ASIL Live-Blogging, “Military Intervention and the International Law of Peace,” Plenary Opening Presentation

Remarks by Patricia O’Brien, Office of the Under-Secretary General for Legal Affairs, United Nations

Focus: Responsibility in the Context of the UN and the situations in Libya and Syria.  “The Responsibility to Protect” was widely accepted during the 2005 World Summit.  The UN Secretary General has determined that R2P has three pillars: (1) responsibility of States to protect populations, (2) responsibility of international community to assist States in protecting their populations, and (3) commitment of States to take collective action through the UN Security Council, if necessary, when States fail to protect their populations.  Such collective action can be taken pursuant to the SC powers under Chapters VI and VII, which serve as both the legal framework for and the restrictions on the use of force under Article 2(4).  R2P places a positive responsibility on the community of States to protect vulnerable populations from the worst crimes known to humankind, such as war crimes, crimes against humanity, and genocide.  R2P does not, however, change the existing law vis-a-vis the use of force under Article 2(4) and non-intervention under Article 2(7).  In this way, R2P expands the scope of the use of collective action within the UN system, without undermining that system.

Libya

Action by the international community was “swift, multifaceted, and drastic,” action which was taken expressly under R2P.  Some States criticized the action taken in Libya as being beyond the scope of the relevant SC Resolutions, while others saw the action as appropriate under the circumstances and effective in stopping greater crimes from being committed.

Syria

The current stalemate in the SC is of great concern, given the deteriorating situation in Syria.  Despite the vetoes in the SC, the international community has not given up.  The Arab League has drafted a number of proposals to bring an end to the violence.  The General Assembly has widely condemned the violence and the regime.  And former SC General Kofi Annan, Special Envoy to the Syrian situation, appears to be making progress in his talks with the Syrian government.  Thus, while the Syrian government “has clearly violated its responsibilities under R2P, the international community has not.”

In conclusion, the role of R2P is not to circumvent the UN system, but to work through the system and serve as “moral pressure” on States engaging in massive human rights atrocities to cease and desist.

Remarks by Anne Orford, University of Melbourne Law School

Expanding upon Professor O’Brien’s comments, Professor Orford emphasizes that R2P should not be limited solely to military action.  In addition, it’s worth noting the history of the development of R2P through the UN system.  Conceptually, R2P asserts that the lawfulness of authority for local and national governments flows from the responsibility to protect the civilian population.  That is not to say, however, that R2P in any way affects customary international law vis-a-vis the right to self-determination.

There are four lines of inquiry when it comes to R2P: First, R2P is of normative significance not because it imposes new obligations, but because it confers an international legal framework to deal with such violations.  Second, in thinking of R2P as a legal framework, it is worth noting the discretionary nature of R2P.  Third, there is considerable uncertainty regarding who decides what protection means, how it can be realized, and which claim of authority can realize its goals.  Fourth, there is a tension between the responsibility to protect and the “authoritarian community of security States” utilizing R2P to engage in military action.

In short, more attention needs to be paid to softer forms of executive action, and not just military action, under R2P.

Remarks by Rosa Brooks, Georgetown University Law Center

Focus: contradictions and problems flowing from changing notions of State sovereignty vis-a-vis R2P.  Two shifts are worth noting: first, the normative shift in State sovereignty; and second, the technological shift in military actions.

There are two primary communities asserting sovereignty limiting doctrines: HR/IHL communities espousing R2P and the counterterrorism community claiming “waiver” of sovereignty for terrorist-harboring States.  The former has two aspects: first, as Professor O’Brien described above; and second, and perhaps more drastically, that the protection of civilian populations is a pre-condition to State sovereignty.  Professor Brooks disagrees with the previous comments that R2P was designed solely to work within the UN system.  R2P was designed to give States the right to engage in military action when the SC becomes paralyzed.  R2P is a two-sided coin: a State has a duty to protect its own population, and a State has a duty to protect the populations of other States.  Despite this reality, the normative shift in the idea of State sovereignty raises a number of issues, as discussed by the previous speakers.

In addition to the normative shift, there has been a technological shift which has reduced the costs of States to engage in force, both in monetary (e.g. hell-fire missiles are $60,000 a piece) and humanitarian (i.e. collateral damage) terms.  Due to these lower “costs,” States may be more willing to engage in military action to fulfill their obligations under R2P.

Because of the normative and technological shifts in State sovereignty, States attempting to fulfill their obligations under R2P may be more likely to engage in the use of force to stop mass human rights atrocities.  How this will play out is unknown; however, the challenges that these shifts raise are predictable.

Remarks by Ian Hurd, Northwestern University

The “bundle of laws” – the prohibition on the use of force and the duty of non-intervention under the UN Charter and customary international law – raises a number of legal question vis-a-vis R2P.  While the “legality” of the Libyan action will not be addressed, the implications thereof will be.  There are two key questions arising from the Libyan operation: first, did the Libyan action change international law; and second, what did we learn about the line between domestic and international affairs?  With respect to the former, the Libyan action did not “change” the law as we know it.  The SC resolutions authorizing the use of force in Libya referenced “responsibility” but not “responsibility to protect,” and they were drafted pursuant to the SC’s powers under Chapter VII.  Thus, the Libyan action did not change the law.  With respect to the latter, the UN system is designed to deal with inter-national disputes.  The line between domestic disputes and international disputes is governed by the SC.  While “a threat to international peace and security” is well known, there is no domestic analog to the “threat to domestic peace and security.”  Perhaps that is what R2P is really trying to do – create a domestic analog for a “threat to international peace and security.”

Syria is a threat to domestic peace and security, which explains why there is gridlock in the SC.  It is difficult to find a legal violation on the part of Syria because it has not signed most human rights treaties.  As a result, in cases similar to Syria, the SC has labored to transform a threat to domestic peace and security into a threat to international peace and security.  Whether this is a positive or negative practice of the SC will not be addressed here.

International law is a function of State practice, not the other way around.

Final Remarks by W. Michael Reisman, Yale University

Positions on R2P often depend upon the perspective of the person.  For those working within the UN system, R2P works – and must work – through the UN mechanisms designed to maintain international peace and security.  For those outside the UN system, R2P is designed to stop atrocities, such as the Rwandan genocide, when the UN system fails to fulfill its mission and put an end to the violence.  Question: would R2P really have addressed Kofi Annan’s concerns when the Rwandan genocide began?  If we are talking about unilateral humanitarian intervention to stop mass atrocities in light of the technological advances in the tools of warfare (i.e. drones), such a doctrine gives one pause.  Such a doctrine could be ripe for abuse, by actors not as benevolent as the US (i.e. North Korea).

Discussion between Speakers

Patricia O’Brien: R2P is in its infancy.  The UN sees R2P as a prism through which to see how collective action should be taken through the SC.  R2P demonstrates the flexibility of the Charter in responding to such atrocities, a response not anticipated in 1945.  There is potential within the Charter to push the boundaries of action through the UN system.

Anne Orford: R2P raises questions of selectivity, jurisdiction, and recognition that must be addressed from an international legal perspective.

Rosa Brooks: Drones are not particularly effective against developed States with standing armies, air forces, navies, etc.; they are effective against non-State actors.  Thus, while Michael Reisman’s concerns are understandable, they are not likely to occur in the examples that he citied.  With that said, there is no logical distinction between the use of drones against terrorists in Pakistan, Yemen, etc., and the use of massive military action to stop States from inflicting widespread and systematic human rights atrocities upon their civilian populations.  Reframed in this way, Professor Brooks shares Professor Reisman’s concerns due to the higher likelihood of collateral damage in massive military action.  For this reason, R2P must be further developed.

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