THE UN SECURITY COUNCIL AND HUMAN RIGHTS

Transcription

1 THE UN SECURITY COUNCIL AND HUMAN RIGHTS

2 Also by Sydney D. Bailey ASPECTS OF AMERICAN GOVERNMENT (editor) BRITISH PARLIAMENTARY DEMOCRACY THE BRITISH PARTY SYSTEM (editor) CEYLON FOUR ARAB-ISRAELI WARS AND THE PEACE PROCESS THE FUTURE OF THE HOUSE OF LORDS (editor) THE GENERAL ASSEMBLY OF THE UNITED NATIONS HOW WARS END (2 vols) HUMAN RIGHTS AND RESPONSIBILITIES IN BRITAIN AND IRELAND (editor) THE KOREAN ARMISTICE THE MAKING OF RESOLUTION 242 NAISSANCE DE NOUVELLES PARLIAMENTARY GOVERNMENT IN BRITAIN (editor) PARLIAMENTARY GOVERNMENT IN THE COMMONWEALTH (editor) PARLIAMENTARY GOVERNMENT IN SOUTHERN ASIA PEACE IS A PROCESS PROBLEMS OF PARLIAMENTARY GOVERNMENT IN COLONIES (editor) THE PROCEDURE OF THE UN SECURITY COUNCIL PROHIBITIONS AND RESTRAINTS IN WAR THE SECRETARIAT OF THE UNITED NATIONS THE UNITED NATIONS: A Concise Political Guide (3rd Edn) VOTING IN THE UN SECURITY COUNCIL DÉMOCRATIES WAR AND CONSCIENCE IN THE NUCLEAR AGE

3 The UN Security Council and Human Rights Sydney D. Bailey palgrave macmillan

4 Sydney D. Bailey 1994 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping, and manufacturing processes are expected to conform to the environmental regulations of the country of origin. First published in Great Britain 1994 by THE MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 2XS and London Companies and representatives throughout the world A catalogue record for this book is available from the British Library. ISBN ISBN (ebook) DOI / First published in the United States of America 1994 by Scholarly and Reference Division, ST. MARTIN'S PRESS, INC., 175 Fifth Avenue, New York, N.Y ISBN Library of Congress Cataloging-in-Publication Data Bailey, Sydney Dawson. The UN Security Council and human rights / Sydney D. Bailey. p. cm. Includes bibliographical references and index. ISBN United Nations. Security Council. 2. Human rights. 1. Title: The United Nations Security Council and human rights. JX1977.A593B dc CIP

5 Contents List of Tables and Figures vii List of Abbreviations viii Introduction X 1 Self-Detennination in Africa 1 Angola, Mozambique, Guinea-Bissau 2 Southern Rhodesia (Zimbabwe) 3 Namibia 6 South Africa 9 The Role of the Security Council 13 2 Ascertaining the Will of the People 16 Indonesia 17 Kashmir 19 The Congo (Zaire) 22 Dominican Republic 23 Southern Rhodesia (Zimbabwe) 24 Bahrain 24 Pacific Islands 26 Namibia 30 Nicaragua 35 Haiti 36 Angola 41 Cambodia 44 Western Sahara 49 Mozambique 53 Liberia 53 The Role of the Security Council 54 3 International Humanitarian Law 59 Jerusalem, Korea, Dominican Republic, Israel and the Occupied Territories since India-Pakistan-Bangladesh, Cyprus since Iraq-Iran, v

6 vi Contents Kuwait, El Salvador since Somalia, Former Yugoslavia since The Role of the Security Council 88 4 Tenorism 90 1 Hijacked Aircraft 94 2 Attack in Lod Airport 94 3 Diversion of Arab Plane 95 4 Entebbe Rescue 95 5 US Hostages in Iran 98 6 Incident in the Seychelles The Achille Lauro Affair Diversion of Egyptian Plane Attacks on Rome and Vienna Airports Diversion of Arab Plane US Bombing of Libya Hostage-Taking Condemned Colonel Higgins Kidnapped Marking of Explosives Iraq to Discontinue Support for Terrorism Libya Asked to Hand over Suspects 110 The Role of the Security Council 111 s The Case-by-Case Approach 114 Congo (Zaire) 115 East Timor 115 El Salvador 116 Iraq 119 Former Yugoslavia 121 Cambodia 122 The Role of the Security Council Human Rights and Peace 125 Notes 143 Index 165

7 List of Tables and Figures Table 1 Figure 2.1 Figure 2.2 Table 3.1 Table 3.2 Arrears in UN contributions, permanent members of the Security Council, 1993 Code of conduct for political parties UNT AC election calendar Security Council decisions regarding the implementation of the Geneva Conventions in territories occupied by Israel Complaints received by ONUSAL (UN Observer Mission in El Salvador) August 1991-July 1993 xii vii

8 List of Abbreviations ANC African National Congress (South Africa) ASEAN Association of South East Asian Nations CSCE Conference on Security and Cooperation in Europe ECOMOG Military Observer Group of West African States ECOWAS Economic Community of West African States FMLN Frente Farabundo Marti para la Liberaci6n Nacional FRETILIN Revolutionary Front for the Independence of East Timor GA UN General Assembly GAOR General Assembly Official Records GOC Good Offices Committee in Indonesia ICJ International Court of Justice ICRC International Committee of the Red Cross IHL International Humanitarian Law MICIVIH International Civilian Mission in Haiti MINURSO Mission for the Referendum in Western Sahara MPLA Popular Movement for the Liberation of Angola OAS Organization of American States OAU Organization of African Unity ONUCA Observer Group in Central America ONUSAL Observer Mission in El Salvador ONUVEH Observer Group for the Verification of the Elections in Haiti PFLP Popular Front for the Liberation of Palestine POLISARIO Frente Popular para Ia Liberaci6n de Saguia el- Hambra y Rio de Oro POW Prisoner of war SC Security Council SCOR Security Council Official Records SWAPO South West Africa People's Organization UDI Unilateral Declaration of Independence UNAMIC UN Advance Mission in Cambodia UNA VEM UN Angola Verification Mission UNCIP UN Commission for India and Pakistan UNDP UN Development Programme UNFICYP UN Peacekeeping Force in Cyprus UNITA National Union for the Total Independence of Angola viii

9 List of Abbreviations ix UNMIH UN Mission in Haiti UNPMS UN Police Monitors in Haiti UNRWA UN Relief and Works Agency for Palestine Refugees in the Near East UNT AC UN Transitional Authority in Cambodia UNT AG UN Transition Assistance Group in Namibia UNTSO UN Truce Supervision Organization in the Middle East

10 Introduction In a study on war-termination published in 1982, it was noted that more than half the wars in the Third World since 1945 had been caused by the perception that human rights were being denied. 1 That being the case, one would expect that the Security Council, being concerned with the prevention of armed conflict, would have developed procedures for dealing with human rights issues, either by the establishment of a permanent subsidiary organ under Article 29 of the Charter, or by close collaboration with the Commission on Human Rights under Articles 65 and 68. Yet for more than four decades, the Security Council did its best to avoid taking up human rights issues, and it has not yet developed consistent procedures for dealing with such matters. The Council, like the other five principal organs, has to keep within the Charter. It has no power to intervene in matters which are 'essentially within the domestic jurisdiction of any state' unless enforcement measures under Chapter VII of the Charter are being applied, and enforcement measures depend on a prior determination that peace is being threatened or breached, or that an act of aggression has occurred (Article 2.7). In reaching decisions on intervention, the Council has to bear in mind not only the constraint of Article 2.7, but also the provisions under Articles 55 and 56 of the Charter and, in particular, the obligation of UN Members to cooperate for the achievement of universal respect for and observance of human rights and fundamental freedoms. In the early days, UN Members and UN organs laid great stress on the non-intervention requirement of Article 2.7, but increasingly since 1989, the Security Council has taken the view that the agreement of the parties, or a determination under Chapter VII of the Charter, whether or not enforcement measures are applied, or grave breaches of international humanitarian law have occurred, may sometimes override the non-intervention provisions of Article 2.7. The International Committee of the Red Cross has expressed the view (which I share) that violations of human rights can be of such a magnitude that their continuation would represent a threat to peace within the meaning of Article 39 of the UN Charter. 2 Two important international trends were visible for all to see while X

11 Introduction xi this book was being written, not only in foreign offices and defence ministries but also in the homes of those with television sets. On the one hand was the tragic deterioration of the world situation, with new wars breaking out with alarming regularity, mainly in the Third World. On the other hand was the feeble response of the outside world, mainly in the form of words. It was while atrocities were taking place in Rwanda, for example, that the UN organized a major international conference on human rights and appointed an international high commissioner for human rights. Both these steps had their uses, but they needed to be reinforced by more vigorous action. In fact, the Security Council did its best to avoid becoming embroiled in such matters. We therefore have a picture of the world situation steadily deteriorating while the Security Council was manifestly failing to keep pace with external events. The United Nations seemed unable to act effectively, other than to utter pious words. The purpose of this book is to provide factual information about the Security Council's handling of human rights issues. Any reader who consults the notes on pages will notice that, in the various cases, I have to the greatest extent possible drawn only on UN documentation. All the members of the Security Council had access to national sources of information; but the one source that was common to them all was UN documentation: speeches in the Council, reports from the UN Secretariat and subsidiary organs, documents from UN Members circulated to Council members. Scholars and practitioners have written articles and books about the early cases, drawing on national archives and using vital information that was not available to all the members of the Council when decisions were taken. If, to take a hypothetical case, Britain and the United States should have reached a secret agreement by which the United States would take the lead on Middle Eastern issues and Britain would take the lead on Southern African matters, the two States would exchange information from open or covert sources, some of which might not be available to other members of the Security Council. But reports, documents and speeches that have been issued by the UN for general distribution are public property, available to all members of the Council on equal terms. It is on these documents that I have relied for describing the various cases. Documents of the Security Council and cited with S/ followed by a number were issued in mimeographed form on a provisional basis.

12 xii Introduction Table 1 Arrears in contributions, permanent members of the Security Council, 1993 (in $ millions) Regular budget Peacekeeping Total China France Russian Federation/USSR United Kingdom United States Official records are issued in printed form and are cited as Security Council Official Records (SCOR). One aspect of the problem of dealing with human rights issues that I have not dealt with is how the Security Council's decisions are to be financed, since this is a matter which the Charter assigns to the General Assembly (Article 17). This is by no means a trivial issue, since Members seem much more willing to authorize expenditures than to contribute their assessed share. A recent report of the Secretary-General showed arrears on the regular budget of $542 million, and $1033 million of arrears for peacekeeping on 31 October Four of the permanent members of the Security Council were in arrears, as shown in Table 1. After 50 years the UN finds itself overburdened and underfunded especially by the powers who should be paying the most. One other issue related to human rights I have not dealt with. Article 1.3 of the Charter distinguishes between 'international cooperation in solving international problems of a humanitarian character' and cooperation in promoting and encouraging 'respect for human rights and for fundamental freedoms for all'. One of the main humanitarian problems confronting the Security Council as this book went to press was providing protection, sometimes armed, for the movement of medical supplies and food for civilians in war zones. This subject deserves a book on its own. I have included a chapter on violations (or alleged violations) of international humanitarian law, since human rights instruments are an essential source for such law. The author of a book on contemporary affairs has great difficulty in keeping up with events. I have tried to confine the book to its subject matter - the UN Security Council's role regarding human

13 Introduction xiii rights but not concerning other social and humanitarian matters - and to relevant developments up to 31 December The result has been that some cases stop abruptly and incomplete. This is so regarding the following: Angola, Cambodia, East Timor, El Salvador, former Yugoslavia, Haiti, Iraq, Kuwait, Liberia, Mozambique, and Western Sahara. There is no way of avoiding this difficulty, but the author can at least warn the reader of its existence. SDB January 1994