SEMINAR
THE HAGUE: “LEGAL CAPITAL OF THE WORLD”
THE PEACE PALACE,  24 February 2005


Hassen FODHA
Director - RUNIC



Your Excellencies, Mr. Mayor, Ladies and Gentlemen,

It is with great pleasure that I embrace the opportunity of informing this distinguished audience, on the findings of the Report of the Secretary-General’s High Level Panel on Threats, Challenges and Change. I could not imagine a better place than the Peace Palace to elaborate on this report which core argument is the need for a comprehensive system of collective security, one that tackles both new and old threats and addresses the security concerns of all states, rich and poor, weak and strong. For the UN the only possible way to deal with these problems is by looking at their root causes and addressing the needs that constitute these causes pro-actively. This is mirrored in the programmatic aspects of the current reforms undertaken by the United Nations.

These reforms want to provide the framework for the implementation of the Millennium Declaration that emerged from the 2000 Millennium Summit and for achieving the international community’s commitment of the Millennium Development Goals (MDG’s) by 2015.

In order to realize this worldwide program and strengthen the UN accordingly, the Secretary-General has thus far commissioned the Millennium Project to assess progress towards the MDG’s. The High Level Panel was set the daunting task of delivering an assessment of the current threats to international peace and security; to evaluate how well our existing policies and institutions have done in addressing those threats; and to recommend ways of strengthening the United Nations to provide collective security for the twenty-first century. The environment in which the work had to be done reflected the problems at hand that the Secretary-General described in his address to the General Assembly in 2003 as a fork in the road for the United Nations and its Member States.

The United Nations could rise to the challenge of meeting new threats or it could risk erosion in the face of mounting discord between States and unilateral action by them.

Here, at the seat of international law, we might begin by asking ourselves what kind of collective security system we as an international community want? Do we wish to narrow the concept of security down to the absence of the threat of violence? A definition, that has been broadly used since 9/11 and the consequent war on terrorism. Or do we endorse, as the High Level Panel convincingly argues, the need for an inclusive and positive understanding of human security, which is issued by the basic assumption that security, freedom and economic development are intrinsically interconnected.

Terrorism is a serious matter. But it must be kept in its proper perspective. It is not a global causus belli. It is, by and large a criminal matter that can and should be dealt with through international cooperation among police and judicial authorities. Nevertheless, we believe there is a particular value in achieving a consensus definition within the General Assembly, given its unique legitimacy in normative terms; it should rapidly complete negotiations on a comprehensive convention on terrorism. It is in this perspective that the High Level Panel provided us with a definition of terrorism, which should include the following elements:

1.    The recognition that the state use of force against civilians is regulated by the Geneva Conventions and other instruments, and if the use of force is of sufficient scale, constitutes a war crime or a crime against humanity.

2.    The restatement that acts under the 12 preceding anti-terrorism conventions are terrorism, and a declaration that they are a crime under international law. Furthermore a restatement that terrorism in time of armed conflict is prohibited by the Geneva Conventions and Protocols.

3.    The definition should contain references to the definitions of the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council Resolution 1566 (2004).

4.    The description of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Convention and the Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, or compel to a Government or an international organization to do or to abstain from doing any act.”    

Defining terrorism keeps it in prospective and gives us the opportunity to address prevention issues in their proper right. Because counterterrorism is not a struggle between uni- and multilateralism, and the use of force is not the centre of attention, it is a last resort.

The High Level Panel identified six clusters of threats with which the world should be concerned now and in the decades ahead:

➢    Poverty, infectious disease and environmental degradation
➢    War between States
➢    Violence within States, including civil wars, large-scale human rights abuses and genocide
➢    Nuclear, radiological, chemical and biological weapons
➢    Terrorism as I already mentioned; and
➢    Transnational organized crime

The way to deal with these problems is by looking at their root causes and addressing the needs that constitute these causes pro-actively. This train of thought enables us to bring together the prevention policies of the High Level Panel Report with the objectives of the Millennium Development Project by reframing them in the perspective of security.
 
To guarantee the right of people to be free from these threats is what underlies the institutional and policy changes that are proposed by the High Level Panel. The concept of human security not only enables us to question the false tension between security and development on the contrary, it has as its central assumption their mutual dependency. Where underdevelopment has become dangerous, it offers us a useful framework for analyses, policy development and programming. Its central message that development cannot succeed without peace is clearly illustrated by the turn of events in Afghanistan, Southern Sudan and the DRC. These areas of conflict demonstrate that it is difficult for development programmes to have a lasting impact if societies are plagued by civil war, organized crime or warlords. On the other hand, (national and international) security is scarcely possible without development. Fragile societies potentially threaten international security in a time when borders are increasingly becoming porous.

Biological security must be at the forefront of prevention. The international response to HIV/AIDS was shockingly late and shamefully ill-resourced. But we need to do more. Our global public health system has deteriorated and is ill-equipped to protect us against existing and emerging deadly infectious diseases. We think it is crucial to initiate a major project to build public health capacity in the developing world. This will not only have direct benefits by preventing disease in the developing world itself, but will also provide the basis for an effective global defense against bioterrorism and overwhelming natural outbreaks of infectious diseases like for example SARS. Furthermore the investment in public health capacity will not only tackle HIV/AIDS, but also addresses other Millennium Development Goals such as the reduction of child mortality, maternal mortality and the spread of malaria and other major diseases.

Assessments by the Millennium Project indicate that, while some regions of the world are on track to reduce by half the proportion of people living on less than one dollar per day, other regions have regressed. In the area of reducing child mortality and increasing primary education enrolment, the world continues to lag behind its commitments. Little has been done to address the gender aspects of the Millennium Development Goals. Although poor and rich countries have pledged to take action to address social and economic threats, pledges have not materialized into resources and actions and long-term commitments are scant. All States must recommit themselves to the goals of eradicating poverty, achieving sustained economic growth and promoting sustainable development.

Preventing wars between and within States. It is in the collective interest of all to prevent wars in and between States. To address this issue, we need real improvement in our preventive diplomacy and mediation capacity. More effort could and should be made in this area, particularly through the appointment of skilled, experienced and regionally knowledgeable envoys, mediators and special representatives, who can make as important a contribution to conflict prevention as they do to conflict resolution.

Today, security concerns are no longer encompassed solely by the danger of conventional interstate war. The threat of an excluded South fomenting international instability through, conflict, criminal activity and terrorism is now part of a new security framework. This is why we need to work together with regional organizations in developing strong norms to protect governments from unconstitutional overthrow, and protect minority rights. In addition to that we have to find new ways of regulating the management of natural resources, competition for which often fuels conflict.
 
Preventing the spread and use of nuclear, biological and chemical weapons is essential if we are to have a more secure world. This means first of all doing better at reducing demand for these weapons, secondly curbing the supply of weapons materials, thirdly the enforcement by the Security Council of credible shared information and analysis and fourthly the national and international civilian and public health defense. That means living up to existing treaty commitments, including the negotiations towards disarmament and enforcing international agreements. We stress the importance of negotiations for a new arrangement which would enable the International Atomic Energy Agency to act as a guarantor for the supply of fissile material to civilian nuclear users at market rates, and it calls on governments for to establish a voluntary time-limited moratorium on the construction of new facilities of uranium enrichment and reprocessing, matched by a guarantee of the supply of fissile materials by present suppliers.

The spread of transnational crime increases the risk of all the other risks. Terrorists use organized criminal groups to move money, men and materials around the globe. The core activity of the criminal organizations is narcotics trafficking ($300 - $500 billion a year). In some regions, the huge profits generated through this activity, even rivals some countries GDP. Governments and rebels sell natural resources through criminal groups to finance wars. States’ capacity to establish the rule of law is weakened by corruption. There is growing evidence of a nexus between terrorist groups’ financing and opium profits, most visibly in Afghanistan. Combating organized crime requires better international regulatory frameworks and extended efforts in State building capacity. This should make it possible for States to exercise their sovereign rights and responsibilities.

This brings me to the chapter of the response to threats. Of course, prevention sometimes fails. At times, threats will have to be met by military means. Two framework questions have to be addressed here, the legality of action undertaken by Member States and the legitimacy of those actions. Are they being made on solid evidentiary grounds, and for the right reasons, morally as well as legally?     

First we will address the question of legality. The UN Charter provides a clear framework for the use of force. States have an inherent right to self-defense, enshrined in Article 51. Long-established customary international law makes it clear that States can take military action as long as the threatened attack is imminent, no other means would deflect it, and the action is proportionate. The problem arises where the threat in question is not imminent but still claimed to be real: for example the acquisition, with allegedly hostile intent, of nuclear weapons making capability. The answer is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action. If it doesn’t there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment. The military option can be visited again as a last resort. As such we do not favor the rewriting or reinterpreting of article 51.

When external threats are concerned the Security Council is fully empowered under Chapter 7 to address the full range of security threats with which States are concerned. The task is not to find alternatives to the Security Council as a source of authority, but to make the Council work better than it has in the past.  The Security Council may well need to be prepared to take more proactive and decisive action in the future.

When internal threats are concerned, the Report endorses the emerging norm of the responsibility to protect civilians from large-scale violence – a responsibility that is held, first and foremost, by national authorities. When a State fails to protect its civilians, the international community then has a further responsibility to act, through humanitarian operations, monitoring missions and diplomatic pressure – and with force if necessary, though only as a last resort. And in the case of conflict or the use of force, this also implies a clear international commitment to rebuilding shattered societies. The successive humanitarian disasters in Somalia, Bosnia-Herzegovina, Rwanda, Kosovo and now Darfur in Sudan are the sad examples that urge the international community to act accordingly.    

Deploying military capacities - for peacekeeping as well as peace enforcement - has proved to be a valuable tool in ending wars and helping to secure States in their aftermath. But the total global supply of available peacekeepers is running dangerously low. Just to do an adequate job of keeping the peace in existing conflicts would require almost doubling the number of peacekeepers around the world. The developed States have particular responsibilities to do more to transform their armies into units suitable for deployment to peace operations. And if we are to meet the challenges ahead, more States will have to place contingents on stand-by for UN purposes, and keep air transport and other strategic lift capacities available to assist peace operations.

When wars have ended, post-conflict peace building is vital. The UN has often devoted too little attention and too few resources to this critical challenge. Successful peace building requires the deployment of peacekeepers with the right mandates and sufficient capacity to deter would-be spoilers; funds for demobilization and disarmament, built into peacekeeping budgets; a new trust fund to fill critical gaps in rehabilitation and reintegration of combatants, as well as other early reconstruction tasks; and a focus on building State institutions and capacity, especially in the rule of law sector. Doing this job successfully should be a core function of the United Nations.

The new trust fund for peace building brings me to the final part of my speech, the institutional reforms that the United Nations should undergo. Throughout the Panel’s work it has looked for institutional weaknesses in the current responses to threats and identified those most urgently in need of remedy. With an effective, efficient and equitable United Nations for the 21st century in mind, a thorough renewal of the UN architecture is recommended.

The General Assembly, as well as the Economic and Social Council, need to be revitalized and the Commission of Human Rights restored. For the General Assembly, this requires a better conceptualization and shortening of the agenda, which should reflect the contemporary challenges facing the international community. Smaller, tightly focused committees could help sharpen and improve resolutions that are brought to the whole Assembly. Furthermore, there should be a better mechanism for systematic engagement with civil society organizations. The Economic and Social Council’s new strategy should entail three elements: normative and analytic leadership on social and economic aspects of security threats; measurement of key development objectives and the Economic and Social Counsel should become a development cooperation forum.

When it came to finding a way to restore confidence in the Commission on Human Rights, the Panel explicitly rejects the idea of “membership criteria”. The reason being that it would further politicize the issue, and lead to an endless cycle of debates with probably no outcome whatsoever for years to come. Instead, the Panel recommends expanding the Commission from the current 53 Members to include every Member State of the United Nations, and pleads for the creation of an independent panel of human rights specialists. The panel admits its decision to be firmly grounded in real politik, and while received by many as counterintuitive, still believes it to be the best solution that has a chance of being adopted. At least it has the benefit of ensuring that countries interested in limiting the role of the Commission on Human Rights would no longer be able to exclude countries with better human rights records.

The reform of the Security Council has received the lion’s share of attention. To tackle the problem of representation, the Panel proposed 2 models for Security Council enlargement. Both entail an enlargement from 15 to 24 Members. Model A proposes six new permanent seats without veto and three new non-permanent seats for two-year terms. Model B, on the other hand, proposes no new permanent seats. Instead, it suggests eight four-year renewable-term seats and a single, two-year seat that is non-renewable. Both models involve a distribution of seats between four regional areas: Africa, Asia and Pacific, Europe and the Americas. What stands out is that the Panel recommends no expansion of the veto. The Panel urges that the use of the veto, an institution that can be questioned in its own right in an increasingly democratic age, should be strictly limited to matters where vital national interests are at stake. Permanent Member States are also asked to solemnly pledge to refrain from the use of veto in cases of genocide or large-scale human rights abuses. Finally, the Security Council, which is still the UN’s most able organ to respond quickly to new threats, will need to be more proactive in the future. It should make more of the potential advantages of working with regional and sub regional organizations.

The most important institutional gap in the UN system, identified by the Panel, was the lack of an UN organ ‘explicitly designed to avoid State collapse and subsequent slide into war. This means, the UN has no institution up till now that has the ability to assist countries in their transition from war to peace. For this reason, the Report recommends remedying the lack of focus and funding for peace building activities other than peacekeeping. A new Commission should be established, a Peacebuilding Commission and a related Peace Building Support Office to provide logistical and administrative support for the Commission. The core functions of the new Commission would be to identify states that are at risk of collapse; organize “proactive assistance” to prevent such a collapse; and sustain the efforts of the international community in post-conflict peace building. This would enable the United Nations to act in a coherent and effective way throughout a whole continuum that runs from early warning through preventive action to post-conflict peace building. Its creation could also make a real contribution to the integration of the UN’s development and conflict responses in the near future. As far as the Trusteeship Council is concerned, the message of the Panel is brief. As it has outlived its reason for existence, it is convinced that chapter 8 of the UN Charter should be deleted. The new Peacebulding Commission should, therefore, take its place. In the same train of thought, the Panel proposed the reinforcement of the Secretariat by appointing a second Deputy Secretary-General to assist the Secretary-General. This Deputy Secretary-General will be responsible for peace and security.

As the Secretary-General said at the Banqueting House in the Whitehall in London two weeks ago: ”The time is ripe to bring economic and military security back into a common framework, as our founders did at San Francisco sixty years ago. They expressed their determination not only to “save succeeding generations from the scourge of war” but also “to promote social progress and better standards of life in larger freedom”. Ladies and Gentlemen, the United Nations is on the verge of a crucial transition to meet the challenges of tomorrow, but even more than institutional scrutiny and reform, we need political will and we need the participation of all of you! “

Thank you very much.
 

 

 

 


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