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DEELTIJDCOLLEGE 3 – PILACTIONS NOT INVOLVING FORCE, IMMUNITY & INTERNATIONAL HUMAN RIGHTS
UN SECURTIY COUNCIL: ACTIONS NOT INVOLVING FORCE:
UN collective security system is governed by 4 articles of the UN Charter.
Art. 39 – 42 UN Charter.
The UNSC has the key role here. Based on article 24 of the UN Charter we can see that the UNSC has the
primary responsibility for international peace and security.
So, what exactly can the UNSC determine upon?
The UNSC has to determine whether the treshhold of article 39 is met. This article states that the UNSC can
undertake certain measures in case there is a threat or a breach of international peace and security. It is then
up to the UNSC to determine what kind of actions it wishes to undertaken based on article 41 or 42 UN Charter.
Before it can take any measures, using force based on article 42 or not using force based on article 41, it first
has to establish whether there is an international threat to peace and security for the international community
as a whole. Basically, by establishing that the threshold of article 39 has been met, that opens the UNSC arsenal
of the articles 41 and 42.
Why is this problematic? In some cases, it has been stated that it is problematic for 1 specific reason and this is
because of the system in which the UNSC can take decisions. The way of making a decision by the UNSC is
based upon art. 27 of the UN Charter. The UNSC is composed of 15 member states. Each of those member
states has 1 vote. However, there are 5 permanent member that have a right to veto. That means that they can
veto any decision of the UNSC, besides that: a decision can be adopted in case there are 9 affirmative votes.
This does not mean that one of those veto powers member abstains from voting, it does then not mean that
this resolution is blocked. So this is the reason why in many cases, nothing is being done. This problem is
partially solved by the idea that in case a state abstains form voting this does then not result in a blockage of
that resolution. So, abstaining does not mean objecting -> Namibia Advisory Opinion p. 22. At the moment
that one of the 5 members uses its veto the resolution is blocked. If a state abstains from voting this sends a
political message: this means that a state is not very fond of the idea but also does not want to block it.
UNC art. 40, 41, 42 = steps that can be taken.
Art. 41 – measures not involving the use of force:
Two measures are explicitly mentioned in this article:
Sanctions: for example. Economic sanctions, arms embargoes, financial penalties and restrictions and
travel bans.
Severance of diplomatic relations -> international isolation
But there are also other measures which are not stated in article 41, they are considered to be falling under
article 41 aswell:
Creation of ad hoc international criminal tribunals ;
Peacekeeping operations
1
,SANCTIONS: ‘SMART SANCTIONS’
The idea from sanctions is to target certain states for example by boycotting. However, there was quite some
critics about the nature of such sanctions. This was because they said that those sanctions were not precise
enough: they are supposed to target the state but in fact the effect is mostly felt by civilians and not so much
by the people who were involved by the oppression for which such sanctions are adopted. Therefore, they
came up with a new concept -> smart sanctions: these are more targeted: a UNSC can name and list an
individual that could cause a threat to international peace and security and then impose certain sanctions upon
the freedom of such an individual. However, the main addressee still remains the state. So, a UNSC resolution is
not addressed to each and every one of us, it is addressed to the state. This state is then supposed to
implement these sanctions, targeting the freedom of an individual. -> for example: travel restrictions, freezing
of financial assets.
There have been a few discussions about the individualistic nature of such smart sanctions because there is not
really a review procedure. So, what happens in case a person is named and blacklisted and then measures or
sanctions are targeted at that person but this person want to contest its name being listed. Because what if for
example the UNSC aims to target J.J Andela but they blacklist J.J.A Andela by accident -> it is the wrong person.
Or the case where a person has a relative who is occupied by terrorist groups and this relative needs money so
the person sends money to the relative, does it then mean that you are financing terrorism?
So, there can be grave implications by being on such a list. What happens if you want to contest such a name
on that list? Within the UN system there was no review system.
Can you go to a national court? Could a Dutch judge in the Netherlands state: yes you are right, the UNSC has
made a mistake. No this is not possible because international organizations enjoy immunity before the
domestic courts in one of the states. -> art. 25 UNC
International courts? You can not go to the international court of justice because individuals do not have a legal
standing here. International criminal court? No because these criminal courts or tribunals only have jurisdiction
over ‘cor crimes’ such as, genocide etc.
There is an exception to this when you are an EU citizen -> Kadi case: Kadi was a person that was put on such a
list. The smart sanctions were targeted at him. He was on this list and he wanted to contest this listing but
there was no review system on a UN level. So, in this case the member state of Kadi was a member of the Eu
and on the EU level they implemented an EU regulation by enforcing that UNSC resolution. Kadi challenged
that EU regulation before the CJEU and he stated that his rights were violated. However, even though he went
to the court on this European level, this regulation was only there because tried to enforce a resolution which
was adopted by the UNSC, which states are obliged to follow, so there was this awkward construction of going
to a regional court, but in fact trying to challenge a UNSC resolution. It was almost as if they were saying that
European law was above international law. However, the message sent to the UNSC was therefore: you are the
upholder of international peace and security, you are not above the law yourself, you also have to comply with
this rule of the right to a fair trial or to have a certain appeal mechanism in place. This case has been
instrumental in certain developments regarding those smart sanctions: including the establishment of the so
called ‘ombudsperson’.
This was implemented in 2009 to monitor the implementation of these smart sanctions. It also served as a
instrument for individuals to contest such listings on a blacklist. So the blacklisted person can go to the
ombudsperson and say: I am listed on the black list but for the wrong reason, I should not be on this list. Then
this ombudsperson is going to review this application. So, once the ombudsperson receives such a delisting
request its work is then divided into 3 parts:
Information gathering
Dialogue (conversations)
Conclusion if the person was lawfully or unlawfully listed on the blacklist.
2
, SEVERANCE OF DIPLOMATIC RELATIONS:
This means an international isolation in the international community,
A state has the opportunity of unilaterally
deciding that it want so severe diplomatic
relations with another state. So, the
Netherlands could decide it want to severe
diplomatic relations with Belgium. That is
the possibility of a state. But in case the
UNSC under article 41 decides to use such
measures, it is not the right of that state
anymore but it becomes a duty. The UNSC
tells them do to so. The UN member states
have an obligation to implement the
decisions of the UNSC
CREATION OF AD HOC INTERNATIONAL CRIMINAL TRIBUNALS:
This measure is not explicitly included in article 41 UNC.
There are several international criminal tribunals established by such UNSC resolution and the two most
famous ones are:
International Criminal Tribunal for the former Yugoslavia (ICTY)
International Criminal Tribunal for Rwanda (ICTR)
The fact that article 41 is thought to include as well the creation of international ad hoc criminal tribunals was
challenged -> Tadic Decision on the Defence Motion for interlocutory Appeal on Jurisdiction: here it was
argued that the UNSC, by establishing the ICTY, acted outside the scope of its mandate. It was an ultra vires act-
> it was not listed in article 41 and therefore the UNSC acted outside its own mandate. The ICTY, decided upon
this itself, the ICTY stated: no when the UNSC created us they did not act outside its mandate, it did not
undertake any ultra vires act or decisions. In fact article 41 is not supposed to be seen as an exhaustive list, it is
only an indicative list and therefore, unless it is challenged and accepted, we can’t say that article 41 includes
the creation of ad hoc criminal tribunals.
ICTY:
Was established in 1993 to prosecute those people responsible for grave humanitarian violations in the former
Yugoslavia. This was the first international criminal tribunal after the establishment of the Neurenberg and
Tokyo tribunals after the second world war and so this ICT was established to prosecute those people that were
responsible for grave acts.
This measure of not using force could still provide a certain feeling of justice to the victims but it could also
result in a long-lasting peace in that region.
ICTR:
Was created in 1994 for the grave human rights violations that were committed on the territory of Rwanda
from the first of January until the 31st of December 1994. This has been the first tribunal ever to reach a verdict
on the crime of genocide.
These two tribunals are examples of tribunals established on the basis of an UNSC resolution. So the UNSC had
agreed that the treshhold of article 39 UNC has been met and thus that there is an international breach of
3
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