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Wednesday, April 4, 2012

RTP and Reaping What You Sow

I was at ASIL in Washington DC this weekend, and there were some common refrains among the discussion.  As usual, the Responsibility to Protect came up in several sessions, in particular with regard to Libya and Syria and whether there was any tension between Western intervention in Libya and Western non-intervention in Syria, a point that was explicitly discussed by Harold Koh.  Several speakers openly debated whether RTP was an emerging legal rule (presumably of custom) or some kind of extra-legal principle.

Much of this represents the standard landscape of positions regarding RTP.  What was interesting, however, was the connection that people were drawing between RTP and outside intervention to attack a non-state terrorist organization operating from inside the territory of a sovereign state.  In the latter situation, there is an emerging (and controversial) doctrine that says that outside states can intervene into a sovereign territory to attack a terrorist organization if the host state is “unwilling or unable” to prevent its own territory from being used as a base of operations for terrorist activity.

Rosa Brooks (Georgetown) made this point explicitly.  Both situations can be linked by the notion of responsibility.  In the case of RTP, the responsibility is inward, in the sense that the state owes a responsibility to protect its own citizens from human rights abuses, and the failure of this responsibility triggers a forfeiture of the state-centric rights usually associated with sovereignty.  It is almost a collateral estoppel point.  If the state isn’t protecting its own citizens (or in fact is attacking them), it is in no position to object to the violation of sovereignty caused by outside intervention to protect the very citizens that it is failing to protect.

In the case of intervention against terrorists where the host state is “unwilling or unable” to stop them, the responsibility is outward, in the sense that the state owes a responsibility to the world community and must ensure that its territory is not used to destabilize international peace and threaten the security of other nations.  Again, in the vein of collateral estoppel, if the host state is unwilling or unable to stop the non-state actor, it forfeits the usual protections of sovereignty and can’t complain when the international community (or even just one state) violates that sovereignty in order to accomplish what the host state is unwilling or unable to do.

What Brooks was getting at is that these are two sides of the same coin.  RTP involves an inward looking responsibility that is enforced from the outside, and the “unwilling or unable” standard involves an outward looking responsibility that is also enforced from the outside.  And both, in a sense, involve some kind of protection.  For RTP the protection is owed to internal citizens, while for “unwilling and unable” situations, the protection is owed to external citizens who might be victimized by terrorism, or more generally the international community.

(By the way, I don’t think that Brooks was advocating for either of these positions, but rather was describing the conceptual and structural similarities between the arguments).

The point here is that one should not be surprised that RTP can be harnessed in this way.  Once you follow Louis Henkin and his famous command, first uttered as ASIL President in 1993, that we banish the S-word (sovereignty) from our discourse, then sovereignty is devalued in multiple contexts, not just in RTP for purely humanitarian actions.  Sovereignty is also then weakened for security interventions.

I would think that this linkage is not what at least some RTP advocates have in mind, particularly those in Europe who are rightly suspicious of Bush-era pronouncements of the American right to use military force in the War on Terror, even in the absence of Security Council authorizations.  But the two issues are conceptually linked, and it is a wonderful example of legal principles taking on a life of their own, and being used in novel and unusual ways that could not be initially predicted.  When you create a legal doctrine or a legal principle, you are giving birth to a new idea, not particular outcomes, and you may not like the outcomes that are generated once the new idea is applied to unforeseen contexts.  I wonder if some proponents of RTP may some day live to regret the very doctrine that they have been promoting so passionately.

I do wish that Louis Henkin were still alive to add his wise voice to these discussions.


mihai martoiu ticu said...

Somebody leaked a policy document from the Clinton era, where one suggested fighting resources wars by cloaking them in humanitarian interventions. After all, wherever there is some natural resource there is some kind of tyrant or some conflict.

Thus, introducing humanitarian intervention as new exception to the use of force, just welcomes the Trojan horse of whoever wants to rob some oil.

And this back-door solving of the problem of gross human rights abuses was invented because those in power do whatever in their power to keep the power and gain more. Otherwise, we would have an ICJ compulsory jurisdiction by now; at least for the use of force. Look how nicely the problem would be solved:

Alternative 1:
If state A believes that state B violates human rights grossly, state A should sue state B at ICJ. If state B wins, the problem is solved. If state A wins ICJ can order measures to stop the violations. If state B does not comply, state A goes back to ICJ and asks permission to intervene.

Alternative 2:
State A believes that a humanitarian intervention should take place and there is no chance for SC to endorse it. State A intervenes. If state B disagrees, she goes to ICJ – which should have compulsory jurisdiction – and demands that state A stops the hostilities. ICJ decides whether this was a genuine case of intervention and the parties should abide by the decision.

But we don’t have compulsory jurisdiction at ICJ because those with power want to be free to do whatever they please. With impunity. Thus, the right to humanitarian intervention is giving the thief an extra loophole in the law after giving him also the power to make the law.

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