TY - JOUR
AU - Aitken,, Harry
AB - Abstract The prevailing view among scholars is that the Security Council’s (‘Council’) enforcement powers are political in nature; Chapter VII of the UN Charter (‘Charter’) allows the Council extensive political discretion to decide if, when and how to use force to restore international peace and security. This article seeks to challenge and refine this conception of the Council in the sphere of peacekeeping. It does so by analysing Council resolutions mandating civilian protection missions through the prism of Hans Kelsen’s writings on the Council’s law enforcement function. Applying the Kelsenian lens, it is argued that the Council’s resolutions are framed as quasi-judicial decisions, in which it proclaims violations of public international law, and its authorisations for peacekeepers to use force are a form of sanction, which aim at the restoration of legality. The analysis of civilian protection mandates sheds light on the sub-textual interaction between Article 39 and Article 42 of the Charter, in which the Council interprets threats to or breaches of the peace in terms of violations of international humanitarian law and human rights and views the restoration of peace and security as the cessation of those violations. This practice, it is submitted, has implications for the political conception of the Council. It shows the Council voluntarily curtailing the discretion afforded to it in Chapter VII in terms of the triggers of enforcement action and the shape its measures take. This article concludes with some thoughts on how the Council’s law enforcement approach can be reconciled with its inherently political character. 1. Introduction Judge Stephen Schwebel has described the Security Council (‘Council’) as ‘a political organ which acts for political reasons’.1 The Council is widely viewed as a political creature because of the way it is composed and the manner in which it is entitled to exercise its powers.2 This article is concerned with the second dimension, in particular the extensive discretion afforded to the Council under Chapter VII of the United Nations Charter (‘Charter’) to decide if, why, how and when to maintain and restore international peace and security. The Council has been criticised throughout its history for exploiting this discretion and doing either too little or too much in response to threats or breaches of peace, or acts of aggression. This article seeks to critique and refine the dominant ‘political’ conception of the Council. It will do so by looking at its practice in authorising peacekeeping missions, under Chapter VII of the Charter, to use force to protect civilians under imminent threat of physical violence.3 In resolutions authorising civilian protection peacekeeping missions, the Council, inter alia, declares that violations of international human rights law and international humanitarian law (‘IHL’) have been committed against civilians and authorises peacekeepers to use force to prevent the ongoing commission of those violations. In this respect, the Council’s focus in peacekeeping missions has shifted from enforcing peace agreements to ensuring that warring factions do not commit violations of international law which harm civilians. This practice does not neatly correlate with the political conception of the Council, including another observation by Judge Schwebel that while the ‘Council is invested by the Charter with the authority to determine the existence of an act of aggression, it does not act as a court in making such a determination’.4 It is proposed that the Council’s peacekeeping practice should instead be conceptualised as a form of international law enforcement. Whereas the Council has the political discretion not to intervene in a conflict situation, when it decides to act, it does so on the basis of violations of international humanitarian law and human rights law. Moreover, the use of force by peacekeepers pursuant to a Council mandate is a sanction, taken in response to those violations and aimed at the restoration of a situation of legality. The law enforcement thesis is reached by developing a methodological model to test whether the Council is acting as a law enforcer (in Section 2) and then applying that model to Council practice in the field of civilian protection peacekeeping (in Section 3). The methodological model is developed from the work of Austrian theorist, Hans Kelsen, in the early-to-mid part of the twentieth century, combined with a more contemporary analysis of Council practice. Kelsen, it is submitted, offers a unique starting point to study contemporary Council practice because he was the first to offer a law enforcement interpretation of the Council’s powers under Chapter VII of the Charter. The application of the Kelsenian methodology to Council practice (in Section 3) illustrates not only that the Council can and does act as a law enforcer in civilian protection, but also that the consistencies and modalities of this practice give it a normative character. It has now become the convention for peacekeeping missions to be authorised as a form of international law enforcement. The consequence of this norm, it is argued (in Section 4), is that the Council has reduced (or eliminated) the discretion it ordinarily would have under Chapter VII to: (i) act where there is no legal wrong or (ii) to introduce enforcement measures which seek no legal outcome. Less politics, and more law, govern its operation. This conclusion is significant in the context of ongoing discussions about the reform of the Council and in circumstances where criticisms of the Council often attach to its political character. Understanding that there are greater legal inputs and constraints on its action than are commonly accepted does not resolve the Council’s problems, but it does show that it is at least playing by a rule book accepted by the international community, while reducing opportunities for abuse of power. 2. Political and legal conceptions of the Security Council A. The political approach There are layers of complexity to Judge Schwebel’s characterisation of the Council as ‘a political body which acts for political reasons’. At the surface level, the Council is political because of who it comprises and the capacity in which its members participate. The special membership of the ‘Permanent Five’ (‘P5’)5 is undemocratic: it reflects post-World War II power structures and not the major economic or population centres of today,6 or a trans-civilisational cross-section of members. Diplomats on the Council act on behalf of their sending state; they do not purport to represent a wider group of states or to act in an independent and impartial capacity. It is uncontroversial that the members of the Council often make decisions based on their own sovereign interests. The Council’s political character is facilitated by the constitutional system in which it operates. Under Article 24(1) of the Charter, the Council has the ‘primary responsibility for the maintenance of international peace and security’. This language correlates with that in Article 1(1), which sets forth the primary purpose of the UN ‘[t]o maintain international peace and security’. On this basis it has been suggested that Article 24(1) ‘means nothing else but that the Charter confers upon the Security Council primary responsibility for the achievement of the general purpose of the United Nations’.7 The Council has interpreted the terms ‘international peace and security’ expansively. In 1992, following a meeting with heads of state and government on the responsibility of the Council, the President of the Council stated that:8 [t]he absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security. The Council’s broad mandate is put into operation in Chapter VII of the Charter by Article 39. The words ‘shall determine’ in Article 39 make clear that the entire decision as to whether a situation falls within one of the three categories–‘threat to the peace, breach of the peace, or act of aggression’–rests with the Council. Each of these triggers, particularly ‘threat to the peace’, gives the Council extensive reach over various situations and events–namely: (i) time and breadth: the Council can act before a conflict arises, during conflict or in a post-conflict situation; (ii) scope and situation: inter-state and non-international conflicts are covered; and (iii) actors affected: the actions of individuals as well as states may trigger Article 39.9 These factors, among others, have given rise to the suggestion that the Charter places no legal limits on the Council’s discretion to exercise its enforcement powers under Chapter VII.10 However, the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) has held that a determination under Article 39 must remain within the purposes and principles of the Charter.11 Articles 41 and 42 provide for the measures and actions which the Council may take if it concludes that one or more of the conditions in Article 39 have been satisfied. In the same way that Article 39 grants the Council significant discretion in deciding whether there exists a threat or breach of peace, articles 41 and 42 allow it a substantial degree of elasticity in determining if, when and how to take action to restore peace and security. Both articles provide that the Council ‘may’ adopt measures or take enforcement action; there is no obligation to take any step. This is to be contrasted with Article 16 of the League of Nations Covenant, by which Members undertook to immediately sanction any Member that resorted to war. In addition, the Charter neither defines nor delimits the measures or enforcement action which may be taken. A number of actions are enumerated in each article, but these are not exhaustive. Moreover, as has been pointed out by Gowlland-Debbas, there is no requirement that enforcement action ‘match the gravity of the situation’.12 In each of these respects, the Council retains ‘[w]ide freedom of judgment … as regards to the moment it may choose to intervene and the means to be applied’ to restore international peace.13 The Council has been criticised for taking advantage of the discretion afforded to it by Chapter VII. Bowett commented that:14 past experience has tended to show that Member States, especially the permanent members, have used Chapter VII as a means of pursuing their own political agenda, rather than, as guardians of legality, acting on behalf of the membership as a whole. The Council has been criticised, for instance, for failing to act (or at least acting too late and doing too little) to protect civilians and prevent mass atrocities in Srebrenica and Rwanda in the 1990s.15 More recently, the Council has been condemned for its inaction in Syria and Ukraine.16 B. The legal approach Notwithstanding the inherently political nature of the Council, there is a line of scholarship which seeks to portray certain practices of the organ as being legal in character. The legal conception sees the Council not just as being bound by the law, but also as actively participating in the creation, application and enforcement of law. This part will explore the law enforcement approach, primarily by reference to the writings of Hans Kelsen, and discuss some of the tensions between it and the political view of the Council. The aim of this section is not to resolve the tensions between the political and legal conceptions of the Council. Rather it is to set up a methodological model for the examination of the Council’s practice in the field of civilian protection peacekeeping, which will take place in Section 3. (i) Kelsen’s scholarship Kelsen was the original proponent of the legal conception of the Council. In his juristic work on the Charter, The Law of the United Nations, Kelsen proposed two competing conceptions of Chapter VII: one political, the other legal.17 Before setting out his legal approach, which will inform the methodological model developed in this section, it is useful to first refer to some of his earlier work as it clearly informed his competing interpretation of the Charter. The foundations of Kelsen’s law enforcement approach can be traced back to his seminal Pure Theory of Law, first published in 1934, in which he elaborated a ‘theory of interpretation’ in an attempt to ‘answer the question what and how the law is, not how it ought to be’.18 As part of his epistemological study, Kelsen sought to define some of the key attributes of the legal order, which he later adopted in order to assess the potential law enforcement character of the Council. In Austinian tradition,19 Kelsen proposed that a characteristic of a legal order is that wrongful behaviour is met with a coercive act, or sanction: ‘that is to say, by inflicting on the responsible individual an evil … which, if necessary, is imposed upon the affected individual even against his will by the employment of physical force’.20 The investigation in Pure Theory of Law of the ‘basic norm’, which is the common source for the validity of all other norms of the same order, also led Kelsen to discuss the differences between the international and domestic legal orders. Kelsen argued that the tools of enforcement in international law–reprisals and war–are a form of sanction.21 He observed, in this respect, that the ‘just war’ doctrine (or bellum justum) holds that war is lawful only if employed as a reaction to an international wrong.22 Yet, while ‘[i]nternational law, as a coercive order, shows the same character as national law … . [it] differs from it and shows a certain similarity with the law of [the] primitive’.23 This is because there existed neither a centralised scheme of collective security, nor an institutional structure capable of enforcing sanctions. Kelsen’s Pure Theory of Law, given its focus, was largely abstract and conceptual. But in another body of work, Kelsen adopted a critical posture in relation to the collective security structure under the League of Nations. Kelsen argued that ‘[t]here is no greater delusion’ than the idea that an organisation established for the maintenance of peace ‘is enhanced by attributing to it a moral and not a legal character’.24 As noted above, the League Covenant required members to respond to unlawful war with economic or military sanctions, but it was at the discretion of states, and not the League Council, to decide whether violations had occurred.25 Meaningful action, Kelsen believed, would be obstructed by diplomacy and infected by political self-interest.26 World War II confirmed Kelsen’s fears. In the final stages of the War, when the Western Allies were contemplating an international post-war structure, Kelsen made an ambitious suggestion. In Peace Through Law, he proposed that the first step towards creating a new world order should be the formation of an international court with compulsory jurisdiction, whose determinations would be enforced by a centrally administered international police force.27 Kelsen thought that a court would be more likely to succeed than a political body because states would be more likely to comply with its decisions: ‘The idea of law, in spite of everything, still seems to be stronger than any other ideology of power.’28 He acknowledged, however, that the creation of a police force would result in ‘a radical restriction, if not the total destruction, of the sovereignty of the States’.29 As such, he foresaw the necessity of an interim period, during which time the international community would gain confidence in the court. In this period, member states would agree to execute the decisions of the court ‘if necessary by the use of their own armed forces under the direction of … [an] administrative agency.’30 The main purpose of the administrative agency would be to execute decisions of the court, thus not disturbing its place as the central organ in the collective security framework. Kelsen published a draft charter, the relevant part of which provided:31 Article 35 - Sanctions Against Member States Should any Member of the League resort to war or reprisals against another Member of the League in disregard of its obligation under Article 34 the Court shall, on the request of the injured Member or of the Council, decide the question whether the accused Member has violated the Covenant. In accordance with this decision the Council shall order the necessary economic or military sanctions against the Member declared responsible for the violation. While some facets of Kelsen’s proposal were ultimately reflected in the Charter, the structure of the organisation represented a significant departure from what he had proposed. The core of the second sentence in Kelsen’s Article 35 is echoed in Article 94(2) of the Charter, although importantly there is no obligation on the Council in the latter to execute the judgment. In addition, a diluted version of Kelsen’s police force can be seen in Articles 43 and 45, which provide for the use of armed forces of members rather than an international standing army.32 But the greatest departure from Kelsen’s model is in the primacy of the Security Council and General Assembly, who are given the chief responsibility to implement and safeguard the purposes of the Charter. The International Court of Justice, relegated to Chapter XIV of the Charter, is far from the central or dominant organ of the UN system. In Kelsen’s principal work on the Charter, Law of the United Nations, he moved from the critical to the analytical. In its preface, Kelsen wrote that it is a ‘juristic’ work ‘which deals with the law of the Organisation, not with its actual or desired role in the international play of powers’.33 In analysing the role of the Council, Kelsen applied conceptual ideas from his pure theory in the Charter context, writing that ‘sanctions’:34 apply on the condition that a delict has been committed or, what amounts to the same, that an obligation established by the law has been disregarded, and only against the delinquent or individuals who are in a legally determined relation to the delinquent. Kelsen recognised the political character of the Council, noting that it was ‘doubtful’ that the enforcement measures in Chapter VII could be properly characterised as sanctions.35 This was because they were directed not towards breaches of the Charter but at situations affecting peace and security.36 Moreover, the Council could respond at its discretion; unlike Kelsen’s proposed Article 35, there was no automaticity between a violation and a sanction. As such, he considered Articles 41 and 42 to be ‘purely political measures’.37 Yet Kelsen also proposed an alternative construction of Chapter VII, which might be interpreted as a means of giving some effect to (or at least retaining some hope of) a collective security apparatus operating on a legal rather than a political footing.38 He suggested that, as Chapter VII enforcement measures constitute a forcible interference in the sphere of interests of a state, it would be contrary to bellum justum to employ them except as a reaction to a violation of law.39 Consequently, ‘any conduct against which the Security Council is authorised by the Charter to react with enforcement actions must have the character if [sic] a violation of the Charter’.40 On this basis, enforcement action would constitute a sanction executed for the purposes of international law enforcement. The three lenses through which Kelsen approaches collective security in the international legal order—the epistemological, the critical and the analytical—are each relevant to the construction of a methodology to analyse the Council’s behaviour in the civilian protection context. Drawing from Kelsen’s definition of the sanction, his proposed Article 35 and his early commentary on Chapter VII, it can be said that the Council will be acting in a law enforcement capacity if: its decision under Article 39 of the Charter that there exists a threat to the peace, breach of the peace or act of aggression is made on the basis of a violation of international law rather than discretionary political criteria; and the measures it authorises under Article 41 or Article 42 are sanctions (as defined above) rather than measures not taken in response to the violation of international law identified by the Council. This shall be referred to as the ‘law enforcement model’. Kelsen’s law enforcement model was controversial and remains so.41 Gowlland-Debbas, who has been the principal contemporary proponent of the law enforcement approach, said that she has been ‘accused of matching oranges and lemons; that the collective security system had nothing to do with legal responsibility, nor did the Council as a political organ have much to do with international law.’42 She summed up the critique of Kelsen’s conception of the sanction as follows:43 Kelsen’s essentially repressive vision of law – to inflict sanctions on those who did not comply – has been heavily critiqued … Kelsen goes to absurd lengths to preserve his concept of sanction as coercion. Moreover, when applying the concept of law as coercion to international law, Kelsen was reduced to expressing this in the brutal, primitive terms of war … The concept of war as a legal sanction contrasted with Kelsen’s view of individuals as the ultimate subjects of international law, since war is tantamount to collective punishment. Paradoxically, Kelsen had an ideological and political programme which was both pacifist and anti-imperialist, for he associated with peace as the fundamental good that only the law could guarantee … Whereas these critiques hold weight, the inconsistencies identified by Gowlland-Debbas do not take into account that (as outlined above) Kelsen’s writings approach collective security from different perspectives, ranging from pure jurisprudence to moral or political commentary. Moreover, while it is important to be aware of the limitations of Kelsen’s work in assessing contemporary Council practice, the purpose of this article is not to test whether Kelsen was right. Rather, it is to see what his scholarship can tell us about the Council today. It cannot be disputed that Kelsen’s rigid (alternative) construction of the Charter in Law of the United Nations, in which measures could only be authorised in response to legal infractions, has not been followed in practice. Nevertheless, as will be explored below, the Council has also used Chapter VII as a means to proclaim violations of international law and to authorise measures to restore situations of legality. In particular, its resolutions have referred to breaches of legal rules as a basis for determining that there exists a threat or breach of the peace under Article 39 and it has instituted measures under Articles 41 and 42 to respond to those legal violations. The next part will briefly explore this practice and expand on the practical elements of the law enforcement model in order to develop a more comprehensive and contemporary methodology for the analysis of civilian protection resolutions in Section 3. (ii) Security Council law enforcement in practice The first limb of the law enforcement model concerns the Council’s decision under Article 39 that there exists a threat to the peace, breach of the peace or act of aggression. Elihu Lauterpacht observed that Council resolutions are often framed ‘in language resembling a judicial determination of the law and of the legal consequences said to flow from [that] conduct’.44 Pellet and Miron go one step further, positing that ‘in most cases, the characterisation of a situation as a threat to peace is triggered by a violation of international law, so serious that the Security Council considers that it amounts to a threat to, or even a breach of the peace’.45 However this practice, Lauterpacht suggested, has no parallel with any organ in a domestic legal framework.46 The Council adopts what might be described as a juridical process, involving the consideration of evidence, applying facts to law and reaching legal conclusions. But its practice and procedure is very different from that of a court: most notably, there is no adversarial process, no rules of evidence and no objective finder of fact. Kelsen aptly described this process as ‘quasi-judicial’.47 This view is at odds with the political conception of Chapter VII, which holds that the collective security structure is a ‘preventative tool’ to be used against future war rather than as a reactive mechanism that can be triggered only ex post facto by a breach of international law.48 Nevertheless, the Council has made quasi-judicial decisions, for example, by declaring acts illegal or invalid49 and by demarcating borders.50 Responding to the unilateral declaration of independence (‘UDI’) of the Ian Smith regime in Rhodesia in 1965, the Council branded the government illegal in Resolution 21651 and regarded the declaration ‘as having no legal validity’ in Resolution 217.52 In Resolution 217, the Council determined that the situation constituted a threat to international peace and security, indicating that it had made a positive determination under Article 39, and implying that its decision to do so was informed by the illegality of the regime and its actions. The ‘de-legitimisation’ of the UDI was seen as an application of the Stimson Doctrine: a collective act of non-recognition of an entity which has asserted the qualification of statehood in violation of international law.53 Gowlland-Debbas explained that the Council ‘did not abstain from attributing blame or guilt to one of the parties … nor were elements of law absent from the finding of a threat to the peace’.54 A similarly drafted declaration—concerning South Africa’s ‘illegal’ presence in Namibia55—was ‘in fact a judicial determination’ according to Judge Onyeama in the Namibia case.56 Thus, while Article 39 might first and foremost be a preventative tool, it also grants the Council ‘a secondary normative function, quasi-jurisdictional and apparently retroactive, which consists of specifying a particular obligation, imprecise but included in the Charter’.57 The second limb of the law enforcement model views the economic and military measures executed under Articles 41 and 42 as sanctions.58 John Austin regarded sanctions as ‘[t]he evil which will probably be incurred in case a command be disobeyed.’59 For Kelsen, international sanctions would take the form of reprisals or war: ‘the former a limited, the latter an unlimited interference in the sphere of interests of the state’.60 While reprisals are ‘aimed solely at the violation of certain interests’ of the addressee, war is ‘directed towards its complete submission or total annihilation and consequently performed by the armed forces of the opponent’.61 As is clear, Kelsen’s view of international sanctions is drawn from unilateral measures taken by states in response to international delicts.62 However, in Law of the United Nations, he proposed that centralised measures adopted under Articles 41 and/or 42 may also have the character of sanctions if they are coercive economic and military measures which are directed against states in response to legal infractions.63 Gowlland-Debbas suggests that sanctions need not be:64 equated merely with coercion as force or threat of force, i.e. in international law, military reprisals and war, but coercive in the sense of acts intended to force one to do or to abstain from doing something, i.e. in a broad sense all the legal and material means to ensure the effectiveness of the law. She argues that other measures such as nullity of state acts, financial measures and penal sanctions against individuals might all fall within the definition of a sanction.65 It is unsurprising that, with more than half a century of practice since Kelsen’s scholarship on the Charter, the concept of collective sanctions has undergone modification. But given that the act constituting the sanction for present purposes is the use of force, it is not necessary to delve too far into the definitional debate about the meaning of sanctions; Kelsen’s narrower concept will suffice. However, it is worth observing in the evolution of the concept of the sanction that emphasis has shifted from the character of the act, including what form it takes, to the purpose of the act, namely whether it is intended to ensure the effectiveness of the legal system. Equating Chapter VII measures with sanctions taken on the basis of violations of law is contrary to the political conception of the Council pursuant to which measures are discretionary tools to contribute to a situation of peace and not compulsory or proportionate measures to restore a situation of legality. But in certain cases, the Council has acted as a law enforcer rather than a peace enforcer. In 1990, for instance, coercive measures, arguably authorised under Article 42,66 were ordered against Iraq in response to its invasion of Kuwait.67 Echoing the bellum justum doctrine, France’s Ministre des Affaires étrangères posed the rhetorical question to the Council: ‘[i]f Iraq chooses to … remain locked in the use of force, what other choice are we left with but to resort to this same means?’68 Greenwood described the Council’s response as ‘swift and decisive action to enforce the law against an aggressor’.69 More recently the Council, after ‘condemning the gross and systematic violation of human rights’ and ‘widespread and systematic attacks … against the civilian population’ in Libya, instituted a no-fly zone and authorised states to take all necessary measures to enforce it.70 When Kelsen authored Law of the United Nations, there was no Council practice with which to inform his interpretation of the Charter. This brief survey of subsequent practice gives some practical flesh to the theoretical bones of the law enforcement model developed from Kelsen’s scholarship. It illustrates that in certain cases the Council’s conduct can be seen in accordance with the two limbs of the model (the quasi-judicial decision and the sanction) and will serve as a point of reference for the application of the model to Council practice in civilian protection peacekeeping in the next section. 3. Civilian Protection as Law Enforcement A. Civilian protection in context Peacekeeping is conducted pursuant to the ‘holy trinity’ principles of consent, impartiality and minimum use of force. Operating within these parameters, peacekeepers have historically played a multidimensional role in peacekeeping missions; their responsibilities have included observation, interposition, maintenance of order, disarmament and restoration of public functions.71 However, as Labuda explains,72 in recent years, as the traditional distinction between peacekeeping and coercive enforcement has gradually dissipated, hybrid notions such as ‘peace enforcement’, ‘robust peacekeeping’ and ‘peace operations’ have emerged to denote a more overtly militarized approach to UN-mandated conflict management. The concept of civilian protection is, in many respects, at the heart of this transmutation in peacekeeping. The protection of civilians under imminent threat of physical violence is the basis on which the Council has authorised peacekeepers to use force (deploying the language ‘all necessary action’ or ‘all necessary means’)73 in 15 missions since 1999.74 It has also been seen as allowing an exception to the ‘holy trinity’; as was observed in the Comprehensive Review of the Whole Question of Peacekeeping (‘Ramos-Horta Report’), ‘the principles of peacekeeping should never be used as an excuse for failure to protect civilians’.75 The first civilian protection mandate—Resolution 127076—was the product of institutional learning following a decade in which peacekeepers were blamed for failing to protect civilians from mass atrocities and genocide in Srebrenica and Rwanda.77 Special reports commissioned to investigate these atrocities argued that the UN ‘must be prepared to respond to the perception and the expectation created by its very presence’.78 The organisation was criticised for failing to adopt robust mandates and to provide the necessary resources to enable peacekeepers to defend civilians.79 The human security doctrine, devised in 1994, provided a conceptual vehicle for the Council to bring the protection of civilians within its responsibilities for the maintenance of international peace and security. Whilst human security is defined broadly, encompassing economic and health threats to civilians, it was recognised that protection from physical violence in internal conflict was the primary purpose.80 Resolution 1270,81 and all subsequent resolutions, draw from this principle and authorise peacekeepers to protect civilians ‘under imminent threat of physical violence’.82 Like the generations of peacekeeping before it, civilian protection has not been interpreted as a challenge to the prevailing political conception of Chapter VII enforcement powers.83 In fact, the human security doctrine influenced an expansive re-interpretation of Article 39, seemingly confirming the Council’s absolute political discretion to decide, based on criteria of its own choosing, whether a situation threatens peace and security.84 And while it is increasingly recognised that human rights principles underlie civilian protection,85 the aims and objectives of peacekeeping are still framed in terms of peace and security, and the mandate in civilian protection missions is couched in non-legal terms: protection from ‘physical violence’. The use of force has consequently been interpreted as ‘an enabling component of a political strategy’ to restore peace and security, and ‘not as an end in itself’.86 This section will challenge and refine this conception of the Council’s practice by considering civilian protection peacekeeping in light of the law enforcement methodology developed in Section 2. The aim here is not to critique Kelsen’s epistemological claims, but rather to draw from his work to provide a different perspective on the Council’s practice in this field. B. Analysis of civilian protection resolutions (i) Is there a quasi-judicial dimension to resolutions authorising civilian protection missions? The first limb of the law enforcement model concerns the finding of a violation of international law, which was described by Kelsen in Law of the United Nations as the ‘quasi-judicial’ decision. Similar to the Council’s resolutions with respect to Rhodesia and Namibia discussed above, the Council can be seen to be making quasi-judicial decisions in resolutions authorising civilian protection peacekeeping missions. Although, in contrast to the aforementioned resolutions, in the civilian protection context the principal bodies of international law on which the Council relies are IHL and international human rights law.87 A recent example is contained in Resolution 2340 of 2017 concerning Sudan, in which the Council deplored:88 the violations of international humanitarian law and human rights violations and abuses committed by Government of Sudan security forces, their proxies and armed groups, including those opposing the Government of Sudan, against civilians, including IDPs, particularly in the Jebel Marra area. Condemnations of human rights and IHL violations are a recurrent feature of resolutions in which civilian protection mandates are authorised or extended. The central importance of these two bodies of law to civilian protection authorisations is clear from the Council’s aide memoires on civilian protection,89 which are intended to facilitate the consideration of relevant issues and provide template language for future resolutions. In the 2016 aide memoire, the first section is devoted to the obligations of parties ‘to take the necessary measures to protect and meet the basic needs of the conflict-affected population’, which all derive from human rights and IHL.90 With respect to human rights, these obligations cover, inter alia, the right to life and the prohibitions against arbitrary deprivation of liberty and slavery. For IHL, the aide memoire notes the prohibition against the displacement of civilians in conflict areas and the obligation to respect and protect the sick and wounded. The annex to the 2016 aide memoire provides 28 formulations of language the Council might use in its resolutions to condemn IHL and human rights violations and call on parties to comply with their corresponding international legal obligations.91 The quasi-judicial practice of the Council in civilian protection resolutions goes beyond general findings of violations of bodies of law; there is also consideration of specific breaches. Assessment of the particular breaches takes place both in the text of the resolutions and in reports of the Secretary-General submitted to and relied on by the Council. The latter are considered an essential interpretive tool for mandates because the Secretariat has ‘executive command’ of operations92 and is uniquely placed to report violations to the Council.93 These reports are referred to in preambular paragraphs in resolutions and constitute one of the bases on which the Council authorises enforcement action. Turning first to international human rights law, this section will limit its focus to the prohibition on the right to life94 and on the right to liberty and security of the person,95 as these are most closely linked to the mandate to use force where there is an ‘imminent threat of physical violence’. Violations of these rights occur, inter alia, when there is extrajudicial execution96 and forced disappearance97 or in circumstances of arbitrary arrest and detention.98 These elements are considered in reports of the Secretary-General prepared for the Council and in the text of resolutions. For instance, on the situation in Cote d’Ivoire, the Secretary-General reported to the Council that ‘in Forces nouvelles-controlled areas, multiple infringements of the right to life were reported, as were several cases of torture, ill-treatment, arbitrary arrest and detention’99 and the Council adopted a resolution noting ‘the persistence of cases of human rights violations against civilians’.100 In a resolution on Burundi, the Council strongly condemned:101 all violations and abuses of human rights in Burundi, whoever perpetrates them, including those involving extra-judicial killings, sexual violence in the context of the political crisis, arbitrary arrests and detentions. In another instance the Council condemned ‘human rights violations in, and relating to, Darfur, including arbitrary arrests and detentions’.102 The right to life not only proscribes authorities from perpetrating abuses, but also imposes positive obligations on states to prevent violations and to punish those responsible.103 The European Court of Human Rights (ECtHR) has held that a state will be responsible when its authorities knew or ought to have known about a risk to the life of individuals from the acts of a third party, and failed to take measures to prevent that risk from eventuating or to punish the perpetrator.104 In times of war these obligations are elevated,105 and the Human Rights Committee (HRC) has observed that states assume a ‘supreme duty’ to prevent an environment of criminal impunity resulting in loss of life.106 The Council, like the HRC,107 frequently employs the term ‘impunity’ to characterise the human rights predicament in a given conflict. For instance, in Côte d’Ivoire the reports of the Secretary-General referred to by the Council recognised that ‘impunity’ contributed to the ‘cycle of … human rights violations’108 and that those violations ‘resulted less from the state’s complicity than from its failure to prevent them’.109 In Darfur, the Council has also called on the government to ‘end the climate of impunity by identifying and bringing to justice all those responsible’ and insisted that it ‘take all appropriate steps to stop all violence and atrocities’.110 To end impunity, governments are lawfully required to investigate abuses,111 and prosecute and punish wrongdoers.112 In Darfur, the Council lamented the inaction of the Special Prosecutor nominated by the government to indict persons suspected of abuses,113 while the Secretary-General in a report to the Council criticised an officer appointed to investigate a massacre for failing even to visit the scene of the crime.114 There are parallels between these determinations on Sudan and the decision of the African Commission on Human and People’s Rights (ACHPR) in Sudan Human Rights Organisation. Like the Council, the ACHPR held that the failure of the government to investigate and prosecute crimes in Darfur facilitated an environment of impunity, giving rise to liability for human rights violations.115 Turning to IHL, as the situations under consideration by the Council are limited to non-international armed conflict, the applicable rules are principally contained in common Article 3 of the Geneva Conventions,116Protocol II to the Geneva Conventions117 and Article 8(2)(c)-(f) of the Rome Statute.118 The activation of Protocol II requires the satisfaction of additional elements pertaining to the organisation and territorial control of insurgents, as well as their capacity to implement the Protocol.119 While Protocol II offers added protection to common Article 3,120 the ‘core’ of both rules is considered customary international law and applies in all armed conflicts.121 These rules prohibit, for example, inhumane treatment, including violence to life,122 rape123 and the use of child soldiers in situations of non-international armed conflict.124 As with human rights violations, underlying the Council’s general statements on the violation of IHL are findings on specific crimes. References to killings,125 summary executions,126 sexual violence127 and child soldier recruitment128 appear consistently in resolutions determining IHL violations. For example, in South Sudan, the Council condemned ‘abuses against children in violation of applicable international law such as their recruitment and use, killing and maiming and abduction’.129 And in Côte d’Ivoire, peacekeepers were instructed to give ‘special attention to grave violations and abuses committed against children and women, notably sexual- and gender-based violence’.130 IHL constrains warring parties from making civilians the object of an attack or from using force indiscriminately or disproportionately without distinguishing between lawful targets and civilians.131 These violations were considered in Resolution 2109 on South Sudan, in which the Council condemned ‘all violations of international law against civilians, in particular the deliberate targeting of civilians, [and] indiscriminate or disproportionate attacks’.132 In Burundi, the Council criticised the ‘indiscriminate use of grenade attacks, especially against civilians’.133 References to targeted,134 indiscriminate135 and disproportionate attacks136 are found across other resolutions. Council records reveal that infractions of the relevant core rules of IHL were considered by states when formulating civilian protection mandates. For example, France stated that ‘large-scale sexual violence [and] the recruitment of children by armed groups’ in the Democratic Republic of the Congo (DRC) were ‘war crimes’.137 And Nigeria, commenting on the situation in Cote d’Ivoire, observed that ‘[n]ot only are civilians suffering from indiscriminate attacks, there is mounting evidence that they are also being specifically targeted. Such heinous acts violate international humanitarian law.’138 The evidentiary basis underpinning such legal conclusions is generally sourced in the Secretary-General’s reports referred throughout resolutions; these contain information on dates, localities, victim numbers and the perpetrators of violence. In Resolution 1590 on Darfur, for example, abstract references to ‘violence against civilians and sexual violence against women’139 are explained by details of ‘reported killings of over 100 civilians and the mass rape of at least 30 women … in Hamada’ provided by the Secretary-General.140 While the Council operates in a quasi-judicial character in identifying breaches of international law, there are a number of instances where it has not been prepared to make unequivocal legal findings. It has, for instance, shown an unwillingness to find that war crimes or crimes against humanity have been perpetrated.141 With respect to Mali, the Council said that ‘some of such acts referred to in the paragraph above may amount to crimes under the Rome Statute’.142 The Council observed that some of the violations of human rights and IHL in Darfur ‘may amount to war crimes or crimes against humanity under international law’.143 A potential explanation for the Council’s more tentative approach to these crimes is that they require a more in-depth assessment of the facts to determine whether the various elements for individual criminal responsibility are met. But it also perhaps shows that the Council constrains its quasi-judicial function so as not to prejudice or interfere with the competence of the International Criminal Court (‘ICC’) or another ad hoc criminal tribunal which may have future jurisdiction over the same events. While avoiding prejudgment of individual criminal responsibility, the Council has not retreated from assigning responsibility to groups and organisations in civilian protection resolutions. The Council has attributed acts constituting violations to state organs, including Congolese, Ivorian and Sudanese security services,144 as well as to an Ivorian state radio station for inciting ethnic violence.145 It has further ascribed liability to non-state actors for violations of IHL, declaring the guilt, inter alia, of members of the anti-balaka militia in Cote d’Ivoire,146 the Lord’s Resistance Army (LRA) and M23 in the DRC;147 the Janjaweed and other armed groups in Darfur;148 and the LRA in South Sudan.149 The Council has also accused the Forces Nouvelles in Côte d’Ivoire150 and the LRA151 of human rights abuses. Whereas some commentators suggest that human rights obligations ‘devolve only on persons exercising public authority’,152 others propose that rebels are also bound.153 The latter school suggests that the practice of the Council has in fact contributed to the expansion of the subjects of human rights to include private actors.154 Even though the Council blames state organs for violations of international law, it stops short of declaring the international responsibility of the state in question. Despite the fact that it is ‘a well-established rule of international law [that] the conduct of any organ of a state must be regarded as an act of that State’,155 it is notable that the Council refrains from joining the dots from the liability of the organ to the responsibility of the state. In this respect, its role is quite different from that of a court or tribunal in an inter-state dispute; its focus is on preventing legal violations, which includes identifying those who carry them out. But it is not so concerned with state responsibility under the secondary rules. A conclusion which can be drawn from the limited extent to which the Council addresses state responsibility and individual criminal responsibility is that it does not view itself as the exclusive or even principal arbiter or enforcer of international law in conflict situations. It recognises that local authorities are chiefly responsible for domestic rule of law156 and that the ICC is the ultimate authority on the commission of war crimes. For instance, in Resolution 2149 the Council reiterated that perpetrators of abuses in CAR must be held accountable for their crimes and noted, in this regard, the ICC’s preliminary examination of the situation in CAR.157 The Council’s role is limited to situations where there is a law enforcement vacuum owing to the inability or unwillingness of domestic authorities or international courts to intervene, and where the resulting impunity has threatened international peace and security. Its reference to groups and organs responsible for committing crimes might be seen as a necessary part of this function. Without the identification of perpetrators, peacekeepers would be unable to effectively interpret and carry out their mandate to protect the basic legal rights of civilians. Krisch states that the freedom allowed to the Council under Chapter VII as to the addressee of a particular measure ‘rests upon the assumption that the SC … acts merely as a “policeman” and not as a “jury”’.158 But the practice identified above suggests that this premise is inapposite in the civilian protection context. In the surveyed resolutions, the Council can be seen to operate in a quasi-judicial manner by considering evidence contained in the Secretary-General’s reports, finding commissions of specific crimes, declaring violations of IHL and human rights and pointing to the responsible groups and organs. In these respects, there are a number of layers to the quasi-judicial practice of the Council; it is more than just the use of language ‘resembling a judicial determination’, as Lauterpaucht observed. The legal findings in resolutions are in fact the outcome of a deliberative process involving evidence gathering, legal reasoning, voting and precise drafting. Resolutions are different from court judgments, but many of the same ingredients go into the mix. What is missing from the recipe is an adversarial process in which the affected parties are able to put their case, rules of evidence and impartial decision-makers. There is also no ultimate decision on individual criminal responsibility or state responsibility for the violations. For these reasons, as Kelsen said, the process can only be described as quasi-judicial. (ii) Are the measures authorised by the Council sanctions? For Chapter VII measures to fulfil Kelsen’s conception of a sanction, it will be recalled that they must be coercive measures which possess the character of reprisals or war and which are authorised in response to a violation of international law. In Certain Expenses, the International Court of Justice described Chapter VII measures as ‘coercive or enforcement action’.159 Security Council authorisation to use force is typically found in the phrases ‘all necessary action’ or ‘all necessary means’.160 The situation is no different with respect to peacekeepers’ mandate to use force, which was, for instance, formulated as follows in the first civilian protection authorisation:161 14. Acting under Chapter VII of the Charter of the United Nations, decides that in the discharge of its mandate UNAMSIL may take the necessary action … within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical violence … Given that peacekeepers are authorised to use armed force under Chapter VII, the legal basis is found in Article 42 of the Charter.162 (a) Character of enforcement action It is possible to draw analogies between the functions of peacekeepers and Kelsen’s definitions of reprisals and war as the limited or unlimited ‘interference in the sphere of interests’ of the state.163 In Darfur, the Council promulgated a Chapter VII mandate after the Secretary-General recommended that peacekeepers be authorised to use ‘sufficient military power to … defeat spoilers’.164 In Côte d’Ivoire, peacekeepers are mandated to use force ‘in support of or in parallel with government actors’165 and in a ‘preventative and pre-emptive posture’,166 suggesting they are positioned as a participant in combat.167 This was evidenced in 2011, when UN and French helicopters attacked Laurent Gbagbo’s military camps, destroying heavy weapons.168 Japan feared that the mandate of the United Nations Organisation Stabilisation Mission in the DRC (‘MONUC’) could lead peacekeepers to become parties to the war.169 Japan argued in 2003 that MONUC’s strong enforcement mandate should be an exception to the rule in peacekeeping because it risked ‘plunging the troops into very complicated situations, in which they may be required to engage in combat as if they were parties to the conflict’.170 In a 2006 operation, Japan’s fears were confirmed when MONUC killed 200–400 of Laurent Nkunda’s forces to protect the city of Goma from invasion.171 In 2013, the Secretary-General reported that peacekeepers in the DRC were involved in ‘direct military engagement … launch[ing] 18 attack helicopter missions firing 620 rockets, four missiles and 492 rounds of 30 mm ammunition’.172 Nevertheless, the violence continued and with increased pressure from the international community, the Council promulgated a war-fighting mandate for the mission with even stronger terms; an ‘Intervention Brigade’ was authorised to ‘carry out targeted offensive operations … in a robust, highly mobile and versatile manner’.173 The group’s responsibilities include neutralising and disarming all armed groups in eastern DRC.174 Müller has written that:175 The Force Intervention Brigade renders the UN a party to the conflict or as fighting in favour of such a party because of its offensive and partial mandate to carry out offensive operations … Consequently, the Force Intervention Brigade should be treated as combatants under the law of armed conflicts. Major UN-commissioned peacekeeping reports released in 2000 and 2015 argue that war-like activities are sometimes warranted against actors that threaten the physical security of civilians. The Report on the Panel on UN Peacekeeping (‘Brahimi Report’) provided that mandates ‘should not limit contingents to stroke-for-stroke responses but should allow ripostes sufficient to silence a source of deadly fire’.176 The more recent Ramos-Horta Report concluded that certain missions ‘must be willing to use force to protect civilians and maintain a deterrent posture to proactively dissuade “spoilers”’.177 Civilian protection enforcement action appears to sit somewhere in between Kelsen’s conceptions of reprisals and war. On the one hand, it constitutes a limited interference in legal rights because it is directed at preserving the basic legal rights of civilians rather than destroying the perpetrators of violence. On the other hand, the enforcement action is carried out by armed forces, sometimes acting pre-emptively or proactively, which is a characteristic of war as a sanction. For Kelsen, a key feature of the coercive act is that it is taken against the will of the subject to whom it was applied.178 It is clear that the groups subjected to the enforcement measures outlined above did not consent to those measures. This is consistent with the ‘stretching’ of the three principles of classical peacekeeping, which includes the consent of the parties to the conflict. The UN’s position on consent has been framed as follows:179 Consent remains desirable but it can be dispensed with if a hostile faction withholds consent in bad faith; moreover, in the context of intrastate conflicts with multiple armed factions it may not always be possible to obtain consent beyond that of the government. Likewise, the principle of self-defence has been modified to account for the proactive use of force in civilian protection operations. The threshold for peacekeepers to use force in self-defence is much lower than that required of states under Article 51 of the Charter (which reflects customary international law), which precludes force to ‘protect perceived security interests’.180 According to the Ramos-Horta Report, self-defence in peacekeeping allows threats ‘be met with the appropriate use of military force, ranging from containment, via deterrence and coercion, to direct confrontation, particularly when civilians or peacekeepers are at risk.’181 This elasticity in the concept of self-defence is apparent in the coercive and pre-emptive military measures taken by peacekeepers in the missions discussed above. (b) Purpose of the enforcement action To ascertain whether the coercive powers given to peacekeepers are sanctions, it must also be asked whether they are the ‘specific reactions’ to the violations of law determined by the Council. More recent attempts to define sanctions, including those of Gowlland-Debbas, look to the purpose of the act as well as its character. It is difficult, looking to the text of resolutions alone, to determine the extent to which the Council’s legal conclusions inform its decision that a situation falls within Chapter VII and that enforcement action may be authorised. Resolutions often comprise numerous preambular and operative paragraphs, and within this structure it can be hard to identify which considerations inform which measures. The issues which are canvassed in the preambular paragraphs are disparate; many of them are not capable of legal classification, such as political instability or food shortages. Similarly, the operative paragraphs usually authorise peacekeepers to do more than protect civilians under an imminent threat of physical violence; they may encourage a peace process or request the Secretary-General to take a particular course of action. Nevertheless, there are a number of reasons for concluding that there is a nexus between the legal infraction and the enforcement action. Since the formulation of the first civilian protection mandate, the Council has adopted a number of thematic resolutions on the issue.182 These general resolutions, along with the aide memoires on civilian protection discussed above, provide useful context in interpreting specific mandates. They show that civilian protection is increasingly understood in legal terms. A thematic resolution on civilian protection in 2009 referred to the core challenges to the effective protection of civilians, which included ‘enhancing compliance with international law … [and] enhancing accountability for violations’.183 The 2016 thematic resolution made the connection between the legal rights of civilians and the work of peacekeepers even clearer; the Council reiterated ‘its primary responsibility for the maintenance of international peace and security and, in this context, the need to promote and ensure respect for the principles and rules of international humanitarian law’.184 This language is a notable development from the 2015 thematic resolution, in which the Council saw its role in civilian protection in terms of ‘conflict prevention and resolution’ rather than a legal outcome. Statements made by successive Secretaries-General confirm the nexus between human rights law and IHL violations and the mandates of peacekeepers. Secretary-General Kofi Annan took the position that civilian protection is a tool to address ‘the failure of parties to armed conflict to comply with the law on the one hand, and the lack of effective enforcement mechanisms on the other’.185 Secretary-General Ban Ki Moon explained civilian protection as a means of ‘putting human rights at the centre of our peace and security efforts’.186 And more recently, Secretary-General António Guterres said that ‘there is no peace and security without human rights’.187 As Gowlland-Debbas writes, ‘[t]he concept of human security has been reflected in the shift in concern of the Security Council from States to the protection of populations from large-scale human rights and humanitarian law violations.’188 But while the authorisation to use force may be made in response to a violation of law, it is not made in respect of a violation of the Charter. In Law of the United Nations, Kelsen wrote that a measure could not constitute an institutional sanction (strictly defined) unless it is authorised as a response to a Charter breach, such as in Articles 6 and 19 of the Charter.189 The trigger for enforcement action is the existence of a state of affairs under Article 39, but not a breach of that article. Equally, the treaties and customary international law which proscribe IHL and human rights obligations do not ‘provid[e] coercive measures, as sanctions, to be taken in case of contrary behaviour’.190 Thus, whilst there exist the cognate concepts of obligation and response, there is no apparent connection between them in the system of international rules. The discretion afforded to the Council within Chapter VII, on the face of the text, would have made it difficult for Kelsen to have conceived of a practice involving legal findings followed by sanctions in Law of the United Nations. But it is this very discretion which has allowed the Council to develop such a system through its own practice. In the civilian protection context, which is focused on the individual, the Council has come to equate peace and security with compliance with certain rules under the rubrics of IHL and human rights. As a consequence, the measures it authorises under Article 42 could not achieve their aim of restoring peace unless they put an end to the violations of these bodies of law. Thus, while there is no connection in the text of any treaty or in customary rules between the delict and the sanction, the Council, by its practice, has established such a link. The frequency and consistency of this practice is notable. More than 98% of peacekeepers now have mandates to protect civilians which share the same legal features as the resolutions explored in this article.191 Moreover, the thematic resolutions on civilian protection give mandates a normative coherence, whilst the aide memoires ensure resolutions are standardised and consistent. For these reasons it may be said that legal basis on which the Council authorises the use of force in civilian protection has taken on a normative character. In the words of Johnstone, a norm grows from ‘a rational application of lessons learned or the inertial impact of precedent’.192 The normative framework underpinning civilian protection mandates is founded upon a body of precedent resolutions and is buttressed by consistent doctrinal development. There now exists a strong system of norms which guide how the Council interprets and applies its powers under Chapter VII in this field. This system might be said to have become a constitutional convention of the Charter for peacekeeping operations. Gowlland-Debbas wrote that the ‘constraints on Council powers [under the Charter] may be rather vague; on the other hand they are also dynamic, and have evolved over time’.193 The Council’s law enforcement practice in civilian protection is part of this evolution such that it may now be reasonably expected that when the Council authorises peacekeepers to use force, it will be on the basis of violations of human rights and IHL with a view to ensuring the cessation of those violations. The law enforcement character of the Council’s civilian protection practice is different to that proposed (as an alternative Charter construction) by Kelsen in Law of the United Nations. But while he did not anticipate that the collective security framework would operate in the way that it does in civilian protection peacekeeping, the system of norms and practice which has developed over time accords with the essential tenets of the law enforcement model. Peacekeeping enforcement action is a form of sanction which is taken in response to the delict of human rights and IHL violations. The manner in which the Council decides violations of these corpuses of international law assists in our understanding of what Kelsen and more contemporary scholars have described as ‘quasi-judicial’. And in certain respects, the judicial character of the Council’s decision-making is perhaps more extensive than has been recognised in the literature. The Council does not just proclaim violations of law, it also considers detailed evidence contained in the Secretary-General’s reports and engages in a process of matching factual circumstances with the legal elements which comprise substantive rules in question. With respect to the sanction, both the war-like character of enforcement action and the object and purpose of the peacekeeping mandate align with Kelsen’s model. For these reasons, the Council’s practice in authorising civilian protection peacekeeping missions can be characterised as a form of international law enforcement; to borrow Kelsen’s words in Law of the United Nations, the use of force by peacekeepers is authorised ‘on the condition that a delict has been committed’ and is directed ‘against the delinquent or individuals who are in a legally determined relation to the delinquent’.194 4. Context and Implications Having identified the law enforcement character of the Council’s practice in mandating civilian protection peacekeeping operations, it is necessary to step back and consider this finding in the context of the wider debate about the political character of the Council’s enforcement powers. The findings in the previous section have, to some extent, reconciled the tension between the legal and the political by identifying norms which shape the way the Council interprets and applies its powers within the broad textual framework of Chapter VII. But while this conclusion addresses one facet of the debate, it does not answer the remaining dichotomy between Judge Schwebel’s Council, which acts ‘for political reasons’, and the law enforcement view of the Council, in which it acts on the basis of violations of international law. A. Situating law enforcement–reconciling the political and the legal The analysis in this article has focused principally on the text of resolutions and the implementation of the peacekeeping mandate. But this is only part of the picture. As Aust has observed, resolutions are often the ‘pre-arranged, set-piece affair’ which are passed after a veto-less majority vote has been secured in informal meetings not on the public record.195 And Shaw has suggested that the ‘raw factors of power and influence become manifest’ in this private process.196 It is not possible to know the content of off-the-record discussions, but we may assume that states’ positions and arguments are generally informed by more than the law. Moreover, even if a majority of states do reach a consensus in private meetings, the veto power can be deployed by a P5 member to prevent the adoption of the resolution. There are thus elements of the Council’s character which remain political in deciding to authorise civilian protection peacekeeping operations. It is submitted that there are three potential ways of reconciling the legal process of international law enforcement in peacekeeping with the political forces which hold sway over Council decision-making. First, the political and the legal can be viewed as distinct but concordant processes; the ‘political’ plays a part in the private deliberative phase (i.e. whether to act), whereas the ‘legal’ informs the public execution of the decision (i.e. how to act). But this perspective is not entirely satisfactory because resolutions contain the purported basis on which enforcement action is taken; as observed in the above analysis, violations of law are referred to as a basis for acting under Chapter VII. This means that the deliberative phase and the execution phase cannot be artificially divorced. A second way of reconciling the political and the legal is to consider them as one and the same in the deliberative process. If members decide to act on the basis of killings of civilians, then this may be both a political and legal motivation, depending on which lens is applied. This hypothesis assumes that Council members are motivated by sincere humanitarian considerations rather than strategic diplomatic interests. Whilst it cannot be unequivocally ascertained whether this is the case with respect to civilian protection peacekeeping decisions, it is the more probable of the two scenarios. As an institutional response to the failures to prevent atrocities in Rwanda and Srebrenica, a professed humanitarian motivation to address legal violations perpetrated against civilians underlies civilian protection. Members consistently state on the public record that they support resolutions because grievous breaches of IHL and human rights cannot be tolerated. A similar commitment was displayed in the adoption of the 2005 World Summit Outcome which, inter alia, recognised the responsibility of states to protect civilians from genocide, ethnic cleansing, crimes against humanity and war crimes. Whilst the responsibility to protect (‘R2P’) is limited to the four aforementioned crimes, like civilian protection, it is activated by legal infractions. For many states there is thus an intersection between the two doctrines. Upon the adoption of the 2010 aide memoire on civilian protection, for example, seven of the Council’s 15 Members referred to a global ‘responsibility’ to protect civilians in armed conflicts.197 It could be argued, however, that this is an overly optimistic perspective of the motivations of members. Some commentators posit that legal discourse is merely a tool employed by Council members to serve ulterior political purposes.198 In the words of Higgins, legal language is employed as ‘a fig leaf to cover disagreeable political realities’ or as a ‘tactical device, a weapon in the armoury of rhetoric’.199 For the reasons enumerated above, it is to be doubted whether this is the case in the civilian protection context. But even if this position were to be accepted, there is a third way of reconciling the law enforcement character of civilian protection with the Council’s political nature. This is to see the legal decision expressed in resolutions as performing a justificatory role for the political decision to intervene. Utilising legal language lends legitimacy to the decision to use force and is more likely to lead to support from the state in which the conflict is taking place, regional actors, troop-contributing countries and other stakeholders. To return to the words of Kelsen, ‘[t]he idea of law, in spite of everything, still seems to be stronger than any other ideology of power.’200 For the reasons outlined, the second paradigm appears to be the best way of reconciling the political and the legal in the Council’s authorisation of civilian protection peacekeeping missions. However, this paradigm assumes (as do the other two) that the Council will make a positive decision to intervene in a conflict situation. In circumstances where the Council decides not to authorise a peacekeeping force, it is likely it will be informed by non-legal factors. These may include the existence of a political process to restore peace, which may be jeopardised by a peacekeeping presence, or concerns over the strategic benefit of inserting peacekeepers, given the intensity of the conflict. More cynically, a member may be motivated by unilateral concerns, such as an unwillingness to upset its own diplomatic relationships. Whatever the case, it may be assumed that a negative decision will be informed by factors other than legal views as to the rights of civilians and the obligations of states, groups or individuals. As Pellet and Miron rightly argue,201 The Chapter VII mechanism is highly contingent: not all gross violations of fundamental principles of international law trigger it … and even when it is activated, it can be paralyzed by a veto from one of the five permanent members or the lack of a majority of nine out of 15 votes. Accordingly, a caveat must be added to the second paradigm in order to accurately reconcile the Council’s political character with its legal behaviour in civilian protection. On the one hand, a decision to act is informed by events which can be characterised as violations of law, these events are found to be legal violations in resolutions, and the response of the Council is a sanction, designed to bring about the cessation of the violations in question. On the other hand, a decision not to act may be informed by collective or unilateral political considerations. When this conclusion about why the Council acts is aligned with the finding in Section 3 about how the Council operates within Chapter VII, it largely obviates the dichotomy between the legal and political conceptions of the Council. The Council has a political discretion not to act, but when it decides to authorise peacekeepers it is motivated by violations of international law. The Council has the political discretion to authorise a Chapter VII response based on the elastic concepts of peace and security, but in civilian protection missions it considers Article 39 to have been triggered when violations of law have been perpetrated against civilians. Finally, the Council has the political discretion to authorise sweeping measures under Articles 41 and 42, but in the present context offers a proportionate response aimed at halting the legal violations against civilians. While there is thus something of a false dichotomy between the political and legal views of the Council, this conclusion suggests that more law and less politics guide the Council’s behaviour. Whereas the constitutional framework in which the Council operates grants it enormous political discretion, a normative approach has emerged which sees the Council apply its powers according to narrower legal parameters in the field of peacekeeping. B. The effect of law enforcement on the Council’s political character If it is accepted that the legal process has carved out its own space within the political modus operandi of the Council, it is necessary to consider the implications of this for the practice of the Council. As discussed above, politics might affect the application of law, but can law affect politics? For instance, could the law enforcement practice operate as a constraint on the Council’s powers under Chapter VII? Or, to the contrary, does it serve to extend the power of the Council into areas previously reserved for judicial bodies? It has been argued that, when the Council pursues legal outcomes, it oversteps its mandate to maintain and restore international peace and security.202 Koskenniemi provides examples of the Iraqi liability scheme for damage caused as a result of the invasion of Kuwait,203 and the powers granted to the Secretary-General to arrest, detain, try and punish Somali parties responsible for an attack against peacekeepers.204 The Council’s decision to compel Libya to extradite citizens suspected of involvement in the Lockerbie bombings to the UK or the US was also considered an abuse of power.205 Shaw argues that while the Council has broad discretion to make an Article 39 determination and to implement Chapter VII enforcement measures, it should be constrained from instigating ‘secondary level actions’ after peace and security has been substantially restored.206 But in contrast to these perspectives, the normative practice identified in this article sees the Council narrowly construing its Chapter VII enforcement powers. As is apparent from Kelsen’s critical writings on the League of Nations, he thought that collective security would be best served if decisions were premised not on the political considerations of an elite few, but upon legal principles common to the international community.207 Accordingly, by arguing that Chapter VII restrains the Council from making decisions without a juridical basis, and from employing measures that do not seek a legal outcome, Kelsen was advocating for a restriction on political and moral discretion. In the past, the Council has provided generalised factual statements, such as ‘continuing military attacks’208 or ‘acts of violence’209 as justification for a determination of a threat to the peace. In civilian protection mandates, however, the Council offers legal explanations for its Article 39 determinations, detailing IHL and human rights violations, and thereby manifesting a more restrictive interpretation of threats to or breaches of the peace. There is also a normative constraint on the ambit of enforcement measures authorised in civilian protection missions. Previously, the Council has manoeuvred within the full scope of its powers, authorising military measures to ‘monitor cease-fire[s], [and] promote the withdrawal of … paramilitary units’ in the former Yugoslavia,210 and even providing an open-ended mandate for states to ‘use all necessary means to … restore international peace and security’ in Iraq.211 Civilian protection mandates do not afford peacekeepers commensurate powers. Force may only be used to compel warring factions to comply with their international legal obligations not to harm civilians. The sanction in civilian protection mandates is thus not a secondary response, following the restoration of peace, but a primary measure which seeks to reduce legal impunity. In these respects, the Council’s law enforcement missions are to be contrasted with traditional peace enforcement operations. Peace enforcement is characterised by the use of coercive techniques to enforce compliance with the terms of a ceasefire agreement, or with Council resolutions.212 Often operations are executed by coalitions of states or regional alliances, and the strategy is to eliminate a military threat.213 The purposes of civilian protection missions are not synonymous because the military objective for peacekeepers is limited to curtailing the capacity of government or rebel forces to infringe the basic rights of civilians. In this light, civilian protection law enforcement should be seen as a positive development. Restricting the criteria by which the Council may decide to intervene to violations of IHL and human rights makes the decision-making process more democratic. The principles which govern enforcement action are those which the international legal community has generally agreed to uphold. Legal criteria also serve to reduce the influence of the P5 or other powerful member states, who might otherwise seek to encourage Council action in order to protect strategic interests. In this respect, international law could act as a gatekeeper to prevent the passage of decisions taken on the basis of discretionary political factors where there is no corresponding violation of IHL or human rights. But there are of course limitations. The law enforcement approach may restrict options to abuse power, but it cannot compel members to exercise that power in the first place. Nor can it prevent a member of the P5 from exercising its veto. As explained above, the Council acts a law enforcer only when it makes a positive decision to intervene; it may be persuaded not to authorise a mission based on selective political considerations. The de facto operation of the Council in the field of peacekeeping should inform the long-running debate about the reform of the Council.214 One of the key concerns of reformists is the level of representativeness of the Council. While the Council remains far from a democratic institution, it is apparent that in peacekeeping operations it is at least taking action based on contraventions of universal rules and limiting enforcement action to the restoration of legality. Most states are not afforded the opportunity to participate in the decision-making process, but they may be satisfied that opportunities for abuse of power are limited by the restrictive interpretation of Chapter VII adopted by the Council in this field. 5. Conclusion The Security Council does not fulfil the grand, systemic collective security function contemplated by Hans Kelsen. But its law enforcement approach in peacekeeping missions suggests a less primitive international system to that conceptualised in Pure Theory of Law, one involving less private justice and more centralised enforcement. The objective of this article, however, has not been to ask what the Council tells us about Kelsen, but about what Kelsen can tell us about the Council in the field of peacekeeping. The law enforcement methodology developed from his work has shown that when the Council decides to intervene, it does so on the basis of international law. Principles of law guide the Council’s behaviour, inform its response and shape the way it authorises peacekeepers to intervene. In particular, the law enforcement model has revealed that: the Council makes quasi-judicial decisions in its resolutions, which involve not only the finding of a breach of international law, but also a deliberative process of evidence gathering and legal analysis; mission resolutions, when interpreted in light of aide memoires and thematic resolutions, reveal that the mandate to use force to protect civilians is made on the basis of the violations of international law decided by the Council; and the increasingly pre-emptive and robust approach of peacekeepers pursuant to the mandate (and despite the principles of consent and self-defence) is consistent with the coercive character of a sanction. While the Council operates within the broad parameters of Chapter VII, it has read and applied those rules narrowly, in a manner which is more consistent with the law enforcement model of collective security than it is with the political approach preferred by the framers of the Charter. The frequency and consistency with which the Council has acted as a law enforcer has given its modus operandi a normative character, which creates expectations for how it will authorise peacekeepers in future missions. This portrayal of the Council, it is submitted, goes some way to bridging the divides in the wider debate about whether the Council is a political or legal creature. The significance of the Council’s law enforcement practice should not be overstated. While it can inform how the Council plays its hand, it cannot force it. In particular it does not affect whether a P5 member exercises its right of veto to scupper efforts to intervene on humanitarian grounds. In this regard civilian protection alone will not prevent the Council from repeating mistakes made in Srebrenica and Rwanda. Nevertheless, the law enforcement practice has important and positive implications for Council practice. It suggests a normative constraint on the exercise of power under Chapter VII which reduces the risk of an abuse of power. Moreover, the legitimacy of the Council’s decisions is reinforced because it justifies the use of force according to commonly accepted legal principles rather than self-interest or otherwise opaque criteria. More work is required to increase our understanding of international law enforcement. This article has touched only on one field of work of one institution. As has been indicated, the Council takes enforcement action in a range of other circumstances. Moreover, it does not operate in a vacuum. In the field of peacekeeping, it relies on the support of the UN Secretariat and expects the involvement of domestic and international judicial bodies. More broadly, it relies on member states, other UN organs and bodies, civil society, the media and other actors in order to carry out its functions. A comprehensive assessment of international collective security would need to take each of these areas of work and institutions into account. The law enforcement methodology, it is hoped, can provide a frame of reference and a method of analysis for those wishing to contribute to this broader assessment. Carl Landauer wrote that Kelsen’s attempt to read international law into a political compact—the UN Charter—was like trying to produce ‘Hamlet without the Prince of Denmark’.215 The Security Council’s recent international law enforcement practice suggests, to the contrary, that the Dane has returned to the castle at Elsinore. Footnotes " 1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Judgment) [1986] ICJ Rep 14, 290 (Judge Schwebel). " 2 See eg N Krisch, ‘Chapter VII’ in B Simma et al (eds) The Charter of the United Nations: A Commentary (3rd edn, OUP 2012) vol II, 1275; GC Jonathan, ‘Chapitre VII: Actions en cas de menace contre la paix’ in J-P Cot and A Pellet (eds) La Charte des Nations Unies (Editions Economica 1985) 651; L Goodrich and others, Charter of the United Nations: Commentary and Documents (3rd edn, Stevens & Sons 1969) 293; R Higgins, ‘The Place of International Law in the Settlement of Disputes by the Security Council’ (1970) 64(1) AJIL 1; G Gaja, ‘Reflections sur le Role du Conseil de Securite Dans le Nouvel Ordre Mondial’ (1993) Revue General de Droit International Public 297, 306–07; TD Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’ (1995) 26 Netherlands Ybk Intl L 46; M Koskenniemi, ‘The Police in the Temple–Order, Justice and the UN: A Dialectical View’ (1995) 6 EJIL 337. " 3 Over 98% of military and police personnel currently deployed in peacekeeping missions are mandated to protect civilians: High-level Independent Panel on Peace Operations, ‘Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects’ (2015) UN Doc A/70/95–S/2015/446, para 90 (‘Ramos-Horta Report’). " For a list of current civilian protection missions, see Department of Peacekeeping Operations, ‘Current Peacekeeping Operations’ <www.un.org/en/peacekeeping/operations/current.shtml> accessed 17 May 2017. " 4Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Judgment) [1986] ICJ Rep 14, 290 (Judge Schwebel). " 5 UN Charter, art 23(1). " 6 V Gowlland-Debbas, ‘The Security Council and Issues of Responsibility under International Law’ (2011) 353 Recueil des Cours de l’Académie de Droit International 185, 206–7. " 7 H Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (Stevens & Sons 1950) 283. " 8 UNSC, ‘Note by the President of the Security Council’ (31 January 1992) UN Doc S/23500, 2. " 9 Krisch (n 2) 1279. " 10 G Oosthuizen, ‘Playing the Devi’s Advocate: the United Nations Security Council is Unbound by Law' (1999) 12(3) LJIL 549, 562. Cf H Nasu, ‘Chapter VII Powers and the Rule of Law: The Jurisdictional Limits’ (2006) 26 Aust Ybk Intl L 87. " 11Prosecutor v Tadic (Decision on the Tadić Jurisdictional Motion) ICTY-94-1-AR72 (2 October 1995) para 29. " 12 V Gowlland-Debbas, ‘Introduction’ in V Gowlland-Debbas (ed), United Nations Sanctions and International Law (Kluwer Law International 2001) 8. " 13 P Boncour, ‘Statement of the Rapporteur at the Opening Meeting of the Committee’ (9 May 1945) UNCIO XII, Commission III (Security Council), 3rd Comm (Enforcement Arrangements), Doc. 134 III/3/3, 572. See also, B Conforti and C Focarelli, The Law and Practice of the United Nations (4th edn, Martinus Nijhoff Publishers 2010) 265–66. " 14 DW Bowett, ‘Crimes of State and the 1996 Report of the International Law Commission on State Responsibility’ (1998) 9 EJIL 163, 170. " 15 ‘Report of the Secretary-General pursuant to General Assembly Resolution 53/55: The Fall of Srebrenica’ (15 November 1999) UN Doc A/54/549 (‘Srebrenica Report’); ‘Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda’ (15 December 1999) UN Doc S/1999/1257 (‘Rwanda Report’). " 16 See eg criticisms from UN General Assembly members in UNGA, ‘General Assembly Takes Action on Second Committee Reports by Adopting 37 Texts’ (21 December 2016) UN Doc GA/11880 (statements by Lichtenstein and Mexico); UNGA, 80th Plenary Meeting (27 March 2014) UN Doc A/68/PV.80, 2 (Ukraine), 4 (European Union), 12 (Iceland), 13 (Bolivia), 18 (Nigeria). " 17 Kelsen (n 7) 735–36. " 18 H Kelsen, Pure Theory of Law (Max Knight tr, University of California Press, 1967) 1 [trans of Reine Rechtslehre (first published in 1934)] 1 (emphasis in original). " 19 John Austin defined every law or rule as a ‘command’ backed by the threat of a sanction in the event of non-compliance. J Austin, The Providence of Jurisprudence Determined (Ashgate 1998) Lecture 1, 11-12. " 20 Kelsen (n 17) 33. " 21 ibid 320–21. " 22 ibid 322; H Kelsen, Principles of International Law (Rhinehart & Company Inc 1952) 28. Bellum Justum is a centuries old doctrine first devised by St. Augustine. The principles discussed here represent Kelsen’s interpretation of this doctrine. For a historical overview see, J Kunz, ‘Bellum Justum and Bellum Legal’ (1951) 45(3) AJIL 528–34. For a critical perspective on Kelsen’s interpretation see F Rigaux, ‘Hans Kelsen on International Law’ (1998) 9 EJIL 325, 335–37. " 23 ibid 323. " 24 H Kelsen, The Legal Process and International Order (Constable & Co Ltd 1935) 11. " 25 The Covenant of the League of Nations, art. 16. " 26 H Kelsen, Peace Through Law (first published 1944, University of North Carolina Press 2008) 49–55. " 27 ibid 19–23. " 28 ibid 21. " 29 ibid 19–20. " 30 ibid 20. " 31 ibid Annex I, 138. The Council that Kelsen proposed was to be an executive body, comprising the USA, the UK, the USSR and China. Its mandate and powers were more limited than those of the Security Council, and it was to be subsidiary to the Court. See Annex I, art 27, 135–36. " 32 Although this has not been put into effect, as the special agreements envisaged in art 43 have never been concluded. " 33 Kelsen (n 7), xiii. " 34 Kelsen, Law of United Nations (n 7) 706. " 35 ibid 724. " 36 ibid 732. " 37 ibid 733. " 38 For Kelsen, the existence of sanctions was the key determinant of a legal order. His alternate construction might be seen as a way of ensuring the character of the new collective security framework as a legal order: see A Pellet and A Miron, ‘Sanctions’, Max Planck Encyclopedia of Public International Law (OUP 2013) para 1. <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e984> " 39 Kelsen (n 7) 735. " 40 ibid 736. " 41 C-A Morand, ‘La sanction’, (1992) 35 Archives de philosophie de droit 293, 297. " 42 Gowlland-Debbas (n 6) 206. " 43 ibid 230. " 44 E Lauterpacht, Aspects of the Administration of International Justice (Cambridge Grotius Publications Limited 1991) 39. " 45 Pellet and Miron (n 38) para 17. " 46 Lauterpacht (n 44) 39. " 47 Kelsen (n 7) 372. " 48 Krisch (n 2)1289. " 49 See UNSC Res S/5002 (24 November 1961) UN Doc S/RES/169, para 1; SC Res 276 (30 January 1970) UN Doc S/Res/276, para 2. " 50 See UNSC Res 252 (21 May 1968) UN Doc S/RES/252, para 2; UNSC Res 478 (20 August 1980) UN Doc S/RES/478, para 3. " 51 UNSC Res 216 (12 November 1965) UN Doc S/RES/216, para 2. " 52 UNSC Res 217 (20 November 1965) UN Doc S/RES/217, para 3. " 53 Restatement (Third) of the Foreign Relations of the Law of the United States s202(2) (1987). See also V Gowlland-Debbas, ‘Collective Responses to the Unilateral Declarations of Independence of Southern Rhodesia and Palestine: An Application of the Legitimizing Function of the United Nations’ (1990) 61 Br Ybk Intl L 135, 143. " 54 V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (Martinus Nijhoff 1990) 470. " 55 UNSC Res 276 (30 January 1970) UN Doc S/RES/276, para 2. " 56Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, 147 (Judge Onyeama). " 57 J Combacau, Le pouvoir de sanction de l’ONU (Pedone Paris 1974) 16. Author’s translation. " 58 Whilst it is uncontroversial to frame art 41 measures as sanctions, fewer commentators use this descriptor to characterise art 42 measures. See V Gowlland-Debbas, ‘Introduction’ in V Gowlland-Debbas (ed) United Nations Sanctions and International Law (Kluwer Law International 2001) 1, 8–12; Nasu (n 10) 91; Krisch (n 2)1310. " 59 Austin (n 24) 12. " 60 Kelsen (n 7) 707. " 61 ibid. " 62 Note that it is now generally considered that unilateral measures cannot be characterised as ‘sanctions’; the term is now ‘reserved for centralized mechanisms within the aegis of international organizations’: Gowlland-Debbas (n 6) 237. " 63 Gill (n 2) 52; Kelsen (n 6) 735–36. " 64 Gowlland-Debbas (n 6) 232. " 65 ibid 232–33. See also Pellet and Miron (n 38) paras 4–11. " 66 O Schachter, ‘United Nations Law in the Gulf Conflict’ (1991) 85(3) AJIL 452, 462; C Greenwood, ‘New World Order or Old? The Invasion of Kuwait and the Rule of Law’ (1992) 55(2) Modern L Rev 153, 166–69. " 67 See UNSC Res 665 (25 August 1990) UN Doc S/RES/665; UNSC Res 678 (29 November 1990) UN Doc S/RES/678, para 2. " 68 UNSC, ‘Verbatim Records of 2963rd mtg’ (29 November 1990) UN Doc S/PV.2963, 67. Verbatim records of Council meetings are considered important sources of resolution interpretation: M Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 Max Planck Ybk UN L 73, 94; SD Bailey, The Procedure of the Security Council (2nd edn, Clarendon Press 1988) 60. " 69 Greenwood (n 66) 154. " 70 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973. " 71 M Bothe, ‘Peacekeeping Forces’, Max Planck Encyclopedia of Public International Law (OUP, August 2016) para 26. <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e365?rskey=jAEWpI&result=1&prd=EPIL>. " 72 PI Labuda, ‘Peacekeeping and Peace Enforcement’, Max Planck Encyclopedia of Public International Law (OUP, September 2015) para 1. <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e364?rskey=jAEWpI&result=2&prd=EPIL>. " 73 UNSC Res 1590 (24 March 2005) UN Doc S/RES/1590, para 16(i); UNSC Res 1493 (28 July 2003) UN Doc S/RES/1493, para 25; UNSC Res 1528 (27 February 2004) UN Doc S/RES/1528, para 8; UNSC Res 1990 (27 June 2011) UN Doc S/RES/1990, para 3(d). These phrases, to varying degrees, authorise the use of force: C Gray, International Law and the Use of Force (OUP 2000) 153. " 74 S Leone (UNAMSIL), the Democratic Republic of the Congo (MONUC and later MONUSCO), Liberia (UNMIL), Côte d’Ivoire (UNOCI), Burundi (ONUB), Haiti (MINUSTAH), Sudan (UNMIS), Darfur, Sudan (UNAMID), Chad and Central African Republic (MINURCAT), and Lebanon (UNIFIL), Central African Republic (MINUSCA), Mali (MINUSMA), Abyei, Sudan (UNISFA) and South Sudan (UNMISS). " 75 Ramos-Horta Report (n 3) para 122. " 76 UNSC Res 1270 (22 October 1999) UN Doc S/RES/1270, para 14. " 77 Rwanda Report (n 15); Srebrenica Report (n 15). " 78 ibid Rwanda Report, 51; See also ibid Srebrenica Report, para 468. " 79 ibid Rwanda Report, 57; ibid Srebrenica Report, para 499. " 80 United Nations Development Programme, Human Development Report (OUP 1994) (‘UNDP Report’) 23, 30. " 81 See H Nasu, ‘Peacekeeping, Civilian Protection Mandates and the Responsibility to Protect’ in A Francis and others (eds), Norms of Protection: Responsibility to Protect, Protection of Civilians and their Interaction (United Nations University Press, 2012) 117, 119–21; E Golberg and D Hubert, ‘The Security Council and the Protection of Civilians’ in R McRae and D Hubert (eds), Human Security and the New Diplomacy: Protecting People, Promoting Peace (McGill-Queen’s University Press 2001) 223, 230. " 82 See eg UNSC Res 1590 (24 March 2005) UN Doc S/RES/1590, para 16(i); UNSC Res 1493 (28 July 2003) UN Doc S/RES/1493, para 25; UNSC Res 1528 (27 February 2004) UN Doc S/RES/1528, para 6(i); UNSC Res 1990 (27 June 2011) UN Doc S/RES/1990, para 3(d). " 83 See eg The Panel on United Nations Peace Operations, ‘Report of the Panel on United Nations Peacekeeping’ (21 August 2000) UN Doc A/55/305, para 62 (‘Brahimi Report’); Department of Peacekeeping Operations, ‘United Nations Peacekeeping Operations: Principles and Guidelines’ (18 January 2008) 15 <http://www.un.org/en/peacekeeping/documents/capstone_eng.pdf>; T Findlay, The Use of Force in UN Peace Operations (OUP 2002) 4–5. " 84 UNDP Report (n 80) 57. " 85 See eg Secretary-General, ‘The future of United Nations peace operations: implementation of the recommendations of the High-level Independent Panel on Peace Operations’ (2 September 2015) UN Doc A/70/357–S/2015/682, para 16. " 86 D Alan, ‘Great Expectations: UN Peacekeeping, Civilian Protection and the Use of Force’ (Research Series No 4, Geneva Centre for Security Policy, December 2011) 41. <https://www.files.ethz.ch/isn/135708/Geneva%20Paper%20Research%20Series%204.pdf>. " 87 See eg UNSC Res 2295 (6 February 2016) UN Doc S/RES/2295, preamble para 23; UNSC Res 2198 (29 January 2015) UN Doc S/RES/2198, preamble para 17; UNSC Res 2000 (27 July 2011) UN Doc S/RES/2000, preamble para 13. " 88 UNSC Res 2340 (8 February 2017) UN Doc S/RES/2340, preamble para 16; see also UNSC Res 2301 (26 July 2016) UN Doc S/RES/2301, preamble para 8. " 89 See eg UNSC, ‘Protection of Civilians in Armed Conflict: Aide Memoire’ (14 January 2009) UN Doc S/PRST/2009/1, Annex; UNSC, ‘Protection of Civilians in Armed Conflict: Aide Memoire’ (22 November 2010) UN Doc S/PRST/2010/25, Annex (‘2010 Aide Memoire’); UNSC, ‘Protection of Civilians in Armed Conflict: Aide Memoire’ (25 November 2015) UN Doc S PRST/2015/23, Annex (‘2015 Aide Memoire’). " 90 ibid 2015 Aid Memoire, 4–6. " 91 ibid Annex. " 92 S Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law (OUP 2001) 172; See also, A Aust, ‘The Procedure and Practice of the Security Council Today’ in R-J Dupuy (ed) The Development of the Role of the Security Council, The Hague, 21–23 July 1992 (Martinus Nijhoff Publishers 1993) 372; Wood (n 78) 80. " 93 This is acknowledged by the Council: UNSC Res 2226 (25 June 2015) UN Doc S/RES/2226, Preamble para 15; UNSC Res 1674 (28 April 2008) UN Doc S/RES/1674, para 25; UNSC Res 1894 (11 November 2009) UN Doc S/RES/1894, para 31. " 94International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 6(1); African Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 art 4. " 95International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 9(1); African Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 art 6. " 96 ‘Report of the Human Rights Committee’ (1 November 2000) UN Doc A/55/40 vol I, para 267; ‘Report of the Human Rights Committee’ (1 October 2001) UN Doc A/56/40 vol I, para 7.7. " 97 Human Rights Committee, ‘Communication No. 563/1993’ (14 June 1993) UN Doc CCPR/C/55/D/563/1993 [6.6]; Human Rights Committee, ‘Communication No. 950/2000’ (16 July 2003) UN Doc CCPR/C/78/D/950/2000, para 9.3. " 98International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 9(1); African Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 art 6. " 99 UNSC Res 1842 (29 October 2008) UN Doc S/RES/1842, preamble para 3 referring to ‘Eighteenth Progress Report of the Secretary-General on the United Nations Operation in Côte d’Ivoire’ (9 October 2008) UN Doc S/2008/645, para 45. " 100 ibid preamble para 7. " 101 Resolution 2303 (2016) UN Doc S/RES/2303, preamble para 6. " 102 UNSC Res 2003 (29 July 2011) UN Doc S/RES/2003, para 16. " 103 Human Rights Committee, ‘General Comment No 6: Article 6, The Right to Life’ (30 April 1982) UN Doc A/37/40 93 (‘General Comment 6’). " 104Osman v United Kingdom App. no. 23452/94 (ECHR, 28 October 1998) para 116. The requirement to prevent and punish was discussed by the International Court of Justice in the context of Genocide in Case Concerning Application of the Convention on the Prevention and Punishment of the Grime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 4, 219–29. " 105 Y Dinstein, ‘The Right to Life, Physical Integrity, and Liberty’ in L Henkin (ed) The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press 1981) 119–20. " 106 ‘General Comment 6’, UN Doc A/37/40, para 2. " 107 See ‘Report of the Human Rights Committee’ (3 October 1995) UN Doc A/50/40 vol I, para 450; ‘Report of the Human Rights Committee’ (16 September 1996) UN Doc A/51/40 vol I, para 284. " 108 UNSC Res 1528 (27 February 2004) UN Doc S/RES/1528, preamble para 15, referring to ‘Report of the Secretary-General on the United Nations Mission in Côte d’Ivoire Submitted Pursuant to Security Council Resolution 1514 (2003) of 13 November 2003’, (6 January 2004) UN Doc S/2004/3, para 32; see also UNSC Res 2217 (28 April 2015) UN Doc S/RES/2217, preamble para 12; UNSC Res 2149 (10 April 2014) UN Doc S/RES/2149, preamble para 11. " 109 UNSC Res 2062 (26 July 2012) UN Doc S/RES/2062, preamble para 3 referring to ‘Thirtieth Progress Report of the Secretary-General on the United Nations Operation in Côte d’Ivoire’ (29 June 2012) UN Doc S/2012/506, para 37. " 110 UNSC Res 1564 (18 September 2004) UN Doc S/RES/1564, para 7. " 111Tanrikulu v Turkey App. no. 23763/94 (ECHR, 8 July 1999) paras 101–103, 110; Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan Doc. no. 279/03-296/05 (African Commission on Human and Peoples' Rights, 27 May 2009) para 147 (‘Sudan Human Rights Organisation’). " 112 Human Rights Committee, ‘Communication No. 962/2001’ (6 July 2004) UN Doc A/59/40 vol. II, 163, para 7; ‘Report of the Human Rights Committee’ (9 October 1992) UN Doc A/47/40(SUPP), para 469. " 113 UNSC Res 2063 (31 July 2012) UN Doc S/RES/2063, preamble para 5. " 114 UNSC Res 1590 (24 March 2005) UN Doc S/RES/1590, preamble para 20 referring to ‘Report of the Secretary-General on the Sudan Pursuant to Paragraphs 6, 13 and 16 of Security Council Resolution 1556 (2004), Paragraph 15 of Resolution 1564 (2004) and Paragraph 17 of Resolution 1574 (2004)’ (4 March 2005) UN Doc S/2005/140, para 21; See also UNSC Res 1528 (27 February 2004) UN Doc S/RES/1528, para 6(n); UNSC Res 1721 (1 November 2006) UN Doc S/RES/1721, para 30. " 115Sudan Human Rights Organisation (n 111) para 147. " 116 See eg Geneva Convention Relating to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287. " 117Protocol Additional to the Geneva Conventions of 12 August, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (‘Protocol II’). " 118Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (‘Rome Statute’). " 119Protocol II, art 1. " 120 ibid art 4(2). " 121San Remo Manual on the Law of Non-International Armed Conflict with Commentary (International Institute of Humanitarian Law 2006) para 1.2.4; J M Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law (International Committee for the Red Cross and Cambridge University Press 2005). " 122Geneva Conventions, art 3(1)(a); Protocol II, art 4(2)(a). " 123Protocol II, art 4(2)(e). " 124Protocol II, art 4(3)(c). For the customary status of these prohibitions, see Henckaerts and Doswald-Beck, Customary International Humanitarian Law (n 121) vol 1, ch 32. " 125 See UNSC Res 1990 (27 June 2011) UN Doc S/RES/1990, preamble para 10; UNSC Res 2000 (27 July 2011) UN Doc S/RES/2000, preamble para 13; UNSC Res 2021 (29 November 2011) UN Doc S/RES/2021, preamble para 11. " 126 See UNSC Res 1975 (30 March 2011) UN Doc S/RES/1975, para 5; UNSC Res 2076 (22 November 2012) UN Doc S/RES/2076, para 3; UNSC Res 2113 (30 July 2013) UN Doc S/RES/2113, para 17. " 127 See UNSC Res 1911 (28 January 2010) UN Doc S/RES/1911, preamble para 10; UNSC Res 2098 (28 March 2013) UN Doc S/RES/2098, preamble para 19. " 128 See UNSC Res 2062 (26 July 2012) UN Doc S/RES/2062, preamble para 8. " 129 UNSC Res 1996 (8 July 2011) UN Doc S/RES/1996, para 9. " 130 UNSC Res 2226 (25 June 2015) UN Doc S/RES/2226, para 19(g). " 131Prosecutor v Tadic (Decision on the Tadić Jurisdictional Motion) ICTY-94-1-AR72 (2 October 1995) para 127; Prosecutor v Stanislav Galić (Judgment) ICTY-98-29-A (30 November 2006) paras 131–34; Henckaerts and Doswald-Beck, Customary International Humanitarian Law (n 121) vol 1, rules 1–14. " 132 UNSC Res 2109 (11 July 2011) UN Doc S/RES/2109, preamble para 11. " 133 UNSC Res 2303 (29 July 2016) UN Doc S/RES/2303, preamble para 6. " 134 See UNSC Res 1856 (22 December 2008) UN Doc S/RES/1856, preamble para 18 referring to ‘Fourth Special Report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo’ (21 November 2008) UN Doc S/2008/728, para 79; UNSC Res 2000 (27 July 2011) UN Doc S/RES/2000, preamble para 3 referring to ‘Twenty-Eighth Report of the Secretary-General on the United Nations Operation in Côte d’Ivoire’ (24 June 2011) UN Doc S/2011/387, para 4 (‘Twenty-Eighth Côte d’Ivoire Report’). " 135 See UNSC Res 1556 (30 July 2004) UN Doc S/RES/1556, preamble para 8; UNSC Res 2340 (2017) UN Doc S/RES/2340, preamble para 13. " 136 See UNSC Res 1756 (15 May 2007) UN Doc S/RES/1756, preamble para 17 referring to ‘Twenty-Third Report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo’ (20 March 2007) UN Doc S/2007/156, para 15. " 137 UNSC, ‘Verbatim Records of 6055th mtg’ (22 December 2008) UN Doc S/PV.6055, 4. " 138 UNSC, ‘Verbatim Records of 6508th mtg’ (30 March 2011) UN Doc S/PV.6508, 2. " 139 See UNSC Res 1590 (24 March 2005) UN Doc S/RES/1590, preamble para 12. " 140 ‘Report of the Secretary-General on the Sudan Pursuant to Paragraphs 6, 13 and 16 of Security Council Resolution 1556 (2004), Paragraph 15 of Security Council Resolution 1564 and Paragraph 17 of Security Council Resolution 1574 (2004)’ (4 February 2005) UN Doc S/2005/68, para 14. See also ‘Report of the Secretary-General on South Sudan’ (21 June 2012) UN Doc S/2012/486, para 25; UNSC Res 2057 (5 July 2012) UN Doc S/RES/2057, preamble para 8. " 141 On occasion, the Council has also stopped short of declaring IHL and human rights violations; in Cote d’Ivoire, it expressed concern about ‘the continued reports’ of violations without making any definitive statements on the matter: see eg UNSC Res 2062 (26 July 2012) UN Doc S/RES/2062, preamble para 8. " 142 UNSC Res 2295 (29 June 2016) UN Doc S/RES/2295, preamble para 24 (emphasis added). " 143 UNSC Res 2340 (8 February 2017) UN Doc S/RES/2340, preamble para 6 (emphasis added). " 144 UNSC Res 1756 (15 May 2007) UN Doc S/RES/1756, preamble para 10; UNSC Res 1933 (30 June 2010) UN Doc S/RES/1933, preamble para 8 referring to ‘Twenty-Fourth Report of the Secretary-General on the United Nations Operation in Côte d’Ivoire’ (20 May 2010) UN Doc S/2010/245, para 37; UNSC Res 2340 (8 February 2017) UN Doc S/RES/2340, preamble para 16. " 145 UNSC Res 2000 (27 July 2011) UN Doc S/RES/2000, preamble para 3 referring to ‘Twenty-Eighth Côte d’Ivoire Report’ (24 June 2011) UN Doc S/2011/387, para 14. " 146 UNSC Res 2217 (28 April 2015) UN Doc S/RES/2217, preamble para 10. " 147 UNSC Res 2098 (28 March 2013) UN Doc S/RES/2098, para 8. " 148 UNSC Res 1556 (30 July 2004) UN Doc S/RES/1556, preamble para 8; UNSC Res 2340 (2017) UN Doc S/RES/2340, preamble para 16. " 149 UNSC Res 1996 (8 July 2011) UN Doc S/RES/1996, para 9. " 150 UNSC Res 1962 (20 December 2010) UN Doc S/RES/1962, preamble para 17 referring to ‘Twenty-Sixth Progress Report of the Secretary-General on the United Nations Operation in Côte d’Ivoire’ (23 November 2010) UN Doc S/2010/600, para 46. " 151 UNSC Res 1996 (8 July 2011) UN Doc S/RES/1996, para 9; UNSC Res 1856 (22 December 2008) UN Doc S/RES/1856, preamble para 18 referring to ‘Fourth Special Report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo’ (21 November 2008) UN Doc S/2008/728, para 31. " 152 Dinstein (n 105) 119. " 153 For a comprehensive overview of this school of thought see A Clapham, Human Rights Obligations of Non-State Actors (OUP 2006). " 154 C Tomuschat, Human Rights: Between Idealism and Realism (2nd edn, OUP 2008) 314. " 155Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62, 87. " 156 UNSC Res 2127 (5 December 2013) UN Doc S/RES/2127, paras 18 and 21; UNSC Res 2211 (26 March 2015) UN Doc S/RES/2211, preamble para 4. " 157 UNSC Res 2149 (10 April 2014) UN Doc S/RES/2149, preamble para 12; see also UNSC Res 2217 (28 April 2015) UN Doc S/RES/2217, para 15; UNSC Res 2227 (29 June 2015) UN Doc S/RES/2227, para 5. " 158 Krisch (n 2)1246. " 159Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 164. " 160 Gray (n 73)153. " 161 UNSC Res 1270 (22 October 1999) UN Doc S/RES/1270, para 14. " 162 Krisch (n 2) 1333–35. " 163 Kelsen (n 28) 28. " 164 UNSC Res 1706 (31 August 2006) UN Doc S/RES/1706, preamble para 11 referring to ‘Report of the Secretary-General on Darfur’ (28 July 2006) UN Doc S/2006/591, paras 62, 74. " 165 UNSC Res 2112 (30 July 2013) UN Doc S/RES/2112, para 6(a) referring to UNOCI, ‘Comprehensive Strategy for Protection of Civilians’ (29 June 2012) 27; see also UNSC Res 2216 (25 June 2015) UN Doc S/RES/2216, paras 19(a) and (c). " 166 UNSC Res 2162 (25 June 2014) UN Doc S/RES/2162, para 19(a). " 167 D Lilly, ‘The Changing Nature of the Protection of Civilians in International Peace Operations’ (2012) 19(5) Intl Peace 628, 634. " 168 ibid 633. " 169 UNSC, ‘Verbatim Record of 4709th mtg’ (18 July 2003) UN Doc S/PV.4790, 34. " 170 ibid. " 171 V Holt and others, ‘Protecting Civilians in the Context of UN Peacekeeping Operations: Successes, Setbacks and Remaining Challenges’ (Independent Study, Department of Peacekeeping Operations and Office for the Coordination of Humanitarian Affairs, 2009) 271. <https://docs.unocha.org/sites/dms/Documents/Protecting%20Civilians%20in%20the%20Context%20of%20UN%20Peacekeeping%20Operations.pdf>. " 172 UNSC Res 2098 (28 March 2013) UN Doc S/RES/2098, preamble para 11 referring to ‘Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo’ (15 February 2013) UN Doc S/2013/96, para 37. " 173 ibid para 12(b). See also, P Roessler and J Prendergast, ‘Democratic Republic of Congo’ in W Durch (ed), Twenty-First-Century Peace Operations (Henry L Stimson Centre 2006) 229–318. " 174 UNSC Res 2211 (26 March 2015) UN Doc S/RES/2211, para 8(e). " 175 L Müller, ‘The Force Intervention Brigade–United Nations Forces beyond the Fine Line Between Peacekeeping and Peace Enforcement’ (2015) 20(3) J Con Sec L 359, 372. " 176 Brahimi Report (n 83) para 49. " 177 Ramos-Horta Report (n 3) para 111; see also the response of the Secretary-General in ‘The Future of United Nations Peace Operations: Implementation of the Recommendations of the High-level Independent Panel on Peace Operations’ (2 September 2015) UN Doc A/70/357–S/2015/682, paras 15, 18 and 88. " 178 Kelsen (n 7) 706. " 179 Labuda (n 83)para 13. " 180 J Crawford, Brownlie’s Principles of Public International Law (8th edn, 2012) 751–52. There is a debate about whether Article 51 precludes anticipatory or pre-emptive self-defence. State practice on this may be shifting in favour of anticipatory self-defence in light of the so-called War on Terror: see 750–52. " 181 Ramos-Horta Report (n 3) 47. " 182 UNSC Res 1265 (17 September 1999) UN Doc S/RES/1265; UNSC Res 1296 (19 April 2000) UN Doc S/RES/1296; UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674; UNSC Res 1738 (23 December 2006) UN Doc S/RES/1738; UNSC Res 1894 (11 November 2009) UN Doc S/RES/1894; UNSC Res 2222 (27 May 2015) UN Doc S/RES/2222; UNSC Res 2286 (3 May 2016) UN Doc S/RES/2286. " 183 UNSC Res 1894 (11 November 2009) UN Doc S/RES/1894. " 184 UNSC Res 2286 (3 May 2016) UN Doc S/RES/2286, preamble para 1. " 185 ‘Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict’ (8 September 1999) UN Doc S/1999/957, para 7. " 186 Secretary-General, ‘The Future of United Nations Peace Operations: Implementation of the Recommendations of the High-level Independent Panel on Peace Operations’ (2 September 2015) UN Doc A/70/357–S/2015/682, para 16. " 187 P Wintour, ‘UN Must Reform to Defend Enlightenment Values, Secretary-General Says’ The Guardian (London, 10 May 2017). <https://www.theguardian.com/world/2017/may/10/un-reform-secretary-general-antonio-guterres>. " 188 Gowlland-Debbas (n 6) 220. " 189 Kelsen (n 7) 710. " 190 ibid 706. " 191 Ramos-Horta Report (n 3) para 90. " 192 I Johnstone, ‘Security Council Deliberations: The Power of the Better Argument’ (2003) 14(3) EJIL 437, 452. " 193 Gowlland-Debbas (n 6) 223. " 194 Kelsen (n 7) 706. " 195 Aust (n 92) 367. " 196 M Shaw, ‘The Security Council and the International Court of Justice: Judicial Drift and Judicial Function’, in A Muller and others (eds), The International Court of Justice: Its Future Role after Fifty Years (Martinus Nijhoff Publishers 1997) 224. " 197 UNSC, ‘Verbatim Record of 6427th mtg’ (22 November 2010) UN Doc S/PV.6427, 14 (United States), 16 (Nigeria), 24 (Mexico), 26 (Turkey), 27 (Bosnia Herzegovina), 29 (Italy), 33 (Afghanistan). " 198 O Schachter, ‘The Quasi-Judicial Role of the Security Council and the General Assembly’ (1964) 58 AJIL 960, 962. " 199 Higgins (n 2) 3. " 200 Kelsen (n 26) 21. " 201 Pellet and Miron (n 38)para 25. " 202 V Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’ (1994) 43(1) ICLQ 56; Shaw (n 196) 227; K Wellens, ‘The UN Security Council and New Threats to the Peace: Back to the Future’ (2003) 8(1) J Con Sec L 15, 16. " 203 Koskenniemi (n 2) ‘The Police in the Temple’ 342; UNSC Res 687 (3 April, 1991) UN Doc S/RES/687, paras 16–19. " 204 UNSC Res 837 (6 June, 1993) UN Doc S/RES/837, para 5. " 205 UNSC Res 731 (21 January 1992) UN Doc S/RES/731, para 3. See B Graefrath, ‘Leave to the Court What Belongs to the Court’ (1993) 4 EJIL 184; S Bortz, ‘Avoiding a Collision of Competence: The Relationship Between the Security Council and the International Court of Justice in Light of Libya v. United States’ (1993) 2 J Transnatl L Pol 353. " 206 Shaw (n 196)227. See also Pellet and Miron (n 38) para 21. " 207 Kelsen (n 26) 50. " 208 UNSC Res 871 (4 October 1993) UN Doc S/RES/871, para 3. " 209 UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244, preamble para 4. " 210 UNSC Res 677 (28 November 1990) UN Doc S/RES/677, para 2. " 211 UNSC Res 836 (4 June 1993) UN Doc S/RES/836, para 5. " 212 G Oliver, ‘The Other Side of Peacekeeping: Peace Enforcement and Who Should Do It?’ (2002) 8 Intl Peace 99, 102 citing United States Army, Field Manual 100-23, Peace Operation (December 1994) 6; Director General Land Warfare, United Kingdom, Army Field Manual Wider Peacekeeping (September 1994) 1–2; Lilly (n 167) 631; Findlay (n 83) 376. " 213 See eg A Benard, ‘Lessons from Iraq and Bosnia on the Theory and Practice of No-fly Zones’ (2004) 27(3) J Strat Stud 454, 455–58. " 214 Reform proposals typically fall into two camps: changes to the Council’s membership and adjustments to the veto power of the permanent five (P5). See eg UN Press Office, ‘General Assembly Adopts Texts on Security Council Reform, Peacekeeping, Conflict in Africa, Cooperation with Regional Groups’ (19 July 2017) <https://www.un.org/press/en/2017/ga11931.doc.htm > (accessed 16 September 2017); The Elders, ‘Strengthening the United Nations’ (7 February 2015) <http://theelders.org/sites/default/files/2015-04-22_elders-statement-strengthening-the-un.pdf > (accessed 16 September 2017). " 215 C Landauer, ‘Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter’ (2003) 14(4) EJIL 767, 799. © Oxford University Press 2017; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com
TI - The Security Council and International Law Enforcement: A Kelsenian Perspective on Civilian Protection Peacekeeping Mandates
JF - Journal of Conflict and Security Law
DO - 10.1093/jcsl/krx010
DA - 2017-12-01
UR - https://www.deepdyve.com/lp/oxford-university-press/the-security-council-and-international-law-enforcement-a-kelsenian-73vbQDniOk
SP - 395
VL - 22
IS - 3
DP - DeepDyve
ER -