Security Council Member: Breaking International Law, Now What?

The United Nations Security Council is the primary body responsible for maintaining international peace and security. It has 15 members, each with one vote, and all members are obligated to comply with its decisions. The Security Council can determine the existence of a threat to peace or an act of aggression, and it can impose sanctions or authorize the use of force to restore peace. While Security Council resolutions are legally binding, there is no international police force or court system to enforce them. In practice, powerful countries that violate international law often face no serious repercussions due to their influence and veto power. However, international law sets standards and can influence global politics, empowering domestic groups to hold their governments accountable.

The UN Security Council can impose sanctions on the member

The Security Council's enforcement powers are controversial because it is not regarded as a representative body, and its five permanent members (China, France, Russia, the UK, and the US) can veto any substantive measure. This dominance of powerful nations in the Security Council raises questions about the effectiveness and legitimacy of international sanctions. Nevertheless, the Security Council's sanctions are intended for situations that are out of hand or threaten to be, which are inherently challenging for any law enforcement system.

The UN Security Council can authorise the use of force

Articles 24 and 25 of the UN Charter allow the Security Council to use collective force against a threat to international peace and security. The Security Council has triggered this power in the past, notably in the early stages of the Korean War and during the Iraqi invasion of Kuwait in 1990.

The Security Council may determine the existence of any threat to peace, breach of peace, or act of aggression, and may impose sanctions to rectify the situation. These sanctions can be economic, diplomatic, or military. While economic and diplomatic sanctions are slow to work, military sanctions can be effective in maintaining or restoring international peace and security.

The Security Council has also authorised the use of force in humanitarian missions, such as during the turmoil that resulted from the breakdown of the former Yugoslavia. In this case, the United Nations Protection Force (UNPROFOR) was authorised to use force for humanitarian purposes.

Another example of the Security Council authorising the use of force is UN Security Council Resolution 1973 of 17 March 2011. In response to peaceful protests against the oppressive rule of Colonel Muammar Gaddafi in Libya, the Security Council, acting under Chapter VII of the UN Charter, authorised member states to "take all necessary measures [...] to protect civilians and civilian-populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory."

The member can be tried at the International Court of Justice

The International Court of Justice (ICJ) is composed of 15 judges elected to nine-year terms by the United Nations General Assembly and the Security Council. The Court may entertain two types of cases: legal disputes between States submitted to it by them (contentious cases) and requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory proceedings).

Only States (UN Members and other States that have become parties to the Statute of the Court or have accepted its jurisdiction under certain conditions) may be parties to contentious cases. Proceedings may be instituted through the notification of a special agreement or by means of an application. A special agreement is a bilateral document that can be lodged with the Court by either or both of the States parties to the proceedings. An application, on the other hand, is a unilateral document submitted by an applicant State against a respondent State.

In contentious proceedings, there is a written phase, where the parties file and exchange pleadings containing a detailed statement of the points of fact and of law on which each party relies, and an oral phase consisting of public hearings at which agents and counsel address the Court. After the oral proceedings, the Court deliberates in private and then delivers its judgment at a public sitting. The judgment is final, binding on the parties to a case, and without appeal.

In the case of a breach of international law by a Security Council member, the ICJ can be involved in the following ways:

• A State that considers that another State has failed to perform the obligations incumbent upon it under a judgment rendered by the Court may bring the matter before the Security Council, which is empowered to recommend or decide upon measures to be taken to give effect to the judgment.
• The Security Council can refer certain situations to the Prosecutor of the International Criminal Court (ICC) if it appears that international crimes (genocide, crimes against humanity, war crimes, or the crime of aggression) have been committed.
• The Security Council, acting under Chapter VII of the UN Charter, may determine the existence of any threat to the peace, breach of the peace, or act of aggression, and may impose mandatory sanctions to try to rectify the situation. These sanctions may be economic, diplomatic, or military in nature.
• The Security Council's role in referring cases to the Court and its power to control the Court's ability to exercise its jurisdiction in cases arising out of a situation being dealt with by the Security Council under its Chapter VII powers raise questions about the independence of the Court.
• The Security Council should not be able to interfere with and prevent the exercise of the Court's jurisdiction. The ICJ has expressed that the Council has powers of a political nature, whereas the Court exercises purely judicial functions, and that both can perform their separate but complementary functions with respect to the same events.

The member can be tried at the International Criminal Court

The International Criminal Court (ICC) is an independent court that tries individuals accused of the most serious human rights violations. These include genocide, crimes against humanity, war crimes, and the crime of aggression. In accordance with Article 13(b) of the Rome Statute, the UN Security Council can refer situations to the Prosecutor of the ICC if international crimes have been committed.

The ICC is headquartered in The Hague, and its judges are elected by the UN General Assembly and Security Council. However, the ICC lacks serious enforcement powers, which limits its effectiveness. It has tried 31 cases, all involving individuals from Africa, with only 10 convictions. The ICC has issued a warrant against Vladimir Putin and another member of his government for crimes against children in Ukraine, but Russia does not recognize the court and refuses to adhere to the warrant.

The absence of a global police force makes it difficult for the ICC to bring individuals to trial. For example, former Sudanese President Omar al-Bashir has avoided standing trial since 2006, when the ICC first issued a warrant for his arrest. It was only in 2019, after a revolution that ousted him from power, that Bashir faced the possibility of being turned over to the ICC.

Furthermore, governments can simply withdraw from the ICC if they are under investigation. Burundi and the Philippines, for instance, have recently withdrawn from the court. Notably, the ICC's founding document, the Rome Statute, has not been signed by several countries, including the United States, China, India, and Russia.

The member can face sanctions or condemnation by other UN members

The United Nations Security Council is the primary body responsible for maintaining international peace and security. All member states are obligated to comply with its decisions. However, the enforcement of international law is complex, and the Security Council itself has no direct enforcement powers. If a member of the Security Council breaks international law, they can face sanctions or condemnation by other UN members.

The Security Council may determine the existence of any threat to peace, breach of peace, or act of aggression, and may impose sanctions to rectify the situation. These sanctions can be economic, diplomatic, or military. Economic sanctions can take the form of a comprehensive or selective trade embargo. Diplomatic sanctions can involve the severance of diplomatic relations. Military sanctions can involve the authorization of the use of force to restore peace and security.

The enforcement of these sanctions relies on the willingness of UN members to implement them. In practice, the effectiveness of sanctions can be limited, especially when powerful nations are involved. For example, when the United States invaded Panama, the worst consequence was condemnation by the UN General Assembly, while the UN Security Council condemnation was vetoed by the US, France, and the UK.

The five permanent members of the Security Council (France, China, the US, Russia, and the UK) also have the power to veto any resolution, which further limits the ability to enforce sanctions on these nations. However, this does not make them completely exempt from repercussions. For instance, the US has faced sanctions from the International Criminal Court (ICC) for alleged war crimes in Afghanistan, although the US does not recognize the court's jurisdiction.

In addition to sanctions, the Security Council can refer situations involving international crimes (genocide, crimes against humanity, war crimes, and the crime of aggression) to the ICC. The ICC can try individuals accused of egregious human rights violations, although it also lacks strong enforcement powers.

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