The Hebrew University Jerusalem

Faculty of Law

The law of the

United Nations

The Exam

Date: 11. 9. 2012

Student ID: 777235789

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Obsah QUESTION 1 PART ONE ................................................................................................................3

QUESITON 1 PART TWO ...............................................................................................................8

QUESTION 2 ...................................................................................................................................... 11

QUESTION 3 ...................................................................................................................................... 14

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QUESTION 1 PART ONE

In the debate over the legality or otherwise of NATO operation, what could be Syria’s

argument, NATO’s response and what would be your own conclusion.

Syrian arguments

The main Syrian argument must be the UN Charter and its article 2(4). All Member

states shall refrain from the threat or use of force against the territorial integrity or

political independence according to the UN Charter. There is no doubt that

imposition of a “no-fly zone” constitutes a serious violation of Article 2(4). To be

precise, the UN Charter allows two exceptions: authorization of the SC (the UN organ

responsible for the international peace and security) and self defense under Article

51. There is no other exception de lege lata. Any use of force except use of force

authorized by the SC and self defense constitutes violation of international law.

The SC did not authorized imposition of a “no fly zone” in the Syrian case. Turkey

cannot claim self defense, because there was no armed attack. The flow of Syrian

refugees could be considered as threat to international peace and security. It would

have not been surprise if the SC had decided to determine a threat to international

peace and security, because of a flow of refugees (like in Haiti 1993, Rwanda 1994).

But what can constitute a threat to international peace and security does not have to

equally constitute, and in the this case it does not constitute, an armed attack

required by A 51 allowing self defense. The threshold to claim self defense is quite

high, higher than to claim an existence of a threat to international peace and security.

In addition even the Generally Assembly has not decided to act and to adopt a

“Uniting for Peace” resolution, claiming the secondary responsibility, which would be

able to bypass paralyzed Security Council. It is necessary to mention that none of the

Permanent Member shares a will to strengthen powers of the GA. Especially USA

strongly opposes this quasi solution since it has lost its influence and majority in the

GA.

All these facts show that the neither body of the UN (the SC) responsible for

international peace and security nor the organ representing international community

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do express intent to impose a “no-fly zone” over any area carved out of Syrian

territory.

The practice of states indicates that imposition of a “no-fly zone” constitutes serious

infringement on sovereignty and territorial integrity. There have been four examples

of a “no-fly zone” in the past two decades: two no-fly zones in Iraq to protect Kurdish

civilians in 1991-20031, no-fly zone over Bosnia and Herzegovina during the conflict

in 90’s and Libyan no-fly zone in 2011. All of them were imposed either directly by

the SC Resolution or as a consequence of the SC authorization to maintain peace and

security.2

The seriousness of an imposition of a no-fly zone is demonstrated by the fact that

both Re 781 and Re 1973 were applied as measure under Article 42 of the UN Charter

including forcible measures. It means that even if the character of a no-fly zone seems

to be short of forcible measures, it would be fruitless to impose it without authority to

enforce it. In other words a no-fly zone has to include forcible aspects. Use of force

must be considered as an indispensible aspect of a no-fly zone.

NATO’s arguments

The NATO argumentation will be based on the concept of the Humanitarian

intervention and Responsibility to protect. The UN Charter provides very weak and

very general line of arguments. To be precise, the NATO operation can invoke the

Purposes and Principles of the UN Charter as to maintain international peace and

security, to strengthen universal peace, respect for human rights and fundamental

freedoms. The moral aspects seem to be irrelevant in forming of the legal analysis.

Our analysis should not be based only on the UN Charter, because it does not offer a

lot of legal arguments. It would be mistake to ignore ongoing debates regarding the

concept of Responsibility to Protect and legal interpretation of the KOSOVO

Operation and especially its consequences.

1 SCHMITT, M. Wings over Libya: The No-Fly Zone in Legal Perspective, The Yale Journal of International Law

Online, str. 49 2 The UN Resolutions: 678, 687, 688 (Iraq), 781 (Bosnia and Herzegovina), 1973 (Libya)

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It is hard to rely on state practice, because history provides a few examples: India-

Pakistan, Vietnam-Cambodia or Tanzania-Uganda. These three separated examples

cannot constitute a new custom of international law.

It is necessary to notice that such NATO Operation would not be the first one. NATO

has already carried out an operation without any authorization by the Security

Council in 1999. This operation was highly controversial; international lawyers

immediately declared it as unlawfulness, but a new trend has emerged, the views that

operation was not legal, but it was legitimate. Although Bruno Simma claims that

Kosovo operation has a very unique character, it has to be considered as exception

rather the rule, we cannot ignore its effects. The much appropriate approach is

represented by the article of Prof. Cassese where he proposes a number of very strict

conditions and when they are met, the operation will be considered as legitimate.

When we confront our situation and Cassese’s criteria, the result indicates that the

operation could be perceived as acceptable:

1) There is no doubt that there was a widespread violation of human rights in

Syria and international crimes were committed.

2) The government systematically refused to comply with appeals,

recommendations by the UN or other international organizations such as the

League of Arab States, or international human rights organizations.

3) The SC was unable to take any action to stop massacres.

4) All peaceful measures have been exhausted.

5) A group of states – the NATO excludes isolated character.

6) And armed forces were used only for the limited purposes.

According to Cassese the 1991 KOSOVO intervention met these criteria and therefore

it should be perceived as a legitimate intervention. The SYRIAN operation meets

these criteria as well.

In comparison with the KOSOVO intervention, NATO meets criterion no. 6 much

more strictly. The Syrian approach seems to be bearing more peaceful aspects than

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KOSOVO operation. NATO in SYRIAN operation did not intervene militarily, it did

not deploy its forces there, it “only” granted protection of civilians against air strikes.

My own conclusion

My answer faces the same dilemma that Cassese described in the article Are we

moving towards international legitimation of forcible humanitarian

countermeasures in the world community? The clash of a moral viewpoint and a

legal viewpoint has never offered easy answers and solutions.

Both Simma and Cassese argue that NATO Operation in KOSOVO violated

international law, in particular the Charter of the UN. On the other hand both of

them agreed that there were aspects of legitimacy. In other words, the KOSOVO

Operation was illegal but legitimate. I was asked for the answer whether the NATO

Operation in SYRIA violated international law and the answer must be affirmative.

Yes, such operation violated Article 2(4) of the Charter; the text of the Charter is clear

and allows only two exceptions. In addition enforcement of such no-fly zone would

constitute an armed attack allowing Syrian legal self-defense.

When the legal analysis leads to the same conclusion like in the NATO Operation in

KOSOVO, there is a visible change and development in acceptability of legitimization

aspects. I my opinion the current Operation would be from the moral point of view

much widely accepted than Operation in KOSOVO. First, even if Prof. Simma

opposed establishment of the precedent, it significantly influenced perception of

Humanitarian operations in general, especially their legitimacy. Prof Cassese took in

my opinion more realistic view and we are witnesses of gradually and slow process of

a more active interpretation of the Responsibility to Protect concept. In my point of

view we are at the beginning of the process when Cassese concept of criteria allowing

humanitarian intervention without SC authorization will be gradually much more

accepted. To prove this conclusion, let me mention documents as the 2001 report The

Responsibility to protect by the International Commission on Intervention and State

Sovereignty, the High-Level Panel Report, the Report of the Secretary-General or the

Outcome Document of the 2005 World Summit.

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Summarization

When taking into consideration any applicable international instruments, states

practice and jurisprudence of the ICJ, I need to conclude that in 2012 the NATO

Operation in SYRIA violated international law, the article 2(4) in particular.

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QUESITON 1 PART TWO

A – Syria challenges the legal capacity of the UN to bring a claim in the

absence of an international judicial forum.

This argument is closely related to the character and status of an international

organization, in this case of the United Nations. The question of legal personality was

discussed by the ICJ in the Advisory Opinion - Reparation for injuries suffered in the

service of the United Nations 1949. The ICJ hold opinion that the UN had the

capacity to bring an international claim against the responsible de jure or de facto

government with a view to obtaining the reparation due in respect of the damage

caused to the United Nations. The crucial document necessary to analyze was the UN

Charter. Its character, rights conferred by the member states, principles, purposes

and task show that such international organization requires possession of legal

personality to bring a claim. The intention of the member states to implicitly or

directly confer responsibilities such as – responsibility for international peace and

security- clearly and strongly indicates that the UN posses legal capacity to bring and

international claim. The ICJ has developed a method how to assess a legal

personality of international organization and very declared a unique and important

status of the UN.

With respect to the absence of an international judicial forum, it is necessary to

distinguish between international and national claim. Syria argues that there is the

absence of an international judicial forum. In my opinion the fact of the absence of

the judicial forum does not a priori mean that an international organization cannot

bring a claim. The ICJ cannot settle dispute between an international organization

and State, but the consequences of the Reparation case show that the mere fact of the

UN capacity to bring a claim is not fruitless. The UN Document S/1506 (Letter (…)

from the Minister for Foreign Affairs of the government of Israel to the Secretary-

General concerning a claim for damage caused to the United Nations by the

assassination of Folke Bernadotte) shows that the dispute was settled regardless

existence or non existence of a judicial forum. In addition in case of dispute between

States the ICJ exercise jurisdiction only when both sides agree with a settlement of

their dispute, when one of them is against it, the ICJ cannot deal with such dispute.

Does it mean that states should not possess a legal capacity to bring international

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claims? There are different kinds of settlement in the arena of international law,

much softer, because of the concept of sovereignty of states. The argument there is no

forum, is wrong, because parties can agree with arbitration or mediation for the

settlement of any dispute.

B – The accusation of violation of the 1946 Convention on the ground that

the Press statement made by the Secretary-General’s Representative was

not made in the performance of his mission, and thus not covered under

the Convention.

The question “A” was related to an international arena, this question deals with

domestic legal accountability. Article 105 of the UN Charter set forth the special

nature of the relationship between a Member of the UN and the UN as international

organization. The UN Charter grants enjoyment of privileges and immunities of its

officials for the independent exercise of their functions. Details are provided in the

1946 Convention on the privileges and immunities.

The 1946 Convention on P. and I. distinguishes between UN officials (Article V) and

Experts on Missions for the UN (including Special Rapporteur) in Article VI.

Experts on Missions enjoy privileges and immunities necessary for the independent

exercise of their functions. It was for a long time unclear whether exercising of

functions includes speaking to the press. The ICJ specified that in the circumstances

of the case, the Special Rapporteur can be considered to be performing his mission

even when he spokes to the press about the independence of Malaysian justice.3

The extent of privileges and immunities of the UN Officials is broader than extent of

privileges and immunities of Experts on Missions. We don’t have to determine the

function of his mission, according to the Section 18 a) of the 1946 Convention; a UN

Official is immune from legal process respect of words spoken or written and all acts

performed by them in their official capacity. The UN Officials enjoy functional

immunity, in other words, when they are acting in their official capacity, they are

3 The Advisory Opinion of the ICJ: Difference relating to immunity from legal process of a Special Rapporteur of

the Commission on Human Rights (Advisory Opinion) ICJ, 1999

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protected. On contrary an Expert of Mission is limited by the purpose of his

particular mission.

The Secretary – General Representative as an UN Official enjoys immunity from legal

process in respect of words spoken or written an all acts performed by him in his

official capacity. On the other hand such immunity is limited by Section 20 according

to which immunity is granted only in the interests of the UN not for the personal

benefit.

To summarize a legal position of The Secretary – General Representative sent to

Syria: when he speaks to press in his official capacity as The Secretary – General

Representative and when the purpose of this particular speech serves to the interests

of the UN, he is immune from the legal process.

The allegation that The Secretary – General Representative’s statement was not made

in the performance of his mission is not relevant. Both requirements were met, he

was acting in his capacity of The Secretary – General Representative and his speech

served to interests of the UN.

In my opinion even if The Secretary – General Representative had enjoyed only

limited immunity granted for Experts on Mission, he would be have been protected as

well, because any comments regarding his activities related to the negotiating process

would be considered as achieving the purpose of his mission. For this conclusion I

used Difference relating to immunity from legal process of a Special Rapporteur of

the Commission on Human Rights (Advisory Opinion) ICJ, 1999.

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QUESTION 2

A) Legality of the General Assembly resolution and its effect on

Madagascar’s membership in the UN.

Let me very briefly summarize the relevant facts. The General Assembly adopted

resolution 2013/1 invoking an exceptional character of the “Uniting for peace”

resolution 377 (V). In this resolution the General Assembly decided to expel

Madagascar from the United Nations.

The “Uniting for peace” resolutions have a very special character. This concept was

developed in 1950 in order to bypass the USSR vetoes on the UN activities in Korean

War. The “Uniting for peace” resolutions claim a subsidiary responsibility with regard

to international peace and security for the General Assembly, when the SC fails to

exercise its primary responsibility. It allows the GA to make recommendations for

collective measures including the use of armed force when necessary.

The Chapter II of the Charter of the UN defines the criteria of membership as well as

process of suspension or expulsion. All these processes (admission, suspension,

expulsion) have a very similar character. All of them require cooperation of both main

UN bodies, in particular the General Assembly and the Security Council. The Security

Council recommends and the General Assembly decides. None of these two steps can

be bypassed. Regardless the fact that no state has been either suspended or expelled

up to this day and the ICJ has never dealt with such issue, the wording and

interpretation of the concerned articles seem to be clear. It is very useful to mention

the Advisory Opinion of the ICJ 1950, Competence of the General Assembly for the

Admission of a State to the United Nations. It deals with the question whether both

the SC recommendation and the GA decision are indispensable steps and whether

lack of one of them (the SC recommendation) makes the admission unlawful. The ICJ

affirmed the wording of the Charter and upheld the interpretation that both steps are

required; silence of the SC does not mean that the SC agrees. The wording of the

Articles 4, 5 and 6 are very similar: “Decision of/suspended by/expelled by the

General Assembly upon the recommendation of the Security Council.” In other words

the UN Charter mechanism does not allow ignoring of requirement concerning the

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recommendation of the SC and when it is missing a decision of the General Assembly

is void.

As I have mentioned above “Uniting for Peace” resolutions represent very unique

mechanism. Such solution is justified by the principles and core values of the UN, in

particular maintaining international peace and security, as stated in the Preamble of

the UN Charter. Just wording of this kind of resolution “Uniting for Peace”

emphasizes their only purpose – to maintain international peace and security.

Recommendation whether to expel or not has totally different character, expulsion is

not considered as measure designed to maintain peace and security. Any invoking of

the UN principles and purposes would be fruitless.

To summarize my analysis, “Uniting for Peace” resolutions has totally different

character and purpose and it can never bypass the missing SC recommendation. The

expulsion is void and Madagascar has not lost its Membership.

B) What other options were available for the GA at the time of the

expulsion?

The UN Charter provides us with one another option - in particular Articles 5 -

suspension which has (in contrast to expulsions) only temporarily character. But

when the process of expulsion is blocked by one or more of the Permanent Members

vetos, the process of suspension is blocked as well. Both options require the

recommendation of the SC and the act itself by the GA. If the General Assemble had

decided to suspend Madagascar, its realization would have faced the same defect –

missing recommendation. In other words, this is not the way.

The second option was developed by improvisation of the General Assembly and its

President Abdelaziz Bouteflika in 70’s. It seems that precisely this practice is able to

at least partially achieve the GA’s goal and remains lawful. The Bauteflika’s GA faced

exactly the same problem – a cruel regime violating purposes and principles of the

UN on the one hand and the SC blocked by the veto of Permanent Members. First, the

Credential Committee rejected the credentials of the South Africa and than the

General Assembly voted to reject the credentials of the representatives of South

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Africa. This rejection indirectly barred South Africa representatives from

participation in the work of the GA. South Africa remained a member of the UN

unable to participate. Described practice does not require affirmation of the SC.

To summarize my analysis, the only available option which does not require the SC

recommendation is represented by Bauteflika’s practice from 70s. This practice

enables to prevent Madagascar from participating in the work of the GA, and requires

only the GA majority. It is necessary to emphasize that this practice does not lead and

cannot lead to expulsion of a member from the UN.

C) Should Madagascar pay “its debt”?

When a state is expelled it ceases to be a member of the UN and it has logically no

obligation to contribute to the UN budget.

This obligation of all members of the UN played a little bit bizarre role in case of

South Africa. It refused to contribute to the UN budget, because it could not

participate on work of the GA. When South Africa was in 1994 after the first

democratic elections welcomed back in the GA, it was asked to pay its debt. The

political solution was found very quickly and the GA adopted resolution including its

waiver of debts.

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QUESTION 3

A) Was resolution 1593(2005) “legal” given that neither Sudan nor

South Africa are parties to the ICC?

The resolution 1593 has to be considered as legal, because the SC decided exactly

pursuant to the Rome Statute. Its Article 13 b) authorizes the SC to refer a situation

in which one or more international crimes appears to the Prosecutor of the ICC acting

under the Chapter VII of the Charter of the UN.

The ICC can basically exercise jurisdiction over nationals of the State parties accused

of international crime and over crimes committed on the territory of State parties.

The Rome Statute allows States which are not a Party of the Rome Stature to accept

the exercise of jurisdiction by the court with respect to the crime in question. Statute

also allows the SC to refer a situation in which international crimes were allegedly

committed to the Prosecutor of the ICC even if the State is not a Party of the Rome

Statute.

This mechanism has been already applied, for example in Libya (2011) or Sudan,

when the SC referred those situations to the Prosecutor of the ICC.

The fact that neither Sudan nor South Africa are parties of the ICC is irrelevant in this

case.

B) South Africa’s argument that it is bound by the AU revised

Constitution which precedes it form surrounding Sudan’s

President of the ICC.

There is a conflict of two norms, to be precise the conflict between the SC resolution

and the Constitution of the African Union. It is necessary to consider which one

prevails. This case has a similar background as the case ICC-02/05-01/09 (Failure by

the Republic of Malawi to Comply with the Cooperation Request Issued by the Court),

there were two obligations in clash as well. The character of obligations was different.

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Obligation of national law faced an obligation of the Rome Statute, and the Rome

Statute prevailed.

Let me clarify the character of obligations important for our case/clash of norms and

their relation. We have to consider the SC Resolution adopted under Chapter VII, in

other words binding decision of the SC and its incompatibility with provisions of the

Constitution of the AU.

The crucial provision is Article 103 of the Charter of the UN, it says that:

“In the event of a conflict between the obligations of the Members of the United

Nations under the present Charter and their obligations under any other

international agreement, their obligations under the present Charter shall prevail.”

The only conclusion we can reach when considering the text of the UN Charter and

the jurisprudence of ICJ (the Lockerbie case) is that the Resolution of the UN prevails

any other international obligations regardless its origin, including the Constitution of

the African Union.

One could argue that the Resolution 1999 was void, because the SC can adopt

Resolution under Chapter VII only to restore international peace and security.

However, the practice has shown us that the SC has very broad discretion in

determining what amounts to the threat to peace and security and what does not. The

Lockerbie case can serve also as the example that a surrender of two persons can be

considered to be necessary to restore international peace and security.

C) What other judicial accountability mechanism could have been considered by the SC short of referral to the ICC.

There are not many other judicial accountability mechanisms available. When the SC

decides not to refer situation in Darfur to the Prosecutor of the ICC, the ICC has no

jurisdiction over crimes committed by President Bashir. There is no permanent

international tribunal having jurisdiction over international crimes, except the ICC.

The only option would be to establish a special tribunal designed to deal with crimes

committed in Darfur. It could be purely International ad hoc Tribunal (like ICTY,

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ICTR) established under Chapter VII or mixed tribunal (like in Lebanon, Sierra

Leone or Cambodia), but it would require cooperation with Sudan which is quite

improbable.