Posted September 19, 2013
by Jerry Alatalo
(The following comes from the United Nations website: un.org. Patricia O’Brien will be heavily involved in bringing those responsible for the August 21 Syria chemical attacks to justice. This interview provides a greater insight on legal issues of an international nature.)
Interview with Patricia O’Brien, United Nations Legal Counsel
Much of the work of the Office deals with international law – for example, advice on law applicable to treaties, war, peacekeeping, oceans and criminal justice. It also extends to the internal administration of justice for a UN staff of more than 60,000, UN procurement contracts and relations with the host countries of UN facilities, as well as to advice on the development of national legal systems.
Before taking up her work at the UN, Ms. O’Brien held high legal positions in her native Ireland, the most recent having been Legal Adviser to the Department of Foreign Affairs. UN News Centre spoke to Ms. O’Brien as she was about to complete her term after five years of service and become Permanent Representative of Ireland to the UN in Geneva.
UN News Centre: It seems that the Office of Legal Affairs has a daunting range of responsibilities. Can you give us an example of the kinds of things that preoccupy you on a day-to-day basis?
Patricia O’Brien: As a general introduction, I would say that our principal task is to support the Secretary-General’s commitment to the rule of law, to the quest for justice and to the ending of impunity for war crimes, crimes against humanity and genocide. The rule of law, both at the national and international level, is critical for the United Nations in so many ways, at so many levels. We are working in a very political environment, however; that is the reality. So our legal advice is given in the context of the political reality that we face. That is not to say in any way that our legal advice is designed for political purposes.
I am particularly proud, not for myself, but for the United Nations, to see the rule of law becoming more and more relevant for the work of the Organization as every day goes by.
UN News Centre: Does every decision taken by the Secretary-General or Security Council have legal implications?
Patricia O’Brien: I wouldn’t say that every decision does, but most decisions do. The Secretary-General, as the leader of the Organization, has ensured that international law – and “The Law” – lies at the heart of everything he’s doing. We’ve had to face legal issues in relation to Gaza and [Operation] Cast Lead, in relation to the Sudan, Sri Lanka, general Middle East questions, questions of piracy, ocean matters, ocean/maritime disputes. The range is quite extraordinary. One of the most critical things from my perspective has always been to try to ensure that the objective legal advice of my office is provided at the earliest stages of any issue, so that it can be factored in.
UN News Centre: What has been the role of your office is helping to operationalize international tribunals?
Patricia O’Brien: We have a significant role to play in the day-to-day support provided to these tribunals and, indeed, in their establishment. For many years after Nuremburg, there was essentially no international system of criminal justice. In the 1990’s we had the terrible events in Rwanda and the former Yugoslavia, which gave rise to the Security Council decision to establish those tribunals. These were shortly followed by what’s known as the SCSL for Sierra Leone and the ECCC for Cambodia. These were essentially the basket, if you like, of international criminal mechanisms, which have been established under the umbrella of the United Nations in one way or another.
Essentially, international criminal justice as we know it now has really only been evolving over the last 20 years. The tribunals have reaffirmed the principles established at Nuremburg that those who commit or authorize the commission or perpetration of grave international crimes, war crimes, crimes against humanity and grave violations of IHL [International Humanitarian Law] will be held individually accountable. We also have a formal cooperation agreement with the International Criminal Court (ICC), which is known as the relationship agreement of 2004. International criminal justice has become a central feature of international law, but the challenges are enormous and we must always remember that the ICC is actually relatively new. I think that we are achieving an enormous amount through these mechanisms.
UN News Centre: How has your work in relation to the tribunals impacted lives or the situation on the ground?
Patricia O’Brien: Providing justice for victims is at the heart of what we are doing. There is also the deterrent effect, which we in my office believe is a real factor. Of course it’s not absolute; we have to work on it every day. I think we are now at a very critical junction in relation to international criminal justice where we must not allow ourselves to lose sight of the priority of justice. As the Secretary-General has said, peace and justice must go hand in hand.
We are now truly in an age of accountability, as the Secretary-General stated a few years ago. The beginning of the end of impunity has begun. No one is above the law. Leaders will be held accountable – this is a relatively new concept in terms of its implementation. Sovereignty as a barricade to international criminal justice is gone. And finally, there can be no sustainable peace without justice. These principles are vital for the future of international justice and the United Nations needs to make sure that it doesn’t lose sight of them in its day-to-day political activities.
UN News Centre: Some people have claimed that the ICC is just focusing on Africa when it comes to indictees. What is your take on that criticism?
Patricia O’Brien: This is a difficult issue. The perception that the work of the Court is focused on Africa is very unfortunate, because we all know that the reality is that the Court would not be in existence if it were not for the support that Africa has given to it, and indeed continues to give to it, in the various Member States that are parties to the Rome Statute [that established the Court]. I would argue that the Court might never have come into existence if it hadn’t been for their support.
Also we have to remember that the preponderance of cases and situations that are under review by the ICC are cases of what we call ‘self-referral’ by African States. Those situations would possibly not be under review by the Court if it weren’t for the fact that the leaders in those countries decided to refer the situations. There is of course a tension, currently, between the African Union and the Court. In my recent visit to Addis, it became quite palpable to me that this tension is very real and it is something that we have to address with respect. But at the same time, we at the United Nations cannot for one moment lose sight of our commitment to support the Court. We may be tempted to move off course in order to accommodate the skepticism that is developing. But we cannot do that in my personal view.
UN News Centre: Why has it proven so difficult for President Omar Al-Bashir of Sudan, accused of crimes against his own people in Darfur, to be arrested and brought to justice?
Patricia O’Brien: Well, once again you’ve given me a perfect example of a legal issue that is fraught with political dynamics. The answer to this is not a legal answer; it’s a political question with a political answer. The Rome Statute provides the framework for cooperation. This is a legal framework and legal obligations arise from States becoming parties to the Statute. There is an obligation to arrest when an arrest warrant is in existence. That obligation is clear.
The fact that some States who are parties to the Rome Statute are not complying with their obligations is a matter that I would not pronounce on as a political issue, but clearly this is a problem from a legal point of view as well. They have a legal obligation to support it. This goes back to the fundamental principles of the rule of law. They have signed up to an international treaty that gives rise to obligations; they are obliged to comply with those international legal obligations. If they do not comply, they are in breach of the law. That is essentially the legal position.
Of course, it doesn’t take an enormous amount of imagination to wonder why particular leaders are disdainful of the Court and behave in a way that undermines the Court. It comes back to, possibly, their own personal concern and interest. This, in another way, shows the effectiveness and importance of the Court. So it’s something as I say that we cannot in the United Nations ever lose sight of.
UN News Centre: We’d like to move on to the principle of Responsibility to Protect. Why has it been so difficult to employ this principle, in stopping the killing in Syria, for example?
Patricia O’Brien: Well, that’s a huge question. The Secretary-General divided the principle of Responsibility to Protect, for use and comprehension, into three pillars. The first two are focused on prevention, the first being the responsibility of States to protect their populations from war crimes, crimes against humanity genocide and ethnic cleansing. The second pillar is the responsibility of the international community to support States in protecting their populations. And the third pillar, which is of course the most controversial, provides, when States are manifestly failing to protect their populations, for the international community to intervene using all the authority provided by the Charter. This includes Chapters VI, Chapter VII and Chapter VIII.
This is one area that has been open to a lot of misunderstanding, certainly from a legal perspective. The rule of law weaves its way through each element of Responsibility to Protect, but most importantly in the third pillar, and this is relevant when you’ve gone beyond prevention, talking about Syria. The misinterpretation is the suggestion that Responsibility to Protect provides a further layer of international law for humanitarian intervention when the Security Council has not given its authorization to intervene, which is the case in Syria; that there is another legal basis to actually intervene. This is not the case as far as we are concerned.
The legal framework, as provided by the Charter, has a prohibition on the use of force except where it’s in self-defense or where the Security Council has authorized it. In this case, the Security Council has not authorized it. Then the question arises, is the Responsibility to Protect relevant at all for Syria now? I would say yes, every single day, in the form of the first pillar, prevention. This is what [Joint Special Representative Lakhdar] Brahimi is doing and what the Secretary-General is spending so much of his time doing, even in the most recent efforts to establish a mechanism to investigate the use of chemical weapons, in order to prevent and to deter the perpetration of further crimes. The fact that the Security Council has not agreed on certain authorizations is one aspect which is, of course, unfortunate. But we can’t lose sight of the continuing relevance of Responsibility to Protect.
UN News Centre: Is there a clear example of where the Responsibility to Protect has been applied and has saved lives with the necessary backing of the Security Council that you have described?
Patricia O’Brien: Well, the obvious situation is Libya. But the Secretary-General’s efforts in so many other areas have had a very positive effect in the context of Responsibility to Protect. Of course, we don’t have the proof that Responsibility to Protect was effective when crimes have been prevented. For example, all the efforts for Côte d’Ivoire, I think have had a success in terms of civilians and prevention of further conflict.
Libya is the obvious example because it is the most robust application of the Responsibility to Protect, and because the Security Council for the first time actually expressly referred to the principle in its Chapter VII measures. This gave an umbrella, if you like, for the activity that then took place. Of course there are those who had difficulties after the NATO intervention with the use of force and how it was used, etc. But I think also it cannot be argued against the fact that many civilian lives were saved. It continues to be relevant for Libya in that way because we are on the ground working with the Libyans to try to ensure that there will not be a return to conflict. That goes back to the first pillar – prevention.
UN News Centre: Explain to us how decisiveness in the Security Council, or lack of it, impacts on the work you have to do.
Patricia O’Brien: Well, once again, the question is political, but I’m going to steer it to a legal answer. When the Security Council is formulating its mandates, we have been asked to assist in the formulation of particular aspects and to advise on relevant elements, say in the establishment of peacekeeping operations. But when the Security Council has made a decision, it is our role to first of all fully respect it and then to assist the Organization in the interpretation and implementation of its mandates.
UN News Centre: Turning to Haiti, the UN has come in for a lot of criticism as to whether we are legally obliged to be taken to court after 8,000 people died because of cholera allegedly brought into their country by UN peacekeepers. It is not a simple issue. Give us a summary of your position.
Patricia O’Brien: What happened in Haiti is a tragedy for the people of Haiti and for everybody. The issue of liability of the Organization in that context has been one of the most difficult briefs which has fallen to me to address. We have spent a considerable amount of time to get it right in the context of the application of the rule of law in terms of the Organization. A decision was made that, as you know, the claims of those affected – the victims – were deemed not receivable because they include a review of political and policy matters.
UN News Centre: Why not receivable?
Patricia O’Brien: Section 29 of the Convention on Privileges and Immunities is inextricably linked to the issue of non-receivability on the basis of involving a review of policy and political decisions. On that basis, we deemed the cases not to be receivable. This was a very difficult decision to arrive at, not least for the Secretary-General. This isn’t for one moment to deny the fact that what happened was a terrible tragedy, and one which we would regret from every perspective. But I can only answer from a legal perspective and I can only give you that answer, because this is the answer which we have given to the claimants. And this is the basis of our response in international law.
UN News Centre: Turning to more personal matters, what are some of the thoughts you have as you are about to move on from your position?
Patricia O’Brien: When the Secretary-General interviewed me five years ago, I felt within the first couple of moments that I would have a really good relationship with him. And it has been for me, and from my perspective, an extraordinary relationship. He has always respected my views, and has made me feel I could express them without inhibition at critical moments. We’ve had good dialogue – sometimes we have what we would call ‘constructive tension,’ but it has always been a great honour. But also in a lighter way, it’s been tremendous fun. It’s been exciting. That’s not to trivialize it, but simply to say that, with the seriousness of the issues which we grapple with every day of the week, to have a certain lightness of being is important. Not easy, but important.
UN News Centre: You are the first woman to hold the position of UN Legal Counsel and head of OLA. In what way could your job or the role inspire or empower more women, particularly in the UN?
Patricia O’Brien: This is something that I’ve always been extremely conscious of, actually. That one has a responsibility as a woman, no matter what level of work one is doing, to represent ourselves well in an environment dominated, frankly, by men. It gives us an added burden, which is that we need to be not just good, we need to be excellent. Sometimes we need to be better than the men, in order to prove we are as good as the men. From my point of view, I hope that the few women who would be interested in me would take me as an example of how it’s possible to follow your dreams and to really try to make a difference, without sacrificing on the most fundamental aspect of life, which is to support those we love.
Ms. O’Brien discusses the ‘Responsibility to Protect’ in international law. Credit: IBA Global Insight
UN News Centre: Finally, I see that you seem to be a citizen of the world. You were born in Brunei, and grew up in Nigeria, Cambodia and Democratic Republic of the Congo. How does this inform your attitude to the work you have been doing here in the UN?
Patricia O’Brien: I never really thought about it in terms of my childhood, but from the first days after I arrived here, I felt very comfortable. In my office, there are 60 different nationalities out of a staff of just over 200. It is a wonderfully global and diverse environment to work on legal issues. I have also made friends from so many parts of the world. I had been in private practice as a lawyer, and I had worked as an advisor to the Irish Government for many years, and then I moved into the international sphere in Ireland. But really, it was only when I arrived in New York to work for the United Nations that I sort of felt that ‘now I’m home.’
UN News Centre: What has been most rewarding for you as Legal Counsel?
Patricia O’Brien: I am particularly proud, not for myself, but for the United Nations, to see the rule of law becoming more and more relevant for the work of the Organization as every day goes by, with rule of law now a critical aspect of all of our discussions.
- Q&A: Syria and the International Criminal Court (hrw.org)
- Miguel de Serpa Soares of Portugal is the New Under-Secretary-General for Legal Affairs and United Nations Legal Counse (lawprofessors.typepad.com)
- Kenya votes to leave ICC days before deputy president’s Hague trial (theguardian.com)
- Kenya Must Reconsider Its Withdrawal from the ICC (jurist.org)
- Ban: No impunity for chemical arms users (worldbulletin.net)