BALOCHISTAN UNDER SEIGE: A NEED FOR UNITED NATIONS INTERVENTION

Kartikey Vipul Misra

ABSTRACT
Balochistan is one of the four provinces of the Islamic Republic of Pakistan, situated in the southern-western region of the country. The location of Balochistan makes it special as it serves as the channel to the Middle East, Central Asia and the Indian Ocean. Recent discovery of vast fields of natural gas and other valuable minerals have made the province crucial for Pakistan’s economic growth. Despite the fact of being culturally rich and prosperous, Balochistan is Pakistan’s least developed province with high infant mortality rates, poverty, illiteracy and starvation. Since the creation of Pakistan, the province of Balochistan has remained affected with public unrest and political turmoil. Islamabad always disgracefully tries to conceal its unjust and discriminatory policies by blaming the Baloch dissenters. In order to suppress the insurgency, Pakistan state authorities have fuelled ethnic and sectarian violence in the province. Gross Human rights violations and ethnic cleansing in Balochistan have reached such a scale of immensity that it should shake-up the collective conscience of International community. Only an effort by the United Nations to maintain order and peace in the region will be a viable solution to the problem.

This paper intends to offer an understanding of the intricacies with the biggest and the most disadvantaged region of Pakistan. The first part will focus on the problems and unrests in Balochistan. The second part will determine the need for United Nations intervention.

INTRODUCTION
The name Balochistan literally means the ‘The Land of the Baloch’; it is a vast region in South-Asia which comprises of mountains and deserts. It encompasses the Pakistani province of Balochistan, Iranian province of Sistan and Baluchestan, and the southern areas of Afghanistan comprising Nimruz, Helmand and Kandahar provinces.[1] The province of Balochistan is the largest province in Pakistan; it is bordered by Afghanistan in the north, Iran in the south-west and to the south lays the Arabian Sea. Balochistan is blessed with Gold, Copper, coal, natural gas, oil, minerals, and is playing a major role in the economic growth of Pakistan.

Its proximity to the oil tracks in Persian Gulf and the shared border with both Afghanistan and Iran, makes Balochistan crucial not only for Pakistan but for major world powers. However, the prosperous province is quite deprived and undeveloped. The province with the 44% of the country’s landmass and 6.85%[2] of Pakistan’s population is going through socio-political upheavals. The state of Pakistan is violently suppressing the Baloch nationalist movement since three decades.

State’s atrocities have fuelled ethnic and sectarian violence in the province and Baloch nationalism or rather their Right of Self-determination has lead to the rise of insurgency.

Pakistan’s central government singles out its citizens on the basis of region and ethnicity, which has lead to economic disparity and conflict. Balochs blame Pakistan’s central government for the exploitation of resources and for the economic problem in Balochistan. The joint effort by China and Pakistan in the construction of deep-water port at Gwadar aims to exploit the resources and use the geographical location of Balochistan for deriving economic benefits. The CPEC (China Pakistan Economic Corridor) is resented by the Balochs as they claim that the benefit will not flow to them.

Cruel and everlasting military operations, disappearances, ethnic and sectarian violence are depriving the Balochs from their basic human rights. The situation in Balochistan suggests that the state is slowly heading towards anarchy. Constant failure of Pakistan Government’s policy has given birth to multifaceted problems which pose as a threat to the peace in the region. Sadly, Pakistan remains in the state of denial and always blames India and other foreign powers for the crisis in Balochistan. People of Balochistan are living in terrible conditions and yet no International organization has addressed the problem. Before the wound of Balochistan festers it’s time for the United Nations to act and stop the injustice and violence in the province. It is a moral and imperative obligation that must be fulfilled.

The first part will focus on the aspects and causes of the problems and unrests in Balochistan. The second part will establish that there is a need for the United Nations to intervene.

 

PART 1
Province of Balochistan has been tattered by insurgency and political turmoil with ethnic Balochs demanding for independence from Pakistan. The approach of Pakistan government has been tyrannical and it has reached such level of intensity, that it can possibly be argued that the Balochs now have acquired the right to oppose. The issue is multifaceted and it is important to study all the aspects of the problem. The following sub-parts will address some important causes and concerns related to the subject.

A.) HISTORICAL BACKGROUND 
Earlier, Balochistan was divided into four major states: Makran, Kharan, Lasbela and Kalat. [3] , these states were governed by the Khan of Kalat. Two agreements were signed in 1878 and 1939 between the Khan and the British[4]; as a result some parts were given to the British on rent. British occupation of Balochistan was repressive in nature and they exploited the resources of the province. In 1937 Kalat National Party was founded, it struggled for independence from the British.[5]

 

After the creation of Pakistan and the withdrawal of the British, Khan of Kalat and other Baloch feudal lords wanted to establish an Independent Baloch country. Newly formed government of Pakistan tried to convince the Khan to join the State of Pakistan. When the Khan ignored the invitation, Pakistan tried to use its Diplomacy and military. Eventually, Khan of Kalat was forced to sign the document of accession, and Balochistan officially became the part of Pakistan. Many Baloch leaders and people revolted against the accession and series of aggressive protests followed, the rebellion were brutally crushed by the Pakistan army. Many such futile rebellions were launched by Balochs in 1948, 1958, 1962, 1973 and 2002.[6]

 

Though the protests failed yet they managed to ignite a spark of mistrust and insecurity among the Balochs against the Government of Pakistan.

 

B.) RISE OF ETHNIC NATIONALISM 
In the third world countries, ethnic diversity plays a crucial role in socio-political interactions. Ethnic divisions if widened might become the epicenter of major problems. The discriminatory approach of the Pakistani government has lead to the rise of Ethnic nationalism. ‘Ethnic Nationalism refers to the sentiment of belonging to a group identified by ties of ethnicity as well as, or in preference to, those of the Nation-State. Most states are in fact multi-national or multi-ethnic and in this way ethnic-nationalism may simply be seen as recognizing, a fact of political life. On the other hand, it may lead to expressions of irredentism or secession as political goals, in which case it becomes a movement or political tendency’.[7][8] The ethno-nationalism in Balochistan is of the latter type.

 

Pakistan just like any other Asian country has a diverse Diaspora. Sindhis, Pashtuns, Punjabis, Balochs, Kashmiris are some of the prominent ethnic groups of Pakistan[9], and they have different culture, language and customs. Pakistani Nationalism originates from the idea of the ‘Two Nation Theory’, which led to the partition of India on the basis of religion, and it is nothing short of Communalism. The idea advocates for religious homogeneity and supremacy and it’s opposed to any multiplicity. Pakistan government has always tried to impose flawed religious and cultural doctrines on the ethnic diverse society of Pakistan. Ethnic groups have struggled for long against the domination of Urdu and neglect of regional cultural heritage.[10]

 

The Balochs feel left out from the development policies of the government. Despite the fact of being culturally rich and prosperous, Balochistan is Pakistan’s least developed province with high infant mortality rates, poverty, illiteracy and hunger. The agricultural lands are allotted to civil and military bureaucracy in Sindh and Balochistan, which is affecting the agro-based Balochs.[11] Migration from other provinces and influx of Afghan Refugees[12] into Balochistan is also disliked by the locals, as they see it as an attempt to demographically marginalize the ethnic Balochs.

 

Pakistan has always accused Indian government for the troubles in Balochistan. Indian involvement in the Baloch insurgency is unlikely; since it shall affect the gas pipeline project from India to Iran (which has a large Baloch population and insurgency shall be a problem for Iran). The truth is that years of military operations, ill-conceived and discriminatory policies, and poor governance has resulted in extreme underdevelopment of the region.[13]

 

All these facts when put together suggest that the ethnic divide in Balochistan is a fact and lack of government’s will and apathy has pushed the situation to a point where consequences are irreparable.

 

C.) BIASED AND ATROCIOUS POLICIES OF PAKISTAN GOVERNMENT 
Problems in Balochistan are the result of hatred against centralized authoritarian rule and centre’s refusal to respect constitutionally guaranteed provincial autonomy and basic democratic rights. The elites in Islamabad believe in a controlled model of development which is inconsistent with the globally accepted idea of participatory development. The establishment’s version of development with regard to Balochistan emphasizes troop deployments; military cantonments, check posts and policing to suppress the politically sensitive Baloch community.[14] Central government has always mishandled the situation by using improper force to curb dissent which has escalated the crisis.

 

The resource-rich province is today marked by a high rate of poverty, illiteracy, unemployment, and infant and maternal mortality.[15] According to a survey, 52% of people are living below poverty line and half of Balochistan’s population cannot earn even $1.25 per day.[16] Balochistan also has massive unemployment rate 33.4%[17] and appalling literacy rate of 43%.[18] The most devastating outcome of underdevelopment in any society is a high death rate, and Balochistan has the highest infant and maternal mortality ratio in South Asia.[19] These are the consequences of biased and unjust policies of the government.

 

Balochistan has been governed for the benefit of Pakistan and its people have been deprived from their share of development. Following are the examples of some disastrous policies of the Pakistan government:

•      Natural gas reserves were discovered in 1952 at Sui in Balochistan[20]. The discovery was very important for Pakistan’s Economic growth and development. It is currently Pakistan’s biggest gas field[21], and plays a key role in commerce. Sadly, Balochistan was not supplied with the gas till 1986.

•      The policy of ‘One unit’ was adopted in 1954 by the Pakistani government, under which the four provinces of West Pakistan (Punjab, NWFP, Sindh and Balochistan) were merged into one homogenous unit with Lahore as its capital. This scheme was actually adopted to counterbalance the domination of ethnic Bengalis of East Pakistan (now Bangladesh).[22] This policy failed miserably, it was not permissive and was marked with linguistic and ethnic differences. People from Balochistan were not given proper representation and Punjab being the most populous province[23] got most representation as well as attention. Balochs continuously protested against the policy till 1970, when it was ultimately abolished. This period marks the growth of Insurgency and Sectarianism in Pakistan.

•      Balochs feel insecure whenever there is a military coup in Pakistan. Problems intensified when Genral Parvez Musharraf declared and all out war on Balochistan[24], he once said to a Baloch militant: ‘Yow won’t even know what hit you’[25] His aggressive approach and ruthless military operations brought Balochistan to a standstill, and assassinations of many Baloch leaders in military ambush fuelled the agitation against the government.  The only ‘development’ Balochistan witnessed during his regime was the 62% rise in Police stations.[26]

•      Gwadar port is another subject of conflict in the province. The deep water port is of great strategic and economic significance for Pakistan. China-Pakistan ambitious project or

‘China-Pakistan Economic Corridor’ aims to connect Gwadar with Chinese district of Xinjiang. CPEC is expected to attract Foreign Direct Investment which will be beneficial for Pakistan’s economy. The project was expected to bring employment and prosperity in Balochistan but sadly this opportunity was also snatched away from the Balochs.  Punjabis, Pashtuns, Sindhis and Chinese make up the working force in this project. The project is seen by many Balochi nationalists as a classic case of exploiting Balochistan’s wealth. The current rate of influx of Chinese nationals into Balochistan due to CPEC suggests that by 2048, Chinese will outnumber the native Balochs[27]. People of Balochistan are still politically underrepresented and economically discriminated against in their own state. The military influences the political affairs in Pakistan and the coalition governments are weak27 and lack political will.

Exploitation of Balochistan’s resources and faulty political policies suggest the colonial nature of Pakistan government. Though the occupation of Balochistan by Pakistan is not colonial but its presence certainly is.

D.) HUMAN RIGHTS VIOLATION IN BALOCHISTAN
Balochistan is witnessing the worst sort of state terrorism and is slowly heading towards anarchy. Pakistani security establishment pay no heed to the gross human rights violation in military actions. Islamabad has locked up thousands of baloch nationalists, denied positions in the government and the military, assassinated Baloch leaders, funded schools to fuel radical Islamic ideology, and even sponsored Taliban in the general election to oppose Baloch politicians. Pakistan army is involved in organizing death squads, extrajudicial executions, torture, and illegal detentions. According to Baloch Khan, a Baloch nationalist leader, “The Balochs live in a state of war, every day they face injustice. The army and intelligence agents kidnap our young and we know nothing about them for years. We will not accept any offers until we regain control over our land. They burn down our homes and then ask for peace? We aren’t stupid.”[28]

 

Target killings, missing persons, sectarian trouble and dumped corpses have become a daily affair in Balochistan; such is the nefarious face of government authorities. Pakistani security forces are brazenly disappearing, torturing, and often killing people because of suspected ties to the Baloch nationalist movement”[29]. Human Rights Watch report says hundreds in Balochistan province have been dragged from their homes by armed men since 2005[30]. Military’s ‘Kill and Dump’31 policy has resulted in extensive civilian deaths. Three[31] mass graves were discovered in 2014 in Khuzdar and the provincial government confirmed that 17 bodies were found in these mass graves[32]. Many civilmilitary ambushes have been catastrophic; Army has used heavy artillery and launched air strikes against insurgent bases which lead to heavy civilian causalities. Thousands of people have been displaced from their homes in Balochistan due to violence and insurgency. These people are living in deplorable conditions with no assistance from the government. Pakistan government refuses to officially declare them as IDPs.[33]The government has also denied access to Human rights groups, International media and researchers from conducting study and research in the area[34]. Islamabad denies about the Human Rights violations in the hands of state actors, this attitude has only provided protection to actual miscreants. The government authorities have been often blamed for allowing terror groups such as Lashkar-e-Taiba to operate in Balochistan[35][36].

 

State of Pakistan has failed to protect the citizens of Balochistan and they live in continuous fear of torture, abduction and illegal detentions. Government’s flawed policies have suppressed the Baloch community and have violated their right of speech and expression. Amnesty International’s Pakistan researcher terms Balochistan as a ‘Human rights free zone’, and raises concerns about the actions of Pakistan army[37].

 

PART 2 
Human rights violations and ethnic cleansing in Balochistan have reached such a scale of enormity that it should shake up the collective conscience of the International community. The following sub-parts will establish the grounds on which United Nations should intervene.

A. BREACH   OF    INTERNATIONAL     NORM       BY    PAKISTANI GOVERNMENT
By inflicting atrocities on its own citizens, Pakistan government has violated many

International norms. Brutal military operations, disappearances and ethnic violence are depriving the Balochs from their basic human rights. Government’s apartheid policy has lead to socio-economic degradation of the province with high infant mortality rates, poverty, illiteracy and hunger. Baloch activist Abdul Nawaz Bugti recently urged the United Nations to intervene in Balochistan[38]. Balochs have lost faith in the government and have openly rebelled and the state is slowly heading towards anarchy. Naela Qadri, a prominent Baloch leader said, “Pakistan has imposed war on Balochistan, and Human Rights violations in the region have reached the level of genocide”[39].

 

Pakistan has failed to protect the rights of its own citizens. People of Balochistan are living in terrible conditions and yet no International organization has addressed the problem.

 

B. THREAT TO WORLD PEACE 
Balochistan lies in a central position, at the crossroads of two “axes”, east-west and north-south, of three macro-regions: Asia, Africa and the Mediterranean basin. It is, in fact, at one and the same time (a) the hinge between the Indian subcontinent, Central Asia and the Euro-Asiatic steppes and the Iranian plateau; (b) the link between those regions which give on to – or gravitate towards – the Indian Ocean and its two western “sea routes”, namely, the Persian Gulf and the Red Sea. For this reason, it is still of vital importance from a geo-strategic and geo-economic point of view[40]. The province also borders two very significant strategic countries of Afghanistan and Iran, any sociopolitical turmoil in Balochistan will directly affect the security of both countries which might spark a major conflict in the region.

 

Sadly, Pakistan remains in the state of denial and always blames India and other foreign powers for the crisis in Balochistan. On the other hand, China having its economic and strategic interests at stake supports Pakistan on the issue. Now when there are nuclear powers involved, one can imagine the gravity of the situation and the threat it poses to the world.

 

The UN has the primary responsibility for maintaining international peace and security. It is internationally recognised that certain Human rights are to be protected no matter what. Gross violations of human rights are considered to be a potential threat to the international peace and security within Article 39 of the Charter of the United Nations[41]. Before the issue of Balochistan aggravates, it’s high time for the United Nations to act and avoid any future conflict.

 

CONCLUSION
Examining the gravity of the situation and the reluctance of Pakistan’s government in resolving the issue, an intervention by the United Nations is the only existing valid alternative. United Nations should impose Economic and Non-Economic sanctions on Pakistan for violating the International Law. Economic sanctions like commercial and financial penalties, trade barriers, tariffs and limitations on economic transactions should immediately be imposed. Furthermore, Non-Economic sanctions like isolating Pakistan government by cutting diplomatic ties should be adopted.

Security Council should take action in order to maintain International peace and security under Chapter 7 of UN Charter[42]. Sanction measures, under article 41, encompasses a broad range of enforcement options that do not involve the use of armed force[43]. UN in the past identified serious humanitarian crisis that may have resulted in the disruption of peace and has taken action. Sanctions in Côte d’Ivoire[44], Rwanda[45] Haiti[46], and Sudan[47] are all such cases.

By the imposition of Sanctions, UN should set a precedent that the International community will not tolerate tyranny and Human Rights violations.

 

[1] Akhilesh pillalamarri, ’A Brief History of Blochistan’, The Diplomat, 12 February 2012,   http://thediplomat.com/2016/02/a-brief-history-of-balochistan/  (accessed 2 July 2017)

[2] ‘Pakistan population increased by 46.9% between 1998 and 2011’, The Times of India, 29 March 2012, http://timesofindia.indiatimes.com/world/pakistan/Pak-population-increased-by-46-9-between-1998-and2011/articleshow/12453387.cms (accessed 1 July 2017).
[3] M.A. Kundi, Balochistan: A socio, Cultural and Political Analysis, Quetta, Qasim Printers, 1949
[4] Adnan Adal, ‘Historical background of Baloch National Movement’, Nawa-e-Insan, Vol: 6, issue: 11, January 2006
[5] Martin Axmann, Back to the future: The Khanate of Kalat and the Genesis of Baloch Nationalism, 1915-1955, Oxford University Press, 2008, p.155.
[6] Khuram Iqbal, ‘Pakistan’s Gwadar Port and Singapore: Why Peace in Balochistan is crucial?’, RSIS commentaries, 136/2007,1
[7] Graham Evans and Jeffrey Newnham, the Penguin Dictionary of International Relations, Penguin Books, 1998, p.
[8] .
[9] CIA The World Fact book, South Asia: Pakistan, http://www.cia.gov/library/publications/the-worldfactbook/geos/pk.html (accessed 4 July 2017 )
[10] Feroz Ahmad, Ethnicity and Politics in Pakistan, Oxford University Press, Karachi, 1998, p.15.
[11] Feroz Ahmad, Ethnicity and Politics in Pakistan, Oxford University Press, Karachi, 1998, p. 16.
[12] Umair Jamal, ‘Pakistan’s Balochs Fear Minority Status in Their Own Province’, The Diplomat, 11 February 2016, http://thediplomat.com/2016/02/pakistans-balochs-fear-minority-status-in-their-own-province/ (accessed 2 July 2017).
[13] ‘Balochistan: Myth of Development’, DAWN, 2 November 2008, https://www.dawn.com/news/845263 (accessed 2 July 2017).

[14] ‘Balochistan: myth of development’, Dawn, 2 November 2008, http://www.dawn.com/news/845263/balochistanmyth-of-development (accessed 11 July 2017).
[15] ‘Balochistan: myth of development’, Dawn, 2 November 2008, http://www.dawn.com/news/845263/balochistanmyth-of-development (accessed 11 July 2017).
[16] Sana Samad, ‘Growing Unemployemnt rate in Balochistan’, Daily Balochistan Express, 24 July 2017, http://www.bexpress.com.pk/2016/06/growing-unemplyment-rate-in-balochistan/#  (accessed 24 July 2017).

.
[17] ‘Unemplyment rate in Balochistan’, Dawn, 16 June 2011, http://www.dawn.com/news/637065 (accessed 5 July 2017).
[18] ‘Literacy rate declined in Balochistan Despite Educationl Emergeny’, The Balochistan Point, 15 May 2015, http://thebalochpoint.com/literacy-rate-declined-in-balochistan-despite-educational-emergency/ (accessed 7 July).
[19] ‘Balochistan: Glaring inequalities persist in Pakistan’, Unrepresented Nations and Peoples Organization, 18 April 2008, http:// www.unpo.org/content/view/8039/243/ (accessed 9 July, 2017).
[20] http://en.m.wikipedia.org/wiki/sui_gas_field (accessed 11 July 2017).
[21] Pakistan Petroleum Limited, http://www.ppl.co.pk/content/sui-gas-fiel-overview (accessed 11 July 2017).
[22] Christophe Jaffrelot, The Pakistan paradox, Random House India, 2016. Available from: http//books.google.co.in (accessed 11 July 2017)
[23] http://www.bos.gop.pk/publicationreports (accessed 11 July 2017).
[24] Sananullah Baloch, ‘Remembering Habib Jalib Baloch’, Daily Times, 13 July 2011, http://dailytimes.com.pk/opinion/14-july-11/remembering-habib-jalib-baloch (accessed 11 July 2017)
[25] Pakistan: the worsening conflict in Balochistan, International crisis group, Asia report no. 119
[26] ‘Understanding Balochistan’,Dawn, 23 April 2009, http://www.dawn.com/news/826386 (accessed 24 July 2017)
[27] ‘Chinese to   outnumber Baloch        natives         by       2048,    The    Nation’,      29    December   2016.

http://nation.com.pk/national/29-dec-2016/chinese-to-outnumber-baloch-natives-by-2048 (accessed 14 July 2017) 27 Salman Masood, ‘Major Party walks out of coalition in Pakistan’, The New York Times, 2 January 2011, http://mobile.nytimes.com/2011/01/03/world/asia/03pakistan.html (accessed 6 July 2017)
[28] ‘Balochistn: Pakistan’s other war’, Al Jazeera World, 9 January 2012 http:www.aljazeera.com/programmes/aljazeeraworld/2012/01/2012121372863878.html (accessed 11 July 2017).
[29] Ibid.
[30] ‘Enforced             Disappearances              in       Pakistan       slammed’,       Al       Jazeera,       30       July        2011,

http://www.aljazeera.com/news/asia/2011/07/201172915315663130.html (accessed 11 July 2017)
[31] ‘Pakistan            military’s      kill       and     dump      policy      continues      in      Balochistan      ’,      June       2011,

http://abbugti.wordpress.com/2012/01/06/the-pakistan-militarys-kill-and-dump-policy-cotinues-inBalochistan/ (accessed 12 July 2017).
[32] Malik Siraj Akbar,’The mass Graves of Balochistan’, Huffpost, http://m.huffpost.com/us/emtry/5696642 (accessed 12 July 2017)
[33] N. Jahanzaib, ‘The tragic status of IDPs in Balochistan’, Sharanoff’s Global Views, 18 December 2014, http:www.sharanoffsglobalviews.com/idps-status-balochistan-446/ (accessed 12 July 2017).
[34] ‘Balochistan- A Human Rights free zone’, Dawn, 10 December 2011, http://www.dawn.com/news/679484

(accessed 12 July 2017)
[35] Iaccino L, ‘Quetta Terror Attacks: The growth of Islamic Terrorism in Balochistan’, IBTIMES UK, 25 October 2016, http://www.ibtimes.co.uk/quetta-terror-attacks-growth-islamic-terrorism-balochistan-1588156 (accessed 11 July
[36] )
[37] ‘Balochistan- A Human Rights free zone’, Dawn, 10 December 2011, http://www.dawn.com/news/679484 (accessed 12 July 2017)

[38] ‘Baloch activist demands UN Intervention to stop Pakistan’s atrocities in Balochistan’, Zee News,

http://zeenews.india.com/europe/baloch-activist-demands-un-intervention-to-stop-pakistans-atrocities-inbalochistan-2017432.html , 21 June 2017 (accessed 14 July 2017).
[39] ‘Balochistan Conflict’, Economic Times, 16 August 2016, http://m.economictimes.com/slideshows/nationworld/the-balochitan-conflict-10-key-points/53719728.cms (accessed 12 July 2017).
[40] Valeria F. Piacentini, “Introduction”, in: Riccardo Redaelli, the Father’s Bow: The Khanate of Kalat and British India (19th – 20th Century). Firenze: II Maestrale, 1997, p. 21, cited in Taj Mohammad Breseeg, ‘Baloch Nationalism its Origin and Development’.
[41] Article 39 under Chapter 7 of the UN Charter says “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”
[42] Article 41 under Chapter 7 of the UN Charter defines Sanctions, “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”
[43] ‘Sanctions’, http://www.un.org/sc/suborg/en/sanctions/information (accessed 15 July 2017).
[44] ‘Security Council imposes immediate, 13-month arms embargo on côte d’ivoire unanimously adopting resolution 1572’ (2004)  http://www.un.org/press/en/2004/sc8245.doc.htm (accessed 15 July 2017).
[45] https://undocs.org/S/RES/1011(1995) (accessed 15 July 2017).
[46] https://undocs.org/S/RES/841(1993) (accessed 16 July 2017).
[47] ‘Security council declares intention to consider sanctions to obtain Sudan’s full compliance with security, disarmament obligations on Darfur’, 2004,  http://www.un.org/press/en/2004/sc8191.doc.htm (accessed 16 July 2017).

 

Intervention OF Security Council in International Criminal Court

Security CouncilINTRODUCTION

“Power without Law is despotism. But the efficacy of the protection exercised by a judicial organ is, of course, in the last analysis always dependent on the support of the dominant part of the community.”[1]

Many of the states refuses to sign the Rome Charter because of the reason that they are hesitant enough to recognize the amount of control that the Security Council exerciser over the functioning of the International Criminal Court (ICC). They are of the view that how a political organ like the Security Council cans can exercise control over judicial organ like International Criminal Court as it raises doubts about the independency of the International Criminal Court as they fear that it ultimately leads to ICC being controlled by few powerful nations of the World. Apart from that this also leads to a situation in which the ICC is being controlled by those States which are not even the members of the ICC. AS the Relationship Agreement[2] acknowledges that “the International Criminal Court is established as an independent permanent institution in relationship with the United Nations system”.[3] A criminal court can only guarantee a fair trial when it cannot be pressured or manipulated by political, religious or other external powers. In a Rule of Law system the term “independent criminal court” should be considered tautological, , even though it will ultimately always be functioning in a political context.

My primary Hypothesis in this paper is that the UN and particularly the Security Council is not able to accept that in order to have ICC practicing independently and ensuring the fair trials, it is important for all the UN organs to follow their statements of Good Intentions in practice and should not interfere in the working of ICC. On the other hand the belief of the more than half of the member of the United Nations, a that politics can easily tamper Justice and believe that Justice can be negotiated with.

The paper is divided in three Chapters namely 1. Establishment of ICC and Rome Statute, in which I will deal with how the ICC is established and under what circumstances the ICC, exercises its jurisdiction 2. The relationship of ICC with Security Council, in which I will deal with the provisions through which the Security Council exercises control over the ICC 3. Conclusion including suggestions. The research methodology followed is analytical and descriptive wholly based on Secondary source of Data as mentioned in the Bibliography including Books, Articles and Internet resources.

CHAPTER I : THE ROME STATUTE AND THE ICC

  1. Establishment

In the modern time the traces of any International criminal court can be traced back to the establishment of the Tribunals in Nuremberg and Tokyo by the victors of the Second World War, to try those persons who are responsible for the war crimes, crimes against humanity etc. The Nuremberg Trial firmly established the principle that no one ,no state, neither the head of State nor soldiers acting under apparently legal orders, has any right to violate the fundamental or the basic human righs.[4]  This proved to be a stepping stone towards the formation of the International Court to try the Crimes against Humanity and War Crimes. In 1946, the United Nations General Assembly affirmed the principles of international law recognized in the Nuremberg Charter and Judgment. Afterwards, UN asked International Law Commission to study the possibility of creating a permanent International Criminal Court but it was rejected due to the differences of opinion among the states specially regarding the definition of crime of aggression.  In the 20th century, the International Community reached consensus on definitions of genocide, crimes against humanity and war crimes.  The international community was long aspired to the creation of a permanent international court since then.

In the 1990s after the end of the Cold War, the world witnessed the emergence of Ad-hoc tribunals in the form of International Criminal Tribunal for the former Yugoslavia[5] and for Rwanda[6]. The whole International community raises its voice against unacceptable impunity with consensus. But the legality of creation of these Tribunals were questioned on many grounds like whether the Security Council was mandated by framers of the charter to create a tribunal[7] .However, these tribunals were established to try crimes committed only within a specific time-frame and relating to a specific conflict and hence the need of a permanent body to take care of the crimes on the International Scenario was still alive.

On 17 July 1998, the international community reached an historic milestone when 120 States adopted the Rome Statute, which established the permanent International Criminal Court. The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international court  end impunity for the perpetrators of the most serious crimes of concern to the international community. `

  1. Circumstances under which ICC can Exercise its Jurisdiction

The ICC’s jurisdiction can be invoked by following means under the Rome Statute of International Criminal Court, 1998

  1. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14.[8]
  2. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.[9]
  3. The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.[10]
  4. The Role of Security Council Under Rome Statute :-

Under the Rome Statute the Security Council is conferred some powers of referral and dereferral. However, these powers under the Rome Statute should be exercised by the Security Council keeping in mind the Chapter 7 of the UN Charter. These powers are as follows-:

  1. To decide whether a state act constitutes the crime of aggression for the purpose of Art. 5(2)[11] which posts a precondition to the exercise of Jurisdiction of ICC in case of crime of aggression.[12]
  2. Security Council can refer a situation of the occurrence of a crime referred to in Art. 5 of the Statute to the Prosecutor under Art. 13(b) of the Statute. [13]
  3. If Security Council, by a resolution adopted under Chapter VII of the UN Charter requests the ICC not to initiate the Investigation, then no investigation can be carried out for the period of 12 months from the date of passing of resolution. Security Council also has power to renew the suspension of investigation by another year if it thinks fit. [14]

Therefore, we can easily see that Security Council had enough powers under the Rome Statute through which it can easily interfere with the normal functioning of the International Criminal Court. 

CHAPTER II – RELATIONSHIP BETWEEN SECURITY COUNCIL AND ICC

After taking into consideration the Powers bestowed to Security Council under the Rome Statute one can easily arrive to the conclusion that the relationship between the Security Council and the International Criminal Court has not been free from the controversies. This  relationship is not a result of Rome Statute only rather it has  evolved in three stages.

  1. 1.      Under the Draft Statute of International Criminal Court :-

In Article 23 of the International Law Commission’s 1994 Draft Statute for an International Criminal Court, it was stated that 1. The Court will have Jurisdiction with respect to the crimes referred to in Article 20[15] on referral by Security Council.[16]  It further stated that the complaint of crime of aggression shall not be looked into by the Court unless Security Council has decided whether the alleged state has committed act of aggression or not.[17] Finally it denied the jurisdiction of the Court in cases which was looked into by the Security Council, except the Council decides otherwise. However nothing was said about the crimes which would be prosecuted before the ICC interfered with by the Security Council. Hence there was a reason to worry about the independence of the Court and fair trial, especially regarding the complaints relating to crime of aggression.  This fear was proved to be materialistic in the first two years of establishment of ICC. In 2002 United States influenced Security Council to pass a resolution to exempt the US troops and officials from being tried for War Crimes by the ICC.[18] The exemption was renewed in the subsequent year using the veto power.[19] However because of the widespread outrage relating to the treatment of war criminal by the US in Iraq and Guantanamo Bay, Washington could not get the exemption renewed in 2004. [20]

 

  1. 2.      Articles 5, 13(b) and 16 of the Rome Statute

By the plain reading of the Article 5 we cannot find there any role for the security council or any link between the Security COUNCIL and ICC, but the link between political and judicial organ can be traced by reading Art. 5 of the Rome Statute along with Art. 39 of the UN Charter.  Art. 5 mention the jurisdiction of the ICC in case of four crimes viz. genocide, crimes against humanity, war crimes and aggression.[21] However according to Art. 24 of the UN charter Security Council will be primarily responsible for the maintenance of International Peace and Security.[22] Art. 39 of the Charter empower the Security Council to determine the existence of any threat to the peace, breach of the peace, or act of aggression.[23] Hence Art. 5 of Rome statute read in light of Art. 24 and 39 of the UN Charter gives a power to the Security Council to decide whether ICC can exercise jurisdiction over the crimes mentioned in the Art. 5, especially the crime of aggression.

While discussing the Individual Criminal Responsibility and role of Criminal Justice, Vera Golland Debbas states :

 The link established between threats to international peace and security and the core crimes giving rise to individual criminal responsibility under international law was also underlined by the Security Council in establishing the International Criminal Tribunals for Yugoslavia and Rwanda. Criminal justice has therefore been seen as one means of contributing to the restoration and maintenance of peace and the Statute of the International Criminal Court adopted in Rome in July 1998 sustains this linkage in its preamble, in ” recognizing that such grave crimes threaten the peace, security and well-being of the world”. [24]

Despite of having its treaty basis ensuring its independence, ICC will always have its formal relationship with Security Council or UN as a whole.  Under the Rome Statute, Security Council plays a complementary role to ICC as the Statute bestows the function of institutionalizing the criminal responsibility on Security Council as mentioned earlier. However, in doing that, Security Council has the most number of encounters with the Jurisdiction of the ICC, especially when it comes to determining whether the Act of state is of aggression or not for the purpose of Article 5 of the Rome statute.

2.i.   The Crime of Aggression and relationship between Security Council and ICC

ICC, in order to exercise its jurisdiction in case of crime of aggression[25], must do so once the provision defining the crime and the conditions relating to the exercising the jurisdiction are once incorporated[26]. However, such conditions should be consistent with the UN Charter. U.N. organs have assigned the function of determining the aggression specifically to the Security Council the  reason being aggression is one of the preconditions for Security Council to perform its functions under Article 39 of the UN Charter.[27]  Giorgio Gaja in the book ‘The ICC and the Crime of Aggression’ (Compilation of the papers presented in Second International Conference on ICC held in 2001, by Mario Politi and Giuseppe Neesi )  argue :-

 Under the Charter the Security Council has been given an exclusive power to take a decision on existence of aggression but it nowhere says that its finding will be binding also for a treaty body entrusted with the repression of Individual Crimes. Any such binding effect is not required under Article 103[28] of the UN Charter or Article 5(2)[29] of the Rome Statute. It is only one of the ways in which the relationship between the two can be established.

However after reading the bare text of Article 103 of the UN Charter the binding nature of the findings of Security Council is obvious. A case in which crime of aggression is determined and referred to ICC[30] by the Security Council, ICC will have to prosecute the alleged. 

The preparation of the definition of Crime of aggression is been entrusted with the preparatory commission of the International Criminal Court.[31] The Three primary concerns in regard to this, as I have indentified, are

  1. a.       Definition of Aggression
  2. b.      Element of the crime of aggression
  3. c.       Conditions under which ICC should exercise its Jurisdiction

The definition of the crime of aggression is defined in the international instruments. General Assembly Resolution 3314[32] defines some acts as the crime of aggression.[33] However that definition suffers from many drawbacks. Not all the acts, which can be responsible to constitute the crime of aggression, are taken into consideration in the definition. The definition only emphasizes on the state action to initiate crime of aggression. It overlooks the individual or Non-state Institutional responsibility.

The argument referred above says that the Security Council has exclusive power under Article 39 of the UN Charter. However the binding effect of the decision taken in pursuance of that power is now out of question. But one can argue that the power of Security Council under Art. 39 is not an absolute one. Given a hypothetical situation there is possibility of the Permanent Members of the Council will not be able to take a unanimous decision. In such a case, the Uniting for Peace Resolution, 1950 provides that the General Assembly shall consider the matter immediately.[34] This resolution has been invoked on several occasions by the General Assembly. Even the Security Council itself has called for Special Sessions of General Assembly by invoking the Resolution.[35] Hence, Article 39 imposes a primary responsibility on the Security Council instead of granting an Exclusive Power.

Even though in Nicaragua Case[36], The ICJ deciding upon the binding nature of the considerations taken by the Security Council, said that it has the binding nature, Judge Schwebel dissented the opinion saying that the Security council may take legal considerations but it is not bound to apply them like a Court.

2.ii. Article 13(b)(referral)  and Article 16 (derefferal) :

Under the Rome Statute, the Council has been given powers of referral and deferral in respect of Court proceedings and a potential role in the determination of the crime of aggression. It has also been enlisted as an enforcement mechanism in ensuring the cooperation of States with the Court. Even though descending the opinion is regarded as a highly relevant remark.

With regard to powers of referral, the Rome Statute retains the provision of former Article 23(1) under which the Council had the possibility of triggering the Court’s exercise of jurisdiction. Under Article 13(b) of the new Statute, the Council can, acting under Chapter VII, refer to the Prosecutor “a situation in which one or more of such crimes appears to have been committed”. This introduces a collective triggering mechanism parallel to that exercised unilaterally by States parties[37] or by the Prosecutor[38] and is intended to avoid the establishment of ad hoc tribunals by the Council. [39]

 ICC does not have universal jurisdiction under the article 12 of the Rome Statute as it restricts the ICC to try those cases only which are referred to it by the member states for which the place of crime and the nationality of the criminal should be associated with the member states. Therefore, provision of referral by Security Council under Article 13(b) also has important implications on State consent as under it the Security Council may refer any situation to the Prosecutor irrespective of whether it involves the territory or nationals of a State party. This allows the Council to initiate a process leading to the prosecution of individuals who have committed a crime on the territory of, or who are nationals of, States which are not parties to the Statute, and in the absence of those States’ consent, which has happened in case of Darfur Crisis. And also keeping in mind the political nature of the Security Council, and the existence of the veto power, means that some states especially the permanent members of the Security Council will be protected by the referral.

As for the Council’s power to defer investigation or prosecution, had Article 23(3) of the ILC Draft Statute been adopted, it would have constituted the most extensive reach of the Council’s creeping jurisdiction in the field of international criminal law by allowing it, in a situation being dealt with under Chapter VII as a threat to or breach of the peace, to bar the commencement of a prosecution by the Court until the Council decided to allow it to proceed.[40] This implies that the permanent member can have the power to potentially control the jurisdiction and independency of the ICC. Under this section a political body had given the authority to stall the investigation or prosecution of  offences for reasons which need not to do anything with the administration of justice for as long as the Council is prepared to vote for such a resolution As it was rightly put up by Sir Franklin Berman, head of the UK delegations at Rome, who accepts that Article I6 is a ‘departure from pure principle’[41]. This was clearly illustrated in the open-ended nature of the sanctions adopted against Iraq. These all are related to the Council’s power under Article 39 of the UN Charter. However, this provision has substantially been altered as a result of a proposal by Singapore, combined with a Canadian amendment.[42]

Article 16 of the Rome Statute

“No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

The situation has therefore been reversed as this provision underlines certain safeguards to the absolute control which Security Council could have exercised on ICC.

  1. a.       For dereferring a crime to the ICC, the Security Council must act affirmatively on the basis of a resolution requesting the Court to defer its investigation. This implies that the Council will have to obtain the consensus of all five permanent members of the Council in any effort to take away a matter which is pending before or is under the investigation by the Court.
  2. b.      The temporal time limit acts as an additional safeguard. Even though it is subject to renewal, it will again require a Unanimous Resolution by the permanent members of the Council.
  3. c.       Since the resolution is one adopted under Chapter VII, there must presumably be a prior determination under Article 39, the prerequisite for any action. This leads to speculation as to what would then have to constitute the threat to or breach of the peace. Hence, Security Council can be questioned for its action.  

These safeguards have attenuated some of the concerns expressed in Rome that the previous provisions considerably undermined the independence of the Court by allowing for extensive control by a political organ. Yet as was clearly stated by several delegations on a number of occasions, the Statute itself cannot affect the powers of the Council under the Charter. By virtue of the operation of Article 103[43] of the UN Charter, the Council, were it to adopt a mandatory resolution under Chapter could still bypass existing treaty mechanisms for the prosecution of individuals in the sense that Member States’ obligations under the Charter would have to prevail over those under the ICC were these to conflict. [44]

Heikelina Verrjin Stuart, in her article, UN and ICC not the easiest relationship[45] states that In Rome, Article 16 was a clever compromise between the states who wanted an independent prosecutor and the US wanting to control the prosecutor through the SC. It was only meant to curb the prosecutor if his actions would, in exceptional circumstances, be considered a threat to international peace and security, not to push political interests of UN member states and not to be the basis for a kind of conditional referral, or a referral under threat of a deferral. Article 16 has certainly never been imagined as a tool in the hands of the SC to suspend an investigation or prosecution based on a referral by the SC itself.

  1. 3.      Control Over The ICC Prosecutor :-

The question who exercises the control over the prosecutor can be answered in light of the approach by the UN legal affairs office towards the ICC in the Lubanga case. [46] It might prove to be even more disruptive than the political machinations within the Security Council. The refusal by the UN to make disclosure of exculpatory evidence in material provided by the UN troops in Congo possibly goes to the heart of the daily procedures at the ICC. The ICC Statute gives room in Article 54[3(e)][47] for non-disclosure of documents obtained on the condition of confidentiality and solely for the purpose of generating new evidence. The Office of the Prosecutor has, certainly in the first investigations in DRC, widely and routinely collected evidence from the UN troops, MONUC, and NGOs, who understandably wanted to protect their people on the ground. The ICC judges have spoken critically about this blanket agreement, holding the prosecution responsible for not doing their job. The letter of 20 June 2008, written by the UN under Secretary-General for Legal Affairs at the time, Nicholas Michel, proposing that the judges of the Lubanga Trial Chamber would be allowed to read the documents, not at their ICC offices but at the Peace Palace. They would not be allowed to take notes, make copies or any other form of written or verbal record. Notes to the files were allowed to be taken outside the room only. Understandably the TC was irritated and stayed the proceedings just ten days before the trial would have started. [48]

 CHAPTER III: CONCLUSION

Although it seems that the relationship between the Security Council and the ICC under the Rome Statute is complementary, yet, the Council exercises high authority over certain affairs of the Court. The Security Council interferes with the independency of the ICC by imposing its authority in some matters. The most potent weapon for this purpose in the hand of the Security Council is the Article 103 of the UN Charter which poses the Charter above all treaties privately entered into by the Member States. Hence the Article 39 of the UN Charter will always be overriding the provisions of the Rome Statute. However as established earlier, Article 39 does not give any exclusive power to the Security Council but imposes a primary duty. This is why it is important that the reference to “the relevant provisions of the Charter” in Article 5(2) of the Rome Statute be clearly interpreted in the light of United Nations practice. As the International Court of Justice has classically stated, that primary does not mean exclusive responsibility in matters of international peace and security. The Security Council has itself assumed the competence to define aggression (admittedly without authoritative force), and the International Court of Justice, another principal organ of the United Nations, has not considered itself debarred from a case in which aggression was alleged which means that it can also reach its own separate qualification of such acts, even after a determination has been reached by the Council under Article 39.[49] Options involving a qualification by the General Assembly or the ICJ where the Council fails to make such a determination or remains inactive are effectively being examined within the Preparatory Commission, in addition to one which would allow the Court to proceed after a stipulated time limit.

In case of Defining the Crime of Aggression there are three suggestions.

  1. a.       The UN General Assembly can decide whether the act committed by a