The Libya war and the necessary reform of the United Nations

Current Concerns

Taking the Principle of the Subject’s Dignity Seriously - A criticism of the Libya war, the necessary reform of the United Nations and the dialogue among the civilizations.

An Interview with Professor Hans Köchler (Professor of Philosophy at the University of Innsbruck, President of the International Progress Organisation)

Current Concerns: Professor Köchler, 3 months ago you published a memorandum to the attention of the UN Secretary General and the President of the Security Council (cf. Current Concerns No 5, June 2011). This memorandum deals with the Security Council’s resolution 1973 (2011) of 17 March and the ensuing war against Libya 2 days later. Could you tell us the core ideas of your memorandum? What induced you to write this memorandum?

Professor Dr Hans Köchler: The principal reason, why I made this step and sent a text to the Secretary General of the United Nations and the President of the Security Council, lies in my fundamental refusal of the instrumentalization of the Security Council for superficial purposes in power politics. This resolution is more or less a full authorization for the interested states to intervene in another country at their own discretion.

As for myself, I was personally not only irritated, but shocked about the hard to beat hypocrisy forming the basis for the adoption of this resolution; the official reason for adopting this resolution or the goal of this resolution was the protection of civilians in Libya. Actually, the resolution is about some countries’ military intervention in Libya in the name of the United Nations, even if the United Nations themselves do not have any influence on the actions – on the one hand they wanted to install a so-called no fly zone, on the other hand they wanted to protect the civilian population, a goal separately formulated in the resolution.

In reality the use of armed forces has endangered the lives of civilians even more, and another fact is above that this resolution was decided when a civil war situation had already developed in Libya; so that now the intervention by these interested states – and it is not at all the international community of states – is more or less siding with one conflict party against the other one. In the meantime we have seen the implementation of the resolution degenerate into a war, by means of which the government in Libya is to be altered – a goal, that is not compatible with the spirit and the letter of the Security Council resolution.

However this kind of arbitrary interpretation is laid out in the text of the resolution, because a term is used which we in Austria would call an ambiguous clause, thus an empty formula.

To put it in a philosophical way: “All necessary measures” is a term, which is not at all defined and which is therefore misplaced in a resolution, which has concrete legal consequences – and that is definitely the case with compulsory Security Council resolutions.

To use such non-defined terms, is nothing but an invitation is to the interested states to act at their discretion. Each state will interpret an empty formula according to its own interests: Immediately after the beginning of the war we learned from the statements of, for example, British politicians that they regarded their attacks against the head of state in Libya, i.e. actions to kill him, as measures legitimized by the resolution.

CC: What were the reactions to your memorandum?

HK: I got support for my views in particular from Asia, but also from Africa; and in the media in Southeast Asia and also in African states there were reports on this memorandum, which we had submitted, and it prompted a lively world-wide debate.

CC: Regarding the policy of the Security Council of the last 20 years one can gain the impression that there has been a certain kind of barbarization in the interpretation and application of international law. The guarantee that the UN Charter is taken seriously in its wording seems to have dwindled. What are your observations? And how could we explain such a development?

HK: Yes, that is indeed my impression, too. And I see that there was a major paradigm shift in this period, when the bipolar world order changed relatively rapidly into a unipolar structure. That was around the year 1990. As early as in 1991, at the time of the second Gulf War, i.e. the conflict between Iraq and Kuwait, the Security Council adopted a resolution, which contained such an empty formula as well. At that time, in the resolution there was also talk about “all necessary means”, and that also led to the fact that the interested states, especially the USA, Great Britain and France, more or less did what they liked in Iraq; regardless of the official objective – which was to end the Iraqi occupation of Kuwait – they destroyed the entire infrastructure in Iraq and performed actions, which led to the death of a great many civilians. It is thus indeed a barbarization, which the founders of the worldwide organization could not have at all imagined.

There is a structural problem concerning the position of the Security Council in the Charter of the United Nations. The Security Council actually is an authority which cannot be challenged. In the framework of the UN Charter there is no separation of powers; this means that with regard to the Security Council there is no such thing as a constitutional court of the United Nations that could check whether the Security Council adopted its resolutions in agreement with the Charter of the United Nations.

As the Charter says, the Security Council is obliged to take decisions in accord with the principles of the United Nations like all other UN authorities; however, this obligation does not mean anything at all, if there is no possibility to independently examine within the framework of the organization whether the Security Council has followed this obligation or not.

Necessary reform of the UN

The big structural problem is that the international Court of Justice in The Hague, which is a part of the system of the United Nations, does not have any competence to decide on the accordance of the Security Council’s resolutions with the statutes. Thus the following opinion has meanwhile evolved from the International Court of Justice: As soon as the Security Council has decided on a resolution in accordance with Chapter VII of the UN Charter, i.e. a resolution with an obligatory character for all member states, the international Court of Justice can no longer deal with relevant complaints of member states.

If you have such a situation, it doesn’t come as a surprise that a barabarization takes place, especially if there is no balance within the committee.

In the bipolar world a certain balance of power was predominant – of course this was often a kind of paralysis; however there was some kind of balance, because one superpower contained the other. Now the situation is completely different; there is no power balance among the five permanent members with the right to veto. That is the reason, why countries, which would actually have the possibility of preventing such arbitrary resolutions with the help of the Charter, do not engage but keep out, i.e. abstain from voting.

If there was a balance of power between the five permanent Security Council members, a resolution like the resolution 1973 on Libya would be inconceivable. In that case Russia or China, for example, would have had the courage to stand up against it.

But now the law of action is left to a country and/or a group of countries, and only to this single country and its vassals. I think this means a complete perversion of the concept of collective security, which is the basis for the regulations in Chapter VII of the United Nation’s Charter. In fact, the development has shown so far that it is no longer about actions of collective security, i.e. actions, which are really accomplished in the name of the world community; however, it is indeed about unilateral actions, which a state performs together with its allies, and this state has the advantage to justify its actions with reference to the United Nations. I can only say: We can hardly imagine a situation where things are more hypocritical than now.

It has repeatedly been stated that military operations by NATO involve an excessive use of violence. NATO justifies this with the fact that the Libyan government threatens civilians and NATO therefore has to intervene and protect civilians. However, these are completely unsubstantial statements. But there is no corrective within the United Nations at present, and above all there is no possibility of taking legal action.

NATO arrogance

What strikes me most is this: We have advanced to the point that a military alliance of a special power bloc acts more or less as an executive body of the United Nations. NATO represents the particular interests of the USA and its allies, although NATO is a defense pact by its founding documents, by its statutes; its objective refers to the mutual assistance in case of attack on a member country. NATO has no authorization at all to intervene “out of area”, i.e. in states, which do not belong to their contract territory. But the fact is that NATO now more or less acts as military instrument of the only universal state organization, i.e. the United Nations.

This, too, represents a total perversion of the concept of a regional security alliance; a military alliance, that originally was directed against another military alliance during the cold war and which is also structurally directed against other countries and regions in the current constellation, is now acting more or less officially in the name of the world community.

There is a further fundamental structural problem in the UN Charter or a problem resulting from the fact that the UN Charter was not fully implemented from the outset. In Chapter VII a socalled Military Staff Committee was intended for the implementation of a resolution by military measures, which was to consist of the permanent members’ Chiefs of Staff. However, this Committee exists only on paper. And it was also originally intended that the member countries would transfer contingents to the Security Council, including national air force contingents, which in the Libyan case would have been particularly relevant, because this case concerned no-fly zones, i.e. the employment of air forces. All that never happened; it was impossible in the cold war, but later it has never been implemented. According to the operational regulation of chapter VII it is therefore at the countries’ will to send available air forces if they have any.

CC: One of your main points of research and one of your main objectives is a reform of the organization of the United Nations – as you say – a “democratization” of the world organization. What do we have to understand by that?

HK: I launched this idea for the first time in 1990 after discussions, which we had in the context of the International Progress Organization (IPO) [1] in New Delhi, and my consideration primarily refers to the democratization concerning the crucial committee where according to the current Charter decisions are taken, i.e. the Security Council.

The fact is that the authority for the practice of “coercive power” for the implementation of international standards is exclusively up to the Security Council. The United Nations General Assembly – as the Charter says – can only give recommendations and if the Security Council is concerned with a topic, cannot even discuss the respective problem. It is subordinate to the Security Council in all central issues, so that from my point of view we have to think about how the decision making process in the Security Council could be rendered fairer and more balanced if we think about democratizing this body.

One of my considerations is to find a replacement for the current veto regulation. By the way, it is interesting that the expression ‘veto’ cannot be found anywhere in the Charter of the United Nations. The appropriate regulation is completely disguised and indirect and encoded in Article 27 of the Charter. It says that decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members, i.e. with 9 voices of 15 – 15 is the number of member states – and that for the resolutions to be valid the agreement of the permanent members, “including the concurring votes of the permanent members”, is necessary. The word veto does not occur.

This regulation makes clear that a resolution cannot be valid if a permanent member abstains from voting. What else should be called agreement? For me it is inconceivable that in any language the expression agreement also includes abstention. However it has already been handled this way for decades that if a country abstains from voting, they pretend it had agreed; and this may explain also a bit what I said before about the veto. If the expression veto was actually used, the Charter would regulate that the five permanent members could prevent a coercive measure by a veto, which would make the issue much clearer.

My consideration is this: Instead of the veto, which grants privileges to a certain number of countries – at present these are five countries –, another regulation should be included. Because in the long run it concerns the following: The idea behind the veto was at that time that resolutions according to Chapter VII – which is about decisions on war and peace and their coercive implementation, if necessary also by military force – that these resolutions are accompanied by a guarantee that important countries won’t be ignored. In 1945 the list of permanent members reflected the power constellation at that time. When the UN was founded, a majority of today’s member countries had not yet existed at all, and many still were dependent colonial territories. We talk about the fact that with really important decisions today it should be guaranteed that a relatively small group cannot force their will upon the whole world – especially if it is a relatively small group in view of the representation of the total population of the countries, their heft and their responsibility – so we might think about introducing a so-called “supermajority”, that is a majority of e.g. 3 quarters of the votes. Or, as I specified later, we could readjust this whole veto regulation with privileges for five states separately specified.

In 1945 the idea was that those, who had the biggest responsibility due to the power they exercised, should be able to claim a right to veto in the world system. Today that is different. I do not believe that France is a world power which would justify equipping it with the right to veto. Therefore is my proposal is to think about restructuring the decision making process on a regional basis.

A better-balanced distribution of power

With reference to Europe we could illustrate this most easily. The idea would be that decisions, in particular those on coercive measures according to Chapter VII, would not only be agreed upon by the majority of member countries but also by the regions represented in the Security Council. That would mean that the permanent seats of Great Britain and France would become obsolete and that there was no more discussion about Germany getting an additional permanent seat – if this happened, Europe would obtain three permanent seats. It would also mean that the respective regional organization, in this case the European Union, would obtain such a permanent seat, while the representation in the Security Council could rotate among the member countries. It does not only work on the European level that a country holds the presidency in the European Union for a certain period. For Africa it would be the African Union etc. Africa is currently not represented at all.

I believe that this would be a betterbalanced distribution of power within the Security Council. Only in case we redefined the term of permanent membership in such a way or replaced it by the membership of regions, we could maintain the concept of a veto – meaning that a region has the right to veto a decision. If we are however not willing or unable to modernize the term “permanent membership” in such a way and if it is also impossible to “update” the list of veto countries – which pragmatically could be the case, as no country would be willing to give up its privileged status – in that case a fundamental reform would have to take place, after which a “super majority” would become necessary instead of this right to veto, as I said before.

One must also add another fact that concerns the present veto situation and that is frequently ignored. It is laid down in the Charter of the United Nations: Generally, a member state cannot vote for resolutions by the Security Council while this member state is involved in a contflict open to debate. This is a fundamental principle of justice: One cannot vote on an issue, in which one is involved. But: Article 27 has an additional clause according to which this regulation is valid only for decisions according to Chapter VI and Chapter VIII (without coercive character), i.e. not for decisions according to Chapter VII, i.e. where it really counts. This means that a permanent member of the Security Council can also make use of its right to veto, if it is involved in a conflict, so e.g. if it has attacked another country. This is the reason, why in fact those cases, in which a permanent member country waged a war of aggression, remained unchecked. The USA attacked Iraq in 2003 and subsequently occupied the country. Since no country is willing to decide on coercive measures against itself it was impossible to do anything against it in the Security Council. From my point of view also something that would have to be changed in the context of a reform and a democratization – and above all also in the interest of a fairer organization of decision making.

Taking democracy and separation of power seriously

Then there are also further considerations, which concern the reconstruction of the Charter. If we take democracy and separation of power really seriously, we would have to expand the General Assembly and transform it into a legislative body, which it is currently not. Now it is an advisory body. If there has been a kind of legislative body so far – which according to the Charter does not exist – it could be seen in the form of resolutions by the Security Council, which has arrogated special authority to itself since 2001. Due to the circumstance that we do not have a separation of powers and that there is no legal examination of the Security Council’s actions possible, and because a special kind of practice has been established with the Security Council taking the liberty to act independently, a precedent has been created, and there is the danger that in the future others refer to these resolutions.

Within the United Nations, in particular in the committees of the Security Council and the General Assembly, many plans for reform have meanwhile been discussed. Particularly since the anniversary year 1995 there have been a great many debates, which were initiated by the member states. Expert committees were established by the Secretary-General of the United Nations and of the president of the General Assembly. But there is a snag to the whole thing, which is again combined with the veto privilege of the five permanent members. According to the UN Charter a change of the Charter requires the agreement of the permanent members, i.e. not even a comma can be changed, if the permanent members do not agree. And why should a country, which in fact has ceased to be a superpower and which therefore needs the Security Council to push through its interests “as before” – as for example France and Great Britain in North Africa – why should such a country voluntarily renounce its privileges, which were once granted by the Charter – in a situation in which it does no longer maintain the status due to which it once had these privileges.

My opinion on this is the following: If we do not succeed to perform any reform measures in due time, the organization of the United Nations will gradually be delegitimized; and in particular the countries outside the western world will gradually create new organization forms for themselves. We have already observed first steps in this direction with the BRICS states. Maybe the UN will once suffer the same fate as the League of Nations.

Above all the UN has unfortunately not been capable for a long time of fulfilling the central objective which it was established for, i.e. to guarantee peace. Nowadays, wars of aggression are waged in the name of this organization. That is a complete reversal of the objectives of the UN Charter; and if we are realistic, the consequence can only be that the text, which is fundamental to this organization, will no longer be taken seriously – if its interpretation is so arbitrary and if there is no possibility to undertake anything against this arbitrariness.

Strengthening the dialogue between the nations

CC: Your second main objective, which you have been working on for 40 years, since the establishment of the International Progresses Organization, is the concept of the “dialogue of nations” – within the United Nations, but also far beyond. What does this concept contribute to peace?

HK: My consideration is the following: A group, but also a nation on a legal and political level, can only have peaceful relations with another group, with another nation, if they fundamentally respect the other nation. If there is no mutual respect, there will be no corrective for the implementation of one’s own interests. Then the nations think of nothing but themselves, and everything else is judged or assessed in accordance with their own interests. Therefore it is my conviction that first of all we have to have some knowledge on other identities in terms of culture and civilization. Then we can gradually get acquainted with each other and overcome what has been called euro-centrism, referring to our traditions here on this continent.

My philosophical-hermeneutic point of view is this: I can only understand myself completely if I am capable of establishing a relation to other identities. That is true for the individual as well as for the collective. A civilization, which exclusively knows its own traditions and merely teaches what its own identity has created before – for example at school – and excludes everything else, cannot achieve a status of civilized or cultural maturity.

If you realize that the knowledge about other cultures is a prerequisite for the possibility to get to know yourself, we will have a completely different basis for what we call peaceful coexistence, i.e. a peaceful living together of cultures and countries.

From my point of view we fall too short if we only refer to the economic dimension when talking about the international peace order. If we limit international relations exclusively to economy, we will remain on the level of utilitarism; and there is actually no possibility of contradicting a position which in the long run implies that each foreign policy measure is assessed by its economic use for one’s own group. Therefore the cultural aspect is a substantial corrective for me.

CC: Europe has to offer something different with regard to utilitarism. For example: Europe and its tradition of the Enlightenment.

HK: I agree; I also mentioned it in my lecture on Kant this term. For me, the Kantian tradition is something very important; his transcendental philosophy, his philosophy of the subject. The subject’s status is autonomous and, according to Kant, distinguished by an inalienable dignity. This means that humans may never be made bare objects, and “humanity” – one’s own humanity, one’s status as a subject – must be divine to us, as Kant puts it. And this is also true for our behavior towards all other people – on the individual as well as on the collective level.

For the relations between nations, taking the maxim of the subject seriously means that no nation can force its identity, its principles and its world view upon others; and it may not try to reeducate the other nation according to its own self portrayal, i.e. to try to recreate the other in one’s own similitude. No civilization may ever possess this kind of quasi “divine” authority. If we interpreted it in such a way – as the USA have obviously done, at least for some time – such a policy would firstly not be in line with human rights and secondly, it would lead towards a totalitarian world order.

CC: Thank you very much for this interview.

HK: You're welcome.

[1] The International Progress Organization (I.P.O., whose president Hans Koechler is, was founded in 1972 in Innsbruck, Austria, by students from Austria, India and Egypt who were concerned about relations between cultures and civilizations and the growing North-South divide. The I.P.O. aims to encourage cultural exchange between all nations, attempts to promote tolerance towards all nationalities and cultures, and emphasizes human liberties, social and economic development, peace, and the international rule of law.

Hans Köchler is a professor of philosophy at the University of Innsbruck, Austria, and president of the International Progress Organization, a non-governmental organization in consultative status with the United Nations. In his general philosophical outlook he is influenced by Husserl and Heidegger, his legal thinking has been shaped by the approach of Kelsen. Köchler has made major contributions to phenomenology and philosophical anthropology and has developed a hermeneutics of trans-cultural understanding that has influenced the discourse on the dialogue of civilizations, particularly as regards the relations between Islam and the West. His research in political and legal philosophy—combined with his involvement with the UN—has resulted in a fundamental critique of the state-centered international system and in specific proposals for the democratization of the United Nations Organization and for a viable system of international criminal justice. [Wikipedia]

Published by: [No. 9/2011]


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