New Briefing Examines the Promotion of IHL at the UN Security Council

Titled Room for Manoeuvre? Promoting International Humanitarian Law and Accountability While at the United Nations Security Council: A Reflection on the Role of Elected Members, our new Briefing assesses the United Nations (UN) Security Council’s (UNSC) recent engagement with international humanitarian law (IHL) and accountability.

Researched and written by Emilie Max, the Briefing results from traditional legal research and informal interviews with about 30 experts – scholars, diplomats as well as representatives of the UN, NGOs and other relevant international organizations.

A Much-Needed Analysis

In recent years, the UNSC has been increasingly dealing with IHL through specific debates as well as thematic and/or country resolutions. This involvement culminated in 2019 with the successive celebrations of the twentieth anniversary of the agenda item on the Protection of Civilians in Armed Conflict (the so-called ‘PoC agenda’) and the seventieth anniversary of the Geneva Conventions of 1949.

‘Humanitarian considerations and references to existing rules of international law are not immune to the inherently political dynamics prevailing within the UNSC. Compared to other thematic issues such as the rule of law, human rights in the era of counterterrorism or individual criminal accountability, little attention has been paid to the influence of such dynamics and the consistency – or lack thereof – of the UNSC’s practice in relation to IHL’ underlines Emilie Max.

‘Implementation of IHL remains a challenge for the international community. The fact that the UNSC has started to increasingly deal with IHL raises several questions as to whether States can put political dynamics aside to promote IHL and accountability’ explains Professor Gloria Gaggioli, Director of the Geneva Academy.

A wide view of the Security Council meeting on the situation in the Middle East, including the Palestinian question.

‘By providing an in-depth and timely analysis as to how the UNSC has recently dealt with IHL, this research should become a reference not only for legal and humanitarian advisers to permanent missions to the UN in New York but also to any stakeholder interested in the implementation of IHL’ she adds.

The Role of Elected Members

Much of the prevailing discourse on the UNSC's dynamics tends to focus on the organ’s five permanent members – China, Russia, the United States, France and the United Kingdom – to the exclusion of the other elected members; the so-called ‘E10’. This Briefing notably spotlights the role of those members in the hope of encouraging their future meaningful and principled involvement in favour of humanitarian concerns and international law.

‘Although elected members are dependent on the UNSC’s procedural and political dynamics, including the preponderant role of the P5, they often champion international law and are interested to find some room for manoeuvre in those issues. This publication notably assesses whether - and if so, how – this can be done while ensuring the integrity of the rules of IHL’ says Emilie Max.

Focus on Concrete Situations

After some preliminary remarks, the Briefing lays out the institutional framework relevant to the functioning of the UNSC and the specificities associated with non-permanent membership.

Moving from the abstract to the concrete, it then assesses the UNSC’s recent practice on IHL and accountability in relation to the situation in the Syrian Arab Republic, the PoC agenda, other relevant thematic agenda items (Children and Armed Conflict and Women, Peace and Security, respectively), as well as counterterrorism measures and sanctions regimes. The issue of accountability is examined transversally, and lessons learned are systematically drawn from each of the above-mentioned sections.

A set of Guiding Questions for a Principled IHL Engagement at UNSC

The publication highlights that recent positive developments in the field of IHL are often attributed to the initiative and engagement of elected members – who are bridging divides between permanent members, conducting negotiations as inclusively as possible and consulting with other interested stakeholders. It also points to the fact that securing a UNSC’s outcome can also imply significant compromises (on substance) to the detriment of elements on accountability, consistency in wording and/or the unity of certain agenda items,

‘Under the current political circumstances, bridging the gap between UNSC rhetoric and action thus remains, more than ever, a challenge. Future and prospective elected members interested should be encouraged in promoting humanitarian concerns and a rules-based international order where violations are met with consequences. Their commitment (and corresponding positioning) need to rest on a carefully elaborated policy cognizant of potential opportunities and associated risks – both for their own reputations and for the integrity of the legal frameworks at hand. This is necessary to ensure a principled, coherent and consistent approach when colliding with high-stakes realpolitik’ stresses Emilie Max.

A wide view of the Security Council Chamber as Zahir Tanin (shown on screen), Special Representative of the Secretary-General and Head of the United Nations Interim Administration Mission in Kosovo (UNMIK), briefs the Council via video conference.

The publication offers a set of guiding questions, framed in very general terms, to ensure and develop a principled IHL engagement in the formulation of policies at the UNSC.

Launch

This publication will be launched both in Geneva and New York at the beginning of 2021.