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UN Week – 2/18/13

February 22, 2013

This blog entry is written by members of our blogging community and expresses those experts’ views alone.

John and Douglas Carey, Editors

In this issue: US endorsement of “responsibility to protect;” due process in Security Council sanctions committees.

In a day-long Security Council debate on protection of unarmed populations targeted by belligerents in armed conflict or victimized as an unintended result of the fighting, US Ambassador Susan E. Rice declared that, when governments failed to protect civilians, the international community “must not dither, but must act responsibly to assume its collective responsibility to protect.”

In opening the debate, Secretary-General Ban Ki-moon had said that the obligation to protect civilians in armed conflict “does not rest solely with warring parties: we all have a responsibility to protect.” But of course it is not just in armed conflict that the theory of R2P applies; rather it applies to all war crimes, genocide, ethnic cleansing and crimes against humanity, whether or not occurring during armed conflict.

The UN High Commissioner for Human Rights, Navanethem Pillay, said in reference to Syria, “We will be judged against the tragedy that has unfolded before our eyes. This Council, as well as those of us in key positions within the United Nations, will be rightly asked what we did.” She noted that the Council could refer Syria to the International Criminal Court.

The representative of Japan noted that 57 countries, including his own, had asked the Council to refer Syria to the ICC. He also said that unmanned aerial vehicles could be used by peacekeeping missions in protecting civilians. South Africa said that such vehicles inevitably led to the killing of innocent civilians.

Switzerland was one of the 57 countries that had asked the Security Council to send Syria to the ICC, as was Hungary. The European Union welcomed the ICC’s decision to inquire into violations in Mali, as did Sweden, while noting the Council’s ability to refer Syria there, as recommended by Costa Rica.

Bangladesh said that the presence of uniformed female personnel could play a pivotal role in a State’s ability to protect its citizens, referring to the all-female Formed Bangladesh Police Unit that worked with peacekeeping missions in Haiti and the Democratic Republic of the Congo.

Germany stated that in Syria government attacks on schools and denial of civilian access to hospitals continued, while anti-government groups had also targeted schools.

Nicaragua asked why the Council did not invoke the concept of civilian protection when innocent civilians were assassinated by drones. Bolivia expressed concern at the use of drones, which it said had killed innocent civilians and violated international law.

A presidential statement, S/PRST/2013/2, was issued, stating that, “The Council considers the possibility, of using the International Fact-Finding Commission established in accordance with article 90 of the First Additional Protocol to the Geneva Conventions. The Security Council notes that the fight against impunity and accountability for the most serious crimes of international concern has been strengthened through the work on and prosecution of these crimes in the International Criminal Court, in accordance with the Rome Statute, in ad hoc and ‘mixed’ tribunals, as well as specialized chambers in national tribunals.”

These peripheral references to courts, including the ICC, come nowhere near to a Council reference of the Syrian situation, or any other, to the International Criminal Court. A thinly veiled reference to the Middle East reported that, “The Security Council recognizes the needs of civilians affected by foreign occupation and stresses further, in this regard, the responsibilities of the occupying power in full compliance with international law.” Such is the watered down language of hard-fought compromise.

Due process in Security Council sanctions committees.

On February 14th, the Security Council unanimously adopted resolution 2091 relying on Chapter VII of the Charter and extending for a year the mandate of the Panel of Experts that monitors the arms embargo and sanctions against those impeding peace in Sudan. Operative paragraph 4 states that the Council “regrets that some individuals affiliated with the Government of Sudan and armed groups in Darfur, continue to commit violence against civilians, impede the peace process, and disregard the demands of the Council, expresses its intention to impose targeted sanctions against individuals and entities that meet the listing criteria in paragraph 3 (c) of resolution 1591 (2005), and encourages the Panel of Experts, in coordination with the Joint African Union/United Nations Mediation, to provide to the Committee when appropriate the names of any individuals, groups, or entities that meet the listing criteria.”

Security Council resolution 1591, adopted in 2005, provides that individuals designated by the pertinent committee “based on the information provided by Member States, the Secretary-General, the High Commissioner for Human Rights or the Panel of Experts established under sub-paragraph (b) of this paragraph above, and other relevant sources, who impede the peace process, constitute a threat to stability in Darfur and the region, commit violations of international humanitarian or human rights law or other atrocities,  . . . or are responsible for offensive military overflights . . . shall be subject to the measures identified in sub-paragraphs (d) and (e) below;”

Sub-paragraph (d) calls for prevention of entry into or transit through their territories of all persons as designated by the Committee . . . .” Sub-paragraph (e) says “that all States shall freeze all funds, financial assets and economic resources that are on their territories . . . owned or controlled, directly or indirectly, by the persons designated by the Committee . . . .”

The due process issues raised by such arrangements have been confronted in other contexts, such as the sanctions regimes against Al-Qaeda and the Taliban. In those instances, the playing field has been substantially evened by the involvement of the UN Ombudsperson, Judge Kimberly Prost.

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