Edited by Robert Kolb and Gloria Gaggioli
Chapter 18: Human rights law and international humanitarian law as limits for Security Council action
The activities of the Security Council in the maintaining or restoring of international peace and security have expanded enormously since the end of the Cold War. The breakthrough for Security Council action was the Kuwait crisis – the invasion of Kuwait by Iraq, and the ensuing successful military action to repel it. On this occasion, the Security Council showed considerable creativity in designing measures to cope with the situation, and not all of them corresponded exactly to what could be anticipated by just reading the relevant texts of the UN Charter. This fact and further developments have fomented a debate which existed already during earlier decades, namely a discourse on the legal basis of the powers of the Security Council and their limitations. The question whether and to what extent the norms of international human rights law and international humanitarian law limit the freedom of action, or the creativity of the Security Council in designing action, is a major part of that debate. The political developments and the ensuing legal debate highlight legal uncertainties. Organs of the United Nations exercise public authority in relation to individuals – which raises the question whether they have to apply human rights in doing so, and whether human rights, thus, limit the freedom of action of UN organs, including the Security Council. Armed forces of the United Nations are involved in military hostilities – which raises the question whether the rules of international law relating to such hostilities if conducted by States apply as well to the military operations conducted by the UN.
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