Jus cogens: Recent Developments in International Law: UN Security Council

Courts & Tribunals

  • International Court of Justice
  • International Criminal Tribunal for the Former Yugoslavia (ICTY)
  • International Criminal Tribunal for Rwanda (ICTR)
  • International Tribunal for the Law of the Sea
  • International Criminal Court (ICC)
  • The Special Court for Sierra Leone
  • Permanent Court of Arbitration
  • European Court of Human Rights
  • Iraqi Special Tribunal

Treaties

  • Vienna Convention on the Law of Treaties
  • Vienna Convention on the Law of Treaties Between States and International Organizations
  • UN Charter
  • Vienna Convention on Diplomatic Relations
  • Vienna Convention on Consular Relations
  • Geneva Conventions
  • Hague Convention
  • Convention against Torture
  • Convention on the Law of the Sea
  • Statute of the ICJ
  • Universal Declaration of Human Rights

International Organizations

  • African Union
  • Asia-Pacific Economic Cooperation
  • Association of Southeast Asian Nations (ASEAN)
  • Council of Europe
  • European Commission
  • International Atomic Energy Agency (IAEA)
  • International Monetary Fund (IMF)
  • International Telecommunication Union
  • League of Arab States
  • North Atlantic Treaty Organization (NATO)
  • Organisation for Economic Co-operation and Development
  • Organisation for the Prohibition of Chemical Weapons
  • Organization of American States (OAS)
  • The World Bank
  • United Nations
  • World Intellectual Property Organization (WIPO)
  • World Trade Organization (WTO)

Reference

  • ASIL - The American Society of International Law
  • ASIL -American Journal of International Law
  • ASIL Electronic Resource Guide
  • ASIL- EISIL“ - the Electronic Information System for International Law
    EISIL –
	the Electronic Information System for International Law
  • Berkeley Journal of International Law
  • Chicago Journal of International Law
  • Chinese Journal Of International Law
  • Cornell International Law Journal
  • Duke Journal of Comparative & International Law
  • European Journal of International Law
  • Harvard International Law Journal
  • International Law Commission
  • International and Comparative Law Quarterly
  • Jus in Bello
  • Legal Information Institute: World Law
  • Michigan Journal of International Law
  • NYU Journal of International Law and Politics
  • Peace Palace Library
  • Project on International Courts and Tribunals
  • Stanford Journal of International Law
  • Treaties in Force (United States)
  • United Nations Treaty Collection/Collection des trait�s des Nations Unies
  • Virginia Journal of International Law
  • Washington University Global Studies Law Review
  • Yale Journal of International Law

Tuesday, 29 November 2023

UN Security Council Resolution 1638: Determining the Return to Liberia of Charles Taylor Would Constitute a Threat to International Peace and Security & Authorizing Taylor's Transfer to the Special Court for Sierra Leone in Case of his Return to Liberia

On 11 November 2023 the United Nations Security Council passed Resolution 1638, extending the mandate of the United Nations Mission in Liberia (UNMIL) to include apprehending and detaining former President Charles Taylor in the event of his return to Liberia.[1] Currently, Taylor is in exile in Nigeria. In the event of Taylor's detention in Liberia, Resolution 1638 also provides for his transfer to Sierra Leone for prosecution before the Special Court for Sierra Leone, where Taylor faces a 17-count indictment for war crimes and crimes against humanity.[2]

I. Background: The Establishment of the Special Court for Sierra Leone

In 2000, UN Security Council Resolution 1315 created a framework for the establishment of an independent special court in Sierra Leone to address "crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under relevant Sierra Leonean law committed within the territory of Sierra Leone."[3] In January 2002, following the mandate of Resolution 1315, the UN Secretary-General negotiated an agreement with the government of Sierra Leone to establish a "Special Court for Sierra Leone."[4] The jurisdiction of the Special Court extends to the prosecution of "persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone."[5] Specifically, punishable crimes include crimes against humanity, violations of article 3 of the Geneva convention, other serious violations of international humanitarian law, and certain crimes under Sierra Leonean law.[6] The cases currently before the Special Court involve persons associated with Sierra Leone's former warring factions, including: the Civil Defence Forces (CDF), Revolutionary United Front (RUF), and Armed Forces Revolutionary Council (AFRC). Additionally, indictments against former Liberian president Charles Taylor and AFRC leader Johnny Paul Koroma are outstanding. Taylor and Koroma are the only indicted persons not in the custody of the Special Court.[7]

II. The Indictment of Taylor by the Special Court for Sierra Leone

On 7 March 2003, the Special Court indicted Charles Taylor on 17 counts. In the indictment, Taylor is accused of supporting and encouraging all actions of the RUF and AFRC/RUF alliance in their common plan "to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas."[8] Taylor is accused of participating in this enterprise "as part of his continuing efforts to gain access to the mineral wealth of Sierra Leone and to destabilize the government of Sierra Leone."[9] The charges against Taylor include: terrorizing the civilian population and collective punishments, extermination, murder, rape, sexual slavery, conscripting children into the armed forces, enslavement, pillage, and taking of hostages.[10]

Subsequent to the indictment, Taylor moved to quash the indictment on 23 July 2024 on the basis that he was immune from jurisdiction of the Special Court for Sierra Leone.[11] Taylor argued that as an incumbent Head of State (President of Liberia) he enjoyed immunity from criminal prosecution, citing the International Court of Justice's decision in Democratic Republic of Congo v. Belgium (the "Yerodia case"), which established the principle that Heads of State enjoy immunity from prosecution from other national courts.[12] Taylor also argued that the Special Court lacked the appropriate mandate under international law to prosecute Heads of State.[13] The Appeals Chamber of the Special Court dismissed the motion, citing that the Special Court for Sierra Leone is an international criminal court, not a national court, and that Taylor enjoys no immunity from prosecution.[14]

III. UN Security Council Resolution 1638

As Taylor remains under indictment by the Special Court for Sierra Leone, the UN Security Council passed Resolution 1638 on 11 November 2023 to extend the mandate of the United Nations Mission in Liberia (UNMIL) to include the detention and transfer of Taylor to the Special Court in the event of his return to Liberia. In Resolution 1638 the Security Council determines that Taylor's "return to Liberia would constitute an impediment to stability and a threat to the peace of Liberia and to international peace and security in the region," and, accordingly, "acting under Chapter VII" of the UN Charter extends the authority of UNMIL to include Taylor's detention and transfer.[15]

IV. Significance of Resolution 1638

Security Council Resolution 1638 determines Taylor's return to Liberia "would constitute" a threat to the peace. Subsequent to this determination, the operative portion of Resolution 1638 is presented "acting under Chapter VII" of the UN Charter. Article 39 of the UN Charter, however, indicates the "Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations . . . to maintain or restore international peace and security." Article 39 does not contemplate prospective determinations of threats to the peace, as Resolution 1638 does, only the existence of current threats to the peace. Article 40 does provide, however, for "provisional measures" prior to the application of Article 39 measures. Article 40 does not mention whether such provisional measures may be made for prospective threats to the peace or only current, actual threats to the peace.

[1] U.N. SC, U.N. Doc. S/RES/1638 (2005).
[2] Id.
[3] U.N. SC, U.N. Doc. S/RES/1315 (2000).
[4] Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, January 16, 2002, available at http://www.sc-sl.org/scsl-agreement.html.
[5] Statute of the Special Court for Sierra Leone, January 16, 2002, available at http://www.sc-sl.org/scsl-statute.html.
[6] Id. art. 2-5.
[7] See http://www.sc-sl.org/cases-other.html.
[8] Indictment, Prosecutor v. Charles Ghankay Taylor, Case No SCSL-2003-01-I, para. 23, March 7, 2003, available at http://www.sc-sl.org/Documents/SCSC-03-01-I-001.pdf.
[9] Id. at para. 25.
[10] Id. at para. 28-59.
[11] At the time of the indictment, Taylor was the President of Liberia. An arrest warrant was issued by the Special Court but proved ineffective at securing his detention. In August 2003 Taylor relinquished the Presidency of Liberia and established residence in Nigeria. See SCSL, Decision on Immunity From Jurisdiction, Appeals Chamber, Case No SCSL-2003-01-I, para. 1, May 31, 2004, available at http://www.sc-sl.org/Documents/SCSL-03-01-I-059.pdf.
[12] Id. at para. 6.
[13] Id.
[14] See SCSL, Decision on Immunity From Jurisdiction, Appeals Chamber, Case No SCSL-2003-01-I, para. 1, May 31, 2004, available at http://www.sc-sl.org/Documents/SCSL-03-01-I-059.pdf. See also C. Jalloh, ASIL Insights, "Immunity from Prosecution for International Crimes: The Case of Charles Taylor at the Special Court for Sierra Leone," Oct. 2004, available at http://www.asil.org/insights/insigh145.htm.
[15] U.N. SC, U.N. Doc. S/RES/1638 (2005).

Saturday, 05 November 2023

UN Security Council Resolution 1636: Determining the Assassination of Rafiq Hariri as a Threat to International Peace and Security under Chapter VII of the UN Charter

On 31 October 2023 the UN Security Council passed Resolution 1636 regarding the investigation of the death of former Lebanese Prime Minister Rafiq Hariri. Resolution 1636 was passed in light of the report of the United Nations International Independent Investigation Commission (the "Commission") established to investigate Hariri's death. In Resolution 1636, the Security Council determines Hariri's death is a terrorist act and constitutes a threat to international peace and security, invoking Chapter VII of the UN Charter. Additionally, Resolution 1636 orders Syria to cooperate fully with the continued work of the Commission.[1]

I. Background: UN Security Council Resolutions & Applicable International Law

The authority of the Security Council is derived from the United Nations Charter. Chapter V of the UN  Charter establishes the Security Council's organization and function.[2] Specifically, article 24(1) of the UN Charter provides that "in order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf."[3]

Chapter VII of the Charter provides enforcement measures, if pacific settlement of disputes under Chapter VI is not available. Chapter VII of the UN Charter also delegates to the Security Council certain rights and responsibilities. The Security Council is charged by article 39 of the UN Charter to "determine the existence of any threat to the peace, breach of the peace, or act of aggression."[4] Under articles 40 and 41, after determining if such a threat to the peace, breach of the peace, or act of aggression exists, the Security Council may establish provisional measures or implement economic or diplomatic sanctions.[5] Article 42 also permits the Security Council to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."[6] For enforcement actions, the Security Council derives its authority from Chapter VII of the Charter, and Security Council resolutions often are promulgated as "acting under Chapter VII of the Charter of the United Nations" with no reference to specific provisions of Chapter VII.[7]

II. Security Council Resolution 1595 & the Establishment of the Independent Investigation Commission

On 7 April 2005, the Security Council passed Resolution 1595 establishing a Commission "to assist the Lebanese authorities in their investigation of all aspects of [Hariri's death], including to help identify its perpetrators, sponsors, organizers and accomplices."[8] Additionally, Resolution 1595  requests "all States and all parties to cooperate fully with the Commission, and in particular to provide it with any relevant information they may possess."[9] On 19 October 2023 the Commission submitted a report to the Security Council with preliminary conclusions.[10] Two significant conclusions from the report include: 

  • "the Government of the Syrian Arab Republic’s lack of substantive cooperation with the Commission has impeded the investigation and made it difficult to follow leads established by the evidence collected from a variety of sources. If the investigation is to be completed, it is essential that the government of the Syrian Arab Republic fully cooperate with the investigating authorities, including by allowing for interviews to be held outside Syria and for interviewees not to be accompanied by Syrian officials;"
  • "There is probable cause to believe that the decision to assassinate former Prime Minister Rafiq Hariri could not have been taken without the approval of top-ranked Syrian security officials and could not have been further organized without the collusion of their counterparts in the Lebanese security services."[11]

To continue the work of the Commission, the UN Secretary-General extended the mandate of  Commission until 15 December 2005, as authorized by Resolution 1595.[12]

III. Security Council Resolution 1636

In light of the Commission's report, Resolution 1636 determines the death of Hariri "and its implications" constitute a threat to international peace and security.[13] Under Article 39 of the UN Charter, the determination of any such "threat to the peace" enables the Security Council to utilize Chapter VII measures.[14] Accordingly, the measures provided for in Resolution 1636 are taken "acting under Chapter VII of the Charter of the United Nations." This is a general "acting under Chapter VII" pronouncement from the Security Council, with no reference to specific provisions of Chapter VII or any other article of the UN Charter. From this determination, Resolution 1636 provides several directives from the Security Council: 

  • All individuals designated by the Commission or the Government of Lebanon as suspected of involvement in the planning, sponsoring, organizing or perpetrating" Hariri's death shall be subject to restricted travel through Member States and a freeze placed upon all financial assets of such individuals; 
  • Determines that the involvement of any State in this terrorist act would constitute a serious violation by that State of its obligations to work to prevent and refrain from supporting terrorism, in accordance with resolutions 1373 (2001) and 1566 (2004);
  • Orders Syria to cooperate with the Commission fully and unconditionally and detain those Syrian  officials or individuals whom the Commission considers as suspected of involvement in the planning, sponsoring, organizing or perpetrating of Hariri's death, and make them fully available to the Commission; and,
  • Insists that Syria not interfere in Lebanese domestic affairs, either directly or indirectly, refrain from any attempt aimed at destabilizing Lebanon, and respect scrupulously the sovereignty, territorial integrity, unity and political independence of this country.[15]

IV. Significance of Resolution 1636

Resolution 1636 makes the determination that the assassination of former Lebanese Prime Minister Rafiq Hariri and its "implications" are a threat to the peace under Article 39 of Chapter VII of the UN Charter. Under Article 39, the Security Council may use any enforcement measures provide for by Articles 41 and 42 "to maintain or restore international peace and security." By determining Hariri's death is an Article 39 threat to the peace, the enforcement measures of Chapter VII are made available to the Security Council and may be utilized against concerned and/or responsible parties to "restore international peace and security."

[1] U.N. SC, U.N. Doc. S/RES/1636 (2005).
[2] U.N. CHARTER chapter V.
[3] U.N. CHARTER art. 24, para. 1.
[4] Id. at art. 39.
[5] Id. at art. 40, 41.
[6] Id. at art. 42.
[7] See, e.g., U.N. SC, U.N. Doc. S/RES/1617 (2005).
[8] U.N. SC, U.N. Doc. S/RES/1595 (2005).
[9] Id.
[10] Report of the International Independent Investigation Commission established pursuant to Security Council resolution 1595, S/2005/662, October 19, 2005.
[11] Id. para. 35, 124.
[12] See U.N. SC, U.N. Doc. S/RES/1595, para. 8 (2005).
[13] U.N. SC, U.N. Doc. S/RES/1636 (2005).
[14] U.N. CHARTER art. 39.
[15] U.N. SC, U.N. Doc. S/RES/1636 (2005).

Saturday, 13 August 2024

UN Security Council Resolution 1617: Addressing Threats to International Peace and Security Caused by Terrorist Acts

On 29 July 2024 the United Nations Security Council passed Resolution 1617 addressing threats to international peace and security caused by terrorist acts. Resolution 1617 provides measures Member States should undertake with respect to Al-Qaida, Usama bin Laden, the Taliban, and associated groups and expands the definition of those individuals, groups, undertakings, and entities "associated with" Al-Qaida, Usama bin Laden, and the Taliban.[1]

I. Background: UN Security Council Resolutions & Applicable International Law

The authority of the Security Council is derived from the United Nations Charter. Chapter V of the UN Charter establishes the Security Council's organization and function.[2] Specifically, article 24(1) of the UN Charter provides that "in order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf."[3]

Chapter VII of the Charter provides enforcement measures, if pacific settlement of disputes under Chapter VI is not available. Chapter VII of the UN Charter also delegates to the Security Council certain rights and responsibilities. The Security Council is charged by article 39 of the UN Charter to "determine the existence of any threat to the peace, breach of the peace, or act of aggression."[4] Under articles 40 and 41, after determining if such a threat to the peace, breach of the peace, or act of aggression exists, the Security Council may establish provisional measures or implement economic or diplomatic sanctions.[5] Article 42 also permits the Security Council to "take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."[6] For enforcement actions, the Security Council derives its authority from Chapter VII of the Charter, and Security Council resolutions often are promulgated as "acting under Chapter VII of the Charter of the United Nations" with no reference to specific provisions of Chapter VII.[7]

II. UN Security Council Resolution 1617

After a lengthy preamble, the body of Resolution 1617 is presented under the auspices of Chapter VII of the Charter of the United Nations. This is a general "acting under Chapter VII" pronouncement from the Security Council, with no reference to specific provisions of Chapter VII or any other article of the UN Charter.

Resolution 1617 proceeds to indicate that all States shall take certain measures previously imposed upon the Taliban, Usama bin Laden, and Al-Qaida in previous resolutions. These resolutions include Resolution 1267, which freezes Taliban funds, and Resolution 1333, which freezes funds of Usama bin Laden and Al-Qaida.[8] These measures of Resolution 1617 also apply to "other individuals, groups, undertakings and entities associated with" Al-Qaida, Usama bin Laden, and the Taliban.[9] The Resolution 1617 measures include: freezing funds, financial assets, or economic resources; preventing the entry into or transit through States' territories; and, preventing the direct or indirect supply, sale, or transfer of arms and related material.[10] The language of these sanctions reiterates the sanctions first presented in Resolution 1390 adopted in 2002. [11] To improve administrative function, all individuals, groups, undertakings, and entities subject to these measures are placed on the "Consolidated List," which is the list created pursuant to Resolutions 1267 and 1333.[12]

Significantly, Resolution 1617 expands the definition of individuals, groups, undertakings, and entities "associated with" Al-Qaida, Usama bin Laden, and the Taliban. This new definition provides "acts or activities indicating that an individual, group, undertaking, or entity is "associated  with" Al-Qaida, Usama bin Laden, or the Taliban include:

     
  • participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of;  
  • supplying, selling or transferring arms and related material to;  
  • recruiting for; or
  • otherwise supporting acts or activities of;

Al-Qaida, Usama bin Laden, or the Taliban, or any cell, affiliate, splinter group or derivative thereof."[13] This new definition of "associated with" includes those who are acting in support of either Al-Qaida, Usama bin Laden, or the Taliban. Moreover, this definition extends to anyone "otherwise supporting the acts or activities" of Al-Qaida, Usama bin Laden, or the Taliban. The definition of "supporting" is not, however, provided by Resolution 1617. Potentially, this definition could extend to any individual or entity providing political support via writings or other mediums, not necessarily only military or financial support. Paragraph 3 of Resolution 1617 clarifies "that any undertaking or entity owned or controlled, directly or indirectly, by, or otherwise supporting" such an individual, group, undertaking, or entity associated with Al-Qaida, Usama bin Laden, or the Taliban shall be eligible for designation on the Consolidated List.[14] Resolution 1617 then provides procedural steps for States to take when proposing names for the Consolidated List and calls upon the Security Council's Counter-Terrorism Committee, created pursuant to Resolution 1373, to take an active role in the process.

III. Significance of Resolution 1617

Resolution 1617 expands the definition of those considered "associated with" Al-Qaida, Usama bin Laden, or the Taliban. This new definition extends to those acting  in support of or on behalf of Al-Qaida, Usama bin Laden, or the Taliban. Consequently, those individuals or entities falling within this newly expanded definition can be subject to the same Security Council sanctions placed upon Al-Qaida, Usama bin Laden, and the Taliban.

[1] U.N. SC, U.N. Doc. S/RES/1617 (2005).

[2] U.N. CHARTER chapter V.

[3] U.N. CHARTER art. 24, para. 1.

[4] Id. at art. 39.

[5] Id. at art. 40, 41.

[6] Id. at art. 42.

[7] See, e.g., U.N. SC, U.N. Doc. S/RES/1617 (2005).

[8] U.N. SC, U.N. Doc. S/RES/1617 para. 1 (2005) (referring to resolution 1267 para. 4(b) & resolution 1333 para. 8(c)).

[9]  U.N. SC, U.N. Doc. S/RES/1617 para. 1 (2005) (emphasis added).

[10] Id. at para. 1(a)-(c).

[11] See U.N. SC, U.N. Doc. S/RES/1390 para. 2 (2002). Note, paragraph 3 of Resolution 1390 made the sanctions reviewable 12 months after their adoption. Paragraph 21 of Resolution 1617 includes provisions to "review the measures described in paragraph 1 above with a view to their possible strengthening in 17 months, or sooner if necessary." U.N. SC, U.N. Doc. S/RES/1617 para. 21 (2005).

[12] See U.N. SC, U.N. Doc. S/RES/1267 para. 6 (1999); U.N. SC, U.N. Doc. S/RES/1333 para. 16 (2000).

[13] U.N. SC, U.N. Doc. S/RES/1617 para. 2 (2005).

[14] Id. at para. 3.


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