Resolution 2699’s (2023) authorisation of the use of force: A cautious return to the Security Council’s Chapter VII authorisation model?

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On 2 October, the UN Security Council adopted its Resolution 2699 (2023) (13 votes in favour, two abstentions), authorising a multinational security mission to Haiti. The resolution comes one year after Haiti specifically requested such a mission, and shortly after UN Secretary-General Antonio Guterres said in August that a multinational deployment was needed to restore law and order in Haiti. The country has been ravaged by violent armed gangs, which have in recent months taken control of large parts of the capital, Port-au-Prince (see here). The multinational force, to be led by Kenya, will receive significant financial backing from the United States. Although some of the initiative behind the deployment seems to have taken place outside of Security Council discussions, its authorisation under Chapter VII cautiously represents a return to the Council’s traditional Chapter VII authorisation model (delegated enforcement action).

There is little doubt that the Security Council is plagued by periods of paralysis where individual member states’ interests, notably those of the permanent five, triumph over its task of collective security. Its most recent paralysis was triggered by the Russian invasion of Ukraine, although the Security Council has endured uneasy tensions in particular since the outbreak of the Syrian Civil War. In 2022, Russia vetoed four resolutions (two of those concerned the situation in Ukraine – see here and here). Prior to the invasion of Ukraine, the Security Council registered five vetoes from Russia in 2017 (most dealing with the situation of chemical weapons in Syria). The only period of greater paralysis and higher use of the veto was during the Cold War, when between five to 10 vetoes could be expected in any given year (see Blokker, 53, 55). While the frequency of veto use does not accurately reflect the Security Council’s effectiveness, the high use of the veto corresponds to periods of armed conflict or wider threats to international peace and security when Security Council members have had considerable conflicts of interest.

Despite periodic bouts of paralysis, the Security Council’s authorisation of the use of force by states, groups of states and international organisations, although exceptional, still occurs. From 1990 onward, the Security Council has made a habit of explicitly employing the authorisation model, whereby it authorises states and groups of states under a Chapter VII mandate to use force (see Blokker, p. 543-544). These resolutions, broadly speaking, determine a situation a threat to international peace and security, invoke Chapter VII, and employ the corresponding ‘authorises’ and ‘all necessary means/measures’ language (see Security Council Report).

However, the last decade of unease among the permanent members seems to have given rise to a series of curious resolutions wherein the Security Council has either avoided or been unable to clearly authorise force or establish multinational deployments.

It is worth recalling that the last time the Security Council definitively authorised the use of force was nearly a decade ago. In 2015, the Security Council adopted Resolution 2240 (2015), authorising the use of force by member states to counter migrant smuggling and human trafficking in the Mediterranean. Although the Security Council’s use of force code ‘by all necessary means/measures’ does not appear in that resolution, its authorisation of force was evident from Council deliberations (see the statements by Chad, China, Jordan, and Venezuela). The resolution was also adopted under Chapter VII and ‘authorised’ the use of ‘measures commensurate to the specific circumstances’ (see para. 10) – phrasing previously interpreted as authorising ‘minimum’ uses of force (usually for the enforcement of embargoes, see Resolution 665 (1990), para 1; Resolution 875 (1993), para 1, on the situation in Haiti itself; and Resolution 787 (1992), para 12).

Since the turn of the century, the Security Council has also authorised the use of force in a number of deployments and in at least a dozen situations. These include, for example, operations by regional and international forces, such as the Interim Emergency Multinational Force in Bunia (Resolution 1484 (2003), para 4); Eufor R.D. Congo (Resolution 1671 (2006), para 8); the EU operations in Chad and the CAR (Resolution 1778 (2007), para 6(a) and Resolution 2134 (2014), paras 43, 44) and the African-led International Support Mission in Mali (AFISMA) (Resolution 2085 (2012), para 9). Historically, the Security Council has also authorised force to member states on a number of prior occasions: during the Korean War (Resolution 83 (1950)); the Gulf War (Resolution 678 (1990), para 2); the Yugoslav Wars; the establishment of a multinational force in Iraq (Resolution 1511 (2003), para 13); and the First Libyan Civil War (Resolution 1973 (2011), paras 4, 8) (see the comprehensive list by Sievers and Daws who however also include the more recent Resolution 2298 (2016)), as well as Resolution 2628 (2022) concerning AMISOM’s transition to ATMIS).

Examples of clear and explicit authorisation aside, the Security Council has instead in the last decade adopted some far more ambiguous resolutions relating to force. Most notable of these remains Resolution 2249 (2015), in which the Security Council ‘call[ed] upon’ states to ‘take all necessary measures’ to ‘redouble and coordinate their efforts to prevent and suppress terrorist acts’ committed by ISIL. Although the resolution’s terms have been dubbed constructively ambiguous, it did not authorise any use of force (but did give rise to significant debate) (see Akande and Milanovic). Instead, the resolution was interpreted as acknowledging alternative legal bases for ongoing actions against ISIL and even encouraging such actions (Buchan and Tsagourias, p. 145; Deeks).

Another yet often overlooked example is that of Resolution 2337 (2017), in which the Security Council ‘welcomed’ the decisions reached by ECOWAS at its Fiftieth Ordinary Session. Among these decisions included the ECOWAS resolve to ‘use all necessary actions to enforce the 1st December 2016 election’ results in The Gambia. Although neither determining the situation in The Gambia as a threat to international peace and security nor invoking Chapter VII, the resolution implicitly seemed to have endorsed the ECOWAS threat of force (see Helal). Moreover, the language the Security Council employed when it expressed its full support to ECOWAS to ensure, by political means first, the outcome of the election, remains dubious. It is no wonder the resolution was dubbed ‘non-prohibitive non-authorisation’ (see Nussberger here and here).

These resolutions, although only a fraction of Security Council decisions, do not stand alone considering broader practice which similarly acknowledges alternative legal bases for resorting to force without actually authorising force (see Resolutions 1368 (2001) and 1373 (2001) which reaffirmed the inherent right of self-defence). Collectively considered, the question arises as to whether the Security Council in more recent times abdicates its primary responsibility over matters of international peace and security. This may indeed be a consequence of the political nature of the Council and its veto wielding permanent members.

The adoption of Resolution 2699 (2023) however seems to represent, albeit cautiously, the Security Council’s return to the authorisation model, where states and groups of states are authorised to use force under multinational deployments with a Security Council approved Chapter VII mandate. This authorisation model also includes explicit time limits on deployments and corresponding reporting requirements. It is worth recalling that this was precisely the kind of authorisation given to states almost three decades ago when the Security Council authorised the formation of a multinational force and authorised it to use force to facilitate the departure of the military leadership in Haiti (see Resolution 940 (1994), para 4).

To the end that it should be mentioned, Resolution 2699 (2023) therefore contains the traditional criteria understood to constitute an authorising resolution. It determines ‘the situation in Haiti continues to constitute a threat to international peace and security and to the stability in the region’; invokes Chapter VII of the UN Charter; authorises the formation and deployment of a Multidimensional Security Support mission (para 1), and authorises member states participating in the mission to ‘take all necessary measures to fulfil its mandate…’ (para 5). Moreover, some often included checks and balances when authorising force are found within the resolution’s provisions, including the explicit term of deployment to 12 months (para 1), and a request for the deployment to report on the implementation of the resolution every three months once it becomes operational.

Equally worth noting is that the ‘all necessary measures’ authorisation is immediately qualified with reference to strict adherence to international law, including international human rights law. This is not the first time the Security Council qualifies its authorisation of force in such a manner. In Resolution 2240 (2015), the authorisation to use ‘all measures commensurate to the specific circumstances’ to confront migrant smugglers and human traffickers was qualified with ‘full compliance with international human rights law, as applicable…’ (para 10). Although not all authorising resolutions contain this qualification, it would seem the Security Council only qualifies its authorisations in situations where human rights are of a particular concern. In Resolution 2240 (2015), that concern was authorising Chapter VII measures to deal with what was a considerable humanitarian crisis (see for example criticism of the resolution by Venezuela in S.PV.7531, p. 4-5). The qualification in Resolution 2699 (2023) seems to stem from concerns that Kenya’s mandate in Haiti is one of policing, therefore requiring interaction with the civilian population. This may in turn lead to the potential for human rights violations in Haiti, considering Kenya’s own record of human rights violations domestically (see here, here and here). Beyond the human rights qualification itself, which has been welcomed by a number of Council members, the resolution also requires the mission to establish an oversight mechanism dedicated to preventing, investigating, addressing and publicly reporting on human rights abuses should they occur (see para 10).

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Nicolas Boeglin says

October 12, 2023

Dear Professor Svicevic

Many thanks for this extremely interesting article and the very valuable information provided.

In addition to the resolutions vetoed in recent years, I would like to refer you to UNSC discussion that took place on 18th December, 2017 when a resolution tabled by Egypt obtained the following result: 14 votes in favour and only one vote against - US, as usual when it feels obliged to protect Israel - (see p. 3 at:

https://documents-dds-ny.un.org/doc/UNDOC/PRO/N17/446/59/PDF/N1744659.pdf?OpenElement

A very same result of 14 in favor and one against (US) took place on another issue related to Israel (illegal Israel´s colonisation) in 2011 during the UNSC ´s session of February 18, 2011 (see document at:

https://documents-dds-ny.un.org/doc/UNDOC/PRO/N11/238/45/PDF/N1123845.pdf?OpenElement

By the way, if you or one of our colleagues have in mind an analysis, article of US´s systematic use of veto at UNSC concerning Israel (with the only exception allowing the adoption of UNSC Resolution 2334 in Dec. 2016), please feel free to share it.

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

October 16, 2023

Dear Professor Svicevic

May I add also to the two US vetoes mentionned before the discussions that took place on JUne 1st, 2018 at UNSC with a US veto concerning a draft resolution condemning Israel´s disproportionate use of force against Palestinian protests in May 2018.
The draft was vetoed by US (agianst) and obtained abtentions of
Ethiopia, Netherlands, Poland, and UK.
A few minutes after, another draft was proposed by US and obtained only 1 vote in favour (US), 3 against and 11 abstentions (details at p. 8 at:

https://documents-dds-ny.un.org/doc/UNDOC/PRO/N18/167/10/PDF/N1816710.pdf?OpenElement

By the way if you or some colleagues at EJIL Talk have in mind another situation where US are the proponent of a draft at UNSC obtaining only one single vote in favour (the vote of the US), please let me know.

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

October 18, 2023

Dear professor Svicevic

May I add the also veto of US registered today at UNSC (Oct 18, 2023), related to a draft resolution tabled by Brazil on the situation in Gaza: 12 votes in favour, 2 abstentions (Russia and UK), and 1 single vote against (US).

Again, if you or one of our colleagues at EJIL Talk has in mind an analysis, article, monography on US´s systematic use of veto at UNSC concerning Israel (with the only exception allowing the adoption of UNSC Resolution 2334 in Dec. 2016), please feel free to share it.

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

October 19, 2023

Dear Professor Svicevic

May I refer you to this very modest note I wrote on US´s deep solitude at UNSC when it feels obliged to protect Israel´s interests:

https://derechointernacionalcr.blogspot.com/2023/10/gaza-israel-estados-unidos-veta.html

By the way if you or some of our colleagues know where is posted the Brazilian draft vetoed yesterday at UNSC, please feel free to send the link. I really wonder what justified US veto in the exact wording accorded by Brazilian diplomats in NY and theirs colleagues.

Sincerely yours

Nicolas Boeglin

Nicolas Boeglin says

October 20, 2023

Dear Professor Svicevic

Thanks to a diplomat based in NY, I have reached the text of the Brazilian draft vetoed by US last Oct 18 at UNSC.

The text is available in English at the very end of my note (written in French, désolé), available:

https://derechointernacionalcr.blogspot.com/2023/10/gaza-israel-les-etats-unis-opposent.html

If you or some of our colleagues at Ejil Talk have posted a commentary or an analysis on how US found an argument to object this draft and veto it, please feel free to share it.

Even the France MFA Minister was convinced the draft has been adopted...!

Yours sincerely

Nicolas Boeglin