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Friday, December 9, 2011


Gareth Evans announces in the latest Foreign Policy that we have won the war against genocide.  By that he means that humanitarian intervention has become widely accepted as an appropriate response to atrocities in general and genocide in particular. 

His best – and most obvious -- piece of evidence is Libya.  After the world community was shocked by the Gaddafi regime’s use of force against peace protesters during the early days of the Libyan uprising, when it was a mere protest and not yet a civil war, NATO finally decided that it was time to act.  Although everyone knew that Gaddafi’s regime had engaged in brutality during its four-decade reign, the killings of political protesters in broad daylight was apparently too much.  Gaddafi was indicted by the ICC, NATO intervened with bombers, and even the Obama Administration got involved with drones and technical advisers – even allegedly flouting the War Powers Resolution in the process.

It’s certainly true that humanitarian intervention is a much more politically salient option today than it was during NATO's intervention in Kosovo.  However, it is important not to generalize too much from the Libyan example.  Calls for an intervention in Syria have largely gone nowhere, despite the fact that many of the government attacks against protestors equal, or even exceed, what happened to the protesters in Libya.

Furthermore, political acceptance of humanitarian intervention is one thing; legal acceptance is another.  One of the most popular legal arguments for intervention is the Responsibility to Protect, and I am often asked by my students what I think of the concept.  Although I support the legality of humanitarian intervention, I remain skeptical of RTP as a convincing doctrine.  Here’s why:

First, it’s important to remember that RTP comes in many variations, as Carsten Stahn admirably pointed out in a great early essay in the American Journal of International Law.   In its thinnest variation, RTP simply means that governments should insulate innocent civilians from the horrors of war.  This is rather uncontroversial, and to my mind is a conclusion that is already implicit (or even explicit) in international humanitarian law and international human rights law.

In its thickest variation, however, RTP attempts to provide an argument for unilateral humanitarian intervention in the absence of Security Council authorization. That's the holy grail for advocates of humanitarian intervention -- an argument that somehow gets around the Security Council's exclusive authority to regulate the use of force under the U.N. Charter (with the exception of Article 51 -- more on that below).  

Unfortunately, though, the argument for this thicker version of RTP is rather thin.  Here are the arguments: the concept was developed by an international commission (ICISS), then adopted by the General Assembly, and also enjoys wide support among the international community (thus evidence of an emerging opinio juris).  All three of these arguments constitute a slight-of-hand move, though.  First, the commission that came up with RTP was hardly international.  Yes, it had members from all around the world, but it was set up by the Canadian government, not the United Nations.  Hardly international.

Second, the General Assembly’s 2009 resolution on RTP (A/RES/63/308) was hardly an endorsement of any norm of unilateral intervention, which as I said above, is a chameleon of a concept that can stand for anything as mild as the need to protect civilians from the devastation of war.  In fact, the General Assembly resolution says absolutely nothing about justifying the use of force in the absence of Security Council authorization.  That's the important part, and the General Assembly has never endorsed this idea.  (The 2009 resolution says that the Assembly “Decides to continue its consideration of the responsibility to protect”).

Third, when states lend support to the idea of RTP, it is impossible to know whether they are endorsing the thin or thick version of the concepts.  And that, I think, is the beauty of RTP.  It can mean anything to anybody, so many states have reason to support it.  It's only when you start clarifying which version you are talking about that the disagreement really starts.

Responsibility to Protect has had a remarkable career in a very short time period.  Activists and even some scholars accept it like it is gospel, even though the evidence in support of it is questionable.  The concept has been well marketed, and the fact that it has a good website, and a great acronym (RTP or R2P) doesn't hurt.  Doctrines without acronyms always have a problem taking off.  At a certain point, so many people will be talking about RTP like it is law that it might actually become law.  It's the greatest example of bootstrapping that I've ever seen in public international law.  Credit where credit is due, I suppose.

Although I disagree with RTP, that's not to suggest that I'm an opponent of unilateral humanitarian intervention.  On the contrary, I believe it is legal in some circumstances.  In particular, my view is based on a reading of Article 51 of the UN Charter, which refers to the "droit naturel de légitime défense".  According to my position, outlined with George Fletcher in Defending Humanity, the concept of "Legitimate Defense" encompasses both self-defense and defense of others, thus suggesting that the use of force is legal to fend off an aggressor and to come to the aid of a victim of aggression, regardless of whether they request the assistance or not.  As a final note, the reference to "droit naturel" (natural law) indicates that the right belongs to nations and peoples because it predates positive law.  It is a right that extends all the way back to the international State of Nature.  It is a right that is recognized, but not created, by Article 51 of the Charter.

The virtue of recognizing this argument for humanitarian intervention under the Doctrine of Legitimate Defense (should I call it DLD?) is that it does so within the confines of the UN Charter and the carve-out announced in Article 51.  The thick version of RTP, by contrast, serves only to de-legitimize the UN Charter and its regulation of the use of force.  And that's dangerous fire to play with.  Even human rights activists have reason to worry once the UN Charter is no longer seen as authoritative on the issue of the use of force.  The consequences of that development could be disastrous.


Koldo Casla said...

Great piece. Thank you.
Regarding the intervention in Libya, let me leave here a couple of posts of my own:

What will the post-Libya scenario look like?

Libya, R2P and a Wilsonian Barack Obama

Jens David Ohlin said...

Thank you for posting links to your blog. Much appreciated.

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