant given the concern that the UK representative had earlier expressed to the Council, in relation to “the regard we must have to the precedents we may create in dealing with our affairs”. Indeed, it was not until three days into the Assembly’s first ESS that any reference was made to the possible restrictions imposed upon the Assembly’s powers by Article 12, Paragraph 1, of the UN Charter. By this time, the Assembly had already adopted its resolution 997, in which it called for “an immediate cease-fire”, and for Israel “to withdraw all forces behind the armistice lines” — there are of course no vetoes in the General Assembly.

It was not until the Assembly’s third emergency meeting on the Suez Crisis, on 3 November 1956, that the representative of the Philippines first made the following observation:

From a procedural point of view I have serious misgivings... [With] respect to the Suez Canal question, it will be remembered that the Security Council is actually seized of this issue… [The] outbreak of hostilities did not remove this question from the Security Council, in which the issue is still pending. It is quite obvious from the relevant provisions of the Charter that the General Assembly cannot consider a question of which the Security Council is actually seized.

Given that the Philippines delegation had only the previous day voted in favour of Assembly resolution 997, which had additionally urged that “steps be taken to reopen the Suez Canal and restore secure freedom of navigation”, this observation appears to have been a little tardy. In any case, the precedent had already been set. The Assembly had decided that the Security Council was not exercising the functions assigned to it by the Charter, and, despite the fact that this item remained on the Council’s agenda, had adopted a recommendation with regard to that dispute. The second interpretation offered by Professor Kelsen had prevailed: “when the Council because of the exercise of the veto right is reduced to inaction, it should not be considered as ‘exercising’ its functions”. It is important to note in relation to this interpretation, that Article 12, Paragraph 1, makes no reference to a lack of unanimity amongst the permanent members — the ‘veto’ power — as being a necessary prerequisite to the Assembly arriving at such a determination.

The following day, 4 November 1956, whilst meeting to discuss the almost simultaneous invasion of Hungary by the USSR, and owing to a veto by the USSR on that matter, the Security Council adopted resolution 120, which called for the convening of the Assembly’s second ESS. Again, this resolution included no decision to take ‘the situation in Hungary’ off the Council’s agenda. That same day, the Assembly adopted a resolution calling for the USSR “to desist forthwith from all armed attack on the people of Hungary”, and “to withdraw all of its forces without delay” — the precedent had been set in stone.

23 September 2008 will see the opening of the general debate, of the General Assembly’s 63rd regular session. According to recent media reports, one of the most pressing tasks currently being planned for the 63rd session, will be efforts by the Arab League, the African Union, China and Russia — with the backing of France and Britain — to ensure that Sudan’s President, Omar al-Bashir, is NOT indicted by the International Criminal Court (ICC) for crimes against humanity. This is quite an interesting turn, given that it was in fact the UN Security Council which had originally asked the ICC Prosecutor to investigate al-Bashir’s possible involvement in the atrocities in Darfur. The Prosecutor’s conclusion was that al-Bashir “bears criminal responsibility in relation to 10 counts of genocide, crimes against humanity and war crimes”.

Such machinations might not seem so repugnant, but for the fact that they are happening in parallel with UN planning to commemorate the 60th anniversary of the ‘Universal Declaration of Human Rights’, on 10 December 2008. Amongst its other more obvious provisions, Article 21 of that Declaration states: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections”. Brushing aside the fact that al-Bashir is a military dictator that came to power in a coup in 1989, it should be remembered that, in signing the Darfur Peace Agreement on 5 May 2006, the Administration in Khartoum agreed that: “The permanent status of Darfur shall be determined through a referendum held simultaneously in the three states of Darfur … not later than July 2010”. If the Darfuris voted for the creation of an autonomous ‘Darfur Region’, within the State of Sudan, a Constitutional Commission was to be formed to “to determine the competencies of the Regional Government of Darfur … [and to] present for adoption its proposed Constitution to the Assemblies of the three states of Darfur … within three months of the referendum”. In relation to this already agreed-to referendum, it is important to remember that the Security Council, on 30 April 2007, ‘called upon’ “the Government of National Unity and the international community to support a successful elections process”. On 31 July 2007, the Council also ‘decided that’ “UNAMID is authorised to take the necessary action, in the areas of deployment of its forces … [to] support early and effective implementation of the Darfur Peace Agreement” — which would of course entail “early and effective” support for the referendum to be held in Darfur, “not later than July 2010”.

Given that a great many UN members will soon need to choose between commemorating the Universal Declaration of Human Rights, or abrogating it, it would seem that the UN has arrived at another perilous ‘fork in the road’. Along the first path, the General Assembly makes a determination that the Security Council is not exercising the functions assigned to it, and adopts a resolution calling for the complete array of sanctions against the Government of Sudan, until UNAMID is fully deployed, without restrictions, and until the agreed-to referendum has taken place. Along the second path— Actually, I don’t wish to discuss the second path, as I fear the UN could become lost with its next wrong-turn.

Cameron Hunt is the author of Pax UNita - A novel solution to the Israel-Palestine conflict.

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