PREVENTING INACTION: THE CASE FOR R2P
January 2015
Conference Paper for the ISA Global Southern Caucus Conference 2015
8-10 January 2015
Singapore Management University (SMU), Singapore
ALEX H. CHUNG
B.A. Hons (UNDA) M.A. (UNSW) AFAIM
MPhil/PhD Candidate
Government and International Relations
Faculty of Arts and Social Sciences (FASS)
The University of Sydney
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Abstract. This paper examines the legitimacy of humanitarian intervention on the basis of
liberal conceptions of international society. Discourses and constructs of legitimacy in the
context of interstate and domestic democratic governance will be discussed. International
Human Rights Law (HRL) and International Humanitarian Law (IHL) will be examined in
relation to the state and the obligations of international society. Primarily, the exercise of
human agency and achievement of human security as expressed by Ignatieff, Arbour, Foot,
Bellamy, Evans, and Glanville will be used to premise the paper on the basis of human
equality. In doing so, this paper will assert that states have an inherent duty to uphold the
human rights of its population and similarly apply humanitarian standards of conduct during
times of armed conflict. As such, international human rights and humanitarian law will be
closely examined to present discourses of legitimacy based on international norms and
standards of state conduct. In asserting the sovereign state’s obligation to its population, this
paper will apply human rights and humanitarian standards to analyse the Responsibility to
Protect (R2P) norm and determine whether it can sustain claims of the legitimacy of military
intervention. Punctuated by various examples of intra-state conflict, legal pronouncements,
international institutional declarations, and state practice, this paper answers the question of
whether the liberal conception of international society can facilitate claims to legitimate
military intervention on humanitarian grounds in the international system?
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Biography
Alex Chung graduated in 2013 with an MA in International Relations (IR) from the
University of New South Wales (UNSW) in Sydney, Australia. Under the supervision of Dr.
Mark Rolfe at UNSW, he completed his thesis titled, An Examination of U.S. Drone
Discourse Through the Context of Power, Authority and Legitimacy. He completed his BA
(Hons) in Politics and IR with First Class Honours under supervision of A/Prof John Rees at
the University of Notre Dame Australia (UNDA), where he wrote his thesis Legitimacy of
Humanitarian Intervention: A Liberal Defence.
Alex will be continuing Higher Degree Research (HDR) at the University of Sydney under
the supervision of Prof Colin Wight and Dr Sarah Phillips in the Department of Government
and International Relations.
His research interests lie in International Security Studies (ISS), Post-colonialism,
International Humanitarian Law (IHL), International Human Rights Law (HRL), gender and
sexual studies, disability rights advocacy, and the Responsibility to Protect (R2P) doctrine.
Alex’s family fled from Hong Kong to Toronto, Canada after the Tiananmen Square
Massacre in 1989. Alex was raised in the quiet suburb of Scarborough and still finds time to
enjoy his childhood pastime of skiing during the brief snow seasons in Australia.
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Introduction
The concept of legitimacy has long been central to academic discourse in International
Relations (IR). Since the end of the Cold war, the question of legitimacy has been raised in
areas such as humanitarian intervention, international institutions and law, and for certain
modes of religious or state organisation.1 Mulligan notes the multi-faceted qualities of
legitimacy. 2 Although the use of the word, ‘legitimacy’ is often expressed with the
presumption of assumed universal understanding, the meaning of legitimacy finds its basis in
numerous constructs, including “concepts of (moral and epistemic) right, legality, custom,
tradition and popular approval.”3
Conflict in inter-state affairs is ubiquitous4 and involves
the process of legitimisation and de-legitimisation. This process is framed in terms of “norms
and principles” which are deemed generally accepted,” and accordingly compared to
corresponding criteria in which the legitimacy of certain practices or institutions are judged
on.5
In attempting to demarcate and resolve the confusion between the continuities of political
legitimacy, political authority, and authoritativeness, Hopfl 6 and Buchanan 7 assert that
political legitimacy function as the basis of moral justifications for the exercise of political
power. Hopfl identifies distinctions between power, might, and authority; concepts that can
be traced to Greco-Roman roots, where auctoritas, potestas, and potentia operate in tandem
to form the modern polity.
For ease of reference the genealogical examination of
nomenclature will apply the English equivalents of moral authority (auctoritas), rights of
office (postestas), and resources for objectives (potentia) in place of Latin terminology.
Mulligan notes that the concept of legitimacy has been applied across a wide array of
constructs within International Relations, including the legitimacy of states and governments,
humanitarian intervention, international institutions, and of international law.8 In the context
of the R2P norm, legitimacy relates to those institutions (i.e. states, UNSC, NATO) that seek
1
Shane P Mulligan, "The Uses of Legitimacy in International Relations," Millennium-Journal of International
Ibid. 351.
3
Ibid. 351.
4
Zoltan Miklosi and Andres Moles, "Disagreement and Legitimacy," Res Publica 20, no. 1 (2014). 1-8.
5
Mulligan, "The Uses of Legitimacy in International Relations." 351.
6
HM Höpfl, "Power, Authority and Legitimacy," Human Resource Development International 2, no. 3 (1999).
219.
7
Allen Buchanan, "Political Legitimacy and Democracy," Ethics 112, no. 4 (2002). 689.
8
Mulligan, "The Uses of Legitimacy in International Relations." 349.
2
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to “buttress their position’ and subsequently justify possession and exercise of power. 9
Within modern political discourse, ‘political legitimacy’ is construed as originating from
democratic selection and public opinion, with elements of ethical and legal considerations.10
Liberal democracies seek to gain popular approval, most evident on matters of ‘traditional
security’ and the use of military force.11, 12 Ethical considerations often manifest as quasilegislative committees, where moral experts are integrated into the democratic decisionmaking process, often at the insistence of the electorate. 13 Hopfl contends that, “To
legitimate or justify, then, is to engage in utterance or performance designed to persuade
some audience that some institution, practice, custom, conduct or office is right, is in
accordance with how things should be, and should therefore be acknowledged as
authoritative.”14
State responsibility extends from the 18th century construct of the social contract, thereby
subordinating the state actor as a means for the individuals in a polity to fully achieve human
agency through their inalienable, indivisible, and interdependent human rights. While the
power of the state is legitimated form the consent of the governed, state interests and
individual interests often compete for supremacy. In the aftermath of the 1999 NATO
intervention in Kosovo, the heated legal debate produced multiple interpretations.
Chesterman expressed that the basic presumption of post-1945 international law, pursuant to
Article 2(4) of the UN Charter is that “the use of force is illegal”.15 Welsch associates
sovereignty with the “presumptive right of non-intervention”.16 The rule of non-intervention
serves to protect states and governments, peoples and cultures, and enables societies to
maintain religious, ethnic, and civilizational independence. As with all other elements of
international law, the norm of non-intervention is intended to apply to all states equally.17
9
Inis L Claude, "Collective Legitimization as a Political Function of the United Nations," International
Organization 20, no. 03 (1966). 367-379.
10
Buchanan, "Political Legitimacy and Democracy." 689.
11
Catherine Lu, "Humanitarian Intervention: Moral Ambition and Political Constraints," International Journal
62, no. 4 (2007). 942-951.
12
Simon Niemeyer and John S. Dryzek, "Legitimacy," (Oxford: Oxford University Press, 2010).
13
Frank Dietrich, "Moral Expertise and Democratic Legitimacy," Analyse und Kritik 34, no. 2 (2012). 275-284.
14
Höpfl, "Power, Authority and Legitimacy." 230.
15
Jennifer M Welsh, "From Right to Responsibility: Humanitarian Intervention and International Society,"
Global Governance 8 (2002). 503-510.
16
Ibid.
17
Ibid.
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The plurality of meanings and processes render legitimacy a complex construct to
systematize. Arthur Applbaum identifies the majority of literature as related to conceptions
of legitimacy, associated with notions of democracy, justice, or good administration.18 The
evaluative or moral sense of ‘legitimate government’ as distinct from lawful or legal
government came to France in the late 16th century. Within international law, legitimacy first
achieved prominence with Talleyrand’s ‘principle of legitimacy’ at the Congress of Vienna.19
Thomas distinguishes between juridical, moral and social legitimacy, as applied to
international legal scholarship. 20 Legal legitimacy can be described as a self-justified
exclusionary reason for compliance, distinct from moral considerations. The Latin origin of
legitimus (lawful) is derived from lex (law); “a property of an action, rule, actor, or system
which signifies a legal obligation to submit or support that action, rule, actor or system”.21
Legal validity has been thought to constitute two forms; positivism and natural law.22 Kelsen
perceives the test for positive validity as a recursive legal process, which finds its basis of
justification in the ‘correctness’ of the legal system, until such time that a non-legal
fundamental norm produces an alterative to the status quo for which authority can be
‘presupposed’.23 Changes in social consensus alter recognition of legally legitimate norms,
resulting in a ‘new’ legitimacy.24 While legality and morality may be separate, the basis of
‘natural law’ presumes a relationship between the natural ‘just’ and ‘equal’ state of humanity
with moral legitimacy.25 Institutions and individuals appointed to positions of authority
within the logics of existing legal structures, gain legal legitimacy as an extension of legal
institutions.26
Wellman’s ‘consent theory’27 finds agreement with Hobbes’ ‘social contract’, and assertions
by Claude28 that the existential legitimation of a government can only be justified by its
18
Chris Thomas, "The Concept of Legitimacy and International Law " LSE Legal Studies Working Paper 12
(2013). 1-33.
19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.
23
Lars Vinx, Hans Kelsen's Pure Theory of Law: Legality and Legitimacy (Oxford University Press, 2007). 60.
24
David A Lake, "The New Sovereignty in International Relations," International Studies Review 5, no. 3
(2003). 303-323.
25
Ian Hurd, "Legitimacy and Authority in International Politics," International Organization 53, no. 2 (1999).
379-408.
26
Rosalyn Higgins, "The Icj, the Ecj, and the Integrity of International Law," The International and
Comparative Law Quarterly 52, no. 1 (2003). 1-20.
27
Christopher H. Wellman, "Liberalism, Samaritanism, and Political Legitimacy," Philosophy & Public Affairs
25, no. 3 (1996). 211-237.
28
Claude, "Collective Legitimization as a Political Function of the United Nations." 367-379.
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provision of human needs at a level superior to a society without such government. The
American Declaration of Independence recognises the supremacy of the People and the right
of the demos to challenge and overthrow a tyrannical state. 29 In the Two Treatises of
Government, Locke provides significant exposition affirming this right.30 Wellman points to
the institution of democracy as a vehicle for facilitating the permissibility of state coercion of
those within its territorial boundaries.31 Buchanan notes that the state only maintains political
legitimacy to the extent where it exercises coercive force in a morally justifiable manner.32
Continued discourse surrounds the legitimate use of state power in the face of contradicting
interests, such as those of an accused suspect and their rights viewed against the public’s
interests in conviction irrespective of ‘technical’ (to mean legal) faults in the prosecution’s
case. 33 As expressed by Wellman, “the state has a right to coerce its citizens and,
correlatively…its citizens have no right to be from this coercion.”34 The morally justifiable
application of monopolistic state power does not imply a limitless arena of state control.
Supremacy refers specifically to the, “lack of a rival for the state’s making, application and
enforcement of law within an assumed jurisdiction (typically understood as a territory).”35 As
noted by Finer, Linz and Nordlinger, the legitimacy of a government is related to its domestic
organisation, whereby the legitimacy of democracy has ultimately triumphed over the
illegitimacy of illiberal states, such as those under military, dictatorial, autocratic, theocratic,
authoritarian, or other undemocratic means.36 The conduct of a modern democratic state is
beholden to the consent of the People, whereby the establishment of state supremacy serves
only to deter those others who would attempt to proliferate and enforce their own laws to the
29
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to
alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing
its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
30
“whenever the Legislators endeavour to take away, and destroy the Property of the People, or to reduce them
to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon
absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men,
against Force and Violence. Whensoever therefore the Legislative shall transgress this fundamental Rule of
Society; and either by Ambition, Fear, Folly or Corruption, endeavour to grasp themselves, or put into the
hands of any other an Absolute Power over the Lives, Liberties, and Estates of the People; By this breach of
Trust they forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the
People, who have a Right to resume their original Liberty.” Jim Powell, "John Locke: Natural Rights to Life,
Liberty, and Property," (New York: The Foundation for Economic Education (FEE), 1996).
31
Wellman, "Liberalism, Samaritanism, and Political Legitimacy." 211.
32
Buchanan, "Political Legitimacy and Democracy." 689-690.
33
Findlay Stark, "Moral Legitimacy and Disclosure Appeals," Edinburgh Law Review 14, no. 2 (2010). 205224.
34
Wellman, "Liberalism, Samaritanism, and Political Legitimacy." 211-212.
35
Buchanan, "Political Legitimacy and Democracy." 690.
36
Daniel Sutter, "Legitimacy and Military Intervention in a Democracy," American Journal of Economics and
Sociology 58, no. 1 (1999).129-132.
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detriment of the collective Peoples. 37 States must act within the scope of normative
constraints, expressed as human rights and humanitarian principles in contemporary political
discourse.38
The epistemological origins of legitimacy invoke historical narratives, while partaking in its
own struggle over its interpretation.39 Quentin Skinner asserts that, “We need to treat our
normative concepts less as statements about the world than as tools and weapons of debate.”40
Similarly, Foucault describes discourse as “strategic games of action and reaction, question
and response, of domination and evasion, as well as of battle.”41 Criterions and meanings of
legitimacy have been greatly contested resulting in the emergence of ‘continuities of use’.42
Claude identifies law and morality as constituting the basis of modern legitimacy, although
“neither singly nor in combination…exhaust the field”.43 Morality enjoys intersections with
obedience to the law.44 However, Mulligan asserts that the modern range of ‘conceptual
affiliates’ that characterises legitimacy encapsulates legality to popular approval to moral
appropriateness.45
Within the same scope institutional legitimacy, the constitutional legitimacy of international
law has been challenged, on the basis of democratic constitutional self-government (consent
of the governed).46 Arguments in favour of transnational norms originate from transnational
challenges that cannot be simply contained within the sovereign territory of a state. Sir King
David warned that climate change represents one of the “most serious problem we are facing
today, more serious than the threat of terrorism.”47 On the basis of overwhelming scientific
consensus, global warming and other human-based environmental hazards do not respect
state boundaries, and can affect the world’s collective biodiversity, ecosystems and even
37
Buchanan, "Political Legitimacy and Democracy." 689-690.
A. Buchanan, "The Internal Legitimacy of Humanitarian Intervention," Journal of Political Philosophy 7, no.
1 (1999). 71-87.
39
Mulligan, "The Uses of Legitimacy in International Relations." 353.
40
Ibid. 353.
41
Ibid.
42
Ibid.
43
Claude, "Collective Legitimization as a Political Function of the United Nations." 369.
44
Ibid.
45
Mulligan, "The Uses of Legitimacy in International Relations." 349.
46
Mattias Kumm, "The Legitimacy of International Law: A Constitutionalist Framework of Analysis,"
European Journal of International Law 15, no. 5 (2004). 907-931.
47
David Held, "Reframing Global Governance: Apocalypse Soon or Reform," New Political Economy 11, no. 2
(2006). 157-158.
38
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socioeconomic relations within and between states.48 Held also notes that little progress has
been made towards the UN Millennium Development Goals (MDGs), which outline criterion
for achieving human security via “poverty reduction, health, educational provision, the
combating of HIV/AIDS, malaria and other diseases, environmental sustainability…”49 The
emergence of major militant non-state actors, and the threat of nuclear proliferation,
unaccounted stockpiles, and increasingly militarised technology similarly transcends
territorial boundaries.50 Kumm conceptualises a ‘middle-ground’ between international and
national constitutionalists.51 This middle ground is based on four distinct principles; the
formal principle of international legality, the jurisdictional principle of subsidiarity, the
procedural principle of adequate participation and accountability, and the substantive
principle of achieving outcomes in a manner that does not violate fundamental rights.52 In the
aftermath of WWII, legal positivism was in favour with new constitutions in Western Europe
containing judicially enforceable rights. Human rights-based political morality was (and still
is) viewed as a liberal political morality.53
International human rights regimes and other
global governance frameworks aim to realign global governance with “solidarity, democracy
and social justice,” resulting in “multilevel citizenship, multilayered democracy.” 54
Underpinning the global human rights project in its vision of an ‘equal and just’ world is the
democratic legitimacy of international human rights law in a ‘post-state’ human-centric
world.55
Human Rights and Human Security
Human rights can be defined as consisting of ‘pre-legal’ ethical claims regarding the basic
rights and freedoms that people should enjoy. They encompass non-derogable standards “of
the minimum social and political guarantees recognised by the international community as
necessary for a life of dignity in the contemporary world.”56 Foundationally, human rights
are inalienable and indivisible, in that any and all human beings cannot be denied any right,
48
Ibid.
Ibid.
50
Ibid.
51
Kumm, "The Legitimacy of International Law: A Constitutionalist Framework of Analysis."
52
Ibid.
53
Ibid.
54
Christopher Chase-Dunn et al., "Democratic Global Governance," International Journal of Sociology 43, no.
2 (2013). 41-54.
55
Barry Buzan, From International to World Society?: English School Theory and the Social Structure of
Globalisation, vol. 95 (New York; Cambridge: Cambridge University Press, 2004).
56
Rosemary Foot, "Collateral Damage: Human Rights Consequences of Counterterrorist Action in the Asia–
Pacific," International Affairs 81, no. 2 (2005). 412.
49
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as all human beings are fundamentally and uniformly equal, and that no one person, group, or
category of human beings may, can, or should be considered less important or non-essential,
to justify a lack of such rights. Human rights are not connected to a “political or civil status,
moral worth or conduct” as there is no discrimination between ‘good’ and ‘evil’ humans, and
that each and every human being is deserving of human rights.57 Applicability is not ad hoc
but rather uniform; consisting of positive (freedom to) and negative rights (freedom from)
rights, well established, declared, and enshrined in the body of the existing international
human rights regime framework.58
Demonstrated through the establishment of the UDHR and the more than 80 international
human rights treaties and conventions it has inspired, human rights have emerged as a
relatively recent but nonetheless strongly supported norm in international affairs.59 Not only
have international human rights60, 61 been enshrined in the form of the ICCPR, ICESR, and in
the face of the ‘War on Terror’, the especially relevant Convention Against Torture (CAT),
national and supranational actors have domesticated human rights principles via legislative
and juridical vehicles. This includes the Canadian Charter of Rights and Freedoms, the
United Kingdom’s Human Rights Act 1988, and the ECHR.62, 63, 64 The evolution of rights can
be aptly summated as shifting from “religious toleration, to minority rights (often focusing on
specific ethnic groups in specific ethnic groups in specific countries), to human rights
(emphasizing rights enjoyed by all or broad classes of individuals).” 65 It is the all
encompassing nature of human rights, which has established human rights norms and
57
Michael Ignatieff, "Human Rights, the Laws of War, and Terrorism," Social Research: An International
Quarterly 69, no. 4 (2002). 1137-1138.
58
The Preamble of the UDHR reads, “Whereas recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the
world…whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental
human rights, in the dignity and worth of the human person and the equal rights of men and women have
determined to promote social progress and better standards of life in larger freedom…the General Assembly
proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and
all nations…” United Nations, The Universal Declaration of Human Rights, Last modified 2014,
http://www.un.org/en/documents/udhr/hr_law.shtml (accessed 13 Apr 2014].
59
United Nations, The Universal Declaration of Human Rights, Last modified 2014,
http://www.un.org/en/documents/udhr/hr_law.shtml (accessed 13 Apr 2014].
60
Foot, "Collateral Damage: Human Rights Consequences of Counterterrorist Action in the Asia–Pacific." 411.
61
Emilie M Hafner-Burton and James Ron, "Human Rights Institutions: Rhetoric and Efficacy," Journal of
Peace Research 44, no. 4 (2007). : 380.
62
Helen Fenwick, "Proactive Counter-Terrorist Strategies in Conflict with Human Rights," International Review
of Law Computers & Technology 22, no. 3 (2008). 260-261.
63
Sabine Von Schorlemer, "Human Rights: Substantive and Institutional Implications of the War against
Terrorism," European Journal of International Law 14, no. 2 (2003). 267.
64
Colin Warbrick, "The European Response to Terrorism in an Age of Human Rights," ibid.15, no. 5 (2004).
990.
65
Stephen D Krasner, "Sovereignty," Foreign Policy 122, no. 24 (2001). 22.
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humanitarian interventionist principles to challenge Westphalian notions of sovereignty, by
restricting the exclusive right of the state’s domestic authority to dictate the manner in which
they treat human beings within their territory.66
The UNDP first published its report on human security in a 1994 report.67 Traditional
security is often conceived as military strength, availability, and a healthy abundance over the
enemy.68 It is true there are certain functions that only soldiers can fulfil, such as that of
armed UN peacekeepers or interventionists.69 However, human security no longer conceives
of security in the narrow parameters of state driven military might. The drama of conflict is
often portrayed to Western electorates as a dichotomous mode of who (and when) to hate the
terrifying ‘other’, that threaten to destroy the very foundations of our way of life.70
Changes in security paradigms from the state to human security have revealed the complexity
of legitimating humanitarianism and humanitarian interventions. Broadly defined under the
umbrella of human security, new uncertainties, such as transnational and home-grown
terrorism71, ‘failed or failing states’72, and ‘rogue’ actors73, have evolved humanitarian and its
methods of legitimation via unprecedented hypermedia constructs.74 This approach departs
from the traditional realist notions of military security75, although the proliferation of selfinterests have been evident in what Terry Nardin describes as ‘humanitarian imperialism’.76
The epitome of ‘’altruistic’ humanitarianism can be seen by in Ignatieff’s Empire Lite77,
which purports the use of coercive force to realise humanitarian principles.78 Attitudes
66
Dren Doli and Fisnik Korenica, "Discourses on the Notion of Sovereignty: Towards an Inclusive Modern
Definition," GLPS Academic Papers, no. 04 (2009). 13.
67
"Human Development Report 1994," (New York: United Nations Development Programme (UNDP), 1994).
68
Sutter, "Legitimacy and Military Intervention in a Democracy." 129-143.
69
Susan C Breau, "The Impact of the Responsibility to Protect on Peacekeeping," Journal of Conflict and
Security Law 11, no. 3 (2006). 429-464.
70
David Hastings Dunn, "Innovation and Precedent in the Kosovo War: The Impact of Operation Allied Force
on Us Foreign Policy," International Affairs 85, no. 3 (2009). 531-346.
71
Kaisa Hinkkainen, "Homegrown Terrorism: The Known Unknown," Peace economics, peace science and
public policy 19, no. 2 (2013). 157-182.
72
Phil Goff, "Preventing State Failure," New Zealand International Review 38, no. 2 (2013). 2.
73
Craig N. Murphy, "Global Governance: Poorly Done and Poorly Understood," International Affairs 76, no. 4
(2000). 789-804.
74
Anne Vestergaard, "Humanitarian Appeal and the Paradox of Power," Critical Discourse Studies (2013).
444-467.
75
Daniel Baldino et al., "Contemporary Challenges to Australian Security: Assessing the Evidence," (2011).
43-69.
76
Terry Nardin, "Humanitarian Imperialism," Ethics & International Affairs 19, no. 2 (2005). 21-25.
77
Ignatieff, "Human Rights, the Laws of War, and Terrorism." 1143-1150.
78
"Empire Lite: Nation-Building in Bosnia, Kosovo, and Afghanistan (London: Vintage, 2003)," For a far more
critical account see, eg, David Chandler, Empire in Denial: The Politics of Statebuilding (2003). 80.
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prevalent among ‘liberal hawks’ are underpinned by Eurocentric constructs that assume a
taken-for-granted moral imperative, which serve to proliferate ‘otherisation’.79 This extends
to the rationalisation of neo-imperial conquests, expressed through vehicles of legitimacy,
such as principles of human rights and humanitarianism.80 The end of the Cold War led to
shifts in U.S. perceptions of military capacity in an often conflated image of unselfish virtue,
whereby specific instances of “injustice, oppression, and human suffering” undermined
claims to moral authority. 81 Noted Orientalist scholar, Edward Said, commented that
mainstream IR discourse often presents the world in binary opposition, where the West are
rational and disciplined, and the Orient impulsive and emotional; where the West are modern
and flexible, and the Orient slaves to ancient passions and routines; where the West are
honest and compassionate, and the Orient treacherous and uncultivated.82 Lt General Dallaire
provides an exposition in reflection of his role as UN Force Commander during the Rwandan
Genocide.83
Where military security ends at the absence of armed conflict, human security begins.84 For
the provision of freedoms (from fear and want), all human rights85 are best facilitated by the
stability of peace. Ignatieff asserts that tolerance (not acceptance or celebration) is sufficient
for the realisation of human agency via human rights. The practice of tolerance does not
legitimate positions, but rather legitimates dissent or divergence of opinions, while promoting
tolerance itself. The Vatican practices tolerance of homosexuality, as does many other semiliberal or pseudo-liberal regimes, such as Singapore or Israel. Islamist political parties are
tolerated in Europe, but garner significant state and non-state disapproval, objection,
79
Miroslav Nincic and Donna Nincic, "Humanitarian Intervention and Paradoxes of Moral Authority: Lessons
from the Balkans," The International Journal of Human Rights 8, no. 1 (2004). 45-64.
80
Noam Chomsky, "Humanitarian Imperialism," Monthly Review (2008).
81
Nincic and Nincic, "Humanitarian Intervention and Paradoxes of Moral Authority: Lessons from the
Balkans." 45-64
82
Hugh Gusterson, "Nuclear Weapons and the Other in the Western Imagination," Cultural Anthropology 14,
no. 1 (1999). 114.
83
“Though many desperately and relentlessly cling to old, divisive ideas in the face of a future that looks
complex and uncertain, no one can legitimately portray themselves as members or practitioners of the one true
faith, the superior race, the best culture. No one can say, with the image of the blue and green Earth floating in
their heads, that others don't count as much as “we” do, that others don't hold the same status as we do, are not
as significant as us, are ultimately just not as human as us.” Roméo Dallaire, They Fight Like Soldiers, They Die
Like Children: The Global Quest to Eradicate the Use of Child Soldiers (Random House LLC, 2010).
84
Gerd Oberleitner, "Human Security: A Challenge to International Law?," Global Governance 11, no. 2
(2005). 185-203.
85
civil, political, socioeconomic, cultural, environmental, right to peace and development
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condemnation, and discouragement.86 Tolerance does not imply that the state or individuals
need to accept the incitement of violence or radical ideologies that spread hatred of
ethnocultural, religious, sexual, gender and any other groups. In response to an Australian,
Omarjan Azari, inciting ‘home-grown’ militants to execute, murder, and commit terrorist acts
in the name of the Islamic State,87 Australian law enforcement including the AFP and ASIO
launched an operation to detain and arrest radical and militant Australians, who planned to
decapitate individuals in Sydney and Brisbane. 88 This coincided with raids and law
enforcement operations during the same period in Europe, UK, and the United States.89
Liberal pluralism does not seek to favour one particular notion of ‘truth’ over another
interpretation.90 In doing so, it protects the freedom of individuals to express their views
without fear or threat of harm, persecution, or unfair treatment.91 Equality, on the inter-state
level, means that certain rational actors, who do not necessarily ascribe to liberal values, need
to be negotiated with, compromised with, and tolerated in the common interest of peace.92 It
means co-existence and resolution of disputes among a society of states with peaceful means.
In discussing discourses of legitimacy within IR and with specific reference to intervention,
the basis of examination is premised on the international legal prima facie presumption of
equality. This is to mean the uniform and standard application of international law to all
actors, without exception or derogation, unless expressed within the body of law itself.93
Equal status poses an immediate challenge to justifications of use of force. In the evaluation
of combatants, the adherence to prohibitions and obligations determines the morality of
conduct, whereas the virtue or authority of the actor does not.94 Ceteris parabis, when
combatants adhere to the principle of distinction (by openly carrying arms and distinguishing
marks) and adhere to all other IHL prohibitions and obligations, combatant status is equally
86
Kevin J O'Toole, "Islam and the West: The Clash of Values," Global Change Peace & Security 20, no. 1
(2008). 25-40.
87
Paul Bibby, "Sydney Man Arrested in Terrorist Raids Conspired with Senior Isil Figure Mohammad Baryalei,
Court Hears," Syndey Morning Herald, 18 Sep 2014.
88
Paul Maley and Dan Box, "Police Swoop on Sydney, Brisbane Homes in Terror Raids," The Australian, 18
Sep 2014.
89
RT, "Isis-Related Arrests in Us, Europe, Australia as Intel Warns of ‘Gruesome’ Attacks," RT, 18 Sep 2014.
90
William A. Galston, "Pluralism and Pluralism and Liberal Democracy," Perspectives on Politics 4, no. 4
(2006). 751-753.
91
Ian Barnard, "Civility and Liberal Pluralism," symplokē 13, no. 1/2 (2006). 134-143.
92
Wojciech Sadurski, Equality and Legitimacy (New York; Oxford: Oxford University Press Oxford, 2008).
93
Telford Taylor, "Commentator. (Civilian Immunity) (Conference: The American Red Cross - Washington
College of Law Conference: International Humanitarian Law)," American University Law Review 31, no. 4
(1982). 891.
94
Jean-Marie Henckaerts, Louise Doswald-Beck, and Carolin Alvermann, "Customary International
Humanitarian Law: Rules," Cambridge University Press, https://www.icrc.org/customary-ihl/eng/docs/v1.
[email protected]
observed. As noted in the 2006 ICRC study of customary international law95, the primary
obstacle to effective observance of standards and norms of conduct during armed conflict is
not the lack of codification, but rather the lack of practice.96
The premise of equality is not universally acknowledged.
Rights for individuals with
psychosocial impairments, while codified within the UN CRPD remains a challenge in state
practice.97 Similarly statements and declarations issued by the EU to the UNGA supporting
LGBTQ rights98 face vehement opposition from Islamo-dominant states, and other socially
conservative governments.99 In the early 1990s, the “Asian values” argument was used by
certain Southeast Asian governments with poor human rights records to “privilege political
and cultural diversity over universalist claims, and saw the expansion of the normative
[human rights] agenda as an unwelcome imposition at a time of post-Cold War western
triumphalism.”100 Realist or neo-realist approaches focus on the state-interests and may
justify actions derogating from the premise of human equality via persuasive narratives such
as securitization. Certain theocratic states and actors such as Saudi Arabia, the Islamic
Republic of Iran, and the newly emerging Islamic State (ISIS) premise religious doctrine over
the premise of equality (as demonstrated by the Cairo Declaration).101 As such, this paper
demonstrates (social, moral and legal) legitimacy via the liberal conception of equality as
manifested via international treaty, customary international law and state practice.
Customary International Humanitarian Law
Since the birth of civilization in Greece and Rome, throughout to the Renaissance and the
modern period, humanity has long debated the morality and ethics of warfare. 102
International law normalizes particular conceptions of the world.
Franck identified a
‘working definition’ of legitimacy as a “property of a rule or rule-making institutions which
itself exerts a pull toward compliance on those addressed normatively because those
addressed believe that the rule of institution has come into being and operates in accordance
95
Ibid.
Ibid.
97
"The 'Other' Cultural Diversity," Australian Ageing Agenda, no. JanFeb (2011). 26-28.
98
Dirk Debacker, "Eu Leaders at 69th Session of the Un General Assembly," ed. European Union Delegation to
the United Nations (New York2014).
99
Patrick Worsnip, "U.N. Divided over Gay Rights Declaration," Reuters, 18 Dec 2008.
100
Foot, "Collateral Damage: Human Rights Consequences of Counterterrorist Action in the Asia–Pacific." 412.
101
Jonathan Russell, "Human Rights: The Universal Declaration Vs the Cairo Declaration," in Middle East
Blog, ed. Dania Akkad (London: London School of Economics, 2012).
102
Ronald C. Arkin, "Governing Lethal Behavior: Embedding Ethics in a Hybrid Deliberative/Reactive Robot
Architecture," Georgia Institute of Technology Technical Report GIT-GVU-0711 (2006). 1-17.
96
[email protected]
with generally accepted principles of right process.”103 Legitimation is the process by which
actors come to believe in the normative legitimacy of an object.104 Legitimation involves
articulation and application of complex symbols and rituals, often underpinned by moral
criterion.105 Berger and Luckmann define legitimation as “a process of explaining and
justifying the validity of an institutional order”.106 Habermas contends that the object of
legitimacy and its process constitute a “contestable validity claim”.107 Beetham consolidates
legal, moral and social approaches to legitimacy, by defining legitimacy as legal validity,
share beliefs and expressed (democratic) consent as minimum conditions.108
Presumptive legitimacy exists as a construct much attached to the institution of international
law, with particular interest in the humanitarian constraints outlined via treaty obligations
among signed and ratified parties and those norms that have become customary (which may
not necessarily exist explicitly in one particular treaty, or may otherwise bind non-parties
onto existing treaties, irrespective that party’s objections).109 It is important to note the
interchanging use of IHL and CIL in this paper. This use is consistent with the ICRC
approach to IHL, although both Israel and the United States have responded with their own
reservations.110 Kadens and Young postulate that ‘custom’, as thought to have brought about
coherent and effective legal norms without the command of a single sovereign, exist as the
only form of law without a lawmaker that still carrier legitimacy in the “post-lapsarian”
landscape.111 Within customary international law (CIL), there seems to be a certain threshold
established by an overwhelming ‘international community’. 112
These prohibitions on
conduct, in absolute judgement of such conduct’s moral properties, have established itself as
a set of norms due its enormous value in prohibiting conduct that all parties are willing to
pre-commit themselves to its prohibition as a legitimate form of inter-state engagement.113
103
Thomas, "The Concept of Legitimacy and International Law ". 15.
Hurd, "Legitimacy and Authority in International Politics." 379-408.
105
Dorothea Baur, "Legitimacy," (Dordrecht: Springer Netherlands, 2012). 97-110.
106
Thomas, "The Concept of Legitimacy and International Law ". 19.
107
Ibid.
108
Mulligan, "The Uses of Legitimacy in International Relations." 349-375.
109
Miles Kahler, "Legitimacy, Humanitarian Intervention, and International Institutions," Politics, Philosophy &
Economics 10, no. 1 (2011). 20-45.
110
Jean-Marie Henckaerts, "Customary International Humanitarian Law: A Response to Us Comments,"
International Review of the Red Cross 89, no. 866 (2007). 473-488.
111
Emily Kadens and Ernest A. Young, "How Customary Is Customary International Law?," William and Mary
Law Review 54, no. 3 (2013). 86.
112
François Bugnion, "Jus Ad Bellum, Jus in Bello and Non-International Armed Conflicts," Yearbook of
international humanitarian law 6 (2003). 167-198.
113
Kahler, "Legitimacy, Humanitarian Intervention, and International Institutions." 201-45.
104
[email protected]
Such laws represent normative value that is so great and so entirely inclusive, that all actors
are bound to such prohibitions in conduct, whether there exists an inked signature on a treaty
at the UN Registry of Treaties or not.114 Hazen describes the intent of IHL as the regulation
of the use of military force via the provision of juridical frameworks governing the treatment
of prisoners, use of weapons and the definition of legitimate targets.115 The underlying theme
throughout IHL (and HRL) instruments116, is the alleviation of human suffering, especially as
it pertains to victims of armed conflicts.117 The traditional view of customary international
law finds its basis in the “general and consistent practice of states” in conjunction with the
sense of legal obligation (opinio juris sive necessitates).118 As such, CIL predates the UN and
the ICJ.119 This is recognised by Article 38 of the ICJ, whereby the Court states that
“international custom, as evidence of a general practice” shall be “accepted as law”.120
International humanitarian law (IHL) proscribes specifics in the conduct of armed conflict.121
These are supported by statements of prohibitions and abstentions from prohibited acts such
as the prohibition on the use of chemical weapons as weapons that are by nature
indiscriminate, weapons of a nature to cause unnecessary suffering (and by its use is defined
as a war crime under ICC jurisdiction).122 Overwhelming legal precedence and a series of
treaties including the Hague Declaration concerning Asphyxiating Gases, the Geneva Gas
Protocol, the Chemical Weapons Convention, and the Statute of the International Criminal
Court supports this prohibition. 123
State practice, military manuals 124 and judicial
114
Thomas W. Smith, "Protecting Civilians…or Soldiers? Humanitarian Law and the Economy of Risk in Iraq,"
International Studies Perspectives 9, no. 2 (2008). 144-164.
115
Jennifer M. Hazen, "Humanitarian Challenges in Military Intervention Workshop," ed. Carr Center for
Human Rights Policy (Washington, DC: John F. Kennedy School of Government, Harvard University, 2001). 131.
116
such as the Additional Protocols of 1977, Ottawa Anti-Personnel Landmines Treaty of 1997, or the Rome
Statute
117
James P. Benoit, "Mistreatment of the Wounded, Sick and Shipwrecked by the Icrc Study on Customary
International Humanitarian Law," Yearbook of International Humanitarian Law 11 (2008). 175-219.
118
Ibid. 179.
119
Ibid. 175-219.
120
Ibid. 176-182.
121
"What Is International Humanitarian Law?," in Advisory Serivce on International Humanitarian Law
(International Committee Red Cross (ICRC), 2004).
122
Henckaerts, Doswald-Beck, and Alvermann, "Customary International Humanitarian Law: Rules".
123
Ibid.
124
See: e.g., the military manuals of Israel (ibid., § 41), Netherlands (ibid., § 44), New Zealand (ibid., § 46) and
United States (ibid., § 59) (prohibition of first use), the statements of Belarus (ibid., § 144), Belgium (ibid., §
150), Bulgaria (ibid., § 160), Czechoslovakia (ibid., § 196), Hungary (ibid., § 243), Italy (ibid., § 266),
Democratic Kampuchea (ibid., § 279), Lesotho (ibid., § 295), Netherlands (ibid., § 320), New Zealand (ibid., §
324), Poland (ibid., § 343), Romania (ibid., § 347), Saudi Arabia (ibid., § 353), Sweden (ibid., § 371),
Switzerland (ibid., § 375), Tanzania (ibid., § 379), Ukraine (ibid., § 389), USSR (ibid., § 395), United Kingdom
(ibid., § 414) and United States (ibid., § 420) (prohibition of first use) and the reported practice of the Islamic
[email protected]
declarations, such as the statement by supporting chemical weapons prohibition by
Columbia’s Constitutional Court, have reaffirmed this total prohibition.125 (Alleged) use of
chemical weapons by the Russian Federation in Chechnya, by Sudan against opposition
groups, and by Iraq against the Kurdish peoples, irrespective of actor, have been vigorously
condemned by the international community.126 Permissive rules govern the rights to act in a
certain manner, without any requirement or responsibility of such behaviour.127 As an
example, states have a right to vest universal jurisdiction in national courts and prosecute war
criminals that violate the chemical weapon prohibition.128 Obligatory rules govern behaviour
that is required, such as the obligation with respect to serious violations (“grave breaches”)
enumerated in Additional Protocol I.129 According to the International Committee on the Red
Cross (ICRC), there are 161 customary IHL rules grouped into the principle of distinction;
specifically protected persons and objects; specific methods of warfare; use of weapons; and
implementation.130
International Humanitarian Law (IHL), while overlapping and related to international Human
Rights Law (HRL) does differentiate between how it is applied based on the status of an
individual, notably between a combatant and a non-combatant. Whereas there exists an
inalienable, indivisible and interdependent framework of human rights that apply to all
persons during peacetime, IHL is applicable in situations of conflict, including intra-state and
civil conflict. IHL makes a moral distinction between combatants and civilians, and is
founded upon the basis that any use of indiscriminate, intentionally directed, or cruel and
unusual force against civilians is in absolute terms, unacceptable and illegal. In essence,
there are certain rights and freedoms, which are absolute in both times of war (jus in bello)
and peace, including the freedom from torture cruel and unusual punishment, and the
infliction of death during imprisonment. 131, 132, 133, 134 In addition to micro-proportionality,
Republic of Iran (ibid., § 255), Republic of Korea (ibid., § 288), South Africa (ibid., § 361) and Zimbabwe
(ibid., § 443)
125
Henckaerts, Doswald-Beck, and Alvermann, "Customary International Humanitarian Law: Rules".
126
Ibid.
127
Henckaerts, "Customary International Humanitarian Law: A Response to Us Comments." 473-488.
128
Ibid.
129
Ibid.
130
Henckaerts, Doswald-Beck, and Alvermann, "Customary International Humanitarian Law: Rules".
131
Foot, "Collateral Damage: Human Rights Consequences of Counterterrorist Action in the Asia–Pacific." :
424.
132
Ignatieff, "Human Rights, the Laws of War, and Terrorism." 1139-1145.
133
Von Schorlemer, "Human Rights: Substantive and Institutional Implications of the War against Terrorism." :
278.
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equality between belligerents, prohibitions against ‘heinous means’ or ‘unnecessary
suffering, the distinction between combatants and non-combatants (and non-combatant
immunity) is fundamental to the universal and non-derogable nature of the HRL-IHL
regimes.135 Much like HRL, IHL regimes apply to all individuals in a conflict situation, as a
separate and distinct entity from jus ad bellum considerations, such that the ‘justness’ (i.e. or
good and evil) of a belligerent shall in now way affect the applicability of IHL. This is made
clear in the Preamble of Additional Protocol I to the Geneva Convention (1977):
Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949
and of this Protocol must be fully applied in all circumstances to all persons who are
protected by those instruments without any adverse distinction based on the nature or
origin of the armed conflict or on the causes espoused by or attributed to the Parties to
the conflicts. 136
Violence, or more specifically, armed force is supposed be the last resort of civilized peoples,
and in the Laws of Armed Conflict (LOAC) and IHL, civilized peoples shall not employ
force unless all ‘non-violent’ options have been ‘exhausted’.137, 138 The UN Human Rights
Committee stated in a 2003 report of Israel that, “Before resorting to the use of deadly force,
all measures to arrest a person suspected of being in the process of committing acts of terror
must be exhausted.”139 This is in direct relation to the IHL rule on proportionality applicable
to both international and non-international armed conflicts.140 It is of particular relevance in
the discussion of peace enforcement operations (PEO).141 Although the use of armed force in
PEOs (in an effort to prevent, dissuade, or cease barbarism, genocide, murder, torture, and
war crimes) may not necessarily be considered the moral equivalent to a declaration of war,
such decisions obligate the same standard of deliberation and judgment in the application of
134
Colin Warbrick, "The European Response to Terrorism in an Age of Human Rights," ibid.15, no. 5 (2004).
1003.
135
Jasmine Moussa, "Can Jus Ad Bellum Override Jus in Bello? Reaffirming the Separation of the Two Bodies
of Law," International Review of the Red Cross (2005) 90, no. 872 (2008). 963-990.
136
Shirley V Scott, International Law and Politics: Key Documents (Lynne Rienner Publishers, 2006).
137
David Carment and Joe Landry, "R2p in Syria: Regional Dimensions," Into the Eleventh Hour (2014). 51.
138
Elizabeth Wilmshurst, "Syria and International Law: Use of Force and State Responsibility," Chatham
House: International Law Discussion Group Summary (2013). 2-9.
139
[emphasis in original] Henckaerts, Doswald-Beck, and Alvermann, "Customary International Humanitarian
Law: Rules". 46-50.
140
Ibid.
141
Ibid.
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military force.142, 143 Michael Walzer objected to the literal interpretation of ‘last resort’,
which would “make war morally impossible”.144 The Obama administration’s reconstruction
of the U.S. Army Field Manual obligates a preference non-violent action during
counterinsurgency and counter-terrorism operations, whenever it is ‘reasonable’ to do so,
taking on a kill/capture paradigm.145 The ‘generalised’ principle of last resort requires that
every reasonable non-military measure must be attempted prior to the use of force. The
operant word is ‘reasonable’.
A reasonable proportionate last resort to force in one
circumstance may have significantly different thresholds, despite the same ‘humanitarian’ or
‘R2P’ intent.146
The realities of conflict as best exemplified by the ‘fog of war’ (i.e. imperfect information) do
not allow for the perfect application of principles in practice.147, 148 In March 2014, U.S.
Secretary of State, John Kerry arrived in Kiev with a USD $1bn loan to support the Ukrainian
government.149 This coincided with a declaration by the Russian President, Vladimir Putin,
that military force would be a ‘last resort’ to resolve the ongoing crisis between the Ukrainian
government and Russian-backed rebels in Eastern Ukraine. 150 Putin has supported the
legitimacy of Russian involvement by repeating R2P rhetoric, with the state, NGO, and
academic actors expressing concerns pertaining to the use of R2P justifications inconsistent
with core R2P principles.151 The civilian death toll has risen to nearly 2,600 (between mid
April-Aug 27, 2014), with 6,000 wounded; including the 298 passengers of civilian flight
MH17, allegedly shot down by Russian missiles controlled by Eastern Ukrainian rebels on
142
Michael Aaronson, "Syria and the Crisis of Humanitarian Intervention," Into the Eleventh Hour (2014). 56.
Conor Foley, "The Evolving Legitimacy of Humanitarian Interventions," Sur International Journal on
Human Rights 10, no. 19 (2013). 74.
144
John W Lango, "Before Military Force, Nonviolent Action: An Application of a Generalized Just War
Principle of Last Resort," Public Affairs Quarterly (2009). 115-117.
145
Ibid.
146
“Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state
failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields
to the international responsibility to protect (ICISS, 2001: xiii, 91).” Frédéric Mégret, "Beyond the
‘Salvation’paradigm: Responsibility to Protect (Others) Vs the Power of Protecting Oneself," Security Dialogue
40, no. 6 (2009). 577.
147
James Pattison, "The Case for Criteria: Moving R2p Forward after the Arab Spring," Into the Eleventh Hour
(2014). 27-28.
148
USN (Ret.) Rear Admiral James A. Winnefeld, "Interpreting an Unfolding War and Its Humanitarian
Consequences: A Dialog," Project on the Means of Intervention Workshop Papers Volume Two (2002). 5-12.
149
John Revill, "Civilian Death Toll in Ukraine Rising, U.N. Report Says," The Wall Street Journal, Aug 29
2014.
150
Vladmir Soldatkin and Alexei Anishchuk, "Putin: Military Force Would Be 'Last Resort' in Ukraine,"
Reuters, Mar 4 2014.
151
Shane R Reeves, "To Russia with Love: How Moral Arguments for a Humanitarian Intervention in Syria
Opened the Door for an Invasion of the Ukraine," Michigan State International Law Review 22, no. 1 (2014).
143
[email protected]
July 17th.152 The UN estimates 100,000 internally displaced persons (IDPs).153 Use of force
against civilians, civilian objectives, or protected premises is explicit prohibited under
multiple international treaties, domestic laws governing use of armed force, and customary
international law under the purview of the ICJ.154 No state has submitted reservations to the
principle of distinction: where a civilian is an individual who is not involved in the armed
forces or otherwise engaged in combatant operations.155 Especially given Russia’s status as a
P-5 nuclear power, the range of legitimate responses permissible by law or even obligated by
breaches in international law to the extent of war crimes or crimes against humanity will be
entirely different given considerations of the status of actors.156
In the competition between various actors in its approach to the R2P norm, the source of
arguments, as well as its mode of delivery is as important, if not more so, than the content of
the argument. While the R2P norm serves as a prescriptive and normative construct for the
conduct of state (and supra-state) actors, it also facilitates the legitimation of certain conduct
(i.e. military intervention), which may be motivated by interests outside the R2P mandate of
preventing genocide, ethnic cleansing, war crimes, and crimes against humanity. 157
Dependent on the ‘voice’ (i.e. the President of the EU), its method of delivery (i.e. formal or
official channels, such as mainstream media and press, as opposed to less ‘authoritative’
sources such as blogs and Web 2.0 media), the efficacy in which the content of a position is
successfully adopted by its target audience can often be gauged by observing the availability
of resources (i.e. political capital, economic resources, interstate relations, military strength,
and other ‘soft power’ considerations).158
Vehicles of legitimation, such as international law, humanitarian appeals, or R2P, serve to
govern conduct via normative values, while providing explanatory reasons to justify certain
conduct (i.e. military intervention) post haste. The reality of interstate affairs is neither as
simple or absolutist as the ideals of international jurisprudence and human rights principles.
152
Revill, "Civilian Death Toll in Ukraine Rising, U.N. Report Says."
Ibid.
154
Henckaerts, Doswald-Beck, and Alvermann, "Customary International Humanitarian Law: Rules". 3-24.
155
A. Roberts, "The Civilian in Modern War," Yearbook of International Humanitarian Law 12 (2009). 13-51.
156
Mark Kerstein, "Does Russia Have a ‘Responsibility to Protect’ Ukraine? Don’t Buy It," The Globe and
Mail, 4 March 2014.
157
Reeves, "To Russia with Love: How Moral Arguments for a Humanitarian Intervention in Syria Opened the
Door for an Invasion of the Ukraine." 57.
158
Kish Vinayagamoorthy, "Contextualizing Legitimacy," Texas International Law Journal 48, no. 3 (2013).
535.
153
[email protected]
In discussing R2P in terms of normative modes of conduct, in its intent to further ‘good’, the
legitimation of action (or inaction) rests on those who apply R2P as a vehicle of legitimacy.
Specifically, the use of military intervention to prevent atrocities is governed by six major
principles; which also facilitate the legitimation of conduct. R2P discourse is as diverse as
the actors involved in its normative value creation; as such, different aspects of the same
vehicle (i.e. international law, LOAC, humanitarianism, human rights, ethical and
philosophical arguments, and liberal approaches) are often used by multiple actors, in
different contexts with similar terminology to represent different modes of legitimation via
moral or juridical authority, responsibilities of power and office, and human-centric appeals.
Since the emergence of American hegemony at the end of the Cold War, the UN has been
able to deploy humanitarian interventions, under the unipolar ‘leadership’ of the United
States. Within the scope of increasingly destabilising intra-state conflicts including the postcold war genocides, civil wars, and subsequent UN interventions witnessed in Bosnia (199294), Somalia (1992-95), Rwanda (1994-95), Haiti (2994), East Timor (1999-2002)159 and the
most recent Libyan intervention in 2011160,161, the world body of the United Nations has
recognised a need to reshape sovereignty in a manner where human rights cannot be simply
ignored or brushed aside with centuries-old Westphalian precepts162.
The initial motivation for developing the Responsibility to Protect (R2P) doctrine came as a
response to UN Secretary General Kofi Annan’s 1999 challenge to international society to
reconcile the “twin principles of sovereignty…and fundamental human rights,”163 under the
auspices of the Canadian-led ICISS164. The human rights atrocities perpetrated by regimes
upon its own people in Nazi Germany, communist China under Mao, Cambodia under Pol
Pot, the Rwandan Genocide, and ethnic cleansing in Kosovo presents more than sufficient
justification for acknowledging the failures of the static nature of sovereignty based upon
159
Mark S Stein, "Unauthorized Humanitarian Intervention," Social Philosophy and Policy 21, no. 01 (2004). 415.
160
Ivo H Daalder and James G Stavridis, "Nato's Victory in Libya: The Right Way to Run an Intervention,"
Foreign Aff. 91 (2012). : 2
161
Bruno Pommier, "The Use of Force to Protect Civilians and Humanitarian Action: The Case of Libya and
Beyond," International Review of the Red Cross 93, no. 884 (2011). 1063-1083.
162
UN General Assembly, "2005 World Summit Outcome," in Sixtieth Session, ed. United Nations (NY2005).
163
Alex J Bellamy and Catherine Drummond, "The Responsibility to Protect in Southeast Asia: Between NonInterference and Sovereignty as Responsibility," The Pacific Review 24, no. 2 (2011). 180.
164
International Commission on Intervention et al., The Responsibility to Protect: Report of the International
Commission on Intervention and State Sovereignty (International Development Research Centre, 2001). 1-85.
[email protected]
Westphalian precepts.165 Humanitarian justifications for intervention emerged in the 1970s in
the cases of India in East Pakistan (1971), Vietnam in Kampuchea (1978) and Tanzania in
Uganda (1979).166 These acts of serve as reminders that traditional Westphalian notions of
sovereignty must not form the basis of interstate conduct, as both internal and external
legitimacy, manifested as “a notion of responsibilities that the state has to its population and
to the international community,” must surely be understood as a more humane model of
sovereignty than Westphalia.167 As the international community moved away from a bipolar
East/West Cold War footing in the 1990s, international consensus around the absoluteness of
non-interference as an inherent characteristic of sovereignty began to shift.168
Humanitarian intervention is not a new concept. ‘Never again’ was the prevailing theme in
the aftermath of WWII and the revelations of the Jewish Holocaust.169 The UN adopted the
Genocide Convention 170 on 9 December 1948, which opened the door to subordinating
traditional sovereignty to the bare-minimum standard of preventing and averting genocide.
With the massive human rights abuses witnessed in Yugoslavia and Rwanda in the 1990s, the
internationally accepted consensus surrounding the non-interference principle began to
change.171 The human rights project received two major renewals in the modern era, once
after WWII and again since 1989. 172 Globalization, neoliberalism, and post-democratic
governance have been the product of the mainstreaming of human rights.173 North-South
gaps have increased and non-international conflict continues to claim civilian lives.174
Heinze conceives Humanitarian Intervention (HI) as the trans-boundary application of
military force with the intent and intended outcome to halt or avert large-scale human
suffering, understood as mass human rights atrocities.175 Contemporary figures, such as Stein
define humanitarian intervention as, “as the use of force by a state, beyond its own borders,
165
Dave O Benjamin, "Rethinking Nonintervention," Public Integrity 12, no. 3 (2010). : 236-237.
Louise Arbour, "The Responsibility to Protect as a Duty of Care in International Law and Practice," Review
of International Studies 34, no. 3 (2008). 446.
167
Benjamin, "Rethinking Nonintervention." 236.
168
Arbour, "The Responsibility to Protect as a Duty of Care in International Law and Practice." 446.
169
Dorota Gierycz, "From Humanitarian Intervention (Hi) to Responsibility to Protect (R2p)," Criminal Justice
Ethics 29, no. 2 (2010). 110-128.
170
Convention on the Prevention and Punishment on the Crime of Genocide (1948)
171
Arbour, "The Responsibility to Protect as a Duty of Care in International Law and Practice."
172
Costas Douzinas, "The Paradoxes of Human Rights," Constellations 20, no. 1 (2013). 51-67.
173
Ibid.
174
Hazen, "Humanitarian Challenges in Military Intervention Workshop." 1-31.
175
Eric A Heinze and James Pattison Oxford, "Humanitarian Intervention, the Responsibility to Protect, and
Confused Legitimacy," Human Rights and Human Welfare 11 (2011). 17-28.
166
[email protected]
that has as a purpose or an effect the protection of the human rights of noncitizens or the
reduction of the suffering of noncitizens.” 176 Others like Hill assert that humanitarian
intervention is, “A forcible interference in the governance of one legitimate state 177 by
another for the primary purpose of protecting the latter’s subjects from abuse and oppression
by its own government.”178 Robert Kolb of the Red Cross defines humanitarian intervention
as, “the use of force in order to stop or oppose massive violations of the most fundamental
human rights (especially mass murder and genocide) in a third State, provided that the
victims are not nationals of the intervening State and there is no legal authorization given by
a competent international organization, such as, in particular, the United Nations by means of
the Security Council.”179 Seymom Brown takes a different approach by paraphrasing the
Bush Senior originated justification for the 1999 OAF operation (in reference to the NATO
campaign against Yugoslavia) by stating that, “it was legitimate for the United States, acting
on behalf of the international community, to intervene in another country’s internal affairs
with military force, without permission of that country’s government, when the government
failed to provide the minimum public order required for the people to exercise their most
elemental human rights of subsistence and freedom from plunder and terror.”180 Yet another
interpretation by David Reiff, is that, “humanitarian intervention is at once an immensely
powerful and a terribly imprecise idea…Its fundamental premise is that outside powers have
the right and perhaps, under certain circumstances, the duty to intervene to protect people in
other countries who are being victimized, even if what is taking place is a conflict within a
state."181
While the soldier’s role is to employ military force in defence of a nation against enemies of
the state, humanitarian intervention can only be carried with the use of soldiers.182 The
primary theme throughout the contemporary nomenclature surrounding ‘humanitarian
intervention’ is the use of military force. As with all use of military force, intervention may
176
Stein, "Unauthorized Humanitarian Intervention." 14-15.
“By “legitimate state” here I do not mean a reasonable and just, or even decent, state, but only a state that has
a functioning legal order, a more or less effective government in power, and international recognition as an
independent state. For now I exclude states in anarchy or deeply divided in civil war.”
178
Thomas Hill, "Kant and Humanitarian Intervention," Philosophical Perspectives 23, no. 1 (2009). 221-222.
179
Robert Kolb, "Note on Humanitarian Intervention," Revue internationale de la Croix-Rouge 85, no. 849
(2003). 119-134.
180
Dunn, "Innovation and Precedent in the Kosovo War: The Impact of Operation Allied Force on Us Foreign
Policy." 531-532.
181
David Rieff, "Humanitarian Intervention," http://www.crimesofwar.org/a-z-guide/humanitarianintervention/.
182
Eric Wester, "Last Resort and Preemption: Using Armed Force as a Moral and Penultimate Choice,"
Parameters 37, no. 2 (2007). 59-62.
177
[email protected]
be justified yet illegitimate or impermissible.183 The legal framework around humanitarian
intervention has been a fairly recent development within the international political sphere.
Until the formal codification of the Responsibility to Protect (R2P) doctrine at the UN 2005
World Summit Outcome, there were no universal responses to intra-state or
transnational/non-state conflicts.
184
R2P and military intervention remains highly
controversial.185 While some may argue that humanitarian intervention is a mere infant
concept amongst international circles having only been formally introduced via the 2001
ICISS to the UNGA, prominent figures including Lt. General Romeo Dallaire (ret.), Gareth
Evans, Louise Arbour, Bello, Bellamy, and Pemberton cite historical precedent,
jurisprudence, international and customary law and prominent figures; such as Bodin in the
16th century, Grotius in 17th, Vattel in the 18th, who have presented similar concepts well
before the creation of the UN 20th century.186
The theme of humanitarian intervention theme became intertwined with the broader discourse
on international human rights.187 Since the decade following the formal introduction of R2P
to the UNGA, the concept of responsibility as a requisite of sovereignty has challenged and
unsettled traditional interpretations of state sovereignty and related assumptions of nonintervention.188 Thakur asserts that R2P appears as the “international community’s best
approximation as to what should be done, ideally, to stop the worst types of human violence
in their tracks”. 189 Unfortunately, little tangible action has been seen despite rhetoric
promising action against genocide.190 The only ‘official’ UNSC-sanctioned invocation of
R2P intervention is the recent case of Libya.191 However, numerous UNSC resolutions have
reaffirmed the R2P norm.192
183
Stein, "Unauthorized Humanitarian Intervention." 14-38.
UN General Assembly, "2005 World Summit Outcome," New York: UN (UN Dok (2005).
185
Gierycz, "From Humanitarian Intervention (Hi) to Responsibility to Protect (R2p)." 110-128.
186
J. Pemberton, "Jus Ad Bellum and Jus in Bello" (paper presented at the Law, War and Justice: POLS5103,
Sydney, 2010).
187
Cristina G Badescu and Linnea Bergholm, "The Responsibility to Protect and the Conflict in Darfur: The Big
Let-Down," Security Dialogue 40, no. 3 (2009). 287-309.
188
Saira Mohamed, "Taking Stock of the Responsibility to Protect," Stan. J. Int'l L. 48 (2012). 319-321.
189
Mégret, "Beyond the ‘Salvation’paradigm: Responsibility to Protect (Others) Vs the Power of Protecting
Oneself." 575.
190
Ibid.
191
Silva D. Kantareva, "The Responsibility to Protect: Issues of Legal Formulation and Practical Application,"
Interdisciplinary Journal of Human Rights Law 6, no. 1 (2011). 1-26.
192
"Un Security Council Resolutions Referencing R2p," Global Centre for the Responsibility to Protect,
http://www.globalr2p.org/resources/335.
184
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Those in favour of the R2P norm support its institutionalisation and continued development
as a mechanism to prevent mass atrocities like those seen in Nazi Germany, Cambodia, and
Rwanda. 193, 194, 195, 196 In light of recent developments in Libya, concerns have arisen pertaining
to use of force by the U.S.-lead NATO intervention outside the direct R2P scope of UNSC
authorisation.197 Evans maintains that R2P is an achievable liberal ideal with an optimistic
future for the continuation of cooperative modes of inter-state affairs despite post-R2P
Libyan and Syrian setbacks.198 Pattison asserts that the pre-R2P body of international law
provided more than sufficient justification for interventions with humanitarian purpose, and
that continued development of juridical restraints only strengthens the morality of
interventions.199
Obligating the Liberal Conscience
R2P is first and foremost a regime that incorporates fundamental human rights protections as
an inherent requisite for sovereignty.200 Domestic authority is no longer absolute, but rather
limited in both a de jure and de facto sense, by international human rights and humanitarian
juridical norms. 201 During human rights crises, if states fail to realize their sovereign
responsibilities to their citizens or cooperate with the international community, the legitimacy
of their sovereignty and subsequent right to non-intervention can justifiably be infringed
upon to ensure that the rights of their citizens are protected.202 Whereas the discourse
surrounding humanitarian intervention presupposes an arbitrary right to breach state
sovereignty in the event of state sanctioned massive human rights violations, thus centring
the debate on the discretion of intervening states; the R2P principle places an inherent and
permanent duty to protect citizens irrespective of geopolitics or agreements between states
193
Lloyd Axworthy and Allan Rock, "R2p: A New and Unfinished Agenda," Global Responsibility to Protect 1,
no. 1 (2009). 54-69.
194
Alex J Bellamy, "The Responsibility to Protect—Five Years On," Ethics & International Affairs 24, no. 2
(2010). 143-169.
195
Gierycz, "From Humanitarian Intervention (Hi) to Responsibility to Protect (R2p)." 110-128.
196
Thomas G Weiss, "The Sunset of Humanitarian Intervention? The Responsibility to Protect in a Unipolar
Era," Security Dialogue 35, no. 2 (2004). 135-153.
197
Pommier, "The Use of Force to Protect Civilians and Humanitarian Action: The Case of Libya and Beyond."
1816-136.
198
Gareth Evans, "The Consequences of Non-Intervention in Syria: Does the Responsibility to Protect Have a
Future?," Into the Eleventh Hour (2014). 19-23.
199
James Pattison, "Is There a Duty to Intervene? Intervention and the Responsibility to Protect," Philosophy
Compass 8, no. 6 (2013). 570-579.
200
Bellamy and Drummond, "The Responsibility to Protect in Southeast Asia: Between Non-Interference and
Sovereignty as Responsibility." 180-183.
201
Arbour, "The Responsibility to Protect as a Duty of Care in International Law and Practice." 447-448.
202
Bellamy and Drummond, "The Responsibility to Protect in Southeast Asia: Between Non-Interference and
Sovereignty as Responsibility." 182.
[email protected]
via regional or other arrangements.203 Under R2P, intervening states must protect citizens of
a state suffering massive human rights abuses, rendering inaction of the international
community in addition to the human rights abuses themselves, a violation of the R2P norm.204
While humanitarian intervention focuses agency on intervening states to demonstrate the
‘right to intervene’, R2P places the onus and obligation first on sovereign states and then
upon the international community. Doli & Korencia describe R2P as:
…the protection of human beings from basic breaches of human rights and liberties is
a primary responsibility of the sovereign state per se, thus where the people’s rights
and liberties have been denied by the respective sovereign state, the international
community hold the right to intervene. 205
The ICISS R2P report comprised of non-partisan experts from both developing and
developed countries, along with NGOs, IGOs, and members of civil society, with the
mandate to tackle the changing nature of conflicts; from an inter-state Cold War bipolar
paradigm to an intra-state multilateral response perspective.206 R2P does not recreate and
introduce juridical doctrines not already found in the UN Charter and other UN institutions
and treaties, but rather spells out specific jus ad bellum, jus in bello, and jus pos bellum
principles for military intervention, in the context of failure to carry out responsibilities by a
sovereign state.207 The ICISS report listed six criteria to justify military intervention:208, 209
1.
The right authority (obtained by the UN Security Council)
2.
A just cause of large-scale loss of life or ethnic cleansing
3.
The right intention to avert large-scale human suffering
4.
Must be carried out as a last resort after economic sanctions and diplomatic
pressure
5.
Proportional means (the scale, duration and intensity of the intervention
should be kept at the minimum necessary to prevent human suffering)
203
Arbour, "The Responsibility to Protect as a Duty of Care in International Law and Practice." 448.
Ibid.
205
Doli and Korenica, "Discourses on the Notion of Sovereignty: Towards an Inclusive Modern Definition." 14.
206
Intervention et al., The Responsibility to Protect: Report of the International Commission on Intervention and
State Sovereignty. 1-85.
207
Ibid.
208
Baldino et al., "Contemporary Challenges to Australian Security: Assessing the Evidence." , 65.
209
See: Appendix A; Appendix B
204
[email protected]
6.
Reasonable prospects of success (there needs to be a reasonable likelihood that
the consequences of action would not be worse than the consequences of inaction)
Besides outlining principles for the responsibilities of sovereignty as part of its core
principles and strict principles for military intervention, R2P encourages cooperation with
regional bodies and humanitarian organisations and consensus building.
The ICISS
document denotes a clear and concise format that the primary purpose for intervention must
be justifiably, evidence-based, and humanitarian. R2P provides the traditional jus ad bellum
‘precautionary measures’ in terms of right intention, proportional means, least resort and
reasonable prospects. From an operational perspective, it outlines and builds upon aspects of
jus in bello, already well established in international law (i.e. Geneva Conventions, CIL, UN
Charter Chapter VII) in the form of clear objectives, common military approach, acceptance
of limitations, appropriate rules of engagement, proportionality, and adherence to current IHL
regimes. R2P represents an evolution of the current IHL regime and adds a degree of
robustness by taking into account the increasingly intra-state nature of conflicts.
The
Rwandan Genocide210, 211, 212 is a sobering example of how the R2P paradigm adds to the IHL
regime by establishing a framework requiring the justification of state non-intervention by
delegitimising inaction, in the face of overwhelming evidence of human rights atrocities. 213
Former UK Prime Minister applauded the introduction of a “new doctrine of international
community,” reminding the international community that, “acts of genocide can never purely
be an internal matter.”214
Traub asserts that R2P responds to the increasingly non-international and ‘irregular’ nature of
armed conflicts.215 Citing the Sudanese Civil Conflict, Traub asks the pertinent question of
why the international community failed to react in mid-2003 to the crimes against humanity
committed by the government supported ‘Janjaweed’ of at least 300,000 (UN estimates)
210
Brian Martin, "Managing Outrage over Genocide: Case Study Rwanda," Global Change, Peace & Security
21, no. 3 (2009). 275-90.
211
Brad S Long and Albert J Mills, "Globalization, Postcolonial Theory, and Organizational Analysis: Lessons
from the Rwanda Genocide," critical perspectives on international business 4, no. 4 (2008). 389-409.
212
Mats Berdal, "The United Nations, Peacebuilding, and the Genocide in Rwanda," Global Governance: A
Review of Multilateralism and International Organizations 11, no. 1 (2005). 115-130.
213
Jean-Christophe Merle, "The Problem with Military Humanitarian Intervention and Its Solution" (paper
presented at the The Philosophical Forum, 2005). 59-76.
214
Alistair JK Shepherd, "‘A Milestone in the History of the Eu’: Kosovo and the Eu's International Role,"
International affairs 85, no. 3 (2009). 513-530.
215
James Traub, "Unwilling and Unable: The Failed Response to the Atrocities in Darfur," Global Centre for
the Responsibility to Protect (2010). 1-20.
[email protected]
civilians compounded by two million IDPs.216 In the Age of (more) Information, during 24
hour day news cycles, from ever-increasing on-the-ground sources via citizen-journalist
channels; Merle comments that R2P has fundamentally shifted the burden to potentially
intervened states when clear evidence of mass atrocities are present.217 Hill views R2P with
Kantian lenses, where the norm would provide international and other ‘legitimate actors’ with
a “strong moral reason to prevent and stop the abuse and oppression by all permissible
means.”218 The moral permissibility of legitimate armed intervention, given the likelihood of
civilian and military casualties is articulated between ‘motives’ (i.e. the ‘purity’ of
humanitarian intent) and outcomes (i.e. the probability of achieving humanitarian goals
without exclusive humanitarian interests). 219
Parekh argues that the legitimacy of
intervention is derived from its purpose as humanitarian where it is “wholly or primarily
guided by the sentiment of humanity, compassion or fellow-feeling, and in that sense
disinterested” and “is intended to address what is regarded as a violation of the minimum that
is due to human beings.” 220 In this sense, Parekh describes a ‘collective good’ or
cosmopolitan society of states approach that departs from ‘interest-maximising’ realist
paradigms. This is well aligned with the liberal origins of R2P and those in the academy that
promote the UN-endorsed criteria of ‘right intent’.221
However, realist persuasions such as those expressed by Michael Walzer claim that actors
with non-humanitarian vested interests can legitimately intervene, given the measurement of
success as a function of results; whether mass atrocities such as genocide have been
successfully prevented, mitigated, ceased and halted.222 Opposite those who support the
procedural intent, cause, and authority principles in R2P, realist interventionists legitimate
what many contend to be an illegal invasion of Iraq by the U.S. and its allies in 2003 by
framing the Iraq War and Occupation narrative in terms of achieving humanitarian good via
regime change, despite political, resource, economic, and military motivations for the war.223
216
Ibid.
Merle, "The Problem with Military Humanitarian Intervention and Its Solution." 59-76.
218
Hill, "Kant and Humanitarian Intervention." 221-240.
219
Alex J. Bellamy, "Motives, Outcomes, Intent and the Legitimacy of Humanitarian Intervention," Journal of
Military Ethics 3, no. 3 (2004). 216-232.
220
Bhikhu Parekh, "Rethinking Humanitarian Intervention," International Political Science Review / Revue
internationale de science politique 18, no. 1 (1997). 55-74.
221
Luke Glanville, "On the Meaning Of'responsibility'in The'responsibility to Protect'," Griffith Law Review 20,
no. 2 (2011); Gierycz, "From Humanitarian Intervention (Hi) to Responsibility to Protect (R2p)." 110-128.
222
Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic
Books, 2006). 82-116.
223
Nardin, "Humanitarian Imperialism." 21-26.
217
[email protected]
The zero-sum nature of realism and ‘absolute utility’ approach of liberalism are not
necessarily mutually exclusive as it applies to intervention, nor are they applied exclusively
within the R2P framework.
Necessitating Intervention
In April 2014, the Organisation for the Prohibition of Chemical Weapons (OPCW) sent fact
finding personnel to Syria after on the ground social media footage, independent NGO
reports, scientific tests, and media coverage alleged the Assad regime of using chlorine gas
against civilian populations in Kafr Zita, Talmenes, and Aleppo.224 As at 19 May 2014, the
Britain-based Syrian Observatory for Human Rights has documented 162,402 deaths as a
result of Syria’s three year conflict beginning in March 2011.225 The Observatory bases its
information from a network of Syrian activists, who document the dead in hospitals, morgues
and identify them from video sources.226 Of the over 160,000 deaths, about a third – or
53,978 – have been accounted for as non-combatant civilians.227 The Syrian conflict has
exploded into multi-sided civil war, often split on sectarian lines.228 The death toll does not
account for nearly a third of the population (3 million refugees; 6.5 million IDPs) who have
become refugees in Turkey, Lebanon, and Jordan, or internally displaced persons (IDPs).229
The legal basis for intervention is founded on the Syrian state’s lack of distinction,
indiscriminate killing and targeting of civilians, and the use of prohibited means (chemical
weapons) constituting war crimes. R2P would extend the permissibility of intervention (as
found in Genocide Convention) to an outright obligation.230 However, Russia and China
remain reluctant to further legitimate intervention, given perceived overreach by NATO in
Libya.231
Despite the international community’s attention on the violent prone and repressive regimes
of President Al Bashir in Sudan, President Mugabe in Zimbabwe, and the military junta in
Burma, UNSC responses have been tempered by assertions of non-intervention from illiberal
224
Ruth Sherlock, "Syria Chemical Weapons: The Proof That Assad Regime Launching Chlorine Attacks on
Children," The Telegraph (2014).
225
Associated Press (AP), "Syria War Death Toll Tops 160,000," CBC News, May 19 2014.
226
Barbara Surk, "Activists Say Death Toll in Syrian War Tops 160,000," The Boston Globe, May 20 2014.
227
Ibid.
228
Aaronson, "Syria and the Crisis of Humanitarian Intervention." 51-54.
229
(AP), "Syria War Death Toll Tops 160,000."
230
Welsh, "From Right to Responsibility: Humanitarian Intervention and International Society." 503.
231
Pattison, "The Case for Criteria: Moving R2p Forward after the Arab Spring."; Michael Aaronson, "Syria and
the Crisis of Humanitarian Intervention," ibid.
[email protected]
major powers including the PRC, India, and Russia.232 Ironically, Russia’s invocation of R2P
in its attempt to legitimise an illegal incursion into Georgia233, 234 and its occupation of Eastern
Ukraine235, 236 have highlighted the need for more clarity in defining the R2P principles of
military intervention. However, the apprehension of Radovan Karadzic in Serbia and his
subsequent prosecution by the ICC for war crimes serves to remind us of how international
regimes such as R2P contribute to the advancement of global justice.237 The appointment of
Edward Luck as Special Advisor on the Responsibility to Protect is indicative of R2P’s
normalisation.238
Concerns among critical security theorists cannot and should not be dismissed. Stein turns to
the NATO initiated interventions of Northern and Southern Iraq in 1991 and 1992, the
bombing of the Bosnian Serbs by NATO forces in 1995, and the 1999 NATO Kosovo
campaign, as examples of the Global North’s manipulation of well-intentioned liberal ideals
(as in humanitarian intervention) into a tool for the imposition of Eurocentric neo-colonial
logical of violence onto the Global South.239 Historically, Merle points to the resource,
strategic, and geopolitical incentives of colonialisation and its ‘mission to civilise’
justification during the European colonial era spanning four centuries.240 During the Cold
War, both the Western and Soviet superpower blocs routinely intervened and fought proxy
wars in ‘Third World’ states241, as agency was presumed to be in the hands of ‘great
powers’242. Noted American intellectual Noam Chomsky cites the invasion of Panama under
Bush Sr., the Iran-Contra scandal, and the cases of US intervention in Vietnam, Cuba, Korea,
and Iraq (First Persian Gulf War) as examples of the misappropriation of ‘humanitarian’
interventionism.243 Effectively, Chomsky argues that the “…the United States no longer has
to worry daily about a Soviet nuclear threat, where and how it intervenes abroad is
232
Axworthy and Rock, "R2p: A New and Unfinished Agenda."
Roy Allison, "The Russian Case for Military Intervention in Georgia: International Law, Norms and Political
Calculation," European security 18, no. 2 (2009). 173-200.
234
Axworthy and Rock, "R2p: A New and Unfinished Agenda."
235
Kerstein, "Does Russia Have a ‘Responsibility to Protect’ Ukraine? Don’t Buy It."
236
Reeves, "To Russia with Love: How Moral Arguments for a Humanitarian Intervention in Syria Opened the
Door for an Invasion of the Ukraine."
237
Axworthy and Rock, "R2p: A New and Unfinished Agenda."
238
Ibid.
239
Stein, "Unauthorized Humanitarian Intervention." , 14-20.
240
Merle, "The Problem with Military Humanitarian Intervention and Its Solution." 59-76.
241
Ibid. 59-76.
242
Tarak Barkawi and Mark Laffey, "The Postcolonial Moment in Security Studies," Review of International
Studies 32, no. 2 (2006). 340.
243
Chomsky, "Humanitarian Imperialism."
233
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increasingly a matter of choice.”244 While political and military realities may have changed
since the end of the cold war, the potential for the abuse of R2P by self-interested great
powers nonetheless exists.
Citing supposed favouritism and biases towards powerful states, Pakistan, Algeria, Egypt,
Columbia, Vietnam, Venezuela, Iran, Cuba, Syria, and Tanzania stand opposed to the R2P
doctrine. 245 Although current UNSC processes do represent the historically Eurocentric
biases of decision-making practices that ignore or overlook the Global South, the list of states
opposed to R2P constitute likely justifiable targets of R2P intervention (military or
otherwise), and have historically demonstrated a blatant disregard for fundamental human
rights.246
The potential for abuse of the R2P norm should not, in itself, justify legitimate opposition to
the solidification, codification, and proliferation of the R2P norm. In taking a utilitarian
approach, as in the Oakes test applied by the Supreme Court of Canada, the limitations of a
fundamental right or freedom (i.e. hate speech legislation) must be compared with the
potential harm of limiting that right (i.e. freedom of speech) in a free and democratic society.
Such utilitarian lenses would demonstrate that the collective good to international society as a
result of the R2P norm would certainly outweigh the risks of potential abuse. Hill adopts a
Kantian approach in opining that in the event of abuse and oppression of a citizenry by its
own government, it would provide “everyone” with a “strong moral reason to prevent and
stop the abuse and oppression by all permissible means.”247 While noting the limitations of
the UNSC, Stein is supportive of UN action in quoting UN Secretary General, Kofi Annan,
“[T]he genocide in Rwanda will define for our generation the consequences of inaction in the
face of mass murder.” 248 Brooks asserts that while intervention has been ‘tainted’ by
neoimperialism, the cost of non-intervention “in situations of severe human rights abuses,
war, or poverty” is morally and intrinsically unjustifiable.249
244
Ibid.
Carlo Focarelli, "The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many
Ambiguities for a Working Doctrine," Journal of Conflict and Security Law 13, no. 2 (2008). 203.
246
Ibid.
247
Hill, "Kant and Humanitarian Intervention." 221-240.
248
Stein, "Unauthorized Humanitarian Intervention." 14-20.
249
Rosa Ehrenreich Brooks, "Failed States, or the State as Failure?," The University of Chicago Law Review
(2005). 1885.
245
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As demonstrated in Rwanda, the need to normalise and codify the obligation to intervene and
delegitimise inaction250, when faced with the evidence of mass in humanity is necessary not
only to keep states accountable as an inherent duty of their sovereignty to protect the human
rights of all in its domestic jurisdiction, but also mandate potential interveners to act, even
when (neo/realist) self-interests indicate otherwise 251 ,
252 , 253 , 254 , 255
.
The international
community failed Rwanda, as the nominal UN mechanisms designed to respond to, prevent,
and punish genocide were undermined by great power interests of the United States and
France.256 As per the Genocide Convention257, the UNSC and the UNGA had a wellestablished, entirely unopposed legal instrument to mobilise military intervention in response
to evidence of genocide, irrespective of the inter or intra-state nature of a genocide.258 The
UN was behest to great power interests, which ultimately failed to allow the international
community to acknowledge to the ‘g-word’, thereby relieving the international community of
its moral obligation to intervene under the Genocide Convention; the initial founding purpose
of the UNSC, to prevent future genocides, had been ignored, and the UN failed in its
mandate.259
The failure of Rwanda is an indication of the failure of the UN as a whole and the Security
Council as a mechanism of the UN to adequately react to and prevent a mass atrocity of
injustice and inhumanity, despite the UN’s clear mandate to do so. While ‘weak’ and
opposing states view R2P as “nothing other than a mere expedient of the great powers to
250
Benjamin, "Rethinking Nonintervention." 236.
Paul Magnarella, "Explaining Rwanda’s 1994 Genocide," Human Rights and Human Welfare 2, no. 1 (2002).
26.
252
Catharine Newbury, "Background to Genocide: Rwanda," Issue: A journal of opinion (1995). 12-17.
253
Gérard Prunier, "Genocide in Rwanda," (2001).
254
Alex De Waal, "Genocide in Rwanda," Anthropology today (1994). 1-2.
255
Elaine Windrich, "Revisiting Genocide in Rwanda," Third World Quarterly 20, no. 4 (1999). 855-60.
256
Hill, "Kant and Humanitarian Intervention." 15.
257
As defined by Article 2 of the Genocide Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
251
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the
Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of
genocide or any of the other acts enumerated in Article 3.” – Article 8, Genocide Convention (emphasis added)
258
259
Benjamin, "Rethinking Nonintervention." 236.
Arbour, "The Responsibility to Protect as a Duty of Care in International Law and Practice." 450.
[email protected]
impose their interests and values on the weakest states”260, the extant reality is that the
majority of weak, failing, or failed states, enveloped, affected by or recovering from intrastate conflicts are found in the Global South, while potential interveners with the resources,
infrastructure, and force projection capabilities for a successful R2P mission are most often
founded in the Global North. R2P brings all states to accountability, even as potential
interveners are hesitant to provide unequivocal support for R2P.
The US position is
purposefully vague as it states that, “international efforts should compliment Government
efforts rather than assume responsibility for them.”261 Given the climate of mistrust that
surrounds intervention, the emerging R2P norm requires concrete codification and clarity in
its operational principles. As P-5 veto power remains the “principal obstacle to effective and
prompt responses,”262 the legitimacy of R2P, IHL and IHR norms and justifications, must be
demarcated from the misappropriations of authority, legitimacy, and power by great power
nations in the past, to ensure that the international community is well equipped to take on the
challenge of 21st century intra-state conflicts – and ultimately step in when states are
unwilling or unable to protect their citizens from the inhumanity of human rights atrocities.
Conclusion
In 1999, UN Secretary General Kofi Annan challenged the international society to reconcile
the “twin principles of sovereignty…and fundamental human rights”. 263 This presented
significant challenges to liberals as the traditional notion of sovereignty prized the principle
of mutual non-interference. The primary controversy encompassed the legitimacy of foreign
militarily intervention into the domestic affairs of a sovereign state. Liberal conceptions of
international society acknowledge global institutions and international regimes as important
actors in proliferating the liberal project. Liberal notions of individual agency can be seen in
the enunciation of fundamental rights and humanitarian standards of state conduct during
armed conflict.
Human rights and humanitarian law are based on the foundation of
individual human agency and civilian immunity.
260
Focarelli, "The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for
a Working Doctrine." 202.
261
Ibid. 206.
262
Arbour, "The Responsibility to Protect as a Duty of Care in International Law and Practice." 453.
263
Bellamy and Drummond, "The Responsibility to Protect in Southeast Asia: Between Non-Interference and
Sovereignty as Responsibility." 180.
[email protected]
This paper addressed the question of whether the liberal conception of international society
can facilitate claims to the legitimacy of military intervention on humanitarian grounds. The
central finding was that the liberal conception of international society, as based on the
achievement of human agency via the realization of human rights and adherence to
humanitarian law, in conceptualizing security on the basis of the individual, requiring
sovereign states to exercise its sovereign authority in a protective manner, provides a
legitimate basis for obligating international society to militarily intervene when breaches of
humanitarian and human rights are so great that such sovereign state loses its legitimacy and
by extension its right to non-interference.
By reconceptualising sovereignty as a responsibility to protect the human rights of a state’s
population, the conflict between adhering to traditional notions of mutual non-interference
between sovereign states and the fundamental principles of human rights are reconciled in a
manner consistent with liberal conceptions of the individual and the state.
A state’s
responsibility to protect (R2P) obligates the greater international society to take action when
a state unwilling or unable to exercise its responsibility to protect its people from grave
breaches in human rights and humanitarian law, namely genocide, ethnic cleansing, war
crimes and crimes against humanity. R2P began as a liberal project to formalize criteria for
intervention. From the 2001 ICISS report to the UNGA, to the 2005 UN World Summit
Outcome, and the first reference to R2P by the UNSC in 2006, the R2P norm has succeeded
in legitimating intervention on moral (i.e. alleviation of mass atrocities), social (i.e. consensus
among members of the UN), and legal (i.e. formal adoption by the UNSC) grounds.
Within liberal democratic polities, the state is considered both representative and subordinate
to the necessities of promoting individual human agency. Liberal conceptions of promoting
the full achievement of individual agency are founded upon the rights-based construct of
international human rights. Sovereignty and nation-statehood were explored both in light of
emancipation of the Global South and its relationship to the human-centric promotion of
individual human rights. The process of legitimation and delegitimation in the inter-state
system, while at times subordinating to international institutions are nonetheless based on
state actors (i.e. individual members of the UNSC), where international norms and
application of international law are affected by the status of such actors. Great powers such
as UNSC P-5 are often subject to different standards as compared to weaker states. This is
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especially apparent in the context of adherence and enforcement of IHL and HRL norms.
Sovereignty carries great responsibility and great powers have an even greater responsibility
to demonstrate, via state practice, adherence to and respect for international law.
Finding that the human-centric notions of security provided greater clarity for and elevated
the importance of the individual in the process of securitisation, the notions of human
security explored as a basis for international security called for sovereign states to secure its
population not through traditional military paradigms, but rather by establishing an
environment of stability (notably a lack of armed conflict) as an initial and fundamental basis
for the realisation of the realization of socioeconomic, civil, political, cultural, environmental,
self-determination, and solidarity rights.
As established by the ICJ, human rights law applies universally and at all times, whereas IHL
applies lex specialis during times of armed conflict.264 This is significant given the overlap of
what Piazza and Walsh describe as ‘non-derogable’ human rights and international
humanitarian law. 265 As an example, the prohibition on torture as expressed in the CAT
convention is uniformly applicable and absolute, without exception.
Similarly the IHL
fundamental guarantees of the treatment of individuals rendered hors de combat, such as
civilians, non-combatants, and incapacitated soldiers, are parallel to human rights guarantees
during peacetime.266
Humanitarian norms, laws, and practice thus necessitate that all parties to an armed conflict
adhere to principles of distinction between civilian and combatant, proportionality on the last
resort to force, prohibitions on heinous, inhumane, and indiscriminate means (i.e. chemical or
biological weapons), the guarantee of fundamental protections for non-combatants, adherence
to the laws of armed conflict, and prosecution of any activity constituting war crimes and
crimes against humanity267. With the emergence of the Islamic State (ISIS) and other actors
who disregard or otherwise blatantly violate such international norms, sovereign states who
264
Françoise J. Hampson, "The Relationship between International Humanitarian Law and Human Rights Law
from the Perspective of a Human Rights Treaty Body," International Review of the Red Cross 90, no. 871
(2008).
265
James A Piazza and James Igoe Walsh, "Transnational Terror and Human Rights," International Studies
Quarterly 53, no. 1 (2009). 125-148.
266
Benoit, "Mistreatment of the Wounded, Sick and Shipwrecked by the Icrc Study on Customary International
Humanitarian Law." 175-219.
267
Including genocide and ethnic cleansing
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do not have a monopoly on the legitimate use of force in the entirety of its territory pose a
challenge to the international community.
The Responsibility to Protect (R2P) norm reconciles the moral (and social) legitimacy of
humanitarian intervention based on the human rights and humanitarian principles explored in
Chapter two.
It was found that R2P redefined sovereignty in a manner that not only
legitimates, but also obligates the international society to act, and if necessary, intervene with
military force, if a sovereign state is unable or unwilling to protect those under its jurisdiction
from mass atrocities. This was outlined in paragraph 138 and 139 of the UN World Summit
Outcome 2005, adopted by the UN General Assembly.268
As such, R2P is not codified as a treaty per se, but exists as a legitimated norm based on
customary and international law, as the UN Security Council has referenced the
“responsibility to protect” in numerous resolutions since the UN World Summit Outcome.269
UNSC Resolution 1674 was adopted unanimously on 28 April 2006, and was noted as the
first Security Council resolution to recognise a set of criteria for the basis of humanitarian
intervention.270 Within the same resolution, the UNSC reaffirmed the legal obligations of
states to adhere to IHL standards including those mentioned in the Hague Conventions and
the Geneva Convention and Additional Protocols, were mentioned in tandem to R2P. The
adoption and reaffirmation of R2P by the UNSC provides the norm with social (via the
unanimity of the UNSC), legal (as per Chapter VII of the UN Charter), and moral (as
expressed in the 2005 World Summit Outcome) legitimacy, and elevates it from rhetoric to
authoritative standard (if not customary law).
The investigation described thus opens several new frontiers for research.
As asserted by
critical and postcolonial theorists, the history of humanitarian intervention presents
inconsistencies.
The triumph of neoliberal modes within international society and
motivations of capitalistic self-interests may demonstrate ‘commitment gaps’ between states
meeting the ‘thresholds’ for R2P military intervention and the actual commitment of forces
by great powers to carry out such action. Such questions have been raised prior to the R2P
norm, especially in the context of the Rwandan Genocide, and the lack of great power
268
See: Appendix C; Assembly, "2005 World Summit Outcome."
See: Appendix D; "Un Security Council Resolutions Referencing R2p".
270
"Resolution 1674 (2006)," ed. United Nations Security Council (NY: UN, 2006).
269
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intervention. In the aftermath of the Battle of Mogadishu, President Bill Clinton issued PDD25, which restricted American troops from peacekeeping operations, with the exception of
genocide.271 Rwanda is often juxtaposed with NATO’s campaign against Serbia in 1999, in
demonstrating neoliberal or neorealist bias and promotion of national self-interests by great
powers.272 The Canadian-led ICISS-report published and submitted to the UNGA in 2001
specifically and strongly advises that the UNSC P-5 disregard self-interests in favour of
collective security in the event of R2P scenarios.273 Louise Arbour notes that P-5 veto power
remains one of the principal obstacles to effective international community responses.274
Critical theorists such as Chomsky also accuse the United States and other Global Northern
powers of ‘humanitarian imperialism’.275 This marks a line of further research and study with
particular regard to interventions during the post-Cold War period. In accounting for great
power action (and inaction), further study could focus on economic and trade relations
between interveners (i.e. great powers) and states meeting R2P intervention criteria. Even
the most ardent supporters of R2P contend that the norm requires further codification and
involvement from regional bodies, especially in the Global South.
Potential future
developments in the R2P framework include greater involvement from the BRICS nations,
and the adoption of Responsible Protection (RP) or Responsibility While Protecting (RWP)
proposals by Global Southern states and great powers (Russia and PRC). There is a gap in
R2P literature that does not fully address how to proceed beyond the success (or failure) of
Libya, and the initial formalisation and codification of the R2P norm. Most notably, the jus
pos bellum aspect of R2P, as in ‘responsibility to rebuild’ is the least commented on. How
can great powers, regional bodies and other stakeholders (i.e. INGOs, civil society, global
governance organisations) realise codified ideals in a bona-fide on-the-ground manner that
result in the success of R2P military interventions, and what uniform metrics can be used to
measure ‘success’. Further research and approaches to be explored include unprecedented
Global North-South integration, greater intersections of interests, through the promotion of
‘global citizenship’ and concepts of ‘global governance’. Within its short lifespan, R2P has
271
Long and Mills, "Globalization, Postcolonial Theory, and Organizational Analysis: Lessons from the Rwanda
Genocide." 389-409.
272
Aidan Hehir, "Nato's “Humanitarian Intervention” in Kosovo: Legal Precedent or Aberration?," Journal of
Human Rights 8, no. 3 (2009). 245-264.
273
Intervention et al., The Responsibility to Protect: Report of the International Commission on Intervention and
State Sovereignty.
274
Arbour, "The Responsibility to Protect as a Duty of Care in International Law and Practice." 453.
275
Chomsky, "Humanitarian Imperialism."
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certainly contributed to the liberal project. While R2P may be an imperfect solution to an
imperfect world, the human cost of non-intervention is so great that imperfect action is far
preferable to complete inaction and complacency of the international society to allow mass
human atrocities and suffering to continue.
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