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The Responsibility to Protect: Reading Ethical Responsibilities Into the Rule of Law

March 20, 2014 • GLOBAL ECONOMY, CRITICAL ANALYSIS, International Relations, International Law, Editor’s Choice, Unprotected Post

By Charles H. Camp and Theresa B. Bowman

The scope and source of permissible use of force in response to a humanitarian crisis frames a contentious international debate. Below, Charles H. Camp and Theresa B. Bowman discuss the Responsibility to Protect doctrine.

The scope and source of permissible use of force in response to a humanitarian crisis frames a contentious international debate over the nature of sovereignty and the future of the United Nationals Security Council.  The international community is largely united in support of a simple goal: to prevent future human rights atrocities.  Yet while the purpose is clear, the path remains murky.

The legality of intervention at the behest of the Security Council is largely uncontested.  The purpose of the United Nations is, in part, “[t]o achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character.” United Nations Charter, Article 1, ¶ 3.  Likewise, the Security Council may authorise use of force in response to “any threat to the peace, breach of the peace or act of aggression.”  Id., Article 39.

The difficult question, especially in light of the Assad regime’s recent use of chemical weapons in Syria, is the legality of unilateral State action in response to violations of jus cogens norms where the U.N. Security Council has failed to act timely, if at all.  Does an ethical and, arguably legal, imperative to battle atrocities in furtherance of the principles of the U.N. Charter supersede the unambiguous prohibition within the U.N. Charter itself against unilateral force?

In tackling this question, history is an important guide.  Before the U.N. Charter, intervention in the event of a humanitarian crisis was, according to some scholars, a common theme in States’ practice.  Ian Hurd, “Is Humanitarian Intervention Legal?”, Ethics & International Affairs, 25, no. 3 at (2011), 293-313, 298 quoting Ian Brownlie, “‘International Law and the Use of Force by States’ Revisited,” Chinese Journal of International Law 1, no. 1 (2002), 1-19.  Particularly, a State which had abused its rights of sovereignty by the “cruel treatment of those within its power, whether nationals or not, was regarded as having made itself liable to action by any state which was prepared to intervene.” Id.

The U.N. Charter sought to put an end to all war.  The text of Article 2(4), on its face, appears to do just that.  The Article constitutes a broad prohibition on use of force, as well as even the threat of force.  The only exception to this prohibition is for self-defense, as laid out in Article 51.

Since 1945, a number of states have acted more consistently with pre-Charter justifications in the context of humanitarian aid.  Hurd at 302-303.  Well-known are the cases of NATO’s intervention in Kosovo and the multi-national taskforce led by Australia in East Timor.   In turn, U.N. failures to act to avert crisis underpin perennial support for unilateral action.  To disastrous effect, the Security Council remained largely silent in the face of mass atrocities in Rwanda in 1994, in Bosnia in the 1990s, and in Kosovo in 1999.

In 2000, the “geographically diverse” International Commission on Intervention and State Sovereignty, convened by Canada, determined that the goal of humanitarian protection “was neither primarily a military matter nor essentially a contest between State and individual sovereignty.”  Implementing the responsibility to protect, Report of the Secretary-General, UN Doc. A/63/677 (2009) at ¶ 9.  The Commission articulated a global responsibility to prevent, react to, and rebuild following human rights crises.  This so-called “Responsibility to Protect” doctrine was again articulated in 2004, when the Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change identified both a “State and international responsibility to protect civilians from the effects of war and human rights abuses.”  “A more secure world: Our shared responsibility,” Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004) at ¶ 36.  The report noted that this Responsibility to Protect “has yet to truly overcome the tension between the competing claims of sovereign inviolability and the right to intervene” and suffered additionally from an “operational challenge,” as “[c]ollective security institutions have proved particularly poor at meeting the challenge posed by large-scale, gross human rights abuses and genocide.” Id.

In 2005, the U.N. World Summit, one of “the largest gatherings of Heads of State and Government in history,” hosted “intense and contentious deliberations on a number of issues” including the responsibility to protect. UN Doc. A/63/677 (2009) at ¶ 4. Notably, while consensus proved impossible on issues such as disarmament, a consensus was reached through a “shared understanding of the urgency of the issue” with regard to “detailed provisions regarding the responsibility to protect.” Id. The World Summit Outcome Document thus revealed an international “determination to move the responsibility to protect from promise to practice [which reflects] both painful historical lessons and the evolution of legal standards and political imperatives.” Id. The movement of the doctrine from promise to practice was furthered in 2006, when, in a resolution concerning the protection of civilians in the midst of armed conflict, the Security Council “[reaffirmed] the provisions of … the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”  Catherine Powell, Libya: A MultiLateral Constitutional Moment?, 106 A.J.I.L. 298, 308 quoting Security Council Res. 1674, ¶ 4 (Apr. 28, 2006).

In 2011, the U.N. Security Council partly justified authorisation of limited military intervention by reaffirming the responsibility of “the Libyan authorities to protect the Libyan population…”  Security Council Res. 1973 (March 17, 2011).

This gradual acceptance of the Responsibility to Protect doctrine signals a steady recognition of the notion that sovereignty is a contract.  Instead of understanding state sovereignty as an inherent right of self-determination, sovereignty is increasingly referenced as a contract. Powell at 315.  Where a state violates its responsibility to protect citizens, it violates the contract and places its sovereignty in jeopardy.  Indeed, Anne-Marie Slaughter has observed that “membership in the United Nations is no longer a validation of sovereign status and a shield against unwanted meddling in a state’s domestic jurisdiction,” and that “sovereignty misused, in the sense of failure to fulfill this responsibility [to protect], could become sovereignty denied.”  Anne Marie-Slaughter, “Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform,” 99 A.J.I.L. 619, 628 (July 2005).

Indeed, Security Council members opposed to Resolution 1973 saw the use of force in Libya as a breach of “a firm divide, a wall that should prevent external actors from meddling in the internal affairs of states.”  Powell at 307.  As Catherine Powell notes, many members in favor of Resolution 1973 held strikingly different views on sovereignty.  These States were more likely to view sovereignty as “contingent on how a government treats its citizens.” Id. quoting Mark Quarterman, What Libya Tells Us About the Future of Multillateralism, in Global Forecast 2011: International Security in a Time of Uncertainty 64 (Craig Cohen & Josiane Gabel eds., 2011).

This gradual acceptance of the Responsibility to Protect doctrine signals a steady recognition of the notion that sovereignty is a contract. Where a state violates its responsibility to protect citizens, it violates the contract and places its sovereignty in jeopardy.

The principles of the U.N. Charter, to promote peace and respect for human rights, are increasingly understood in the context of this relatively new doctrine, a responsibility on the part of the global community to protect against the horrors of genocide and other human rights abuses.  Individual States have reacted by asking why that same responsibility cannot be used to justify unilateral action upon the failure of collective action.  If the Security Council does not respond to a human rights crisis, and the global community has a responsibility to prevent those atrocities from occurring, how can humanitarian intervention premised upon that responsibility be regarded as illegal?  As such, legal arguments have attempted to reconcile the Responsibility to Protect with the Charter’s unambiguous ban on unilateral action.

Given the clear language of Article 2(4), two popular arguments supporting the legality of unilateral use of force in the name of a responsibility to protect are, generally speaking, arguments explaining how the U.N. Charter should be interpreted alongside internationally accepted ethical imperatives and the legal effect of accumulated state practice.  The first such argument suggests that cumulative States’ practice to the contrary has fundamentally changed the binding nature of Article 2(4) and that the repeated violation of Article 2(4) has rendered the use of force essentially unregulated.  Hurd at 303 citing Micheal Glennon, “The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter,” Harvard Journal of Law and Public Policy 25 (2002), 539-58.

A second argument is that, given the rising support for humanitarian intervention pursuant to a responsibility to protect, “statements and justifications made by states and others arguing for the legality of humanitarian intervention” collectively undermine the binding nature of Article 2(4) pursuant to “the twin mechanisms of the power of norms and the power of state practice.” Hurd at 304.  In essence, the law must evolve where a normative change has taken place in international law, namely the recognition of a responsibility to protect and the legitimacy of unilateral use of force in limited circumstances.

Even if unilateral use of force is legal, the idea of intervention pursuant to a responsibility to protect is highly problematic for States and scholars alike given its potential to provide an avenue to aggression for non-humanitarian reasons.

Of course, there are practical motives for states to concern themselves with the humanitarian crises of their neighbors.  In the case of Libya, as Catherine Powell observes, intervention allowed several States, particularly in Europe and North Africa, an opportunity to work to minimise the possible domestic impact of a potential refugee crisis as well as  “to prevent destabilizing the region, especially neighboring Egypt and Tunisia, where fragile transitions were underway….” Powell at 314.  These are examples of non-humanitarian, yet perhaps less controversial, motives for intervention: it seems reasonable for individual states to be motivated, at least in part, by a desire to mitigate or avoid the invasion of cross-border chaos.

The larger concern is that states may use the pretext of humanitarian intervention in order to “wage wars for ulterior motives.” Ryan Goodman, “Humanitarian Intervention and Pretexts for War” 100 A.J.I.L. 107 (January 2006).  Of course, the use of force authorised by a diverse, collective group via the United Nations is less likely to stem from unambiguously illegal motives than the unilateral actions of one state.  Notably however, the threat of political misuse is not unique to unilateral action.  Indeed, Security Council action might be subject to similar criticism.

To a certain extent, the goal of the U.N. Charter was to consolidate the administration and enforcement of global order “in the hands of the great powers at the time, and to pacify the relations among other states by depriving them of independent legal channels to war.”  Hurd at 295.  This consolidation of power engenders a related concern: that even within the legally sound context of a Security Council Resolution, U.N. intervention pursuant to a responsibility to protect is exercised in an inherently selective fashion.  As Anne Orford articulated as part of the Proceedings of the Annual Meeting of the American Society of International Law in March 2012, “the responsibility to protect concept is unlikely ever to be invoked to authorise measures against a major ally of the P5… [i]n the most extreme case, a political order that systematically differentiates between its subjects in the application and enforcement of laws may no longer be recognizable as a legal system, and its dictates no longer capable of commanding fidelity or obedience.”  Anne Orford, “Rethinking the Significance of the Responsibility to Protect Concept,” Proceedings of the Annual Meeting (American Society of Law) (March 2012), 27-31, 30.  In the wide-ranging international conversation on this topic, a limited number of scholars have even concluded that this most extreme case has already become a reality; that where state practice is inherently political, any motive for unilateral military intervention is also impermissibly political.  See, e.g. Francis A. Boyle, Destroying Libya And World Order: The Three-Decade U.S. Campaign To Terminate The Qaddafi Revolution (2013).

Even if unilateral use of force is legal, the idea of intervention pursuant to a responsibility to protect is highly problematic for States and scholars alike given its potential to provide an avenue to aggression for non-humanitarian reasons.

Should the inescapably political dimension of official state practice nullify a humanitarian necessity for intervention?  Perhaps surprisingly, this question is not unique to modern global realities.  When Dutch jurist Hugo Grotius first contemplated the legality of humanitarian intervention in 1625, he articulated the enduring concern that such intervention could be used as a pretext for aggression premised upon distinctly non-humanitarian interests.  However, Grotius notably concluded that “a right does not at once cease to exist in case it is to some extent abused…” Goodman at 107 quoting Hugo Grotius, De Jure Belli Ac Pacis Libri Tres, ch. XXV, pt. VIII (4) (Carnegie ed., Francis W. Kelsey trans. 1925) (1625).

The international community has undoubtedly articulated an interest in working collectively to prevent mass atrocities and humanitarian disasters.  Where global politics may delay or make impossible a response to a violation of jus cogens norms, so national politics may also inform an individual state’s willingness to act unilaterally in place of a collective response.  This reality may do little to illuminate the legality of a unilateral exercise of the responsibility to protect, but neither does it serve to nullify on its own.

Perhaps the future of the doctrine lies not in how the international community is able to reconcile differing beliefs on the definitions of international law, but in the development of the United Nations as a dependable response to crisis.

In the face of the controlling authority expressed unambiguously in Article 2(4), arguments for the legality of unilateral intervention according to the letter of the law are difficult to defend.  It is for this reason that the most popular articulations of the practice’s legality rely on the belief that the underlying principles and goals of the Charter, i.e. to maintain peace and prevent all war, can only be realised when its text is read in the context of changing geopolitical and economic realities.  To the extent that the debate is premised upon a tension between strongly held beliefs as to the maintenance of our humanity and the maintenance of our global security, a compromise is similarly unlikely.

As Ian Hurd concludes, “[t]he debate suggests that humanitarian intervention is either legal or illegal depending on one’s understanding of how international law is constructed, changed, and represented. No amount of debate over the law or recent cases will resolve its status.”  “Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World.”  Hurd at 293.

Thus, perhaps the future of the doctrine lies not in how the international community is able to reconcile differing beliefs on the definitions of international law, but in the development of the United Nations as a dependable response to crisis.  This view is reflected in a 2009 Report of the Secretary-General, which finds that as “the United Nations community comes to articulate and implement a response strategy consistent with both the call in [the World Summit Outcome Document] for ‘timely and decisive’ action and the provisions of the Charter, including its purposes and principles, this will make it more difficult for States or groups of States to claim that they need to act unilaterally or outside of United Nations channels, rules and procedures to respond to emergencies relating to the responsibility to protect….  Although ultimately it will be the policies and attitudes of States that will determine whether those positive trends can be sustained, they will find in the United Nations a ready partner.”  UN Doc. A/63/677 (2009) at ¶¶ 66, 68.

About the Authors

Charles H. Camp teaches international negotiations at George Washington University Law School and is an international lawyer based in Washington, D.C. with thirty years experience representing foreign and domestic clients in international litigation, arbitration, negotiation, and international debt recovery.  After practicing at large, international law firms for twenty years, Mr. Camp opened the Law Offices of Charles H. Camp, P.C. in 2001 to focus exclusively on effective, personalised representation in complex, international matters.

Theresa Bowman is an associate at the Law Offices of Charles H. Camp, P.C., practicing in the areas of international commercial disputes and arbitration. Before her current post, Ms. Bowman, a graduate of the George Washington University Law School and President of the Student Bar Association, completed a post-graduate fellowship as a judicial law clerk for the Honorable Reggie B. Walton, District Court Judge for the District of Columbia.

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