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Many states contracted post WWII to set up the United Nations in order to settle disputes among nations; eliminate wars and maintain peace, order and cooperation amongst them. The Charter that was adopted set out the terms of that contract between states and identified the remit of the Security Council to implement these terms. Although the victors of WWII with the veto powers wanted to ensure that their activities were not shackled by real judicial scrutiny and thus the International Court of Justice was not given such authority, it remained true to say that at no place in the Charter was there any intention to give the Security Council any judicial authority. Furthermore, respecting the sovereignty of member states constituted the heart of the charter, which entailed that the Security Council was prevented from intervening in the internal affairs of any member state. To a large extent, these realties were maintained during the Cold War era.

However, following the fall of the Berlin Wall, which signalled the end of the Soviet Union and the Cold War, things started to change. The Security Council began slowly but steadily assuming powers that went beyond its mandate under the Charter. It started with interfering in the internal affairs of states under different excuses such as humanitarian intervention or spreading and supporting democracy. Such claims for intervention have no foundations under International Law. The Security Council was created to monitor relations between states and not the actions of individuals. The Security Council extended its breach of the Charter when it decided to take punitive measures against individuals in freezing their assets and imposing travel restrictions on them, and a quick look at the Charter reveals how the Security Council has breached its mandate. When the Security Council took actions against individuals, it breached the fundamental principle of Human Rights, but more importantly, it assumed a judiciary role in imposing punishment on individuals without giving them the right of defending themselves.

Such breaches of International Law are clearly manifested in the measure the Security Council took against Iraq between 1990 and 2003, when it passed resolutions that imposed genocide on a full nation without any guilt having been committed by its citizens. These measures paved the way for the invasion and occupation of Iraq, since by 2003 the world had become numb to the suffering of Iraqis after twelve years of acquiescing in genocide and crimes against humanity committed by the Security Council against the people of Iraq.[1] A new victim has been added this week when the Security Council added Ali Abdullah Salih, the ex-President of Yemen, to its black list freezing his assets and banning him from travel. I am not a defender of Salih, but I see the injustice in making such judgment on an individual, without guilt having been proven beyond reasonable doubt and without giving him the opportunity to defend himself against the alleged charge. The problem with this practice is that makes anyone, anywhere in the world subject to the Security Council wrath as all it needs is a decision by one powerful state in the Council to seek a resolution imposing such measures and no other veto member of the Council having an interest in blocking such request.

This chaotic state of affairs, in which International Law was being flouted by politicians, has been assisted by the judicial wisdom prevailing in the West. The judiciary in the US and the UK have long held the view that Security Council resolutions are not open to scrutiny. Such a view is odd to say the least coming from states in which the judiciary claim to uphold the rule of law. By allowing the Security Council resolutions to pass without any judicial review, it enables the Security Council, which is a political organization, to be above the law. One example is the judgment of Lord Hope in the case of (Al-Jedda v Secretary of State for Defence) where he ruled that on the enforceability of SC resolutions, the law in England has been that these resolutions are automatically enforced and not open to review by courts of law.[2] The argument in favour of such submission to the Security Council has been that under Article 103 of the Charter, UN Resolutions take precedence over any other obligation in the event of a conflict. However, what no judicial authority has so far advised us is what happens when the Security Council breaches International Law in its resolutions.

This opinion has found favour in the International Court of Justice (ICJ), which had been created theoretically to uphold the rule of law in international affairs. One example of its view is shown in its judgment in the case of (Libyan Arab Jamahiriya v. United Kingdom), where the ICJ held in that case that it could not proceed with a disputed case before it on the application of an international convention once the SC adopted a resolution in the matter.[3]

Such state of affairs means that the Security Council acts with impunity, which no other organization in international affairs enjoys.

I would not be surprised to discover that many international lawyers have considered this untenable state of affairs. But being thwarted by the ICJ and the legal precedents in the USA and the UK, few would have contemplated challenging it.

One relatively recent development in International Law may suggest that such a state of affairs may be about to change.  The European Court of Justice (ECJ) has made, what in my mind is the most revolutionary judgment since WWII in the case of Kadi (Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities).[4]

The strongest opinion in the case of Kadi was expressed by Advocate General Poiares Maduro where he said:

“The implication that the present case concerns a ‘political question’, in respect of which even the most humble degree of judicial interference would be inappropriate, is, in my view, untenable. The claim that a measure is necessary for the maintenance of international peace and security cannot operate so as to silence the general principles of Community law and deprive individuals of their fundamental rights.”

In short the ECJ has opened the gate for possible challenges to the legality of the Security Council resolution even if that is solely to check its compatibility with basic principles of Human Rights.

I hope that international lawyers would use this judgment to challenge actions like that taken against Salih, to further test the willingness of domestic courts in Europe to uphold the new principle made by the above ECJ’s judgment. It is time to stop the veto powers of the Security Council usurping International Law.

Abdul-Haq Al-Ani

13 November 2014