VII of the Charter, a limited duration, and their main goal is to restore and maintain international peace and security, the same objective as the United Nations (Charter, Article 1, §1).
From all branches of International Law, the IHL is considered to be the most theoretical and the most difficult norm to be implemented. At the time when there were no criminal tribunals to prosecute the offenders of IHL, this branch of law was more rhetorical than practical. Today this cannot be accepted anymore, especially concerning crimes that present threats to international peace and security, like terrorism.
It is likely that not all cases of terrorist may be brought to the International Criminal Court in The Hague, because many of them lack the requisite of most serious crimes of international concern. In these cases, a specific International or Internationalized Criminal Court is the solution for a fair, fast and impartial prosecution of terrorists.
Also, when the host country does not, or cannot, provide means for the International Criminal Court or similar Tribunals to fulfill the mandates (mainly arrest and citation of terrorists, but also Preliminary Investigations and Inquiries), the Blue Helmets may perform the task, when duly authorized in their mandates by the Security Council.
With the modern internalization of armed conflicts the International Humanitarian Law has become more difficult to be respected, by national military (claiming that it decreases battle efficiency) and rebel factions (due to the lack of discipline). Also, IHL is considered the branch of Law that has few means of implementation, and only among States (through treaties, conciliation, mediation and other diplomatic efforts).
The Trial of Major War Criminals in Nuremberg has declared, about the implementation of International Criminal Law, that international law imposes duty and liabilities upon individuals as well as upon States, and both could be punished for violations of international law. Crimes, international or not, are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.
All international entities must respect State Sovereignty. However, when this State does not meet its obligations to protect internationally recognized human rights (Libya, during the government of Muammar Kaddafi, and Syria, during the government of Bashar al-Assad, are two notorious cases of HR violations, which demanded a response from the international community), the Security Council or other competent entity may prosecute individuals from that State, disregarding the Sovereignty, in application of the principle Hominum causa omne jus constitutum est (All law is created for the benefit of human beings).
It is difficult to assemble a branch of consensual and theoretical law (International Humanitarian Law) with practical and coercive legal procedures (that are within the Criminal Law). In this context lies the main role of International Criminal Tribunals, punishing the violations of IHL, using doctrinal and abstract definitions to make concrete and coercive decisions, and in this way dissuading terrorism from happening again.
To be efficient, the decisions of International Criminal Courts must have:
- Dissuasion, because only a rigorous application of International Humanitarian Law can make warring parties respect it;
- Individual responsibility, in order to avoid collective guilt and ostracism by one ethnic or national group and the desire of vengeance, making conditions for national reconciliation;
- Search for the truth, so that history be written as much exact as possible, protecting the concerned people over revisionism, creating conditions for a durable peace.
Blue Helmets may work as an executive arm of International Criminal Tribunals, bringing terrorists to prosecution and trial, and also doing investigations, arrests, citations, intimations and other mandates drafted by the International Criminal Court, or other international criminal organs, when the mandate has expressly given them the power to prevent and repress crimes of international law, and the duty to work as the longa manus of International Criminal Courts or Tribunals.
Example: Due to the immunity given by Nigeria to Charles Taylor, and the repeated refusal to turn in to the Special Court in Sierra Lione, United Nations Mission in Liberia (UNIMIL)’s mandate was changed by SC Res. 1638 (2005), to “apprehend and detain former president Charles Taylor in the event of a return to Liberia and to transfer him or facilitate his transfer to Sierra Lione for prosecution before the Special Court for Sierra Lione and to keep the Liberian government, the Sierra Lionean Government and the Council fully informed”. He was arrested in March, 26th, 2006 (RAM, Sunil. The History of UN Peacekeeping Operations From Retrenchment to Resurgence, pg. 169).
Example: Jean-Pierre Bemba Gombo, former senator in the Democratic Republic of Congo, was arrested near Brussels by Belgian authorities, following an arrest warrant drafted by the International Criminal Court. He was arrested on May, 24th, 2008 (BBC News, 24 May 2008, ).
The examples given show that the main obstacle to prosecute violators of International Humanitarian Law is the absence of cooperation between the competent International Criminal Courts and some governments that do not follow arrest warrants for criminals in their jurisdiction. When there is no cooperation for arresting criminals, a Peace Operation would perform the task, since it has a civilian component capable to address the issue, and a military component to provide necessary means of security.
The exigency of justice is essential to make the absence of conflicts (negative peace) become a reconciled society (positive peace). Peacekeepers and ICC may work together for it.
7. THE UN CHARTER, PRINCIPLES AND ORGANS
The United Nations was created in 1945, with the signature and ratification of the Charter in San Francisco. The historical background of the creation of the UN System lies in the aftermath of World War II and the efforts of the League of Nations to make a peaceful mechanism to settle disputes among States.
The UN Charter disposes all duties and rights of Member States, its major principles and organs. Article 1 sets the main goals of the Organization, in order to prevent future generations from the scourge of war:
- Maintain international peace and security;
- Develop friendly relations among States;
- Achieve international cooperation in order to solve disputes of economic, social, intellectual or humanitarian issues;
- Develop and improve the respect of human rights and fundamental freedoms, with no distinction of race, gender, language or religion;
- Harmonize the efforts of Nations towards common ends.
In order to achieve its goals, the UN shall follow the principles announced in Article 2:
- Equal sovereignty of all its Members;
- Good faith to accomplish its obligations;
- Peaceful methods to settle disputes;
- Abstention to use force or the threat of force in international relations (i. e., war is no longer a valid continuation of international politics for other ways);
- Give support to any UN action according to the Charter;
- Abstention from assisting a State against which the UN has taken preventive or coercive measures;
- Non-Members States are demanded to take any needed measures for the maintenance of international peace and security;
- Non-intervention in affairs concerning the internal competence of States, except the coercive measures of Chapter VII.
The Charter bases the UN action in four main areas: peace and security, economic and social issues, the trusteeship system, and the judicial organ. Six organs were created to accomplish its goals: the General Assembly, the Security Council, the Social and Economic Council, the Trusteeship Council, the International Court of Justice and the Secretariat.
The first challenge of the UN System was to deal with the struggle between the two superpowers (characterized by their influence in international relations and the possession of great warfare capability, including nuclear weapons), the United States of America (USA) and the Union of Soviet Socialist Republics (USSR).
; This struggle was the Cold War, which lasted until 1991. During that time, threats to international peace and security could not have a response from the organ mainly concerned, the Security Council. The two superpowers used the power of veto to prevent the SC from analyzing and adopting measures of collective security (employment of armed forces and other coercive tools).
When conciliatory methods for the settlement of disputes do not work, or are not available (Chapter VI) and the collective security system of coercive action in cases of menace or breaches to peace are not available (Chapter VII), the solution was to create the alternative of peacekeeping, based in a “Chapter VI and a half” that uses both legal norms and powers.
The History of UN Peace Operations, from its beginning in 1948 to the present days, has already been exposed. Now it is time for a fourth step towards international peace and security, by including in multidimensional peacekeeping mission a counterterrorism capability, and also add responsibilities to other UN organs and agencies concerned.
7.1. THE GENERAL ASSEMBLY (GA)
The GA is the main deliberative organ, comprised of all UN Members. It can make recommendations to Member States or the Security Council on any questions related to the objectives of the Charter, exemption made when the CS is already examining the case, or has already taken a decision.
Thus, threats
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