Dealing with situations where there is conflict between parties is part of many lawyers’ work. This is the case, too, for Gerard van Bohemen, except that much of his role is on the edge of major international conflicts.
Mr van Bohemen is New Zealand’s Permanent Representative to the United Nations Security Council.
He describes his appointment as “a great honour. Not many people have the opportunity, so I’m very appreciative of that.”
This is only the third time New Zealand has been on the council. “We were on in the 50s and then in the 90s when I was one of the deputy permanent representatives.
“So I’ve had an opportunity that very few people have had, and I’ve had it twice, which is very fortunate.”
The UN Security Council has 15 members. Five members are permanent and the other 10 are elected for two-year terms. These 10 seats are allocated among the various regional groups. The Western European and other group, of which New Zealand is part, has two seats.
When these two seats came up for election in October 2014, New Zealand, Turkey and Spain contested the election. New Zealand was successful on the first ballot. Needing two thirds of the 193 states voting, New Zealand received 145 votes. (Spain had to battle things out with Turkey over two further rounds before it was elected.)
“It was a big success. I have to say it was the most successful campaign we have ever run,” says Mr van Bohemen, who has been the Government’s International Legal Adviser and Director of the Legal Division of the Ministry of Foreign Affairs and Trade and then the Deputy Secretary responsible for Multilateral and Legal Affairs before his posting to New York early last year.
Following its election, one New Zealand focus on the council has been “to try and change the dynamic a little bit – to get people to talk more about how we can make things better rather than stating things for a non-existent record”.
On the first day of New Zealand’s presidency of the council – in July last year – New Zealand convened an informal breakfast of permanent representatives. The aim was to have an unscripted direct discussion among the permanent representatives – “something that had not happened in our first six months on the council. The permanent representatives seemed to enjoy the experience. Our example has been followed in nearly every presidency since. The aim is to encourage a greater focus on problem solving.”
Also in July 2015, New Zealand convened an informal discussion to talk about decision-making, including the use of the veto. It was “something of a diplomatic triumph” even to get all 15 members to show up because a few of the permanent members were not enthusiastic. “But they came and we had a spirited discussion which gave the elected members the chance to say some of the things that rankle about the permanent members’ domination of council processes.”
The elected members of the council have the privilege or the burden of chairing the various sanctions committees that the council has established.
“I chair the Al-Qaeda and ISIL sanctions committee, which is the most significant committee given the events of the moment. We meet two or three times a month depending on what’s happening.
“We discuss whether some entities should be listed as terrorists, and then we might get reports – for example, from the monitoring team of their investigations of the oil trade with ISIL in Syria.
“We then decide how to bring that information to the council,” Mr van Bohemen says.
When speaking with LawTalk, Mr van Bohemen referred to some of the international conflicts that the Security Council has been involved with recently. Much of the recent focus has been on the Middle East – Syria, Yemen and Israel/Palestine.
“There are also situations in Africa which were really bad,” he says.
“South Sudan is probably the most horrible of them all, where the UN is trying very hard to get traction in this whole new country which collapsed shortly after formation.
“It’s [also] doing a stabilisation job in the largest country in Africa, the Democratic Republic of Congo. There’s a large operation there. They are trying to stabilise the eastern side of the country, in particular, that got destabilised by the genocidaires from Rwanda that came in there in the 90s. And it has its own internal challenges as well.
“It’s doing an important stabilisation job in the Central African Republic, which collapsed in fights between Muslims and Christians, and it’s fighting a very difficult battle in Mali, where you’ve got a cocktail of terrorists, narco trafficking and guns. Mali and Libya are the two places people worry about because they can link the Middle East and North Africa. There’s a lot of guns, a lot of money and a lot of crooks there. The UN, in addition to the African Union and its subsidiary regional bodies, is a big player in those sorts of stabilisation situations.”
The United Nations has learnt, he says, that it can’t “coercively change the situation on the ground because then it tends to become a party to the conflict. Rather it tries to contain situations. Then through a mixture of persuasion and pressure, it gets parties to negotiate solutions.
“It’s very slow, so in the case of Syria it’s taken five years to get the parties to talk. They are meeting in Geneva right now [15 March].
“In a real world sense it may look like the Council does not work because we don’t have automaticity of implementation, we don’t have a police force, we don’t have a coercive court that imposes its will, so you rely mainly on persuasion.
“But from a small country perspective such as New Zealand that’s still ultimately a lot better than having no international body because then it’s completely the law of the jungle and might is right.
“It’s prevention of conflict, and if you can’t prevent it, what can you do to try and ameliorate it, bring it to an end – [employing] negotiations and then a government formation process and then, hopefully, nation building. Other parts of the UN take over at that point. The council is really only involved in the conflict prevention, containment, resolution parts of it.”
The role, Mr van Bohemen says, is interesting. However, it can be depressing. “You can have an unrelieved diet of disaster scenarios brought before you, with unspeakable atrocities inflicted on often defenceless people.
“One of the things as a lawyer that’s troubled me … we built quite an edifice of normative law over the 70 years of the UN’s existence, but if you look at human behaviour in some of these cases we are no further ahead than the middle ages. We’ve got rape as an instrument of war, sexual exploitation, people chopping each other up and blowing things up. It’s pretty gruesome.
“Situations in the Middle East, particularly ISIL, where they use sexual exploitation and slavery as a means of war plus some of the things in South Sudan where there is unrelieved savagery towards women and children, you can go home at night feeling pretty bleak about the world.
“You get your successes, though, from the small gains that you make. You are managing a river, because stuff comes and stuff goes. The world carries on. There’s no beginning and end to these things. Something is always on our agenda.”
Lawyers bring to such roles as his a series of skills, including negotiation, mediation and drafting – particularly in drafting resolutions. “Resolutions can be legal documents because the council has the power to take measures that are binding on all member states, and so they can have a legislative function.
“So all of the skills I’ve used in Government legal practice and in private practice – and I’ve been in private practice off and on for 12 years over the course of my career – are very transferable. It’s just that the focus is different, the traditions are different. Going from a courtroom to the council I find is a liberating experience because courts are less flexible in their processes. But you can’t be called out of order or in contempt of court or anything like that in the UN,” Mr van Bohemen says.
His private practice experience includes being a partner of Buddle Findlay in Auckland and then Chen Palmer in Wellington, as well as senior solicitor at Russell McVeagh in Auckland earlier in his career. During his recent visit to New Zealand, he was the special guest speaker at the AMINZ Conference in Queenstown from 3 to 5 March.