National Security at the United Nations This Past Week

Editor’s Note: This is the latest in Just Security’s weekly series keeping readers up to date on developments at the United Nations at the intersection of national security, human rights, and the rule of law.

World Health Organization Declares International Public Health Emergency (Coronavirus)

On Thursday, January 30, the UN World Health Organization (WHO) declared the Coronavirus outbreak that began in Wuhan, China, a Public Health Emergency of International Concern (PHEIC). The term is the WHO’s most severe label for “an extraordinary event” that constitutes “a public health risk to other States through the international spread of disease.” The declaration is meant to mobilize countries to coordinate an international response and consider increased preventative measures.

WHO Director-General Dr. Tedros Adhanom Ghebreyesus explained that “[o]ver the past few weeks, we have witnessed an emergency of a previously unknown pathogen which has escalated into an unprecedented outbreak.” So far, the virus has killed over 300 people in China, infected over 14,000 others, and spread to at least 23 countries. However, the Director-General also emphasized that the declaration should not be viewed as reflecting poorly on the Chinese government’s efforts to contain the outbreak, noting that “[t]he main reason for this declaration is not because of what is happening in China, but because of what is happening in other countries … this declaration is not a vote of no confidence in China.”

As the Washington Post notes, PHEIC declarations often involve as much politics as science. Although such declarations can prompt countries to mobilize, they also risk being interpreted as criticisms of the country where an outbreak originates and can lead to unnecessary travel restrictions. The WHO recommended against “limiting trade and movement,” but did advise exit screenings at transit hubs, such as airports, in countries or areas with “ongoing transmission” of the virus. The WHO was more ambivalent about entry screenings at transit points in currently unaffected countries, noting that “evidence from … past outbreaks shows that effectiveness of entry screening is uncertain.”

Earlier in the week, Dr. Ghebreyesus visited Beijing to meet with President Xi Jinping and other Chinese officials. He praised the government’s response, stating, “the Chinese government is to be congratulated … in many ways, China is actually setting a new standard for outbreak response.” In a tweet, he also warned against misinformation regarding the Coronavirus, thanking Google, Facebook, Tencent, TikTok, and Twitter for their efforts to combat false news and rumors concerning the virus.

This is the sixth PHEIC declaration since the WHO enacted a set of binding International Health Regulations in 2005 in the wake of the SARS epidemic. The five other PHEIC declarations include the 2009 Bird Flu virus, the 2014 Polio outbreak, the 2014 Ebola outbreak in West Africa, the 2016 Zika virus outbreak, and the 2019 Ebola outbreak in the Democratic Republic of the Congo.

UN Condemns Breach of Libya Arms Embargo, Attack on Migrant Center

The UN Mission to Libya (UNSMIL) and the Office of the UN High Commissioner for Human Rights issued a 13-page report Monday, January 27, criticizing two airstrikes on July 2, 2019 that targeted a migrant center in Tajoura, Libya, just outside the capital city of Tripoli. According to the report, the strikes were “conducted by a foreign aircraft,” killing 53 people and injuring at least 87. The report declined to publicly identify the specific party responsible, stating that “[w]hile it appears that the airstrikes of 2 July 2019 were conducted by aircraft belonging to a foreign State, it remains unclear whether these air assets were under the command of the LNA [Libyan National Army] or were operated under the command of that foreign State in support of the LNA.” Footnote 21 on page 11 of the report discusses evidence that the aircraft involved in the strike was likely a Mirage 2000-9 equipped with precision-guided munitions. This fact suggests that the strike was not carried out by the LNA Armed Forces, which are not believed to possess any Mirage 2000-9 aircraft. Fighting in Libya has intensified since last April when the LNA began a siege of Tripoli, currently held by the internationally recognized Government of National Accord (GNA). Michelle Bachelet, the UN High Commissioner for Human Rights, reiterated that, “depending on the precise circumstances,” the attack “may amount to a war crime” and that those guilty “must be held to account.”

The report also criticized the GNA for locating the migrant center close to a military complex, which “put detained migrants and refugees in grave danger” and “likely amounts to a violation of their obligation to take all feasible measures to protect civilians.” The UNSMIL also disclosed in the report that it had received “documented accounts that some migrants and refugees were required to work at the maintenance facility repairing vehicles, cleaning and loading weapons and ammunition, although it is not known how many migrants and refugees were involved” and noted that “[d]epending on the precise facts, such work may have constituted forced labour, in violation of Libya’s international human rights obligations under article 8(3)(a) of the International Covenant on Civil and Political Rights (ICCPR), and potentially forced conscription.” In terms of forced conscription, the UNSMIL noted that such conscription may have included children, and if so, this would violate various international treaties and conventions, including the ICCPR as well as the first and second Additional Protocols to the Geneva Conventions. The report further noted that the accounts it received appear to have involved acts that may even constitute the war crime of “conscripting or enlisting children.”

The UN published the report only two days after the UNSMIL issued a statement criticizing countries for violating a UN Security Council arms embargo. In the statement, the UNSMIL condemned “continued blatant violations of the arms embargo in Libya.” The statement cited cargo flights seen arriving at Libyan airports, containing “advanced weapons, armoured vehicles, advisers, and fighters.” The UN also encouraged countries to live up to their commitments made at the International Conference on Libya, held in Berlin on January 19, where envoys and world leaders met and agreed to cease meddling in Libya and uphold the 2011 weapons embargo.

In December 2019, a confidential 376-page UN report, according to Agence France-Presse, accused the United Arab Emirates (UAE), Jordan, and Turkey of “routinely and sometimes blatantly” flouting the international arms embargo. The UAE and Jordan support the LNA, while Turkey has offered support to the GNA.

International Court of Justice Orders Myanmar to Protect Rohingya from Genocide

On Thursday, January 23, the International Court of Justice (ICJ) issued a provisional measures order directing the government of Myanmar to protect the Muslim Rohingya population in Myanmar from genocide and to preserve related evidence. The Court granted these measures in a proceeding brought by The Gambia pursuant to Article IX of the Genocide Convention. In The Gambia v. Myanmar, the fifteen judge panel unanimously ordered Myanmar to “ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any [genocidal] acts;” “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts [of genocide];” and “submit a report to the Court on all measures taken to give effect to this Order within four months … and thereafter every six months, until a final decision on the case is rendered.”

In determining whether provisional measures were necessary, the Court did not need to determine whether acts of genocide have already been committed in Myanmar, but instead assessed “whether the acts complained of by The Gambia are capable of falling within the provisions of the Genocide Convention.” In its submissions, The Gambia contends that “Myanmar’s military and security forces and persons or entities acting on its instructions or under its direction and control have been responsible, inter alia, for killings, rape and other forms of sexual violence, torture, beatings, cruel treatment, and for the destruction or denial of access to food, shelter and other essentials of life, all [committed] with the intent to destroy the Rohingya group, in whole or in part.” Myanmar, for its part, admitted that at times, violence had been committed against the Rohingya, but “denied that it has committed any of the violations of the Genocide Convention alleged by The Gambia, arguing in particular the absence of any genocidal intent.” Many commentators expressed skepticism concerning the arguments put forth by Myanmar, especially in light of the fact that the country’s legal representatives, including Aung San Suu Kyi, systematically refrained from even using the term “Rohingya” in court.

The Court, however, found that assessments of intent were largely premature at the stage of determining whether to grant provisional measures, as such measures are appropriate upon a finding of a “real and imminent risk of irreparable prejudice” to rights protected in the Genocide Convention. Indeed, even Myanmar’s own appointed judge, German law professor Claus Kress, sided with The Gambia in joining the unanimous order for provisional measures to be implemented. It bears noting, however, that the ICJ remains a far way off from arriving at any final determinations as to whether acts of genocide have been committed against the Rohingya and whether any such acts are legally attributable to the government of Myanmar. It will likely be years before the case nears the merits on these questions.

The measures come after the UN Human Rights Council released a fact-finding report in September 2019 that concluded that Myanmar “incurs state responsibility” for genocidal acts that have been committed against the Rohingya and that Myanmar’s military officials should be “investigated and prosecuted in an international criminal tribunal for genocide.” Specifically, the report noted that over 600,000 Rohingya inside Myanmar faced continuing threats of persecution and genocide from the Burmese government, while over 740,000 had fled to neighboring Bangladesh.

Under the 1948 Genocide Convention, one of the few humanitarian treaties that Myanmar has ratified, a nation may be brought before the ICJ if it is found to bear responsibility for acts of genocide. In November 2019, The Gambia filed suit against Myanmar at the ICJ with support from the Organization of Islamic Cooperation (OIC). The prohibition on genocide is considered a peremptory norm of international law, and any state party to the Genocide Convention has standing to seek legal redress at the ICJ to prevent or punish acts of genocide pursuant to Article IX of the Convention. Myanmar argued that a state party could not bring a suit on behalf of the OIC. However, the ICJ’s order, in addition to granting provisional measures, affirmed The Gambia’s standing to file suit.

Despite the provisional measures order and UN report, a final decision in the case may still take several years and will only address state, rather than individual, liability for potentially genocidal acts and does not extend to war crimes or crimes against humanity. Meanwhile, various other bodies are investigating crimes in Myanmar: including the UN Independent Fact-Finding Mission on Myanmar, the UN Independent Investigative Mechanism for Myanmar, Argentinian courts, and the International Criminal Court (ICC). The ICC began investigating alleged crimes of deportation, persecution, and violence against the Rohingya in Bangladesh and Myanmar in November 2019. As explained here, however, the ICC does not have jurisdiction to investigate crimes occurring solely within the territory of Myanmar absent Security Council authorization because Myanmar is not a state party to the Court. As such, the ICC is currently limited to investigating crimes occurring wholly or at least partly on the territory of Bangladesh, which is a state party to the ICC, resulting in a focus mainly on acts related to deportation and the migrant crisis stemming from the treatment of the Rohingya population in Myanmar.

UN Secretary-General Emphasizes Need for Action on Climate Change

On Thursday, January 23, UN Secretary-General António Guterres warned of the lack of progress made against climate change in a speech at the World Economic Forum’s annual meeting in Davos, Switzerland. “I believe we are losing the race. Climate change is running faster than we are,” Guterres said. The UN chief singled out “the big emitters,” noting that the G20 represents eighty percent of global greenhouse emissions.

The speech came two days after US President Donald Trump and climate change activist Greta Thunberg gave remarks on the opening day of the conference. President Trump’s keynote highlighted stock market gains, low unemployment, and his Administration’s tax cuts. Thunberg, however, lambasted world leaders for their inaction on climate change, saying, “our house is still on fire.”

The day before his address in Davos, Secretary-General Guterres emphasized climate change in a speech to the UN General Assembly. He said the most recent UN Climate Change Conference – COP 25 in Madrid – was evidence that countries “continue to fiddle” on climate change. Activists had hoped the December conference would finalize many of the rules from the 2015 Paris Agreement on climate change, but countries instead punted most issues to next year’s climate conference.

Image: A wide view of the Security Council as Ghassan Salamé (on screen), Special Representative of the Secretary-General and Head of the United Nations Support Mission in Libya (UNSMIL), briefs the Council meeting on the situation in Libya. 30 January 2020 United Nations, New York (UN Photos)

 

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About the Author(s)

Jared LeBrun

J.D. student at Yale Law School, former intern at the Department of State, the Department of Energy, and the law firm Covington & Burling.