4-6 June 2009
National Sovereignty, Domestic Jurisdiction and Consent:
The Last Refuges of Scoundrels[1]
By James V. Arbuckle, O.M.M., C.D.
Shall I say what I mean?
Mean what I say?
- Marianne Faithful
Introduction
This paper is NOT JUST about peace operations in Chad; rather it is about ALL peace operations throughout the history of peacekeeping:
The issue of consent to an operation is central to the mandating and the conduct of all interventions. The post-Cold War surge in intra-national conflicts has increased the importance of this issue, as interventions almost inevitably encounter issues of national sovereignty. In Sudan, especially in the West Darfur region of Sudan, we see today most clearly the ongoing struggle between, on the one hand, national sovereignty, domestic jurisdiction and “host” consent and, on the other hand, a clear case of a need – some would say a responsibility – for outsiders to intervene.
The Sudanese government has for four years delayed where practicable, and prevented where possible, international action in a case which entirely justifies the full weight of the international community’s responsibility to protect the victims of state-sponsored and -abetted violence. Sudan has throughout this period continued to resist the implementation of the Security Council mandate, has contested the facts of a man-made humanitarian emergency and has debated the role and the equipment of the U.N. force. To date the Sudanese government continues to exercise what it perceives to be its sovereign right to obstruct and to oppose the deployment of the United Nations Assistance Mission in Darfur - UNAMID, withholding its “consent” to Force composition and structure, to the freedom of movement of the Force, and has continued to support and to sanction violence against civilians. Meanwhile, the conflict has spread into neighbouring Chad and the Central African Republic, especially the former, where the Sudanese government-sponsored Janjaweed have pursued refugees from Darfur well beyond the international border. The requirement for the protection and eventual repatriation of the Sudanese refugees, especially those in Chad, has led to the formation first of an EU force, now a UN peacekeeping mission, with an enforcement mandate under Chapter VII of the Charter. Thus the mission in Chad and the C.A.R. is essentially a spill-over mission, and although operating with an apparently high level of consent in the countries in which it is based, its operations are to a very large extent dependant on events in Sudan, where consent hides behind the usual array of excuses. This cross-border factor complicates the operations in the entire region – consent withheld in Sudan negates consent granted in the CAR and Chad.
Nor can the appearance of consent in Chad and the C.A.R. be taken entirely at face value: the United Nations Mission in the Central African Republic and Chad - MINURCAT, which inherited from European Force - EUFOR - responsibility for the civilians in danger, is not allowed to enter refugee camps in Chad. And as Dr. Winrich Kuehne has written for the Centre for International Peace Operations in Berlin:
Once again, mandate and capabilities are too weak due inter alia to a blunt refusal by Deby (in Chad) to accept a stronger and truly impartial force. This refusal … is a clear indication of his true intention: abusing the international presence to ensure his survival. The same basically applies to the Bozize regime in the CAR although it has pursued its interest less bluntly.[2]
So, to put it bluntly, consent can be faked, and it can be used to hide an agenda – we might call it shamming and scamming.
Just as, in May 2009, a UN team investigating possible war crimes in Gaza, led by Richard Goldstone, arrived in Gaza, via Cairo, because Israel refused to grant them visas to enter Israel. Of course, this would make it much easier to discount whatever the team’s findings might be, as they would not have been in Israel. The UN team, despite the leadership of Mr Goldstein, a respected war crimes investigator and a Jew, and before they had done or said anything, was judged by the Israeli government as singling out Israel unfairly, and of being a “masquerade.”
Following this introduction, I will discuss the consent issue under two headings:
- The nature, varieties and qualities of consent;
- The historic background to the consent issue, as it first arose in the case of the United Nations Emergency Force in 1956.
The Varieties of Consent
More than 60 years into the history of peacekeeping, and despite the apparent resurrection of Chapter VII of the Charter, the consent issue remains the principal factor influencing the maintenance of international peace and security. There are two Charter-based sources of this, and these are:
Article 2.1 of the Charter of the United Nations provides that:
The Organization is based on the principle of the sovereign equality of all its members.
And Article 2.7 states that:
Nothing … in the … charter shall authorize the UN to intervene in matters … essentially within the domestic jurisdiction of any state …
It is just that “domestic jurisdiction,” plus “national sovereignty,” which seem to have fused into an inertia of rest, limiting where not preventing altogether international or regional intervention in the affairs of a member state of the United Nations, without the consent of the putative hosts. This consent, when granted, may be highly conditional, and it may be withdrawn at short notice and for very little reason, or for no discernable reason at all. The consent may be contested or not accepted by one or more elements of one of the conflicted parties (“I can’t control my people.”).
As I have written elsewhere, domestic jurisdiction has become, to paraphrase Dr. Johnson, the last refuge of a scoundrel.
There is a nexus of issues surrounding that main issue of consent, and these sub-sets mutually influence the mission and each other. As Ingrid Lehmann has written, “in the new, complex operations, consent implies popular support or acquiescence, even in non-democratic or transitional societies”. She adds:
There are at least three areas in which consent – i.e. general support for a peacekeeping operation – should exist for it to be carried out successfully:
1. In the countries in which the UN force is deployed;
2. In the troop contributing countries; and
3. In the countries that pay the largest share of the bill for peacekeeping.[3]
Were she writing today, Lehmann would add to this list the consent of non-state actors: para-militaries, NGOs, academics who, despite or because of their status, may wield considerable power or influence.
I do not wish to imply that consent will come spontaneously into existence as a natural phenomenon, or that, where it does not, we are powerless to act. Thus it will often be the case that the creation of a climate of consent will be a major issue for an intervention mission. Nor is it unusual that there may arise the need to induce consent more forcefully, and/or to be able to use force to maintain consent once granted. As the Secretary-General of the United Nations has described it:
In any given case, blue helmeted soldiers are likely to encounter many persons who welcome the UN presence and many others who are highly resistant. … If consent carries with it certain rewards, and the failure to grant consent carries with it certain costs, this obviously affects the decision as to whether or not consent will be granted.[4]
The Secretary-General went on to distinguish between “positive” and “coercive” inducement: the traditional carrot and stick. There are, however, limits on the use of coercing consent: “the intimidation factor will erode over time”, its usefulness may be constrained by weakness in the consent of the sponsors (see Lehmann, above) and, most importantly, coercion cannot resolve conflicts. [5] And, again as Lehmann has pointed out, the consent of the people is no less important than that of their leaders, and creating a broadly based consensual environment in the civil society may be a challenging undertaking. Nevertheless, especially at the outset of an operation, as Richard Herzinger has said in Spiegel Online, “to seriously entertain the idea of intervening in a country against the will of the national government, (we) must accept both the necessity of military means and the risk of violent confrontation with local power holders.”[6] This is possibly setting the bar too high, and conjures up just the situation which typically results only in inaction. But no matter what sort of consent the situation may demand, and of whom, or how it is to be attained, the stakes here are very high: the success or failure of the mission will depend on this outcome more than on any other event in the life of the mission.
Time and space does not here permit me to pursue the development of a typology of consent in peace operations, otherwise I would describe more fully the freely given and faithfully maintained consent of the Government of Macedonia to the UN Preventive Deployment; the manner and method by which the Namibia mission created (induced) a climate of consent to the operation which, 20 years ago, secured for Namibia her independence; or of the consent more or less coerced in Eastern Slavonia in 1996 by a powerful U.N. military force which was determined to use all necessary means to achieve its mission of peace enforcement[7].
Suffice it to say at this point that this issue is so important, and is as much so today as it has ever been, we need to see how this issue first arose, and how it was treated then. To know where we are in this regard, it is especially important to see where we started. To do this we will visit the birth of peacekeeping, and the simultaneous birth of the consent issue.
The Suez 1956 - The Birth of Peacekeeping
So far, we have had to indulge very much in a somewhat extraordinary policy … taking step after step in an atmosphere of great ambiguity.
- Dag Hammarskjold, to the UNEF Advisory Committee, 1957
The circumstances surrounding the launch of the first modern peacekeeping mission, the United Nations Emergency Force in 1956, illustrate several facets of this central issue, many of them surprising at the time, and some still today not fully appreciated.
The developments in the Middle East, especially with respect to the closing of the Suez Canal by Egypt, the Franco-British military response and the resulting disarray in the international community, are well documented and need not be re-told here. For our purposes, we can begin on October 30, 1956, with the veto in the Security Council, by France and Britain, of a U.S.–sponsored resolution calling upon Israel to withdraw from territories she had occupied in the wake of the Anglo-French invasion. A Soviet amendment designed to dilute the force of the original resolution was also vetoed. The next day, the Yugoslav representative offered a resolution, framed under the Uniting for Peace Resolution[8], to move the issue to an Emergency Special Session of the General Assembly – as this was a procedural matter, it was not subject to veto, and was passed over the objections of France and Britain. The Special Session convened on November 1.
In discussing the growing Middle East crisis with the Secretary-General, the Canadian Permanent Representative, Lester B. Pearson, had already broached the idea of a peace force. Hammarskjold was initially sceptical, but allowed Pearson to go ahead. Pearson eventually proposed to the General Assembly on 4 November, the following resolution:
The General Assembly … requests … the Secretary-General to submit … a plan for the setting up, with the consent of the nations concerned, of an emergency United Nations Force to secure and supervise the cessation of hostilities.The resolution was adopted.
But there were other things going on (there always are): on October 24th, at the “request” of
the Hungarian government, Warsaw Pact forces had entered Hungary and were converging on Budapest. The Secretary-General had since October 22nd been quietly preparing an observer mission to Hungary, to which the U.S.S.R. had strenuously objected as a violation of sovereignty (whose they did not specify, and they had at any rate the “consent” of Hungary for their intervention[9]). Quite naturally, they perceived the proposed intervention in the Middle East as a highly dangerous precedent that, if they could not prevent, they might effectively derail. At 0800 hours on Sunday 4 November, Radio Budapest called on the world for help, but help there was none, and Radio Budapest closed down – for the next 35 years.
On 5 November, in an apparent (but transparent) move to strengthen the action in the Middle East, the Soviet Union proposed that the intervention should be an enforcement mission under Article 42 of the Charter.[10] As this had only been done once before in the history of the U.N. (establishing the U.N. Command in Korea in 1951), it was highly unlikely in this context that the member states would authorize such a mission (there was indeed to be only one other – in the Congo – in the next 35 years). Clearly, the Soviet proposal was not intended to strengthen the prospects for peace, but was based on a canny appreciation of the then-limits on, and the critical importance of, consent.
At about this same time, word was received that Israel had refused her consent to the Force’s deployment on Israeli territory, a serious weakening of the Force before it even deployed.[11] This latter restriction, from the outset plainly compromising the Force’s image of impartiality, was to have more serious consequences when fighting again broke out in the Sinai in 1967 (see below).
But, as the Middle East Force was finally deploying, there came one more twist on the consent issue. Canada had agreed to provide an infantry battalion, and the battalion was duly moved from its barracks in British Columbia by rail, 4,400 miles to Halifax, where it was to take ship to the Middle East. On the eve of their sailing, however, Nasser learned from a press release of the name of the regiment from which this battalion was drawn: they were “The Queen’s Own Rifles of Canada”. Nasser was not having anything of the Queen’s on his territory, and the battalion returned, sadly disappointed, to their barracks. It was apparently an unpleasant surprise to the U.N. to find that, having secured the consent to the mission, the composition of the Force could be just as contentious – as late as 10 November Hammarskjold wrote to the Foreign Minister of Egypt to insist that such consent could not reside with one of the “hosts” without seriously infringing his own authority.
These were not the Secretary-General’s final words on the matter, however: “ … obviously,” Urquhart wrote, “as a practical matter, the UN must give serious consideration to the views and wishes of Egypt … and give them full weight in deciding on the composition of the Force”. [12] Writing to Burns, the Canadian officer who was to command the Force, Hammarskjold pronounced what may stand as a fundamental principle of consensual operations:
I frankly fail to see how, as constructed, the UN force could be instrumental in forcing on Egypt a solution of the Canal question other than one freely negotiated.[13]
Much later, in his report to the General Assembly on 24 January 1957, Hammarskjold observed that “The use of a military force by the UN other than under Chapter VII, the enforcement chapter of the Charter, required the consent of the states on whose territory the force was to operate …”.[14]
Ironically, and tragically, this Force was to founder, 11 years later, on just the issue of consent. In finalizing the stationing of the Force, the General Assembly had entered into what came to be known as “The Good Faith Agreement,” which stated, inter alia, that the Force could not be “stationed or operate on the territory of a given country without the consent of the Government of that country”. Egypt undertook to “be guided, in good faith, by its acceptance” of that resolution. In the course of a period of rising tensions between Syria and Israel, which led in turn to tensions between Egypt and Israel, the Egyptian Government, on 16 May, 1967, requested the withdrawal of UNEF. In discussions at the UN, the Secretary-General reminded the UNEF Advisory Committee “that the Force was on Egyptian territory only with the consent of the government and could not remain there without it”. [15] A request that UNEF might deploy on the other side of the line was (again) refused by Israel. [16] Now having nowhere else to go, the Force completed its withdrawal by 17 June, but not before 15 UN peacekeepers had been killed in the fighting which had broken out on 5 June, in what came to be known as the Six-Day War.[17]
Thus this first modern peacekeeping force encountered nearly all the consent issues which affect such operations today: the fullest consent of the parties in conflict, of the Security Council members and by the governments of the troop contributors, was essential to any intervention. Other issues such as freedom of movement of the force, its composition, its right of entry into the area of operations, the extremely touchy issue of the sovereignty of the “hosts” – all these issues were played then, and almost none were, nor have they since been, entirely satisfactorily resolved. All have arisen afresh with each new operation, and all have been settled differently (or not at all), and at great cost to the efficiency of the operation of the peacekeeping forces. Only one thing seems to have been fixed in the corporate mind-set of the U.N.: the Organization will almost always yield to the demands of “the hosts”, and sometimes also to the demands of one or more of the conflicted parties.
Conclusion
In the end, the varieties and types of consent, and those who contribute or withhold consent, and how consent was secured, seem to matter far less than the general issue of consent, and how that basic conflict between intervention and sovereignty is resolved. The considerations are those of the mandate, a sound and proper structure (including major equipments), the right of entry, freedom of movement – to name but a few. To the extent that all these issues of consent add up, the intervention has every chance of success. To the extent that they do not, the intervention will have reduced, eventually no, chance to succeed. In other words, consent will not guarantee success, but its absence or weakness will probably, eventually, contribute to failure. And just where do we stand in this respect in Chad/C.A.R./Sudan?
And so the questions not answered of those “consensual” peacekeeping forces still bedevil the modern peacekeepers – especially the “peace enforcers” - of our post-Cold War era. Since then modern, intrastate conflicts have raised new issues, to be layered on those yet outstanding from that first half-century of peacekeeping. Nevertheless, the fact is that the U.N., and most regional organizations, are not yet prepared to move beyond an innate and overriding concern for the sovereignty of member states. Weight is added to this reluctance to intervene internally in the affairs of states by a traditional and equally weighted concern for consent, especially of the “hosts”, to a peace operation or an intervention of any kind. Indeed, the issues of consent, domestic jurisdiction and sovereignty have fused into an almost immutable inertia of rest. This tendency to inaction is exacerbated by another tradition, which is that international and regional organizations do not criticize their members. Madeleine Albright has written that the response of the Burmese government to the tragedy of Cyclone Nargis, and the world’s apparent acceptance of the Burmese rulers’ failure to protect their own people, “illustrates three grim realities today: totalitarian governments are alive and well; their neighbours are reluctant to pressure them to change; and the notion of national sovereignty as sacred is gaining ground …”[18]
But perhaps, as we are revisiting the origins of things, we need to re-read Article 2.7 in its entirety:
Nothing … in the … charter shall authorize the UN to intervene in matters … essentially within the domestic jurisdiction of any state …
but this principle shall not prejudice the application of enforcement measures under Chapter VII.
It’s all there, in the Charter of the United Nations, just as it was written more than six decades ago.
But when we hear of missions under-funded because that is all the Vth Committee will approve, under-staffed because that is all the member states will contribute, with weak mandates because that is the best that could be negotiated with the “hosts”, we have to ask ourselves if the Brahimi Report has been read by anyone, or if Article 55 and 56 of the Charter, like the Universal Declaration of Human Rights, like R2P, really mean anything at all? It seems to me that what we learn from peacekeeping is that we do not learn from peacekeeping
Have we indeed moved beyond the Age of Consent? Are UNSCRs to be binding on member states? Does peace enforcement mean the same thing on the international stage as law enforcement does to us? Is R2P an “emerging new norm”? Are governments – especially today’s crowd of Lords of Misrule - finally to be held accountable for their treatment of their own people?
The record, as I see it, says: NOT YET!
[1] This paper has also been published in Peacekeeping in Chad, Guenther Greindl (Ed.), Blue Helmet Forum Austria, Vienna, 2009 (see pp. 113-126).[2] Kuehne, Dr. Winrich, How the EU Organizes and Conducts Peace Operations in Africa: EUFOR/MINURCAT, Report 03/09, The Center for International Peace Operations (ZIF), Berlin[3] Canadian Defence Quarterly, Vol. 25, No. 2, Baxter Publications, Toronto, December 1995, “Peacekeeping, Public Perceptions and the Need for Consent,” by Ingrid A. Lehmann (page 18).[4] ‘Peace Operations and the United Nations: Preparing for the Next Century’, by Secretary-General of the United Nations Kofi Annan, in Conflict Resolution Monitor, Issue 1, Summer 1997, Bradford University (see
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