- BACKGROUND

1. In their book, ‘The Procedure of the UN Security Council, Third Edition’, Bailey and Daws gave the following account of what transpired on the issue of consultations between the TCCs, the Security Council and the Secretariat in the early 1990s:

" The significant increase in the cost of PKOs in the early 1990s, for which all Member States were liable, coupled with the transition in some operations from peacekeeping to peace enforcement, with attendant greater risk for peacekeeping participants, led to calls from non-members of the Council for a greater input into decision-making on peacekeeping.

In May 1993, at the initiative of the Secretary-General, the ‘first meeting of troop contributors’ took place, in connection with the UNPROFOR. Such meetings increased in frequency, but did not satisfy all the concerns of non-members.

In May 1994, the Council acknowledged ‘the need for enhanced consultations and exchange of information with TCCs regarding PKOs, including their planning, management and coordination’. Following this statement, the Council made some contentious decisions on changes to the mandates of ongoing PKOs. Many TCCs felt that this showed that existing methods of consultation were fine for information sharing but inadequate when a question of change to an operation’s mandate was involved. Specific criticisms were that consultations had not been held ‘in good time’, that inadequate background information had been supplied, and that there was little indication that anything said by non-members would influence subsequent decisions of the Council.

Reflecting these concerns, Argentina and New Zealand requested that the President of the Council call a meeting to consider procedural questions concerning the operation of the Council in this area. The two countries believed that an institutionalisation of consultation mechanisms was desirable and suggested the convening of a standing committee of the Council to review regularly reports on peacekeeping missions and to provide for consultations with non-members. A number of other States wrote letters to the President endorsing the concerns of Argentina and New Zealand. Egypt pointed out that the overwhelming majority of UN peacekeeping forces and observers came from States not members of the Council. Egypt endorsed the proposal that the Council establish a subsidiary organ for the purpose of consultations, under the provisions of Article 29 of the UN Charter. It also argued that the Council should apply the spirit of Article 44 of the UN Charter. Austria supported efforts to include potential as well as actual TCCs in consultations between the Secretariat and the Council prior to the deployment of a new operation.

The Council duly met on 4 November 1994 and issued a presidential statement (S/PRST/1994/62) setting out procedures for consultations between members of the Security Council, TCCs, and the Secretariat. It stated that such consultations should be held ‘in good time’ with an informal background paper circulated well in advance; that they would be chaired jointly by the Presidency of the Council and a Secretariat representative; and would be listed in the UN Journal and the monthly forecast of Council work. A number of Council members felt that setting up a subsidiary organ for the purpose of undertaking consultations would reduce Council efficiency, and such a proposal was not included in the statement.

In the debate following the adoption of the statement, there was widespread support for the measures introduced. …… Some delegations, however, argued that further steps needed to be taken. Malaysia referred to a paper entitled ‘Political Direction and Support’ produced by non-permanent members and TCCs. These States presented a detailed list of situations for which consultations should be called:

"......when the mandate of a new PKO was being formulated; when the concept and/or plan of operation of a PKO was being considered; when the extension of the mandate of a PKO was being considered; when a substantive modification of the mandate of an existing PKO, including the broadening or narrowing of its geographical scope, changes in rules of engagement, introduction of new functions or components and so forth, was being considered; when significant developments occurred which, in the opinion of the Secretary-General, or members of the Security Council or of TCCs, were likely to affect materially the functioning of the operation or its ability to fulfil its mandate; or when the withdrawal of the operation in whole or in part was being considered."

In 1995, a new report by the Secretary-General ‘Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations’ was published. On 22 February 1995, the members of the Council issued a statement (S/PRST/1995/9) in response to ‘the Supplement’ addressing issues such as conflict prevention, the economic and social roots of conflict, peacekeeping, disarmament, economic sanctions, and the role of regional organisations. The debate following the issuing of ‘the Supplement’ also brought more widespread calls from States for the ‘institutionalisation’ of consultations, and a subsidiary organ to include TCCs.

These calls were repeated in a Council meeting on 20 December 1995 called explicitly to consider improvements to such consultations. The meeting demonstrated a clear division between four of the permanent members (France, Russian Federation, UK and US) who recognised failings in the present arrangements but who sought ‘pragmatic’ changes as a remedy, and thirty six TCCs who had been meeting informally, and who proposed the formal establishment of a subsidiary body. China’s statement was neutral. As a result of this debate, and considerable further negotiation informally, the Council in a further presidential statement on 28 March 1996 (S/PRST/1996/13) set out further measures to strengthen consultations. The measures adopted were closer to those suggested by the permanent members than by other TCCs, in that they did not go much further toward the institutionalisation of such meetings. The statement announced that meetings with TCCs would be chaired primarily by the Presidency of the Council, with support from a Secretariat representative, rather than jointly as before; that meetings would be held with prospective contributors before the establishment of a new PKO, and that information about meetings with TCCs would be appended to the Council’s annual report to the General Assembly. Some Council members notified the President of the Council that they had refrained from breaking the consensus necessary for the adoption of a presidential statement, but that they wished the Council to revisit the matter so that the de jure as well as de facto right of TCCs to express their views could be recognised by the Council." Egypt noted that the presidential statement was in the right direction since it stipulated that

"the Security Council recalls that the arrangements described above are not exhaustive. They do not preclude consultations in a variety of forms, including informal communication between the Council President or its members and TCCs and, as appropriate, with other countries especially affected, for example, countries from the region concerned" and that "the Security Council will continue to keep arrangements for consultations and the exchange of information and views with TCCs and prospective TCCs under review and stands ready to consider further measures and new mechanisms to enhance further the arrangements in the light of experience".

Report of the Panel on UN Peace Operations and Thereafter

2. Not long after the problems experienced by UNAMSIL, the issue of consultations between the TCCs and the Security Council was addressed by the Panel on UN Peace Operations chaired by Ambassador Lakhdar Brahimi in its report of 21 August 2000. Under the section, ‘Clear, credible and achievable mandates’, the Report of the Panel on UN Peace Operations linked the commitment gaps in the provision of troops for UN PKOs to the need for better coordination and consultation between the TCCs, the Security Council and the Secretariat. It stated that:

"There are several ways to diminish the likelihood of such commitment gaps, including better coordination and consultation between potential TCCs and the members of the Security Council during the mandate formulation process. TCC advice to the Security Council might usefully be institutionalised via the establishment of ad hoc subsidiary organs of the Council, as provided for in Article 29 of the Charter. Member States contributing formed military units to an operation should as a matter of course be invited to attend Secretariat briefings of the Security Council pertaining to crises that affect the safety and security of the mission’s personnel or to a change or reinterpretation of a mission’s mandate with respect to the use of force."

The Report went on to recommend the following:

"……countries that have committed military units to an operation should have access to Secretariat briefings to the Council on matters affecting the safety and security of their personnel, especially those meetings with implications for a mission’s use of force."

3. In his report on the implementation of the Report of the Panel on UN Peace Operations of 20 October 2000, the Secretary-General supported the Panel’s views on TCCs-Security Council-Secretariat consultations by stating the following:

"TCCs will have an important role to play, because it is their military contingents who will be called upon to discharge their responsibilities professionally, in accordance with the mission mandates, the rules of engagement, and consistent with the long-established principle of "unity of command"."

"I therefore wholeheartedly concur with the Panel’s assessment that closer consultation between TCCs and the Security Council, including through new mechanisms and procedures, is needed. This would help to ensure that the contributors were fully aware of what was expected of them before they deployed personnel to the field, as well as during volatile situations……."

 

4. The issue of consultations between the TCCs, the Security Council and the Secretariat was raised in the 55^th UN General Assembly Fourth Committee General Debate on "Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects" from 8 to 10 November 2000. Describing the Secretariat’s place in the linkage, Under-Secretary-General for Peacekeeping Operations, Mr Jean-Marie Guehenno, said the following in his statement:

"While it is not for the Secretariat to decide on the mandates, it is its responsibility to fully inform the Security Council and TCCs of the implications of a particular mandate, to provide a frank appraisal of whether a proposed mandate is sufficiently clear, and to provide a clear assessment of the resources required to implement the mandate and ensure the safety and security of our peacekeepers.

On a broader level, a frank exchange of information must continue beyond the initial stages of mandate formulation. There is a need for strengthened dialogue and consultations between the Secretariat, the Security Council, and troop and police contributors throughout the life of a mission in order to enable all parties concerned to make informed decisions on all aspects of an operation…….

Such dialogue is what helps maintain the trust required for Member States to be willing to provide the resources needed and to assume the risks entailed in deploying peacekeepers, as the Special Committee has stressed in its report.

At Headquarters, in particular, we must explain to contributors the risks involved in an operation and the way we plan to address them. I plan to make myself, and my senior experts, including the Military and Civilian Police Advisers, available to provide even more frequent and comprehensive briefings for this purpose. This will enable us to not only share our assessments and plans, but also to listen to your own concerns and expectations, so that we can adequately respond to them."

5. In the same Fourth Committee General Debate, speaking on behalf of the Non-Aligned Movement (NAM), the Permanent Representative of Jordan to the UN, H.R.H. Prince Zeid Ra’ad Zeid Al-Hussein, stated the following:

"The Council, too, should involve the TCCs in the process of consultations, in a manner that is institutional and meaningful; one which comes into being at the earliest stages of drawing up an operation, and which persists until the termination of the operation. Unless members of the Security Council, and in particular the permanent members and those with obvious capabilities, decide themselves to meet the troop levels they mandate and to do it all themselves for the operations, particularly dangerous operations, they mandate, then a deeper sense of mutual trust must be cultivated between those who design and those who implement. It is a partnership that, in the case of UNAMSIL and numerous operations before it, has been noticeably absent. The NAM has stressed for some time that whenever the use of force is contemplated, the Council should adhere to Article 43 and 44 of the UN Charter. We therefore welcome the virtually identical comments made by the Under-Secretary-General on the topic of consultations in his presentation."

6. The Permanent Representative of India to the UN, Ambassador Kamalesh Sharma, in his statement in the same Fourth Committee General Debate linked the withdrawal of troops by TCCs to the lack of consultations between them and the Security Council. He said that:

"……In the preparation of a PKO’s tasks and in the evolution of its mandate, the Security Council and the Secretariat must consult closely with the TCCs, taking their advice into account. The continuing crisis in UNAMSIL illustrates why this is essential. TCCs will be increasingly reluctant to put their forces at risk, when they are asked to discharge unrealistic tasks, and when their advice based on experience gathered on the ground is not sought or not accepted when offered."

"There is a further systemic problem, not addressed by the Panel. It encourages the use of force, which the Council can only mandate under Chapter VII. Articles 43 and 44 of the Charter, in Chapter VII, lay down that the Security Council shall invite members providing armed forces "to participate in the decisions of the Security Council concerning the employment of contingents of that Member’s armed forces." The Charter requires much more than consultations; TCCs must be able to "participate" in the Council’s decisions. The Panel recommends only that TCCs be more closely consulted, but even on this there is no evidence that the Security Council seriously wishes to go beyond its present procedures, which are completely inadequate. If the Charter provisions are not followed, if TCCs are not given a say in the evolution of the Council’s mandates, there will be recurring crises when, in exasperation, TCCs pull out of operations where their units are forced to take on tasks that either cannot or should not be done."

7. In his statement to the same Fourth Committee General Debate, the Permanent Representative of Pakistan to the UN, Ambassador Shamshad Ahmad, said that:

"Success of any PKO can be ensured through effective management and coordination by all concerned. One important aspect is consultations between the TCCs, the Security Council and the Secretariat. The present arrangement is not satisfactory as we all noted during the recent crisis in Sierra Leone. The Brahimi Panel’s report highlights this point as well. In this regard, we have proposed the creation of a mission-specific ‘core group’ of TCCs who after the establishment of a mission will actively consult with the Security Council and the Secretariat on all operational matters of the mission. Provision for such consultations are enshrined in the Charter of the UN. This proposal is not geared at supplanting the Charter role of the Security Council but to ensure greater coordination between the Security Council and TCCs, on the one hand, and the Secretariat and the TCCs, on the other. The objective of this proposal is to ensure unity of purpose between the Security Council, the TCCs and the Secretariat on any given operation."

8. On 13 November 2000, the Security Council adopted Resolution 1327 (2000) which included inter alia the following decisions on consultations with the TCCs:

"Encourages the Secretary-General to begin his consultations with potential TCCs well in advance of the establishment of PKOs, and requests him to report on his consultations during the consideration of new mandates."

"Underlines the importance of an improved system of consultations among the TCCs, the Secretary-General and the Security Council, in order to foster a common understanding of the situation on the ground, of the mission’s mandate and of its implementation."

"Agrees, in this regard, to strengthen significantly the existing system of consultations through the holding of private meetings with TCCs, including at their request, and without prejudice to the provisional rules of procedure of the Security Council, in particular when the Secretary-General has identified potential TCCs for a new or ongoing PKO, during the implementation phase of an operation, when considering a change in, or renewal or completion of a peacekeeping mandate, or when a rapid deterioration in the situation on the ground threatens the safety and security of UN peacekeepers."

9. The UN General Assembly followed suit by adopting on 8 December 2000 a resolution endorsing the proposals, recommendations and conclusions of the Special Committee on Peacekeeping Operations. These included the following on consultations with the TCCs under the section ‘Clear, credible and achievable mandates’:

"The Special Committee emphasises the need for clear, credible and achievable mandates and the necessity for significantly strengthening and formalising the consultation process between the Security Council and TCCs in order to make it more meaningful, with due regard to the relevant provisions of the Charter. Such consultations should be held in a timely manner, and may be held at the request of TCCs, in particular when the Secretary-General has identified potential TCCs for a new or ongoing PKO, and the Security Council is formulating the mandate. Consultations should also be held during the implementation phase of an operation, when considering a change in or renewal or completion of a peacekeeping mandate, or when a rapid deterioration in the situation on the ground threatens the safety and security of UN peacekeepers. Such meetings should, as a general rule, be announced in the Journal of the United Nations."

"……Countries that have committed military and civilian police units to an operation should be invited to participate in meetings of the Security Council in which the Secretariat provides it with information on changes to a mission’s mandate and concept of operation that have implications for the mission’s use of force. While authorising the use of force, the Council should adhere to all relevant provisions of Chapter VII of the Charter."

"On matters affecting the safety and security of personnel, countries that have committed personnel to an operation should be fully and regularly briefed by the Secretariat. The Special Committee urges that the Secretariat’s briefings to TCCs be timely, comprehensive and professional, and should, as a general rule, be accompanied by written briefs."

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