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Exceptionalism & the UN

| by Dr. Ruwantissa Abeyratne

(September 15, 2013, Montreal, Sri Lanka Guardian) I was struck by a portion of a message purported to have been written by President Putin of Russia to the American people on the prospect of impending military action by the United States on Syria. He said: " My working and personal relationship with President Obama is marked by growing trust. I appreciate this. I carefully studied his address to the nation on Tuesday. And I would rather disagree with a case he made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation. There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy. Their policies differ, too. We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal".

The United Nations and exceptionalism are antithetical even if only in the philosophy and policy of the United Nations Charter. According to the Charter, no State can use force against another State unless in self defence and that too when it is being attacked. The raison d'etre of the United Nations is collective action. President Putin went on to say: " But force has proved ineffective and pointless. Afghanistan is reeling, and no one can say what will happen after international forces withdraw. Libya is divided into tribes and clans. In Iraq the civil war continues, with dozens killed each day. In the United States, many draw an analogy between Iraq and Syria, and ask why their government would want to repeat recent mistakes".

If at all collective action can, and should be taken, it should be through the Security Council of the United Nations. Article 39 of the United Nations Charter provides that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations or decide what measures shall be taken in accordance with articles 41 and 42 which respectively provide for non military and military intervention. Article 39 is intended to maintain and restore international peace and security. The operative word here is “international” which would seem to suggest that any intervention of the United Nations in a domestic crisis, with or without the use of armed forces, should be calculated to counter a threat to international peace and order. This would lead one to the conclusion that the Security Council would be reluctant to consider intervening in a purely domestic crisis which might not have international ramifications in terms of peace and order.

It is also noted that the Preamble to the Charter states inter alia , that, in order to promote social progress and better standards of life in larger freedom, the international machinery for the promotion of the economic and social advancement of all the people would be deployed. Also, Article 1 of the Charter states that one of the purposes of the United Nations is to maintain international peace, and to that effect take collective efforts for the prevention and removal of threats to peace.

One of the ways in which a domestic crisis could lead to a breach of international peace is when such a crisis would result in refugees fleeing borders, threatening the peace of neighbouring nations. Yet another would be if any of the parties involved in a domestic conflict were to spread its tentacles to other parts of the globe, thus threatening domestic or international peace in areas other than the one in which the crisis is taking place.

Article 41 of the UN Charter provides that the Security Council may decide what measures not involving the use of armed forces are to be employed to give effect to its decisions, and it may call upon the members of the United Nations to apply such measures. These may include complete or partial interruptions to economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations. Article 42 prescribes that, should the Security Council consider that measures provided for in Article 41 would be inadequate or would prove to be inadequate, it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade and other operations by sea or land forces of members of the United Nations.

One interesting feature of these provisions is that nowhere is it stated that United Nations intervention would be directed only at a member State or group of States as aggressor. By this, Member States of the United Nations have given themselves, through the Security Council, wide powers to intervene in a domestic situation that might threaten or adversely affect international peace and security, irrespective of the parties involved. Article 40 of the Charter mentions that prior to measures of intervention, the United Nations Security Council may call upon the “parties concerned” to comply with any provisional measures that might have been adopted. These provisions do not affect the validity of Article 2.7 of the Charter which provides that nothing contained in the Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require members to submit such matters to settlement under the Charter. However, this rule is subject to enforcement measures which admit of self defence.

The abovementioned provisions in no way detract from the fundamental principle of self defence accorded to a member State by the Charter. Article 51 provides that nothing in the Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Again, the words international peace and security” prominently appear in the Charter.

The role of the United Nations became reckonable in the 1980s at the end of the Cold War giving the world hope that the Security Council and its five permanent members would be able to implement its mandate given to the United Nations in 1945. A seminal initiative was Resolution 598 of 20 July 1987 which was instrumental in ending the eight year Iran-Iraq war. This was followed by success in moving towards settlement of the already inflammatory conflicts in Afghanistan, Angola, Cambodia, El Salvador, Eritrea, Namibia and Nicaragua.

The most significant instance of UN intervention of that time was concerning the 1990 invasion by Iraq of Kuwait, where the Security Council carried out enforcement action against aggression by one member State on another. Within what President Bush called “a new world order where the rule of law supplanted the law of the jungle”, the Security Council authorized sanctions and later approved military intervention to restore the sovereignty of Kuwait by what the Council called “all necessary means”. As in the Korean War of the 1950s, the Security Council order gave rise to action by an ad hoc coalition group led by the United States.

The aftermath of the restoration of sovereignty in Kuwait and the expulsion of Iraqi forces from Kuwait is of much interest to the subject of domestic crisis, as there were certain backlashes within Iraq where there were enormous uprisings against former President Saddam Hussein, which were reported to have been quelled with extreme brutality. This gave rise to the fleeing by hundreds of thousands of Iraqi refugees over the border to Iran and Turkey. The profound realization, that most atrocities occur during confrontations within countries and not between them, has now been entrenched in the social mindset of the world. The Security Council, in adopting Resolution 688 of 5 April 1991, and declaring that the Iraqi Kurd issue and the oppression of the Kurds by the Iraqi Government was a threat to international peace and security, gave justification to the recognition that a refugee issue resulting from an internal crisis could well ignite an international crisis threatening peace and security. The Resolution also gave three members of the Security Council – United States, Britain and France - the impetus to send troops to Iraq to stabilize the interests of the Kurdish population.

The Iraqi internal crisis, which prompted United Nations intervention, encouraged non government organizations and other interested parties to assume that the United Nations role in peacekeeping could extend to domestic crises. This was articulated best by President Francois Mitterrand when he said that the UN action in Iraq was encouraging since the UN had transcended the boundary of non interference and entered the realm of assisting people in need. It must be noted, however, that the success story of Security Council action in Iraq would not always remain an ideal. In similar manner, the Security Council adopted Resolution 794 of 3 December 1992 on Somalia which prompted the United States to send its troops. Instead of helping with restoring peace in the country, the United States found itself at battle with the Somali warlord General Farah Aidid. The US armed forces suffered humiliating losses which were difficult to justify to the people of the United States, prompting President Clinton to announce the withdrawal of US troops with effect from 31 March 1994. The UN forces in Somalia followed suit within the year, leaving behind a country worse off than it was before UN intervention.

Since there are success stories and failures in the UN docket on the issue of non intervention, the question is whether Article 2.7 of the UN Charter which does not allow the UN to intervene in the domestic affairs of States is absolute. John Stuart Mill, whose theories of non intervention were legend in 1859, approximately a century before the United Nations was established, came up with the interesting theory which might still be applicable and relevant. Mill was of the view that to go to war on an idea, particularly if the war was aggressive and not defensive, is as criminal as to go to war to plunder. Mill was vehement that one cannot force one’s ideas and views on other peoples. At the same time Mill hastened to add that a civilized nation should not be expected to tolerate or live next to a barbarian nation.

President Putin could well be right. We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal.

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