A reflection on innovations in the Security Council: the international tribunals, counterterrorism, and the Office of the Ombudsperson.

Author:Prost, Kimberly

Good afternoon, everyone. It's a real pleasure for me to be here at Case Western. I'd like to thank Professor Cover, my old friend, and long time friend Assistant Dean Scharf for inviting me and for the tremendous hospitality. I've had a terrific time already here in Cleveland. I'm going to go back to New York to promote Cleveland and Case Western.

It's always a great opportunity for me to have these occasions. The job that I currently occupy as Ombudsperson is a very lonely job and up until about eight months ago, I was on my own. I've been doing this just a little over three years. I had no one at all in terms of staff. I now have a legal officer. So this is a great opportunity for me to talk a bit about the work and the operations of the office in the context of the Council and also just to talk today. I'm going to speak a bit more broadly about the Security

Council and some of the innovations in the Security Council, including my office and the work of the tribunals.

I realized it's a very timely opportunity to speak about the Security Council. For anyone who is following international news in the press these days, a lot has been said about the Council--a lot not necessarily all positive. I think in times of difficulty for the Council, it is important to reflect, not just on the challenges--and there are many for this highly political body--but also to reflect on some of the innovations and successes of the Security Council. That is what I want to try and do today because it is an important body within the United Nations, and I don't think we can ever lose sight that this was a mechanism born of two catastrophic world wars in a time period when the world was very much in tatters. So I think it is important to bring that perspective, especially for the young people who are here today, because we can't lose sight of the role that the Council plays in a positive sense. So I'm going to speak a little bit about the two areas that I think represent some of the innovations and important innovations of the Council, and I'll tell you a little bit about the world of al-Qaida and the Ombudsperson.

The Security Council, as you all know, is the body of the United Nations, which, under the Charter, has the primary responsibility for dealing with threats to international peace and security. It is to identify and respond to those threats and has a full range of powers, from the ability for a pacific activity for settlement through the imposition of economic sanctions and general sanctions, which is something I will speak about, to military intervention. Since almost its inception, the Council has used its powers, both as accorded explicitly and in innovative ways.

In 1948, and it's something that all Canadians always speak to about the Council, we used the concept of the military powers to send observer missions to the Middle East and to Pakistan, which were the beginnings of the peacekeeping role that the U.N. still plays to this day all over the world. It is important to Canadians because Lester Pearson, who was one of our Prime Ministers, won the Nobel Peace Prize partially for his role in that activity in the starting of that program.

By the 1950s the Security Council had already invoked its military power with the intervention into the Korean crisis, which took place at that time. From early days it was using its sanction power in the context of the struggle in South Africa in reaction to the apartheid government of South Africa.

So, right from the start, the body was, I think, important and did play an active role in international matters. But it's really in the 1990s when there was, for our world, an unusual rapprochement-- politically, the end of the Cold War, and massive changes with the end of the Soviet Union and the transformation in that context--and the Council grew more active and quite bold in many ways. And in my view, the watershed moment for the Council came in the face of the brutal conflict in the former Yugoslavia: first Croatia, Bosnia and Herzegovina, Kosovo, and the former Yugoslav Republic of Macedonia.

There was a conflict that had the potential to destabilize the region and really was a significant threat to international peace and security. Perhaps it was because of the nature of the conflict, perhaps it was the history of that region and what it had represented in the context of the world wars, but for whatever reason the Council began to take some extraordinary steps. First, they sent a commission of experts in to look at the question, not so much of the broader questions of peace or resolution, but the questions of crimes--whether war crimes and crimes against humanity were being committed in the area. And in response to the report, which confirmed those activities, on the 25th of May, 1993, they adopted quite a historic resolution, Resolution 827, which overnight created the International Criminal Tribunal for the Former Yugoslavia, (1) on which I served for four years as a judge.

It was followed less than half a year later in 1994, in the face of the horrific genocide in Rwanda, by establishment of that tribunal. And the important thing to recognize here, and especially for young people whom I speak to about this, the tribunals have been in existence for quite awhile, so to some degree, people accept them as part of the landscape. But this was an extraordinary step by the Security Council, particularly given that nothing in the Charter-- nothing in Chapter VII--talks about establishing a court, and what the Council did was something that they tried to do at the time the Charter was written--create an international criminal body, which they were unsuccessful in doing. Overnight, it suddenly appeared.

The ramifications for international humanitarian law and international criminal law have been mammoth. I don't think anyone, not even the staunchest critics (and there are many) of the work of the tribunals, can detract from the fact that the tribunals have contributed an enormous amount of case law. These were the first tribunals post-Nuremberg and post-Tokyo to deal with individual accountability for crimes of the gravest nature, and we have that body of case law due to the action of the Council in creating the two tribunals.

Also important contributions to peace in those regions and to justice, and most significantly, one of the main impetuses, we had a window in the world when forces came together and allowed for the negotiation of the Rome Statute and the International Criminal Court. And in no small measure we have today an International Criminal Court because of the steps taken to create those two tribunals and what they showed the world about the possibilities of individual accountability in this context.

You will hear lots of discussion -that it's not the best time for international criminal justice--today. You'll hear lots of critiques of the International Criminal Court, but at the end of the day, I am a staunch believer who says the world is a much better place with a possibility of justice, with the possibilities that the International Criminal Court presents than without it. So that body of activity started by the Council's actions, I think, is one of the last century's, and into this century's, most important steps forward in terms of international humanitarian and criminal law.

It's also interesting: people forget the implications in terms of the Security Council. This was a pretty dramatic step that they took. The Tadic Court dealt with the question of whether the Council had the ability or the jurisdiction to take the action that they did. (2) It's not surprising that the judges of the Tribunal found that they were properly constituted, but it's still an important decision that reflected that the Council could take these kinds of innovative actions and successfully do so.

It was also a change in how the Security Council was interacting with states. At the time I was head of Canada's International Assistance Group. I woke up one morning to find that the Security Council had just said, in a binding way, that every country had to be able to cooperate with this Tribunal. This wasn't just about setting up a tribunal. Countries had to be able to turn people over and had to be able to turn evidence over.

Well, I'll tell you, I had a few nightmares about that issue because the legislation in Canada certainly permitted me to arrange for extradition to another state and arrange for the sharing of evidence with another state, but there was no capacity to compel someone to go to the Tribunal or to compel evidence. I must say that the Canadian efforts to change legislation, which every country had to undertake, took much longer than I was comfortable with. They enacted the legislation about two months after I left. I don't take that personally, but still it gives you a sense that this was the Security Council, in essence, starting to mold domestic law, in a way, and mold international cooperation, in a way.

They did something similar only once since, in my view, and that was in 2001 after the tragic events of 9/11 with Resolution 1373 (3) on counterterrorism, where the first paragraph of that resolution requires all states to have a terrorist financing offense. That was a remarkable action by the Security Council: again, directly implicating domestic law at that time in response to the threat of counter terrorism. So I cite those as examples of what I think are sort of positive driving steps by the Council changing, a bit, the way the Council interacts with states and certainly creating an important step forward in international criminal and international humanitarian law.

At the same time, moving into the world that I now occupy, it was business as usual for the Council in terms of its traditional powers of considering international threats and imposing various forms of sanctions and various forms...

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