The UN Charter: The Best Way Back to a Better Future

By Mona Ali Khalil

After World War II, the founding members of the United Nations adopted the UN Charter to offer a way out of war and a path to peace and security, to end genocide, to enshrine human rights for all, and to move towards human dignity and social advancement. On the occasion of the UN’s 75th Anniversary, it is a good time to examine the successes and failures of the United Nations and to measure whether the legal and political framework envisioned in the UN Charter has lived up to its promise and ideals.

 Reversing Aggression

The response to the British-French-Israeli invasion of the Sinai in 1956-1957 and the UN response to the Iraqi invasion of Kuwait in 1990-1991 are examples of the United Nations at its best.

Two days after the Israeli army invaded Egypt on 29 October 1956 with the participation of two permanent members of the Security Council, the UK and France, Secretary-General Dag Hammarskjöld reminded the Security Council of the necessity that “all Member nations honor their pledge to observe all Articles of the Charter” and that “those organs which are charged with the task of upholding the Charter will be in a position to fulfil their task.” In response to the deadlock in the Council, the General Assembly invoked the “Uniting for Peace” resolutionto convene an emergency special session, which called on all foreign troops to withdraw from Egypt and established the UN Emergency Force - the first UN peacekeeping mission.

 Many observers will attribute the UN Security Council’s failure to prevent or respond to the United States and United Kingdoms’ invasion of Iraq in 2003 and the Russian Federation’s invasion of Crimea in 2014 to the fact that the permanent members were responsible. The 1956 precedent confirms, however, that a principled stand by the Secretary-General and a prompt and effective response by the General Assembly can make the difference between war and peace – even when permanent members are themselves perpetrators of aggression.  

 When Iraq invaded and occupied Kuwait in August 1990, the Security Council, acting under Chapter VII of the UN Charter, adopted resolution 678 (1990), which authorized States to use “all necessary means” to get Iraq out of Kuwait in the event that it failed to withdraw voluntarily by 15 January 1991. Soon after that deadline expired, a coalition of 35 nations led by the United States launched Operation Desert Storm and successfully pushed the Iraqi troops back into Iraq within a matter of weeks.

 Ending Genocide and Protecting Civilians

The finality and urgency of the words “Never Again”—announced by the family of nations after the horrors of the Holocaust -- have been belied and betrayed time and time again. In the latter half of the 20th century and twenty years into the 21st century, the international community has repeatedly failed to prevent the crime of genocide. The cost of inaction has been paid by the Cambodians, Bosnians, Rwandans, Darfuris, Yazidis and most recently the Rohingya and the Uyghur.

The Responsibility to Protect or R2P doctrine and the Protection of Civilians or POC peacekeeping mandate can be heralded as successes but are more aptly characterized as legacies of the UN’s failures in Srebrenica and in Rwanda. Pursuant to the  third pillar of R2P, unanimously adopted in the  2005 UN World Summit Outcome Document, UN Member States vowed to take enforcement action in a timely and decisive manner, through the Security Council, including under Chapter VII of the UN Charter, when “national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”  In its resolutions 1970 and 1973 on the situation in Libya, the UN Security Council invoked R2P for the first and thus far only time. While NATO countries and some States members of the League of Arab States succeeded in removing the threat to civilians posed by Qaddafi, two factors have undermined efforts to invoke the enforcement pillar of R2P elsewhere. The first is that some, including China and Russia, have argued that the Libyan war effort only succeeded in  removing Qaddafi and his regime from power. The second is that the UN’s efforts have thus far failed to restore peace and security in Libya.  Despite mass atrocity crimes in Syria and genocide against the Rohingya in Myanmar, UN Member States have thus far failed to live up to their responsibility to protect civilians in these countries.

By authorizing UN peacekeepers to use “all necessary means” to protect civilians from physical violence, the Security Council sent a message that, never again, would UN forces stand helplessly by while civilians were being killed or raped in their areas of deployment. While most of the UN’s peacekeeping operations deployed today have a POC mandate, commanders and contingents alike have often failed to understand the full extent of their authority to use force and their duty to exercise that authority for the protection of civilians including in Darfur, Sudan; in Juba, South Sudan; and elsewhere. 

Additionally, the United Nations has also too often failed to hold itself accountable for the harm that its peacekeepers have caused to civilians. While the number of UN personnel accused of sexual exploitation and abuse has decreased gradually over the years, the numbers are still far too high and far to grave a betrayal of the mandate to protect. The UN’s longstanding principles, policies and practice have demonstrated the UN’s readiness to pay compensation for losses arising from harm caused by its peacekeepers - other than harm arising from military or operational necessity. In that light, the UN’s failure to acknowledge its peacekeepers’ role in the possible introduction and likely spread of cholera in Haiti or to provide an appropriate mode of settlement to address the claims by the Haitian families are shamefully inconsistent with UN principles, policies and practice.

 Upholding Human Rights and the Rule of International Law

There have been more than 500 successes in the codification of international law since 1945 including the four Geneva Conventions; the range of human rights treaties including those prohibiting torture and genocide, and promoting gender and racial equality; and the suite of legal instruments combatting the various forms of terrorism. The creation of the earlier ad hoc criminal tribunals and the establishment of the International Criminal Court have upheld criminal accountability for serious violations of international law including for Heads of State.  

Nonetheless, the failures to resolve long-standing conflicts such as those seen in the Democratic Republic of the Congo and the Syrian Arab Republic, or to bring an end to enduring occupations in Palestine, Western Sahara, and Jammu/Kashmir, as well as the recent aggressions by the US and UK in Iraq and by Russia in Ukraine are evidence of an erosion of international law that threatens to destroy the  entire post-World War II legal and political framework. 

Conclusion

Secretary-General Dag Hammarskjold once said that “the United Nations was not created to take mankind to heaven, but to save humanity from hell.”  Accordingly, to avoid the descent into the hell of mass death – whether by pandemic, climate change, genocide, war or terrorism – each principal organ must fulfil its own role, while acting as a check and balance on the others. Each Member State must fulfil its obligations under the UN Charter and international law, while respecting the human rights of its people.  For the sake of humanity, let us hope that Member States adhere to what they said in the UN75 Declaration, that “the purposes and principles of the UN Charter and international law remain timeless, universal and an indispensable foundation for a more peaceful, prosperous and just world.” 

Mona Ali Khalil is a public international lawyer with 20+ years of UN experience including as Senior Legal Officer in the Office of the Legal Counsel where she advised on peacekeeping, sanctions and counter-terrorism. She is Director of MAK LAW, an international strategic consulting service advising governments and intergovernmental organizations in the service of “We the Peoples.” She is an Affiliate of the Harvard Law School Program on International Law and Armed Conflict. She has a BA and MA from Harvard University as well as a Masters in Foreign Service and a Juris Doctorate from Georgetown University.

United Nations Briefing Room is by Keith Burns and is licensed under CC BY-NC-ND 2.0.