January 2023 Monthly Forecast

Posted 29 December 2022
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THEMATIC ISSUES

Rule of Law

Expected Council Action

In January 2023, Japan is organising a ministerial-level open debate on the “Promotion and strengthening of the rule of law in the maintenance of international peace and security: The rule of law among nations”. Secretary-General António Guterres, President of the International Court of Justice (ICJ) Joan Donoghue, and Oxford University Professor of Public International Law Dapo Akande are expected to brief.

Background

The Council held its first thematic debate on the rule of law in 2003. It has since held thematic debates on the issue on several occasions, including in 2004, 2006, 2010, 2012, 2014, and 2020. The last open debate on the promotion of the rule of law as a general issue (without focusing on any particular aspect of the topic) was held on 19 January 2012. In a presidential statement adopted during that debate, the Council recognised that sustainable peace requires an integrated approach that strengthens the coherence among political, security, development, human rights, and rule of law activities.

In the past decade, the Council has also held open debates that focused on specific aspects of the rule of law. On 19 February 2014, the Council convened for an open debate on the role of the rule of law in peacekeeping operations. Two days later, the Council adopted a presidential statement underlining the importance of peacekeeping operations and special political missions supporting the strengthening of rule of law institutions in host countries within the scope of their mandates.

On 18 December 2020, the Council held an open debate on the “Promotion and strengthening of the rule of law: Strengthening the cooperation between the Security Council and the [ICJ]”. A presidential statement adopted on 21 December 2020 recognised the positive contribution of the ICJ to the rule of law at the international level, as well as its key role in adjudicating disputes, defusing tensions, and restoring peaceful relations among states.

Open debates have also been convened in recent years under the “Maintenance of international peace and security” agenda item that addressed issues related to the rule of law. On 17 May 2018, the Council convened for an open debate on the “Maintenance of international peace and security: Upholding international law within the context of the maintenance of international peace and security”. No product was issued in connection with this meeting.

On 9 January 2020, the Council held an open debate on the topic “Maintenance of international peace and security: Upholding the UN Charter”. A presidential statement was adopted at the meeting, which, among other matters, called on member states to fully comply with the Charter and raise public awareness of its importance in the maintenance of international peace and security.

Several notable developments relating to various aspects of the rule of law have taken place in country-specific files on the Council’s agenda in recent years.

In relation to Ukraine, on 26 February 2022, Ukraine instituted proceedings against Russia before the ICJ, which rendered provisional measures on 16 March, ordering Russia to immediately suspend the military operations it commenced on 24 February 2022 in Ukrainian territory, among other matters. On 2 March, ICC Prosecutor Karim Asad Ahmad Khan announced that he had decided to proceed with an active investigation into the situation in Ukraine after receiving referrals from 39 ICC States Parties. After holding an “urgent debate on the situation of human rights in Ukraine stemming from the Russian aggression” on 3 and 4 March, the Human Rights Council (HRC) established the Independent International Commission of Inquiry (COI) on Ukraine. The COI’s responsibilities include investigating “all alleged violations and abuses of human rights and violations of international humanitarian law, and related crimes in the context of aggression against Ukraine by the Russian Federation”, as well as preserving information, documentation and evidence of such violations and abuses in view of any future legal proceedings. Ukraine is also advocating for the creation of a special international tribunal to prosecute high-level Russian officials for the crime of aggression. On 14 November 2022, the General Assembly adopted a resolution recommending the creation of a register to document damages “caused by internationally wrongful acts of [Russia] in or against Ukraine”. The register is also intended to promote and coordinate evidence gathering.

On the Syria file, the General Assembly created the International, Impartial and Independent Mechanism to Assist in the Investigation of Persons Responsible for the Most Serious Crimes Under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM) in December 2016. The IIIM is responsible for collecting, preserving, and analysing evidence of violations of international humanitarian law and human rights in order to facilitate fair and independent criminal proceedings.

The establishment of the IIIM followed the creation of the Independent International Commission of Inquiry into the Syrian Arab Republic by the Human Rights Council in August 2011. Among other matters, its mandate includes investigating all alleged violations of international human rights law in Syria since March 2011 and, where possible, identifying those responsible with a view to ensuring they are held to account. At the Council level, a May 2014 draft resolution that would have referred the situation in Syria to the ICC was vetoed by China and Russia.

Investigative mechanisms have also been created for Myanmar, another country situation where it has been difficult for the Council to achieve consensus concerning accountability. In March 2017, the HRC mandated the Independent International Fact-Finding Mission on Myanmar (IIFFMM) to establish the facts and circumstances of alleged human rights violations by military and security forces in Myanmar. In August 2019, the IIFFMM handed over the evidence it had gathered to the Independent Investigative Mechanism for Myanmar (IIMM), a body created by the HRC in September 2018 to collect evidence of the most serious international crimes and violations of international law in Myanmar and prepare files for criminal prosecution. The ICJ is also hearing the case brought by the Gambia concerning alleged genocide against the Rohingya population of Myanmar.

In September 2017, the HRC created the Group of Eminent International and Regional Experts on Yemen. The Group was tasked with monitoring and reporting on the human rights situation in Yemen, as well as conducting a comprehensive examination of all alleged violations and abuses of international law committed by all parties to the conflict, among other matters. In October 2021, the HRC voted against extending the mandate of the Group, reportedly after lobbying by Saudi Arabia and coalition allies.

Key Issues and Options

Key issues that may be raised in the open debate include:

  • the role played by the rule of law in the maintenance of international peace and security under the UN Charter;
  • how member states can effectively defend rules and principles related to the maintenance of international peace and security; and
  • how the main organs of the UN—including the General Assembly, the Security Council, the Secretariat, and the ICJ—and other international institutions can collaborate more effectively to promote the rule of law.

One option could be for Japan to produce a chair’s summary capturing the main themes of the open debate that can be circulated as an official UN document.

Another future option could be for Council members to hold a closed meeting with members of the International Law Commission to discuss the role international law plays in the maintenance of international peace and security.

Council Dynamics

Japan views the open debate as an opportunity to reaffirm the meaning and role of the rule of law among nations, as well as the common understanding that the rules to which all member states have agreed must be observed by all.

Council members frequently emphasise the importance of the rule of law, and the debate may provide constructive avenues for the Council to pursue in this regard. On the other hand, the current difficult dynamics in the Council, particularly those caused by the war in Ukraine, may make it difficult for the Council to have a frank and balanced discussion regarding the promotion of the rule of law.

UN DOCUMENTS ON THE RULE OF LAW

Security Council Presidential Statements
21 December 2020S/PRST/2020/13 This was a presidential statement on the ICJ and the rule of law at the international level.
9 January 2020S/PRST/2020/1 This was a presidential statement adopted during the ministerial-level debate on “Maintenance of international peace and security: upholding the UN Charter”.
21 February 2014S/PRST/2014/5 This presidential statement underlined the importance of support to strengthening the rule of law institutions of the host country by a number of peacekeeping operations and special political missions within the scope of their mandates.
19 January 2012S/PRST/2012/1 The Council adopted a statement on justice and the rule of law as “an indispensable element for peaceful coexistence and the prevention of armed conflict.”

 

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