The International Court is the judicial body that brings to justice individuals accused of violation of the international law. The idea to create the court arose after the end of the World War II and it is based on the principle: all persons, including high-ranking state officials, accused of committing serious international crimes must be punished.
International criminal tribunals should not be considered in the same way as domestic or national courts. When people hear the words “court” and “law” – they immediately think it refers to national law, but they are wrong. There is distinction even between personnel that works in international and national courts, and much less in other characteristics.
The paper will put a special emphasis to the work of the ICTY, describing a number of positive as well as the negative sides of the Court.
The ICTY has been established at the proposal of the UN Secretary General on the basis of Resolution No. 827 of the UN Security Council of 25 May 1993. The territorial jurisdiction of the Court covers the territory of the former Socialist Federal Republic of Yugoslavia (hereinafter: the former Yugoslavia), including its land surface, airspace and territorial waters, while the temporal jurisdiction includes the period from 1 January 1991, without indicating when the temporal jurisdiction ends. However, the UN Security Council ordered to the Court to end its work by 2010, by Resolution No. 1503 of 2003 and the Resolution No. 1534 of 2004. Due to the abovementioned reasons, the Court was supposed to put an end to all investigations and filing all indictments by 2004; to end all trials by 2008 and to end all appeal proceeding by 2010. However, the year is 2015 and the ICTY has not ended its work. According to some estimations given in December 2014, three out of four appeal proceedings are expected to be completed during 2015, while the judgment in the case of Ratko Mladic is expected to be rendered in March 2017 or event after this date. However, addressing the UN Security Council on 10 December 2014, President of the ICTY Theodor Meron assured that these forecasts do not mean closure of the ICTY in 2017.
The ICTY is an ad hoc court based in The Hague. The Court can prosecute only individuals and not organizations or governments. The court can impose life imprisonment as maximum penalty. As a result, the Court signed an agreement with a number of countries, in order to enable enforcement of the penalties on their territories.
Huge role of the ICTY’s Trial Chamber significantly determines work of the ICTY and it implies wide powers of arbitrators and initiative relating to probative evidence. The basic principles that the Court follows in its work are: justice, rapidity and equality of arms.
The aim of establishment of the ICTY is to bring to justice persons responsible for serious violations of the international humanitarian law during conflict in the area of the former Yugoslavia. However, “although it was obvious that many actions of the conflicting sides, people who fought within their ranks or who joined them, represent serious crimes under domestic law or the international humanitarian law (the former Yugoslavia ratified all the Geneva Conventions of 1949 and their Protocols of 1977), almost none of the suspects for these crimes was charged and brought to the Court until 1993”.
All violations that are put under the jurisdiction of the ICTY and which represent violation of the international humanitarian law committed in the former Yugoslavia, are divided into:
- Grave breaches of the Geneva Conventions of 1949;
- Violations of the laws or customs of war;
- Crimes against humanity.
The criminal defense of crime against humanity exists under the following conditions:
- In case of an attack;
- If the accused committed the crime as part of the attack;
- If the attack was directed against any civilian population;
- If the attack was widespread or systematic;
- If the accused knows that his acts are part of a pattern of widespread or systematic crimes directed against a civilian population and if he knows that his act fit in the pattern.
Regardless of the rules that regulate work of the ICTY, its employees are faced with several challenges.
The first challenge certainly refers to a rule that an individual may be punished for grave breach of the Geneva Conventions under the Article 2 of the Statute, only if the crime for which he is charged, was committed against persons and property that are considered protected.
Another challenge is the Article 7, Paragraph 1 of the Statute, i.e. the Article 4 Paragraph 3 of the Statute. Namely, when the Court finds that the accused person had no genocidal intent, but he or she helped others to commit genocide, the question is which of these two provisions of the Statute of the Court should be applied. The first Article envisages responsibility for assisting in committing any criminal offense put under the jurisdiction of the Court, while the second Article envisages, inter alia, complicity in genocide. Furthermore, the Court has the jurisdiction to act in case of committing any of the criminal offenses listed in Article 5 of the Statute, but only if the crimes were committed in an armed conflict. Therefore, an armed conflict is a precondition for prosecution before the ICTY. At the same time, the only Article of the Statute that relates to penalties is the Article 24 that envisages the obligation of the Chamber when sentencing, to take into account gravity of the defense and individual circumstances of the perpetrator. However, the Article 2 of the Statute represents the biggest challenge and it envisages that every crime regulated by this Article, shall be committed in the context of the international armed conflict.
The first trial before the ICTY started on 7 May 1996 and the first verdict was rendered on 29 November 1996. So far, a total of 161 persons have been indicted. Proceedings against 147 persons ended, while proceedings against 14 persons are still ongoing.
Legacy of the ICTY
The region of the former Yugoslavia welcomed the establishment of the ICTY with great suspicion, complaining that incompetent body has established the Tribunal (the Security Council), and that the Court cannot be an impartial judicial body, since it has been established as a subsidiary body to the executive authority (the Security Council). However, author of this paper shares the standpoint of Dr. Vojin Dimitrijevic, who says that „in a sea of such attacks (…) legitimate and legal reviews of critics about the way The Tribunal has been established, the advisability of some of the provisions of its Statute, the quality of the rules of procedure and so on, are lost (…)“. The author also shares Dimitrijevic’ stance that work and existence of the ICTY should be seen as a “unique judicial experience in the actual application of the international humanitarian law, its written and unwritten rules and the very Statute of the first international criminal Tribunal that, despite of the fact that it has been formed on temporary basis as an ad hoc court, has acted so long and prosecuted so many persons on various posts for so many crimes that are considered international crimes”.
There is no doubt that there are positive and negative aspects of the international criminal proceedings led before all courts. Positive sides of the proceedings before the ICTY are certainly higher level of impartiality, easier ways to collect evidence, uniformity in the application of the international law and greater preventive effect of international trials. Namely, it is logical that people who are not involved in a concrete dispute, i.e. judges who are not related to armed conflicts will be more objective to decide about the dispute. National courts are almost always insufficiently objective, and these courts are not interested enough to lead proceedings against its own nationals who have committed crimes against foreign nationals. At the same time, the fact that this is a proceeding led before an international court, proceedings related to these and all other conflicts in the international community are set to be uniform, with the continuity in application of law and decision-making process.
Although a proceeding before the ICTY does not fully meet all demands which the right to fair trial puts before the Court, its practice gives hope that the proceedings will get closer to the standards of the fair trial. The procedure led before the ICTY is complex, but it was inevitable because it has been established quickly as a reaction to the situation on the ground (for example, the states harmonized their stances about formation of the International Criminal Court for years). Principles like the ones from the Geneva Conventions of 1949 (ratified by most of the states in the world) would certainly remain only a dead letter, if it was no courts like the ICTY. Namely, such courts defined an armed conflict, defined when an armed conflict begins etc.
One of the important specifics that refer to international crimes is the existence of a large number of victims. The procedural status of victims and witnesses in criminal proceedings for these crimes is a particular problem in international judiciary, because of direct or indirect risk of intimidation, reprisal or retaliation against the victims. For these reasons, rules of the ICTY include adequate provisions on protection of victims and witnesses in the proceedings. Per example, such provisions are stipulated in the rule that the main hearing will be held without the presence of the public; the rule about the protection of identity of the victims, and the rule on formation of Department for Victims and Witnesses, as the body in charge to provide support and advices to victims and witnesses and propose measure for their protection.
The ICTY has contributed to clarification of some basic concepts that are of huge importance for the international criminal law and the international humanitarian law. For example, the rule on the obligation to distinguish civilians from combatants was clarified in the judgment in the cases of Tadic, Martic, and Kupreskic, while the rule to distinguish civilian from military facilities was clarified in the judgment in cases of Kupresic, Kordic and Cerkez, judgment in cases of Kunarac and Furundzija defined torture, etc. For the first time in the history, an international court found that rape (although prohibited by humanitarian law) may constitute torture. This is also the first international court which included sexual violence as a crime against humanity in its Statute. Besides, the Court also gave huge contribution to the interpretation of serious violations of the Geneva Conventions.
According to the current President of the ICTY Theodor Meron, the ICTY has demonstrated to the world that, after half a century of impunity, it is possible to lead complex trials at the international level, in accordance with the highest international standards. The ICTY has developed an influential body of jurisprudence concerning a large number of procedural issues and issues related to evidence and thus, created conditions for establishment of new international and mixed criminal courts. The support to strengthening of national judicial systems relating to war crimes trials is certainly one of the most positive things in the heritage of the ICTY.
Many criticize the ICTY for the reason that all the accused have not been convicted especially the ones who are accused of the crime of genocide. However, the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 stipulates very strict conditions for proving genocide. The Genocide is a crime that does not have to be committed during armed conflicts: the crime can be committed in peacetime, during a war, against civilians and against combatants, with or without committing widespread or systematic attack. Under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, “(… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
As the aforementioned definition reads, it is a state of mind of the perpetrator of the crime of genocide that matters (that he committed the crime with intention to destroy, in whole or in part, a national, ethnical, racial or religious group). Therefore, certain group and not individuals in the group should be the main objective and likewise, the destruction should be physical or biological nature, not cultural. Proving responsibility for the crime of genocide is harder than proving responsibility for any other international crime. Murders and other prohibited acts must be committed with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group (dolus specialis). If a prosecutor fails to prove that intention, it is considered a crime against humanity or a war crime – and the ICTY is not authorized to prosecute these crimes.
The latest criticisms directed against work of the ICTY are addressed to the President Theodor Meron, an experienced US (Israeli) lawyer and a judge. Many believe that he made terrible mistakes in individual trials which he chaired, especially in the cases of Gotovina and Markac, Stanisic and Simatovic and in a particularly interesting case from the legal point of few – case of Momcilo Perisic. The judgment in the case of Momcilo Perisic has established a new legal standard of command responsibility, providing amnesty to political leaders and military commanders in case of committing war crimes in the future period. Namely, the appeal judgment to Perisic has adopted the new specific direction criterion which has not existed in the international customary law. The question is whether court judgments discourage future threats against human civilization or the opposite? The UN Security Council has established the ICTY after some people endangered peace and security of the civilization and nowadays, some experts believe that the ICTY turned into its contradiction after Perisic’s acquittal, and its decisions jeopardize international peace, security and order.
When it comes to criticisms related to the impact of the Hague judgments to victims of the conflict, we must take into account that, when it comes to individual criminal responsibility, the ICTY is authorized to prosecute the crimes, but it has no option to adjudicate adequate compensation for victims of the crimes. Namely, primary role of the ICTY is retributive: the Court renders a judgment and defines whether someone is guilty for a certain crime or not, and orders an appropriate penalty for the crime. Of course, the ICTY also has a restorative function and it aims to ensure accountability, establish facts, bring justice for the victims and give them the right to speak, enhance the rule of law and pawing a way for reconciliation in the region. However, the ICTY is not established to be a mean for bringing complete justice to the victims and a mean to deal with the past.
Regardless of the aforementioned facts, the ICTY has taken away from us the ability to forget the past. The legacy of the ICTY is greater and more significant than occasional mistakes and judgments rendered without a legal explanation, while the Court will provide insight to future generations into judgments and facts about the atrocities.
The abovementioned text has led us to conclusion that, when it has established the ICTY, the international community has directly contributed to sanctioning of state policies and individuals responsible for initiation and conduct of armed conflicts at the territory of the former Yugoslavia. The paper also led us to conclusion that judgments rendered by the ICTY have clarified some theoretical parts of the international humanitarian law, international criminal law and the international human rights law.
Despite of many criticisms directed against the ICTY, the author of the paper believes that the ICTY has registered more positive than negative results. Unreasonably high expectations from work of the Court have been huge. At the end, when a conflict starts and when crimes happen, people say nowadays: “Send him to The Hague”, which was not the case a few years ago, when there was no court authorized to prosecute the perpetrators.
There is no doubt that existence of such a court is necessary and we could see it clearly in the case of Leipzig in 1921, when Germans were allowed to trial to themselves on their own. As a result, audience, judges, prosecutors greeted some people who were accused of crimes when they entered a courtroom, not to mention that all sanctions were minimal; two months, six months and four years of imprisonment. Therefore, author of the paper believes that foreign judges did not bring expertise in proceedings related to this territory, but impartiality.
Author of the paper considers the following facts as the greatest contributions of the ICTY:
- The ICTY is a legal body that represents a basis for establishment of new judicial bodies;
- The ICTY revealed limitations of trials;
- The ICTY has left us legacy.
On the other hand, the fact that the ICTY has primarily focused on jurisprudence and its impact, without realizing how much it is important to reach out to the victims, is the main deficiency of this body.
Retreating construct of the Contemporary International relations
The collapse of the Soviet Union and the fall of Berlin Wall in 1989 indicated the end of the Cold War. The surprising end of the Cold War shifted not only the world order but also debates in international relations theories. It was unexpected by current international relations theories. Without any large conflict and war exploded furthermore without any transformation in the world system(anarchical), for instance, neorealists predicted that the world’s bipolar order would persist. Neorealists also claimed that international institutions did not have any effect to make war away because International institutions is a matter of material power challenge between states which are not only worried about the unlimited gain, but also relative gain in cooperation and integration.
After the Cold War, international relations discourse provided more diverse approaches to understand and analyze world politics. Constructivism theory is one of the models of the progressing emergence of international relations theory. Rather than diminishing other major theories, according to its holders and proponents, constructivism theory provides wider illumination a larger explanation for determining the dynamic and the function of world politics.
While realism and liberalism concentrate on material factors like power or corporation, constructivist theory tends to focus on the influence of ideas. Rather than considering the state for granted and claiming that it totally aims to survive, constructivists consider the identity and interests of states as an extremely flexible output of special historical processes. Moreover, the constructivists focus is on the predominant discourse in society. This is because discourse shows and changes interests and beliefs, and sets accepted values, norms of behavior. Thus, constructivism is mainly interested in the main sources and roots of alteration and this approach has broadly substituted Marxism.
Constructivism, especially state identity theory explained by Alexander Wendt and Peter Katzenstein, has become far from the almost particularly rationalist mainstream of international relations theory. The constructivist theory, mainly seen as the most significant challenge to rationalist dominance, argues that the theoretical framework focusing on the concept of state identity, can provide an important alternative and option to rational choice theory. State identity is mainly about the non-material factors such as values, culture, norms, ideasetc, studied by the constructivist scholars. It provides very important causal links to support the basic arguments of constructivist theoretical framework.
The term Constructivism was adopted by Nicholas Onuf in 1989 and introduced as “people and societies construct or constitute each other”. the main assumption of constructivists is that the fundamental structures of international politics are social and these structures shape actors’ identities and interests. Therefore, the world is structured by both knowledge and material factors, according to constructivists the main important relation is between agents and structures. Moreover, constructivists adopt a common concern when understanding and explaining how international structures are defined by ideas and how identities and interests of the states and non-state players are influenced by the structures.
The post-Cold War era played a significant role in legitimating constructivist approach because both liberalism and realism were unsuccessful in predicting this event and had difficulties explaining it. On the contrary, constructivists had an explanation based on ideas and norms; for example, the idea of “common security,” adopted by Gorbachev.Furthermore, constructivism theory argues that we live in a period where ancient values and norms are being challenged, limits and boundaries are fading and matters of identity and culture are becoming more prominent and outstanding. Unexpectedly, researchers have been drawn to theories that put these issues front and center.In the post Cold War era constructivism emerged into the stage of debates in international relations theories. However, some researchers and scholars criticize that constructivism “remains a method than anything else, according to them constructivism does not offer an essential theory of world politics.Moreover, it provides a research approach that can be employed to understand and explain international political economy.Therefore, Constructivism should operate with other theories from different disciplines and branches like comparative politics, social psychology..etc.
On the other hand, constructivism has demonstrating itself as an effective theory in understanding and explaining world politics, especially after Alexander Wendt published his article, Anarchy is What States Make of It, which developed the basis of constructivism approach. It focuses more on the nonmaterial world and considers that material world changes are changed by the social world. Thus, the distribution of power and State’s military power do not automatically construct an international social structure. Even without any central governance which has authority over all states in the world, the international system does certainly become a “competitive security system”.
From a constructivist approach, the main problem in the post-Cold War world is how various groups visualize their interests and identities. However, power is not unrelated. Constructivism focuses on how ideas, norms, values, and identities are created and constructed, how they develop, and how they change the way states comprehend and react to their situation.Thus, it matters whether the US adopts or denies its identity as “global policeman and whether Europeans realize themselves mostly in national or continental terms. Constructivist approaches are highly varied and do not provide a unified group of expectations on any of these matters.
Constructivism varies itself from neoliberalism and neorealism by emphasizing and highlighting the ontological reality of intersubjective knowledge. It does not mean that constructivism neglected the material world because intersubjective knowledge and material world interact affect and influence each other. Furthermore, both the material world and intersubjective knowledge are not independent and not separated. They have relative autonomy.
According to Constructivism theory, the material world does not completely define how people, or states, behave. It only limits the chance of interpretation and the intersubjective world that people can build. Moreover, material body enforcing is restricted to social structure. Thus, constructivists do not mean the unlimited possibilities of social structure. However, people have the capability to interpret, as they cannot easily interpret the social world and their own material world. There is restriction of interpretation of the social world, that.the material world changes and is changed by the social world.
Constructivism theory discusses the issue of anarchy in the international system, At a simple conceptual level, Alexander Wendt claimed that the realist conception of anarchy does not explain why conflict occurs between states enough. The main thing is how anarchy is understood, and Wendt argues that “Anarchy is what states make of it.” He also argues that transnational communication and shared civic values are weakening traditional national obeisance and make an extremely new genre of political alliances. Furthermore, Constructivist theory focuses more on the role of norms, claiming that international law and other normative principles have decreased mainly the notions of sovereignty and changed the legitimate purposes for which state power may be used.
Constructivism theory recognizes the significance of nonmaterial power (culture, ideas, language, knowledge, and ideology) as well as material power because the two powers connect and interact to build the world order. For instance, nonmaterial power works through creating and recreating intersubjective meaning. It clarifies how the material structure, states’ identity, interactions and relations between states, and any other social facts should be realized and comprehended.
The end of the Cold War came as a surprise to the classical dominant theories, who failed to predict or explain the changes in global politics. However, it provided the opportunity for more evolution of critical thoughts, which started since the mid-1980s. The Realist approach in international relations was criticized largely for their materialistic approaches by constructivism, which speedily boomed and was known as a theory that focuses on the social dimension of international politics. This improvement towards the chance of change helped the theory to catch significant elements of the world’s relations: the many factors of mainstream presumptions and norms in world politics, which were threatened and challenged by constructivism.
Constructivism defied the theory of power politics, especially dominant perception of the threat and conflict in global politics and picked a fully different approach in studying the construction of the threat through their fundamental focus on the social dimensions of international politics, therefore, it recognizes them as socially constructed elements in the process of identity formation under the influence of the norms and shared values of society.
Discussing the Euro-Med theatre in his ‘Geopolitics–Energy–Technolgy’ book, for example, prof. Anis H. Bajrektarevic states: “The MENA theatre is situated in one of the most fascinating locations of the world. It actually represents the only existing land corridor that connects 3 continents. Contributing some 6% to the total world population, its demographic weight is almost equal to that of the US (4,5%) and Russia (1,5%) combined. While the US and Russia are single countries, the MENA composite is a puzzle of several dozens of fragile pieces where religious, political, ideological, history-cultural, economic, social and territorial cleavages are entrenched, deep, wide and long. However, the MENA territory covers only 3% of the Earth’s land surface (in contrast to the US’ 6,5%, coverage and Russia’s 11,5%). Thus, with its high population density and strong demographic growth, this very young median population (on average 23–27 years old) dominated by juvenile, mainly unemployed or underemployed, but socially mobilized and often politically radicalized (angry) males, competes over finite and scarce resources, be they arable or settlers land, water and other essentials.
Competition in this theatre, that has a lasting history of external domination or interference, is severe, multiple, unpredictable, and therefore it is fluid and unsettled on the existing or alternative socio-economic, ideological, cultural and politico-military models, access, directions and participatory base.”
As we see, the work of constructivists was established around their aim in explaining the changes in world politics in the period towards the end, and after the Cold War especially when dominant international relations approaches and theories failed to predict the sudden change in the global politics. Moreover, this transformation raised the question about social construction and the methodology of international relations theories and their involvement and effects in the production of international power.
The main dominant international theories were unable to explain the collapse of Soviet Union, especially the theories which focus on material power, and nuclear weapons. This is because, despite being a nuclear power, the Soviet Union collapsed. Neorealists tried to provide a simple explanation by telling the decline of Soviet power. But, the explanation focused more on domestic politics and economy than on the material structure of world’s distribution of power.Thus it could not explain enough why the Soviet Union and Gorbachev adopted decisions which could endanger its national security and survival and stop it from increasing its hegemony and power, However, neorealists were still certain about the significance of neorealism.
Another explanation was given by Democratic liberalists who tried to stress the people’s aims for freedom and objections to communism. Neoliberalism and the market economy favorably forced their hegemonies to the world and increased the validity of tyranny and command economy. However, while this evidence could explain the decline of communist ideology in the Soviet Union, it could not explain why such transformation and change happens in the 1980s. However, Neoliberals provided another explanation. Liberalism and communism interacted across political borders, especially the new way of thinking among top political leaders decreased the hegemony of communism and made the Soviet Union collapse. Therefore, the collapse of the Soviet Union and the end of the Cold War presented a significant challenge for constructivists to understand. Wendt said that “material structure can have special impacts.
The distribution of power, anarchy in international relations and military power do not fix states’ identities and relations. State military power can be understood as a threatening power as well as protecting power for other states.
In addition, a nuclear weapon is a matter of perception. For instance, nuclear weapons in the hands of United States has a different meaning for Taiwan than a nuclear weapon in the hands of China. Therefore, considering states “like billiard balls of varying size” is not enough to explain and understand reality. Military capabilities of any state and the distribution of power in the international system are interfering elements but they are not able to understand relations between states. For example, two enemy or allied states can be divided by defining the material military structure. However, the states identification and social structure are important elements which define relations between states. Constructivism theory (actually rather an ontology) argues that common identities and a long history of alliance and cooperation between two states can be a strong ground of cooperative security system. On the other hand, other identities and a long history of conflict and struggle can build a competitive security system based on conflict and wars.
Will Israel Be Expelled from U.N.?
The conditions of membership in the U.N. are specified in the U.N. Charter. Specifically, “Articles 5 and 6 of the Charter of the United Nations deal respectively with suspension of rights and privileges of membership, and with expulsion from the United Nations.” But the operative part is Article 6, which reads:
“A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.”
Israel certainly qualifies, but the United States Government, which is controlled by the anti-Shia and anti-Iran alliance between Israel’s Government providing the anti-Iran lobbyists and propagandists, and the Saudi Government providing the anti-Iran bribe-money, won’t allow that. Consequently, no matter how violative of the U.N. Charter Israel is, it cannot be expelled.
The United States Government likewise is routinely violating the U.N. Charter and cannot be expelled, because this very Government is on the U.N.’s own Security Council as one of the five permanent members: it would veto its own expulsion.
Consequently, a fatal flaw in the current U.N. Charter is that no vote by the U.N. General Assembly can expel a permanent member of the U.N. Security Council. Nor can they expel any member of the General Assembly that’s backed by one or more members of the permanent Security Council. Until this situation is changed and a stated percentage of the votes from the General Assembly can expel a member from the U.N. General Assembly, there can be no international accountability applied against a member of the U.N. Security Council permanent five nations; and the U.S. Government, being a member of that, will continue to be allowed to do whatever its Saudi and Israeli masters want it to do — thereby protecting both Israel and Saudi Arabia themselves, and giving each of those two masters virtually as much freedom-of-action as the U.S. has; the U.S. Government’s masters buy impunity, indirectly, from their protector.
This is not a world of international law; it is a world of international force — basically a world of conquest and submission (and subversion can be part of that), which mocks democracy internationally (and maybe even domestically), and therefore effectively corrupts and prevents democracy within all nations that the controlling masters in Saudi Arabia and in Israel demand.
The most fatal failure of the U.N. Charter is thus its prohibiting any amendment that one of the five permanent Security Council members opposes.
The issue of what the conditions would be for amending the U.N. Charter was debated while the U.N. Charter was being drawn up in 1945, but nothing effective was agreed to, and so the U.N’s PR on the matter states only that “the question of future amendments to the Charter received much attention and finally resulted in an agreed solution.” They don’t say what that “solution” was, but there have been no controversial amendments made to the Charter, during its 73 years, so whatever it might have been was almost totally ineffective. A web-search for “U.N. Charter” plus “proposed amendment” produces no major “proposed amendment” but does, near the top, show what that (obviously failed) “agreed solution” (which the U.N. tries to hide) was; and it is:
“This concession took the form of Articles 108 and 109 concerning Charter review procedures. While Article 108 describes the required steps for making specific amendments, Article 109 introduces the option of a review conference outside of the usual General Assembly (GA) meetings with the purpose of a comprehensive “review” of the Charter. Both these avenues for making changes to the UN Charter include the criteria of two-thirds of the UN member states voting for and ratifying a proposed amendment. However, in addition, “all the permanent members of the Security Council” must also ratify before the amendment goes into force. This unanimous concurrence of the P5
[the five permanent members] is the biggest challenge to adopting any amendment to the UN Charter.”
In other words: The U.N. Charter’s colossal (and thus-far fatal) failure was in its including the 5-member permanent Security Council’s veto-provision to apply even to any proposed amendment to the Charter. Only an amendment which all five permanent members support can pass. Here is such an amendment. No matter how much of the rest of the world want a particular change to be made, it can’t be done unless all five of the permanent members of the Security Council will accept it. This is the harmful dictatorial power that the five permanents were granted, but it can be eliminated without eliminating the Security Council itself (as will be discussed later here).
Consequently: In order to boot Israel or any other international rogue-nation out of the U.N., an amendment would first be needed, which would apply a degree of accountability to each member of the U.N. permanent Security Council, by stripping the provision that inappropriately applies their veto-power even over the consideration of any proposed amendment. Obviously: amending the Charter should be a matter for consideration only by the General Assembly — without any veto-power being held by any one nation. Amendment isn’t regular U.N. action: it concerns the Charter itself.
The biggest difference between a religious Scripture and a democratic constitution (such as the U.N. Charter was intended to be for the entire world) is that whereas the former (Scripture) includes no provision for its being amended, the latter (a democratic constitution) does — or else it instead is actually a religious Scripture, something to be taken only on faith, no democracy at all, nothing suitable for the Age of Science, and thus for a future of democracy. This faith-basis being the actual epistemological status of the U.N. Charter — unless and until its amendment-section becomes itself amended to what it needs to be — that Charter is a religious Scripture, and the U.N. is more a religion than a democracy of any kind, so long as there exists any nation that can veto any proposed change to the founding document. Though intended to be the emerging democratic constitution for the future world, the existing U.N. Charter is instead just a type of religion, and this is its Scripture. (Though, as noted, uncontroversial amendments may be considered in it; so, the U.N. isn’t fully a religious institution.)
Consequently, to address these problems, I propose that the members of the U.N. Security Council that wish to establish through the U.N. a democracy and transform the U.N. so as to abandon its current status as being a religion, push, at the U.N., relentlessly, for a measure to unlock the U.N. Charter — to enable it finally to be significantly amended and allow a two-thirds vote of the General Assembly to pass into international law as an Amendment to the emerging global Constitution, the no longer religion, but instead henceforth the democracy, of an unlocked Charter of the United Nations — thereby causing the existing Scripture to be henceforth a Constitution.
Unless and until this (the introduction of the General Assembly’s exclusive ability to amend the Charter) is done, there can be no progress, only continued regress to international dictatorship and a World War III, and so in the direction of even more global dictatorship — this time likely ending in global extermination (precisely what the U.N. was intended to avoid).
Any member of the Security Council who would oppose removing that provision — the veto-power’s extending even to any proposed amendment to the Charter — would be clearly an international pariah-Government and enemy of democracy, which all the rest of the world could then boycott and penalize outside the U.N. until that pariah-nation becomes defeated economically and thus effectively becomes coerced by economic means to become a decent member-state in the international community.
This is an existential issue for the future of a livable planet. A basic condition for progress is the elimination, from the Charter, of the clause:
“including all the permanent members of the Security Council.”
“108. Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective
[individual national] constitutional processes by two-thirds of the Members of the United Nations, including all the permanent members of the Security Council.”
“109:2. Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations including all the permanent members of the Security Council.”
The five permanent members of the U.N. Security Council are: China, France, Russia, UK, and U.S. U.S. would try to block removal of that phrase “including all the permanent members of the Security Council.” On 14 May 2018, Russia’s Sputnik News bannered “UK Has no Plans to Move Embassy to Jerusalem, Disagrees With US on Issue – May”, and this indicates that the U.S. well might be the only member that would fight to block democratization of the U.N. — to unlock the Charter for all U.N. members.
The precipitating event for this call for correcting the Charter would be the virtually unanimous repugnance of the entire world other than the U.S., regarding Israel’s string of brazen in-your-face violations of the Charter and of much of international law. Taking advantage of this intense global outrage — plus of the many outrageous actions by the U.S. Government itself — provides a rare opportunity to make the long-delayed but essential reform of the U.N., as follows:
America is the only member, of the five permanent members of the Security Council, that is so under the boot of Israel and of the Sauds. America is controlled by its own aristocracy, which are heavily interlocked with those of Israel and especially of Saudi Arabia and its other vassals, such as UAE but more broadly including the Gulf Cooperation Council of Arabic fundamentalist-Sunni royal families — and that includes a large portion of the world’s wealth. The American portion of that Imperial alliance includes control over many of the world’s largest consumer-brands, and is thus (unlike either of its masters) especially highly vulnerable to international public-image problems, such as any consumer boycotts.
There might be a way to save the world. This might be the way to a progressive future, reversing the worst of what has happened after the death of FDR (who, more than any other person, laid the groundwork for the U.N.).
Though the U.S. Government might succeed in winning the UK’s support to block democratization of the U.N., such boycotts might produce a democratic victory, if not immediately, then still within a reasonably short time, such as happened when apartheid was removed from South Africa. But this victory would be not only for the Palestinians — it would be for all peoples everywhere — a world moving in the direction of international democracy, no longer like now, in the direction of increased international dictatorship.
Liberum Veto and the Monkey and the Pea
To paraphrase the beginning of Tolstoy’s Anna Karenina: all effective structures are alike; each ineffective structure is ineffective in its own way. The problems with the effectiveness of the UN Security Council are in many ways unique, as unique as the body itself. In recent years, only the laziest have failed to reproach the Security Council for dragging its feet, acting irresponsibly, getting bogged down in political infighting and pointless rhetoric, and being unwilling or unable to agree on the most pressing crisis situations, from Syria and Ukraine to Palestine and Myanmar.
For all its diversity, criticism of the Security Council has two main points. The first point is related to the composition of the Council itself, and the second is connected to the procedures of its operation. The current choices for the Security Council’s permanent members, or Big Five, are questionable to say the least. China is represented, but India is absent. France and the United Kingdom are present, but Germany or the European Union as a whole are not. Neither Africa nor the Middle East nor Latin America are represented. As for procedures, the primary bone of contention is the veto enjoyed by the five permanent members, which allows any of the Big Five to block any and all decisions that fail to please them.
It is clear that the first of the two problems looks more interesting, though the second one is of more importance. The prospect of expanding the Security Council promises a great deal of diplomatic scheming, behind-the-scenes negotiations and cunning subterfuge. However, as long as the right of veto remains, and as long as the obvious differences in the viewpoints of the permanent members regarding fundamental international problems persist, extending membership of the Security Council – regardless of which countries are let in – will make very little difference. On the contrary, “democratization” under the same old procedures will only serve to further complicate the possibility of ever reaching any agreement.
It is worth remembering that the constant abuse of a similar, albeit much more democratic principle of liberum veto (free veto) in the Sejm of the Polish–Lithuanian Commonwealth eventually led to the irreversible decline and subsequent partition of one of the most powerful states in medieval Europe. Unfortunately, in recent years, the right of veto has been used more and more actively by some members of the Security Council. And it is Moscow that has set the tone. In the past two years alone, the Russian Federation has used its veto power nine times in connection with the Security Council’s examining the situation in the Middle East.
The struggle against the veto power of the permanent members of the Security Council has been going on for a very long time, without much chance of success. More than anything, it is a question of status, especially for those members whose position in world politics and whose economies are on the decline. To deprive them of their special status would be to inflict a crushing blow to national pride, to reduce them to the level of “ordinary” countries, and to forget their role in the creation of the United Nations. To be fair, let us recall that the permanent members of the Security Council are still the UN’s primary donors, accounting for more than 42 per cent of the organization’s total budget.
Besides status, however, the right of veto is also a question of practical national interests. For all their differences, each of the members of the Big Five values their sovereignty and would not like anyone, including the United Nations, to interfere in it. The Big Three of Russia, China and the United States are particularly critical of this issue. And the veto provides almost absolute guarantee of sovereignty to the select few.
So what should be done? Actually, the international community has little choice. You can do things the nice way, or you can do things the hard way. Doing things the hard way would mean commencing the procedure for a radical revision of the UN Charter so that a significant part of the Security Council’s authority would be transferred to the General Assembly. At the same time, you could get rid of the veto. In theory, such a procedure is provided for by the Charter itself: Article 109 allows for a United Nations General Conference to be held for this purpose with the support of two thirds of the members of the General Assembly and any nine members of the Security Council.
This is a rare case when the veto right of the permanent members of the Security Council is not valid. This procedure for the revision of the UN Charter has thus far never been implemented. And this is no coincidence, as it contains serious risks for the United Nations as a whole. Everyone understands that while it might be possible to take apart the complicated machine that is the UN, putting it back together again would be another thing entirely.
Doing things the nice way would mean convincing the permanent members of the Security Council of the need to take “voluntary” restrictions upon themselves in the use of the veto. There has been an active Code of Conduct campaign behind the scenes at the General Assembly for several years now that is designed to exert moral pressure on the permanent members of the UN Security Council to at least not to block those resolutions related to crimes against humanity and genocide. Strangely enough, the campaign was initiated by France, which is itself a permanent member of the Security Council. Presently, more than half of the UN’s members have joined the campaign. However, Russia, the United States and China, in a rare display of solidarity, refuse even to discuss such a possibility. The logic of the Big Three is understandable: start with voluntary restrictions and you can end up with an actual withdrawal of the veto power as a whole.
A multitude of other options exist to reduce the dependence of the practical work of the UN on the veto power of the permanent members of the Security Council. Some suggest extending the powers of the UN Secretary General. Others talk of resurrecting the now dormant Military Staff Committee. And still others believe that the solution to the problem lies in the transition to “subsidiary” peace-making by having the United Nations transfer a number of important functions in this area to “authorized” regional organizations. In any case, in order for these or other similar proposals to be implemented, a consensus is needed among the Big Five, something that is sorely lacking at present.
However, try as you might, the end will always come. The current situation in the UN Security Council should not be considered normal. It is difficult to believe that this abnormal situation can last indefinitely. In failing to resolve critical regional and global crises, the Security Council suffers serious damage to its reputation, damage that extends to the United Nations as a whole. This is not even the point; more importantly, the chronic paralysis of the Security Council reinforces and justifies the temptation to bypass the UN Security Council and sometimes circumvent the modern system of international law in general. For now, actions bypassing the Security Council are still perceived as the exception, but they could soon become the rule. For now, they are frowned upon, but soon they could become the norm.
Historical – and even everyday – experience suggests that those not willing to sacrifice a part risk losing the whole. Unfortunately, the United Nations is not at all immune to the fate of its predecessor, the League of Nations, which left the political scene quietly in the late 1930s, at the precise moment that international efforts to prevent a new world war were needed most.
To return once again to Leo Tolstoy, this time to one of his children’s fables: “A monkey was carrying two handfuls of peas. One little pea fell out. He tried to pick it up and spilled twenty. He tried to pick up the twenty and spilled them all. Then he lost his temper, scattered the peas in all directions and ran away.” The permanent members of the UN Security Council are still in the second stage – twenty peas have already been spilled. Will it reach the third stage?
First published in our partner RIAC
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