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UNITED NATIONS RESPONSIBILITY TO THIRD PARTIES: INTRODUCTION
I. THE MIRROR OF LEGAL PERSONALITY, POWER TO DUTY: A CALL TO REASON
Despite years of debate, strong speeches and pleas to the international community, the fundamental question still remains; can the United Nations be held responsible to third parties injured in the Rwandan genocide for its actions or its failure to act? I say absolutely, yes. It can and it must. I say the United Nations has a duty to stand to threats of mass violence to the God given right of life of the peoples of the world. I believe there is no right greater than that of ones life, for all other rights flow by necessity only after this one unalterable truism. Man is not man without life.
Consequently, if a man can act, and by his actions harms another, can we, as men say, within the natural exceptions of law, that he should not be punished? Of course we can’t, for we are nothing more than the harmed, nor the actor who caused that harm. We are the people of the world who by happenstance at any point may trade places with those others. For the right to punish we need only look to any of a multitude of penal codes, torts laws, the common properties of the general principles of law, and jus cogens norms. When the actions of a men harm a multitude of the people of the free world, the free world demands an accounting. One need only look so far as The Nuremburg Trials of World War II for evidence of the world passing judgment on the acts of the officials of an aggressor nation.
Can the nations of our world, when faced with a warlike state, stand against the threat of violence and hold the aggressor nation to account for the injured? Of course they can. So has it been done for centuries, since the birth of law, by all the governments of the world, throughout human history. Again, we need look only as far as World War Two and the post war division of Germany to see just how far those powers can go to hold a nation to account.
So what is the difference inherent to the United Nations that makes it able to avoid scrutiny for the impact of its actions and miscalculations? The United Nations as an organization cannot hold a gun, but just as a person or state, it can place guns in the hands of thousands. It, just as a state would, can place those thousands into the middle of a volatile and threatening war. It can drop our sons and daughters, fathers, uncles and friends into a holocaust. It can cause the nations of the world to bend to its will and change all our future history. It has, by its own declaration of its powers, intervened in Rwanda, Kosovo, Somalia, The Congo, Zaire, Burundi, and many more nations around the globe. So why should we, the people and the nations of the world, not hold to account an organization that with one sweep of an arm might destroy so many lives?
We must never forget that while this organization is made of nations, men represent those nations. Men as fallible and violent, gracious and kind, devout and divided, who create the fabric of what our world will become. Men apply powers through the tool that is The United Nations. In all walks of life, men are held to account for their actions. When they act within an official capacity of their state, that state is held accountable. So now, when acting for an international organization, one with the massive power of the combined nations of the world behind it, how can we say responsibility is not to be assigned to the organization as the instrument of the injury?
Then how do we hold the United Nations responsible? Where do we find the rules by which we hold the U.N. or any other international organization responsible? The Courts of the world and legal professionals say we should look to the jus cogens norms and the commonality of the criminal laws of the constituent countries. I believe we needn’t look to principles outside the United Nations itself for justification to hold the organization responsible for its actions. We need simply to look to the same instrument that has given the United Nations the power it has now. Look to its constitution document. Then look to the powers that the organization has taken for itself through its member states acquiescence. Look to the implied powers that have grown in scope nearly unchecked for decades. The power of the United Nations has even been claimed to be pseudo-supranational, checked only by the states that make up its constituency. But since when has the allocation of powers meant denial of the concurrent responsibility for the damage caused by implementation of those powers? If these powers can extend beyond even the signatories to the Charter, it is unconscionable to believe those without the U.N. possess no recourse for recovery. If those outside the U.N. possess this right, then those inside it must also, checked, of course, by their own responsibility.
The Reparations Case made it clear that the United Nations has legal personality, imbuing it with power and duty to take action where the nations that constitute the Security Council see fit. But while embracing the power as granted, the United Nations and its member states seem to have denied the concomitant duty. The United States Supreme Court decision, by which the U.N. has based its justification for the seizure of immense power, came with that one immutable imperative. By the very mention of the word “duty”, the court bound the U.N. to act to stop violations that would bring into effect a risk to the people and nations under the mantle of the UN.
Chapter VII of the U.N. Charter tells us that the U.N. has power to act for the Peace and Security of our world. While extolling the virtues of peace and security the U.N. has grown by pulling more and more power unto itself. It did not blanch at the acquisition of these powers. It has barely second-guessed itself in doing so. It has even gone so far as to claim that it is above the International Laws of War; that it should be able to pick and choose which laws are to be attributed to itself given the situation into which it has maneuvered. While the courts of the world deny this, the U.N. has stood firm to say that it should only be true to the “spirit” of these laws that bind every single state and institution of the world. Should one believe that the parallel duty, so emphatically placed on the United Nations in the monumental judgments of the world’s courts and defined in the U.N. Charter itself, pertains only to the moral compass of the U.N.? I say it cannot be only the beneficial aspect of power that binds the nations to the U.N. but the honorable duty that binds the U.N. to those same nations.
I believe in an expansion of duty; that the U.N. is not only bound to action against illegal aggression, but that in that action, it be bound by a code of honor that includes accepted norms of international conduct and responsibility. To do less will only prove and expand the distrust of the nations presently contentious with the actions of the U.N. The U.N. should return to the beacon of hope it was when instituted after the Second World War. It should be seen as virtuous and brave and should never again be doubted for its fairness and justice. As U.N. peacekeeping missions move from one failure to the next, followed by sorrowful platitudes and promises to improve “next time”, the world doubts its commitment and honor, leading to the continued weakening of the U.N. in the eyes of the nations of the world. To lose that support is the first death knell of any international organization.
Therefore, the aforementioned duty should not only be called upon to act in defense of the battered and torn of this world but also to apply the requisite responsibility those actions entail. It cannot be true that allocation of such a solemn power, which is defined by the duty to act against a foreseen or present genocide, would forestall the logically attached responsibility for not, in fact, acting decisively to stop it. Simply put, by accepting power, the U.N. has accepted the duty, and so has accepted the responsibility for that duty. Perhaps the United States most famous soldier, General MacArthur, had this to say about the sacred duty of the soldier: “The soldier, be he friend or foe, is charged with the protection of the weak and unarmed, It is the very essence and reason for his being. When he violates that sacred trust, he not only profanes his entire cult but threatens the very fabric of international society. The traditions of fighting men are long and honorable. They are based on the noblest of human traits – sacrifice.”1 The U.N. cannot escape this sacred duty by calling their soldier’s peacekeepers or police, for they are charged with the same duty, the protection of the weak and unarmed. “Suppose a large number of police officers on duty on a street corner in Manhattan are listening to a soap-box orator... An angry crowd approaches the speaker, but the police do nothing. They turn a blind eye, letting the crowd beat and silence the speaker. …I think no one would have trouble saying that the police’s inaction constituted a form of action and that the speaker… …could seek damages against the police.”2
“We are a nation of laws, not men,” the old adage goes. When we look outside our borders to the United Nations, can we say the same?
1. Ralph Franklin Keeling. Gruesome Harvest, The Costly Attempt To Exterminate The People of Germany, (1947), p. 56.
2. Owen M. Fiss. The Irony of Free Speech, (1996), p. 62.
Despite years of debate, strong speeches and pleas to the international community, the fundamental question still remains; can the United Nations be held responsible to third parties injured in the Rwandan genocide for its actions or its failure to act? I say absolutely, yes. It can and it must. I say the United Nations has a duty to stand to threats of mass violence to the God given right of life of the peoples of the world. I believe there is no right greater than that of ones life, for all other rights flow by necessity only after this one unalterable truism. Man is not man without life.
Consequently, if a man can act, and by his actions harms another, can we, as men say, within the natural exceptions of law, that he should not be punished? Of course we can’t, for we are nothing more than the harmed, nor the actor who caused that harm. We are the people of the world who by happenstance at any point may trade places with those others. For the right to punish we need only look to any of a multitude of penal codes, torts laws, the common properties of the general principles of law, and jus cogens norms. When the actions of a men harm a multitude of the people of the free world, the free world demands an accounting. One need only look so far as The Nuremburg Trials of World War II for evidence of the world passing judgment on the acts of the officials of an aggressor nation.
Can the nations of our world, when faced with a warlike state, stand against the threat of violence and hold the aggressor nation to account for the injured? Of course they can. So has it been done for centuries, since the birth of law, by all the governments of the world, throughout human history. Again, we need look only as far as World War Two and the post war division of Germany to see just how far those powers can go to hold a nation to account.
So what is the difference inherent to the United Nations that makes it able to avoid scrutiny for the impact of its actions and miscalculations? The United Nations as an organization cannot hold a gun, but just as a person or state, it can place guns in the hands of thousands. It, just as a state would, can place those thousands into the middle of a volatile and threatening war. It can drop our sons and daughters, fathers, uncles and friends into a holocaust. It can cause the nations of the world to bend to its will and change all our future history. It has, by its own declaration of its powers, intervened in Rwanda, Kosovo, Somalia, The Congo, Zaire, Burundi, and many more nations around the globe. So why should we, the people and the nations of the world, not hold to account an organization that with one sweep of an arm might destroy so many lives?
We must never forget that while this organization is made of nations, men represent those nations. Men as fallible and violent, gracious and kind, devout and divided, who create the fabric of what our world will become. Men apply powers through the tool that is The United Nations. In all walks of life, men are held to account for their actions. When they act within an official capacity of their state, that state is held accountable. So now, when acting for an international organization, one with the massive power of the combined nations of the world behind it, how can we say responsibility is not to be assigned to the organization as the instrument of the injury?
Then how do we hold the United Nations responsible? Where do we find the rules by which we hold the U.N. or any other international organization responsible? The Courts of the world and legal professionals say we should look to the jus cogens norms and the commonality of the criminal laws of the constituent countries. I believe we needn’t look to principles outside the United Nations itself for justification to hold the organization responsible for its actions. We need simply to look to the same instrument that has given the United Nations the power it has now. Look to its constitution document. Then look to the powers that the organization has taken for itself through its member states acquiescence. Look to the implied powers that have grown in scope nearly unchecked for decades. The power of the United Nations has even been claimed to be pseudo-supranational, checked only by the states that make up its constituency. But since when has the allocation of powers meant denial of the concurrent responsibility for the damage caused by implementation of those powers? If these powers can extend beyond even the signatories to the Charter, it is unconscionable to believe those without the U.N. possess no recourse for recovery. If those outside the U.N. possess this right, then those inside it must also, checked, of course, by their own responsibility.
The Reparations Case made it clear that the United Nations has legal personality, imbuing it with power and duty to take action where the nations that constitute the Security Council see fit. But while embracing the power as granted, the United Nations and its member states seem to have denied the concomitant duty. The United States Supreme Court decision, by which the U.N. has based its justification for the seizure of immense power, came with that one immutable imperative. By the very mention of the word “duty”, the court bound the U.N. to act to stop violations that would bring into effect a risk to the people and nations under the mantle of the UN.
Chapter VII of the U.N. Charter tells us that the U.N. has power to act for the Peace and Security of our world. While extolling the virtues of peace and security the U.N. has grown by pulling more and more power unto itself. It did not blanch at the acquisition of these powers. It has barely second-guessed itself in doing so. It has even gone so far as to claim that it is above the International Laws of War; that it should be able to pick and choose which laws are to be attributed to itself given the situation into which it has maneuvered. While the courts of the world deny this, the U.N. has stood firm to say that it should only be true to the “spirit” of these laws that bind every single state and institution of the world. Should one believe that the parallel duty, so emphatically placed on the United Nations in the monumental judgments of the world’s courts and defined in the U.N. Charter itself, pertains only to the moral compass of the U.N.? I say it cannot be only the beneficial aspect of power that binds the nations to the U.N. but the honorable duty that binds the U.N. to those same nations.
I believe in an expansion of duty; that the U.N. is not only bound to action against illegal aggression, but that in that action, it be bound by a code of honor that includes accepted norms of international conduct and responsibility. To do less will only prove and expand the distrust of the nations presently contentious with the actions of the U.N. The U.N. should return to the beacon of hope it was when instituted after the Second World War. It should be seen as virtuous and brave and should never again be doubted for its fairness and justice. As U.N. peacekeeping missions move from one failure to the next, followed by sorrowful platitudes and promises to improve “next time”, the world doubts its commitment and honor, leading to the continued weakening of the U.N. in the eyes of the nations of the world. To lose that support is the first death knell of any international organization.
Therefore, the aforementioned duty should not only be called upon to act in defense of the battered and torn of this world but also to apply the requisite responsibility those actions entail. It cannot be true that allocation of such a solemn power, which is defined by the duty to act against a foreseen or present genocide, would forestall the logically attached responsibility for not, in fact, acting decisively to stop it. Simply put, by accepting power, the U.N. has accepted the duty, and so has accepted the responsibility for that duty. Perhaps the United States most famous soldier, General MacArthur, had this to say about the sacred duty of the soldier: “The soldier, be he friend or foe, is charged with the protection of the weak and unarmed, It is the very essence and reason for his being. When he violates that sacred trust, he not only profanes his entire cult but threatens the very fabric of international society. The traditions of fighting men are long and honorable. They are based on the noblest of human traits – sacrifice.”1 The U.N. cannot escape this sacred duty by calling their soldier’s peacekeepers or police, for they are charged with the same duty, the protection of the weak and unarmed. “Suppose a large number of police officers on duty on a street corner in Manhattan are listening to a soap-box orator... An angry crowd approaches the speaker, but the police do nothing. They turn a blind eye, letting the crowd beat and silence the speaker. …I think no one would have trouble saying that the police’s inaction constituted a form of action and that the speaker… …could seek damages against the police.”2
“We are a nation of laws, not men,” the old adage goes. When we look outside our borders to the United Nations, can we say the same?
1. Ralph Franklin Keeling. Gruesome Harvest, The Costly Attempt To Exterminate The People of Germany, (1947), p. 56.
2. Owen M. Fiss. The Irony of Free Speech, (1996), p. 62.
5 Comments
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Comment by Ron Krate on May 5, 2008 at 4:40pm
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Very well reasoned Chris! As of last week, I finally came to wonder if the UN can ever become a body that can be formidable,efficacious, for a host of reasons, including the nature of the UN and of the world, at least as of this reply.
Thanks for this thoughtful piece.
Ron Krate
International professors Project
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Comment by Mohamed Ali Taruri on May 6, 2008 at 12:49am -
I think the foundation of UN was rooted to get peace in the world, but we see that the UN hasnot done well the problems in many countries like my country somalia.their plan take time and with no resuts. they only have to say words instead of actions.
cheers
Mohamed Ali
Somalia
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Comment by Lynn M Fraser on May 6, 2008 at 10:50am
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It is complicated because the member states would have to agree to be held responsible for activities within their state, and as we all know, sovereign states don't like anyone telling them what to do ... or not. The concept of the international community telling a government it must assume responsibility/liability for its bad acts is fairly new historically, and the success of it is sketchy. I agree with your theory, but I don't believe the UN, at this point in time, has the authority to do a lot beyond conciliation or mediation efforts.
Lynn Fraser
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I agree with Lynn.. I see the UN as a player with less to be realistically expected of it for the foreseeable future: plus, must add they have quite an impressive corruption record, most of it partially hidden.
Good Discussion,
ron Krate
International Professors Project
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Comment by Natalya Pak on June 4, 2008 at 12:41pm -
Hi Chris,
I liked your idea and share your view. Indeed the organization which is entrusted to maintain peace and security in the world has the responsibility to act/react (for example in cases of humanitarian crises), and if it fails to do so, it should be held responsible. But as practice shows its peacekeeping operations depend of the will of nations, especially those who have veto power in the UN SC and there is no way (legal) to hold it responsible for its failure to act....
still going to read other parts of your work :)
best,
Natalya
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