Brandes & Zemach: Controlling the Execution of a Security Council Mandate to Use Force: Does the Council Need a Lawyer?

Tamar Hostovsky Brandes (Ono Academic College - Law) & Ariel Zemach (Ono Academic College - Law) have posted Controlling the Execution of a Security Council Mandate to Use Force: Does the Council Need a Lawyer? (Fordham International Law Journal, forthcoming). Here's the abstract:

The NATO military intervention in Libya pursuant to Security Council Resolution 1973 triggered a severe crisis of trust among permanent members of the Security Council, with Russia and China adopting the position of many international lawyers that the intervention grossly exceeded the mandate provided by the resolution. This crisis of trust significantly hinders the function of the Security Council as the primary guarantor of international peace and security, as exemplified by its failure to effectively address the atrocities committed against the civilian population in Syria.

The present article describes the lack of Security Council control over the implementation of its resolutions authorizing the use of force, which underlies the current crisis. It argues that the means of enhancing such control advocated in the current legal literature are ill-suited to promote consonance between the aims of Security Council authorizations to use force and measures taken by states acting upon such authorization. The article proposes a reform in the practice of the Security Council that would promote such consonance, relieving the crisis of trust that currently encumbers the functioning of the collective security mechanism.

According to the proposed mechanism, a permanent UN committee of legal experts would be established to monitor the compatibility of military operations undertaken by a state pursuant to a Security Council authorization to use force with the terms of the authorization. A monitoring role of this type would require the committee, an intermediary body between the Security Council and the operating states, to interpret and clarify the authorization provided by the Council. The committee's interpretation of the mandate and its views regarding the operational consequences that such construction entails would become binding upon the operating states, unless the Security Council explicitly decides otherwise.

For reasons of political feasibility, the proposed reform is designed to minimize political costs for both permanent members of the Security Council and for other states acting pursuant to a Security Council authorization to use force. The reform would reduce significantly the ability of states to rely on a Security Council resolution authorizing the use of force to conduct military operations that depart from the terms of such authorization, and at the same time it would ensure that ultimate control over the collective security mechanism remains in the hands of the Security Council.