ASIL Insights

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            On February 29, 2004, the U.N. Security Council adopted Resolution 1529, authorizing the deployment of a Multinational Interim Force in Haiti after former Haitian President Jean-Bertrand Aristide, facing insurrection and public disorder, resigned and left the country.  Acting under Chapter VII of the U.N. Charter, the Security Council has empowered the Multinational Force to contribute to a secure and stable environment in Haiti, to facilitate the provision of humanitarian assistance, to facilitate international assistance to the Haitian police and Coast Guard for purposes of establishing and maintaining public safety and protecting human rights, to support establishment of conditions for international organizations to assist the Haitian people, and to coordinate with others to prevent further deterioration of the humanitarian situation.

            Chapter VII of the Charter empowers the Security Council to determine the existence of a threat to the peace, breach of the peace or act of aggression, and to take measures to maintain or restore international peace and security.  Security Council decisions under Chapter VII are binding on all U.N. member states.

            Resolution 1529 calls on member states to contribute personnel, equipment and other resources to the Multinational Force.  Two of its provisions are particularly significant.  Paragraph 6 "[a]uthorizes the Member States participating in the Multinational Interim Force in Haiti to take all necessary measures to fulfil its mandate."  Paragraph 7 "[d]emands that all the parties to the conflict in Haiti cease using violent means, and reiterates that all parties must respect international law, including with respect to human rights and that there will be individual accountability and no impunity for violators."

            Paragraph 7 could be read to preclude the use of a process like the Truth and Reconciliation Commission that was established in South Africa after the demise of the apartheid government.  The goal there was to try to heal the country's deep wounds by providing amnesty to perpetrators of human rights abuses who admitted what they had done and disclosed the facts fully.  But the South African procedure also provided for criminal sanctions against those who refused to cooperate, so it did not offer unconditional impunity.  Perhaps something similar in Haiti would satisfy Paragraph 7.  Moreover, it is not entirely clear that U.N. member states, including Haiti, would be legally bound under the U.N. Charter to deny impunity under paragraph 7.  Even though decisions under Chapter VII of the Charter are binding, it is not clear that a "reiteration" that there will be no impunity is a "decision" within the meaning of U.N. Charter Articles 25 and 48 (the Charter articles that obligate member states to carry out the "decisions" of the Security Council).

            The language in paragraph 6 of Resolution 1529 is reminiscent of language the Security Council has used in other resolutions to authorize the use of force.  For example, in Resolution 678 (1990), the Council -- acting under Chapter VII of the Charter -- authorized member states to use "all necessary means" to restore international peace and security in the Persian Gulf area.  It was understood that Resolution 678 authorized the use of force against Iraq in what became Operation Desert Storm.  Nevertheless, the authorization of "all necessary measures" under Resolution 1529 probably is not exactly the same as the authorization of "all necessary means" under other resolutions, such as Resolution 678, where the focus was on armed force.  That was the focus when -- just two days before the Security Council adopted Resolution 1529 -- it authorized French forces in Côte D'Ivoire (Ivory Coast) to use "all necessary means" to support a U.N. peacekeeping mission, including intervention against belligerents (Resolution 1528 (2004)).  It was also the focus in 1994 when the Security Council adopted Resolution 940, authorizing a multinational force to use "all necessary means" to restore democracy in Haiti (an operation that ironically restored Aristide's presidency after he had been in exile).

            The slight difference in terminology between the previous resolutions and Resolution 1529 presumably reflects a difference in purpose.  Under Resolution 1529 the primary purposes are not only to restore order in a single country, Haiti, but also to facilitate humanitarian assistance in that country.  Under Resolution 678 the purpose was to drive Iraq out of Kuwait and restore international peace in the area.  In Resolution 1528 the Council was authorizing France to use force if necessary in Côte d'Ivoire.  An authorization in Resolution 1529 to use "all necessary means" might be interpreted simply as an authorization to use force.  The authorization to use "all necessary measures" apparently would include not only an authorization to use force if it is necessary to achieve the Council's goals in Haiti, including restoring and maintaining public order, but also to take other measures that would be appropriate to achieve the Council's humanitarian goals.  The breadth of the Council's use of the term "measures" is indicated in several anti-terrorism resolutions, where the Council has authorized or imposed "measures" such as background checks of asylum-seekers, freezing of assets of members of terrorist groups and travel restrictions on them. [1]

            The principal purpose of the United Nations, stated in Article 1 of the U.N. Charter, is to maintain international peace and security, for which the Security Council has the primary responsibility (Article 24(1)).  Some observers have questioned whether, in situations of domestic chaos, where the unrest seems to be localized within a particular country, the Council is staying within its mandate under the U.N. Charter when it authorizes the use of force or imposes other sanctions under Chapter VII.  One answer that has been given is that armed chaos within one country may well have spillover effects outside its borders or may beckon outsiders to enter the country and contribute to the disorder there.  The preamble to Resolution 1529 cites a threat to "stability in the Caribbean especially through the potential outflow of people to other States in the subregion."  It does not elaborate on how the outflow would amount to a threat to the peace of the subregion.  In any event, there are precedents for Security Council action in situations of domestic unrest, in addition to the recent action on Haiti and Côte D'Ivoire.  The generally accepted practice of U.N. organs over time can establish the law of the organization. [2]

            The Security Council faced a chaotic, dangerous situation when the Congo became independent in 1960.  At the request of the fragile, new government of the Congo, the Security Council established a peacekeeping force known by its French acronym, ONUC, to maintain order and protect lives.  The Council did not expressly act under Chapter VII, but it did authorize the U.N. Secretary-General to "take all necessary action" to effectuate the withdrawal of Belgian troops from the Congo (Resolution 145 (1960)), while reaffirming that ONUC would not intervene in the outcome of any internal conflict (Resolution 146 (1960)).  Later, the Council expanded the mandate to include not only assistance in maintaining law and order, but also prevention of civil war and apprehension of all foreign military personnel not under U.N. command (Resolution 169 (1961)).  The U.N. Secretary-General, Dag Hammarskjöld, had great difficulty carrying out the mandate, which he initially interpreted as authorizing the use of force by U.N. troops only in self-defense. [3]   The situation, which included an attempt to secede by Katanga province, was not stabilized until 1964.  The U.N.'s attempt to restore order and keep the peace had been both controversial and largely ineffective.

            When the Ian Smith government of Rhodesia unilaterally declared its independence (UDI) from the United Kingdom in 1965, the Security Council rejected UDI, found that there was a threat to international peace and security, and imposed economic sanctions under Chapter VII (Resolution 232 (1966)).  Former U.S. Secretary of State Dean Acheson and some others argued that the Security Council was improperly intervening in Rhodesia's internal matters, [4] but the Council's action was accepted by almost all U.N. member states.  The sanctions were maintained, and the Smith government eventually backed down.  Rhodesia became the independent state of Zimbabwe in 1980.

            When anarchy prevailed in Somalia in the early 1990s, the Security Council invoked Chapter VII to authorize the Secretary-General and cooperating member states to "use all necessary means" to establish a secure environment for humanitarian relief operations (Resolution 794 (1992)).  The Resolution also contained forceful language demanding that all factions in Somalia cooperate with the U.N. and desist from all breaches of international humanitarian law.  It was the first time the Security Council had used Chapter VII for humanitarian relief purposes.  Despite a substantial United States military presence and a renewed mandate from the Security Council in Resolution 923 (1994), chaos and clan warfare persisted.  The last U.N. troops left Somalia in 1995, without having stabilized the situation.

            In Somalia the Security Council did what it had failed to do in the Congo:  it used the now-familiar code words ("all necessary means") to authorize the use of armed force to inject order into the domestic chaos.  It invoked Chapter VII in a situation that seemed to be entirely domestic, as seems to be the case today in Haiti.  In the case of Somalia, as in the current Resolution 1529 regarding Haiti, the Council gave the U.N.-mandated force authority to do what may be necessary to restore order and facilitate humanitarian relief.  In Somalia the effort failed.  The question today is not so much whether the Security Council may lawfully use Chapter VII in a situation of domestic chaos or whether the Council in Resolution 1529 has given a clear and legally adequate mandate; instead, it is whether, as a practical matter, Chapter VII can be used effectively in such a situation.  Perhaps events in Haiti will provide an answer.

About the Author: 
Frederic L. Kirgis is Law Alumni Association Professor at Washington and Lee University School of Law.  He has written books and articles on international law, and is an honorary editor of the American Journal of International Law.  The author is grateful to Professor José Alvarez for his continuing willingness to vet Insight drafts such as this one.  Any errors or omissions are the author's own.

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