Unaccountable? The United Nations, emergency powers, and the rule of law.

• Author: Chesterman, Simon

ABSTRACT

For a body committed to the rule of law in theory, the applicability of the rule of law to the United Nations in practice remains oddly unclear. This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. Rather the focus of this Article is on the quasi-constitutional question of the liability of the organization itself. As the United Nations has assumed more state-like functions--in particular through the coercive activities of its Security Council--the question of what limits exist on the powers thus exercised has become more pressing. These powers may be compared to emergency powers within the domestic jurisdiction of states. Whereas a state of emergency is traditionally invoked in order to justify a departure from or stretching of the rule of law, here the existence of an emergency is a prerequisite to invoking the rule of law at all. At the same time, those promoting the rule of law generally lie beyond the reach of the jurisdiction in question--both during times of emergency and in times of quiet.

TABLE OF CONTENTS I. INTRODUCTION II. INVOKING THE RULE OF LAW AS A RESPONSE TO EMERGENCY A. The Security Council's Uses of the Rule of Law B. Applying the Rule of Law in Timor-Leste III. COMPROMISING THE RULE OF LAW BECAUSE OF EMERGENCY A. Does the Rule of Law Apply to the United Nations? 1. Kosovo: Executive Detentions 2. Targeted Financial Sanctions B. Compromising the Rule of Law in Afghanistan IV. CONCLUSION: THE "WAYS OF ORIENTALS"? I. INTRODUCTION

Above all we must remember that the ways of Orientals are not our ways, nor their thoughts our thoughts. Often when we think them backward and stupid, they think us meddlesome and absurd. The loom of time moves slowly with them, and they care not for high pressure and the roaring of the wheels. Our system may be good for us; but it is neither equally, nor altogether good for them. Satan found it better to reign in hell than to serve in heaven; and the normal Asiatic would sooner be misgoverned by Asiatics than well governed by Europeans.

Lord Curzon, 1889 (1)

In 1952, a committee of the American Society of International Law considered whether the laws of war should apply to United Nations (UN) enforcement actions. After struggling with the question, the committee noted that the UN held a "superior legal and moral position" (2) to the States Parties to the relevant conventions and concluded that the organization should "select such of the laws of war as may seem to fit its purposes." (3) This conferred extraordinary latitude upon the United Nations, which at the time consisted of only sixty countries. Since that time, UN membership has more than tripled, and the organization itself has affirmed--though only in 1999--that international humanitarian law does indeed apply to peacekeeping and other operations. (4)

For a body ostensibly committed to the rule of law in theory, (5) the applicability of the rule of law to the UN in practice remains oddly unclear. A historical reason for this was the uncertain legal personality of this club of states when it was created, which had to be inferred by the International Court of Justice four years later. (6) With respect to specific bodies of law, an ongoing problem is that the UN is not itself a party to, among other things, the human rights treaties negotiated under its auspices. (7)

This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. (8) Rather the focus is on the quasi-constitutional question of the liability of the organization itself. As the UN has assumed more state-like functions--in particular through the coercive activities of its Security Council--the question of what limits there are on its powers has become more pressing. Though there are significant problems with applying concepts such as the rule of law uncritically at the international level, (9) the focus here will be the manner in which the UN Security Council has used the rule of law as a tool, particularly in situations involving actual or potential conflict, and the extent to which the rule of law has constrained the exercise of power by the Council or its delegates.

The Council's powers thus invoked derive from Chapter VII of the UN Charter, and they are the sole exception to the saving clause that renders the domestic jurisdiction of Member States otherwise inviolable. (10) These powers may be invoked when the Council determines that there has been a "threat to the peace, breach of the peace, or act of aggression." (11) Such a framework clearly resonates with a doctrine of emergency powers. (12) What is interesting is that whereas a state of emergency is traditionally invoked in order to justify a departure from or stretching of the rule of law, here the existence of an emergency is a prerequisite to invoking the rule of law at all. At the same time, however, those promoting the rule of law generally lie beyond the reach of the jurisdiction in question--both during times of emergency and in times of quiet. (13)

This Article will examine these two issues--the use of the rule of law at the international level as a tool and its application to those who wield it--with a particular emphasis on UN operations in Asia, notably Timor-Leste (East Timor) and Afghanistan. Part II will examine the ways in which the rule of law has been used to stabilize conflict zones, focusing on the activities of the UN Security Council from the mid-1990s onwards and in particular on Timor-Leste. Part III will consider the extent to which the rule of law has constrained the decisions and actions of the Council, focusing on accountability issues and the apparent compromise of these principles in Afghanistan. Part IV will consider what light (if any) these operations shed on larger questions, such as whether there are discernibly Western or Asian approaches to the role law plays in times of crisis.

Of particular interest is the extent to which the UN can be said to reflect Western values, as is frequently alleged. A tentative conclusion is that there may be some rhetorical merit to this claim: Western states do largely set the agenda for the human rights framework that is commonly used to judge state actions. (14) Nevertheless, the United Nations and the international system wield executive authority so infrequently and inconstantly that broad conclusions are not yet possible. More interesting is the manner in which internationally administered "emergency" powers demonstrate the willingness of even established democracies to invoke the rule of law instrumentally, as a tool to provide stability--implicitly to compromise rule of law principles in the name of security. (15) At the same time, this Article also will attempt to shed some light on the underlying question of whether it even makes sense to speak of "emergency" powers before the rule of law has been established in a meaningful sense.

2. INVOKING THE RULE OF LAW AS A RESPONSE TO EMERGENCY

   The rule of law has long been invoked in human rights treaties as the foundation of a legitimate state (16) and in development policies as the basis for a sustainable economy. (17) Frequently this invocation has been of greater rhetorical significance than political significance, in the same way that a great many states invoke the rule of law in theory with little effort to implement it in practice. More recently, however, the rule of law has also been used at the international level by the UN Security Council as a means of conflict resolution. (18) This Part considers the manner in which the Council has used the rule of law as a response to "emergencies" and then assesses how this played out in Timor-Leste. Following David Dyzenhaus, (19) an examination of the relationship between the rule of law and emergencies may be best pursued through consideration of practical examples. Two elements are of special interest: what the UN did while exercising a degree of control over the territory and what influence (if any) this had on subsequent governance practices.

   1. The Security Council's Uses of the Rule of Law (20)

      Apart from a preambular reference in relation to the deterioration of law and order in the Congo in 1961, (21) the Security Council first used the words "rule of law" in the operative paragraph of Resolution 1040 (1996), where it expressed its support for the Secretary-General's efforts to promote "national reconciliation, democracy, security and the rule of law in Burundi." (22) (It is noteworthy that the French text rendered rule of law as "le retablissement de l'ordre." (23)) Many peace operations have subsequently had important rule of law components, such as those in Guatemala (1997), (24) Liberia (2003--), (25) Cote d'Ivoire (2004-), (26) Haiti (2004--), (27) and the Democratic Republic of the Congo (2007--). (28) The mandates for such missions tend to be broad, calling for the "reestablishment" or "restoration and maintenance" of the rule of law without formally articulating what this might entail. (29) In practice, the dominant activities have tended to include personnel training, assisting institution-building, advising on law reform issues, and monitoring, with the emphasis on criminal law processes. (30) Less attention has been paid, for example, to land law. (31)

      In addition to supporting domestic rule of law institutions, the Security Council has created international criminal tribunals to replace domestic processes for trials arising from the former Yugoslavia (1991--) (32) and Rwanda (1994). (33) These tribunals were explicitly created as part of an effort to bring peace to war-torn territories, but they have been criticized for spending significant resources in order to prosecute few individuals with little lasting impact on the judicial...