The Charter of the United Nations enumerates mainly six major organs under Article 7 which includes the Security Council (“SC”). This organ focuses on the enforcement measure and preservation of international peace and security which can be carried in two different modes regulated under Chapter VI, peaceful settlement of disputes and Chapter VII on the enforcement action. The members of the SC bears great responsibilities as when it comes to emergency situations, the council must promptly act, decide and enforce its decision within the shortest time possible. For the purpose of the paper, we shall focus on Chapter VII to examine the provisions under the UN Charter in relation to the protection and safeguard of the civilians from the enforcement arm of UN.
Recently, the involvement of the SC in the protection of civilians in times of armed conflict has steadily increased since 1990’s. This includes the authorization on the use of force embodied under Chapter VII of the Charter. It reflects the significance of Article 39 that empowers the SC to identify the presence of any sort of threat upon the peace and security against the state members by way of coercive means. However, the protection of civilians are not properly defined within the ambits of the Charter.
Generally, the execution on the use of force are classified into two different categories. The first type of force is by the individual armed forces where the SC may give authority to the armed forces of the Member States of UN to use force in the execution certain mandates, also known as “state-led UN forces”. These forces will be under the command of one lead state who will direct either a single state or a group of states on the use of force to achieve a collective security pursuant to the term “use all necessary means”. In Somalia, the Unified Task Force and the Gulf War in 1991 is a good example to illustrate the multinational use of force. The second type of forces, are forces authorized under the UN command. Currently, it is known as the UN Peacekeeping Operations (“UNPO”). They are established under the powers of the SC as its subsidiary organ which bounds to the command and controls of UN. However, the head of command shall be the UN Secretary-General to assess and issue reports concerning the protection of civilians. The primary objective of the UN SC as mentioned, is to maintain the international peace and security from wars which may jeopardize the lives of millions of civilians and one of the ways to achieve this purpose is via peacekeeping.
By tradition, the UNPO has always been affiliated with the peaceful settlement of disputes under Chapter VI of the UN Charter but the SC has never raised its application in mandating any peacekeeping operations. For that reason being, if the SC wants to pass a resolution to validate the deployment of the UNPO, no specific reference to any Chapters in the Charter is required of them.1 Now, Chapter VII of the Charter plays its role in the authorization of deploying the UNPO in situations where the States fails to maintain the public order as well as the security of the people. In brief, when the State faces difficulty in protecting its population, UNPO comes in action to aid the particular state whether or not it requires the use of force in protecting the civilians. It must however be clear that the peacekeepers must bear in mind to consider the rules of IHL and its principles and apply it in situation when necessary. This is to say that the use of force to protect the civilians in armed conflicts can only be invoke as a last resort in desperate volatile settings.2
In 2005, the UN General Assembly stated in the resolution that,
“We are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”
This concept of protection of civilians during armed conflict gained recognition by the UN Secretary-General in the report “In Larger Freedom: Towards Development, Security and Human Rights for All”. 3
1 United Nations Peacekeeping Operations: Principles And Guidelines (United Nations 2008)
2 Keiichiro Okimoto, Protection Of Civilians In International Humanitarian Law And By The Use Of Force Under Chapter VII Of The Charter Of The United Nations (4th edn, Asia-Pacific Yearbook of International Humanitarian Law 2012)