Rejecting the Primacy of the UNSC: the Role ofRegional Organisations as Responders of Choice to

Gross Human Rights Violations

It is extraordinary that, in today’s world, UN

debates surrounding humanitarian intervention can engender

procrastination, provoke stalemate or render ineffectual one of

society’s most cherished values, the protection human rights.

In this respect, Normand and Zaidi (2008) detail the

significant complexity in legislating for humanitarian

intervention but, among the many ideas they proffer, one has

particular relevance to my topic.

“Cultural practices that transgress conventional notions of

human rights may invite humanitarian intervention; states that

deny the universal validity of human rights may become

international pariahs subject to regime change. The ‘may’ is

important, because it is common knowledge that not all abuses

and abusers are equal in practice. The theory of impartiality is

belied by the absence of consistently applied legal mechanisms

1

Sean Williams MISC13210161

interpreted and enforced by objective decision makers.”

(Normand & Zaidi; 2008: 9).

This, to me, is the nub of the argument surrounding

humanitarian intervention. Because international law provides

for action against human rights abuses (UN; 1945: Preamble),

especially initiatives and activities that address and remove

the root causes of humanitarian disasters, even where these

involve hostilities or the threat of them (Holzgrefe & Keohane;

2003: 18), one cannot presume any parity in the manner or scale

of any humanitarian operation with a comparable precedent.

For the purpose of this essay, humanitarian

intervention will be defined as:

“the use of force across state borders by a state (or group of

states) aimed at preventing or ending widespread and grave

violations of fundamental human rights of individuals other

than its own citizens, without the permission of the state within

whose territory force is applied” (Holzgrefe & Keohane;

2003: 18).

There are three separate issues that feed into the debate on

armed humanitarian intervention and which determine its

effectiveness. Firstly, the precarious standing within

2

international law of any form of intervention; secondly, the

extent to which self-interest by powerful states may be a

motivating factor in the decision to intervene; and finally,

the incapacity of UN structures when faced with the need to

respond timely and decisively (and forcefully when necessary)

to gross violations of human rights. These three issues

conspire to render ineffectual the very institution whose

mission it is to act as guardian of human rights in all its

forms.

Firstly, the precarious nature of armed

intervention within international law rests on a fulcrum

between two contrasting interpretations of the UN Charter. The

‘restrictionist’ point of view asserts “no justification for

entertaining any interpretation other than the exact meaning of

the text” (Harhoff; 2001: 101). This doctrine is grounded in

the fear that should any deviation be permitted, it could

create a precedent for states to wage war in pursuit of their

own ideals and ends (Bellamy & Williams; 2006: 146). Wars of

this nature are perceived as essentially wars of aggression,

accompanied by manipulative language arguing their legitimacy

under the banner of humanitarian intervention. In essence,

3

restrictionists believe in the absolute sovereignty of all

states, as a fundamental and inviolable principle.

“The concept of international society privileges the state as the

sole repository of sovereign authority and is based on the

assumption that international order can be best maintained if

states respect each other’s sovereignty by adhering to the

norms of non-intervention in the internal affairs of other states”

(Ayoob; 2002: 81).

In contrast, the ‘counter-restrictionist’ interpretation relies

on a more flexible attitude to wording, whereby humanitarian

intervention may be deemed legal, even under Article 2(4), if

it does not seek to annex any territory or threaten a state’s

independence, and if humanitarian actions are undertaken

exclusively for the purpose of protecting human rights (Arend &

Beck; 1993: 134). Here, the UN Charter may be interpreted

flexibly to meet the needs and particular context of an urgent

or imminent humanitarian crisis. For instance, when a state is

in violation of its own citizens’ fundamental human rights, it

can, within international law, be deemed to have reneged on the

most basic obligation of sovereignty and, in so doing, have a

questionable claim of sovereignty (Kolodziej; 2000: 127). In

4

contexts of this type, ‘counter-restrictionists’ also point to

the prominence afforded to human rights in the UN Charter, and

particularly the statements that the organisation will

continually strive to “reaffirm faith in fundamental human

rights” and “in the dignity and worth of the human person” (UN;

1945: Preamble).

Under current international law, the UNSC exercises

exclusive authority to sanction (or not to sanction)

humanitarian intervention and it is also the sole arbiter over

disputes relating to the legitimacy and/or legality of any

external intervention in the sovereign affairs of a member

state. However, there are strong reasons to support the belief

that the Security Council may not be the optimal body to

exercise exclusive authority in this matter and the record

shows in a significant number of cases that it has proved inept

and ill-suited to this task. The purpose of this paper is to

present an argument for rejecting the primacy of the UNSC in

this task and to explore a rationale for allowing regional

organisations greater autonomy to intervene, especially where

nearby human rights abuses require an immediate and resolute

military response.

5

The UNSC’s ineptitude at mediating intra-state

conflicts and humanitarian requirements is rooted in the

prescriptions of the UN Charter itself. The UN Charter, and

specifically Chapter VII, relies upon an organisational system

of action that prohibits intervention except as an action of

last resort. Sanctions are often considered as a laissez-faire

alternative to war because they do not involve any acrimonious

dispute about territorial integrity or the violation of state

sovereignty, nor require the use of UN troops to enforce its

decision. But, in any event, such action is rarely useful in

the face of an immediate humanitarian crisis. Sanctions and

embargoes have been shown to have a greater effect on civilians

rather than governments, or have unintended side effects for

civilians (Gordon; 1999: 388), as was the case with the arms

embargo during the Yugoslavian war of the early 1990s. The

persuasive logic is that the UN Charter’s wording is ambiguous

and defaults to recommending non-forceful measures prior to

armed intervention, and this often results in unfavourable

humanitarian outcomes for inhabitants. (Weiss; 2007: 45). My

view is that, where appropriate and warranted, and pursuant of

social justice, it would be more effective if neighbour states

6

and/or regional organisations were allowed to fast-track

intervention measures, thereby avoiding inevitably lengthy UNSC

deliberations about legality, sovereignty issues and resources.

The abject failures of UNAMIR (Rwanda) and UNPROFOR

(Former Yugoslavia) are cases in point and demonstrate UNSC’s

ineptitude in decision-making and oversight. Furthermore, the

UNSC’s reliability in determining which cases are worthy of

intervention has also been called into question, as is

evidenced from its response in Rwanda and Darfur. Rwanda, for

instance, was not of significance to any of the P-5 members,

and was repeatedly ignored during the genocide, despite

continuous appeals by UMAMIR leader, Romeo Dallaire, for a

stronger military presence. In the face of the emerging

humanitarian crisis in Darfur, the People’s Republic of China,

out of self-interest and to preserve the notional balance of

power among the P-5, exercised its veto. The ensuing stalemate

prevented military action against the government of Sudan,

thereby prolonging the humanitarian crisis. Even where the UNSC

sanctions military action, the convoluted command structure

under which UN forces operate present serious difficulties and

7

this problem is unlikely to improve in the near future (Weiss;

1994: 64).

UNSC decisions, even when unanimous, have always

been the subject of controversy chiefly because the Council, as

the sole validator of international security action, is

unrepresentative in its membership. Moreover, its undemocratic

perception is underlined by the fact that none of its permanent

members come from the Southern Hemisphere and, although its P-5

have a controlling influence over all its affairs, it is not

answerable or accountable to any other body, e.g. the General

Assembly or the International Criminal Court. Its structure is

also widely perceived to be unwieldy and ineffectual because of

the predictable and self-serving use of vetoes and, as

evidenced throughout the 1990s, the overall ineffectiveness of

its missions (Thakur; 2002: 334). The widely accepted

perception that it is predominantly a forum for rhetoric, not

action, reveals its chief weakness and, because of this, it

lacks sufficient political capital to dissuade member states

from using unilateral force. The UNSC’s lack of credibility in

this respect stems mainly from its inability to respond

flexibly, decisively and, above all, in a timely manner to

8

humanitarian needs. Condemning violence and urging restraint

through resolutions or sanctions are not credible alternatives

in the face of human rights violations. Past experience shows

that, in these situations, time is of the essence; civilians in

peril can ill afford to wait for sanctions or resolutions to

produce results, nor should they have to await the outcome of

discourse or for decisions regarding their immediate safety and

humanitarian needs. The Syrian conflict provides ample current

evidence of the above perceptions.

Lastly, the UNSC dithered as genocide and ethnic

cleansing took place in Rwanda, the former Yugoslavia and Sudan

and did little to mitigate the civil wars in both Liberia and

Somalia, with the latter having yet to be resolved. We know

that, within the international community and the UNSC, there is

a systematic and deliberate avoidance of the use of the word

‘genocide’ (Melvern; 2000: 138) because, once acknowledged, it

would engender a legal obligation to act fast and decisively in

accordance with the UN Convention on the Prevention and

Punishment of the Crime of Genocide (United Nations; 1948:

Article 1). “The reluctance by some states to use the term

‘genocide’ [is] motivated by a lack of will to act” (United

9

Nations; 1999: 38). This becomes an endemic situation where

self-interest motivates too literal and too rigid an

interpretation of international law. This has had the effect of

stultifying UN response capability and explains its poor record

of enforcing its human rights obligations.

The interventions, by NATO in Kosovo and by the UN

in Rwanda, are interesting, if contrasting, cases relevant to

my topic. In both cases, the humanitarian need was real and

peremptory and required an urgent response. However, as with

all interventions, actors must face the dilemma which was

succinctly framed in a question posed by the then UN Secretary-

General Kofi Annan: “How could the international community

reconcile respect for state sovereignty with the need to

intervene to prevent human suffering and systematic human

rights violations?” (Beswick and Jackson; 2011: 94) Given the

scale and nature of the problems in both instances, the answer

to this question was crucial. NATO defended its strong and

decisive response as legitimate in the face of an imminent

human catastrophe. Time did not allow it wait for the legal

authority that, when acquired, may not have been adequate to

end the crisis. In the case of Rwanda, all international legal

10

requirements were secured and the response was both late and

inadequate with an appalling outcome. If there is any lesson to

be learned from both experiences, surely it is that the better

outcome is achieved when ‘legitimacy’ has primacy over

‘legality’.

The ‘Responsibility to Protect’ (R2P) doctrine,

formulated by the International Commission on Intervention and

State Sovereignty (ICISS) in 2001, seeks to bring clarity to

the problem of intervention when humanitarian issues present

themselves to the international community. In a nutshell, R2P

argues that whereas sovereignty confers rights – principally to

non-intervention – it also imposes responsibilities, the most

fundamental of which is to protect citizens. When a state

reneges on this fundamental duty, the R2P principle imposes a

responsibility on the international community “to prevent

conflict and other crises which put populations at risk; to react

to human suffering … and to rebuild providing resources and

support as necessary” (Beswick and Jackson; 2011: 94).

Consequently, if a sovereign state cannot uphold its

responsibility to protect its citizens from widespread abuses

of human rights, the international community has a moral duty

11

to intervene forcibly, if necessary, in order to protect human

rights (ICISS; 2001a: 12).

However, some contend that, since the adoption of

the R2P principle, world events show an emerging “gap between

promise and reality” (Chandler; 2009: 27) and cite the US-led

invasion of Iraq in 2003 in support of their view. McFarlane et

al (2004: 979) argue that powerful states will determine whose

human rights justify departure from their traditional policy of

non-intervention and, cognisant of this, in order to alleviate

fears about the misuse of R2P by strong belligerent states

against small states, the version of R2P that was accepted at

the 2005 World Summit was watered down from that advocated in

the original ICISS report. Chandler states that:

“as long as state institutions fail to create a framework that

enables conflicts to be ameliorated and the rule of law and

human rights to be enforced, it is inevitable that actors will

attempt to take advantage and that the incentive to assume

state responsibilities of protection will be lacking”

(Chandler; 2009: 38).

It was hoped that the R2P principle would establish a bridge

between ‘restrictionist’ and ‘counter-restrictionist’

12

interpretations of the UN Charter but, from the evidence of the

ongoing crisis in Darfur and the new crises in the Central

African Republic and in Syria, it would appear to have achieved

considerably less than had been envisaged.

In human rights interventions, regional

organisations have a number of significant advantages in

comparison to the UN. Firstly, regional organisations often

have a “higher stake” in preventing and/or ending conflict

within their sphere of influence (MacFarlane & Weiss; 1994:

283). Member states within these spheres feel the effects of

regional conflict more acutely, such as population

displacement, a downturn in foreign direct investment from

abroad and, in general, regional instability. MacFarlane &

Weiss explain that regional organisations have a higher stake

in ensuring near-neighbour stability and are more likely to act

promptly and decisively in pursuit of these ends. (ibid). They

conclude that, whereas regional interventions have some obvious

limitations, they convey humanitarian benefits more efficiently

and more effectively than non-regional actors.

Secondly, regional organisations can offer ‘better’

intervention than the UN. Whereas some UN interventions, most

13

notably in Somalia, have not been cognisant of the cultural and

societal intricacies pertaining to the target country, regional

actors are more aware of local customs and beliefs. They

understand the nature of strife and ethnic tension in their own

immediate area, making them better mediators of local

conflicts. (ibid). Busumtwi-Sam argues that many of Africa’s

longest and most deadly conflicts are the result of a litany of

issues, and cannot be described by monocausal means (2002: 93).

Furthermore, these conflicts also involve a number of exogenous

actors including rival governments, mercenaries and various

militias, all of which have their own agenda. In these

circumstances, conflicts may span across entire regions and

involve complex arrangements of actors and roots, which make

regional actors best suited to mediating the nuances and

intricacies involved (ibid). Moreover, regional actors’ agendas

are seldom overloaded with the many global problems the UN

faces, thus allowing them focus exclusively on the crisis at

hand. Also, their response comes quicker and is better

targeted, especially if the intervention is undertaken by a

regional power “with the right mix of knowledge and capability”

(Welsh; 2002: 516).

14

Since the African continent is the most frequently

hit by humanitarian disasters, this particular context deserves

further attention. The African Union (AU) first began to codify

a norm of humanitarian intervention in 1998, under the

‘Framework for the Mechanism for Conflict Prevention,

Management, Resolution, Peace and Security’, which entitles it

to deploy peacekeeping forces into internal conflicts that pose

serious threats to peace in the region (ICISS; 2001b: 169).

Since then it had emerged as the regional guarantor of African

security. By embracing the creation of the Peace and Security

Council, it became the first regional organization to formally

ratify the normative right to intervene in the internal affairs

of member states when the UN is either unwilling or unable to

react. Furthermore, the Economic Community of West African

States (ECOWAS) also deserves credit for attempting to solve

humanitarian crises in West Africa, despite some shortcomings

in the interventions it authorised. ECOWAS has intervened

militarily more than any other regional organization to stop

conflict (Taft & Ladnier; 2006: 17). Like the AU, ECOWAS

declared its normative right to intervene in regional conflicts

through the adopting of a protocol in 1999, which allows it to

15

intervene militarily in a member state in response to

humanitarian emergencies that threaten the security of the

region (Taft & Ladnier; 2006: 18).

However, Pattinson (2008) warns of the problems

facing regional organisations that undertake humanitarian

missions without UN sanction. While he accepts that many

Western states have both the military and logistical support

capability to deploy forces on a scale that are likely to be

effective, he draws attention to how humanitarian interveners

are perceived and accepted within the zone of need (Pattinson;

2008: 408). History reveals that most Western penetrations into

the global south and Middle East are likely to be faced with a

large level of local resistance. For example, in the aftermath

of the Iraq War, the US and Western democracies generally “do

not have the credibility in the eyes of the world to carry out

humanitarian intervention” (ibid). Similarly, ex-colonial

powers intervening in former colonies run the risk of being

perceived as pursuing colonial self-interest. Pattinson’s point

is convincing in that a potential intervener must carefully

weigh up whether or not it is likely to provoke an escalation

of a problem by creating more fighters than it disarms. In this

16

respect, he sees greater merit in using regional organisations

but warns that, with the exception of NATO and the EU, most

others, such as the AU and ECOWAS, suffer from massive

shortfalls in military funding and equipment, rendering

prolonged operations difficult (Pattinson; 2008: 409). He

considers the EU’s potential as an effective humanitarian actor

but acknowledges that, currently, it does not have agreed

structures to allow it to rapidly deploy a large force off

continent (ibid). The capacity of NATO to conduct successful

humanitarian operations has been demonstrated in Bosnia,

Kosovo, and most recently, in Libya. However, since NATO is

primarily a defence pact, any decision to deploy its troops in

humanitarian activities, especially outside of its zone of

influence, is perceived to be for reasons of self-interest

(Pattinson; 2008: 408).

Notwithstanding the difficulties involved, a

number of humanitarian intervention case studies appear to

support the claim that regional organisations offer a better

and more viable alternative to UN involvement. The NATO

intervention in Kosovo and the UN intervention in the former

Yugoslavia were similar in that they were both deployed in

17

order to uphold human rights. Both missions necessarily

violated the territorial integrity of the target state, and

both involved complex military operations as well as civilian

components. However, UNPROFOR’s experience in the former

Yugoslavia was characterised by inaction and UN peacekeepers

were thrust into a conflict under-prepared and under-

resourced. Its peacekeepers’ mandate was inappropriate because

there was, at that time, no effective peace to keep. As a

result, the consequences were predictably catastrophic and

culminated in the horrific massacre at Srebrenica. NATO’s

action in Yugoslavia, on the other hand, was a peace

enforcement intervention and the alliance successfully

prevented Serbian forces from ethnically cleansing Kosovo of

its native Albanian population.

In their analysis of the totally inadequate

response to the conflict in Darfur, Bellamy & Williams (2006)

suggest how future reactions by the international community

might be rendered more effective. They recommend that states

should force the issue by rejecting the primacy of the UNSC

when decisions about intervention are necessary (Bellamy &

Williams; 2006: 157). Byers (2005) concurs and furthers the

18

argument by citing the example of NATO in Kosovo. Although

initially lacking UNSC authorisation, NATO succeeded in

acquiring a somewhat ‘ambiguous authorisation’ post the event

when the UNSC belatedly accepted that the situation

represented a grave threat to international peace and security

(Byers: 2005: 40-51). This ‘ambiguous authority’, sufficed to

confer legitimacy on NATO’s forceful intervention which, had

it not occurred, might have resulted in the kind of genocidal

atrocities reminiscent of Rwanda in 1994 and in Srebrenica

1995. By forcing the issue and by reacting unilaterally, but

timely, NATO restored human security and prevented any further

escalation of the suffering.

In discussing issues of consent and legitimacy,

Glanville (2013) offers a different perspective on the role

of regional organisations in humanitarian intervention. He

proposes less dependence on the sovereign consent of the

troubled state and a greater reliance on consent from the

relevant regional organisation when making UNSC decisions

about Chapter VII interventions, particularly where human

rights abuses are relevant (Glanville; 2013: 326). In

examining the route to the NATO intervention in Libya,

19

Glanville analyses the rhetoric emanating from organisations

such as the League of Arab States (LAS), the Organisation of

the Islamic Conference (OIC) and the AU, all of which helped

procure the UN resolution authorising ‘all necessary means’

in response to gross violations of human rights by Libyan

government forces. He notes that, in their submissions to

the UN, these organisations demonstrated a deep

understanding of the nature of the Libyan conflict, the need

for immediate military action and the necessity in this

particular case to transcend legal issues relating to

sovereign consent (Glanville; 2013: 336). Summarising, he

concludes that the UNSC “should be guided by the opinions of

relevant regional organisations” and he notes how, in this

instance, “Western permanent members pushed this resolution

through once their pragmatic requirement for regional

consent had been met” (ibid). This example is crucial and

reveals an important precedent for allowing regional

organisations a role in securing authorisation for

intervention. Even when regional actors lack the necessary

military capability and resources to intervene decisively in

a neighbouring conflict, Glanville has shown that they can

20

exercise a crucial influence on events and this can be an

important resource to be capitalised on in deciding the

nature and strength of humanitarian interventions and in

avoiding self-interest, rigid interpretations of

international law and weakly-framed mandates.

Clarifying the roles of international and regional

organisations, Weiss theorises that in international

organisations, member states pursue national interests, even

when collective decisions are being made, making consensus

difficult because their priorities are not aligned. In

regional organisations, member states tend to have like

interests making agreement around common goals more likely

(Weiss; 2001: 424). Consequently, in Yugoslavia, UNPROFOR was

rendered paralysed by the diverse range of interests in the

UNSC. The Western countries backed the Croats in their fight

against Serbia, whereas Russia supported their Slavic

counterparts, the Serbs (while China remained ambivalent). In

Rwanda, the problem was not competing foreign policy

priorities, but a lack of priorities in general. The P-5 could

not agree on force deployment largely because there was no

strategic interest in the region. Conversely, NATO was

21

successful in Kosovo and Libya because the goals of its

members were aligned and it had sufficient support from its

Arab counterparts in the region. Although members did not make

equal contributions to the mission, they all agreed that the

mission was worthwhile and in their overall strategic

interest. In Liberia, ECOWAS intervened to bring stability to

the region because its members feared the economic impact of a

large-scale humanitarian disaster. All members were

stakeholders in a positive outcome. Weiss’s theory is

convincing and brings significant meaning to my topic. Unlike

the UNSC, most regional organisations are streamlined and

efficient in their structure, their member states have closely

aligned interests, are culturally compatible and are more

likely to have a common understanding of their goals and

responsibilities (Weiss; 1994: 64). For these reasons they are

best placed as responders of choice when faced with

humanitarian conflicts within their own zone of influence.

22

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